     Case: 10-20512     Document: 00511518696          Page: 1    Date Filed: 06/23/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 23, 2011

                                     No. 10-20512                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



SIMON M. SANCHEZ,

                                                   Plaintiff-Appellant,
v.

UNITED STATES POSTAL SERVICE,
Through PATRICK R. DONAHOE, Postmaster General

                                                   Defendant-Appellee.




                    Appeal from the United States District Court
                         for the Southern District of Texas
                                    (09-CV-351)


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Simon Sanchez appeals the district court’s summary
judgment on his Title VII retaliation and hostile work environment claims in
favor of the United States Postal Service (USPS). Because nothing in the record
shows that the reason given for his dismissal from the USPS—that is, his




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 10-20512    Document: 00511518696       Page: 2   Date Filed: 06/23/2011



                                  No. 10-20512

frequent absences from work—was a pretext for employment discrimination, we
AFFIRM.


                                         I.
      Sanchez was hired by the USPS in 1990. From December 2005 through
February 2006, he took 310 hours (or 40 days) of unscheduled sick leave. He did
not provide documentation for many of those absences. As a result, Sanchez was
subject to escalating discipline, including multiple warning letters, reprimands,
and suspensions.      In 2005, Sanchez was suspended for seven days for
unscheduled absences. He was later suspended for fourteen days for the same
reason. Despite these sanctions, Sanchez continued to be absent from work
without submitting documentation. In March of 2006 the USPS issued Sanchez
a notice of removal from his position.        Sanchez pursued a work grievance
procedure through his union. As a result, his fourteen day suspension was
reduced to a letter of reprimand. Therefore, his letter of removal—which was
premised in part on his earlier suspension—was revoked. In May 2006, Sanchez
filed an EEO complaint based on these events.
      After investigation, an administrative law judge issued a decision in April
2008 finding that the evidence did not support claims for race, color, sex or age
discrimination, disability discrimination or retaliation. The EEOC upheld the
ALJ’s decision on appeal. Sanchez then filed a complaint in the United States
District Court for the Southern District of Texas alleging causes of action for age,
color, and race discrimination, harassment, retaliation and hostile work
environment in violation of Title VII, and for disability discrimination in
violation of the Rehabilitation Act of 1973. The USPS moved for summary
judgment, arguing that Sanchez failed to meet the prima facie elements of his
claims and that his forty days of unscheduled, unexcused, leave was a legitimate,
nondiscriminatory reason for Sanchez’s termination.

                                         2
   Case: 10-20512           Document: 00511518696         Page: 3    Date Filed: 06/23/2011



                                           No. 10-20512

         The district court determined that the USPS was entitled to summary
judgment because Sanchez did not present anything to show he was
discriminated or retaliated against because of his race, sex, gender, or age.1 In
addition, the court granted the USPS’s summary judgment on Sanchez’s Title
VII hostile work environment claim because Sanchez had not exhausted his
administrative remedies by bringing his claim in his May 2006 EEO charge. The
district court also rejected Sanchez’s Rehabilitation Act claim, deciding that
Sanchez had presented nothing in the record to suggest that he has a disability
under the Rehabilitation Act.2
                                                 II.
         Sanchez argues that the district court erred in granting summary
judgment in favor of the USPS.3                We review for a district court’s grant of
summary judgment de novo. Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987,
991–92 (5th Cir. 2005). Summary judgment is proper when there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(a).
         Sanchez asserts that he was retaliated against for prior EEO activity when
he was given a letter of removal, escorted from the building and forced to take


         1
         While Sanchez presented numerous affidavits from co-workers supporting his claim
that he was mistreated at work, none of the affidavits show that he was discriminated against
based on his race, sex, gender, or age. Nor do they present any information to show that
Sanchez was retaliated against because of this March, 2006 EEO complaint.
         2
             Sanchez does not appeal the district court’s determination on his Rehabilitation Act
claim.
         3
         In addition, Sanchez argues that this court is required to take judicial notice of a
settlement agreement between the USPS and another employee, dated June 14 ,2010. The
document purports to show a USPS manager admitting to harassing and threatening USPS
employees. Even assuming arguendo that this court must take judicial notice of the
document—which was never presented to the district court, ostensibly because it was signed
after the judgment order—the settlement agreement makes no difference to the resolution of
this case. The alleged subsequent mistreatment is of a different employee and the “facts” set
forth in the agreement are too attenuated both in time and from Sanchez to be relevant.

