     Case: 09-30612     Document: 00511047838          Page: 1    Date Filed: 03/10/2010




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

                                                  FILED
                                                                           March 10, 2010
                                     No. 09-30612                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk


RODNEY WASHINGTON

                                                   Plaintiff-Appellant
v.

JOHN E. POTTER, Postmaster General, on behalf of the United States Postal
Service Agency

                                                   Defendant-Appellee




                Appeal from the United States District Court for the
                           Western District of Louisiana
                   Nos. 02-CV-752, 04-CV-1969, & 07-CV-1192

Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:        *


        This employment discrimination/retaliation case is a result of three
lawsuits filed by the plaintiff-appellant, Rodney Washington. The defendant-
appellee, John E. Potter, filed a motion to dismiss a portion of one of the claims
and motions for summary judgment as to the others. The district court decided
all three motions in Potter’s favor and Washington appeals. For the following
reasons, we affirm.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  I. 02-CV-752
                                        A.
      Washington, a black man, began working as a mail handler for the United
States Postal Service in October 1984. In September 1996, while working in the
Alexandria office, he sustained an injury and was moved to a light duty position.
As a result, Washington filed a claim with the Equal Employment Opportunity
Commissions (“EEOC”) alleging that this transfer was discriminatory based on
his race. By December 1996, this light duty position was no longer available. On
December 25, 1996, Washington’s supervisor directed two Postal Service
employees to phone Washington and inform him that he would not be able to
return to work without submitting a full medical clearance form. Washington
reported to work on January 8, 1997 without furnishing such a form. After
arriving, his supervisor informed him that the light duty position was
unavailable, and that he could not return to work without full medical clearance.
The supervisor then made Washington clock out.
      After filing another EEOC complaint in July 1997 concerning the
December 1996 and January 1997 incidents, Washington filed the lawsuit in
cause 02-CV-752. He claimed the following were acts of racial discrimination,
color discrimination, and/or retaliation: (1) the harassing telephone calls telling
him to obtain medical clearance, (2) being forced to clock out, (3) the denial of
light duty work, and (4) the denial of a right to return to work.
                              B. Motion to Dismiss
      Potter filed a motion to dismiss Washington’s claims based on denial of
light duty work and denial of a right to return to work, arguing that Washington
failed to exhaust these claims administratively. The district court found that
Washington’s EEOC claim addressed only the harassing telephone calls and

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being forced to clock out. The district court also found that the EEOC complaint
and its investigation on the complaint were narrowly tailored to address only
those factual allegations concerning the telephone calls and being forced to clock
out. Because the other claims were based on factors not before the EEOC, the
district court stated that these claims had not been exhausted and granted
Potter’s motion to dismiss.
       We review de novo a district court’s decision regarding exhaustion.
McClain, 519 F.3d at 273. After reviewing the record, we agree with the district
court that the EEOC complaint made was a limited one; the investigation
conducted made it clear that the agency did not understand Washington to be
bringing the denial of light duty and denial of a right to return to work claims.
The district court was correct in dismissing these claims.
                       C. Motion for Summary Judgment
       Potter filed a motion for summary judgment on the two remaining claims
under cause 02-CV-752, and the district court granted his motion.
       On appeal, Washington does not challenge the district court decision
regarding the telephone calls and we do not consider this issue. Calderon-
Ontiveros v. Immigration & Naturalization Serv., 809 F.2d 1050, 1052 (5th Cir.
1986). The only issue argued is whether the district court erred in granting
summary judgment as to his claim based on his employer’s instruction to clock
out.
       The district court stated that Washington failed to establish a prima facie
case of racial discrimination as required by McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). First, the court found that Washington was not qualified for
a full duty position because he suffered a “physical disability . . . that rendered
him unfit for the position for which he was hired.” Berquist v. Wash. Mut. Bank,
500 F.3d 344, 350 (5th Cir. 2007) (internal citation omitted). This is uncontested.

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Washington does not argue that he was physically able to perform his regular
work. Second, the court found that making Washington return home until he
received medical clearance was not an adverse employment action under the
McDonnell Douglas framework. We agree. In McCoy v. City of Shreveport, we
said: “adverse employment actions include only ultimate employment decisions
such as hiring, granting leave, discharging, promoting, or compensating.” 492
F.3d 551, 559 (5th Cir. 2007).
      As for his retaliation claim, the district court stated that making
Washington return home was not materially adverse under Burlington Northern
& Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), meaning that it would not
dissuade “a reasonable worker from making or supporting a charge of
discrimination.” Id. at 68. Furthermore, the court said that even if Washington
could make out a prima facie case of retaliation, he failed to present evidence
that the but-for cause of his being placed off the clock was his earlier EEOC
activity. Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir. 2005). The
court found that he was directed to clock out because the Postal Service had no
light duty work available for him, and that the summary judgment evidence did
not rebut this fact.
      We review the district court’s grant of summary judgment de novo.
Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008). After reviewing the
summary judgment record, we find that Washington failed to present any
genuine issues of material fact and that Potter is entitled to judgment as a
matter of law.
                                 II. 04-CV-1969
      On June 1, 2001, Washington received a letter from the Postal Service’s
Alexandria branch informing him that a light duty position was again available.
He accepted this offer. His scheduled days off each week were Sunday and

