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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

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,
V.

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.

iv

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.

Vv

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

vi

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
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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
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a
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,

9.

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 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,

ee

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, !

A:

OP

OP

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 ...
and it may have been insulting to have his ©
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
a

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). Initially, as Osahar has not
exhausted this claim, which does not appear to have
been presented in an EEO complaint or asserted in
Osahar's Final Complaint, this Court is without

APP. 98

Jurisdiction to consider it. In any event, at least nine
other electronic technicians were also trained for
BDS inciuding Mike Denis, whom Osahar has tisted
as a less senior electronic technician not inn the
protected class, who was treated more favorably
than Osahar. See PIitf's Ex. 286. Therefore, there is
no evidence that Osahar’s assignment to BDS was
an adverse employment action as this assignment
did not affect his seniority, job title, pay, overtime or
benefits. :

C. InAny Event, Defendant Had Legitimate,
Non-Discriminatory Reasons For The Acts
Complained of and The Record Contains No
Evidence That The Proffered Reasons Were

Pretexts For Discrimination

In the alternative, if Osahar had established a
prima facie case of either disparate treatment or
retaliation, Defendant has provided legitimate non-
discriminatory reasons for his actions. See Burdine,
450 U.S. at 253.

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, 428; DE # 78 at Ex. 69. Defendant did
not select Osahar for the Network Cabling courses
because Supervisor Robert Cole needed an
electronics technician who was Tray Management
System (TMS) trained for these courses, even though

Arr’. 92

TMS was not a mandatory prerequisite for these
courses. Osahar is not TMS trained and has never
volunteered to be TMS trained (Cole Declaration
4129, Osahar deposition at 248-49). Further,
pursuant to Article 38 of the Union Contract,
seniority at Osahar'’s level is not a consideration in
the selection of electronics technicians for training
(Cole Declarationn, 99/31-32).

Defendant makes daily assignments based on the
operational needs of the Postal Facility and are
within the discretion of management (Cole
Declaration 94113-2060).

Defendant also had a legitimate non-
discriminatory reason for the overtime availability
and rotation (Cole Declaration 935). Supervisor
Robert Cole stated that neither race nor Osahar’s
prior EEO activity was a factor in Cole’s decision not
to award Osahar sixth day overtime (Cole
Declaration at 9/36). 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).

Osahar has not applied for any promotions during
the time covered by the Complaint (Cole Declaration
at 47).

All of the above reasons constitute legitimate,
non-discriminatory reasons for Defendant's actions,
and thus the initial inference of discrimination
“drops” from the case. St Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 510-11 (1993). The burden then shifts
back to Osahar to discredit Defendant's proffered
explanation for its decision and to show that

APP. 100

Defendant's employment decision was based on
retaliation. Burdine, 450 U.S. at 256.

Osahar may avoid summary judgment and show
pretext directly by persuading this Court that a
discriminatory reason more likely motivated
Defendant, or indirectly by showing that Defendant's
proffered explanation is unworthy of credence.
Combs v. Planntation Patterns, 106 F.3d 1519 (11%
Cir. 1997), cert. denied, 522 U.S. 1045 (1998). If
Defendant's articulated reasons are then found to be
a pretext, leaving no valid reason for its actions, it is
likely that discrimination was the true reason. See
United States Postal Serv. Bd. v. Aikens, 460 U.S.
711, 715-16 (1983). Osahar, therefore, has the
opportunity to come forward with evidence,
including the previously produced evidence put
forward to support the prima facie case, which is
sufficient to permit a reasonable fact finder to
conclude that the reasons given by Defendant were
not the real reasons for the failure to select him for
training or to give him overtime. McDonnell
Douglas, 411 U.S. at 804; Combs, 106 F.3d at 1528.

Thus, to show pretext, Osahar is required to come
forward with some evidence to persuade this Court
to reject Defendant's proffered nondiscriminatory
reason. The record, however, is devoid of evidence of
discrimination, and Osahar has not proffered any
evidence to show pretext. At most Osahar has stated
that he believed that the non-discriminatory reasons
provided by Defendant were pretexts for
discrimination. However, Osahar's mere belief,
speculation, or conclusion that he was subject to
discrimination does not create an inference of

APP. 101

discrimination or satisfy his burden. Cortu v.
Martinn County Bd. of County Comm'rs, 47 F.3d at
1074. Although Osahar offers the fact that Mike
Denis was subsequently chosen to attend the Allen-
Bradley PLC course, and that Mike Denis had
previously been trained in the same course as
Osahar regarding the Allen-Bradley PLC, this does
not establish pretext since there is no evidence that
anyone who was not trained on the Allen-Bradley
PLC applied for the course; nor is there evidence
that there was a need to train a TMS technician at
the time Denis was selected.

Thus, because Osahar has not presented
significantly probative evidence to meet his burden
to establish pretext, he cannot avoid summary
judgment. See Young v. General Foods Corp., 840 F.
2d 825, 829 (11t Cir. 1988), cert. denied, 488 U.S.
1004 (1989).

