Petition for Writ of Certiorari — Babu K. Thomas, Petitioner v. David Steiner, Postmaster General, et al.

Supreme Court briefSep 11, 2026

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 25-20297

Summary Calendar

[DATE STAMP]

United States Court of Appeals

Fifth Circuit

FILED

April 14, 2026

Lyle W. Cayce

Clerk

Babu K. Thomas,

Plaintiff—Appellant,

versus

David Steiner, U.S. Postmaster; Todd Wallace

Blanche, Acting U.S. Attorney General; John G.E.

Marek, United States Attorney for the Southern

District of Texas,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:22-CV-3157

Before Jones, Richman, and Southwick, Circuit

Judges.

Per Curiam:*

Babu K. Thomas appeals from the district court’s

grant of summary judgment to his former employer on

claims of age, race, and disability discrimination,

retaliation, and hostile workplace environment, as well

as the court’s denial of his motion for reconsideration

and assessment of bill of costs against him. We affirm.

Babu K. Thomas is an Asian-American man born

in 1963. He began working for the United States

Postal Service (USPS) in 2000. As early as 2007, USPS

began documenting problems with his work

performance. In 2010, Thomas was given a medical

accommodation limiting his workday to 8 hours.

However, he did not abide by the conditions of the

accommodation. In June of 2014, Thomas instituted an

investigation with USPS Equal Employment

Opportunity (“EEO”) alleging retaliation and a hostile

work environment based on race, national origin, age,

and disability.

Thomas stopped going to work after August 13,

2014. On September 6, 2014, USPS notified Thomas he

failed to keep his supervisor informed of his status and

failed to provide documentation to support his inability

to work. On January 24, 2015, Thomas was informed

he had been placed on Leave Without Pay status since

This opinion is not designated for publication. See 5th Cir.

R. 47.5.

August 13. Thomas sent several letters to USPS

representatives between 2014 and 2017 asking to

discuss reasonable accommodations and his claims of

harassment and hostile work environment, but none

include supporting medical documentation.

On November 1, 2017, Thomas was ordered to

“provide acceptable evidence of [his] inability to report

[for work] from August 2014 to present” or be declared

absent without leave and possibly terminated. USPS

conducted an investigative interview with Thomas on

January 12,2018, at which Thomas declined to provide

any documentation of his need to be absent from work.

Thomas was terminated effective March 23, 2018.

Thomas filed a charge with the EEO on April 20,

2018 asserting discrimination, harassment, and

retaliation based on race, age, and disability beginning

in December 2017. The EEOC issued a notice of right

to sue letter on June 18, 2022. Thomas filed suit in

federal district court on September 15, 2022.

Following discovery, the defendants moved for

summary judgment on September 12, 2024. On

October 18, 2024, Thomas filed a motion to compel

alleging that the defendants had not complied with

discovery requests. The district court ordered the

defendants to supplement discovery by November 14,

2024. On February 7, 2025, Thomas filed another

motion to compel.

The magistrate judge issued a report and

recommendation recommending the defendants’

motion for summary judgment be granted in full on

February 12, 2025. The magistrate denied Thomas’s

motion to compel on March 4, 2025. The district court

then adopted the report and recommendation on

March 14, 2025 and dismissed Thomas’s claims with

prejudice. The court also awarded costs in favor of

defendants. Thomas objected to this, but the court

overruled his objection. Thomas also filed a motion for

reconsideration, which the court denied. He timely

appealed.

We begin with Thomas’s challenge to the district

court’s denial of his motion to compel discovery.

“Discovery rulings are ‘committed to the sound

discretion of the trial court’ and will not be reversed on

appeal unless ‘arbitrary or clearly unreasonable.’”1

The district court denied Thomas’s motion

because the court “conclude [d] that Defendant

complied with the Court’s [previous] Order compelling

them to supplement their discovery responses” and

that Thomas’s motion “was filed belatedly and months

after the

deadline and without conferring with

Defendant as required by Local Rule 7.1(D).” Thomas

maintains he “filed timely before the motion deadlines”

and that “Defendant did not produce the documents

that the Court ordered them to produce.”

McCreary v. Richardson, 738 F.3d 651,654 (5th Cir. 2013)

(quoting Williamson v. USDA, 815 F.2d 368, 373, 382 (5th Cir.

1987)).

The district court did not abuse its discretion in

denying Thomas’s motion to compel. The supplemental

discovery deadline was set as November 14, 2024.

Thomas’s motion was filed on February 7, 2025. “A

district court has discretion to deny as untimely a

motion filed after the discovery deadline.”2 Its decision

to do so was therefore not “arbitrary or clearly

unreasonable.”3

Thomas’s further argument that summary

judgment was improper because he “did not have a full

opportunity to conduct discovery” as “[t]he Court had

not yet ruled on [his] motion to compel” is without

merit. The magistrate judge ruled on his motion to

compel on March 4, 2025. The district court did not

adopt the magistrate’s report and recommendation on

the motion for summary judgment until March 14,

2025. By that time, the magistrate had already found

the defendants complied with its previous discovery

orders and that Thomas’s motion to compel was

untimely.

Ill

Thomas challenges the district court’s grant of

summary judgment to the defendants. “We review the

Brand Servs., L.L.C, v. Irex Corp., 909 F.3d 151, 156 (5th

Cir. 2018).

382).

McCreary, 738 F.3d at 654 (quoting Williamson, 815 F.2d

district court’s grant of summary judgment de novo.”4

Summary judgment is proper “if the movant shows

that there is no genuine dispute as to any material

fact.”5 In response to the movant, the summary

judgment standard “requires the nonmoving party to

go beyond the pleadings and by her own affidavits, or

by the ‘depositions, answers to interrogatories, and

admissions on file,’ designate ‘specific facts showing

that there is a genuine issue for trial.’”6

First, we consider Thomas’s claim of disability

discrimination. The Rehabilitation Act provides the

exclusive remedy for federal employees alleging

disability discrimination in the workplace.7 “To qualify

for relief under the Rehabilitation Act, a plaintiff must

prove that (1) he is an ‘individual with a disability’; (2)

who is ‘otherwise qualified’; (3) who worked for a

‘program or activity receiving Federal financial

assistance’; and (4) that he was discriminated against

‘solely by reason of her or his disability.’”8 “An

Morris v. Covan World Wide Moving, Inc., 144 F.3d 377,

380 (5th Cir. 1998).

Fed. R. Civ. P. 56(a).

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

Dark v. Potter, 293 F. App'x 254, 258 (5th Cir. 2008).

Hileman v. City of Dallas, 115 F.3d 352, 353 (5th Cir.

