Case: 09-60601 Document: 00511015009 Page: 1 Date Filed: 01/28/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 28, 2010
No. 09-60601 Charles R. Fulbruge III
Summary Calendar Clerk
MELVIN D. HOLLIMON,
Plaintiff - Appellant
v.
JOHN E. POTTER, Postmaster General,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:07-CV-1282
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Melvin D. Hollimon appeals from a grant of summary judgment on his
claims regarding his employment by the United States Postal Service. He also
argues the district judge should have recused himself. We AFFIRM.
FACTS AND PROCEDURAL HISTORY
Hollimon, an African-American male, began working as a window clerk at
the Long Beach Post Office in Long Beach, Mississippi, in 1992. He was
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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terminated and filed an Equal Employment Opportunity (EEO) complaint with
the United States Postal Service (USPS) as late as 1997.1 He prevailed on the
complaint and was reinstated to his position in 2002.
Due to his repeated absences and tardiness, Holliman was suspended in
2003 and again in 2004. Holliman took approved leave under the Family
Medical Leave Act (FMLA) from June 9, 2005, through December 31, 2005. He
was also approved for FMLA leave from July 26, 2006, through August 8, 2006.
In 2006, the USPS issued Hollimon a notice of proposed removal because of
Hollimon’s repeated unexcused absences and tardiness. Hollimon appealed the
USPS’s decision to terminate him. The appeal was resolved when Holliman and
the USPS entered into a Last Chance Agreement on April 13, 2006.
Under the agreement, Hollimon agreed to “maintain a satisfactory level
of attendance and adhere to all Postal Service regulations, rules and policies
pertaining to attendance and leave request procedures.” The USPS had the
discretion to determine whether his attendance was satisfactory. He
acknowledged that failure to maintain satisfactory attendance would be a breach
of the agreement and would result in a removal action. The Postmaster of the
Long Beach Post Office would have the exclusive discretion to determine
whether his work performance was satisfactory. Unsatisfactory performance
would constitute a breach of the agreement and would result in a removal action.
Finally, Hollimon waived his right to appeal or contest his removal for
unsatisfactory attendance or work performance to the Merit Systems Protection
Board, the Equal Employment Opportunity Commission, or the grievance/
arbitration procedure of the National Agreement.
1
It is not clear when the first EEO complaint was filed. The USPS indicates in its brief
that the complaint was filed in 1993. Hollimon testified in his deposition that his first
complaint was filed in 1993, but stated in his district court complaint that the first EEO
complaint was in 1997. This inconsistency is immaterial to our analysis.
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After entering into the Last Chance Agreement, Hollimon’s absences and
tardiness continued. An affidavit from his supervisor indicates fifteen instances
of unexcused absence or tardiness between May 16 and October 14, 2006, none
of which were during his FMLA leave. The supervisor also noted several
instances of unsatisfactory work performance. The USPS informed Hollimon
that he was being terminated pursuant to the Last Chance Agreement. His
termination was effective on November 17, 2006.
On December 28, 2007, Hollimon filed suit against the USPS, alleging
various claims under state law, 28 U.S.C. § 1981, the FMLA, and Title VII.
Hollimon alleged that his termination was in retaliation for his EEO complaint
and that it was otherwise unlawful because it was based on absences that were
protected under the FMLA. Hollimon also alleged that his employer
discriminated against him by denying him passport, bulk mail, box section, and
computer training, while offering it to Caucasian employees, and also by
requiring him to take formal FMLA leave while not requiring the same of
Caucasian employees. The USPS moved for summary judgment, and the district
court granted that motion.
Before the district court judge’s ruling on the summary judgment motion,
Hollimon sought to have the judge recuse himself. See 28 U.S.C. § 455.
Hollimon argued that recusal was needed because Hollimon’s attorney had also
represented a former deputy clerk in a racial discrimination claim against the
judge. The motion to recuse was denied. The judge rejected that any bias or the
appearance of bias existed. Hollimon appealed.
