Petition for Writ of Certiorari — Osahar v. Potter (No. 08-382)

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08-382 JUL 18 2008

OFFICE OF THE CLERK

No. Wiliam K. Suter, Clerk

In THE

Supreme Court of the United States

OMAR R. OSAHAR,

Petitioner,

POSTMASTER GENERAL OF U.S.POSTAL

SERVICE, UNITED STATES OF AMERICA,

ATTORNEY GENERAL,

Respondent.

On Petition For A Writ Of Certiorari

From The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

OMAR OSAHAR, Pro Se

10941 S.W. 143 Terrace

Richmond Heights, Florida 33176-6554

305-253-0204

September 15, 2008

Petitioner

QUESTIONS PRESENTED

1. Whether the opinion of Court of Appeals for the

11 Circuit in this case as stated in Appeal # 06- ~

15613, that there is no issue of genuine material fact

is in direct conflict with Trans World Airlines, Inc. v.

Thurston, Trans World Airlines, Inc. v. Thurston,

469 U.S. 111, 105 S-CE. 613, 83 L.Ed 2d 523, 525

(1985); Hishon v King & Spaiding, 467 US 69, 81 L

Ed 2d 59, 104 S Ct 2229 (1984) and Civil Rights § 78.

2. Whether the opinion of Court of Appeals for the

11% Circuit in this case as stated in Appeal # 06-

15613, that the employees-in petitioner case are not

“similarly situated employees” is in direct conflict

with § 1620.18 of 29 CFR Ch. XIV which States in §

1620.18 (a): ““similar working conditions”

encompasses two subfactors: “surroundings” and

“nazards.”” and in (b) “Determining similarity of

working conditions. Generally, employees

performing jobs requiring equal skill, effort, and

responsibility are likely to be performing them under

similar working conditions. ” §1620.14 -§1620.18

which holds that The Four Statutory Elements of

Equality are (1) Skill, (2) Effort, (3) Responsibility

and (4) Working Conditions.

3. Whether the opinion of Court of Appeals for the

11% Circuit in this case as stated in Appeal # 06-

15613, is in direct conflict with the 2" Circuit and

6" Circuit which uses the test of “ali material -

respects” to compare similarly situated employees in

Title VII cases. (See Graham v. Long Island Rail

Road 230 F.3d 34 (2™ Cir. 2000), is in conflict with

the District Court's “employees are similarity

situated in all relevant respects "". (Also see

pages 37-38 of DE 158 of Case 1:04-CV-22267).

4. Whether the opinion of Court of Appeals for the

11* Circuit in this case as stated in Appeal # 06-

15613, is in direct conflict with the 2° Circuit and

6% Circuit which holds: “whether two employees are

similarly situated....presents a question of fact for

the jury.” (See Graham v. Long Itsland-Rail Road 230

F.3d 34 (29 Cir. 2000).

5. Whether the opinion of Court of Appeais for the

11% Circuit in this case as stated in Appeal # 06-

15613, is in direct conflict with “Notice Interpreting

Nondiscrimination Requirements of Executive Order

11246 With Respect to Systemic Compensation

Discrimination, 69 Fed. Reg 67246 (November 16,

2004)” which states: “This standard defines

“similarly situated” employees as those that are

“similar with respect to the work they perform, their

responsibility level, and the skills and qualifications

involved in their positions.” [67251]”.

6. Whether the opinion on adverse action and/or

retaliation by the District Court on page 27 of DE #

158 that “ In Burlington Industries, Inc. v. Ellerth,

524 U.S. 742, 760-61 (1998), a Title Vil sex

discrimination case, the Supreme Court defined an

adverse employment action as a significant change

in employment status, such

as hiring, firing, failing to promote reassignment

with significantly different responsibilities, or a

decision causing a significant change in benefits—an

action which in most cases inflicts direct economic

harm.”. And the Court of Appeals for the 11 Circuit

in this case as stated as stated in Appeal #

06-15613, is in direct conflict with Burlington

Northern & Santa Fe Ry. v. White, _ U.S.__, 126

S.Ct. 24005 (2006) and Title Vil (42 USCS § 2000e-2

(d)).

7. Whether the petitioner was denied Equal

protection of the law pursuant to Fifth Amendment

of Constitution in the application of seniority in the

denial of three training courses as stated in the

record of this case.

8. Does the petitioner have a “property” interest in

seniority, as used in the selection for training

process of Article 38.6.A.1 of the Collective

Bargaining Agreement between the APWU and the

USPS for Electronic Technicians Level 11

safeguarded by procedural due process in the

protection afforded him by Article 38.3.J, Seniority

for Breaking Ties and Article 38.3.B

Coverage states “This seniority Section applies to all

regular work force Maintenance Craft employee

when it is necessary for filling vacant assignment

and for other purposes.” pursuant to The Equal

protection of the law clause of the Fifth Amendment

of the Constitution.

9. Whether the opinion of Court of Appeals for the

11% Circuit in this case as stated in Appeal # 06-

15613, that “Osahar may not maintain any

constitutional tort action in connection with his

employment discrimination claims” is in direct

conflict with the Equal Protection of the Law Clause

of the 5*° amendment.

16. Whether the reasoning of the opinion of Court of

Appeals for the 11 Circuit in this case as stated in

Appeal # 06-15613, dismissal pursuant to FRCP 56

for summary judgment in favor of the USPS, is in

direct conflict with the Second, Fourth, Fifth

Seventh and Eighth Circuits as held in Gallo v

Prudential Residential Servs., Ltd. Partnership

(1994, CA2 NY) 22 F3d 1219, 64 BNA FEP Cas 950,

64 CCH EPD ¥ 42998[courts should be reluctant to

grant summary judgment in cases alleging

employment discrimination, when intent of employer

is at issue]; Rosen v Thornburgh (1991, CA2 NY) 928

F2d 528, 55 BNA FEP Cas 580, 56 CCH EPD 4

40633 [summary judgment is generally

inappropriate in Title VI| cases where defendant's

state of mind and intent are at issue].

11. Whether the reasoning of the opinion of Court of

Appeals for the 11" Circuit in this case as stated in

Appeal # 06-15613, in their determination that there

is no issue of genuine material fact by denying the

petitioner three training courses and overtime is in

direct conflict with Holified v. Reno, 115 F.3d 1555,

1561 (11% Cir. 1997) and FRCP Rule 56.

12. Whether the reasoning of the opinion of Court of

Appeals for the 11** Circuit in this case as stated in

Appeal # 06-15613, in their determination not to

consider Appellant's disparate impact claim is in

direct conflict with Holified v. Reno, 115 F.3d 1555,

1561 (11 Cir. 1997); McDonnell Douglas Corp. v.

Green, 411 U.S.792, 93 S. Ct. 1817 (1973) and

FRCP Rule 56.

13. Whether the 11 Circuit Courts decision

amounted to an endorsement of an impermissible

collateral attack on the courts previous judgment in

Case No. 84-1782-CIV-ARONOVITZ and Case No.

95-753-CIV-LENARD .

14. Whether the reasoning of the opinion of Court of

Appeals for the 11 Circuit in this case as stated in

Appeal # 06-15613, is in direct conflict the Third

Circuit which held that the nonmoving party must

either present specific facts showing there is a

genuine issue of material fact for trial or, if there is

no genuine issue of material fact, show that there is

an unresolved issue of jaw that precludes entry of

judgment for the movant pursuant to FRCP 56(c)

(See United States v One Parcel of Property Located

at Shelly’s Riverside Heights Lot X (1994, MD Pa)

859 F Supp 150)).

15 . Whether the reasoning of the opinion of Court of

Appeals for the 11% Circuit in this case as stated in

Appeal # 06-15613, is in direct conflict that

McDonnell Douglas test is inapplicable where the

plaintiff presents direct evidence of discrimination as

cited in Trans World Airlines, Inc. v. Thurston,

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111,

105 S.Ct. 613, 83 L.Ed 2d 528 (1985).

vii

PARTIES TO THE PROCEEDINNGS &

CORPORATE DISCLOSURE STATEMENT

The parties to the proceeding in the court whose

Judgment is sought to be reviewed are listed in the

Caption.

vill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED. ......:scccicsnee i

PARTIES TO THE PROCEEDING &

CORPORATE DISCLOSURE

Ss TES en Gadiss biti cede vii

FICE. OF GGT OE Se visi vessiscrecsovens viii

TPR Te OF PAT Te Pie occa cisshedvecavavenks x

PETITION FOR WRIT OF

I eee sceeen oes 1

OPINIONS AND ORDERS BELOW............... 1

SR tO Bie ieee ee 1

STATURORY AND CONSTITUTIONAL

PROV ISHES INVOLVED 5.5 sisis cisivecsas dacee 2

STATEMENY GF CASE iis ici vikivensdicniccccen 2

REASONS FOR GRANTING THE

RLS... Se ren ea eee 25

PU ME MPIUUONDOD® . ....cccccvsecvccvcsecevens

ied evynecksesevsevevvessesese

didtwivas vavvescetineveueresxvese

Te er eee

EER ER eee a ea

Ne tly odeees

Equal Protection of the Fifth and

Fourteen Amendment-Rights of Persons

Due Process, Substantive Due

Process, Discrimination....................

2 4g ag hee. |) ee

Collateral Attack.............. ag aes ycaak

RENE TETMIIIGE. occ cs csccsccevescaversess

i a RRS ne ee

TABLE OF AUTHORITIES

Table of Citations

Cases Page

1. Adarand Constructors, Inc., Petitioner

v. Federico Pena, Secretary of

2. Board of Regents v. Roth, 408 U.S. 564,

OF S$.Ci 2761: SIL.EG. 5.3... 05055:. 3, 18, 20- 23

3. Burlington Industries, Inc. v.

Ellerth 524 U.S, 742, 760-61()1998 ...... ii, 13

4. Burlington Northern & Santa Fe Ry.

v. White, _U.S.__, 126 S.Ct. 24005

GE, ebniendeseseaudidbua vies seuniiaaneetans iii, 14

5. California Brewers Ass'n v. Bryant, 444

U.S. 598, 100 S.Ct. 814, 63 L. Ed. 2d 55

(1980)

6. Coriey v. Jackson Police Dept., 566 F.2d

PE eG TE sits eh tu sauce ccdaveinesunsoedenn 18

7. Cresent City Live-Stock Co. v. Butchers’

Union Slaughter-House Co., 120 US.

141, 7 S.Ct. 472, 30'L:E0d: 61401867) | ......... 23

8. Crestmont Cadillac Corp. v. General

Motors Corp., Cuyahoga App. No. 83000,

10.

11.

12.

T3.

14.

15.

16.

IEE > Ni ccietumsdderduawengidenanserstens 19

Davis v. Town of Lake, Florida

245 F.3d 1232, 1242-43(11™ Cir.) ....... 12

Epstein v. Secretary of Treasury,

739 F. 20 274 (7™ Cir 1964).......ccccicsveceres 10

E.g., Williams v. Montgomery,742_ .

FO Se Cir. FIDE) © viccsevicccscccevsce 18, 19

Embry v. Palmer, 107 U.S. (17 Otto)

S, 2, 5:G%: 25, 27 L.Ed. S46 (1662) .........: 23

Fawn lake Apts. V. Cuyahoga

Cty. Bd. Of Revisio (1999), 85 Ohio

St.3d 609, 611, 710 N.E.2d 681 .............. 24

Franks v. Bowman transportation

Co. 424 U.S. 747, 96 S.Ct. 1251,

i BE | re 8

Gallo v. Prudentiai Residential

Servs., Ltd. Partnership

(1994, CA2 NY) 22 F3d 1219, 64

BNA FEP Cas 950, 64 CCH

Fe NE as chckce nics evceieinercdcaveven iv, 19, 20

Graham v. Long Island Rail Road

roc OM 8 EY all Se > |: SR ii, 11

17. Hishon v King & Spalding, 467

US 69, 81 L Ed 2d 59, 104

Ae TD, ions ds cecedesccccesssceveses i, 4,

18. Hodgson v. Behrens Drug Co.,

i ge Re BL Oe es |S. | 10

19. Hodgson v. Fairmont Supply Co.,

454 F.2d 490 (4° Cir. 1972) ....... 10

20.. Holifield v. Reno, 115 F.3d 1155,

PEE EEE PEPE. © cibdacdcrecvcvesedece iv, v, 18

21. Hutcherson v. Progressive Corp.,

984 F.2d 1152, 1155, (11 Cir. 1993) ..... 18

22. Kingsborough, 56 Ohio St. at 458,

oh lake sd Chis epee nsierdasmensore<ce 24

23. knight v. Baptist Hosp. of Miami

Inc., 330 F.3d 1313, 1316

bal RR in ae ae ane 9

24. Ledbetter v. Goodyear Tire & Rubber

A oe ge RE i.) 16, 17

25. Lee v. Washington County Bd. of Ed

GEO FB Fae 6 iis thier ic evedevesccccseess 5

26. Lochner v. New York 198 U:S. 45,

25 S. Ct. 539, 49 L. Ed. 937 (1905). ......... 21

28.

29.

30.

31.

32.

a3.

34.

36.

xiii

Loveridge v. Fred Meyer, Inc., 72

Wn.App. 720, 864 P.2d 417 (1993).... .. 23

McDonnell Douglas Corp. v. Green,

411 US. W392, 03S. Ct. 117 (1973)....... v, vi, 9,

Ohio Pyro, Inc. v. Ohio Dept. of

Commerce, 115 Ohio St.3d 375,

EOI bake svtercirescicseersecss 24

Quarles v. Philip Morris, Inc., 279

ge Me ORR: A) ee 8

Rosen v Thornburgh (1991, CA2 NY)

928 F2d 528, 55 BNA FEP Cas 580,

SG COOH CPE) BGS oo. ccc cciciccccceveces iv, 19

Shultz v. Wheaton Glass Co., 421

ie Ee Co gee 2.) Se 10

Slochower v. Board of Education, 350

US 551, 559, 100 L. Ed 692, 701,

pS Re Bee | en 25

Speiser v Randall, 357 US 513,

2. Ed 26 1460, 78S Ct 1332......... eee £0

Stoll v. Gottlieb, 305 U.S. 165,

59 S.Ct. 134, 83 L.Ed. 104 (1938)......... 23

Teamsters v. United States, 431 US 324,

358, N44, 52 L Ed 2d 396, 97 S Ct 1843

37. Thompson v. Sawyer, 678 F.2d 257

Ti Rirk Ss NUD os Faviiees er erdevcsihixdesviees 10

38. Trans World Airlines, Inc. v. Thurston,

469 U.S.111, 105 S.Ct. 613, 83

Le 20d $23 11965) ............. i, vi, 4, 5, 15, 23

39. Turlington v. Atlanta Gas Light Co. 135 F. 3d

1926, TASe 01. FO LTT Car. TORE)... ices ceccesesses 15

40. United States v. Virginia, 116 S. Ct.

eA IE 5 bins secs coe reese da bs sv eens ds 21

41. United States v One Parcel of

Property Located at Shelly's

Riverside Heights Lot X (1994,

Mi) Pa) Goo F Sue TS0)) ...2.9)........05. V

42. Weinberger v. Wiesenfeld, 420 ‘

OF. CO, Bay. Che seccscccesavccsccnsecesoss 21

Statues

. Article 2, 4, 5, 8,9, 12, 15, 19, 34, 38

of the Collective Bargaining

Agreement between the

American Postal Workers Union

and the United States

Postal Service —.....scsccsensnccccess iii, 3, 5-8

» ARS LINING... 066s cnn 24

. . Civil Rights Act of 1964. § 701 et

seq.; 4Z U.S.C. § 2000e, et seq ......... 8,10, 14

5 AE PF oi ce drawn canasintea seen i,2,4

. 29 CFR Ch. XIV (7-1-98 Edition)) .......... i, 10, 11

. § 1620.14 - §1620.18 (See 29 CFR

Ch. XIV (7-1-98 Edition) and

Rr I as sai as chs ees 2,43

. Federal Rules of Civil Procedure Rules

has ay Ne Eh dinner ae iv, Vv

. Fifth Amendment of the United States

Constitution, Equal Protection

ee EA se isa laGascedigincc ceeds emus 2

. Fourteenth Amendment of the United

States Constitution, Equal Protection

QUUE TE FOI 6 os dvescccacessiie 2, 20, 21

xvi

10.. 5TH AMENDMENT - RIGHTS OF

PERSONS Equal Protection, Due

Process, Substantive Due Process,

Discrimination

11. § 411, pages 146-150 in Employment

Discrimination Law by Mack A. Player,

Hornbook Series (1995))

12. Section 703(h) of Title Vil of

Civil Rights Act of 1964

13. Section 706(e) and 703(a) of the

Civil Rights Act of 1964

(42 U.S.C. 2000 e-5(e)(2))

14. 28 U.S.C § 1254, § 2403

15. Case No. 95-753-CIV-LENARD

16. Case No. 84-1782-CiV-ARONOVITZ

17. Case # 1:04-CV-22267

18. §§ 1981 and 1983; 39 [U.S.C.] Labor

Relations Act, Title Ill; § 301

PETITION FOR WRIT OF CERTIORARI

Petitioner, Omar R. Osahar, respectfully prays

that a writ of certiorari issue to review the

judgment of the Court of Appeals for the 11 Circuit

entered in this Case # G6-15613HH on January 15,

2008, [Not Publish]. The petition for rehearing filed

by the Appellant for case 06-15613-HH. (District

Case No. 04-22267) was denied on Aprii 21, 2008.

District Court ORDER GRANTING DEFENDANT'S

MOTION DISMISSAL ,FINAL JUDGMENT and

Report and Recommendation by Magistrate Judge.

OPINIONS AND ORDERS BELOW

The decision of the Court of Appeats[Appeals

Court decision was not publish] is set out at APP-1

to APP-45, of the appendix, affirming the District

Court ORDER GRANTING DEFENDANT'S

MOTION DISMISSAL APP. 48 to APP. 50 and

GRANTING FINAL JUDGMENT at APP.46 to

APP.47.Report and Recommendation by Magistrate

Judge set out at APP. 51to APP. 108. The Appeal

Court denial of rehearing on April 21, 2008 is set

forth at APP.109 to APP. 110 of the Appendix.

il. JURISDICTION

Jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1). 28 U.S.C. § 2403 (a) may be

applicable since constitutionality of an Act of

Congress may be at issue as it may deprive federal

employees of liberty and equal protection of the

law.

STATURORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

Title VII of the Civil Rights Act of 1964 as

Amended; 42 U.S.C. § 2000e, et seq, § 701 et

Seg., §§ 1981 and 1983; 39 [U.S.C.] Labor Relations

Act, Title lil; § 301, 29 [U.S.C.]§ 185; . § 1620.14 -

§1620.18 (See 29 CFR Ch. XIV (7-1-98 Edition) and

(1987 Edition)); Bivens v. Six Unknown Named

Agents of the Fed. Bureau of Narcotics, 403 U.S.

388, 91S. Ct. 1999 (1971); The 5% and 14%

Amendment of the Constitution of the United States

and Article 38.6.A.1 of the Collective Bargaining

Agreement between the American Postal Workers

Union and the United States

Postal Service.

STATEMENT OF CASE

This case concerns discrimination against

the petitioner by the denial of three training

courses that when posted did not require TMS

training and for lost of overtime to Petitioner Omar

Osahar, African-American, Electronic

Technicians Level 11, as a result of the USPS

not using seniority in the selection process by

doling out training in a discriminatory pattern and

arbitrary and capricious pattern.

(See DE 76 page 82-115 of Case# 1: 04-cv-22267).

The Collective Bargaining Agreement

between the USPS and the APWU (Contract)

(See DE 20 pages 11-29 of Case# 1: 04-cv-22267)

Article 38.3.B Coverage states:

“This seniority Section applies to all

reguiar work force Maintenance

Craft employee when it is necessary for

filling vacant assignment and for

other purposes.”.

The context of this case parallels that of Trans

World Airlines, Ine. v. Thurston, 469 U.S. 111, 105

S.Ct. 613, 83 L.Ed 2d 523 (1985), were the Court

held that not allowing the senior pilots to "bump"

downward to a flight engineer discriminated on the

basis of age pursuant to Title VII.

The petitioner contends that seniority is a

“property interest” of employment. This case

therefore, also parallels that of Board of Regents v.

Roth, 408 U.S. 564 were the Court held, that

“property interest protected by procedural due

process extend well beyond actual ownership of real

estate, chattels, or money”.

Petitioner, Omar R. Osahar (African-American)

contends denial of the three training courses and

overtime is a result of discrimination or

discriminatory impact and retaliation which the

petitioner claims is an adverse action which is an

issue of material fact The petition contends that

this action violates Title Vil, The equal protection

clause of the law and due process clause of the 5

Amendment of the Constitution.

In Trans World Airlines, Inc. v. Thurston, Trans

World Airlines, Inc. v. Thurston, 469 U.S. 111, 105

S.Ct. 613, 83 L.Ed 2d 523, 525, 527, 533 (1985), the

Court held:

"The rule that a benefit that is part and parcel of an

employment relationship may not be doled out in a

discriminatory fashion, even if the employer would

be free not to provide

the benefit at all....” *** “nevertheless, if it

does grant some disqualified captains the

“privilege” of “bumping” less senior flight

engineers, it may not deny the opportunity to

others because of their age.". (also See Hishon

v King & Spalding, 467 US 69, 81 L Ed 2d 59, 1045S

Ct 2229 (1984) and Civil Rights § 78).

DIRECT EVIDENCE

In is undisputed that the record has shown the

petitioner has presented direct evidence of a past or

present prejudice toward plaintiff or members of

plaintiff's class which is evidence of pretext. (See

footnote 12 in DE 158; also see § 5.40, page 338 in

Employment Discrimination Law by Mack A.Player,

Hornbook Series (1988)).

The Court has held that "McDonnell Douglas

test is inapplicable where the plaintiff

presents direct evidence of discrimination” as

cited in Trans World Airlines, Inc. v. Thurston,

Trans World Airlines, Inc. v. Thurston, 469 U.S.

111, 105 S.Ct. 613, 83 L.Ed 2d 528 (1985); (See

Teamsters v United States, 431 US 324, 358, n 44,

52 L Ed 2d 396, 97 S Ct 1843 (1977)).

The Court has in Lee v. Washington

County Bd. Of Ed held that "Proof of and

immediate past history of racial

discrimination alone can be sufficient to shift

to local board of education the burden of

justifying its employment decisions by clear

and convincing evidence;” Lee v. Washington

County Bd. Of Ed, 625 F.2d 1235 (1980).

In the Collective Bargaining Agreements

between American Postal Workers Union,

AFL-CIO and U.S. Postal Service for

November 21, 1994-November 20, 2006 (See DE

20 pages 11-29 of Case # 1:cv-04-22267):

Article 38.5.A.3 states: “Newly established or

vacant duty assignments shall be filled by

senior employees on the appropriate preferred

assignment registers.”

Article 38.3.J, Seniority for Breaking

Ties states "When it is necessary to determine

the seniority ranking for two or more

employees who are reassigned or promoted to

vacancies in the same occupational group and

level in the Maintenance Craft on the same

day, the following shall be used to break any

tie that might exist:

1. Total Maintenance Craft career service in

the installation

. Total Maintenance Craft career service

. Total Maintenance Craft Service

. Total Postal Career Service

. Total Postal Service

. Total Federal Career Civilian Service

. Numerical by the last 3 or more numbers

(using enough numbers

To break the tie, but not fewer than 3

numbers) of the employee's

Social security number, from the

lowest to highest.”

Article 38.3.B Coverage states "This seniority

Section applies to all regular work force

Maintenance Craft employee when it is

necessary for filling vacant assignment and

for other purposes.”

Article 38.6.A.1 Maintenance Training states “Ail

Maintenance Craft job training opportunities in

levels 1 through 7, will be

offered first to the senior qualified volunteer within

the occupational group, level and tour where the

need for the skills exists.

For Maintenance Craft job training in levels 8, 9,

and 10 the employee selected will be chosen from

among volunteers within the occupational group,

level, and tour where the

need for the skills exist. The Employer may choose

not to select a volunteer who has attended training

for 6 or more weeks during the previous 12 months.”

(See DE 20 pages 11-

29 of Case 1: 04-cv-22267).

Article 8, Section 5 of the Collective Bargaining

Agreement , which states "When needed, overtime

work for regular full-time employees shall be

scheduled among qualified employees doing similar

work in the work location where the employees

regularly work in accordance with the following:

A. Two weeks prior to the start of each calendar

quarter, full-time regular employees desiring to

work overtime during that quarter shall place their

names on an “Overtime Desired” list.

B. Lists will be established by craft, section, or tour

in accordance with Article 30, Local Implementation.

C. 1.a. When during the quarter the need for

overtime arises, employees with the necessary skills

having listed their names will be selected in order of

their seniority on a rotating basis.

b. Those absent or on leave shall be passed over.

D. If the voluntary “Overtime Desired” list does not

provide sufficient qualified people, qualified full-time

regular employees not on the list may be required to

work overtime on a rotating basis with the first

opportunity assigned to the junior employee.”

Seniority

In § 703 (h) of Title VII of the Civil Rights Act of

1964 requires that any differences in treatment not

be “the result of an intention to discriminate

because of race ***(See Quarles v. Philip Morris,

Inc., 279 F.Supp. 505 (E.D. Va. 1968)).

In California Brewers Ass'n v. Bryant, 444 U.S.

98, 100 S.Ct. 814, 63 L. Ed. 2d 55 (1980) the Court

concluded that “seniority” criteria, allots to

employees ever improving employment rights and

benefits as their relative lengths of pertinent

employment increase.

In Franks v. Bowman Transp. Co., 424 U.S.

747, 96 S.Ct. 1251, 47 L.Ed2d 444 (1976) the Court

held that Under Title VI! a victim of illegal

discrimination must be awarded seniority from the

point of the illegal denial of the job.

ADVERSE ACTIONS

Employer treated similarly situated

employees outside his class more favorably

The 11% Circuit held in Appeal # 06-15613 on

page 18 that: "... in MeDonnell Douglas Corp. v.

Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). The first

step is to establish a prima facie case of racial

discrimination, which a plaintiff may do by showing

that:

(1) he belongs to a protected class; (2) he was

qualified to do the job; (3) he was subjected to

adverse employment action; and (4) his employer

treated similarly situated employees outside his

class more favorably.

See knight v. Baptist Hosp. of Miami. Inc., 330 F.3d

1313, 1316 (11 Cir. 2003) (per curiam).”.

In knight v. Baptist Hosp. of Miami. Inc, the

Court held that: “To show that employees are

similarly situated, the plaintiff must show that

the “employees are similarity situated in all

relevant respects "". (Also see pages 37-38 of DE

158 of Case 1:04-CV-22267).

The District Court stated on page 37 of DE 158:

“These persons are not similarly situated based

upon their experience or work assignments.”

The District Court stated o page 38 of DE

158: " there is no evidence that Osahar's assignment

to BDS was an adverse employment action as this

assignment did not affect his seniority”. Seniority

was not used in this forced BDS training in violation

to the Contract.

The petitioner contends that pursuant to Title VII

(42 USCS§ 2000e-2) §d, training and § h for

seniority, deniai of the use of seniority in the

selection process for training, is an affect on

seniority,

This reasoning of the opinion of Court of Appeals

for the 11% Circuit in this case as stated in Appeal #

06-15613, is in direct conflict with § 1620.18 of 29

CFR Ch. XIV which States in: § 1620.18

(a) ““similar working conditions” encompasses two

subfactors: “surroundings” and “hazards.”" and in (b)

“Determining similarity of working conditions.

Generally, employees performing jobs requiring

equal skill, effort, and responsibility are likely to be

performing them under similar working

conditions.”.

The reasoning of the opinion of Court of Appeals

for the 11° Circuit in this case as stated in Appeal #

06-15613, is also in direct conflict with § 1620.14

(1987) (See 29 CFR Ch. XIV (7-1-98 Edition)) and

Shultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir.

1970); Hodgson v. Fairmont Supply Co., 454 F.2d

490 (4 Cir. 1972); Hodgson v. Behrens Drug Co.,

475 F.2d 1041 (5* Cir. 1973); Thompson v. Sawyer,

678 F.2d 257 (D.C. Cir.1982).

“In analyzing work for equality the focus is upon

the duties actually performed by the employees. Job

titles and job descriptions are relevant, but not

controlling.” (See Epstein v. Secretary of Treasury,

739 F.2d 274 (7 Cir. 1984)). “The Four Statutory

Elements of Equality are (1) Skill, (2) Effort, (3)

Responsibility and (4) Working Conditions.” (See §

411, pages 146-150 in Employment Discrimination

Law by Mack A. Player, Hornbook Series (1995)).

The reasoning of the opinion of Court of Appeals

for the 11% Circuit in this case as stated in Appeal #

06-15613, is in direct conflict with the 2™ Circuit

and 6* Circuit which uses the test of “all material

respects’ to compare similarly situated employees in

Title VII cases. And “whether two employees are

similarly situated....presents a question of fact for

the jury.” (See Graham v. Long Island Rail Road 230

F.3d 34 (24 Cir. 2000).

“Skill” refers to the objective level of ability or

dexterity tto perform job tasks. It is examined in

terms of whether the duties of the two jobs require

different levels of education, experience, training or

natural ability to perform. (See 29 C.F.R §1620.14

(1987)) page 146 in § 4.11 See § in Employment

Discrimination Law by Mack A. Player, Hornbook

Series (1995)).

The petitioner contend that as an Electronic

Technician level 11 the petitioner met all four

requirements for the training pursuant to§ 1620.14-

§ 1620.18 of 29 CFR Ch. XIV ) and Article 38 of the

Collective Bargaining Agreement (Contract).

The opinion of Court of Appeals for the 11%

Circuit in this case as stated in Appeal # 06-15613, is

in direct conflict with “Notice Interpreting

Nondiscrimination Requirements of Executive Order

11246 With Respect to Systemic Compensation

Discrimination, 69 Fed. Reg 67246 (November 16,

2004)” which states:

“This standard defines “similarly situated”

employees as those that are “similar with respect to

the work they perform, their responsibility level, and

the skills and qualifications involved in their

positions.” [67251]”.

The Contract, which states in 38.6.A.1 the

occupational group, level, and tour defines

“similarly situated” employees for Electronic

Technicians at the USPS. (See DE# 20 pages 11-

29 of Case 1: 04-cv-22267).

Training

The 11% Circuit held in Davis v. Town of Lake,

Florida, 245 F.3d 1232, 1242-43 (11% Cir. 2001)

“(where memo criticizing the plaintiff's job

performance was removed from plaintiff's

personnel file and there was no evidence that the

remo affected the plaintiff's employment, the memo

was not an adverse employment action)”

(See page 28 of DE 158 of Case 1:04-cv-22267-

FAM). In this case undisputed evidence on the

record has shown that Osahar was denied three

training courses (DE #30 at 4 19 and (# 41-04 (DE

# 30 at 916))) as a result of discrimination and or

retaliation. Osahar was denied Network Cabling

Courses #32601-39, (Tier 2), # 32601-40 (Tier 3)

Course #55602-30) (See DE 30 page 12 and DE 78,

pages 239-252 and DE 27 page 15) and Basic

Programming of Allen-Bradley PLCS training (See

DE 27 page 15 and DE 78 page 55 of District case

no. 04-22267).

The District Court erred in its reasoning in its

opinion that:

“ In Burlington Industries, Inc. v. Ellerth, 524

U.S. 742, 760-61 (1998), a Title Vil sex

discrimination case, the Supreme Court defined an

adverse employment action as a significant change

in employment status, such as hiring, firing, failing

to promote reassignment with significantly different

responsibilities, or a decision causing a significant

change in benefits—an action which in most cases

inflicts direct economic

harm.”.

And the 11% Circuit's opinion in applying Davis

for retaliatory discrimination holding that “to

establish adverse employment action under Title

Vil, Osahar must show a serious and material

change in the terms, conditions or privileges of his

employment.” (See page 27 of DE 158 in 1:04-cv-

22267-F AM) is direct conflict with the Supreme

Courts opinion in Burlington Northern & Santa Fe

Ry. v. White,_U.S._126 S.Ct. 2405 (2006) and Title

Vil (42 USCS § 2000e-2 (d)) which states: “It shall be

an unlawful employment practice for any

employer...training or retraining, including on-the-

job training programs ... to discriminate against any

individual...” .

In Burlington N. & S. F. R. Co. v.

White, 548 U.S. 1 (2006), The Supreme Court held

that:

“The language of the substantive and anti-

retaliation provisions differ in important ways. The

terms “hire,” “discharge,” “compensation, terms,

conditions, or privileges of employment,”

“employment opportunities,” and “status as an

employee” explicitly limit the substantive provision’s |

to actions that affect employment or alter workplace

conditions. The anti-retaliation provision has no

such limiting words.”.

Osahar contends that he was denied equal

protection of the law pursuant to the 5*? and 14%

amendments of the Constitution as cited above and

below.

The Supreme Court has held that Title VII,

includes not just the wage rate of the employees,

but all forms of job benefits, including severance

pay, pensions, vacations, availability of overtime,

eligibility for training, and desirabiiity of job

assignments in Trans World Airlines, Inc. v.

Thurston, 469 U.S.111, 105 S.Ct. 613, 83 L.Ed 2d

523 (1985).

The Eleventh Circuit has recognized that

failure to provide training may constitute an

actionable adverse action “as long as the training is

materially related to the employee's job

responsibilities or possibilities for advancement.”

Turlington v. Atlanta Gas Light Co., 135 F. 3d ©

1428, 1436 n.16 (11 Cir. 1998).”. Osahar contends

that the training that was denied, is materially

related to his job responsibilities and possibilities for

advancement (See DE 158, footnote 14 and DE 127

at Ex 292) and (page 15 of DE 158).

Overtime

On page 39 of DE 158 the District Court states:

“Cole also stated that Osahar has worked sixth day

overtime, every quarter, since Cole became Osahar's

immediate supervisor in late 2000 (Cole Declaration

at 948)” . Petitioner claims that this is a dispute and

an issue of material fact (See DE 158, footnote 14

and DE 127 at Ex 292).

On page 15 of DE 158 the District Court states:

“The “bulk” time records provided for the years 2000

through 2005 list total overtime per employee per

pay period, and do not designate

the specific dates of overtime worked nor whether

overtime listed for a particular pay period was based

on the 6" day overtime rotation rather than an

accumulation of hours worked past the normal eight-

hour workday.

The absence of these records is not material". And

“it is undisputed that Mike Denis does not have the

same days off as Osahar, and thus Osahar and Denis

would never be in competition for the same 6" day

overtime work.”

The petitioner contends that this

is an issue of material fact (See DE 158, footnote 14

and DE 127 at Ex 292).

Article 8, Section 5 of the Collective Bargaining

Agreement(See DE 20 page 19 of 1: 04-cv-22267) ,

states "When needed, overtime work for regular full-

time employees shall be scheduled among qualified

employees doing similar work in the work location

where the employees regularly work in accordance

with the following: ***

C. 1.a. When during the quarter the need for

overtime arises, employees with the necessary skills

having listed their names will be selected in order of

their seniority on a rotating basis.”

The Supreme Court heid in Ledbetter v.

Goodyear Tire & Rubber Co. , Inc. 550 U.S.__ (2007)

“Because the later effects of past discrimination do

not restart the clock for filing an EEOC charge, ***

“if an employer engages in a series of separately

actionable intentionally discriminatory acts, then a

fresh violation takes place when each act is

committed.” (See Ledbetter v. Goodyear Tire &

Rubber Co. , Inc. 550 U.S.___ (2007)).

_On page 34 of D.E.158 the district Court states “the

undisputed evidence establishes that Osahar,

having attended 60 training courses, is one of the

most trained electronic technicians at the Miami

facility (Cole Declaration at 428; DE # 127, Ex. 269

(Osahar's training records).)” This training that was

denied is unique and not based on total number of

courses and Electronic Fechnician completing the

training receives the assignment (See D.E.No. 158

pages 13 and 34 for Case # 04-22267). (See page 11

of Appeal 06-15613). in Appeal # 06-15613 on page

19, the 11 Circuit held that:

“Osahar was never suspended, nor did he suffer any

reduction in wages, job title, seniority status or any

other benefits. He also attended more training

courses than all but one of the co-worker whom he

complains; Sosa attended ten courses between 2001

and 2004 while Osahar. attended nine.”.

The petitioner contends that this is weighing

the evidence to resolve a factual dispute and the

district court and the Appeals Court reasoning on

the evidence is in direct conflict with Holifield v.

Reno.

In Holifield v. Reno, the Court held that: “The

Court may not weigh evidence to resolve a factual

dispute; if a genuine issue of material

fact is present, the court must deny summary

judgment. Hutcherson v. Progressive Corp., 984 F.2d

1152, 1155, (11% Cir. 1993).” Holifield v. Reno, 115 |

F.3d 1155, 1561 (11% Cir. 1997).

