                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             October 19, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                         Summary Calendar
                           No. 04-40190


FERNANDO CALDERON

                Plaintiff - Appellant

   v.

JOHN E POTTER, Postmaster General; WILLIAM J HENDERSON,
Postmaster General

                Defendants - Appellees


          Appeal from the United States District Court
               for the Southern District of Texas
                         No. C-02-CV-512


Before KING, Chief Judge, and WIENER and GARZA, Circuit Judges.

PER CURIAM:*

     Fernando Calderon filed this suit for disability

discrimination and retaliation against the Postmaster General

after his employer, the United States Postal Service, refused for

a period of time to permit him to return to work as a letter

carrier because of injuries to his arms.    Calderon now alleges

that the district court erred when it granted summary judgment


     *
          Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

                                 1
for the defendant on his disability discrimination and

retaliation claims.   For the following reasons, we AFFIRM the

judgment of the district court.

               I. Factual And Procedural Background

     Fernando Calderon has worked for the United States Postal

Service (“USPS”) for over twenty-five years, most of the time as

a letter carrier.   In June 1998, Calderon’s physician, Dr.

Charles Breckenridge, diagnosed him as suffering from repetitive

motion injuries to his shoulders and elbows, specifically

bilateral elbow lateral epicondylitis and impingement syndrome

with early arthritis and tendinitis.   Accordingly, in May 1999,

Calderon had the first of four surgeries for these injuries.

Prior to surgery, he filed a Notice of Occupational Disease with

the USPS to receive workers’ compensation coverage for his

injuries.   Following each surgery, he took leave from work for

several weeks to recover.

     After Calderon’s first surgery, he returned to his job with

the USPS as a letter carrier.   Subsequently, the USPS accepted

his occupational disease claim.   However, on July 20, 2000, Dr.

Robert Jones, a physician working for the USPS, examined Calderon

and found that he was unfit to work as a letter carrier as a

result of his shoulder and elbow condition.   Accordingly,

Calderon was reassigned to non-carrier duties.

     On January 9, 2001, Postmaster Cathy Polderman convened a

meeting where she told Calderon that she would not accept a

                                  2
medical release from his doctor saying that he could return to

work as a letter carrier.   She then told Calderon that he could:

(1) accept a voluntary assignment to a clerk position; (2) be

involuntarily assigned to a clerk position; or (3) take medical

disability retirement.   On February 5, 2001, Calderon contacted

an EEO counselor about this January 9, 2001 meeting.    On March

27, 2001, after having two more surgeries, Calderon filed an EEO

Complaint, challenging the USPS’s refusal to let him return to

work as a letter carrier.

     On August 1, 2001, after Calderon’s final surgery, Dr.

Breckenridge released Calderon to full duty without restrictions.

The USPS did not, however, return Calderon to his previous

position as a letter carrier.   Instead, on August 16, 2001,

Postmaster Polderman wrote to Dr. Jones, the physician who had

previously evaluated Calderon for the USPS, and requested that he

provide a medical opinion as to whether Calderon could return to

his position as a letter carrier.    On August 21, 2001, Dr. Jones

replied to Postmaster Polderman by letter, repeating that

Calderon was still not fit for duty as a letter carrier.    Dr.

Jones further stated that “there are no restrictions that I know

of that will allow the subject to perform the duties of City

Carrier or any other job available at the Post Office.”    Dr.

Jones noted in his letter that his conclusion that Calderon was

not fit for duty was based upon the evaluation of Calderon that

he conducted on July 20, 2000, nearly a year earlier.

                                 3
     On September 12, 2001, an EEO investigator sent Postmaster

Polderman a series of questions regarding Calderon’s EEO

complaint.   Subsequently, on November 8, 2001, Postmaster

Polderman convened a meeting to discuss Calderon’s work status.