1997) (quoting 29 U.S.C. § 794(a)).

individual with a disability is any person who (1) has

a physical or mental impairment which ‘substantially

limits one or more of such person’s major life

activities’; (2) has a ‘record’ of such an impairment; or

(3) is ‘regarded’ as having such an impairment.”9 Major

life activities include “caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working.”10

Thomas alleges a diagnosis of diabetes in 2005

and depression in 2009 as the basis for disabilities. In

one of the letters Thomas submitted as summary

judgment evidence, he wrote: “I told you I am a type-2

diabetic during our conversations at work and while

you were riding with me. I have been on an 8hr day

restriction for long time. I had to use an umbrella in

the sun at NBUs and sometimes check my blood sugar

if I feel weak and use the bathroom if needed and

such.” This is the extent of the record evidence

establishing the impacts of Thomas’s diagnoses.

However, this is insufficient to create a genuine issue

of material fact as to whether Thomas is “[a]n

individual with a disability” because it does not

demonstrate that his physical or mental impairment

“substantially limits one or more of [his] major life

activities.”11 Indeed, Thomas continued to work for

years after these diagnoses.

Id. (quoting 29 U.S.C. § 706(8)(B)).

Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir.

1995).

Hileman, 115 F.3d at 353.

Because Thomas fails to show a genuine dispute

of material fact as to whether he is an individual with

a disability, summary judgment was proper on his

disability discrimination and failure to accommodate

claims.

With regard to Thomas’s race discrimination

claim, to establish a prima facie case of racial

discrimination, a plaintiff must show he “1) is a

member of a protected class; 2) was qualified for h[is]

position; 3) was subjected to an adverse employment

action; and 4) was replaced by someone outside the

protected class, or that other similarly situated

persons were treated more favorably.”12 “Employees

are similarly situated when they (1) ‘held the same job

or responsibilities,’ (2) ‘shared the same supervisor or

had their employment status determined by the same

person,’ and (3) ‘have essentially comparable violation

histories.’”13

Thomas proffers five comparators. For the first

two, Thomas points to a USPS pre-complaint

counseling information form in the record that he

completed. The form names one comparator as a

“female, European- American” who “was given special

Septimus v. Univ, of Hous., 399 F.3d 601, 609 (5th Cir.

2005).

West v. City of Hous., 960 F.3d 736, 740 (5th Cir. 2020)

(quoting Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir.

2009)).

accommodations, no harassments” and “was awarded

[Thomas’s] adjusted route by supervisor.” It names the

second as a “male, European-American” who “was

provided accommodation to work only half of the route

for a long period of time for a medical condition. He

was away from carrier craft for over 10 y[ea]rs but

allowed to bid on route (my adjusted route) at the

same time I was denied opportunity to bid open

routes.” This evidence is insufficient to create a

genuine issue of material fact as to whether these

employees are similarly situated. Thomas points to no

evidence that suggests these employees “shared the

same supervisor or had their 'employment status

determined by the same person” and offers nothing

regarding these employee’s “violation histories.”14 As

for Thomas’s three other proffered comparators,

Thomas points to no record evidence whatsoever.

Thomas therefore does not show a genuine issue of

material fact as to whether they are similarly situated.

Because Thomas does not point to any record

evidence creating a genuine issue of material fact as to

whether his proffered comparators are “similarly

situated persons [who] were treated more favorably”

and does not argue he was “replaced by someone

outside the protected class,” he did not raise a genuine

issue of material fact as to the fourth element of his

prima facie case of racial discrimination.15 Summary

judgment was therefore proper on his race

West, 960 F.3d at 740 (quoting Lee, 574 F.3d at 260).

Septimus, 399 F.3d at 609.

discrimination claim.

As to Thomas’s age discrimination claim, “[t]o

establish h[is] prima facie case of age discrimination,

[Thomas] must show that (1) [he] was discharged, (2)

[he] was qualified for the position, (3) [he] was within

the protected class when [he] was discharged, and (4)

[he] was ‘either i) replaced by someone outside the

protected class, ii) replaced by someone younger, or iii)

otherwise discharged because of h[is] age.’”16

Thomas alleges “his carrier route was given to

much younger part-time and casual employees.”

However, Thomas does not point to any competent

summary judgment evidence demonstrating he was

replaced by younger employees or even identifying who

those employees were.17 Indeed, Thomas admits he

“did not get their names and other information” during

discovery. Thomas therefore has not shown a genuine

issue of material fact as to the fourth element of his

prima facie case. Summary judgment was proper on

Allen v. U.S. Postal Serv., 63 F.4th 292, 301 (5th Cir.

2023) (quoting Jackson v. Cal-W. Packaging Corp., 602 F.3d 374,

378 (5th Cir. 2010)).

See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)

(“Rule 56(e) permits a proper summary judgment motion to be

opposed by any of the kinds of evidentiary materials listed in Rule

56(c), except the mere pleadings themselves, and it is from this

list that one would normally expect the nonmoving party to make

the showing to which we have referred.”)

10a

his age discrimination claim.

“To present a prima facie case of retaliation under

either Title VII or § 1981, a plaintiff must show that:

(1) he engaged in an activity protected by Title VII; (2)

he was subjected to an adverse employment action;

and (3) a causal link exists between the protected

activity and the adverse employment action.”18 “If [the

plaintiff] successfully establishes herprima facie case,

the burden then shifts to the [defendant] to state a

legitimate non-retaliatory reason for its action. . . .

[The plaintiff] must [then] show that the [defendant’s

stated reason is actually a pretext for retaliation.”19

“The proper standard of proof on the causation

element of a Title VII retaliation claim is that the

adverse employment action taken against the plaintiff

would not have occurred ‘but for’ her protected

conduct.”20

Thomas argues record evidence showing his EEO

complaints, congressional complaints, and reasonable

accommodation requests, among others, are protected

activity for which he was fired in retaliation. Assuming

without deciding that Thomas has created a genuine

Davis v. Dall. Area Rapid Transit, 383 F.3d 309, 319 (5th

Cir. 2004).

Septimus v. Univ, of Hous., 399 F.3d 601, 610 (5th Cir.

2005).

Id. at 608.

Ila

issue of material fact with respect to each element of

his prima facie case, USPS has articulated a legitimate

non-retaliatory reason for the employment

action—that is, that Thomas was absent from work for

three years and continually failed to provide the

necessary requested medical information to justify his

absence. As we have previously held, “an employee’s

failure to show up for work is a legitimate reason for

firing her.”21

Thomas does not respond to USPS’s nonretaliatory reason, arguing instead that “the defendant

presents no non-discriminatory reasons for

termination of [his] employment.” Thomas therefore

does not create a genuine issue of material fact as to

whether the adverse employment action taken against

him would have occurredbut-for his protected conduct.

