                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
           IN THE UNITED STATES COURT OF APPEALS                                December 13, 2005

                          FOR THE FIFTH CIRCUIT                              Charles R. Fulbruge III
                                                                                     Clerk



                                 No. 04-20467
                               Summary Calendar


CHARLES KING,

                                               Plaintiff-Appellant,

       versus

UNITED STATES POSTAL SERVICE,

                                               Defendant-Appellee.

------------------------------------------------------------------------

CHARLES KING,

                                               Plaintiff-Appellant,

       versus

JOHN E. POTTER, Postmaster General,
United States Postal Service,

                                               Defendant-Appellee.


         Appeal from the United States District Court for
             the Southern District of Texas, Houston
                   (USDC No. 4:01-cv-3702)
_________________________________________________________
Before REAVLEY, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*1

      We affirm for the following reasons:

1.    The allegations in the agency EEO complaints do not indicate that King was

      subjected to severe and pervasive harassment sufficient to create a hostile

      working environment. King failed to exhaust his administrative remedies with

      respect to his hostile work environment claim. The district court correctly

      concluded that it lacked jurisdiction. “Under law of the case doctrine, as now

      most commonly understood, it is not improper for a court to depart from a prior

      holding if convinced that it is clearly erroneous and would work a manifest

             injustice.” Arizona v. California, 460 U.S. 605, 619 n.8, 103 S. Ct. 1382,

1391 n.8, 75 L.Ed 2d 318, 333 n.8 (1983). For this reason, the district court’s decision

      to revisit its previous order adopting the Magistrate Judge’s M&R was proper.

2.    “If the district court’s account of the evidence is plausible in light of the record

      viewed in its entirety, the court of appeals may not reverse it even though

      convinced that had it been sitting as the trier of fact, it would have weighed the

      evidence differently.” Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.

      Ct. 1504, 1511, 84 L. Ed. 2d 518, 529 (1985). Pat Garcia testified that King made



      *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.

                                             2
      her feel in danger of falling and slammed a door in her face. Don Wright

      corroborated Beasley’s testimony that King hit him in the shoulder. The assault

      and battery allegations were followed up with two serious investigations. In the

      course of these investigations, King was nonresponsive to questions. The

      officials who made the decisions to remove King, Maryke Cudd and Monica

      Coleman, testified that they had reason to believe King presented a danger. In

      light of this testimony, it was not clear error for the district court to find that King

      failed to prove by a preponderance of the evidence that he was discriminated

      against on the basis of his race or gender. Since Cudd and Coleman were

      unaware of King’s EEO activity, it was not clear error for the district court to hold

      that King failed to prove by a preponderance of the evidence that he was

      retaliated against.

Affirmed.




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