At that meeting, she told Calderon that the following jobs were

available to him for reassignment: (1) clerk in Ingleside; (2)

mailhandler in Corpus Christi; (3) custodian in Corpus Christi;

(4) mail processor in Corpus Christi; and (5) window clerk in

Corpus Christi.   Calderon refused to be voluntarily reassigned to

any of these positions, contending that his doctor had cleared

him to return to his position as a letter carrier.

     On January 23, 2002, Calderon received a letter from David

Cotham, a USPS manager, stating:

     On November 8, 2001, a work status meeting was held
     during which we discussed job opportunities within your
     work restrictions. During the meeting, you refused
     reassignment as a window or distribution clerk.
     Considering your medical restrictions, I would agree
     that those duties would not be within your permanent
     medical restrictions.

     In reviewing available job assignments, Personnel
     records indicate that there is available a custodian
     position in the Plant on Tour 1, from 11:00 p.m. to
     7:30 a.m., Wednesday and Thursday off. The duties of
     this custodial position are within your permanent
     medical restrictions. There are no other funded,
     vacant positions within your medical restrictions.
     Therefore, this is to advise you that this custodial
     position is being offered to you as a permanent
     reassignment.

     Please let me know by February 1, 2002 if you accept or
     reject this job offer. Your failure to accept said
     offer will result in your separation from the Postal
     Service.

                                   4
On January 31, 2002, Calderon rejected the custodial position.

In response, on February 28, 2002, the USPS sent Calderon a

Notice of Proposed Enforced Leave that involuntarily placed him

on leave with pay.

     On April 1, 2002, while Calderon was still on enforced

leave, Postmaster Polderman sent a letter to him instructing him

to report to Dr. Jones for a fitness-for-duty exam.

Subsequently, he was told instead to report to Dr. Theodore

Parsons, which he did on April 12, 2002.   After the exam, Dr.

Parsons cleared Calderon to return to work as a letter carrier.

On May 11, 2002, Calderon returned to his position as a letter

carrier.   In total, Calderon was on enforced leave from February

28, 2002 until May 10, 2002.

     On November 22, 2002, Calderon filed this lawsuit against

the Postmaster General, alleging two claims under the

Rehabilitation Act, 29 U.S.C. §§ 701-796: (1) unlawful disability

discrimination by the USPS as a result of its refusal to permit

him to return to his position as a letter carrier for a period of

time after his surgeries; and (2) unlawful retaliation by the

USPS for placing him on enforced leave and reassigning him to

non-letter-carrier duties because he filed an EEO complaint.     The

defendant subsequently filed a motion for summary judgment, and

Calderon filed a motion for partial summary judgment.   On January

13, 2004, the district court granted the defendant’s motion for

                                 5
summary judgment and denied Calderon’s motion.    Calderon

subsequently filed the present appeal.

                        II. Standard of Review

     This court reviews a district court’s grant of summary

judgment de novo, applying the same standard as the district

court.    See Fierros v. Tex. Dep’t. of Health, 274 F.3d 187, 190

(5th Cir. 2001).    According to the Supreme Court, “summary

judgment is proper ‘if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.’” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986) (quoting FED. R. CIV. P. 56(C)).   The party moving for

summary judgment “must merely demonstrate an absence of

evidentiary support in the record for the non-movant’s case.”

Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir.

2000).    Conversely, the nonmoving party must come forward with

“specific facts showing that there is a genuine issue for trial.”

FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986) (holding that no issue for trial exists unless

there is sufficient evidence for a jury to return a verdict for

the nonmoving party).    When a district court reviews the support

for a nonmovant’s case, the “evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in [its]

favor.”    Anderson, 477 U.S. at 255.

                                  6
                           III. Discussion

     Calderon raises two issues on appeal.       First, he maintains

that the district court erred in granting summary judgment on his

disability discrimination claim.       Second, he asserts that the

district court erred when it granted summary judgment on his

retaliation claim.    We examine each claim in turn.

     1.   Disability Discrimination

     Calderon first claims that the district court incorrectly

granted summary judgment in favor of the defendant on his

disability discrimination claim under the Rehabilitation Act when

it found that the USPS did not regard Calderon as being disabled.