Summary judgment was accordingly proper on this

claim as well.

We now turn to Thomas’s harassment and hostile

work environment claim. To establish a hostile work

environment claim based on race, age, or disability, a

plaintiff must show: (1) he belongs to a protected

group; (2) he was subjected to unwelcome harassment;

(3) the harassment complained of was based on race,

age, or disability; (4) the harassment complained of

Amedee v. Shell Chem., L.P., 953 F.3d 831, 835 (5th Cir.

2020) (quoting Trautman v. Time Warner Cable Tex., L.L.C., 756

F. App’x 421, 428 (5th Cir. 2018)).

12a

affected a term, condition, or privilege of employment;

(5) the employer knew or should have known of the

harassment in question and failed to take prompt

remedial action.22

Thomas points to a coworker’s EEO investigative

affidavit filed on March 8, 2013, a complaint Thomas

wrote on a USPS routing slip to the postmaster

detailing an incident of bullying by coworkers and a

supervisor dated June 17, 2014, and several letters

Thomas wrote between 2014 and 2017. However,

Thomas’ last day of work was August 13, 2014. All the

incidents of harassment reflected in the record

necessarily occurred on or before that date. But the

EEO only accepted Thomas’s hostile work environment

and discriminatory harassment claim insofar as it

related to harassment and bullying “[b]eginning on or

about December of 2017.” Thomas cannot point to any

record evidence demonstrating harassment from 2017

onwards. Summary judgment was therefore proper on

this claim.

Finally, Thomas argues “USPS management

terminated [him] from his employment without just

cause” and there was an “unfair and improper

grievance arbitration process.” However, Thomas did

See Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.

2002) (race); Thompson v. Microsoft Corp., 2 F.4th 460, 471 (5th

Cir. 2021) (disability); Dediol u. Best Chevrolet, Inc., 655 F.3d 435,

441 (5th Cir. 2011) (age).

13a

not plead that his termination was improper aside

from his prior discrimination and retaliation claims in

his underlying administrative complaint, nor in his

complaint in federal district court. Nor did he plead a

claim about the arbitration process in the district

court. We will not consider claims raised for the first

time on appeal.23

Thomas asserts that “[t]he memorandum and

recommendation contain several factual errors.”24

Because “[w]e give pro se briefs a liberal

construction,”25 we construe this argument to be an

appeal of the denial of Thomas’s motion for

reconsideration. “[W]e review a district court’s decision

on a Rule 59 motion to reconsider for abuse of

discretion.”26

“A motion to alter or amend the judgment under

Rule 59(e) ‘must clearly establish either a manifest

error of law or fact or must present newly discovered

evidence’ and ‘cannot be used to raise arguments

which could, and should, have been made before the

See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342

(5th Cir. 1999).

Thomas Br. at 35.

Brown v. Sudduth, 675 F.3d 472, 477 (5th Cir. 2012).

In re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir.

2017).

14a

judgment issued.’”27 In denying Thomas’s motion, the

district court noted his “[m]otion establishes only that

[he] disagrees with the Court’s ruling.” We agree.

Because Thomas failed to establish a manifest error of

law or fact or present newly discovered evidence, the

district court did not abuse its discretion in denying

his motion for reconsideration.

Finally, Thomas argues the district court erred in

granting a bill of costs in favor of the defendants.

Federal Rule of Civil Procedure 54(d)(1) states

“costs—other than attorney’s fees—should be allowed

to the prevailing party.”28 This rule “contains a strong

presumption that the prevailing party will be awarded

costs.”29 “Only when a clear abuse of discretion is

shown can an award of cost be overturned.”30

Thomas argues the district court’s grant of

deposition-related costs to the defendants was an

abuse of discretion because his deposition was not used

in the defendant’s motion for summary judgment.

However, we have previously held that “[a] deposition

Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567

(5th Cir. 2003) (quotingRosenzweig v. Azurix Corp., 332 F.3d 854,

863-64 (5th Cir. 2003)).

Fed. R. Civ. P. 54(d)(1).

Pacheco v. Mineta, 448 F.3d 783, 793 (5th Cir. 2006).

Id.

15a

or deposition copy ‘need not be introduced into

evidence ... in order to be ‘necessarily obtained for use

in the case.’”31 “Whether a deposition or copy was

necessarily obtained for use in the case is a factual

determination within the district court’s discretion,

and ‘[w]e accord the district court great latitude in this

determination.’”32 The district court found the

deposition of Thomas “was clearly obtained for use in

this case even though Defendant did not cite the

deposition in its summary judgment briefing.” Thomas

presents no compelling reason to disturb the district

court’s factual determination. The district court did

not abuse its discretion in granting the bill of costs.

For the foregoing reasons, we AFFIRM the

district court’s grant of summary judgment to the

defendants, denial of Thomas’s motion for

reconsideration, and assessment of bill of costs.

United States ex rel. Long v. GSDMIdea City, L.L.C., 807

F.3d 125,130 (5th Cir. 2015) (quotingFogleman v. ARAMCO, 920

F.2d 278, 285-86 (5th Cir. 1991)).

286).

Id. (alteration in original) (quoting Fogleman, 920 F.2d at

16a

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

[Letterhead]

April 14, 2026

MEMORANDUM TO COUNSEL OR PARTIES

LISTED BELOW

Regarding:

Fifth Circuit Statement on Petitions for

Rehearing or Rehearing En Banc

No. 25-20297 Thomas v. Steiner

USDC No. 4:22-CV-3157

Enclosed is a copy of the court’s decision. The court has

entered judgment under Fed. R. App. P. 36. (However,

the opinion may yet contain typographical or printing

errors which are subject to correction.)

Fed. R. App. P. 39 through 41, and Fed. R. App. P. 39,

40, and 41 govern costs, rehearings, and mandates.

Fed. R. App. P. 40 require you to attach to your

petition for panel rehearing or rehearing en

banc an unmarked copy of the court’s opinion or

order. Please read carefully the Internal Operating

Procedures (lOP’s) following Fed. R. App. P. 40 for a

discussion of when a rehearing may be appropriate,

the legal standards applied and sanctions which may

be imposed if you make a nonmeritorious petition for

rehearing en banc.

Direct Criminal Appeals. Fed. R. App. P. 41 provides

17a

that a motion for a stay of mandate under Fed. R. App.

P. 41 will not be granted simply upon request. The

petition must set forth good cause for a stay or clearly

demonstrate that a substantial question will be

presented to the Supreme Court. Otherwise, this court

may deny the motion and issue the mandate

immediately.

Pro Se Cases. If you were unsuccessful in the district

court and/or on appeal, and are considering filing a

petition for certiorari in the United States Supreme

Court, you do not need to file a motion for stay of

mandate under Fed. R. App. P. 41. The issuance of the

mandate does not affect the time, or your right, to file

with the Supreme Court.