                                                  3
   Case: 10-20512    Document: 00511518696     Page: 4   Date Filed: 06/23/2011



                                  No. 10-20512

annual leave in March 2006.      “Title VII’s anti-retaliation provision forbids
employer actions that discriminate against an employee (or job application)
because he has opposed a practice that Title VII forbids or has made a charge,
testified, assisted or participated in a Title VII investigation, proceeding or
hearing.” Burlington N. & Sante Fe Ry. Co. V. White, 548 U.S. 53, 68 (2006)
(internal quotation marks omitted). A plaintiff must establish a causal link
between the adverse employment action and a protected activity. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). However, if a defendant brings
forward a legitimate, non-discriminatory reason for the adverse employment
action, the burden shifts back to the plaintiff to produce sufficient evidence to
show a reasonable trier of fact that the reason was the pretext for the
employment action. Id. at 804. This court applies McDonnell Douglas burden-
shifting framework to retaliation claims. See Sherrod v. American Airlines, Inc.,
132 F.3d 1112, 1122 (5th Cir. 1998).
      Even assuming arguendo that Sanchez has established a prima facie case,
his retaliation claim still fails. The USPS has set forth a legitimate, non-
discriminatory reason for firing Sanchez: Sanchez’s 301 hours of unscheduled
sick leave. Sanchez admits he had “absenteeism issues” and only submitted
documentation for less than half of his absences.    He argues instead, that the
temporal proximity between his firing and his EEO complaint supports his
claim. That is not sufficient to create a material issue of pretext. As this court
has held, “temporal proximity alone is insufficient to prove but for causation.”
Strong v. Univ. Healthcare Sys., LLC., 482 F.3d 802, 808 (5th Cir. 2007).
      Sanchez next argues that he was subject to a retaliatory hostile work
environment under Title VII.      In order to bring a Title VII hostile work
environment claim, a complainant must file a complaint within the time allotted
under Title VII, and exhaust all administrative remedies. Tolbert v. United
States, 916 F.2d 245, 247 (5th Cir. 1990). In evaluating whether a plaintiff has

                                        4
   Case: 10-20512    Document: 00511518696      Page: 5   Date Filed: 06/23/2011



                                  No. 10-20512

exhausted his administrative remedies, the court engages in a fact-intensive
analysis of the statement in the EEO charge, “looking slightly beyond its four
corners, to its substance rather than its label.” Pacheco, 448 F.3d at 789. A Title
VII complaint is limited to what can reasonably be expected to grow out of the
complaint. Id. at 789; see also Thomas v. Texas Dept. of Crim. Justice, 220 F.3d
389, 395 (5th Cir. 2000) (citing Sanchez v. Standard Brands, Inc., 431 F.3d 455
(5th Cir. 1970)).
      Here, as the district court correctly determined, Sanchez did not make a
hostile work environment claim in his 2006 EEO complaint and failed to exhaust
his administrative remedies. The charges alleged in Sanchez’s EEO complaint
stem from several actions by the USPS which took place in March of 2006, all of
which center around Sanchez’s termination           for excessive absences and
subsequent removal from the facility. Sanchez did not make a hostile work
environment claim, nor present anything at the administrative hearing to show
his mistreatment was the result of his EEO complaint. Therefore, the district
court did not err in its determination that Sanchez failed to exhaust his
administrative remedies on this claim.
      AFFIRMED.




                                        5