According to Calderon, the evidence shows that the USPS--in

particular, Postmaster Polderman--regarded him as being disabled.

Accordingly, he contends that he should be allowed to proceed

with his disability discrimination claim.

     While Calderon does not claim to have been disabled, he

contends that the USPS regarded him as having an impairment that

prevented him from performing the major life activity of

performing manual tasks.    In support of this contention, he

invites the court’s attention to Dr. Jones’s August 21, 2001

letter to the USPS, in which Dr. Jones stated that “there are no

restrictions that I know of that will allow the subject to

perform the duties of City Carrier or any other job available at

the Post Office.”    Additionally, he notes that Postmaster

Polderman signed an EEO Investigative Affidavit on November 26,

                                   7
2001, in which she was asked: “Were you aware the Complainant had

a physical impairment?   If so, how and when did you become

aware?”   Postmaster Polderman responded that “I was aware that

Mr. Calderon had several surgeries from Dave Cotham and Mr.

Calderon’s records.”   Finally, he notes that in David Cotham’s

January 23, 2002 letter to him, Cotham stated that working as a

distribution or window clerk would not be within Calderon’s

“permanent medical restrictions.”    Based on this evidence,

Calderon claims that, contrary to the findings of the district

court, the USPS regarded him as being substantially limited in

the major life activity of performing manual tasks.    Thus, he

contends that he should be allowed to pursue his disability

discrimination claim against the USPS.

     Under the Rehabilitation Act, an individual claiming

discrimination must show that he: (1) is an “individual with a

disability;” (2) was “otherwise qualified” for the job in

question; (3) worked for a “program or activity receiving Federal

financial assistance”; and (4) was discriminated against “solely

by reason of her or his disability.”     Hileman v. City of Dallas,

115 F.3d 352, 353 (5th Cir. 1997) (quoting 29 U.S.C. § 794(a)).

The standards used for determining whether the Rehabilitation Act

has been violated in an employment discrimination suit are the

same as the standards for determining if the Americans with

Disabilities Act (“ADA”) has been violated in an employment

discrimination suit.   29 U.S.C. § 791(g) (2000).   Under the ADA,

                                 8
an individual has a “disability” if he: (A) has a physical or

mental impairment that substantially limits one or more of his

major life activities; (B) has a record of such an impairment; or

(C) has been regarded as having such an impairment.   42 U.S.C.

§ 12102(2) (2000); Rogers v. Int’l Marine Terminals, Inc. 87

F.3d. 755, 758 (5th Cir. 1996).   Since Calderon does not assert

that he was disabled or had a record of a disability but merely

claims that the USPS regarded him as such, this court need only

consider whether the USPS considered him to be substantially

limited in the performance of one or more major life activities

(i.e., the court need only consider the third way of establishing

a “disability” under the ADA).    See 42 U.S.C. § 12102(2).

