United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 13, 2005
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 04-20467
Summary Calendar
CHARLES KING,
Plaintiff-Appellant,
versus
UNITED STATES POSTAL SERVICE,
Defendant-Appellee.
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CHARLES KING,
Plaintiff-Appellant,
versus
JOHN E. POTTER, Postmaster General,
United States Postal Service,
Defendant-Appellee.
Appeal from the United States District Court for
the Southern District of Texas, Houston
(USDC No. 4:01-cv-3702)
_________________________________________________________
Before REAVLEY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*1
We affirm for the following reasons:
1. The allegations in the agency EEO complaints do not indicate that King was
subjected to severe and pervasive harassment sufficient to create a hostile
working environment. King failed to exhaust his administrative remedies with
respect to his hostile work environment claim. The district court correctly
concluded that it lacked jurisdiction. “Under law of the case doctrine, as now
most commonly understood, it is not improper for a court to depart from a prior
holding if convinced that it is clearly erroneous and would work a manifest
injustice.” Arizona v. California, 460 U.S. 605, 619 n.8, 103 S. Ct. 1382,
1391 n.8, 75 L.Ed 2d 318, 333 n.8 (1983). For this reason, the district court’s decision
to revisit its previous order adopting the Magistrate Judge’s M&R was proper.
2. “If the district court’s account of the evidence is plausible in light of the record
viewed in its entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would have weighed the
evidence differently.” Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.
Ct. 1504, 1511, 84 L. Ed. 2d 518, 529 (1985). Pat Garcia testified that King made
*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not be published and is not precedent except under the limited circumstances set forth in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.
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her feel in danger of falling and slammed a door in her face. Don Wright
corroborated Beasley’s testimony that King hit him in the shoulder. The assault
and battery allegations were followed up with two serious investigations. In the
course of these investigations, King was nonresponsive to questions. The
officials who made the decisions to remove King, Maryke Cudd and Monica
Coleman, testified that they had reason to believe King presented a danger. In
light of this testimony, it was not clear error for the district court to find that King
failed to prove by a preponderance of the evidence that he was discriminated
against on the basis of his race or gender. Since Cudd and Coleman were
unaware of King’s EEO activity, it was not clear error for the district court to hold
that King failed to prove by a preponderance of the evidence that he was
retaliated against.
Affirmed.
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