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

                                                                                   FILED
                                       No. 07-30522                                May 5, 2008

                                                                             Charles R. Fulbruge III
                                                                                     Clerk
KENNETH M. FALLON

                                                  Plaintiff-Appellant
v.

JOHN E. POTTER, POSTMASTER GENERAL

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                                  No. 07-30522


Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Kenneth Fallon filed suit under Title VII against the Postmaster General
alleging that Fallon’s supervisor, Donald Augustus, retaliated and created a
retaliatory hostile work environment as a result of Fallon’s initiation of
counseling and complaints with the Equal Employment Opportunity
Commission.1 The district court granted Potter’s motion for summary judgment,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
        The district court addressed some of Fallon’s complaints as individual retaliation
complaints and others as hostile work environment complaints. On appeal, Fallon has
abandoned the individual retaliation claims, with the exception of Augustus’ alleged comments
                                       No. 07-30522

holding that Fallon had failed to establish causation between his EEOC
activities and the alleged retaliation and retaliatory hostile work environment.
                                               I
       Fallon worked as a mail carrier in several Louisiana towns. He began
working at the Denham Springs Post Office in 1998.                      In February 2000,
Augustus became the postmaster at Denham Springs. Soon thereafter, Fallon
alleges that numerous conflicts arose. Fallon initially filed discrimination and
retaliation claims in federal district court, alleging that Augustus, an African
American, discriminated against Fallon because Fallon was Caucasian and from
New Orleans and because of Fallon’s injury, which diminished his capacity to
complete various work assignments.                 Potter filed a motion for summary
judgment, urging that the court dismiss certain of Fallon’s claims that he failed
to timely exhaust through the administrative process and that Fallon’s
remaining claims failed as a matter of law because he could not establish that
he suffered an adverse employment action, that similarly situated employees in
his class were treated more favorably, or, for the retaliation claims, that he
suffered injury or harm or that the Postal Service’s legitimate reasons for its
conduct were merely pretextual.             In his opposition to Potter’s motion for
summary judgment, Fallon abandoned his discrimination claims based on race
and disability,2 leaving only his claims of retaliation and a retaliatory hostile
work environment. He alleged retaliation from March 2000 “until the end of
plaintiff’s employment” that was “sequential, if not continuous.” Potter replied



about Fallon’s EEOC activity. The remainder of his claims fall under his allegations of a
retaliatory hostile work environment. See Appellant’s Brief at 18 n.2. (“Although each of the
[instances] . . . of Augustus’ harassment is addressed individually, it is Mr. Fallon’s position
that they must all be considered together as part of a hostile work environment that was
pervasive, if not severe.”).
       2
         Opposition to MSJ (Oct. 11, 2006) (“To the extent that plaintiff has made race or
disability claims, he abandons them.”).

                                               2
                                       No. 07-30522

that Fallon had failed to make out a prima facie case for retaliation and that
even if he did, there were legitimate, non-discriminatory reasons for Augustus’
conduct. Furthermore, Potter urged, Fallon failed to show causation, as much
of the alleged harassment occurred prior to his EEOC activity, and even if he
had made out a prima facie case and shown that Potter’s legitimate reasons were
pretextual, the Fifth Circuit does not recognize a cause of action for a retaliatory
hostile work environment.3
       The district court granted Potter’s motion for summary judgment, holding
that Fallon had not made a prima facie case of retaliatory harassment because
he was “unable to establish a causal link between the protected activity and the
adverse employment action,” and that even if Fallon had made a prima facie
case, Fallon failed “to make the requisite showing that defendant’s reasons [for
the alleged harassment] were pretextual.” Fallon appealed.
       On appeal, Fallon alleges retaliatory incidents within several categories,
which, combined, he urges, create a hostile work environment. First, Fallon
alleges that Augustus subjected him to performance evaluations and
observations more so than other employees, such as bolting a permanent
observation chair in Fallon’s mail van, recruiting outside observers to evaluate
Fallon’s casing rate,4 skewing the results of performance tests, telling Fallon to
place his mail case next to the seat in his van – contrary to postal standards –
in order to increase his delivery speed, and punishing Fallon for his alleged
failure to meet demonstrated performance by preventing him from casing
newspapers before other mail and suspending him for fourteen days. Second,
Fallon alleges that Augustus engaged in threatening behavior, assigning him to


       3
        We need not reach this issue on appeal, as we hold that Fallon failed to establish a
prima facie case of a retaliatory hostile work environment.
       4
         “Casing” mail involves sorting the mail and placing it in separate sections of the mail
case, according to Potter’s brief.