     According to EEOC regulations, “major life activities” are

things such as “caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and

working.”   McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 280

(5th Cir. 2000) (quoting 29 C.F.R. § 1630.2).   A person is

regarded as being significantly restricted in a major life

activity when he (1) has an impairment that is not substantially

limiting but which his employer considers to be substantially

limiting; (2) has an impairment which is substantially limiting

only because of others’ attitudes; or (3) has no impairment but

is perceived by his employer as having a substantially limiting

impairment.   Bridges v. City of Bossier, 92 F.3d 329, 332 (citing

Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727-28 n.19 (5th

                                  9
Cir. 1995)).

     Calderon’s disability discrimination claim fails because he

has put forward no evidence showing that the USPS regarded him as

being substantially limited in performing manual tasks.   In Toyota

Motor Manufacturing, Kentucky, Inc. v. Williams, the Supreme Court

held that “to be substantially limited in performing manual tasks,

an individual must have an impairment that prevents or severely

restricts the individual from doing activities that are of central

importance to most people’s daily lives.”   534 U.S. 184, 198

(2002).   The Court further stated that “[w]hen addressing the

major life activity of performing manual tasks, the central

inquiry must be whether the claimant is unable to perform the

variety of tasks central to most people’s daily lives, not whether

the claimant is unable to perform the tasks associated with her

specific job.”   Id. at 200-01.   Calderon has offered no evidence

whatsoever that the USPS regarded him as being unable to perform

manual tasks of central importance to daily life.   To the

contrary, the summary judgment evidence shows that while Calederon

was recovering from his surgeries, the USPS repeatedly offered him

jobs that involved performing manual tasks.   For instance, at the

November 8, 2001 meeting convened by Postmaster Polderman, the

USPS told Calderon that five jobs (mail processor, clerk,

custodian, mail handler, and window clerk)--all of which would

have required him to perform manual tasks--were available to him

for reassignment.   Similarly, in his letter of January 23, 2002,

                                  10
David Cotham told Calderon that he would be placed on leave if he

did not accept a custodial job, a position that would have

required him to perform manual tasks.    Likewise, as the district

court correctly pointed out, between August 3, 2001 and February

28, 2002, the USPS allowed Calderon to work in a non-letter-

carrier position that required him to perform manual tasks.

     While Calderon attempts to show that the USPS regarded him as

being substantially limited by pointing to Dr. Jones’s letter of

August 21, 2001 (in which Dr. Jones stated that Calderon was

unable to safely perform the duties of any job available at the

Post Office), this attempt fails.     Without more, the existence of

this letter does not suffice to raise an issue of material fact as

to whether the USPS regarded Calderon as being substantially

limited in the performance of a major life activity, since both

before and after the letter was sent the USPS offered Calderon

alternative jobs that would have required him to perform manual

tasks.   Similarly, David Cotham’s January 23, 2002 letter to

Calderon does not create an issue of material fact as to whether

the USPS regarded him as disabled.    In this letter, Gotham stated

that working as a distribution or window clerk would not be within

Calderon’s permanent medical restrictions.    However, he then

offered Calderon a job as a custodian--a position that would have

required him to perform manual tasks--in this same letter.

Additionally, the USPS had offered Calderon numerous other jobs

that would have required him to perform manual tasks before this

                                 11
letter was written, all of which he rejected.   Accordingly, the

USPS’s consistent attempts to offer Calderon jobs entailing manual

tasks belies Calderon’s claim that it regarded him as being

substantially limited with respect to the major life activity of

performing manual tasks.   Thus, no material issues of fact exist,

Calderon has failed to show that the USPS regarded him as being

substantially impaired with respect to a major life activity, and

the district court correctly granted summary judgment in favor of

the defendant on Calderon’s disability discrimination claim under

the Rehabilitation Act.

     2. Retaliation

     Calderon next contends that the district court erred by

granting summary judgment in favor of the defendant on his

retaliation claim under the Rehabilitation Act.   According to

Calderon, the USPS unlawfully retaliated against him by placing

him on enforced leave because he filed an EEO complaint in March

of 2001.   Likewise, he claims that the USPS reassigned him from

his position as a letter carrier to other less-desirable positions

in retaliation for filing his EEO complaint.

     To establish a prima facie case of retaliation under the

Rehabilitation Act, a plaintiff must show that: (1) he engaged in

a protected activity (e.g., the filing of an EEO complaint); (2)

his employer took an adverse employment action against him; and

(3) a causal connection existed between the adverse employment



                                 12
action and the protected activity.      Shannon v. Henderson, No. 01-

10346, slip op. at 8-9 (5th Cir. Sep. 25, 2001); Treglia v. Town

of Manlius, 313 F.3d 713, 719 (2nd Cir. 2002); Gribcheck v.

Runyon, 245 F.3d 547, 550 (6th Cir. 2001), cert. denied, Gribcheck

v. Potter, 534 U.S. 896 (2001).1    Once a plaintiff has established

a prima facie case of retaliation, the burden shifts to the

defendant to show that it had a legitimate nondiscriminatory

reason for taking the adverse employment action.      Gee v. Principi,

289 F.3d 342, 345 (5th Cir. 2002).      If the defendant provides a

legitimate nondiscriminatory reason for the employment action, the

burden shifts back to the plaintiff to show that the adverse

action would not have occurred “but for” the protected activity.

See Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir. 1996).

     Even if Calderon has established a prima facie case of

unlawful retaliation, the USPS has articulated a legitimate

     1
          In Shannon, the court noted that this circuit has never
explicitly held that the framework for analyzing retaliation
claims brought under the Rehabilitation Act is the same as that
for analyzing retaliation claims under Title VII of the Civil
Rights of Act of 1964 and the ADA. Shannon v. Henderson, No. 01-
10346, slip op. at 8 (5th Cir. Sep. 25, 2001). The court then
stated that both the language of the Rehabilitation Act and the
findings of other circuits indicate that the same framework for
analyzing Title VII and ADA retaliation claims should be applied
to retaliation claims brought under the Rehabilitation Act. Id.
at 8-9 (citing 29 U.S.C. § 794(d); Gribchek, 245 F.3d at 550;
Hooven-Lewis v. Caldera, 249 F.3d 259, 272 (4th Cir. 2001)).
Accordingly, the court in Shannon applied the standards for
analyzing retaliation claims brought under the ADA and Title VII
to the plaintiff’s retaliation claim brought under the
Rehabilitation Act. For the reasons articulated by the Shannon
court, we will use the same approach when analyzing Calderon’s
retaliation claim under the Rehabilitation Act.

                                   13
nondiscriminatory reason for placing him on enforced leave: it

felt he could no longer perform the duties of a letter carrier

and, although it had repeatedly tried to reassign him, he refused

every job offered to him.   Calderon, on the other hand, has not

rebutted this claim by showing that he would not have been placed

on enforced leave or reassigned “but for” the fact that he filed

an EEO complaint.   The summary judgment evidence supports the

USPS’s justification for reassigning Calderon and placing him on

enforced leave.   First, it shows that the USPS first reassigned

Calderon from his letter carrier duties in November of 2000, well

before he filed his EEO complaint in March of 2001.   It further

shows that the USPS told Calderon that he could not return to his

position as a letter carrier--and offered him at least five

alternate jobs instead--before he filed his EEO complaint.

Moreover, the summary judgment evidence (including David Cotham’s

January 23, 2002 letter to Calderon) shows that the USPS placed

Calderon on enforced leave only after he (1) repeatedly refused to

accept every job offered to him by the USPS and (2) was warned

that failure to accept the USPS’s latest job offer would result in

his separation from the USPS.

     In response to the USPS’s alleged nondiscriminatory reason

for placing Calderon on enforced leave, Calderon has put forward

no evidence whatsoever showing that his placement on leave, which

occurred nearly a year after he filed his EEO complaint, was in

any way related to the filing of his EEO complaint.   Accordingly,

                                 14
he has not shown that a fact question exists as to whether he

would not have been placed on leave “but for” the filing of his

EEO complaint.   Similarly, Calderon has offered no evidence

showing that the USPS reassigned him from his letter carrier

position--an event that occurred before he filed his EEO

complaint--in retaliation for filing his EEO complaint.    Finally,

he has put forward no evidence that the USPS’s purpose in telling

him that he could either become a custodian or be separated from

the USPS was to retaliate against him for his EEO complaint.    The

USPS, on the other hand, has provided a legitimate

nondiscriminatory reason for its decision to give him this choice

(i.e., it gave him this choice because he had rejected every other

job offer made by the USPS).   Furthermore, the decision to give

Calderon this choice was wholly consistent with the reassignments

that began before Calderon ever filed his EEO complaint.

Accordingly, no material questions of fact exist, Calderon’s

retaliation claim under the Rehabilitation Act fails, and the

district court correctly granted summary judgment on this claim in

favor of the defendant.

                          III. Conclusion

     For the foregoing reasons, we AFFIRM the district court’s

decision granting summary judgment in favor of the defendant.




                                 15