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Tuesday. On Thursday, September 13, 2001, Washington submitted two forms
requesting a schedule change permitting him to take off on Saturday instead of
Tuesday. His supervisor, Connie Hayes, approved the schedule change for
September 8–14, but denied the change for September 15–28. Washington failed
to show up for work on Saturday, September 15. Because of this, on October 2,
he was suspended for seven days.
      In 2004, after filing an EEOC complaint, Washington filed suit, arguing
(1) that his suspension was a racially discriminatory and/or retaliatory act, and
(2) that he was being paid less than a similarly situated co-worker.
      Potter filed a motion for summary judgment on these claims, and the
district court granted his motion.
      As to his suspension, the district court stated that Washington failed to
make out a prima facie case of racial discrimination under the McDonnell
Douglas framework. Specifically, the court found that he failed to show that
“similarly situated employees outside the protected class were treated more
favorably.” Wheeler v. BL Dev. Co., 415 F.3d 399, 405 (5th Cir. 2005).
Washington presented evidence that at least three non-black employees had
received less severe punishments than he had, but the court found that the
Postal Service had legitimate, non-discriminatory reasons for this disparate
treatment—the other employees held different positions, their violations were
less severe, and a different supervisor disciplined them. As for Washington’s
retaliation claim, the court found that he failed to present evidence that the but-
for cause of his being suspended for seven days was his earlier EEOC activity.
Septimus, 399 F.3d at 608.
      We agree with the district court that the summary judgment evidence
established that Washington was suspended because he failed to show up for
work. Washington presented no summary judgment evidence tending to rebut

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this fact. The other employees he points to were not similarly situated.
        As to Washington’s disparate pay claim, the Postal Service paid him at
Level 5 when he left in 1997, but at Level 4 when he returned in 2001. In 2001,
another light duty employee with Washington’s job description was paid at Level
5.
        The district court found that although Washington was able to make out
a prima facie case of racial discrimination, the Postal Service had a legitimate,
non-discriminatory reason for paying him at Level 4. The Postal Service
presented evidence that pursuant to Postal Service pay regulations,
Washington’s base pay was Level 4, and that he was paid at Level 5 only for
short term, higher level work he performed in 1997. The other employee
Washington compares himself to was paid at Level 5 as required by the pay
regulations. Thus, the district court found that Washington failed to present
evidence that the Postal Service’s legitimate, non-discriminatory reason for its
action was a pretext for discrimination. Okoye v. Univ. Of Tex. Houston Health
Sci. Ctr., 245 F.3d 507, 513–14 (5th Cir. 2001).
        We agree with the district court that the summary judgment evidence
establishes that Washington was paid according to Postal Service regulations.
Summary judgment is proper as to cause 04-CV-1969.
                                 III. 07-CV-1192
        In 2003, Washington was transferred from the Alexandria Post Office to
the Vidalia Post Office to work as a city letter carrier. However, once in Vidalia,
he claimed that his 1996 injury prevented him from performing this job. Because
the Vidalia Post Office had a limited amount of light duty work, Washington was
offered light duty work in the Ferriday Post Office. He accepted this offer. But
on October 3, 2003, Washington’s supervisor informed him that light duty work
was no longer available. Washington then attended and completed letter carrier

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training. When asked to complete carrier driving training, however, he replied
that he could not due to a medication he was prescribed.
      Washington’s supervisor repeatedly requested that Washington submit
medical documentation to substantiate his claim, but he refused. On March 2,
2005, Washington received a letter requesting this documentation no later than
March 14. Washington did not comply with the deadline. On June 1, he was
given notice of removal. He appealed this notice, but the Postal Service rejected
his claims. His termination became final on June 28, 2007. After filing another
EEOC complaint, Washington filed this suit claiming racial discrimination
and/or retaliation based on his termination.
      The district court granted Potter’s motion for summary judgment, finding
that Washington failed to make out a prima facie case of discrimination. On
appeal, Washington argues only that to the extent we find genuine issues of
material fact as to causes 02-CV-752 and 04-CV-1969, we should also find a
genuine issue in this suit.
      The summary judgment record reveals that the Postal Service established
by uncontradicted evidence that Washington failed to provide required medical
documentation to substantiate his claims, and that neither the Vidalia nor
Ferriday Post Offices had any light duty work available for Washington. Under
these circumstances, we agree that summary judgment was proper. The Postal
Service provided a legitimate, non-discriminatory reason for terminating
Washington, and he produced no summary judgment evidence indicating that
his termination was pretextual.
                                      IV.
      We affirm the district court’s dismissal of Washington’s claims.
      AFFIRMED.



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