DISCUSSION
We review a grant of summary judgment de novo, applying the same
standard as the district court. Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.
2007). Summary judgment is proper when there is no genuine issue of material
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fact, viewing the evidence in the light most favorable to the nonmoving party.
Id.; Fed. R. Civ. P. 56(c).
The district court correctly found that Hollimon’s claims under state law
and 42 U.S.C. § 1981 were preempted by Title VII and the Civil Service Reform
Act. Rowe v. Sullivan, 967 F.2d 186, 189 (5th Cir. 1992); Rollins v. Marsh, 937
F.2d 134, 138-40 (5th Cir. 1991).
The district court also was correct that Hollimon did not show retaliation
under the FMLA. Employees who take FMLA leave are not to suffer retaliation
for doing so. Haley v. Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir.
2004); 29 U.S.C. § 2615(a)(2). Hollimon’s claim required that he first establish
a prima facie case of retaliation. That consists of proof that a plaintiff was
protected under the FMLA, suffered an adverse employment decision, and was
either treated less favorably than other employees who did not take FMLA leave
or an adverse decision was made because he took FMLA leave. Hunt v. Rapides
Healthcare Sys., LLC, 277 F.3d 757, 768 (5th Cir. 2001). If this initial burden
is met, USPS must then articulate a legitimate reason for the employment
action. Id. That done, the employee would then show that the suggested reason
was actually a pretext for retaliation. Id.
The district court accepted that Hollimon established a prima facie case
of retaliation. The district court then found that the USPS had articulated a
legitimate, nondiscriminatory reason for the termination – Hollimon’s absences
and tardiness from work, his poor work performance, and his breach of the Last
Chance Agreement. The district court concluded that Hollimon failed on the last
step of the analysis, namely, showing by a preponderance of the evidence that
the stated reason for the termination was a pretext.
Examining the summary judgment evidence de novo, we agree that
Hollimon did not prove the USPS’s reasons for terminating him were pretextual.
By that, we mean the reasons were not false, “unworthy of credence,” or
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otherwise unpersuasive. See Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 147 (2000).
Hollimon also alleged discrimination and retaliation under Title VII. With
regard to the first discrimination claim, we agree with the district court that
Hollimon has not met his prima facie burden under Title VII because he has not
shown that he suffered an adverse employment action within the Act. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hollimon alleges that
Caucasian employees were given training that he was denied because of his race
and were also allowed to take unscheduled leave. As the district court found, a
refusal to train is not an adverse employment action under Title VII.
Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 406-07 (5th Cir. 1999).
The district court also properly found that the only evidence that the
termination was racially motivated was a conclusory affidavit from another
employee. Such an affidavit is insufficient.
Hollimon’s Title VII retaliation claim also fails. Even if we accept, as did
the district court, that Hollimon satisfies his prima facie burden, he has not
shown that the USPS’s stated reasons for his termination were pretextual.
Finally, Hollimon argues on appeal that the district judge erred by failing
to recuse himself. He alleges that the judge was biased because Hollimon’s
attorney represented or currently represents a former deputy clerk in a racial
discrimination claim against the judge.
We review a denial of a motion to recuse for abuse of discretion. United
States v. Anderson, 160 F.3d 231, 233 (5th Cir. 1998). A judge “shall disqualify
himself in any proceeding in which his impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). We determine whether a reasonable person,
knowing the circumstances, would question the judge’s impartiality. Republic
of Panama v. Am. Tobacco Co., Inc., 265 F.3d 299, 302 (5th Cir. 2001). Bias
against an attorney is not enough to require disqualification; bias must be shown
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to exist against the party itself. Henderson v. Dept. of Public Safety & Corrs.,
901 F.2d 1288, 1296 (5th Cir. 1990).
Hollimon has not shown either actual bias or the appearance of bias
against Hollimon himself. We therefore cannot find that the district judge
abused his discretion when he declined to recuse himself.
We AFFIRM.
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