                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                    UNITED STATES COURT OF APPEALS
                                                               March 7, 2007
                         FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk


                               06-30653



     RICKEY TRAVIS,

                                          Plaintiff-Appellant,

                                  v.

     JOHN E. POTTER,
     POSTMASTER GENERAL, U S POSTAL SERVICE,

                                          Defendants-Appellees.



         Appeal from the United States District Court for the
               Western District of Louisiana, Shreveport
                              (04-CV-899)



Before REAVLEY, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     This appeal is from a district court’s grant of summary

judgment in favor of an employer in a discrimination case. Finding

no error, we AFFIRM.

     I.     BACKGROUND

     Rickey Travis was employed by the United States Postal Service

(USPS) for seventeen years.     On June 7, 2000, Travis sustained a


     *
       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this opinion should not be published and is not precedent except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.
shoulder injury while on duty. The Office of Workers’ Compensation

Programs accepted the injury on September 12, 2000.                     Travis’s

physician determined that the condition was permanent. In February

of 2002, Travis accepted a permanent modified job offer from the

USPS.

      Over the years, the employer disciplined Travis for attendance

problems such as leaving work without notifying management, failure

to report to work and failing to request leave in advance.1                   The

employer also disciplined Travis for engaging in altercations with

supervisors and co-workers.           In March 1998, Travis had a verbal

confrontation with the Supervisor of Customer Services. On another

occasion, Travis became upset with a Human Resources Specialist and

hit the side of a file cabinet.          At one point, Travis had a verbal

confrontation with members of management at the Shreveport Post

Office.     Also, at a different time, using threatening and coarse

language, Travis accused his direct supervisor of being a liar.

      On June 25, 2002, Travis and a co-worker, Freddie Robinson,

were involved in an altercation.                   Robinson provided a written

statement reporting that Travis had shoved him with Travis’s chest

and   shoulder    and    threatened      him   using     vulgar   and   offensive

language.        The    employer   had       the    “Threat   Assessment   Team”

investigate the incident, and the team concluded that the “incident


      1
          However, during administrative proceedings it was
determined that Travis should receive compensation for leave
without pay.

                                         2
more       than    likely     occurred     as    reported    by   Freddie   Robinson.”

Travis’s supervisor requested a “Notice of Proposed Removal” for

Travis. The National Association of Letter Carriers filed a formal

grievance on Travis’s behalf.                   Subsequently, the arbitrator ruled

that the          evidence    did    not   support      an   “intolerable   threat    of

violence          necessary     to   propose         removal.”     Nonetheless,      the

arbitrator concluded that “there was clearly evidence that there

was sufficient cause to justify discipline.”                         Ultimately, the

arbitrator found that “the evidence supports a suspension of

fourteen (14) days . . . .                 Further, this employee has a problem

with management of anger and his response to authority. His return

to work will be further conditioned on his participation in the

Employee Assistance Program for a period of no less than 6 months.”

       In 2004, Travis filed the instant employment discrimination

suit against the Postmaster General, alleging claims under Title

VII, the Rehabilitation Act of 1973, and the Louisiana Anti-

Discrimination Statute.              Pursuant to the Postmaster’s motion, the

district court granted summary judgment with respect to the hostile

work environment claim related to race, retaliation claim and

claims under Louisiana law.2                    Subsequently, the district court

granted summary judgment on the remaining claim of disability

       2
       In his appellate brief, Travis does not argue racial
discrimination claim, and thus, that claim is not before us. Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Similarly,
because Travis does not challenge the district court’s ruling that
the claim under Louisiana law is barred by sovereign immunity, we
do not reach it.

                                                 3
discrimination       and      hostile        work    environment       under    the

Rehabilitation Act.3        Travis now appeals pro se.

     II.     ANALYSIS

             A.    STANDARD OF REVIEW

     This    Court   reviews     a   district       court’s   grant    of   summary

judgment de novo, applying the same standards as the district

court.     E.g., Hirras v. Nat'l R.R. Passenger Corp., 95 F.3d 396,

399 (5th Cir. 1996).          Summary judgment is proper if the record

reflects “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.”    Fed. R. Civ. P. 56(c).