                                               3
                                         No. 07-30522

a small cubicle, staring at him in a hostile manner, “bumping” him, and
constantly counting Fallon’s casing speed. Third, Fallon alleges that Augustus
enforced policies against Fallon and not other employees, requiring Fallon to
hold six inches of mail in his left hand while casing, preventing him from
drinking beverages on the workroom floor, and investigating a bomb threat
made by Fallon but failing to investigate similar threats made by other
employees. Finally, Fallon alleges that Augustus exacerbated Fallon’s medical
problems and interfered with Fallon’s attempts to obtain workers’ compensation,
assigning Fallon to difficult routes after he injured his left knee and shoulder,
failing to inform him of various medical benefits and reimbursement
opportunities for medical expenses, failing to report various of Fallon’s injuries,
and withholding medical forms and pulling forms from Fallon’s files. On appeal,
Fallon urges that all of these activities occurred as part of a retaliatory hostile
work environment. In a separate individual retaliation claim, Fallon alleges
that Augustus made six comments about Fallon’s participation in EEOC
activities.
                                               II
      We review the district court’s grant of summary judgment de novo,5 taking
all facts and evidence “in the light most favorable to the non-movant. However,
to avoid summary judgment, the non-movant must go beyond the pleadings and
come forward with specific facts indicating a genuine issue for trial.”6 Under the
McDonnell Douglas burden-shifting framework for Title VII claims resting on
circumstantial evidence,7 the plaintiff must make a prima facie case for


      5
          Lemaire v. La. Dept. of Transp. and Dev., 480 F.3d 383, 386 (5th Cir. 2007).
      6
          Id. at 387 (citation and internal citation omitted).
      7
         We address Fallon’s single claim with direct evidence (Augustus’ alleged comments
about Fallon’s EEOC activity) in the next section. Fallon argues that others of Augustus’
actions, such as Augustus’ investigation of Fallon’s bomb threat, are “direct evidence” of

                                                4
                                         No. 07-30522

retaliation.       If he succeeds in doing so, “the burden then shifts to the
defendant-employer to articulate a legitimate, non-discriminatory reason for the
adverse employment action.”8 If the defendant provides such reasons, “‘any
presumption of retaliation drops from the case,’”9 and the burden “shifts back
upon the plaintiff to establish by a preponderance of the evidence that the
articulated reason was merely a pretext for unlawful discrimination.”10
       To establish a prima facie case of retaliation, Fallon “must show ‘1) that
[he] . . . engaged in a protected activity; 2) that an adverse employment action
occurred; and 3) that a causal link existed between the protected activity and the
adverse action.’”11 For the “causal link” prong, Fallon must demonstrate that the
adverse employment action would not have occurred “but for” the protected
activity in order to prove unlawful retaliation, meaning that, to survive the
summary judgment motion, he must show that there is a “conflict in substantial
evidence” on this issue.12 “Evidence is ‘substantial’ if it is ‘of such quality and
weight that reasonable and fair-minded men in the exercise of impartial
judgment might reach different conclusions.’”13
       Fallon has failed to show a conflict in substantial evidence on the issue of
causation for many of his claims.                Although “[c]lose timing between an


retaliation; we are not persuaded.
       8
           Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 511 (5th Cir. 2003).
       9
         Baker v. Am. Airlines, Inc., 430 F.3d 750, 755 (5th Cir. 2005) (quoting Septimus v.
Univ. of Houston, 399 F.3d 601, 610 (5th Cir. 2005)).
       10
            Gowesky, 321 F.3d at 511.
       11
            Baker, 430 F.3d at 754 (quoting Septimus, 399 F.3d at 610).
       12
            Long v. Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996).
       13
         Id. (internal citation omitted) (quoting Rhodes v. Guiberson Oil Tools, 75 F.3d 989,
993 (5th Cir. 1996) (en banc)); Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en
banc)).