Court Appointed Counsel. Court appointed counsel is

responsible for filing petition(s) for rehearing(s) (panel

and/or en banc) and writ(s) of certiorari to the U.S.

Supreme Court, unless relieved of your obligation by

court order. If it is your intention to file a motion to

withdraw as counsel, you should notify your client

promptly, and advise them of the time limits for

filing for rehearing and certiorari. Additionally,

you MUST confirm that this information was given to

your client, within the body of your motion to

withdraw as counsel.

The judgment entered provides that Appellant pay to

Appellees the costs on appeal. A bill of cost form is

available on the court’s website www.ca5.uscourts.gov.

Sincerely,

18a

LYLE W. CAYCE, Clerk

By: /s/

Sean Hannan, Deputy Clerk

504-310-7702

Enclosure(s)

Ms. Natasha Ann Alexander

Mr. Babu K. Thomas

Ms. Ariel Nicole Wiley

19a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 25-20297

Summary Calendar

[DATE STAMP]

United States Court of Appeals

Fifth Circuit

FILED

April 14, 2026

Lyle W. Cayce

Clerk

Babu K. Thomas,

Plaintiff—Appellant,

versus

David Steiner, U.S. Postmaster; Todd Wallace

Blanche, Acting U.S. Attorney General; John G.E.

Marek, United States Attorney for the Southern District

of Texas,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:22-CV-3157

JUDGMENT

20a

Before JONES, RICHMAN, and SOUTHWICK, Circuit

Judges.

This cause was considered on the record on appeal

and the briefs on file.

IT IS ORDERED and ADJUDGED that the

district court's grant of summary judgment to the

defendants, denial of Thomas' s motion for

reconsideration, and assessment of bill of costs are

AFFIRMED.

IT IS FURTHER ORDERED that Appellant pay

to Appellees the costs on appeal to be taxed by the

Clerk of this Court.

The judgment or mandate of this court shall issue

7 days after the time to file a petition for rehearing

expires, or 7 days after entry of an order denying a

timely petition for panel rehearing, petition for

rehearing en bane, or motion for stay of mandate,

whichever is later. See FED. R. APP. P. 41(B). The

court may shorten or extend the time by order. See

5TH CIR. R. 411.O.P.

21a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

[DATE STAMP]

United States District Court

Southern District of Texas

ENTERED

May 20, 2025

Nathan Ochsner, Clerk

BABU THOMAS,

Plaintiff,

LOUIS DEJOY, POSTMASTER GENERAL UNITED

STATES POSTAL SERVICE,

Defendant.

CIVIL ACTION NO.4:22cv3157

ORDER ADOPTING MAGISTRATE JUDGE’S

MEMORANDUM AND RECOMMENDATION

Having reviewed the Magistrate Judge's

Memorandum and Recommendation dated May 1,

2025 (Dkt. 73) and the objections thereto (Dkt. 74), the

court is of the opinion that said Memorandum and

Recommendation should be adopted by this court.

22a

It is therefore ORDERED that the Magistrate

Judge's Memorandum and Recommendation is hereby

ADOPTED by this court.

It is further ORDERED that Plaintiff Babu

Thomas' Objections to the Bill of Costs (Dkt. 70) are

OVERRULED and the Motion for Post-Judgment

Relief and Reconsideration (Dkt. 69) are DENIED.

SIGNED at Houston, Texas this 20th day of May,

2025.

/s/

SIM LAKE

SENIOR UNITED STATES DISTRICT JUDGE

23a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

[DATE STAMP]

United States District Court

Southern District of Texas

ENTERED

May 01, 2025

Nathan Ochsner, Clerk

BABU THOMAS,

Plaintiff,

LOUIS DEJOY, POSTMASTER GENERAL UNITED

STATES POSTAL SERVICE,

Defendant.

CIVIL ACTION NO.4:22cv3157

MEMORANDUM AND RECOMMENDATION

Before the Court are Plaintiffs Motion for Post

Judgment Relief and Reconsideration (ECF 69) and

Plaintiffs Opposition to Defendant’s Bill of Costs (ECF

24a

70).1 The Court recommends that the Motion be denied

and the objections be overruled.

Procedural Background

Plaintiff, proceeding pro se, filed a Complaint for

Employment Discrimination on September 15, 2022

alleging race, age, and disability discrimination and

retaliation by his former employer, the United States

Postal Service (USPS). ECF1. After ruling on a motion

to dismiss (ECF 13; ECF 19), granting leave to file an

amended Complaint (ECF 18), ordering mediation

(ECF 37; ECF 43), and conducting at least one

discovery conference (ECF 46; ECF 49), the Court

issued a Memorandum and Recommendation on

February 12, 2025 recommending that Defendant’s

Motion for Summary Judgment be granted and

Plaintiffs claims be dismissed with prejudice. ECF 54.

Plaintiff filed Objections. ECF 56. The District Judge

reviewed the Memorandum and Recommendation and

Objections and adopted the recommendations in full.

ECF 64. On March 14, 2025, the Court entered a Final

Judgment dismissing Plaintiffs claims with prejudice

and taxing costs against Plaintiff. ECF 65.

II.

Defendant’s Bill of Costs

In accordance with Local Rule of the Southern

District of Texas 54.2, Defendant filed a Bill of Costs

1 The District Judge referred this case to the undersigned

Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), the

Cost and Delay Reduction Plan under the Civil Justice Reform

Act, and Federal Rule of Civil Procedure 72. ECF 7.

25a

on March 21, 2025, less than fourteen days after entry

of judgment. ECF 68. Plaintiff did not object to the Bill

of Costs within 7 days of filing as required by Rule

54.2. Therefore, on April 7, 2025, the Clerk taxed costs

in the amount of $1,367.00. Plaintiff filed objections to

the Bill of Costs only after they were taxed, on April

II, 2025. ECF 70. Plaintiffs objections are not only

late but are without merit because Defendant sought

costs only for Plaintiffs deposition. ECF 68. The Fifth

Circuit has clearly ruled that it is not necessary for a

deposition to have been entered into evidence to be

deemed “necessarily obtained for use in the case.” U.S.

ex rel. Long v. GSDMIdea City, L.L.C., 807 F.3d 125,

130 (5th Cir. 2015). The district court has discretion to

make a factual determination whether a deposition

was necessarily obtained for use in the case. Id.

Plaintiffs deposition was clearly obtained for use in

this case even though Defendant did not cite the

deposition in its summary judgment briefing. The

Court therefore recommends that Plaintiffs objections

to the taxation of costs be overruled.

