                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-24-2009

Andrew Kondas v. Postmaster General o
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4015




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 08-4015
                                    ____________

                                ANDREW J. KONDAS,

                                                    Appellant

                                           v.

          JACK E. POTTER, Postmaster General, United States Postal Service
                                ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. No. 05-cv-01861)
                     District Judge: Honorable A. Richard Caputo
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 2, 2009

  Before: FISHER and CHAGARES, Circuit Judges, and DIAMOND,* District Judge.

                                 (Filed: June 24, 2009 )
                                     ____________

                              OPINION OF THE COURT
                                   ____________




      *
       Honorable Paul S. Diamond, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
DIAMOND, District Judge.

       Andrew J. Kondas brought this action under the Rehabilitation Act of 1973,

alleging, inter alia, that Jack E. Potter, Postmaster General of the United States Postal

Service (“USPS”), impermissibly retaliated against him for engaging in legally protected

activity. 29 U.S.C. §§ 791, 794. Kondas appeals from the District Court’s entry of

summary judgment in favor of the USPS. We will affirm.

                                             I.

       The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

                                             II.

       Because we write primarily for the Parties, we will summarize this matter’s

extensive history.

       Kondas is a technician at the USPS Processing and Distribution Center in

Scranton, Pennsylvania. (App. at 45.) Until 1998, Kondas periodically received machine

training at the USPS National Center for Employment Development (NCED) in Norman,

Oklahoma. Kondas had great difficulty working with NCED instructors Butch Turner

and Bob Lee. (App. at 88-89, 100.)

       Before beginning a November 1998 NCED training session, Kondas asked to be

assigned to instructors other than Turner (whom he described as an “a**h***”) and Lee.

(App. at 89, 141.) NCED Supervisor Erline Charlton denied Kondas’s request. (App. at



                                              2
90.) Kondas responded that he would “not [be] responsible if [Lee] touches me again.

You put me in a class with him again and he gets cocky, I’m not responsible for what

happens.” (App. at 90.) When Charlton asked Kondas what he would do if he were again

instructed by Turner or Lee, Kondas stated: “I don’t care, I’ll do anything . . . they have

printers, I don’t care, I’ll p**s in them if I have to.” (App. at 113 (Trial Tr. Aug. 16,

2001, Kondas v. Henderson, No. 00-0276 (M.D. Pa.).) Kondas also repeatedly said he

would “kick[] anyone’s a** who interfered,” and stated that “he knew something about

chemicals and could do lots of things.” (App. at 141-42.)

       In December of 1998, Kondas received an NCED course completion certificate on

which he wrote: “I will return and payback is guaranteed. [NCED Supervisor] Ed Nahl,

Tell Butch Turner!” (App. at 129.) According to Charlton, Kondas “slapped down” the

certificate on her desk and left. (App. at 141.)

       In December 1998, NCED Manager Steven Mosier accepted the recommendation

of the NCED’s Threat Assessment Team that the USPS bar Kondas from the Center

because he had violated USPS’s Zero Tolerance Policy for violence and threats of

violence. (App. at 116, 122, 163-64, 281, 285-86.) On February 12, 1999, the USPS

fired Kondas because he had violated the Zero Tolerance Policy. (App. at 516.) Kondas

filed a union grievance, and on June 30, 2000, an arbitrator ordered reinstatement.

Kondas, who suffers from ADHD, anxiety, and depression, then sued the USPS, alleging

that it had terminated him in violation of the Rehabilitation Act because of his disabilities.



                                              3
See Kondas v. Henderson, No. 00-0276 (M.D. Pa.). The matter went to trial before a jury

which, on August 20, 2001, returned a verdict in favor of the USPS. (App. at 186.)

Kondas withdrew his appeal from that judgment. See Kondas v. Henderson, No. 01-3791

(3d Cir.).

       In August of 2002, USPS attorney Courtney Wheeler -- who was assigned to

review one of Kondas’s administrative complaints -- concluded that the June 2000

arbitration decision required the USPS to allow Kondas to train at the NCED. (App. at

283-84.) Mosier and NCED Supervisor James Dikes strongly disagreed and continued to

enforce the NCED training bar. (App. at 285, 287-93.)

       While the NCED bar remained in effect, Kondas received training at local

facilities. (App. at 103, 116, 135.) Following a training session in April 2004, Kondas

completed a course evaluation form, and wrote in the Comments Section: “F*** you

Steve Mosier, and your buddies? Tell Dumb B*****d I said Hello! Look Forward to

Seeing You All!!!” (App. at 471.) Upon learning of Kondas’s note, the NCED Threat

Assessment Team again determined that he should “NOT be allowed to return to NCED

for training” because there was “no guarantee Mr. Kondas [would] not act upon his

verbal and written threats during non-training hours.” (App. at 472.)

                                            III.

       In his Third Amended Complaint, Kondas again alleged that USPS officials

violated the Rehabilitation Act by discriminating against him because of his disabilities.