                                                5
                                        No. 07-30522

employee’s protected activity and an adverse action against him may provide the
‘causal connection’ required to make out a prima facie case of retaliation,”14
much of the harassment that allegedly contributed to the hostile work
environment occurred before the EEOC activity and thus fails to create a
disputed fact issue as to causation.
      Fallon pled that he participated in two EEOC actions labeled as #195 and
#166. In his opposition to Potter’s motion for summary judgment, he alleged
that #195 began with his “request for informal counseling on June 20, 2001,” and
that #166 began with his counseling request on April 11, 2002. Fallon also
alleged that Augustus learned on April 13, 2000, that Fallon, while working
elsewhere under a different supervisor, had filed an EEO complaint in 1994.
Fallon did not, however, introduce evidence that establishes a conflict in
substantial evidence as to whether Augustus’ actions “would not have occurred
but for” Augustus’ learning of Fallon’s EEOC activity that had occurred
approximately six years earlier at another job.15
      On appeal, Fallon argues that his first “protected activity” occurred not
with the EEO claims or with Augustus’ knowledge of Fallon’s old EEO claim but
rather on March 31, 2000, when a supervisor allegedly “required plaintiff to hold
6” of flats in one arm.”16 Fallon “complained to Augustus that Bethely [another
employee] did not have to do this. Augustus replied, ‘Worry about yourself.’”17
Fallon stated in his affidavit before the district court that he “did not expressly
claim that this was racially motivated, but it was obvious that this was a racial




      14
           Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997).
      15
           Long, 88 F.3d at 308.
      16
           Affidavit of Kenneth Fallon (Oct. 21, 2006).
      17
           Id.

                                               6
                                         No. 07-30522

complaint.”18 Fallon also argues that on April 6, 2000, Fallon again complained
that other employees were not required to hold six inches of mail while casing,
stating in his deposition that he “asked Augustus if Bethely were going to have
to hold 6” of flats.” Although Fallon argues on appeal that he “abandoned all
claims except that of retaliatory harassment based on all protected complaints
of discrimination, not merely formal EEO complaints,” his statements regarding
the six-inch casing requirements do not constitute “protected activity” under
Title VII.19 We are persuaded that the first protected activity relevant to this
case occurred on June 20, 2001, when Fallon commenced his first EEOC
informal counseling. Much of the harassment alleged by Fallon occurred prior
to these dates; for these claims, Fallon has failed to show a conflict in substantial
evidence as to whether his protected activity caused the alleged retaliatory
hostile work environment.20


       18
            Id.
       19
         See, e.g., Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002)
(“Protected activity is defined as opposition to any practice rendered unlawful by Title VII,
including making a charge, testifying, assisting, or participating in any investigation,
proceeding, or hearing under Title VII.”) (citing 42 U.S.C. § 2000e-3(a)) (abrogated on other
grounds by Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006)).
       20
           The alleged “demonstrated performance examinations” and “covert observations”
first occurred on April 17 and 19, 2000, according to Fallon’s pleadings. Fallon alleged that on
“April 13, 14, 15, 17, and 19, 2000,” Augustus bumped him and timed his casing rate with a
stop watch. Fallon alleged that on April 27, 2000, Augustus bolted the permanent observation
chair in his van, that on May 1, 2000, “Augustus threatened plaintiff with disciplinary action
for taking too much time to case and deliver the mail,” that on May 8, 2000, “Augustus stated
Fallon’s casing time in front of other employees, embarrassing Fallon,” and that on May 9,
2000, Augustus issued a letter of warning and a memorandum to Fallon, indicating that he
was using “unauthorized and unjustified overtime” and stating the “results of the casing
counting and route observations.” Augustus’ rejection of Fallon’s request for overtime and his
“14-day no time off suspension . . . for poor office procedures and failure to deliver the mail per
demonstrated performance” allegedly occurred on October 5, 2000, and December 1, 2000,
respectively. Fallon further alleged that Augustus refused to allow Fallon to drink a Coke at
the cashier’s work station on February 8, 2001, and told him to hold six inches of mail in his
left arm while casing “both before and after he [Fallon] injured his left arm on March 29,
2001.” Although he alleged that later Coke incidents occurred in January, February, and
March of 2002, the first incident occurred earlier according to his pleadings. Fallon alleged

