IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 23, 2009
No. 08-10734
Summary Calendar Charles R. Fulbruge III
Clerk
LARRY F. VRZALIK
Plaintiff-Appellant
v.
JOHN E. POTTER, POSTMASTER GENERAL, U.S. POSTAL SERVICE
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CV-1875
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Larry F. Vrzalik challenges the district court’s dismissing his Title VII and
ADEA claims against his former employer, U.S. Postal Service.
Vrzalik, a white male over 50 years of age, was employed by the U.S.
Postal Service from 1974 to 2005. Shortly after assuming the duties of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-10734
postmaster in Forney, Texas, in June 2002, Vrzalik made a request to his
immediate supervisor, a white female over 50 years of age, for additional staff
and resources. In October 2003, Vrzalik’s office was randomly selected for
review by the Office of Inspector General (OIG). The OIG identified several
problems, including the failure to audit a vending machine. Also in October
2003, Vrzalik made a request to his immediate supervisor to take his (Vrzalik’s)
annual leave before the end of 2003. The request was granted on condition that
the problems identified by the OIG report be fixed before Vrzalik took his leave.
On 30 October 2003, Vrzalik provided notice of his intent to file an EEO
complaint. The complaint was filed in November 2003, alleging race- and age-
discrimination, retaliation, and a hostile-work environment. On 4 November
2003, Vrzalik informed his immediate supervisor that his doctor had placed him
on sick leave, effective immediately.
After returning to work in April 2004, Vrzalik and his immediate
supervisor discussed the above-referred OIG report. On 28 April 2004, the
supervisor disciplined Vrzalik by issuing a letter of warning for failure to audit
the vending machine. Seven other employees were disciplined by the supervisor.
Three of those employees were black, and six were older than Vrzalik. Regarding
Vrzalik’s annual leave, the supervisor coded his sick leave as annual beginning
15 December 2003. She did not adjust Vrzalik’s leave designation prior to that
date.
Vrzalik claims summary judgment was improper because a genuine issue
of material fact exists regarding his Title VII and AEDA claims. He maintains
he established a prima facie case that the failure to respond to his repeated
requests for additional staff and resources, denying him annual leave, and
disciplining him for failure to audit the vending machine were acts of race and
age discrimination that were done in retaliation for his filing the EEO complaint,
and constituted a constructive discharge. Vrzalik also claims the district court
erred in failing to consider similar acts of discrimination committed against
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No. 08-10734
other post office employees. Finally, Vrzalik asserts the district court erred in
assessing costs against him.
Summary judgment is reviewed de novo, applying the same standard as
the district court. Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d
408, 411 (5th Cir. 2007). Summary judgment is proper when “the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law”. F ED. R. C IV. P. 56(c). All facts and inference are
construed in the light most favorable to the nonmovant. Burrel, 482 F.3d at 411.
Essentially for the reasons stated by the district court in its well-reasoned
opinion, Vrzalik’s claims fail. A careful review of the record reveals that Vrzalik
failed to establish a prima facie case of either race or age discrimination under
the McDonnell framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973); see also Berquist v. Washington Mut. Bank, 500 F.3d 344, 349 (5th
Cir. 2007) (age discrimination); Abarca v. Metropolitan Transit Authority, 404
F.3d 938, 941 (5th Cir. 2005) (race discrimination and retaliation). Further,
because the U.S. Postal Service articulated legitimate, non-discriminatory
reasons for its actions, Vrzalik failed to establish the Service’s actions were
pretextual. See McDonnell, 411 U.S. at 804. Likewise, Vrzalik failed to show a
causal connection between his filing the EEO complaint and the Service’s
actions. See, e.g., Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992).
Vrzalik’s constructive-discharge claim is also without merit. See Stover v.
Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 991 (5th Cir. 2008) (“working
conditions so intolerable that a reasonable employee would feel compelled to
resign”). In any event, the claim was not raised before the EEOC, see, e.g.,
McLain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008), and it is
insufficiently briefed on appeal.
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No. 08-10734
Similarly, Vrzalik’s pattern-or-practice claim is meritless pursuant to
Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 356 (5th Cir. 2001). In any
event, the claim was inadequately briefed.
Finally, there was no error in assessing costs against Vrzalik. See F ED. R.
C IV. P. 54(d)(1).
AFFIRMED.
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