The Supreme Court held “To determine whether

due process requirements apply, courts must not

look to the “weight,” but to the nature, of the interest

at stake, to see if the interest is within the

Fourteenth Amendment's protection of liberty and

property “ See page 551 of Board of Regents v. Roth,

408 U.S. 564 , 92 S.Ct. 2701 33 L.Ed 2d 548. The

petitioner contends that pursuant to Board of

Regents v. Roth, each training course that was

denied, should be viewed for “the interest at stake”

not as to the number of courses the petitioner

attended between 2001 and 2004.

The petitioner contends that he was deprived “of

and interest in “liberty” or that he had a “property”

interest in” seniority of employment as cited on page

554 of Roth.

The petitioner contends that being denied

equal protection of the law concerning

seniority pursuant to the 5" Amendment

Clause of the Constitution and Title Vil is an

unrescived issue of law that preciudes entry

of judgment.

PRETEXT

On page 38 of DE 158 the District Court states:

“Defendant did not select Osahar for the Allen-

Bradley PLC training (49-04), because there was a

need to train a TMS employee with respect to the

PLC process and because Osahar had previously

received this training in another course (Cole

Declaration, 9/28; DE # 78 at Ex. 69." The petitioner

contends that this is an issue of material fact and a

pretext by the USPS to deny petitioner seniority in

the selection process for training.

As held in E.g., Williams v. Montgomery, 742

F.2d 586 (11% Cir. 1984); Coriey v. Jackson Police

Dept., 566 F.2d 994 (5th Cir 1978) that if the

selection process has not been uniformly applied to

members of other classes it can be used as evidence

of a pretext. The petitioner also contends that

record shows a preponderance of evidence of a

pretext as cited below and above.

HARM

The Court has held that “Irreparabie harm

exists where there is no plain, adequate, and

complete remedy at law, and for which money

damages would be impossible, difficult or

incomplete. See Crestmont Cadillac Corp. v.

General Motors Corp., Cuyahoga App. No. 83000,

2004-Ohio-488.”

The petitioner contends that the opinion on

dismissal pursuant to FRCP 56 for summary

judgment in favor of the USPS by the 11% Circuit

Court of Appeats in case # 04-16036 is in direct

conflict with the Second, Fourth, Fifth Seventh and

Eighth Circuits as held in Gallo v Prudential

Residential Servs., Ltd. Partnership (1994, CA2

NY) 22 F3d 1219, 64 BNA FEP Cas 950, 64 CCH

EPD 4 42998[courts should be reluctant to grant

summary judgment in cases alleging employment

discrimination, when intent of employer is at

issue]; Rosen v Thornburgh (1991, CA2 NY) 928

F2d 528, 55 BNA FEP Cas 580, 56 CCH EPD 4

40633 [summary judgment is generally

inappropriate in Title VIl cases where defendant's

state of mind and intent are at issue].

EQUAL PROTECTION OF THE FIFTH and

FOURTEENTH AMENDMENT - RIGHTS OF

PERSONS, DUE PROCESS , Substantive Due

Process, Discrimination.

On page 5 of Appeal no. 06-15613, The appeals

Court states "(3) "[IJos[s] liberty of the equal

protection of the law the law related to

seniority and qualifications.” id. at 14 17-18."

The petitioner contends that the Appeals Court and

the District Court erred in its decision concerning

the lost of liberty of seniority (property interest)

pursuant to the 5t" and 14% Amendment to the

Constitution, Equal protection of the Law clause as

applied to adverse action in this case.

The Court in Board of Regents v. Roth, 408 U.S.

564 said that “property interest protected by

procedural due process extend well beyond actual

ownership of real estate, chattels, or money”. Osahar

contends that denial of seniority in the selection of

training also deny economic rights pursuant to

Lochner v. New York 198 U.S. 45, 25S. Ct. 539, 49

L. Ed. 937 (1905). Pursuant to Board of Regents v.

Roth, 408 U.S. 564 seniority isa “property interest”

protected by procedural due process.

In United States v. Virginia, 116 S.Ct. 2264

(1996) the supreme court has recognized lost of

training as an adverse action.

Pursuant to equal protection clause and due

process of the 5t? and 14th Amendment of the

Constitution, which provides that “[n]o State shall

*** deny to any person within its jurisdiction the

equal protection of the laws,” ***. In 1975, The

Court held that “[t]his Court's approach to Fifth

Amendment equal protection claims has always

been precisely the same as to equal protection

claims under the Fourteenth Amendment.” See

Weinberger v. Wiesenfeld, 420 U.S. 636, 638, n.2 .

(See United States v. Virginia, 116 S. Ct. 2264

(1996)).

"As this Court explained in Roth, 408 U.S. 564

(1972), “the Fourteenth Amendment's procedural

Protection of property is a safeguard of the security

of interest that a person has already acquired in

specific benefits. These interests — property interest

— may take many forms.” This Court went on to

note that a property interest requires " a legitimate

claim of entitlement to it. It is a purpose of the

ancient institution of property to protect those

claims upon which people rely in their daily lives,

reliance that must not be arbitrarily undermined.

It is a purpose of the constitutional right to a

hearing to provide an opportunity for a person to

vindicate those claims.” Roth, 408 U.S. 576.

Of course, the Constitution itself does not create

the property interest it protects. “Rather,” as Roth

points out, “they are created and their dimensions

are defined by existing rules or understandings

that stem from an independent source such as state

law — rules or understandings that secure certain

benefits and that support claims of entitlement to

those benefits.” Id. at 577".

This Court has “made ciear that the property

interests protected by procedural due process

extend well beyond actual ownership of real estate,

chattels, or money" Roth, 408 U.S. at 571-572. The

“types of interests protected as ‘property’ are varied

and, as often as not, intangible, ‘relating to the

whole domain of social and economic fact” Logan v.

Zimmerman Brush Co., 455 U.S. 422, 430 (1982)

(See also Cleveland Bd. Of Ed. v. Loudermil!, 470

U.S. 532 (1985)(Government employment)) “

As the Court has held in Trans World Airlines,

Inc. v. Thurston, referring to “eligibility for training,

and desirability of job assignments” that not

allowing the senior pilots to "bump" the downward

to a flight engineer (training) discriminated on the

basis of age. As with Trans World Airlines, Inc. v.

Thurston, this deprives the Appeliant of seniority

for other purposes. (See Article 38.3.B of the

Collective Bargaining Agreement and Trans World

Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct.

613, 83 L.Ed 2d 523 (1985); Adarand Constructors,

Inc. v. Pena, 115 S.Ct. 2097, 2106-08 (1995); Board

of Regents v.Roth, 408 U.S. 564, 92 S.Ct. 2701, 33

L.Ed.

FULL FAITH AND CREDIT

Osahar prevailed in 1986 in Case No. 84-

1782-CIV-ARONOVITZ and was awarded seniority.

Osahar prevailed again in a case he filed in

1995, which alleged racial discrimination (lost of

training by seniority) and retaliation. Case No. 95-

753-CIV-LENARD. On September 25, 2001 the

Court, based upon the jury's verdict.”

Article IV, Section 1 of the United States

Constitution and 28 USC 1738 provides for full

Faith and credit of judgments.

The Supreme Court has upheld Full Faith and

Credit Judgments in Stoll v. Gottlieb, 305 U.S. 165,

59 S.Ct. 134, 83 L.Ed. 104 (1938); Cresent City

Live-Stock Co. v. Butchers’ Union Slaughter-House

Co., 120 U.S. 141, 7 S.Ct. 472, 30 L.Ed. 614(1887);

Embry v. Palmer, 107 U.S. (17 Otto) 3, 2 S.Ct. 25,

27 L.Ed. 346 (1882); Loveridge v. Fred Meyer, Inc.,

72 Wn.App. 720, 864 P.2d 417 (1993).

COLLATERAL ATTACK

Osahar contends that denying the petitioner

three training slots and overtime is a collateral

attack on the judgments of and an attack on the

integrity of the judgment of and which violates the

jury verdict in Case No. 95-753-CIV-LENARD and

bench case Case No. 84-1782-CIV-ARONOVITZ.

The court has described a collateral attack as “

‘an attempt to defeat the operation of a judgment,

in a proceeding where some new right derived from

or through the judgment is involved.’ ” Fawn lake

Apts. V. Cuyahoga Cty. Bd. Of Revisio (1999), 85

Ohio St.3d 609, 611, 710 N.E.2d 681, quoting

Kingsborough v. Tousley (1897), 56 Ohio St. 450,

458, 47 N.E. 541.

Black's Law Dictionary (8t Ed.2004) 278 defines

“collateral attack” as “[a]n attack on a judgment in a

proceeding other than a direct appeal; esp., an

attempt to undermine a judgment through a judicial

proceeding in which the ground of the proceeding (or

a defense in the proceeding) is that the judgment is

ineffective. A petition for a writ of habeas corpus is

one type of collateral attack. — also termed indirect

attack. Cf. Direct Attack (1).”

“In general , a collateral attack on a judgment is

actually an attack on the integrity of the judgment.”

(See Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115

Ohio St.3d 375, 2007-Ohio-5024, Appeal , page 12).

DISPARATE IMPACT

On page 3 of DE # 158 the District Court cited

petitioners complaint of disparate impact"

“due to this, race discrimination and retaliation

against him have continued, which has compelled

him to file EEOC Complaints due to disparate

treatment, disparate impact and a hostile work”.

Which shows the petitioner intent not to abandon his

Disparate impact claim.

REASONS FOR GRANTING THE PETITION

The legal issues presented by this petition are of

paramount public importance for federal employees

throughout the United States.

The Court has held in Speiser v Randall, 357 US

513, 2 L Ed 2d 1460,78 S Ct 1332, when a State

proposes to deny a privilege to one who it alleges has

engaged in unprotected speech, Due Process requires

that the State bear the burden of proving that the

speech was not protected. “[Tjhe ‘protection of the

individual against arbitrary action’ ... [is] the very

essence of due process," Slochower v Board of

Education, 350 US 551, 559, 100 L. Ed 692, 701, 76

S. Ct 637 (1956). See page 565 of Board of Regents

v. Roth, 408 U.S. 564 , 92 S.Ct. 2701 33 L.Ed 2d

548.

The not allowing the use of seniority in selection

for training and the use of qualifications in

assignments allows the U.S.P.S to discriminate and

retaliate, not violate the union contract agreement,

deny due process and equal protection of the law in

violation of the due process clause and equal

protection of the law clause of the 5t*° and 14%

amendment of the constitution.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Omar Osahar, Pro Se, Petitioner

10941 S.W. 143 Terrace

Richmond Heights, Florida 33176-6554

305-253-0204

September 17, 2008

APP. 1

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 04-16036

Non-Argument Calendar

D.C. Docket No. 04-22267-CV-FAM

OMAR R. OSAHAR,

Plaintiff-Appellant,

Versus

U.S. POSTAL SERVICE,

POSTMASTER GENERAL OF U.S. POSTAL

SERVICE, UNITED STATES OF AMERICA,

ATTORNEY GENERAL

Defendants-Appellees.

Appeal from the United States District Court for

the Southern District of Florida

APP. 2

(January 15, 2008)

Before ANDERSON, BARKETT and HULL, Circuit

Judges.

PER CURIAM:

APP. 3

OMAR R. OSAHAR appeals the district court's

grant of summary judgment in favor of the

Postmaster General as to all of his employment

discrimination and related claims, Osahar asserts

that the district court erred by finding, inter alia,

that he failed to establish that the Postmaster

General's articulated legitimate, non-discriminatory

reasons for its actions were a pretext for unlawful

discrimination or retaliation, that the court lacked

jurisdiction over certain of his claims, and that he

had failed to exhaust his administrative remedies as

to others. We AFFIRM.

|. BACKGROUND

Osahar, an African-American male proceeding

pro se, filed an employment discrimination action

against his employer, the Postmaster General, in the

Southern District of Florida. Osahar is employed by

APP. 4

the United States Postal Service (“USPS") as an

electronic technician ("ET"). He has worked for the

USPS for more than 30 years.

A. Incidents Alleged

in support of his claims Osahar’s complaint

asserts the following incidents which allegedly

occurred between October 2001 and August 2004

and about which he had already formally complained

to the EEOC. At the time he filed suit, he alleged

that his EEOC comptaints had all been pending for

at least six months without a final agency

decbicdinabian:

On or about 22-23 October 2001, a white ET

junior to Osahar was allowed to make primary

software loads. Osahar contends that this

encouraged his co-workers to disrespect him because

the primary load is a more desirable assignment. On

APP. 5

or about 21 May 2002, (1) Osahar’s blue rolling tool

box was broken into on several occasions; (2)

Osahar's supervisor, Robert Cole, took Osahar's

camera away fro him when Osahar “tried to take

pictures of harassment,” even though Osahar had

seen others using cameras on the workroom floors;

(3) tasks which Osahar preferred were transferred to

another shift thereby impacting his ability to work

overtime; (4) Osahar was subject to disrespect due to

“unfairness in assignment and task"; (5) on or about

29 May 2002, Cole wouid not allow Osahar to “do the

Zebra Card alignment for the AFCS [e]quipment”

and also “restrict[ed his] {iJinvolvement in alignment

jprocedures”; and (6) Osahar was subject to

“[c]ontinuous harassment on the workroom floor.”

R2-30, Second Corrected Final Compl. At 4 15.

APP. 6

On or about 16 November 2002, (1) Osahar was

decertified on powered industrial equipment because

Cole and other management officials scheduled him

for training on the day after his last day of

certification resulting in the suspension of his

privileges; (2) the USPS was “capricious in

[o]vertime rotation” in that it “coordinated the task

and [o]vertime to give the junior [w]hite and

Hispanic employees the advantage,” depriving

Osahar of his “seniority rights.” Id. at 4] 14. Onor

about 3-9 December 2002 and 9-10 January 2003,

Osahar was “systematically bypassed or told that he

could not work sixth day overtime.” Id. at 4] 11. On

28 September 2003 and 28 October 2003, Osahar

was (1) not selected for MODSS system training; (2)

“[nJot awarded for work performed on the AFCS"

when he had done most of the work and others

APP. 7

received awards; and (3) restricted from certain

work assignments. Id. at 12.

On 31 December 2003, (1) a coworker was allowed

to use (wo time cards; (2) a co-worker was allowed

access to lockout cabinets when Osahar was not; (3)

two co-workers blocked or delayed Osahar's access to

his assigned task; (4) Osahar's tool box was pushed

out of his assigned area; (5) “[o]thers created an

unwanted appearance in [Osahar’s] work area”; and

(6) “[aJnother co-worker has been allowed to perform

[certain work which has given Osahar] limited

experience [in that area].” Id. at 4 10.

From August 23-26, 2004, Osahar suffered from

“unfairness,” retaliation and discrimination in

training and overtime, by not being selected for two

network cabling training courses. He also suffered

from (1) the “arbitrary and capricious use of

APP. 8

training, seniority qualification and safety in the

use of assignments overtime and promotions”; (2)

“[d]iscriminat[ion] by encouraging disrespect by

unfairness in [a]ssignments, overtime, terms and

conditions of employment"; and (3) “[1Jos[s] of liberty

of the equal protection of the law related to seniority

and qualifications.” Id. at 9] 17-18. Finally, at an

unspecified time, Osahar suffered a

“[!]os[s}] of liberty of seniority in the selection

process’ when he was not selected for a training

course for Basic Programming of Allen-Bradley PLC.

id. at 7 19. Osahar has also alleged that the USPS

has breached settlements agreements with Osahar

dated 12 December 1989 and 2 June 1992.

In his final amended complaint, filed in the

Southern District of Florida, Osahar has alleged on

the basis of these incidents: (1) a “los[s] of liberty

APP. 9

normal[ly] given to senior...employees in an agency

with a seniority system and [t]raining policy” in

violation of the equal protection clause of the Fifth

Amendment; (2) “[vJiolation of [i]ndividual

[c]lontracts concerning fairness in employment with

the agency and laws of the state of Florida” in

violation of the equal protection clause of the Fifth

Amendment. R2-30 at | 29-30. Osahar also asserts

his complaint “pursuant to the Civil Rights Act of

1964 as amended, 42 [U.S.C.] § 1981 and 42 [U.S.C]

§ 1983.” Id. at 4] 1. Finally, Osahar’s complaint refers

_to "39 [U.S.C.] Labor Relations Act, TITLE I11, § 301,

29 [U.S.C.] § 185 as related to related issues of

[b]Jreach of individual contracts ([union and non-

union)).” Id. at J 4.

B. General Background

APP. 10

The record reflects the following additional facts:'

at all relevant times, Osahar has been assigned to

work on Tour 2, the 6:30 A.M. to 3:00 P.M. shift five

days a week and his days off have been Sunday and

Monday. Sunday and Monday are thus the days he is

eligible to work a sixth day for overtime

compensation. Tour 2 is the preventive maintenance

shift and the ETs on this shift perform the cleaning,

preparation and testing of all postal equipment.

Daily assignments are made based on the needs of

the USPS and the maintenance requirement of each

individual piece of equipment. The particular work

assignments given to an ET on Tour 2 during the

eight-hour work day does not affect that person's

’ Herein we have borrowed portions from the orderly recitation

of facts set out in the magistrate judge's report and

recommendation (R7-158).

APP. 11

wages, job title, seniority or other employment

benefits.

Cole has been Osahar's immediate supervisor

from approximately late 2000 to the present. Cole

was supervised by DeWayne Wilkie. Wilkie was

supervised by Joseph Giambrone. In 2002, Osahar's

position was upgraded from a level 9 to a level 10,

and in 2003, his position was upgraded from a level

10 to a level 11. Osahar is number three on the

seniority list, and he has seniority over all of the co-

workers about whom he complains in this case.

During the period at issue, Osahar was never

suspended, nor did he suffer any reduction of wages,

benefits, seniority, or job title.

The wages, hours, and working conditions of

USPS maintenance craft employees such as Osahar

are governed by Article 38 of the collective

APP. 12

bargaining agreement in effect between the

American Postal Workers Union and the USPS. This

agreement permits the USPS to determine daily

tasks and assignments. It requires that all training

opportunities in levels 1 through 7 be offered first to

the senior qualified volunteer within the

occupationa! group, level and tour where the need

for the skills exists. Job-related training in levels 8,

9, and 10 must also be selected from volunteers

within the occupational group, level, and tour where

the need for the skills exists, except that the

employer may choose not to select a volunteer who

has attended training for 6 or more weeks during the

previous 12 months. Job-related training in levels 8,

9 and 10 is not subject to seniority. The agreement

contains no provision with respect to selection for

training of employees above level 10.