             B.    REHABILITATION ACT CLAIM

     Travis asserts that his employer treated him differently

because of his disability.           More specifically, it appears he is

arguing that because of his disability he was disciplined more

harshly     than   his     co-workers.         To   obtain    relief   under    the

Rehabilitation Act, a plaintiff “must prove that (1) he is an

individual with a disability; (2) who is otherwise qualified; (3)

who worked for a program or activity receiving Federal financial

assistance; and (4) that he was discriminated against solely by

reason of her or his disability.”              Hileman v. City of Dallas, 115

F.3d 352, 353        (5th Cir. 1997) (internal quotation marks and



     3
      The district court’s opinion provides that Travis was placed
on disability retirement in August 2005.

                                         4
citations omitted).

      In the instant case, the district court found that Travis had

failed to demonstrate that he was disabled.                 Nonetheless, the

district court concluded that even if Travis could establish that

he was disabled, he failed to show that the complained of actions

were based solely on that disability. For purposes of this appeal,

we   will assume     arguendo   that    Travis      established    that   he   was

disabled.    It is undisputed that Travis’s shoulder injury was

sustained in June of 2000.      This injury is the reason he was placed

on permanent modified limited duty.               By Travis’s own admission,

the disciplinary actions he complains of began in 1995.                    It is

clear that the complained of disciplinary actions taken by the

employer began prior to the onset of his alleged disability.               Under

these circumstances, he has failed to create a genuine issue of

material fact regarding whether his employer’s actions against him

were based solely on his disability.              The district court properly

granted summary judgment as to this claim.

            C.     HOSTILE WORK ENVIRONMENT

      Travis claims these same employer’s actions created a hostile

work environment.     To survive summary judgment, Travis must create

a fact issue on each of the elements of a disability-based hostile

work environment claim:      (1) he is a member of a protected group;

(2) he was subjected to harassment; (3) that the complained of

harassment   was    based   solely     on   his    disability;    (4)   that   the



                                        5
harassment affected a term, condition, or privilege of employment;

and (5) that the employer knew or should have known of the

harassment and failed to take prompt, remedial action.   Soledad v.

U.S. Dep’t of Treasury, 304 F.3d 500, 506 & n.8 (5th Cir. 2002).

Further, “the disability-based harassment must be sufficiently

pervasive or severe to alter the conditions of employment and

create an abusive working environment.”       Flowers v. Southern

Regional Physician Services, Inc., 247 F.3d 229, 236 (5th Cir.

2001) (internal quotation marks and citation omitted).   Once again

assuming Travis has shown that he was disabled, as discussed above,

he has failed to show that his employer’s actions were based solely

on his disability.   The district court properly granted summary

judgment as to this claim.

               D. RETALIATION

     Travis asserts that the employer’s actions were in retaliation

for his filing an EEOC complaint.     To demonstrate a claim for

retaliation, Travis must prove (1) that he engaged in an activity

that was protected; (2) an adverse employment action occurred; and

(3) a causal connection existed between the participation in the

activity and the adverse employment action. Webb v. Cardiothoracic

Surgery Assoc., 139 F.3d 532, 540 (5th Cir. 1998).

     Travis correctly asserts that he engaged in a protected

activity when he filed a complaint with the EEOC.   Dollis v. Rubin,

77 F.3d 777, 781 (5th Cir. 1995) (explaining that “[t]here can be


                                6
no question that [the employee’s] retaliation claims satisfy the

first element of the analysis, filing an administrative complaint

is clearly protected activity”).

     However, the complained of actions taken by the employer began

before the filing of the complaint with the EEOC on July 4, 2003.4

Travis has not shown a causal connection existed between the filing

of the EEOC in 2003 and any adverse employment action.   Moreover,

the employer has proffered a non-discriminatory reason for his

actions:   Travis’s documented confrontations with supervisors and

co-workers.   Travis, who has the burden of proving the proffered

reason is pretextual, has failed to do so.     The district court

properly granted summary judgment as to this claim.

     AFFIRMED.




     4
        See District Court Op. at 10 n.5 (finding “no competent
summary judgment evidence that Travis filed any other EEOC
complaints”) (citing Malacara v. Garber, 353 F.3d 393, 405 (5th
Cir. 2003); Fed.R.Civ.P. 56).

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