                                                   NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                  No. 11-1855
                                 _____________

                              PAUL M. ST. JOHN,
                                   Appellant

                                        v.

            POSTMASTER GENERAL OF THE UNITED STATES
                         _____________

                On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                         District Court No. 2-09-cv-04196
               District Judge: The Honorable Michael M. Baylson

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                March 27, 2012

            Before: FUENTES, SMITH, and JORDAN, Circuit Judges

                              (Filed: April 2, 2012)

                            _____________________

                                   OPINION
                            _____________________

SMITH, Circuit Judge.

      Paul M. St. John filed a civil action in the United States District Court for

the Eastern District of Pennsylvania, alleging that his employer, the United States
Postal Service (USPS), retaliated against him because of testimony he provided at

an administrative hearing on an earlier charge of national origin discrimination. St.

John is of Scottish heritage.    This action, according to St. John‟s complaint,

violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3 and

2000e-16, as amended. After the close of discovery, the USPS successfully moved

for summary judgment. This timely appeal followed.1

      St. John, who was born in Scotland, has been employed by the USPS as a

City Carrier at the post office in Elkins Park, Pennsylvania, since May of 2003.

On November 3, 2004, St. John filed a complaint with the Equal Employment

Opportunity Commission (EEOC) alleging that he had been discriminated against

based on his national origin when management, particularly his supervisor James

McGinn, did not pay him for eight hours of sick leave. In addition, St. John

alleged that he had been discriminated against when his supervisor placed him on

“leave without pay” status for a 40-hour period. On March 15, 2007, during an

EEOC hearing, St. John was asked how his employer‟s actions affected him. St.

John responded that he “could have throttled [McGinn]” and shortly thereafter




1
   The District Court had jurisdiction under 28 U.S.C. § 1331. We exercise final
order jurisdiction under 28 U.S.C. § 1291. Our review of an order granting
summary judgment is plenary. See Carrasca v. Pomeroy, 313 F.3d 828, 832 (3d
Cir. 2002).


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stated that he “could kill [McGinn].”2

      Due to concerns about workplace violence, the USPS has instituted a zero-

tolerance policy regarding any violence or threats of violence.       The USPS‟s

counsel at the EEOC hearing viewed St. John‟s statements about his current

supervisor as a violation of the zero-tolerance policy. In accord with that policy,

she notified the human resources manager, who convened a “Threat Assessment

Team” to determine whether action should be taken against St. John because of his

potentially threatening remarks.

      On March 20, 2007, several USPS managers held a “Threat Assessment

Meeting” to discuss St. John‟s EEOC hearing testimony. On March 21, 2007,

Postal Inspector Shawn Dougherty questioned St. John about his testimony in the

presence of his union representative Christopher Lanetti. During the interview,

both St. John and Lanetti informed Dougherty of complaints St. John had made the

week before against McGinn regarding falsification of employees‟ “clock rings.”3




2
 The EEOC Administrative Judge decided on June 22, 2007, that St. John was not
discriminated against based on his national origin when he was denied sick time or
charged for 40 hours of leave without pay.          St. John did not appeal that
determination.
3
 “Clock rings” refers to each time a worker uses his time card to punch in or out of
work. St. John alleged that employees were not being paid for their actual time
worked because someone was falsifying the employee records.

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At the conclusion of the interview, St. John gave Dougherty a written statement in

which he acknowledged that he was aware of the USPS‟s zero-tolerance policy

regarding threats of violence, and further indicated that he was upset when he

testified before the EEOC. St. John called his choice of words “regretful,” but said

that his “statements were taken completely out of context” and that he “only meant

to emphasize [his] feelings and not [his] intentions.”

      Dougherty allowed St. John to return to his mail route, leading St. John and

Lanetti to believe the investigation was over. About five hours later, management

approached St. John on his route and directed him to return to the office. Upon his

return, St. John was met by the Officer-in-Charge and the Postmaster. St. John

requested the presence of his union representative. When Lanetti arrived, St. John

was informed that he was being placed on emergency placement leave (EPL). He

was directed to clean out his locker and his mail truck in the presence of his

supervisor.

      Shortly thereafter, the Manager of Post Office Operations advised the

Officer-in-Charge that Dougherty had determined that St. John was not a threat and

had permitted St. John to return to service. Within fifteen minutes of being placed

on EPL and before St. John left the building, St. John was advised by management

that the EPL had been rescinded and that he could return to work.

      A month later, St. John filed a charge of retaliation with the EEOC. The


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EEOC initially dismissed the complaint, finding that St. John had not established a

prima facie case of retaliation because he had not suffered an adverse action, and

that the USPS had articulated a legitimate, nondiscriminatory reason for its actions.

St. John appealed to the EEOC Office of Federal Operations (OFO), which

reversed the decision. Pursuant to the OFO‟s order, the USPS conducted an

investigation and determined that St. John was entitled to compensatory damages

of $300. Unsatisfied with the nominal damages, St. John initiated a civil action

against the United States Postmaster General pursuant to 42 U.S.C. § 2000e-16(c),

seeking “de novo consideration” of his retaliation claim. See Morris v. Rumsfeld,

420 F.3d 287, 291 (3d Cir. 2005).

      After discovery concluded, the USPS filed a motion for summary judgment.

The District Court granted the motion, concluding that St. John had failed to

demonstrate the required element of having sustained a materially adverse action.

In addition, the Court determined that St. John had failed to demonstrate that

USPS‟s legitimate, nondiscriminatory reason for placing him on EPL was a pretext

for retaliation. St. John appealed, challenging the District Court‟s determination

that he failed to demonstrate a prima facie case of retaliation and that he did not

show that USPS‟s reason was a pretext for retaliation.

      We will assume for purposes of this appeal that St. John adduced sufficient




                                         5
evidence to establish a prima facie case of discrimination.4 As a result, the burden

of production shifted to USPS to provide a legitimate, nondiscriminatory reason

for its actions. Woodson v. Scott Paper Co., 109 F.3d 913, 920 n.2 (3d Cir. 1997)

(citing, inter alia, Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)). The USPS

met its burden, citing its zero-tolerance policy and St. John‟s threatening

comments. Thus, St. John had the burden of demonstrating that this reason was a

pretext for retaliation. Fuentes, 32 F.3d at 764-65. We agree with the District

Court that St. John has not adduced evidence that would permit a reasonable

factfinder to cast doubt on the USPS‟s reason. Accordingly, we will affirm the

judgment of the District Court.




4
  Title VII‟s antiretaliation provision proscribes discriminating against a protected
individual because he opposed a practice forbidden by Title VII or participated in a
Title VII proceeding. 42 U.S.C. § 2000e-3(a). In Burlington Northern & Santa
Fe Railway Co. v. White, 548 U.S. 53, 59 (2006), the Supreme Court declared that
“[n]o one doubts that the term „discriminate against‟ [in the antiretaliation
provision] refers to distinctions or differences in treatment that injure protected
individuals.” In light of the zero-tolerance policy at the heart of this appeal, we are
skeptical that St. John established that he was treated differently than any other
USPS employee who uttered a potentially threatening statement. The USPS did
not raise this issue, however, in challenging whether St. John sufficiently
demonstrated a materially adverse action, and we need not address it in resolving
this appeal.

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