APP. 13

C. Prior EEO Activity

It is undisputed that prior to and during the time

of the events he alleges in his complaint, Osahar had

filed formal complaints of discrimination, and that

his supervisors were aware of this. Settlement

agreements were reached in two cases. The first

settlement agreement, which was executed in

December 1989, states that Osahar

will have the same opportunities as other ET's

to work on equipment and do filing updating

and software changes. Complainant is [to] be

provided the same training and have access to

information and pro[cedures] regarding file

updating and software changes as other E I's.

The complainant is to be treated equally and

fairly as other employees. He will be treated

the same as Mr. Foland and Mr. Aquilino on

APP. 14

learning and working PSDS II. He will be given

same opportunity to become proficient as other

employees. Based on merit, Mr. Osahar will be

granted awards as all other ET’s. Specifically, if

Bob Foland and Mr. Aquilino receive awards for

installation of PSDS System, since | also worked

on the system, | receive the same award in

relationship to this process.

R( Accordian 2)-127, Exh. 290. The second

settlement agreement, which was executed in June

1992, states:

| will be given the opportunity to work in other

areas as all other employees and be given the

chance to advance my skills for upward mobility.

In the future | be allowed to receive the

opportunity to go to seminars and train other

ETs in new systems. That I'm treated and paid

APP. 15

equal as all other employees. Any and all

special. That I'm treated and paid equal as all

other employees. Any and all special

assignments [undecipherable] all interested

ET's. Schedule meeting and to abide by this and

all other EEO Settlements [including] 3-S-1106-

90 and 3-1157-91 [undecipherabie] with this

settlement [undecipherable] when available.

ld., Exh. 289. These agreements provide that if the

agency fails to abide by the agreements, the USPS

will “upon the complainant's written requirest,

reinstitute the counseling process.” Id., Exhs. 289,

290.

in addition, Osahar has prevailed in the U.S.

District Court for the Southern District of Florida on

at least two previous complaints alleging

discrimination and/or-retaliation against the USPS.

APP. 16

In July 2002, Osahar filed another employment

discrimination case against the USPS based on

twelve EEO complaints involving incidents that

occurred between 1995 and 2001, including claims

based on hostile work environment and denial of

training. Summary judgment was granted in favor of

the USPS in Februray of 2004.

D. Training

In June 2004 two memoranda were issued

soliciting volunteers to attend training courses on

Network Cabling Copper Based System Tier 2 and

Network Cabling Fiber Based Systems Tier 3.

Neither was a prerequisite for the other, but both

were required for Network Cabling Specialist

certification. Three people applied for the courses,

Osahar, Oscar Sosa, and D. Sotolongo. Cole selected

Oscar Sosa to attend both course.

APP. 17

Oscar Sosa is a white Hispanic male who is junior

to Osahar. Cole's selection was approved by

Giambrone. Coie explained in his declaration that

the reason for selection Sosa was that he needed

someone who was trained on the Tray Management

System (TMS) to be trained with respect to network

cabling. in an affidavit provided in response to the

related EEO complaint. Cole further explained that:

The Miami plant has a machine called TMS

(tray management system) which transports

all mail in the facility to other processing

equipment. For about five months the TMS

system has been frequently dropping out of

service and causing delays. The TMS trained

E.T[.]'s have been working on the problem

but feel the problem is in the fiber-optic

cabling running throughout the system but

APP. 18

none of them are trained on trouble shooting

or repairing these fiber-optic cables. Since it

was in the best needs of the service to have

a TMS trained employee with the cabling

training, | chose Mr. Sosa because Mr.

Osahar is not TMS trained.

R(Accordian 1)-78, Exh. 116, Aff. B at 1.

In July 2004, a memorandum was issued

requesting volunteers to attend a training course

entitled “Basic Programming of Allen-Bradiey

PLCs." There were seven applicants: Osahar, M.

Denis (white male), G.Acker (white male), D. Ewing

(biack male), D. Sotolongo (white Hispanic male), J.

Mims (white male), and Julio Fojo (white Hispanic

2 PLC stands for “programmable logic controller.” APLC isa

computerized device that runs the TMS machine. The device is

manufactured by two companies-Allen Bradley and Horner

Electric. At the Miami postal facility, the TMS is run by a

Horner Electric PLC, but the only training offered is by Allen

Bradley; however, the PLC system is the same, regardless of

the manufacturer.

APP. 19

male). Fojo was selected to attend. Since Cole was on

vacation at the time the selection was made. Wilkie

made the selection, and Cole concurred upon his

return. In his affidavit in response to the EEO

complaint, Wilkie explains that he selected Fojo

because although he was trained to service the TMS

system which utilizes Allen-Bradley PLCs, Fojo had

not been trained on the Allen-Bradley PLCs. Id.,

Exh. 69 Aff. D at 1. Cole explains further that

Osahar had previously attended RCS training which

included Allen-Bradley PLC training. Id. ,

Aff. B at 3. Cole reported that when he discussed

this with Osahar, Osahar had acknowledged that he

had received the RCS training and that he was

trained on the Allen-Bradley PLC, but pointed out

that the Aiien Bradiey training at issue bore a

different course number. id

APP. 20

Osahar's complaint relating to MODSS training is

less clear. He was unable to say exactly when in

2003 or 2004 the training occurred but alleged that a

white employee, Bob Aquilino, had been chosen to

receive the training. However, the record indicates

that Bob Aquilino retired in 2000, well before the

alleged training took place.

Records of employee training through the end of

December 2005 were submitted for employees

Osahar, Sosa, Denis and Fojo, and other employees

assigned to Tour 2. These records demonstrate that

the USPS provides a significant number of training

courses throughout the year. For example, Osahar

attended 60 training courses between August 1982

and October 2005; nine of those were between 2001

and 2004 and seven were in 2005. R(Accordian 2)-

127, Exh 269. Denis attended 40 between September

APP. 21

1990 and June 2005; five were between 2001 and

2004 and three were in 2005. Id., Exh. 267. Sosa

attended 52 between January 1987 and June 2005;

ten were between 2001 and 2004 and two were in

2005. Id. , Exh. 263. Fojo attended 50 between June

1989 and October 2005; seven were between 2001

and 2004 and six were in 2005.

D. Overtime

Overtime is assigned on an “as needed” basis, in

accordance with following procedure: At the

beginning of each quarter, with respect to each Tour,

a list is posted with all the names of the ET's. Each

employee then initials the list to indicate whether or

not they would like to be considered for overtime.

Based upon these responses, the Overtime Desired

List (OTDL) is created according to senicrity.

Thereafter, if a need for overtime arises ona

APP. 22

particular day and Tour, upper level management

looks at the list to determine which employees are

off on that day, and therefore available to be called

in to work a sixth day as overtime. From that group,

management looks to see which of those employees

has the skills and/or certifications needed for the

overtime job at issue. From the group of available,

qualified employees, the person who is next on the

overtime rotation list is selected. Once a person

works a sixth day of overtime, that person's name

goes to the bottom of the list.

In the affidavit in support of one of his EEO

complaints, Osahar averred that during the week

before 9 December 2002 he was bypassed for his

Monday of overtime, but junior white and/or

Hispanic ETs were told they could work a sixth day

of overtime; and few weeks later, Denis worked

APP. 23

overtime on AFCS, for which Osahar asserted Denis

was “not trained.” R (Accordian 1)-78, Exh. 82, Aff. A

at 7. The records provided for the twenty-second pay

period of 2002 through the second pay period of 2003

reflect that Denis worked sixth-day overtime four

times on Fridays and twice on Thursday, and

Osahar worked overtime seven times on Mondays.

See R3-76, Exh. 64 at 123-34. It is undisputed tha

Denis did not have the same days off as Osahar at

this point. Thus, they could not have been in

competition for the same sixth day of overtime

work.3

With respect to the complaint in which Osahar

asserts unfairness in the overtime rotation including

3 When asked, at his deposition, to explain his claim regarding

the opportunity to work a sixth day of overtime, Osahar could

not explain how evidence of overtime worked by people with

different days off, on days he was already working his regular

schedule, would demonstrate discrimination or retaliation

against him. See R4-120 at 114-17.

APP. 24

16 November 2002, Osahar was asked specifically

which individual received overtime when Osahar did

not. Osahar identified Oscar Sosa, Mike Denis,

Robert Williams, and “possibly some other people.”

R4-120 at 201. Robert Williams is a junior African-

American ET. Osahar does not, in his briefs, point to

any place in the record which specifically identifies a

day on which he was available to work a sixth day of

overtime but wrongfully deprived of that opportunity

because the USPS assigned that day to someone

else.‘ We are unable to find any occasion in the

4 Overtime records for the last quarter of 2002 do include two

instances in which Sosa worked a sixth day of overtime on a

Sunday in the same week that Osahar did not work any

overtime. But, overall, Sosa only worked two sixth days more

than Osahar, and one during a week in which Osahar was

apparently not at work since he does not appear to have

worked his regular Saturday workday either. See R

(Accordian’)- 78, Exh 82, Aff. C at 32-43 (see particularly 33).

Other records covering the first week of the twenty-first pay

period in 2003 through the second week of the sixth pay period

in 2004, indicate that, with the exception of 2003-21-1 and

2003-24-1, Denis's regular days were Saturday through

Wednesday. R(Accordian 2)-127, Exh. 293 at 657-724. There is

APP. 25

record upon which Osahar did not receive a sixth

day of overtime to which he was entitled, or any

instance of a junior employee receiving more sixth

days of overtime on Sundays and Mondays than

Osahar did.5

E. Procedural History

In response to Osahar’s complaint, the USPS

asserted, inter alia , that al! of the employment

actions alleged in the complaint were taken for

legitimate, non-discriminatory reasons, and that

Osahar failed to exhaust his administrative

one week, 2003-21-1, during which he appears to have worked

regular days Monday through Friday and a sixth day of

overtime the Sunday before that. Id at 701. Corresponding

records for Osahar during this period are not included. Further,

Osahar fails to explain exactly how any of these records

demonstrate that he was available for overtime, but denied it

in favor of someone else.

5 Because Osahar's appeal is limited to issues related to

training and overtime opportunities, we omit further discussion

of facts related to other workplace incidents regarding tool

boxes, trash, and access to work areas which were raised only

in Osahar’s complaint.

APP. 26

remedies as to certain of his claims. After discovery

was complete, the USPS moved for summary

judgment as to all claims. Osahar filed a motion for

summary judgment as well.

Adopting a report and recommendation (R&R)

made by the magistrate judge, the district court

granted the USPS motion for summary judgment

and denied Osahar’s amended motion for summary

judgemt. The magistrate judge had made the

following findings with regard to Osahar’s claims: (1)

Osahar could not show disparate treatment based on

his race because he could not establish an adverse

employment action, or that similarly situated

employees who were not in the protected class were

treated more favorably; (2) he could not establish a

prima facie case of retaliation; (3) he could not show

that his employer's proferred legitimate, non-

APP. 27

discriminatory reasons for its actions were a pretext

for unlawful discrimination or retaliation; (4) the

incidents alleged were not sufficiently pervasive or

severe to create a hostile work environment; (5) he

failed to exhaust his administrative remedies with

regard to his breach of contract claim; (6) the district

court lacked jurisdiction to consider Osahar’s claims

under 42 U.S.C. §§ 1981 and 1983 because the

Postmaster “is an official of the United States acting

in his official capacity, and the United States had

not waived its sovereign immunity as to” these

claims, R7-158 at 45, and Osahar’s claim pursuant to

§ 1983 also failed because that section applies only to

violations of federal constitutional rights under the

color of stated law; and (7) Osahar’s claim of unfair

union representation had been improperly included

in his response to the Postmaster General's motion

APP. 28

for summary judgment because Osahar had not

asserted that claim in his final complaint, and even

if the court were to consider it on the merits, the

Union's decision not to take Osahar’s grievance to

arbitration was not so far outside a wide range of

reasonableness so as to be irrational.

On appeal, Osahar rehashes his arguments

regarding the USPS's aileged discriminatory and

retaliatory decisions regarding job assignments, and

training and overtime opportunities. He also asserts

his arguments regarding clais pursuant to 42 U.S.C.

§§ 1981 and 1983 and exhaustion of administrative

remedies.&

6 Osahar additionally asserts that the district court erred by

not addressing his disparate impact claim. A review of the

record shows that, although Osahar made a passing reference

to a disparate impact claim in the first three pages of his

complaint, he never presented argument in support of the

claim. For this reason, he may not raise the issue on appeal.

See Narey v. Dean, 32 F.3d 1521, 1526-27 (11% Cir. 1994)

(subject to five exceptions, none of which are applicable here,

APP. 29

If. DISCUSSION

We review a district court’s grant of summary

judgment is reviewed de novo. Rojas v. Fla. Dep't of

Bus. & Prof'l Regulations Pari-Mutual, 285 F.3d

1339, 1341 (11™ Cir. 2002) (per curiam). A court

shall grant summary judgment when the evidence

before it shows “that there is no genuine tssue as to

any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed.

“appellate courts generally will not consider an issue or theory

that was not raised in the district court,”).

Similarly, Osahar contends that the district court erred in

granting summary judgment in favor of the Postmaster

General on his unfair representation clatm pursuant to the

Labor Management Relations Act, 29 U.S.C. § 185. Although

Osahar did argue this claim before the district court at the

summary judgment stage, it goes beyond the relief he

requested in his final amended complaint. Accordingly, the

district court properly granted summary judgment See Gilmour

v. Gates, McDonald & Co., 382 F. 3d 1312, 1314-15 (11™ Cir.

2004) (per curiam) (new claims may not be added in a brief

opposing summary judgment).

Finally, Osahar has abandoned his hostile work

environment claim by not arguing in support of it in his briefs

on appeal. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570,

1573 n.6 (11 Cir. 1989) (issue is waived on appeal where party

“elaborates no arguments on the merits as to [the] issue in its

initial or reply brief”).

APP. 30

R.Civ. P. 56(c ). “When deciding whether summary

judgment is appropriate, all evidence and reasonable

factual inferences drawn therefrom are reviewed ina

light most favorable to the non-moving party.” Rojas,

285 F.3d at 1341-42 (citation and quotations

omitted).

“Pro se pleadings are held to a less stringent

standard than pleadings drafted by attorneys and

will, therefore, be liberally construed” Tannenbaum

v. United States 148 F.3d 1262, 1263 (11% Cir. 1998)

(per curiam). However, in the context of summary

judgment, even though pro se pleadings are entitled

to a more lenient interpretation, “the plaintiff must

still meet the essential burden of establishing that

there is a genuine issue as to a fact material to his

case.” Holified v. Reno, 115

APP. 31

F.3d 1555, 1561 (11% Cir. 1997) (per curiam)

(appending district court order). Further, even for

pro se litigants, “issues not raised below are

normally deemed waived.” Tannenbaum , 148

F .3d at 1263.

A. Title Vil Disparate Treatment

Title VII prohibits an employer from

discriminating against a person based, inter alia ,

on that person’s race. See 42 U.S.C. § 2000e-2(a)(1).”

Under Title VII, a “plaintiff always bears the

ultimate burden of proving discrimatory treatment

by a preponderance of the evidence.” Earley v.

Champion Int'l Corp.,907 F.2d 1077, 1081 (11% Cir.

1990). Absent direct evidence of an intent to

discriminate, a plaintiff may prove his case through

circumstantial evidence, using the burden-shifting

742 U.S.C. § 2000e-16 extends the protection afforded by Title

VII to employees of the USPS.

APP. 32

framework established in McDonnell Douglas Corp.

v. Green,411 U.S. 792, 93 S.Ct. 1817 (1973). The first

step is to establish a prima facie case of racial

discrimination, which a plaintiff may do by showing

that: (1) belongs to a protected class; (2) he was

qualified to do the job; (3) he was subjected to

adverse employment action; and (4) his employer

treated similarly situated employees outside his

class more favorably. See Knight v. Baptist Hosp. of

Miami, !nc., 330 F.3d 1313, 1316 (11% Cir. 2003) (per

curiam ). An adverse employment action must effect

“a serious and material change in the terms,

conditions, or privileges of employment.” Davis v.

Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11%

Cir. 2001). Further, regardless of the employee's

subjective view, “the employment action must be

APP. 33

materially adverse as viewed by a reasonable person

in the circumstances.”® Id.

lf the plaintiff establishes a prima facie, the

burden shifts to the employer to “articulate some

legitimate, nondiscriminatory reason’ for the

adverse employment action. McDonnell Douglas,

471 U.S. at 802, 93 S. Ct. at 1824. If the employer

does this, the burden shifts back to the plaintiff to

show that the employer's stated reason was a pretext

for discrimination. See id. at 804, 93 S. Ct.

at 1825; Holifield, 115 F.3d at 1565. The inquiry into

pretext requires us “in view of all the evidence, [to]

determine whether the plaintiff has cast sufficient

doubt on the defendant's proffered

8 This standard is unaffected by the Supreme Court's decision

in Burlington Northern & Santa Fe Ry. v. White, U.S... 126

S.Ct. 24005 (2006). The Court clarified that its discussion of the

standard for an adverse employment action with regard to

retaliation claims did not apply to substantive discrimination

Claims brought pursuant to Title VII. See id. at 2414.

APP. 34

nondiscriminatory reasons to permit a reasonable

factfinder to conclude that the employer's proffered

legitimate reasons were not what actually motivated

its conduct.” Combs v. Plantation Patterns , 106 F.3d

1519, 1538 (11% Cir. 1997) (citation and quotations

omitted). “[A] plaintiff ihies not establish [pretext]

merely by questioning the wisdom of the employer's

reason.” Id. at 1543. Instead, the plaintiff must

“meet [the employer's reason] head on and rebut it.”

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088

(11 Cir 2004).

First, during the period at issue, Osahar was

never suspended, nor did he suffer any reduction in

wages, job title, seniority status or any other

benefits. He also attended more training courses

than all but one of the co-workers about whom he

complains; Sosa attended ten courses between 2001

APP. 35

and 2004 while Osahar attended nine. As far as the

record reflects, he worked a comparable number of

sixth days of overtime to each of them of them as

well. Accordingly, we find that he has not raised a

genuine issue of material fact as to an adverse

employment action sufficient to qualify him for a

disparate treatment claim. See Davis, 245 F.3d at

1239.

Second, even assuming that the extent to which

Osahar alleges to have been bypassed for overtime

assignments did rise to the level of adverse

employment action. Osahar has failed to point to any

record evidence?’ that he was both qualified and

available to work overtime under the USPS system

for assigning it, but was passed over in favor of

9 Osahar does allude to documentary evidence not contained in

the record, but does not even go so far as to specify the nature

of this evidence. Appellannt’s Br. At 23 (“See exhibits supplied

will supply [sic] on Monday”).

