     Case: 09-30639     Document: 00511139402          Page: 1    Date Filed: 06/11/2010




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

                                                  FILED
                                                                            June 11, 2010

                                     No. 09-30639                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



HUEE TAN

                                                   Plaintiff-Appellant
v.

UNITED STATES POSTAL SERVICE, John E. Potter, Postmaster General

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:07-CV-04102


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        Plaintiff Huee Tan appeals the dismissal of his claims of retaliation and
discrimination arising from a previously litigated complaint against the
defendants on the defendants’ motion for summary judgment.
        In a judgment dated April 4, 2004, an administrative judge with the EEOC
found in part for Tan on his “all-inclusive claim of harassment” against his
employer, the United States Postal Service. The ALJ accepted Tan’s claim that


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30639   Document: 00511139402      Page: 2    Date Filed: 06/11/2010

                                 No. 09-30639

he was subjected to a hostile work environment following physical and emotional
injuries he suffered as a result of a dog attack on his route. The ALJ awarded
him $75,000 plus attorney fees and expenses. The ALJ found however that the
plaintiff did not establish racial harassment. The ALJ also found that Tan was
not disabled from working. The defendants paid the award and did not appeal.


      Tan failed to return to work after the order was issued and in fact had
been absent without leave for a substantial period during the litigation. Various
administrative steps were taken by the defendant to declare him AWOL and to
terminate his health benefits. Tan filed complaints with the EEOC alleging that
the defendant failed to abide by the ALJ’s April 2004 order and was engaged in
retaliatory and discriminatory behavior by actively preventing reasonable
accommodation requested due to his disability.           Those complaints were
withdrawn and this suit was filed. Plaintiff also pursued a grievance through
his union outside of the litigation which was resolved in Tan’s favor based on
procedural deficiencies in the defendant’s removal process.
      We agree with the district court that Tan has failed to prove a prima facie
case of disability and/or race discrimination under the undisputed facts. The
ALJ found that Tan was not disabled from working. In addition, Tan fails to
establish that the reasons provided by the defendant for its actions, whether
prior to or after the decision by the ALJ, are pretextual. Rather, the defendant
complied with the court’s order and, despite procedural deficiencies, attempted
to respond within the bounds of its published handbooks, regulations and union
collective bargaining agreements to declare Tan AWOL and terminate his
benefits.
      We also agree with the district court that Tan has failed to establish a
retaliation claim. His absence from work, not his prior claims, was the cause of
the employment action against him. Accordingly, Tan cannot establish a causal

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                                  No. 09-30639

link between his filing of EEO grievances and being put on AWOL, failing to be
reassigned or the loss of his health benefits.
      For the foregoing reasons and the reasons stated in the district court’s
thorough Order and Reasons dated July 17, 2009, we AFFIRM.
AFFIRMED.




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