Osborne v. Elmer

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opinion should not be published and is not precedent except under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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