                                                7
                                        No. 07-30522

       The harassment alleged by Fallon that occurred after Fallon commenced
his EEOC activities in 2001 included, inter alia, 1) various statements by
Augustus telling Fallon that he should drop his EEO claims, 2) assignment to
a physically demanding route and other work that exacerbated his health
problems, 3) telling Fallon that he should and could do his route in time, despite
having received a report recommending that Fallon get surgery, 4) giving part-
time and flexible employees work while assigning Fallon to less work, 5)
continuing to prohibit Fallon from drinking Coke on the mail floor while
allowing co-employees to drink on the floor, 6) failing to update Fallon’s medical
reports, 7) pulling medical records from Fallon’s files, and 8) investigating a
joking bomb threat that Fallon had made, while failing to investigate similar
threats by other employees. Potter provided legitimate, non-discriminatory
reasons for all of the alleged harassment,21 and Fallon failed to meet his burden


that Augustus assigned him to inside duty and began “constant counting” of Fallon’s casing
on April 1, 2001, and that Augustus interfered with his receiving forms regarding eligibility
for Continuation of Pay, and expense sheets for traveling to doctors in April of 2000, and that
on April 23 “Augustus, in a sarcastic and threatening way, asked plaintiff, ‘How you doing
getting authorization to see your doctor?’”
       21
          Potter alleged in his motion for summary judgment and his reply brief in support of
his motion for summary judgment that Augustus assigned Fallon to various jobs – casing and
different, less strenuous routes, for example – as a result of work limitation requirements from
doctors. Explaining the alleged “staring” and “bumping,” Potter argued that Augustus, as a
supervisor, was required to observe Fallon, and that Augustus and Fallon worked in a small
space; furthermore, Augustus is much taller than Fallon, he urged. Potter alleged that
Augustus evaluated Fallon’s work performance and issued warnings of underperformance
because several outside evaluations showed that Fallon was casing at a rate below the
standard required by the Postal Service handbook. Both of the outside evaluators provided
declarations regarding Fallon’s sub-standard casing speed. Augustus required Fallon to hold
six inches of mail while casing because this is a Postal Service standard, he argued. Potter
further alleged that Augustus assigned Fallon more casing work and fewer non-carrier duties
after receiving a doctor’s report indicating Fallon’s work limitations. He assigned Fallon to less
work after Fallon was relegated to light duty status as a result of his workers’ compensation
claim; light duty employees receive work only when work is available, as Fallon conceded in
his pleadings. Potter stated that Augustus prohibited employees from drinking soft drinks on
the work floor after an employee spilled liquid on the mail. And Potter alleged and showed,
in response to Fallon’s assertions that Augustus had withheld a CA-17 form and prevented it
from being sent, that Fallon’s medical reports in his August 6, 2002, (or August 5, as alleged

                                                8
                                        No. 07-30522

of persuasion to then show that Potter’s reasons were pretextual.22 Although the
district court did not fully address some of these incidents that allegedly created
a retaliatory hostile work environment, we have addressed them and on de novo
review find no error.23
                                               III
       We now turn to Fallon’s single claim of retaliation regarding Augustus’
alleged comments about Fallon’s EEOC activities.24 The district court did not