APP. 36

someone else, Further, he does not dispute Cole’s

statement that USPS employees are not entitled to

overtime and that Osahar has worked at least one

sixth day of overtime in every quarter since Cole

became Osahar’s immediate supervisor in late 2000.

Accordingly, we find that Osahar has failed to raise

a genuine issue of material fact as to whether the

reasons given by the USPS as to why Osahar was

not offered a sixth-day overtime assignment as often

as he might have liked were pretext for racial

discrimination.

Third, even assuming that Osahar could establish

a prima facie case of disparate treatment as to

training course, Osahar does not dispute that he has

not attended formal TMS training or that he has

never volunteered to attend. Neither does he point to

any evidence that calls into doubt Cole's assertion

APP.37

that he needed someone who was TMS trained to do

the network cabling courses. Similarly, Osahar has

failed to point to any evidence that might rebut

Cole's assertion that Osahar was not selected for a

certain Allen-Bradley training course because

Osahar had already attended a course that covered

the same material. Accordingly, we find that Osahar

has not offered sufficient evidence to raise a question

as to whether the USPS's proffered legitimate, non-

discriminatory reasons for not sending him to

certain training programs — that he was not Tray

Management System ("TMS") trained (in connection

with network cabling) and that he had already

received some Allen Bradley PLC training — were

pretext for unlawful discrimination. See Wilson , 376

F.3d at 1088.

B. Title VII Retaliation

APP. 38

Title VII also prohibits retaliation against an

employee “because he has opposed any practice made

an unlawful employment practice by [Title V11], or

because he has made a charge, testified, assisted, or

participated in any manner in an investigation,

proceeding, or hearing [thereunder]. 42 U.S.C. §

2000e-3(a). "A prima facie case of retaliation

contains three elements: first, the plaintiff engaged

in statutorily protected conduct; second, the plaintiff

suffered an adverse employment action; and finally,

the adverse action was causally related to the

protected expression.” Williams v. Motorola, Inc.,

303 F.3d 1284, 1291 (11™ Cir. 2002) (quotations

omitted). Just as in a case of substantive

discrimination, “[o]nce the plaintiff establishes his

prima facie case [of retaliation], the employer must

proffer a legitimate, non-discriminatory reason for

APP. 39

the adverse employment action. If the employer

offers such legitimate reasons for the employment

action, the plaintiff must then demonstrate that the

employer's proffered explanation is a pretext for

retaliation.” Holifield, 115 F.3d at 1566 (citation

omitted).

After the district court granted summary

judgment in this case, the Supreme Court clarified

that, in the context of claims brought pursuant to

the anti-retaliation provision of Title Vil, an adverse

employment action includes those “employer action

that would have been materially adverse to a

reasonable employee or job applicant.” Burlington N.

& Santa Fe Ry. v. White, _U.S.__, 126 S.Ct. 2405,

2409 (2006). Consequently, the district court's

conclusion, that Osahar had not demonstrated that

he suffered an adverse employment action, is based

APP. 40

on a legal standard that is no longer controlling.

Nevertheless, for the same reasons discussed in the

context of his disparate treatment claims, Osahar

has failed to raise a genuine issue of material fact as

to whether the legitimate, non-discriminatory

reasons for its actions articulated by the USPS

might be a pretext for unlawful retaliation. See

Holified, 115 F.3d at 1566. Therefore, summary

judgment was properly granted in favor of the

Postmaster General.

C. Claims Under 42 U.S.C. §§ 1981 and 1983

Osahar argues that the district court erred by

dismissing his claims brought pursuant to 42 U.S.C.

§§ 1981 and 1983 for lack of subject matter

jurisdiction. Because 42 U.S.C. §§ 1981 and 1983

apply only against impairment of equal rights, or

violations of federal or constitutional rights, under

APP. 41

color of state law, and because Osahar complains

about actions taken under color of federal law, those

claims were due to be dismissed for failure to state a

claim upon which relief could be granted. 42 U.S.C. §

1981 (c); 42 U.S.C. § 1983; Lee v. Hughes, 145 F.3d

1272, 1277 & n.5 (11% Cir. 1998).

Nevertheless, because Osahar brings his claims

pro se we also consider the possibility of a Bivens-

type constitutional tort claim.'° Given jurisdiction,

creation of a Bivens -type remedy is only

appropriate “where (1) the petitioner has no

alternative means of obtaining redress, and (2) there

are no special factors counseling hesitation.” Lee v.

Hughes, 145 F.3d 1272, 1275 (11™ Cir. 1998)

(quotation and citation omitted). As we have

previously observed, Congress has already provided

10 Bivens v. Six Unknown Named Agents of the Fed. Bureau of

Narcotics 403 U.S. 388, 91 S.Ct. 1999 (1971).

APP. 42

an adequate alternative means of obtaining redress

in the form of “final and binding grievance provisions

in the Postal Service collective bargaining

agreements, 39 U.S.C. § 12106(b).” McCollum v.

Bolger, 794 F.2d 602, 607 (11° Cir. 1986) (retying on

Bush v. Lucas, 462 U.S. 367, 103 S. Ct. 2404 (1983)).

Accordingly, Osahar may not maintain any

constitutional tort action in connection with his

employment discrimination claims.

Even if he could, we have confirmed that Title VII

“is the exclusive remedy for a Postal Service

employee alleging illegal discrimination.” Nagy v.

U.S. Postal Service, 773 F.2d 1190, 1192 (11% Cir.

1985) (citing Brown v. Gen.Servs. Admin., 425 U.S.

820, 96 S.Ct. 1961 (1976)). Accordingly, all of

Osahar's non-Title VIl employment discrimination

and retaliation claims, which were asserted based on

APP. 43

the same evidence, were properly dismissed on that

basis.

D. Breach of Settlement Agreements

Finally, Osahar argues that the district court

erred by finding that he failed to exhaust his

administrative remedies with regard to the alleged

breach of the two settlement agreements.

Exhaustion of administrative remedies is a

precondition to bringing any Title VII claim. See

Brown v. General Servs. Admin., 425 U.S. 820, 832

(1976); Crawford v. Babbitt, 186 F.3d 1322, 1326

(11 Cir. 1999).

The settlement agreements specifically state that

in the event of a breach, Osahar must file a written

request with the USPS either to reinstate the settled

complaint for further processing from the point at

which processing ceased under the terms of the

APP. 44

settlement agreement or to reinstate the counseling

process. R(Accordian 2)-127, Exs. 289-91. Further,

EEOC regulations require a complaintant, within 30

days of the time he knew or should have known of

any alleged noncompliance. 29 C.F.R. 1614.504(a).

The record does not reflect that Osahar ever

contacted the USPS EEO office alleging breach of

either settlement agreement identified in his

complaint or that he filed a written request to

reinstate the settled complaint as mandated by the

agreements. Because Osahar has failed to perform

the required acts, he has failed to exhaust his

administrative remedies for the alleged breaches of

settlement agreements. The district court, thus,

property found that it lacked jurisdiction to consider

those claims.

lif. CONCLUSION

APP. 45

Osahar appeals the district court's grant of

summary judgment in favor of the Postmaster

General as to all of his employment discrimination

and related claims, the court properly granted

summary judgment in favor of the Postmaster

General. Because he failed to exhaust his

administrative remedies with respect to his breach

of settlement agreement claims, and because Title

VII provides the exclusive remedy for employment

discrimination actions brought by federal employees,

his remaining claims were properly dismissed.

Accordingly, we

AFFIRM.

APP. 46

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case Number: 04-22267-CIV-MORENO

OMAR R. OSAHAR,

Plaintiff,

vs.

JOHN POTTER, Postmaster General of the

United States,

Defendant.

FINAL JUDGMENT

Pursuant to Fed. R. Civ. P. 56 and 58, and in

accordance with the reasons stated in the Court's

Order Granting Summary Judgment on April 11,

2006, judgment is entered in favor “ the Defendant

John Potter, Postmaster General of the United

States, and against Plaintiff Omar R. Osahar.

APP. 47

DONE AND ORDERED in Open Court at Miami,

Florida, this 1st day of October, 2006

IS/

FEDERICO A. MORENO

UNITED STATES DISTRICT JUDGE

Copies provided to:

Omar Osahar, pro se

10941 S.W. 143" Terrace-6554

Richmond Heights, Florida 33176

Aloyma M. Sanchez, AUSA

APP. 48

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case Number: 04-22267-C!|V-MORENO

OMAR R. OSAHAR,

Plaintiff,

VS.

JOHN POTTER, Postmaster General of the

United States,

Defendant.

ORDER ADOPTING MAGISTRATE’'S REPORT

AND RECOMMENDATION AND GRANTING

DEFENDANT'S MOTION FOR SUMMARY

JUDGMENT

THE MATTER was referred to the Honorable

Andrea M. Simonton, United States Magistrate

Judge, for a Report and Recommendation (D.E. No.

77) on August 24, 2005. The Magistrate Judge filed a

APP. 49

Report and Recommendation /D.E. No. 158) on

March 21, 2006. The Court has reviewed the

entire file and record. The Court has made a de novo

review of the issues that the objections to the

Magistrate Judge’s Report and Recommendation

present, and being otherwise fully advised in the

premises, it is

ADJUDGED that United States Magistrate

Judge Andrea M. Simonton's Report and

Recommendation (D.E. No. 158) on March 21, 2006

is AFFIRMED and ADOPTED.

Accordingly, it is

ADJUDGED that:

(1) Defendant's Motion for Summary Judgment

(D.E. No.

122), filed on January 17, 2006, is GRANTED.

APP. 50

(2) Plaintiff's Amended Motion for Summary

Judgment

(D.E. No. 126), filed on January 18, 2006, is

DENIED.

(3) All other pending motions in this case are

DENIED

AS MOOT.

DONE AND ORDERED in Chambers at Miami,

Fiorida, this 10 day of April, 2006

IS/

FEDERICO A. MORENO

UNITED STATES DISTRICT JUDGE

Copies provided to:

Omar Osahar, pro se

10941 S.W. 143°¢ Terrace-6554

Richmond Heights, Florida 33176

Aloyma M. Sanchez, AUSA

APP. 51

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 04-22267-CIV-MORENO/SIMONTON

OMAR OSAHAR,

Plaintiff,

Vv.

JOHN POTTER, Postmaster General,

Defendant.

REPORT AND RECOMMEDATION RE: MOTIONS

FOR SUMMARY JUDGMENT

Presently pending before the Court are

Defendant's Motion for Summary judgment (DE #

122, filed 1/17/06) and Plaintiff's Amended Motion

for Summary Judgment (DE # 126, filed 1/18/06).

This case is referred to the undersigned Magistrate

Judge for all pretrial proceedings (DE # 77). The

motions are fully briefed (DE ##120, 131, 132, 133,

135,136,137). For the reasons stated below, it is

recommended that Defendant's Motion for Summary

Judgment be granted and that Plaintiff's Amended

Motion for Summary Judgment be denied.

|. Introduction

APP. 52

Plaintiff Omar Osahar (hereafter “Osahar”), is

proceeding under his 2" Corrected Final Complaint

(hereafter Final Complaint), against Defendant John

Potter in his capacity as Postmaster General of the

United States Postal Service (hereafter referred to as

“Defendant”) (DE # 30). In his Final Complaint,

Osahar alleges a loss of liberty given to senior

employees in an agency with a seniority system and

training policy in violation of the equal protection

clause of the Fifth Amendment; and violation fo

individual contracts concerning fairness in

employment with the agency and laws of the State of

Florida in violation of the equal protection clause of

the Fifth Amendment (DE # 30 at 11). Osahar also

contends that he has filed this action pursuant to

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§2000e, et seq. (DE # 30 at 2, 4/2). Osahar further

contends that this Court has jurisdiction over his

claims pursuant to 42 U.S.C. §§ 1981, 1983; the

equal protection clause of the Fifth Amendment; and

the Labor Management Relations Act, 28 U.S.C.

§1367(a) and 29 U.S.C. §185 (DE # 30 at 2-4, |J2-4).'

Osahar alleges that he has commenced this action

under Agency Complaints: 1-H-331-0024-04

(hereafter 24-04), 1-H-331-0036-03(hereafter 36-03),

- 1-H-331-0007-04 (hereafter 07-04), 1-H-331-0013-02

(hereafter 13-02), 1-H-331-0027-03(hereafter 27-03),

1-H-331-0059-02(hereafter 59-02); 1-H-331-0041-04

1 Although Plaintiff asserts jurisdiction pursuant to the Labor

Management Relations Act, the Comptaint contains no facts

regarding a violation of this Act (DE # 30).

APP. 53

(hereafter 41-04)?: and 1-H-331-0049-04), all of

which have been pending for over six months

without a final agency determination (DE # 30 at 5-

9, /]10-19).4

In his Final Complaint, Osahar alleges initially

that he is an African-American who is employed by

the United States Postal Service and who has

engaged in protected activity (DE # 30 at 4, 95).

Osahar states that he [h]was been employed by the

Postal Service since 1974, and that from the early

1980's he has held the job title of electronics

technician (DE # 30 at 4, 4/7). Osahar states that he

previously prevailed in two discrimination suits he

brought against Defendant, and that due to this,

race discrimination and retaliation against him have

continued, which has competied him to file EEOC

Complaints due to disparate treatment, disparate

impact and a hostile work environment is a

continuing offense (DE # 30 at 5, 4] 8-9).

2 The parties entered into a stipulation that this Agency

Complaint Mumber is actually 1H 331 0041 04, not 1H 3310041

03 as stated in the Final Complaint (DE # 122 at 4, fn. 4).

3 The Compiaint does not attach the relevant EEO Complaints;

nor does record in this case does include them all. The records

contains various portions of the investigative file with respect

to Complaints # 36-03 (DE #:76 at Ex. 64); DE # 78 at Ex. 82); #

41-04 (DE # 24 at Ex. |; DE # 107 at Ex. 233, Ex. 234); DE #

131 at Ex. 8); and # 49-04 (DE # 27 at Ex. J; DE # 78 at Ex. 65,

Ex. 69, Ex. 70, Ex. 71, Ex. 90, Ex. 116; DE 107 at Ex. 17, Ex.

69).

APP. 54

Osahar then alleges the following facts to support

his claims, which he groups according to his relevant

agency complaint. The events alleged in the

Complaint occurred between October 2001 and

August 2004. They have been arranged in

chronological order below. In this Report, the agency

complaint numbers are referred to by the last four

digits of the number.

On er about October 22-23, 2001, a junior white

electronics technician, instead of Osahar, was

allowed to make primary software loads, which

encouraged co-workers to disrespect Osahar (# 13-

02) (DE # 30 at 4113).

On or about May 21, 2002, as part of a continuous

and systematic policy of retaliation and

discrimination, a) Osahar's blue roll around tool box

was broken into on several occasions, b) Supervisor

Robert Cole took Osahar's camera away from him

when Osahar tried to take pictures of harassment,

even though Supervisor James Burney and others

were allowed to use cameras on the work room floor,

c) tasks which Osahar preferred were shifted to Tour

1 which affected overtime pay; d) disrespect was

> encouraged by unfairness in assignment and task; e)

on or about May 29, 2002, Supervisor Robert Cole

told Osahar that Osahar could not do a certain task

and controlled Osahar’s tasks to restrict Osahar’s

involvement in certain procedures and f) continuous

harassment on the work room floor (# 59-02) (DE #

30 at 915).

APP. 55

On or about November 16, 2002, a) Osahar was

decertified on powered industrial equipment because

Supervisor Robert Cole and other management

officials scheduled Osahar to go to training on the

day after his last day of certification, making Osahar

lose privileges or have his privileges suspended, b)

the Postal Service was arbitrary and capricious in

overtime rotation, by coordinating the task to give

junior white and Hispanic employees the advantage,

which deprived Osahar of his seniority rights (# 27-

03) (DE # 30 at 114).

On or about December 3-9, 2002 and January 9-

10, 2003, Osahar was systematically bypassed or

told that he could not work sixth day overtime (# 36-

03) (DE # 30 atq11).

On or about December 3-9, 2003 through

October 28, 2003, Osahar was a) not selected for

certain training, b) not given an award for work

performed where he had done most of the work and

others received the awards and c) was restricted

from certain work assignments (# 07-04) (DE # 30 at

412).

On December 31, 2003, a) a co-worker was

allowed to use two time cards, b) a co-worker was

allowed access to lockout cabinets when Osahar was

not allowed access, c) two co-workers

blocked/delayed Osahar's access to his assigned task;

d) Osahar’s tool box was pushed out of his assigned

area, e) other created an unwanted appearance in

Osahar’s work area and f) another co-worker has

APP. 56

been allowed to perform certain work which has

given Osahar limited experience in that area of work

(# 24-04) (DE # 30 at 4110).

From August 23-26, 2004, Osahar suffered from

a) unfairness, retaliation and discrimination in

training and overtime, by not being selected for two

Network Cabling training courses (32601-39 and

32601-40), b) the arbitrary and capricious use of

training seniority qualification and safety in the use

of assignments, overtime and promotions, and c)

discrimination by encouraging disrespect by

unfairness in assignments, overtime, terms and

Conditions of employment and loss of liberty of the

equal protection of the law related to seniority and

qualifications (# 41-04)( DE #30 at ¥ 16).

At an unspecified time, Osahar suffered a “loss

of the liberty of seniority in the selection process”

when he was not selected for a training course for

Basic Programming of Allen-Bradley PLCS (#55602-

30) (4 49-04) (DE # 30 at 419). Documents and

depositions filed in connection with the pending

motions for summary judgment make it clear that

the training occurred between October 4-8, 2004, and

that the date of selection for this training was July

30, 2004 (DE #131, Giambrone Depo. at Ex. 2)[.]

Osanar also alleges that due to the previously

cited EEO cases, Defendant has breached individual

settlement contracts with Osahar dated Decémber

12, 1989 and June 2, 1992 (DE # 30 at 10, 124 and

Ex. K and ex. L).

APP. 57

Although Osahar has combined his claims into

one count, an examination of these claims reveals

that he is essentially claiming (1) disparate

treatment in that he was subjected to racial

discrimination based on specific adverse actions; (2)

he was subjected to a hostile work environment

based on race; (3) he was subjected to retaliation

based on his prior EEO complaints; and (4)

Defendant breached two settlement agreements

reached in connection with prior EEO complaints.