III. Plaintiffs Motion for Post-Judgment Relief

and Reconsideration

On March 28, 2025, 14 days after entry of the

Final Judgment, Plaintiff filed his Motion for Post

Judgment Relief and Reconsideration. ECF 69.

Because the Motion was filed less than 28 days after

entry of judgment, the Court considers it as a Motion

to Alter or Amend a Judgment pursuant to Federal

Rule of Civil Procedure 59(e). See St. Paul Mercury Ins.

Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir.

1997) (construing motion to reconsider a dismissal

26a

order as a motion to alter or amend a judgment under

Rule 59(e)); Garza v. Allied Prop, and Cas. Ins. Co.,

Civil Action No. SA:16-cv-926, 2017 WL 8181015 *1

(W.D. Tex. Nov. 28, 2017) (citations omitted) (holding

that a motion to reconsider a dispositive ruling filed

within 21 days of judgment is considered under Rule

59(e)). A rule 59(e) motion calls into question the

correctness of a judgment. Templet v. Hydrochem, Inc.,

367 F.3d 473, 478 (5th Cir. 2004).

Under Rule 59(e), amending a judgment is

appropriate when (1) there has been a change in

intervening law; (2) the movant presents newly

discovered evidence that was previously unavailable;

or (3) it is necessary to correct a manifest error of law

or fact. Garza, 2017 WL 8181015 at *1. It is not a

proper vehicle for rehashing arguments. Id.

“Reconsideration of a judgment after its entry is an

extraordinary remedy that should be used sparingly.”

Budri v. FirstFleet, Inc., 860 F. App'x 306, 308 (5th

Cir. 2021) (quoting Templet, 367 F.3d at 479). A Rule

59(e) motion “must clearly establish either a manifest

error of law or fact or must present newly discovered

evidence and cannot be used to raise arguments which

could, and should, have been made before the

judgment issued.” Schiller v. Physicians Res. Group,

Inc., 342 F.3d 563, 567 (5th Cir. 2003) (citations

omitted).

Plaintiff fails to meet his burden to show a

manifest error of law or fact or to present newly

discovered evidence. See ECF 69; ECF 72. Plaintiffs

Motion establishes only that Plaintiff disagrees with

the Court’s ruling. Plaintiff was afforded a full and fair

27a

opportunity to brief the issues on summary judgment

and to object to the Court’s Memorandum and

Recommendation. ECF 42; ECF 47; ECF 51; ECF 53;

ECF 56. Therefore, the Court recommends that

Plaintiffs Motion for Post-Judgment Relief and

Reconsideration be denied.

IV. Conclusion and Recommendations

For the reasons discussed above the Court

RECOMMENDS that Plaintiffs objections to the Bill

of Costs be OVERRULED and Plaintiffs Motion for

Post- Judgment Relief and Reconsideration be

DENIED.

The Clerk of the Court shall send copies of the

memorandum and recommendation to the respective

parties, who will then have fourteen days to file

written objections, pursuant to 28 U.S.C. §

636(b)(1)(C). Failure to file written objections within

the time period provided will bar an aggrieved party

from attacking the factual findings and legal

conclusions on appeal. Douglass v. United Servs. Auto.

Ass,n, 79 F.3d 1415,1428-29 (5th Cir. 1996) (enbanc),

superseded by statute on other grounds.

Signed on May 01, 2025, at Houston, Texas.

/s/

ChristinaA. Bryan

United States Magistrate Judge

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APPENDIX E

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

[DATE STAMP]

United States District Court

Southern District of Texas

ENTERED

February 12, 2025

Nathan Ochsner, Clerk

BABU K. THOMAS,

Plaintiff,

CIVIL ACTION NO. 4:22-CV-3157

LOUIS DEJOY, POSTMASTER GENERAL,

UNITED STATES POSTAL SERVICE,

Defendant.

MEMORANDUM AND RECOMMENDATION

Plaintiff, proceeding pro se, filed a Complaint for

Employment Discrimination alleging race, age, and

disability discrimination and retaliation by his former

employer, the United States Postal Service (USPS).

ECF 1. The case is before the Court on Defendant’s

Motion for Summary Judgment, which has been fully

29a

briefed and is ripe for determination.1 See ECF 39:

ECF 47. The Court recommends that Defendant’s

Motion for Summary Judgment be GRANTED.

Background

Plaintiff, an Asian-American man born in 1963,

began working for the USPS in 2000 and was

terminated in February 2018. The history of Plaintiffs

disputes with USPS go back to at least 2007, when

USPS began documenting problems with Plaintiffs

work performance. See ECF 39-3; ECF 47 at 4.

Plaintiffs USPS employment history includes

Plaintiffs July 2010 request for a medical

accommodation and subsequent failure to abide by the

conditions of the accommodation. ECF 39-3 at 16-17.

It also includes multiple EEC investigations, including

one instituted in June 2014 which Plaintiff alleges he

was unable to pursue due to health issues. ECF 47 at

10; ECF 47-2 at 8-12.

The events pertinent to this case began on August

13, 2014, the last day Plaintiff went to work. On

September 6,2014, USPS sent Plaintiff a letter stating

that he had been absent since August 13, 2014, failed

to keep his supervisor informed of his status, and

failed to provide documentation to support his inability

to work. ECF 39-4 at 2. A January 24, 2015 letter

1 The District Judge referred this case to the undersigned

Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), the

Cost and Delay Reduction Plan under the Civil Justice Reform

Act, and Federal Rule of Civil Procedure 72. ECF 7.

30a

notified Plaintiff that he was on Leave Without Pay

(LWOP) status and had been since August 13, 2014.

ECF 47-1 at 14. An August 7, 2015 letter notified

Plaintiff that his health and insurance benefits were

terminated because he had been on LWOP status for

365 days. Id. at 15. The record includes several letters

from Plaintiff to USPS representatives between 2014

and 2017 asking to discuss reasonable

accommodations and other things, but none specify

exactly what accommodation he needs to return to

work and none include any supporting documentation.

ECF 47-3 at 2-12.

Plaintiff had been absent from work on LWOP

status for over three years when, on November 1,

2017, he was ordered to “provide acceptable evidence

of your inability to report [for work] from August 2014

to present” by November 10, 2017 or be declared

AWOL and possibly terminated. Id. at 3. USPS

conducted an investigative interview with Plaintiff on

January 12, 2018, at which he declined to provide any

documentation of his need to be absent from work

beginning in August 2014. ECF 39-1. USPS notified

Plaintiff by letter dated February 6, 2018 that his

employment was terminated effective March 23, 2018,

pending the results of a grievance procedure if he

chose to file one. Id.