                                             4
App. at 57-59; 29 U.S.C. §§ 791, 794. Kondas also alleged that from 2002 through 2006,

the USPS repeatedly denied his requests for NCED training in retaliation for his filing of

EEO complaints. (App. at 51-52.)

       On May 30, 2008, the USPS moved for summary judgment. In response, Kondas:

(1) argued that he had presented sufficient evidence to warrant trial on his retaliation

claim; and (2) withdrew all other claims. (App. at 12-13.)

       On September 4, 2008, the District Court entered summary judgment in favor of

the USPS, ruling that Kondas had not shown that the legitimate, non-retaliatory reason for

the NCED bar -- Kondas’s violation of the Zero Tolerance Policy -- was pretextual.

Kondas timely appealed to this Court on September 25, 2008. (App. at 1.)

                                             IV.

       Our review of the District Court’s decision is plenary, and we apply the same

standard as the District Court to determine whether summary judgment was appropriate.

Norfolk S. Ry. Co. v. Basell USA Inc., 512 F.3d 86, 91 (3d Cir. 2008). Summary

judgment is appropriate “if the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

       The Rehabilitation Act prohibits discrimination based on disability by Government

agencies (including the USPS). 29 U.S.C. § 794(a). An employer may not take adverse

employment actions against an employee because he or she engages in activity protected



                                              5
under the Act, such as the filing of discrimination complaints with the EEOC. 34 C.F.R.

§ 100.7(e); Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 266 n.5 (3d Cir.

2007).

         In analyzing retaliation claims, we apply the following framework:

         To establish a prima facie case of retaliation under the [Rehabilitation Act],
         a plaintiff must show: (1) protected employee activity; (2) adverse action by
         the employer either after or contemporaneous with the employee’s protected
         activity; and (3) a causal connection between the employee’s protected
         activity and the employer’s adverse action . . . . If an employee establishes
         a prima facie case . . . the burden shifts to the employer to advance a
         legitimate, non-retaliatory reason for its adverse employment action. . . . If
         the employer satisfies its burden, the plaintiff must be able to convince the
         factfinder both that the employer’s proferred explanation was false, and that
         retaliation was the real reason for the adverse employment action.

Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997) (citations and quotations

omitted).

                                              V.

         Kondas contends that he produced evidence showing that the USPS did not

“genuinely believe” that he was a safety threat, and that retaliation was the real reason for

the NCED bar. We do not agree.

         Kondas first argues that Wheeler’s conclusion that the 2000 arbitration decision

entitled Kondas to receive NCED training demonstrates pretext. It is undisputed that

NCED executives took strong issue with Wheeler. The gravamen of that disagreement

concerned the legal effect of the 2000 arbitration decision, however, not whether NCED

staff genuinely believed that Kondas was a threat. The existence of this legal dispute thus

                                               6
does not establish that the USPS’s stated reason for the NCED bar was “so plainly wrong

that it cannot have been the . . . real reason.” Keller v. Orix Credit Alliance, Inc., 130

F.3d 1101, 1109 (3d Cir. 1997).

       Kondas also relies on evidence that the USPS did not impose an NCED training

bar on other USPS employees assigned to the Center who had been involved in drunken

brawls or used drugs. (App. at 165-68.) Unlike Kondas, however, these individuals --

who received discipline from their home offices, including letters of warning, placement

on administrative leave, and, in one instance, termination -- did not make repeated and

violent threats against NCED staff, and so were not viewed as “continuing threat[s].”

(App. at 165-66, 285.) Accordingly, this evidence does not support an inference of

pretext. See Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 359 (3d Cir. 1999).

       Kondas next argues that when he wrote “payback is guaranteed,” he meant only

that he would file grievances. This post-hoc explanation is not probative of whether

NCED personnel reasonably believed that he was a threat to their safety. Moreover, we

agree with the District Court that “by adopting a zero tolerance policy, [the USPS]

empowered its employees to act, not just on those threats that could be shown to be

reasonable or credible, but on any threat of violence.” (App. at 30-31.) The U.S. Court

of Appeals for the Eighth Circuit came to a similar conclusion in Clark v. Runyon, 218

F.3d 915 (8th Cir. 2000). Accordingly, the credibility evidence Kondas offers does not

demonstrate pretext.



                                              7
         Finally, Kondas argues that retaliatory intent can be inferred from evidence that

USPS personnel subjected him to “special scrutiny.” (App. at 159, 207, 348.) In fact,

this evidence is entirely consistent with the USPS responding to the numerous

administrative, union, and EEO protests Kondas filed from 2002 through 2007. See, e.g.,

Williams v. Cerberonics, 871 F.2d 452, 457 (4th Cir. 1989).

         In sum, we agree with the District Court that Kondas has failed to rebut the non-

retaliatory reason the USPS advanced for barring him from NCED training. Accordingly,

we believe the Court appropriately granted summary judgment in the USPS’s favor.

                                              VI.

         For the reasons stated, we will affirm the September 4, 2008 Order of the District

Court.




                                               8