Osahar seeks: 1) a declaration that he has

suffered acts of discrimination at the hands of

Defendant; 2) damages, back pay, prejudgment

interest and lost benefits; 3) compensatory damages

for pain, suffering and humiliation; 4) punitive,

equitable and injunctive relief including training and

overtime opportunities; 5) costs; and 6) any other

relief that is just and equitable (DE # 30 at 11-12).

Defendant has filed an Answer to this Complaint,

in which it admits that the formal complaints of

discrimination were filed, and that Osahar is an

employee of Defendant, but denies the substantive

allegations (DE # 44). As affirmative defenses,

Defendant alieges that Osahar has failed to comply

- with the statute of limitations contained in Title VII

of the Civil Rights Act with regard to “some” of the

allegations; that Osahar has failed to timely exhaust

mandatory administrative remedies with regard to

“most” of the allegations; that Osahar is not entitled

to punitive damages; that Osahar fails to state a

claim against the United States; that any adverse

employment actions were based upon legitimate,

APP. 58

non-discriminatory reasons; that Defendant

exercised reasonable care to prevent and promptly

correct any allegedly improper behavior, that Osahar

unreasonably failed to take advantage of any

preventive or corrective opportunities; and that

Osahar is not entitled to injunctive relief.

The instant motions followed.

ll. Statement of Facts

Since the undersigned is recommending that

summary judgment be granted in favor of

Defendant, these facts are based upon the evidence

as viewed in the light most favorable to Osahar. At

the outset, the undersigned notes that each of the

specific incidents alleged in the Complaint and

described above are supported by Osahar’s testimony

at his deposition, and in his sworn Declaration;

therefore, unless indicated below, those allegations

are taken as true with respect to the occurrence of

the events.

A. Background

Osahar has been employed by the United States

Postal Service since 1974 (Osahar Depo. at 8)*. At all

times relevant to this litigation, he has held the

position of Electronics Technician, and has been

assigned to work on Tour 2, which is the tour of

4 Osahar's deposition is contained in DE # 120. Osahar has also

filed a sworn Declaration which is contained in DE # 127.

APP. 59

duty from 6:30 a.m. to 3:00 p.m., five days a week

(Osahar Depo. at 8-9; Cole Declaration at J 11). At

all relevant times, his days off have been Sunday

and Monday, and therefore these are the days he is

eligible to work a sixth day for overtime

compensation. Tour 2 is the preventive maintenance

tour and the electronic technicians on this Tour

perform the cleaning, preparation and testing of all

postal equipment. Daily assignments are made

based on the needs of the United States Postal

Service (“USPS”) and the maintenance requirement

of each individual piece of equipment (Osahar Depo.

at 12-13; Cole Declaration at | 17). The particular

work assignment given to an electronics technician

on Tour 2 during the eight-hour work day does not

affect the technician's wages, job title, seniority or

other employment benefits (Cole Declarationn at 4

22).

Robert Cole has been Plaintiff's immediate

supervisor from approximately late 2000 to the

present (Osahar Depo. at 13014; Cole Declaration 9{|

4-5). Cole was supervised by DeWayne Wilkie, and

Wilkie was supervised by Joseph Giambrone

(Giambrone Depo. at 77-78).§

5 This Declaration of Robert Cole, Plaintiffs immediate

supervisor, is attached at DE # 124. The record also contains

additional sworn statements of Cole and Cole's deposition.

6 The deposition of Joseph Giambrone, who was the Manager

two levels above Osahar at the Miami Postal Facility, is

contained in DE # 131.

APP. 60

On November 16, 2002, Osahar's position was

upgraded from a level 9 to a level 10; and on

November 29, 2003, his position was upgraded from

a level 10 to a level 11 (Osahar Depo. at 10-11;

Declaration of Marija Weinman,’ 4] 4-5). Osahar is

number three on the seniority list, and he has

seniority over all of the co-workers about whom he

complains in this case (Giambrone Depo. at 27 and

Ex. 3).

The wages, hours and working conditions of

Postal Service maintenance craft employees such as

Osahar are governed by Article 38 of the collective

bargaining agreement in effect between the

American Postal Workers Union and the Postal

Service to determine daily tasks and assignments.

The Agreement requires that all training

opportunities in levels 1 through 7 be offered first to

the senior qualified volunteer within the

occupational group, level and tour where the need

for the skills exists. Job related training in levels 8,

9, and 10 also must be selected from volunteers

within the occupational group, level and tour where

the need for the skills exists, except that the

employer may choose not to select a volunteer who

has attended training for 6 or more weeks during the

previous 12 months. Job related training in levets 8,

9, and 10 is not subject to seniority. The Agreement

contains no provision with respect to selection for

training for persons above level 10 (DE # 127,

Ex.252; Cole Declaration at 94 13-20).

? The Declaration of Marija Weinman, USPS Human Retations

Specialist, is contained in DE # 124).

APP. 61

During the time period covered by this

Complaint, Osahar has not been suspended, nor has

he lost any pay or benenfits (Osahar Depo. at 14-16).

B. Prior EEO Activity

It is undisputed that prior to and during the time

of the events alleged in this Complaint, Osahar had

filed formal complaints of discrimination, and that

his supervisors were aware of this. Settlement

Agreements were reached in Case No. 3-S-1006-90

(DE # 30, Final Complaint Ex. K) and Case No. 3-S-

1914-92 (DE # 30, Final Complaint Ex. L). The first

settlement agreement, which was executed on

December 12, 1989, states that Osahar “will have

the same opportunities as other E.T.’s to work on

equipment and do file updating and software

changes. Complainant is to be provided the same

training and have access to information and

procedures regarding file updating and software

changes as other ET's. The complainant is to be

treated equally and fairly as other employees. He

will be treated the same as Mr. Foland and Mr.

Aquilino on learning and working PSDS I]. He will

be given same opportunity to become proficient as

other employees. Based on merit, Mr. Osahar will be

granted awards as all other ET’s Specifically if Bob

Foland and Mr. Aquilino receive awards for

installation of PSDS System, since | also worked on

the system | receive the same award in relationship

to this process” (DE # 127, Ex. 290).

APP. 62

The second settlement agreement, which was

executed on June 2,1992, states, "I will be given the

opportunity to work in other areas as all other

employees and be given the chance to advance in

skills for upward mobility. In the future | will be

allowed to receive the opportunity to go to seminars

and train other ET’s in new systems. That I’m

treated and paid equal as other employees. Any and

all special assignments be [undecipherable] all

interested ET's. Schedule meeting and to abide by

this and all other EEO Settlements [including] 3-S-

1006-90 and 3-S-1157-91[undecipherable]” (DE #

127, Ex. 289).

These agreements provide that if the agency fails

to abide by the agreements, the U.S. Postal Service

will, “upon the complainant's written request,

reinstitute the counseling process.” (DE # 127, Ex. ##

289, 290).

In addition, Osahar prevailed in this Court in

1986 in Case No. 84-1782-CIV-ARONOVITZ, on a

Complaint he filed against the Postal Service

alleging discrimination (DE # 13 at Ex. A).

Osahar prevailed again in a case he filed in 1995,

which alleged racial discrimination and retaliation.

Case No. 95-753-CIV-LENARD. On September 25,

2001, the Court entered Judgment in the amount of

$5,000.00, based upon the jury's verdict.

On July 6, 2002, Osahar filed another

employment discrimination case against the Postal

APP. 63

Service, based on twelve EEO Complaints of

activities that occurred between 1995 and 2001,

including hostile work environment and denial of

training claims, in Case No. 02-22227-ClV-

MARTIZEZ. Summary Judgment was granted in

favor of the Postal Service on February 19, 2004 (DE

#101).

C. Training

On June 15, 2004, there were two memoranda

issued which solicited applications from persons

interested in attending training courses # 32601-39,

Offering 011 and # 32601-40, Offering 09

(Giambrone Depo. at 18-25 and Comp. Ex. ## 2, 3).

These courses were, respectively, Network Cabling

Copper Based System Tier 2, which was scheduled

for August 9-13, 2004; and Network Cabling Fiber

Based Systems Tier 3, which was scheduled for

August 23-26, 2004(id). Course 39 was not a

prerequisite for Course 40, but a review of the course

description states that both courses were necessary

to receive a Network Cabling Specialist certification

(Giambrone Depo. Comp. Ex. 3). Three persons

applied for these training courses-Omar Osahar,

Oscar Sosa and D. Sotolongo. Oscar Sosa was .

selected by Robert Cole to attend both of them.

Oscar Sosa is a white Hispanic male who is junior

in seniority to Osahar. Robert Cole made the

selection, and it was approved by Joseph Giambrone

(Giambrone Depo. at 20; Cole Declaration at §] 29).

Cole averred in his Declaration that the reason for

selecting Sosa was that he needed somebody who

APP. 64

was trained on the Tray Management System to be

trained with respect to network cabling (Cole

Declaration, 4] 29). A more detailed reason was

provided in Cole's Affidavit in response to the EEO

Complaint (DE # 78, Ex. 116): “The Miami plant has

a machine called TMS (tray management system)

which transports all mail in the facility to other

processing equipment. For about five

months the TMS system has been frequently

dropping out of service and causing delays. The TMS

trained E.T.’s have been working on the problem but

feel the problem is in the fiber-optic cabling running

throughout the system but none of them are trained

on trouble shooting or repairing these fiber-optic.

cables. Because it was in the best needs of the

service to have a TMS trained empioyee with the

cabling training, | chose Mr. Sosa because Mr.

Osahar is not TMS trained.” Oscar Sosa received

formal TMS training, as well as on the job training

in his work assignments (Sosa Declaration at 4] 4;8

DE # 127, Ex. 263 (Sosa’s training record)).9 It is

undisputed that Osahar is not TMS trained.

On July 13, 2004, a memorandum was issued

requesting volunteers to attend a training course

8 The Declaration of Oscar Sosa is attached as Ex. Bto DE #

135).

9 Osahar claims that there is a material issue of fact regarding

whether Sosa is TMS trained. However, his assertion is not

based on personal knowledge, and it is conclusively refuted bhy

the evidence in the record, including the Declaration of Sosa.

Moreover, Osahar has not attempted to dispute the fact that

Sosa’s job duties include the TMS machine and that Osahar's

job duties do not.

APP. 65

entitled, “Basic Programming of Allen-Bradley

PLCs, Course 55602-30 (Offering 001), which was

scheduled for October 4-8, 2004 (Giambrone Depo.,

Comp. Ex. C). There were seven applicants—Omar

Osahar, M. Denis (white male), G. Acker (white

male), D. Ewing (black male), D. Sotolongo (white

Hispanic male), J. Mims (white male), and Julio Fojo

(white Hispanic male). Julio Fojo was selected to

attend. Since Robert Cele was on vacation at the

time the selection was made, DeWayne Wilkie made

the selection, and Cole concurred in the selection

when he returned from vacation (Cole Depo. at 32-

33). In his Affidavit in response to the EEO

complaint, Wilkie avers that Fojo was selected

because while Fojo was trained to service the TMS

system which

Utilizes the Allen-Bradley PLCs, Fojo was not

actually trained on the Allen-Bradley PLCs (DE #

78, ex. # 69). In his response, Cole avers that Wilkie

advised him of the above selection, and that Cole

concurred. Coles also states that Osahar had

previously attended RCS training which included

the Allen-Bradley PLC training. When Cole

discussed this with Osahar, Osahar acknowledged

that he had received this training and that he was

trained on the Allen-Bradiey PLC, but that this was

a different course number (DE # 78, Ex. 65).

The acronym “PLC” stands for “programmable

logic controller.” A PLC is a computerized device

that runs the tray management system ("TMS")

machine. The machine is manufactured by two

10 The Deposition of Robert Cole is contained in DE # 107.

APP. 66

companies—Allen Bradley and Horner Electric. At

the Miami Postal facility, the TMS machine is run by

a Horner Electric brand PLC, but the only training

offered is by Allen Bradley; however the PLC system

is the same regardless of the manufacturer (DE #

135, Ex. A (Cole Declaration)).

When the Allen Bradley Basic Programming PLC

training was offered on three later occasions, Osahar

did not volunteer and three other persons, including

Mike Denis, were selected to attend this training (2™

Cole Declaration at{] 4).11 Mike Denis had previously

attended the RCS maintenance training (DE # 127,

Ex. 267 (Training record for Mike Denis). There is no

evidence that anyone who had not previously

attended the RCS maintenance training volunteered

for this course offering, or even who, other than the

selected, applied.

On November 24, 2004, a Memorandum was

issued directing certain persons to attend the

Biohazard Detection System Training ("“BDS") (DE #

127, Ex. #286). Training was scheduled for

November 20, 2004, between 5 a.m. and 1: 30 p.m.

for six employees, including Osahar. Five of those six

employees —Sotolongo, Owens, Fleming, Denis and

Osahar—had not volunteered and were drafted for

the training. The training was scheduled for an

additional six employees on December 1, 2004,

between 1 p.m and 9:30 p.m. Five of those six

employees had not volunteered and were drafted

(id.). The Biohazard Detection System provides

11 Robert Cole submitted a second Declaration, which is

attached as Ex. A. to Defendant's Response to Plaintiff's

Amended Motion for Summary Judgment (DE # 135).

APP. 67

continuous monitoring of mail received at United

States Postal Service facilities to ensure the safety of

the mail. The system collects the air as mail is

processed on the canceller system, and tests that air

for biohazards. If a contaminant, such as anthrax, is

detected, the system triggers and evacuation alarm.

(DE # 136, Ex. B).

Records of Employee Training through December

29, 2005 were submitted for employees Omar

Osahar, Mike Denis, Oscar Sosa, Julio Fojo, and

other employees assigned to Tour 2 (DE # 127, Exs.

## 261-272). These records demonstrate that the

Postal Service provides a significant number of

training courses throughout the year. For example,

Osahar has attended 60 training courses between

August 1982 and October 2005; 9 of which were

during the time between 2001 and 2004; and 7 of

which were in 2005 (DE # 127, Ex. 269). Denis has

attended 49 training courses between September

1990 and June 2005; 4 of which were during the time

between 2001 and 2004; and 3 of which were 2005

(DE # 127, Ex.267). Sosa has attended 52 training

courses between January 1987 and June 2005; 10 of

which were between 2001 and 2004; and 2 of which

were in 2005 (DE # 127, Ex. 263). Fojo has attended

50 training courses between June 1989 and October

2005; 7 of which were between 2001 and 2004; and 6

of which were inn 2005.

D. Qvertime

Overtime is assigned on an "as needed” basis, in

accordance with the following procedure. At the

beginning of each quarter, with respect to each Tour,

APP. 68

a list is posted with all the names of the electronic

technicians. Each employee then initials the list to

indicated whether or not they would like to be

considered for overtime. Based upon these responses,

the Overtime Desired List (OTDL) is created and

posted by seniority. Thereafter, if there is a need for

overtime arises on a particular day and Tour, upper

level management looks at the list to determine

which employees are off on that day, and therefore

available to be called in to work a “sixth day " as

overtime. From that group, management looks to see

which of those employees has the skills and/or

certifications required for the overtime job at issue.

From the group of available, qualified employees, the

person who is next on the overtime rotation list is

selected. Once a person works a sixth day of

overtime, that person's name goes to the bottom of

the list. (Cole Declaration at 9] 35-36).

In his Affidavit filed in support of his

administrative EEO Complaint, Osahar averred that

during the week before December 9, 2002, he was

Bypassed for his Monday of overtime by junior

white and/or Hispanic electronic technicians; and, a

few weeks later Mike Denis was brought in on

overtime to work on the AFCS on or about January

J, 2003 (DE # 78 at Ex. 82, Affidavit A). The records

provided for pay period 26-2, which appears to cover

the week before December 9, 2002, reflect that

nobody worked a 6* day of overtime on that Monday

(DE # 76 at Ex. 64, p. 131). In addition, the records

reflect that nobody worked overtime on the Monday

in the preceding pay period (DE # 76 at Ex. 64, p.

130).

APP. 69

With respect to Osahar's claim of overtime

deprivation during January 2003, a review of the

overtime records reflects that Osahar worked his 6

day of overtime during the first week of pay period

two, which appears to cover the beginning of

January 2003. However, the portion of the overtime

records that have been filed in this case do not

specify who worked a 6" day of overtime during the

second week of pay period two, which would include

January 9% and 10°. The “bulk” time records

provided for the years 2000 through 2005 list total

overtime per employee per pay period, and do not

designate the specific dates of overtime worked nor

whether overtime listed for a particular pay period

was based on the 6" day overtime rotation ratner

than an accumulation of hours worked past the

normal eight-hour workday.

The absence of these records is not material,

however, since in his Affidavit in support of his EEO

Complaint, with respect to the alleged January

deprivation of overtime, Osahar specifically

complains about Mike Denis being brought in to

work on the AFCS machine, and it is undisputed

that Mike Denis does not have the same days off as

Osahar, and thus Osahar and Denis would never be

in competition for the same 6" day overtime work.

When asked at his deposition to expiain his claim

regarding the opportunity to work a 6*" day of

overtime, Osahar could not provide any specific

information. The following excerpt from his

deposition is his explanation regarding this claim:

A: [What I'm saying is on or before December

the 3°¢ through the 9t, 2002, and between, !

APP. 70

guess January 9" through 10%, 2003, | was

systematically bypassed or told that ... |

could not work my 6*" day of overtime.

Were any overtime opportunities given to

you during that period of time, that is

December 3 through the 9t* . January 9

through the 10%?

| am not sure. This mentions 6. The 6%

day, which is one of my days off. If doesn't

mention all overtime. It only mentions just

the sixth, working my sixth day.

Now, who worked overtime instead of you

during-within what's contained in paragraph

11 of your Second Corrected Final Amended

Complaint? Who worked overtime instead of

You?

Some of the junior ET's on tour 2.

Okay. And who would the junior ETs on tour

2 be? ... You can refer to the document that |

Gave you if it will help refresh your

recollection. That is Government Exhibit No.

3, sir.

Okay. One of them appear to be Mike Denis.

Okay. Who else?

I'm not sure, but there’s other ETs. | don't

have them listed. ! would have to check the

records. I’m not sure, but | have Mike Denis

listed here. Who he has different days off,

but when you look at it, at a weekly or

quarterly basis, the overtime could be

shifted during these days.

APP.71

Q: | see that in the affidavit that is

Government Exhibit No. 3, at the bottom is

says affidavit B, page 15, it says Julio Fojo.

Is he also an individual that was allowed to

get overtime instead of you?

A: Okay. Again, this is a statement by Dwayne

Wilkie, the manager. He is above Robert Cole.

