United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit June 21, 2005
Charles R. Fulbruge III
No. 04-30893 Clerk
Summary Calendar
RODNEY OSBORNE,
Plaintiff-Appellant,
VERSUS
SUZANNE ELMER; JESSIE BLOUNT; ART NORSWORTHY; TIM LACOMBE; JOE
TATE; UNITED STATES OF AMERICA; JOHN E. POTTER, United States
Postmaster General; UNITED STATES POSTAL SERVICE; UNITED STATES
DEPARTMENT OF LABOR
Defendants-Appellees.
Appeal from the United States District Court
For the Middle District of Louisiana
3:01-CV-117-C-M1
Before DAVIS, SMITH, and DENNIS Circuit Judges.
PER CURIAM:*
Appellant Rodney Osborne (“Osborne”) appeals the district
court’s dismissal of his claims of disability discrimination and
retaliation under the Rehabilitation Act of 1973, 29 U.S.C. § 701,
et seq. Because we agree that Osborne cannot show that he suffered
an “adverse employment action,” we AFFIRM the district court’s
*
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opinion should not be published and is not precedent except under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.
dismissal of his claims of disability discrimination and
retaliation.
I.
In April 1999, while working as a mail processing equipment
mechanic for the United States Postal Service (“Postal Service”),
Osborne suffered an on-the-job injury to his back and neck.
Approximately three months later, he received a letter from
Suzanne Elmer, the Injury Compensation Specialist for the Postal
Service, explaining that his Continuation of Pay would soon
terminate. Approximately one year later, Osborne returned to
work at the Postal Service with work restrictions due to his
physical condition. In accordance with these restrictions, the
Postal Service asked that he agree to be reassigned to work in
custodial services, for which he was paid the same salary he
earned as an equipment mechanic. Believing that his reassignment
was unjust, Osborne lodged several complaints with the EEOC.
While working as a janitor, Osborne was approached by Scott
Sulik, Manager of In-Plant Support at the Postal Service, who
told Osborne that he needed temporary help in his department
performing work similar to that done by Osborne before his
injury. Osborne informed his superiors, but, before a final
transfer decision was made, Sulik no longer needed assistance,
and Osborne returned to his duties in custodial services, where
he continues to work. Osborne later filed this lawsuit, arguing
that the Postal Service’s treatment of him after his injury
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amounted to disability discrimination, and that the Postal
Service failed to approve his transfer to Sulik’s department in
retaliation for his EEOC complaints.
The district court dismissed Osborne’s claims of disability
discrimination, finding that, among other reasons, none of the
above conduct constituted an “adverse employment action.” The
district court also dismissed Osborne’s retaliation claim,
concluding that the Postal Service’s delay in approving Osborne’s
transfer to a temporary position did not constitute an “adverse
employment action.”
On appeal, Osborne concedes that none of the above
incidents, taken alone, amount to an “adverse employment action.”
However, he urges this court to find that the Postal Service’s
conduct “as a whole” constituted a “campaign of retaliatory
harassment” that satisfies the requirement of “adverse employment
action.” Even if such a theory is available to the plaintiff, we
agree with the district court that Osborne has failed to show
that the record evidence supports it.
II.
For the reasons stated above and the reasons assigned by the
district court denying recovery because plaintiff failed to
establish an “adverse employment action,” we AFFIRM the district
court’s judgment.
AFFIRMED.
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