Plaintiff filed a charge with the Equal

Employment Opportunity Commission (EEOC) on

April 20, 2018 asserting discrimination, harassment,

and retaliation based on race, age, and disability based

on USPS’s conduct beginning in December 2017. ECF

39-2. Plaintiff initiated this case on September 15,

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2022 and, with leave of Court, filed an Amended

Complaint on July 6, 2023. The Amended Complaint

alleges discrimination on the basis of race, age, and

disability as well as retaliation. ECF 18 at 2. Plaintiff

alleges he sought reasonable accommodations due to

his disabilities “several times” but USPS “refused to

address his request and placed him under Leave

without Pay for over three years and terminated him.”

Id. at 3. According to Plaintiff, he wanted to return to

work and the USPS would not let him. ECF 47 at 14.

According to USPS, Plaintiff never submitted required

documentation to support his absence from work after

August 13, 2024.

II.

Summary Judgment Standards

Summary judgment is appropriate if no genuine

issues of material fact exist, and the moving party is

entitled to judgment as a matter of law. FED. R. CIV.

P. 56(a). The party moving for summary judgment has

the initial burden to prove there are no genuine issues

of material fact for trial. Provident Life & Accident Ins.

Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). Dispute

about a material fact is “genuine” if the evidence could

lead a reasonable jury to find for the nonmoving party.

Hyatt v. Thomas, 843 F.3d 172, 177 (5th Cir. 2016).

“An issue is material if its resolution could affect the

outcome of the action.” Terrebonne Parish Sch. Bd. v.

Columbia Gulf Transmission Co., 290 F.3d 303, 310

(5th Cir. 2002). If the moving party meets its initial

burden, the nonmoving party must go beyond the

pleadings and must present evidence such as

affidavits, depositions, answers to interrogatories, and

admissions on file to show “specific facts showing that

32a

there is a genuine issue for trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986).

The court construes the evidence in the light most

favorable to the nonmoving party and draws all

reasonable inferences in that party’s favor. R.L. Inv.

Prop., LLC v. Hamm, 715 F.3d 145, 149 (5th Cir.

2013). In ruling on a motion for summary judgment

the Court does not “weigh evidence, assess credibility,

or determine the most reasonable inference to be

drawn from the evidence.” Honore v. Douglas, 833 F.2d

565, 567 (5th Cir. 1987). However, “[c]onclus[ory]

allegations and denials, speculation, improbable

inferences, unsubstantiated assertions, and legalistic

argumentation do not adequately substitute for

specific facts showing a genuine issue for trial.” U.S. ex

rel. Farmer v. City of Houston, 523 F.3d 333, 337 (5th

Cir. 2008) (citation omitted).

III. Analysis

Defendant moves to dismiss all of Plaintiffs

claims. The dispositive issues as to each claim are

addressed below.2

Disability Discrimination

Legal Standards

2 The Court has reviewed and considered all arguments and

issues raised by the parties, whether or not explicitly addressed

herein.

33a

The Rehabilitation Act provides the exclusive

remedy for federal employees alleging disability

discrimination in the workplace. 29 U.S.C. § 790; Dark

v. Potter, 293 F. App’x 254, 258 (5th Cir. 2008). To

establish disability discrimination under the

Rehabilitation Act, Plaintiff must show that: (1) he has

a disability; (2) he was qualified for his position; and

(3) he suffered an adverse employment action on

account of his disability. E.E.O.C. v. LHC Grp., Inc.,

773 F.3d 688, 695 (5th Cir. 2014) (citing Zenor v. El

Paso Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th

Cir. 1999)). The Rehabilitation Act and the ADA share

the same definition of “disability”: “[a] physical or

mental impairment that substantially limits one or

more of the major life activities of such individual^]”

29 C.F.R. § 1630.2(g); See Coleman v. Kijakazi, No. 2110399, 2023 WL 2660167, at *4 (5th Cir. Mar. 28,

2023) (noting that ADA standards apply to the

Rehabilitation Act, citing 29 U.S.C. § 794(d)). Major

life activities include things such as “caring for oneself,

performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working.” See

Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th

Cir. 1995) (citing 29 C.F.R. § 1630.2, which sets out a

non-exclusive list of major life activities).

To establish a case of disability discrimination

based on the USPS’s failure to make reasonable

accommodations, Plaintiff must show: “(1) he is a

qualified individual with a disability; (2) the disability

and its consequential limitations were known by the

covered entity; and (3) the entity failed to make

reasonable accommodations.” Smith v. Harris Cnty.,

Texas, 956 F.3d 311, 317 (5th Cir. 2020). The

34a

Rehabilitation Act provides a right to a reasonable

accommodation, not to the employee's preferred

accommodation. Griffin v. United Parcel Serv., Inc.,

661 F.3d 216, 224 (5th Cir. 2011) (discussing ADA,

quoting E.E.O.C. v. Agro Distrib., 555 F.3d 462, 471

(5th Cir.2009)).

Analysis

Defendant contends that Plaintiff has no evidence

that he is disabled within the meaning of the

Rehabilitation Act or that he was qualified for his

position, and that Plaintiff failed to engage in the

reasonable accommodation process. ECF 39 at 15-18.

Plaintiff has failed to create a

genuine issue of material fact

as to his disabled status.

Plaintiff’s Amended Complaint alleges that

Plaintiff was diagnosed with Diabetes Mellitus in 2005

and with Severe Major Depression in 2009. ECF 18 at

9. However, it is undisputed that he continued to work

after those diagnoses. See, e.g., ECF 39-1 at 2 (stating

Plaintiff was AWOL from his carrier assignment since

September 1, 2014); ECF 47-2 at 8 (complaining of a

hostile work environment in 2014). Plaintiffs

Amended Complaint conclusorily alleges that diabetes

“is a medical condition that affects the endocrine

function that substantially limits his many major life

activities” (ECF 18 at 3), but Plaintiff has presented no

evidence showing that diabetes or depression limit his

major life activities. See ECF 47. Plaintiffs allegations

in his Amended Complaint do not constitute evidence

35a

that will defeat a motion for summary judgment.

Celotex Corp., 477 U.S. at 324 (holding the nonmoving

party must go beyond the pleadings and must present

evidence such as affidavits, depositions, answers to

interrogatories, and admissions on file to show

“specific facts showing that there is a genuine issue for

trial.”). Further, a diagnosis of a condition is not

evidence of a disability within the meaning of the

Rehabilitation Act. See Dupre v. Harris Cnty. Hosp.

Dist., 8 F. Supp. 2d 908, 917 (S.D. Tex. 1998) (stating

“physical impairment, standing alone, is not

necessarily a disability as contemplated by the ADA,”

citing Dutcher, 53 F.3d at 726). In determining

whether an impairment is a qualifying disability, the

Court considers “(1) the nature and severity of the

impairment; (2) its duration or expected duration; and

(3) its permanent or expected permanent or long-term

impact.” Id. There is no medical documentation or

other evidence in the record, as an exhibit to Plaintiffs

Amended Complaint (ECF 18) or to Plaintiffs

Summary Judgment Response (ECF 47), that supports

a finding that his diabetes or depression substantially

limited a major life activity.