by Fallon) CA-17 form arrived at the Department of Labor; the Department of Labor rejected
Fallon’s second claim for Workers’ Compensation because it found that the reports did not show
that the first, on-the-job injury caused Fallon’s recurring injuries alleged in his second claim,
not because form CA-17 was untimely. Even if the lateness of the first claim otherwise affected
Fallon, as Fallon argues, Fallon’s brief does not point us to any place in the record with facts,
apart from Fallon’s own pleadings and deposition (referring to affidavits that are not in the
record), showing that Augustus pulled medical files or failed to send medical files or forms. He
argues that Cathy Evans, a supervisor, thought that Augustus was removing medical files
from her office and that she exclaimed, “Oh, my God, could this be a conspiracy?” But the
record cites to which Fallon points are his own affidavits, not an affidavit from Evans. Finally,
Potter alleged that Augustus investigated Fallon’s bomb threat because a co-worker of Fallon’s
gave Augustus a written statement reporting the threat; Potter provided a copy of the
statement to the district court.
       22
          See Baker, 430 F.3d at 754 (citing Patrick v. Ridge, 394 F.3d 311, 315-16 (5th Cir.
2004)) (once an employer has provided legitimate, non-discriminatory reasons for his conduct,
he has met his burden of production, and plaintiff’s burden of showing pretext on summary
judgment “is one of persuasion, not merely production of evidence”). Fallon failed to meet this
burden.
       23
         Fallon’s brief lists numerous alleged incidences of retaliation, such as Augustus’
“bumping” of Fallon, bolting a permanent observation chair in his truck, and the failure to
forward on a CA-17 report, and argues that “[t]he court ignored most of the above.” We are
not persuaded that the court ignored most of Fallon’s claims supporting his retaliatory hostile
work environment. The court discussed the CA-17 form, the alleged constant staring and
counting of mail, outside observations of Fallon, and the observation chair. Having also
investigated Fallon’s claims, including the “bumping” not mentioned by the district court,
which, we note, allegedly occurred prior to Fallon’s protected activity, we find no error. See
supra notes 20 and 21.
       24
         Fallon has preserved this single individual retaliation claim on appeal, as he argues
under “Issue No. 1,” prior to his statement that we are to consider all of the alleged instances
of harassment together under a hostile work environment claim, that “there are six utterances
by Augustus in which he makes plain his intention either to cause Mr. Fallon to withdraw his
EEO complaints or not to file anymore.”

                                               9
                                         No. 07-30522

address this claim in its opinion.25 Fallon alleged below that Augustus said to
him, “You just keep filing those EEO complaints and I promise you one thing –
there won’t be a person in this post office to testify against me,” “You need to call
her [an EEOC officer] and talk to her so you can drop this EEO,” “You need to
tell her you don’t need redress. . . . cause you’re canceling the EEO complaint,”
and “You’ll never have anyone in this post office stand up for you. If you
continue to file these charges, I’ll show you what you’re up against.”
        The Supreme Court clarified the Title VII standard for retaliation in
Burlington Northern and Santa Fe Railway Co. v. White. The Court observed
that “[t]he anti-retaliation provision protects an individual not from all
retaliation, but from retaliation that produces an injury or harm.”26 Injury or
harm turns on “whether a reasonable employee would have found the challenged
action materially adverse,” meaning the action “well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.”27 We
are persuaded that Fallon’s evidence presents a genuine fact issue28 as to
whether Augustus’ statements would have discouraged a reasonable employee
from continuing to pursue EEO claims, and that the district court erred in
granting Potter’s motion for summary judgment with respect to this single
retaliation claim.
       Accordingly, we AFFIRM in part and REVERSE in part.


       25
          The district court addressed Fallon’s claims in two separate sections, “retaliation” and
“retaliatory hostile work environment,” but it treated the Coke and the bomb threat incidents,
rather than Augustus’ EEOC comments, as the separate retaliation claims. It did not discuss
Augustus’ alleged EEOC comments in either section of its opinion.
       26
            126 S.Ct. at 2414.
       27
            Id. at 2415 (internal quotations and citations omitted).
       28
          Whether or not an employer’s actions are retaliatory is a fact issue for the jury. See,
e.g., Burlington N., 126 S.Ct. at 2416 (holding that there was sufficient evidentiary support for
the jury’s finding “that two of Burlington’s actions amounted to retaliation”).

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