It's dated 5/28/03. And he mentions three

employees, Mike Denis, George Zirini and

Julio Fojo. | assume, as having —having work

Overtime but do not have the days off that |

Have.

(Osahar Depo. at 114-17).

With respect to Osahar complaint 27-03, in which

he asserts unfairness in the overtime rotation during

the period of time which includes November 16,

2002, Osahar provided the following details during

his deposition:

A: Well, | mean during this particular period of

time, not just on 11/16/02, but probably within

45 days of this period they were not rotating

on a seniority basis with overtime. And what |

meant by that, again, as a senior man- the

senior man based on the collective Bargaining

Agreement ... seniority is supposed to be

rotated ... on a quarterly basis or by seniority.

And it wasn't being done.

You see situations ...where you see the

junior employee having more overtime than

the senior employee. And a lot of times this

might be African-American, he might be

APP. 72

working maybe two hours every day, where |

prefer to get my overtime on my sixth day.

(Osahar Depo. at 179).

When asked specifically which individuals

received overtime when Osahar did not receive

overtime, Osahar identified Osahar Sosa, Mike

Denis, Robert Williams, and "possibly some other

people” (Osahar Depo. at 201). Robert Williams is a

junior Aftrican-American electronic technician

(Osahar Depo. at 201).

Osahar has not pointed to any place in the record,

however, which specifically identifies a day on which

he was available to work a sixth day of overtime and

he was wrongfully deprived of that opportunity by

the actions of the Defendant in assigning that day to

somebody else. The overtime records submitted are

voluminous, and despite the lack of guidance by

Osahar and Defendant regarding the interpretation

and analysis of these records, they have been

examined by the undersigned Magistrate Judge.

From this review, the undersigned has been unable

to discern any occasion where Osahar did not receive

a sixth day of overtime to which he was entitled, or

that junior employees received more sixth days of

overtime than Osahar on Sundays and Mondays

(Osahar's days off). For example, examining the

overtime reports for Sundays and Mondays from

pay period 22-1 in 2002 through pay period 2-1 2003

(which apparently comprises all pay periods during

the fourth quarter of 2002, and the entire period of

the claimed overtime deprivations in # 27-03 and

APP. 73

and 36-03), Osahar worked his sixth day of overtime

on 7 days; Sosa worked his sixth day of overtime on

6 days, and Williams worked his 6*” day of overtime

on 5 days (DE # 76 at Ex. 64, pp. 123-34). These

were the only employees who worked a 6 day of

overtime on Tour 2 during this quarter.

lil. The Cross-Motions For Summary

Judgment

For purposes of this Report and

Recommendation, the undersigned has considered

all the arguments and supporting evidence in the

record as a whole, without regard to whether the

evidence was cited in connection with the

Defendant's Motion for Summary Judgment or

Osahar’'s Motion for Summary Judgment.

A. Defendant's Position

Initially, Defendant contends that Osahar's

disparate treatment claims cannot survive summary

judgment because he cannot establish that 1) he

suffered adverse employment actions (DE # 122 at 7-

15, DE # 136 at 6, 7-10); 2) similarly situated

employees outside of his protected group were

treated more favorably (DE # 122 at 7, 15-17, DE #

136 at 5-7); and 3) Defendant's legitimate non-

discriminatory reasons were a pretext for race

discrimination against him (DE # 122 at 7, 20-23;

DE # 136 at 6).

Defendant also contends that Osahar's

retaliation allegations cannot survive summary

judgment because he cannot establish that 1) he

suffered adverse employment actions (DE # 122 at 7-

15, 17-20, DE # 136 at 6, 7-10) and 2) Defendant's

APP. 74

legitimate non-discriminatory reasons were a pretext

for race discrimination against him (DE # 122 at 7,

20-23).

Defendant asserts that the record contains no

evidence of racial epithets, threats, intimidation or

any evidence that Osahar’s workplace was abusive;

and that, at most, Osahar presents evidence of

sporadic incidents to which he took affront, which do

not meet the requirement that blatant forms of

harassment were so pervasive and severe to alter the

conditions of Osahar’s employment (DE # 122 at 4).

Thus, Defendant contends that Osahar’s hostile

work environment allegations cannot survive

summary judgment because they are 1) premised on

Osahar’s disparate treatment and retaliation claims

(DE # 122 at 23); and 2) the harassing acts alleged

by Osahar are not sufficiently pervasive or severe to

alter the conditions of Osahar's employment (DE #

422 at 23-25; DE # 136 at 8-9). Defendant atso

asserts that Osahar cannot rely on harassing acts

which occurred before the period covered by the

Final Complaint, which began approximately in

October 2001 (DE # 136 at 8).'2

12 The undersigned rejects Defendant's contention that acts

which occurred prior to the period covered in the Complaint

cannot be used as evidence to support a hostile work

environment claim. The analysis provided by the United States

Supreme Court in National R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002), is instructive:

In determining whether an actionable hostile work

environment claim exists, we look to “all the circumstances”

including “the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating,

APP. 75

Finalty, with respect to Osahar's claim for alleged

breach of contract, Defendant contends that Osahar

has failed to exhaust his administrative remedies,

which bars his claim (DE # 122 at 5). Defendant

argues that the settlement agreement state that in

the event of a breach, Osahar must file a written

request either to reinstate the settled complaint for

further processing from the point at which

processing ceased under the terms of the settlement

agreement, or to reinstate the counseling process.

Further, the EEOC regulations required Osahar,

within 30 days of when he Knew or should have

known of the alleged noncompliance, to notify the

EEO director, in writing of the alleged

noncompliance. Defendant concludes t’iat since

Osahar failed to perform the required acts, he failed

to exhaust his administrative remedies for the

alleged breaches of settlement agreements, and this

Court, therefore, has no jurisdiction over those

claims (DE # 122 at 5, 25-27, DE # 136 at 4-5).

or a mere offensive utterance; and whether it unreasonably

interferes with and employee's work performance. ” ...A hostile

work environment claim is comprised of a series of separate

acts that collectively constitute one “unlawful employment

practice.” 42 U.S.C. § 2000e-5(e)(1). The timely filing provision

only requires that a [Title VII plaintiff file a charge within a

certain number of days after the unlawful practice happened. It

does not matter, for purposes of the statute, that some of the

components acts of the hostile work environment fall outside

the statutory time period. Provided that an act contributing to

the claim occurs within the filling period, the entire time period

of the hostile environment may be considered by a court for the

purposes of determining liability.536 U.S. at 116-17.

APP. 76

In response to Osahar's contention in his

response that he may bring claims against

Defendant under the Fifth and Fourteenth

Amendment, pursuant to 42 U.S.C. §§ 1981 and

1983, Defendant asserts that this Court lacks

jurisdiction over these claims because Defendant is

an official of the United States acting in his official

capacity, and the United States has not waived

sovereign immunity as to this suit (DE # 136 at 1-2).

Defendant also asserts that Plaintiff may not assert

a Claim under §1983, because that section applies

only to violations of federal or constitutional rights

under the color of state taw (DE # 136 at 2).

Defendant contends that Osahar’s exclusive remedy

for his discrimination claims related to his

employment is Title Vil (DE # 136 at 2).

In response to Osahar’s contention in his reponse

that he need not exhaust administrative remedies to

bring his claim alleging unfair representation by his

Union, pursuant to Section 301 of the Labor

Management Relations Act, 29 U.S.C. § 185,

Defendant asserts that this claim goes beyond the

relief which Osahar requested in his Final

Complaint (DE # 136 at 2-3). Defendant also asserts

that the Union's decision not to take to arbitration

Osahar’s grievances regarding the denial of training

was not irrational, as Defendant had legitimate,

non-discriminatory reasons for not selecting Osahar

for the requested training (DE # 136 at 3-4).

B. Osahar's Position

Osahar contends that he has suffered adverse

employment actions in that Defendant has ignored

Osahar’s seniority when: 1) selecting employees for

APP. 77

training; 2:making the worst assignments part of

Osahar’s normal daily assignments; 3) selecting

employees for overtime, and 4) denying Osahar

promotion in 1991 (DE # 133 at 2-3, 7,11-15, 17-18).

Osahar further contends that he was subject to

disparate treatment based on race involving the

selection for training, and when Defendant allowed

another less-senior, white employee to use two time

cards (DE # 133 at 7, 10-11, 15-16, 18,20-21),

Osahar also states that he has experience racial

epithets, threats, and intimidation as indicated ina

prior employment case which he filed in 1995 (DE #

133 at 3). Osahar contends that his blue tool box was

broken into, he was not allowed to use a camera on

the work floor to take pictures of harassment, and

that others created an unwanted appearance of

Osahar's work area (DE # 133 at 16-17). He also

contends that a white employee told another black

employee that the black employee could not come

into a computer room (DE # 133 at 16).

Osahar further contends that he can establish a

prima facie case of retaliation because he previously

filed employment discrimination cases in this Court

and subsequently lost “liberty of seniority”, training

and overtime, which establishes a causal connection

between the participation in the protected activity

and the adverse employment decision (DE # 133 at

18-19).

Osahar also alleges that all of Defendant's

legitimate, non-discriminatory reasons for his

actions were pretexts for employment discrimination

and retaliation (DE # 133 at 19-21). To support his

claim of pretext, Osahar relies on the past finding of

APP. 78

discrimination in his prior lawsuits, as well as on

evidence which he claims discredits the proffered

reasons for the actions taken.

Osahar further contends that he timely filed in

this Court his Complaint alleging breaches of prior

settlement agreements (DE # 133 at 3-5, 6, 21-22).

Osahar also alleges that his union unfairly

withdrew Osahar's grievance regarding Defendant's

selection of less senior employees for training

courses (DE #133 at 4-5).

Osahar argues that exhaustion of administrative

remedies is not required for the claims he raises

under 42 U.S.C. 1981, 1983 and 29 U.S.C. 185 (DE #

133 at 7-9, 22-23).

IV. The Relevant Legal Standands

A. The Standard for Summary Judgment

Rule 56(c ) of the Federal Rules of Civil Procedure

authorizes entry of summary judgment where the

pleadings and supporting materials show that there

is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter

of law. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986); Denney v. City of Albany, 247 F.3d

1172, 1181 (11% Cir. 2001). Summary judgment is an

integral part of the federal rules as a whole, which

are designed to secure a just, speedy, and

inexpensive determination of every action. Ce/otex

Corp. v. Catrett, 477 U.S. 317 (1986). The court's

focus in reviewing a motion for summary judgment

is “whether the evidence presents a sufficient

disagreement to require submission to a jury or

APP.79

whether is so one-sided that one party must prevail

as matter of law.” Allen v. Tyson Foods, Inc., 121

F.3d 642, 646 (11 Cir. 1997). In assessing whether

the movant has met its burden, the courts should

view the evidence and all factual inferences therefor

in the light most favorable to the party opposing the

motion and all reasonable doubts about the facts

should be resolved in favor of the non-movant. See

Denney v. City of Albany, 247 F.3d at 1181.

The moving party has the burden to establish the

absence of a genuine issue as to any material fact.

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157

(1970); Allen v. Tyson Foods, Inc., 121 F.3d at 646.

Once the moving party has established that no

genuine issue of material fact exists and that it is

entitled to judgment as a matter of law, the burden

shifts to the non-movant to come forward with a

response setting forth “specific facts” showing that

there is a genuine issue for trial. Thus, the party

opposing summary judgment may not rest upon the

mere allegations or denials of the pleadings, but

must present sufficient evidence favoring the non-

moving party for a jury to return a verdict in favor of

that party. Anderson v. Liberty Lobby, Inc., 477 U.S.

at 249.

Conclusory allegations wil! not suffice to create a

genuine issue of material facts. See Leigh v. Warner

Bros Inc., 212 F.3d 1210, 1217 (11% Cir. 2000). There

must be more than a scintilla of evidence; there must

be “substantial conflict in evidence to support a jury

question.” Tidewell v. Carter Prods., 135 F.3d 1422,

1425 (11** Cir. 1998), quoting Carter v. City of

Miami, 870 F.2d 578, 581 (11 Cir 1989).

APP. 80

Ultimately, "[w]here the record taken as a whole

could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for

trial.” Allen v. Tyson Foods, 121 F.3d at 646; accord

Denney v. City of Albany, 247 F.3d at 1181. “At the

summary judgment stage, [the plaintiff] bears the

burden of coming forward with sufficient evidence to

create genuine issues of material fact regarding each

of the[e] elements [of the prima facie case].” Harris v.

H&W Contracting Co., 102 F.3d 516, 523 (11™ Cir.

1996). A plaintiff's mere belief, speculation, or

conclusion that he was subject to discrimination does

not create an inference of discrimination or satisfy

his burden. Coutu v. Martin County Bd. Of County

Comm'rs, 47 F.3d 1068, 1074 (11™ Cir. 1995).

B. Standard of Proof in a Title VII Case

Title VII prohibits discrimination in hiring,

discharge, and promotion in employment on the

basis of race, sex, or national origin. The Supreme

Court has held that Title VII is intended to eradicate

Not only economic and tangible discrimination, but

the entire spectrum of disparate treatment, which

included requiring people to work in a racially

hostile or abusive environment. Meritor Savings

Bank v. Vinson, 477 U.S. 57, 64 (1986). However, not

all employment practices are actionable under Title

Vil. See Bristow v. Daily Press, Inc., 770 F.2d 1251,

1255 (4 Cir. 1985) ("the employment discrimination

laws...cannot be transformed into a palliative for

every workplace grievance, real or imagined..."),

cert. denied, 475 U.S. 1082 (1986). Thus, Title VII is

APP. 81

not a shield against harsh treatment in the

workplace, and does not require the employer to

have good cause for its decisions. Nix v. WLCY

Radio, 738 F.2d 1181, 1187 (11 Cir. 1984).

In an employment discrimination case, the

plaintiff bears the ultimate burden of proving that

the defendant intentionally discriminated against

the plaintiff. Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 253 (1981). Because direct

evidence of discrimination can be difficult to

produce, the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), created a

framework on the burden of production and order of

presentation of proof to analyze circumstantial

evidence of discrimination. Where, as here; there is

Aplaintiff must produce sufficient evidence to

support an inference that the defendant employer

based its employment decision on an illegal criterion.

“Williams v. Vitro Servs. Corp., 144 F.3d 1438,1441

(11 Cir. 1998). Under McDonnell Douglas, if the

plaintiff creates an inference of discrimination by

establishing a prima facie case, the burden then

shifts to the defendant to articulate a legitimate,

non-discriminatory reason for the employment

action, and if it does, the defendant is entitled to

summary judgment unless the plaintiff persuades

the trier of fact that the defendant intentionally

discriminated against the employee despite the

defendant's proffered lawful reason for its

employment decision. Walker v. Mortham, 158 F.3d

1177, 1193 (11% Cir. 1998), cert. denied, 528 U.S.

809 (1999). To satisfy this burden, the defendant

need only produce evidence which would allow the

APP. 82

trier of fact rationally to conclude that the

employment decision had not been motivated by

discriminatory animus. Texas Dept. of Community

Affairs v. Burdine, 450 U.S. at 257.

To prevail on a hostile environment claim, a

plaintiff must show that the conduct he complains of

“altered the condition of the workplace, creating an

objectively abusive and hostile atmosphere.” Edward

v. Wallace Community College, 49 F.3d 1517, 1521

(11% Cir. 1995). Specifically, he must prove that: 1)

he belongs to a protected group; 2) he was subject to

“unwelcome” harassment; 3) the harassment was

based on race; 4) the harassment affected a “term,

condition, or privilege” of employment in that it “was

sufficiently severe and pervasive to alter the

condition of his employment and create an abusive

working environment”, and 5) the employer knew or

should have known of the harassment and failed to

take prompt remedial action. Prado v. L Luria &

Son, Inc., 975 F.Supp. 1349, 1355 (S.D. Fla. 1997).

Title VII does not address generally offensive or

unpleasant conduct. Thevenin v. Baptist Health

Systems of South Florida, 931 F.Supp. 856, 859 (S.D.

Fla. 1996). Title VII does not provide a cause of

action for employees who are exposed to harassment

that has no reference to race, sex or national origin.

Brown v. Brown and Williamson Tobacco Corp., 1996

WL 325890 at *3 (N.D. Fla. Apr. 11, 1996), aff"d 111

F.3d 896 (11 Cir. 1997).

To determine whether a plaintiff's work

environment was hostile or abusive, this Court

should consider: 1) the frequency of the alleged

discriminatory conduct; 2) the severity of the

APP. 83

conduct; 3) whether the conduct was physically

threatening or humiliating, or a mere offensive

utterance; and 4) whether the conduct unreasonably

interfered with Plaintiff's work performance. Prado,

975 F.Supp. at 1355. Isolated Incidents of offensive

acts, however, are not sufficient to establish a hostile

work environment. See Harris v. Forklift Systems,

Inc., 510 U.S. 17, 21 (1993).

C. Standard of Proof in a Retaliation Case

To establish a Title VII claim for retaliation, a

plaintiff must show that: 1) he engaged in a

Statutorily protected activity; 2) an adverse

employment action occurred; and 3) the adverse

action was causally related to his protected

activities. See Little v. United Technologies, 103

F.3d 956 (11% Cir. 1997); Goldsmith v. City of

Atmora, 996 F.2d 1155, 1163 (11 Cir. 1993). To

satisfy the causal connection requirement, a plaintiff

must establish that his supervisor was actually

aware of the protected expression at the time he

allegedly took adverse employment action against

the plaintiff. Goldsmith, 996 F.2d at 1163. Once a

plaintiff establishes a prima facie case, a defendant

must proffer a legitimate, non-discriminatory reason

for the adverse employment action, EEOC v.

Reichhold Chemical, Inc., 988 F.2d 1564, 1571-72

(11% Cir. 1993). If a defendant offers legitimate

reasons for the employment action, a plaintiff must

then demonstrate that a defendant's prcffered

explanation was a pretext for retaliation. Meeks, 15

F.3d at 1021; Goldsmith, 996 F.2d at 1163.

APP. 84

V. Legal Analysis

A. Osahar Cannot Show Disparate Treatment

Based on His Race

Osahar cannot establish a prima facie case of

disparate treatment because he is unable to

‘establish that 1) an adverse employment action was

taken against him or 2) that similarly situated

employees outside of the protected group were

treated more favorably. The record also does not

contain evidence that Defendant's legitimate, non-

discriminatory reasons for the complained-of actions

were a pretext for race discrimination.

1. Osahar Cannot Establish That He Suffered an

Adverse Employment Action

In Burlington Industries, Inc. v. Ellerth, 524 U.S.