Plaintiffs allegations that USPS representatives

intentionally destroyed his records to avoid providing

him reasonable accommodation present nothing more

than “speculation, improbable inferences, [and]

unsubstantiated assertions” that “do not adequately

substitute for specific facts showing a genuine issue for

trial.” U.S. ex rel. Farmer v. City of Houston, 523 F.3d

333, 337 (5th Cir. 2008) (citation omitted). Therefore,

Plaintiff fails to create a genuine issue of material fact

on the first element of a claim under the

36a

Rehabilitation Act, i.e., that he is a person with a

disability. For this reason, Defendant is entitled to

summary judgment on all of Plaintiffs Rehabilitation

Act claims.

Plaintiff has failed to create to

a genuine issue of material

fact on his failure to

accommodate claim.

Plaintiffs failure to prove his status as disabled

under the Rehabilitation Act is dispositive of his

discrimination and failure to accommodate claims. In

addition or in the alternative, Plaintiffs failure to

accommodate claim fails because he did not engage in

the interactive process with the USPS regarding an

appropriate accommodation. It is the employee’s

responsibility to inform his employer of his disability

and request an accommodation. Griffin, 661 F.3d at

224 (citing E.E.O.C. v. Chevron Phillips Chem. Co.,

570 F.3d 606, 621 (5th Cir.2009)). When a qualified

employee with a disability requests a reasonable

accommodation, “the employer and employee should

engage in flexible, interactive discussions to determine

the appropriate accommodation.” Id. (citing E.E.O.C.

v. Agro Distrib., 555 F.3d 462, 471 (5th Cir.2009)).

However, if the employee is responsible for the

breakdown of the “informal interactive process” an

employer cannot be found to have violated the law. Id.

(citing Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736

(5th Cir.1999)).

Plaintiff argues that he submitted medical

documentation and requested accommodation for his

37a

disability in 2014, 2015, 2016, and 2017, but USPS

refused to consider his requests for accommodations.

ECF 47 at 10-11. Plaintiffs position is not supported

by the record. The record reflects that Plaintiffs

supervisor approved Plaintiffs 2010 request to be

restricted to working 8 hours per day. ECF 39-3 at 16.

However, Plaintiff routinely requested overtime

because he did not complete his route in the allotted 8

hours. Id. There is no evidence in the record that

Plaintiff, at any time after his initial 2010 request,

submitted medical documentation to support making

his accommodation permanent or requesting new

accommodations. See 39-1 at 2; 39-3 at 19-21; ECF 394 at 2; ECF 39-5 at 2-5; ECF 47-1 at 2-12 (Plaintiff

letters with no attached documentation); ECF 47-3 at

19-20 (Plaintiff Grievance stating he submitted

medical documentation to Artis Hughes in 2014 and

2015, but not attaching copies and stating that his

previous submissions were lost or destroyed); ECF 474 at 14-15 (2017 statements from Hughes and Eris

Rodriguez stating they received no documentation

from Plaintiff during their tenure). In any event, all of

the accommodation request letters referenced by

Plaintiff were sent after he had been absent without

authorization and placed on LWOP status. There is no

evidence in the record that Plaintiff submitted medical

documentation to excuse his total absence from work

after August 13, 2024. Defendant’s Motion for

Summary Judgment on Plaintiffs Rehabilitation Act

claims should be granted for this reason.

Race Discrimination

Legal Standards

38a

Plaintiffs Title VII race discrimination case is

analyzed under the familiar McDonnell-Douglas

burden-shifting framework. See Rahman u. Exxon

Mobil Corp., 56 F.4th 1041, 1044 (5th Cir. 2023)

(absent direct evidence, discrimination claims must

satisfy the McDonnell-Douglas burden-shifting

framework). Under this framework, Plaintiff must

produce evidence on each of the following elements of

a prima facie case of race discrimination: that Plaintiff

“(1) is a member of a protected group; (2) was qualified

for the position at issue; (3) was discharged or suffered

some adverse employment action by the employer; and

(4) was replaced by someone outside his protected

group or was treated less favorably than other

similarly situated employees outside the protected

group.” Id. at 1044-45 (citingMorris v. Town oflndep.,

827 F.3d 396,400-01 (5th Cir. 2016)). The Fifth Circuit

interprets the fourth element narrowly, holding that

other employees are similarly situated only when they

“(1) held the same job or responsibilities, (2) shared the

same supervisor or had their employment status

determined by the same person, and (3) have

essentially comparable violation histories.” West v. City

of Houston, Texas, 960 F.3d 736, 740 (5th Cir. 2020)

(citation omitted).

Analysis

Plaintiff alleges that he is Asian-American but

was perceived by some at work as Iranian-Muslim.

ECF 47 at 17. Assuming the veracity of this allegation,

Plaintiff satisfied the requirement to show he is a

member of a protected class. Nonetheless, his race

discrimination claim fails because he has presented no

39a

evidence to create a genuine issue of fact on the fourth

element of the claim. Plaintiff names five comparators

in his Response that he alleges are not his race and

who were treated more favorably. Id. However, at this

stage of the case Plaintiff cannot rely on mere

allegations. Two of the named comparators, Dianne

Bratton and Charles Mayes, are identified on an EEO

document, presumably prepared by Plaintiff, stamped

“Received March 20, 2018.” ECF 47-2 at 7. But that

document only identifies the individual’s gender and

race and alleges they received some sort of

accommodation. Id. Plaintiff has presented no evidence

regarding the named comparators’ jobs,

responsibilities, supervisors, or violation histories.

Therefore, Defendant is entitled to summary judgment

on Plaintiff s race discrimination claim.

Age Discrimination

Legal Standards

In order to plead a prima facie case of age

discrimination, Plaintiff must plead that (1) he was

discharged, (2) he was qualified for the position, (3) he

was within the protected class when he was

discharged, and (4) he was “either i) replaced by

someone outside the protected class, ii) replaced by

someone younger, or iii) otherwise discharged because

of his age. Allen v. United States Postal Serv., 63 F.4th

292, 301 (5th Cir. 2023); see also Berquist v.

Washington Mut. Bank, 500 F.3d 344, 349 (5th Cir.

2007) (setting forth same elements). The protected

class under the Age Discrimination in Employment Act

includes individuals at least 40 years old. 29 U.S.C. §§

40a

631(a), 633a(a).

Analysis

Plaintiff alleges he was 55 years old at the time of

his termination. ECF 47 at 17. Assuming the veracity

of this allegation, Plaintiff was within the class

protected by the Age Discrimination in Employment

Act. Nonetheless, his age discrimination claim fails

because he has presented no evidence to create a

genuine issue of fact on the fourth element of his age

discrimination claim. Plaintiff makes the unsupported

allegation that “his carrier route was given to much

younger part-time and casual employees,” id., but he

has presented no evidence to support this conclusory

allegation. Defendant is entitled to summary judgment

on Plaintiffs age discrimination claim.

Retaliation

Legal Standards

The elements of a prima facie case for retaliation

under anti-discrimination statutes are that Plaintiff:

(1) engaged in a protected activity; (2) was subjected to

an adverse employment action; and (3) a causal link

exists between the protected activity and the adverse

employment action. See Davis v. Dallas Area Rapid

Transit, 383 F.3d 309, 319 (5th Cir. 2004) (stating

elements of retaliation under Title VII and § 1981);

Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298, 304 (5th

Cir. 2020) (stating elements of retaliation under ADA);

Heggemeier v. Caldwell Cty., Texas, 826 F.3d 861, 869

(5th Cir. 2016) (stating elements under ADEA). In the

41a

retaliation context, an adverse employment action is

one that is “harmful to the point that [it] could well

dissuade a reasonable worker from making or

supporting a charge of discrimination.” See Porter v.

Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810

F.3d 940, 945-46 (5th Cir. 2015) (noting that that

adverse employment action standard for retaliation

claims is less demanding than an ultimate

employment decision standard for discrimination

claims) (quoting Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 57 (2006)). To meet his ultimate

burden on the causation element, Plaintiff must prove

“that the adverse employment action taken against the

plaintiff would not have occurred ‘but for’ h[is]

protected conduct.” Septimus v. Univ, of Houston, 399

F.3d 601, 608 (5th Cir. 2005).

Analysis

Plaintiff contends that he engaged in the

protected activities of filing “EEOC complaints, NLRB

charges, Union Grievances and actions, OSHA

reporting safety violations, Congressional Complaints,

Whistle blower reports and Reasonable

Accommodation Requests.” ECF 47 at 21. All of this

alleged protected activity took place long before his

termination in 2018. See ECF 47-1 at 2-12 (EEO

Investigation Reports of claims filed November 1,

2010, July 20, 2011, October 3, 2012, October 7, 2013,

and June 21, 2014). There is no evidence in the record

from which a jury could reasonably infer a causal

connection between his protected activity and his

termination that shows but for his protected activity

Plaintiff would not have been terminated. Therefore,

42a

Defendant’s is entitled to summary judgment on

Plaintiffs retaliation claims.

Hostile Work Environment

Legal Standards

A successful claim for a hostile work environment

based on race, age, or disability requires proof that

Plaintiff: (1) belongs to a protected group; (2) was

subjected to unwelcome harassment; (3) the

harassment complained of was based on race, age, or

disability; (4) the harassment complained of affected a

term, condition, or privilege of employment; (5) the

employer knew or should have known of the

harassment in question and failed to take prompt

remedial action. See Ramsey v. Henderson, 286 F.3d

264, 268 (5th Cir. 2002) (stating the elements of a

hostile work environment claim based on race);

Thompson v. Microsoft Corp., 2 F.4th 460, 471 (5th Cir.

2021) (stating the elements of a hostile work

environment claim under the ADA); Dediol v. Best

Chevrolet, Inc., 655 F.3d 435, 441 (5th Cir. 2011)

(recognizing a claim under the ADEA for age-based

hostile work environment with substantially the same

elements as above). To be actionable, alleged

harassment must go beyond “simple teasing, offhand

comments, and isolated incidents.” Johnson v.

Halstead, 916 F.3d 410, 418 (5th Cir. 2019) (citing

Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998)).

Analysis

43a

Plaintiff alleges that he was subjected to a hostile

work environment based on his race, age, disability,

and in retaliation for reporting behavior in the

workplace. ECF 47 at 22. Plaintiff was instructed in

the Court’s Memorandum and Recommendation

granting his leave to replead his claims “that he must

be able to plead and prove harassment that is

‘sufficiently pervasive or severe to alter the conditions

of employment an create an abusive working

environment.’ Thompson v. Microsoft Corp., 2 F.4th

460, 471 (5th Cir. 2021).” ECF 13 at 13. Plaintiff was

further cautioned that “he must be able to allege with

factual support that the alleged harassment was due

to his membership in a protected group, and that his

employer knew about the harassment and did nothing

to stop it.” Id. Plaintiff s Summary Judgment Response

lists several incidents without identifying the date of

the incident or the perpetrators. ECF 47 at 23-24. As

evidence of harassment, and his employer’s knowledge

of harassment, Plaintiff cites letters he wrote to Artis

Hughes, Eric Rodriguez, and YulMuluson in 2014. Id.',

ECF 47-4 at 2-6. Assuming Plaintiff was harassed,

none of his evidence indicates the harassment was

because of his race, age, or disability or due to prior

protected activity. Further, Plaintiff has presented no

evidence of the specific dates on which the alleged

harassment occurred that would satisfy the frequency

component of severe or pervasive harassment

standards. Further, Plaintiff has presented no

evidence that supports a finding of severe or pervasive

harassment under Fifth Circuit Standards because it

did not “after a term or condition of his employment.”

Moreover, even if Plaintiff suffered severe or pervasive

harassment based on his race, age, disability, or

44a

protected activity, all f the identified harassment

occurred prior to August 13, 2014. It is undisputed

that August 13, 2014 is the last day Plaintiff was at

work. Plaintiff was not terminated until 2018 and the

2018 EEO Complaint underlying this case alleged only

harassment from December 2017 forward. Plaintiff has

presented no evidence of actionable harassment and

Defendant’s Motion to Summary Judgment on his

hostile work environment claim should be granted.

IV. Conclusion and Recommendation

For the reasons set forth above, the Court

recommends that Defendant's Motion for Summary

Judgment be GRANTED and Plaintiffs claims be

DISMISSED WITH PREJUDICE.

The Clerk of the Court shall send copies of the

memorandum and recommendation to the respective

parties, who will then have fourteen days to file

written objections, pursuant to 28 U.S.C. § 636(b)(1)(C).

Failure to file written objections within the time period

provided will bar an aggrieved party from attacking

the factual findings and legal conclusions on appeal.

Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415,

1428-29 (5th Cir. 1996) (en bane), superseded by

statute on other grounds.

Signed on February 12, 2025, at Houston, Texas.

/s/

Christina A. Bryan

United States Magistrate Judge

45a

Additional material

■ |

•

ft fie

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.