742, 760-61 (1998), a Title Vi! sex discrimination

case, the Supreme Court defined an adverse

employment action as a significant change in

employment status, such as hiring, firing, failing to

promote reassignment with significantly different

responsibilities, or a decision causing a significant

change in benefits—an action which in most cases

inflicts direct economic harm. In Wideman v. Wal-

Mart Stores, Inc., 141 F.3d 1453, 1456-57 (11% Cir.

1998), the Eleventh Circuit heid that Title VII's

protection against retaliatory discrimination extends

to adverse actions which fall short of ultimate

employment decisions. Id. at 1456-57. Thus, to

establish adverse employment action under Title

Vil, Osahar must show a serious and material

APP. 85

change in the terms, conditions or privileges of his

employment. See Davis v. Town of Lake Park,

Florida, 245 F.3d 1232, 1242-43 (11™ Cir. 2001)

(where memo criticizing the plaintiff's job

performance was removed from plaintiff's personnel

file and there was no evidence that the memo

affected the plaintiff's employment, the memo was

not an adverse employment action). Moreover, the

employment action must be materially adverse in

the view of a reasonable person, and the employee's

subjective view of the employer's action is not

controlling. !d. at 1239. Indeed, the Eleventh Circuit

has held that not all conduct that makes an

employee unhappy or negatively affects an employee

constitutes adverse employment action. Id. at 1238,

1242.

a. Osahar’s Complaints Regarding His Work

Assignments.

Osahar alleges with regard to work assignments

that 1) on December 21, 2003, he did not receive a

preferred assignment, in that another co-worker had

been allowed to perform TACSWS-AMC (MODSS

conveyor), which gave Osahar limited experience on

that equipment (24-04); 2) on October 22-23, 2001,

another, white employee with less seniority was

allowed to load software instead of Osahar (13-02);

on May 21, 2002, Osahar was not allowed to perform

“Zebra card alignment” (59-02) and 4) Osahar was

restricted from assignments relation to TACS and

IPSS (07-04).

The record is clear that Osahar’s seniority, job

title, salary level and benefits have not been affected

APP. 86

by the daily assignments which he has received (DE

#124, January 12, 2006 Declaration of Robert Cole,

at 9121-23) (hereafter Cole Declaration). It is

undisputed that on November 16, 2002, Osahar's

classification was upgraded from a level 9 electronics

technician to a level 10 electronics technician, and on

November 29, 2003, Osahar’s classification was

upgraded from a level 10 electronics technician to a

level 11 electronics technician (DE # 124, January

12, 2006 Declaration of Marija Weinman, at 49).

Neither Osahar nor any of the other electronics

technicians on Osahar’'s tour, Tour 2, are allowed to

choose their work assignments (Cole Declaration at

9914-17, 20). The electronics technicians on Tour 2

are paid the same regardiess of their assignments on

a specific 8 hour work day (Cole Declaration at 421).

The electronics technicians on Tour 2 do not receive

additional pay or any other employment benefit for

performing a certain type of assignment or for

working on a particular piece of equipment or

machine during their 8 hour work day (Cole

Declaration at99J21-22). The wages, jog titles,

seniority and employment benefits of the electronics

technicians on Tour 2 are not affected by their daily

assignments (Cole Declaration at 9121-23). At his

deposition, Osahar admitted that he has never been

suspended during the time period covered by his

Final Complaint, and that he has never lost any pay,

or benefits during that period, either (DE # 120,

November 23, 2005 Osahar Deposition, at 14-16)

(hereafter Osahar Deposition).

In addition, work assignments of the electronics

technicians on Tour 2 are not based on the

APP. 87

employee's seniority. Article 38 of the National

Agreement between Osahar's union and the Postal

Service does not restrict the Postal Service's

discretion in assigning daily tasks or rotations to its

employees, there is no policy or procedure which

requires daily work assignments to be based on

seniority, and daily assignments are made based on

the operational needs of the facility (Cole

Declaration at ]9]21-23)..Finally, under Article 3 of

the National Agreement, which employee is assigned

to which system, on a day to day basis, is left to the

discretion of the Postal Service (Cole Declaration at

9112-14).

b. Osahar's Complaints Regarding Sixth Day

Overtime

Osahar states that he was unfairly denied sixth

day overtime while other employees with less

seniority who were not members of the protected

class received sixth day overtime (36-03 & 27-03).

The Eleventh Circuit has held that, in certain

instances, denial of a right to overtime may

constitute an adverse employment action. See

Shannon v. BellSouth Telecomm., 292 F.3d 712, 716

(11t* Cir. 2002) (a plaintiff who presented evidence

that he was “totally blackballed" from overtime as

retaliation established an adverse employment

action); Bass v. Bd. of County Comm'rs, 256 F.3d

1095, 1118 (11% Cir. 2001) (the denial of overtime to

the plaintiff, who showed that overtime was

available to other, similarly situated employees,

constituted an adverse employment action).

Osahar’s supervisor Robert Coie provided a

declaration which laid out the sixih day overtime

APP. 88

selection process. At the beginning of each quarter,

specific to each tour, a list is posted with all the

names of the electronics technicians. The list is

posted:so that each employee may indicate, by

initialing yes or no, whether he would like to be

considered for overtime. The Overtime Desired List

(OTDL) is then created and is posted by seniority.

The ODTL is posted by seniority to have a starting

point in which to begin the overtime rotation.

Thereafter, if a need for overtime hours presents

itself on a certain day, upper level management first

looks to see which employees are off on that day.

From that group of employees, upper level

management looks to see which of those employees

has the skill certification which is needed for the

overtime job in question on the sixth day overtime

rotation. Once an individual is selected for overtime,

he goes to the bottom of the list (Cole Declaration at

1135).

Here, however, Osahar has not presented specific

evidence that he was prevented from working sixth

day overtime and how much overtime he was

prevented from working. At best, Osahar made

conclusory statements at his deposition that he was

denied the ability to work overtime. In fact, at his

deposition, Osahar admitted that he does not have

the same days off as Mike Denis, George Zirini and

Julio Fojo, three of the electronic technicians whom

Osahar chose as his comparators. Osahar admitted

that he could not have been selected for overtime

instead of any of those three persons (Osahar

Deposition, at 117-19). At his deposition, Osahar also

claimed generally that Robert Willians, a less-senior

APP. 89

African-American, and Oscar Sosa, a less-senior

Hispanic, received overtime when he did not (Osahar

Deposition at 201). However, Osahar did not state on

what days the alleged deprivation of overtime

occurred, and also did not provide any evidence that

he was available to work overtime on that day or

days, that he possessed the skill certification needed

for the overtime job in question, or that it was his

turn in the rotation to work overtime.'? He also did

not establish that his failure to work overtime on

any particular day adversely impacted his pay since,

under the rotation system, if he was not selected for

a particular overtime day he would remain on thelist

for that quarter until he was selected".

Thus, the record contains no evidence that

Osahar was unfairly denied sixth day overtime in

favor of similarly situated electronic technicians not

13 The undersigned recognizes that some of these factors are

relevant to the issue of whether there was a legitimate, non-

discriminatory reason for the non-selection to work overtime;

but under the circumstances of this case they are also relevant

in the context of Plaintiffs failure to establish an actual

deprivation.

14 Although Osahar has provided a list entitled “Possible

Overtime Lost of 6t* Day of Overtime” in which he lists a

number of days in various pay periods beginning with pay

period 4 in the year 2000, through pay period 12 in the year

2005, he has not explained how he arrived at these

“possibilities” most of which are outside the time period of this

complaint; nor has he listed the specific dates, who was

awarded the overtime on those dates, and how the overtime

rotation policy was violated with respect to any of those dates

(DE # 127 at Ex. 292). The undersigned notes that various

other documents which purport to show overtime days have

also been fiied, and those documents have similar deficiencies.

APP. 90

in a protected class with less seniority. It is also

undisputed that the there is no right, guarantee or

entitlement to overtime under the union contract.

See Cole Declaration, 4/33.

Therefore, on this record, Osahar has not

presented evidence to support his claim that his

alleged loss of potential overtime constituted an

adverse employment action. Cf. Collins v. Miami-

Dade County, 361 F. Supp.2d 1362, 1373 (S.D. Fla.

2005) (where a plaintiff did not show that her

transfer actually prevented her from working any

overtime, she did not establish that the loss of

potential overtime constituted an adverse

employment action).

c. Osahar’s Complaints Regarding Failure To Be

Selected For Training

Osahar alleges that: 1) during the period from

September 28, 2003 through October 28, 2003, he

was not selected for or granted training for

WEBMOD for the MODSS system or the New

MODSS system in the past (07-04); 2) he was

decertified on powered industrial equipment because

Supervisor Robert Cole and other management

officials scheduled Osahar to go to training a day

after his last day of certification (27-03); 3) he was

not selected for training in two Network Cabling

courses (41-04); and 4) he was not selected for Allen-

Bradley PLCS training (49-04).

The Eleventh Circuit has recognized that failure

to provide training may constitute an actionable

adverse action “as long as the training is materially

related to the employee's job responsibilities or

possibilities for advancement.” Turlington v. Atlanta

APP. 91

Gas Light Co., 135 F.3d 1428, 1436 n.16 (11 Cir.

1998). However, numerous courts have recognized

that mere denial of a training course, standing alone,

is not sufficient. See, e.g., Bullock v. Widnall, 953 F.

Supp. 1461, 1473 (M.D. Ala. 1996). aff'd 149 F.3d

1196 (11t Cir. 1998) (non-selection for training

courses was not an adverse action although Plaintiff

“may very well have benefitted from attending ...

subordinate chosen to attend, he has not

demonstrated that his non-selection adversely

affected the terms or conditions of his employment”);

Merriweather v. Alabama Dept. of Public Safety, 17

F. Sup. 2d 1260, 1270 (M.D. Ala. 1998) (non-selection

for four training courses did not constitute adverse

action where plaintiff “failed to show that her non-

attendance at any of these courses affected or could

affect her salary, chances of promotion, ability to

perform her job, or any other aspect of her

employment”); Madiedo v. Miami-Dade County, 2000

WL 1763845 at * 4 (S.D. Fla. 2000) (failure to

provide training at eartier course not an adverse

action where it did not affect her ability to do her job

or her benefits); Harvey v. City of Bradenton, 2005

WL 3533155 at *5. (M.D. Fla. 2005) (denial of

training not an adverse action where there was no

evidence that such training was an important

condition of employment nor that it affected

Plaintiff's salary, title, position or job duties);

McGuire v. Miami-Dade County, 2006 WL 375403 at

*3 (S.D. Fla. 2006) (denial of training not an adverse

action where denial did not cause any tangible

harm’).

APP. 92

There is no evidence in the record that as a result

of not being selected for these courses, or in being

briefly decertified on powered industrial equipment,

Osahar either lost any seniority, or received a

change in hours, benefits, wages or job title, or

suffered any serious and material change to the

terms and conditions of his employment (Osahar

deposition at 145-46, 172-77, 253; Cole Declaration

at 11128, 30,37). Although denial of training in some

circumstances could lead to a loss of potential

overtime, there is nothing in the record to support

Osahar's conclusion that he suffered or is likely to

suffer any adverse consequences from the denial of

these three training courses. There is no indication

that any overtime possibilities would be linked to

these courses, particularly since Osahar had

received training regarding the Allen-Bradley PLC,

and since he was not TMS trained, and had never

sought TMS training. The speculative hypothetical

possibility of lost overtime is insufficient to establish

that the denial of training on these specific dates

was an adverse action. :

Moreover, as stated previously, the undisputed

evidence established that Osahar, having attended

60 training courses, is one of the most trained

electronic technicians at the Miami facility (Cole

Declaration at 9/28; DE # 127, Ex. 269 (Osahar's

training records).

d. _Osahar's Complaints Regarding Failure to

Be Promoted

Osahar claims in the Final Complaint that

because he was not selected for certain training, he

had not been promoted (DE # 30 at 4/17). However,

APP. 93

Osahar does not controvert that he has not applied

for promotion during the relevant period at issue in

his Final Complaint, 2001 through 2004. Indeed, in

his response, Osahar appears to allege that he was

not promoted in 1991 due to his failure to be selected

for training in 2004. Since Osahar has not applied

for a promotion during the period covered by the

Final Complaint, his allegation is pure speculation

and will not be considered. See Davis v. Town of

Lake Park, 245 F.3d at 1239 (although Title VI1 does

not require proof of direct economic consequences,

the asserted impact cannot be speculative and must,

at least, have a tangible adverse effect on the

plaintiff's employment).

e. Osahar’s Miscellaneous Complaints About

Discriminatory Work Place Actions

In EEO Complaint 24-04, Osahar alleged that 1)

management allowed a white co-worker with less

seniority, Mike Denis, to use two time cards, which

enabled Denis to clock in at another time card rack if

Denis was tate; 2) Osahar’'s red tool box was pushed

out of Osahar’s assigned area; 3) others created an

“unwanted appearance of his work area” and 4) he

was not allowed access to a lockout cabinet. The

record contains no evidence that these alleged

incidents caused an adverse employment action to

Osahar, that is, that they affected in any way

Osahar’s seniority, wages, job title or benefits (Cole

Declaration at 437). Indeed, Osahar admitted at his

deposition that he was not sure if Denis having two

time cards had affected Osahar’s pay or had any

APP. 94

effect on Osahar’s employment except for Osahar’'s

“liberty of scheduling” and “liberty interest” (Osahar

deposition at 33-37, 39-40). Similarly, Osahar

admitted at his deposition that his lack of access to a

lockout cabinet only affected his “loss of liberty

interest” and his “seniority of liberty interest", and

did not result in any discipline, suspension,

monetary loss or change in working hours (Osahar

deposition at 48-53). Moreover, it is undisputed that

the cabinet in question was used to store coffee and

coffee supplies that belonged to another employee.

In EEO Complaint 59-02, Osahar alleged that 1)

his blue tool box was broken into; 2) he was not

allowed to use a camera to take pictures of

harassment while management was allowed to use

cameras in the work place; and 3) there was

continuous harassment in his work room. Again, the

record contains no evidence that these alleged

inicidents caused an adverse employment action to

Osahar, that is, that they affected in any way

Osahar's seniority, wages, job title or benefits (Cole

Declaration at 437).

For example, while employees are not allowed to

bring photo or video cameras onto the work floor

(Cole Declaration at 944), Osahar did not suffer an

adverse employment action for attempting to bring a

camera on the work floor. Similarly, even if Mike

Denis had two time cards, Osahar has not shown

that he suffered an adverse employment action for

that reason. Osahar does not contend that he lost

eres

Feet

APP. 95

pay, benefits or privileges for being late and that

Denis did not (Osahar deposition at 33-40).'5 The

Same is true for the other alleged incidents

considered in this section. Osahar does not contend

that he lost pay, benefits or privileges due because of

them (Osahar deposition at 40-93, 105-07, 212-13,

217-18, 226, 234-35, 240).

In fact, even after Osahar filed the eight EEO

Complaints that form the basis of this litigation,

spanning the time frame from 2001 through 2004,

Osahar was reclassified from a level 9 electronics

technician to a level 10 electronics technician, and

then to a level 11 electronics technician, and he also

received a pay increase (Weinman Declaration, at

118, 9; Osahar deposition at 11).

Although Osahar claimed generally throughout

his deposition that all of his Complaints regarding

the workplace had affected his work assignments,

training and overtime, he has not presented any

facts to support these conclusory statements (See,

e.g., Osahar Depo. at pp. 49-50 (access to coffee

locker); 78 (toolbox being moved); 88-89 (unwanted

appearance of work site); 104-06 (TACS MODSS

assignment). Therefore, Defendant is entitled to

summary judgment as to these allegations.

2. Osahar Cannot Show that Similarly Situated

Employees Who Were Not In The Protected

Class Were Treated More Favorable

15 At his deposition, Osahar stated that once he clocked in a

little late, and that he believed this resulted in a discussion

which was used to justify a letter of warning in the past, but he

could not say when this occurred (Osahar deposition at 32-33).

APP. 96

To establish a prima facie case, Osahar must

show that there were employees, not within his

protected class, who were similarly situated in all

relevant respects, but who were treated more

favorably. See Walker v.Mortham,158 F. 3d at 1193;

Hotifield v. Reno, 115 F.3d at 1561. In determining

whether employees were similarly situated and more

favorably treated, this Court must consider whether

the employees were treated in the same way as

Osahar. The adequacy of the comparators is crucial.

Marshal! v. Western Grain Co., Inc., 838 F.2d 1165,

1168 (11% Cir.), cert. denied, 488 U.S. 852 (1988).

Here, Osahar has not shown that there were

similarly-situated employees who were treated

differently than he was. If Osahar cannot show there

was a similarly situated employee, or that a

similarly situated non-protected employee was not

treated differently than Plaintiff, “summary

judgment is appropriate where no other evidence of

discrimination is present.” Holifield v. Reno, 115

F.3d at 1562.

In his response, Osahar mentions one Bob

Aquilino as a former electronic technician on Tour 2

who had Hardy Scales Training and upgraded

training on MODDS (DE # 133 at 10, 18, 20).

However, Aquilino retired on June 30, 2000, and the

training Osahar says he was wrongly not selected for

occurred in 2004. Therefore, Aquilino is not a proper

comparator. :

Osahar also alleges that Oscar Sosa, who worked

on the TMS system, was awarded Network Cabling

courses; Mike Denis, who was not TMS trained but

was RCS trained, was awarded Allen-Bradley PLC

APP. 97

training at a later time when Osahar did not apply:

and that J. Fojo, whe worked on the TMS system,

but was not RCS or PLC trained, was awarded

Allen-Bradley training (DE # 133 at 10, 18, 20-21).

These persons are not similarly situated based upon

their experience or work assignments.

Here, as Osahar has not identified any similarly

employees who received more favorable training

opportunities, overtime, or more favorable work

assignments, he cannot establish a prima facie case

of disparate treatment discrimination.

B. Osahar Cannont Establish A Prima Facie Case

of Retaliation

It is undisputed that Osahar meets the first

prong of the test to establish a prima facie Case of

retaliation by engaging in protected activity by filing

EEO Complaints. However, as has previously been

established, since Osahar cannot establish that he

suffered any adverse employment actions after

engaging in protected activity, he cannot meet the

second prong of the test to establish a prima facie

case of retaliation. 3

Osahar atso asserts with respect to his retaliation

claim that, In addition to the other “worst work

assignments’ he received, he was required to attend

training and was assigned responsibilities with

respect to the Biohazard Detection System, (BDS)

(DE # 133 at 12). Ini

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