D. Qsahar Cannot Establish That He Was

Subjected To A Hostile Work Environment

The acts alleged by Osahar in his disparate
treatment and retaliation claims are not sufficiently
pervasive or severe to alter the conditions of his
empfoyment and to create an abusive working
environment. To prevail on his hostile environment
claims, Osahar must show that the conduct he
complains of “altered the condition of the workplace,
creating an objective abusive and hostile
atmosphere.” Edwards v. Wallace Community
College, 49 F. 3d 1517, 15217 (11% Cir. 1995).
Specifically, Osahar must prove that : 1) he belongs
to a protected group; 2) he was subject to

APP. 102

“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. Luria & Son,
Inc., 975 F. Supp. 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 Osahar's work
environment was hostile or abusive, this Court will
consider; 1) the frequency of the alleged
discriminatory conduct; 2) the severity of the
conduct; 3) whether the conduct was physically
threatening or humiliating, or a mere offensive
utterance; and 4) whether the conduct unreasonably
interfered with Osahar’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).

The acts which Osahar alleges created a hostile
work environment are not sufficiently pervasive or
severe to create a hostile working environment. For

APP. 103

example, In EEO Complaint 04-24, Osahar
complaints that a co-worker was allowed access to
lockout cabinets when Osahar was not allowed
access, two co-workers blocked/delayed Osahar's
access to his assigned task; Osahar’s tool box was
pushed out of his assigned area, and others created
an unwanted appearance in Osahar’s work area.
These are the kinds of isolated acts which are not
sufficiently pervasive of offensive to establish a
hostile work environment.

In his response, Osahar reties upo racially
offensive comments and symbols which occurred
during the period covered by his prior litigation, filed
in 1995. Osahar admitted at his deposition that
many of the acts, including the most egregious,
which he is relying on did not occur during the
period covered by the Final Complaint, and some of
them appear to be the basis for his recovery in the
1995 lawsuit (Osahar Deposition at 83-84). Thus,
those acts are only of limited probative value in
determining whether the hostile work environment
existed during the time covered by the present
Complaint.

Furthermore, in his response Osahar claims that
Mike Denis told Rafael Vasquez, a black Postal
Service employee, that Vasquez could not go into the
IPSS room (DE # at16). However, at his deposition,
Osahar admits that he did not witness this
conversation and that he has a vague memory that
Vasquez told him that Denis told Vasquez not to
come into that area (Osahar Deposition at 98). This
testimony is hearsay and cannot be considered. See
Evans v. McClain of Georgia, Inc., 131 F. 3d at 962

APP. 104

(citing Pritchard v. Southern Co. Services, 92 F.3d
1130, 1135, amended on reh’g, 102 F. 3d 1118 (11%
Cir. 1996), cert. denied, 520 U.S. 1274 :(1997).
Moreover, since Osahar also testified that he did not
think that Denis had discriminated against Vasquez
(Osahar Deposition at 98), the testimony would have
no probative value in any case.

Viewing the evidence as a whole, and considering
the work environment within the time period
covered by the present Complaint against the
backdrop of the totality of circumstances
surrounding the prior events, Osahar has failed to
adduce sufficient facts to support his claim that the
offensive conduct was so pervasive or severe that it
“altered the condition of the workplace, creating an
objectively abusive and hostile environment.”
Edwards, supra. At 1521. Therefore, Defendant is
entitled to summary judgment as to Osahar's hostile
work environment claims. 7

E. Osahar Has Failed To Exhaust His

Administrative Remedies As to His Breach of
Settlement Claims

Osahar contends that he has exhausted his
administrative remedies because he timely filed inn
this Court his Complaint alleging breaches of prior
settlement agreements (DE # 133 at 3-5, 6, 21-22).
However, as Osahar has failed to exhaust his
administrative remedies regarding Defendant's
alleged breach of settlement agreements, this Court
is without jurisdiction to consider this issue. See
Brown v. General Servs. Admin., 425 U.S. 820, 832-
33 (1976); Crawford v. Babbitt, 186 F. 3d 1322 (11%
Cir. 1999).

APP. 105

The settlement agreements at issue specifically
state that in the event of a breach, Osahar must file
a written request with the Postal Service 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. (DE # 127 at Exs. ## 289-91).
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. 29 C.F.R. 1614.504 (a). The records
of the Postal Service reflect that Osahar never
contacted the Postal Service EEO office alleging a
breach of the settlement Agreements identified in
the Final Complaint (DE # 124, January 11, 2006
Declaration of Cynthia N. Gorham). Osahar has not
come forward with any evidence to refute this.
Osahar's contention that his subsequent EEO
Complaints regarding these issues should suffice is
without merit since he has never sought to invoke
the remedy specified in the settlement agreements,
i.e. to re-institute those claims.

As Osahar failed to perform the required acts, he
failed to exhaust his administrative remedies for the
alleged breaches of settlement agreements. This
Court, therefore, has no jurisdiction over those
claims.

F. Defendant is Entitled to Summary

Judgment On The Claims Osahar Alleges
Under 42 U.S.C. 1981 and 1983 and 29
U.S.C. 185

APP. 106

1. Qsahar Has Improperly Added His Unfair
Representation Claim

Osahar contends in his response that he need not
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. However, the undersigned finds that Osahar
may not add this claim because it goes beyond the
relief Osahar requested in his Final Complaint. See
Gilmour v. Gates, McDonald and Co., 382 F.3d 1312,
1314-15 (11™ Cir. 2004).

However, even if Osahar may bring this claim,
Defendant is entitied to summary judgment because
the Union's decision not to take to arbitration
Osahar's grievances regarding the denial of training
was not so far outside a wide range of
reasonableness so as to be irrational. See Airline
Pilots Ass'n v. O'Neill, 499 U.S. 65, 67 (1991). This is
because Defendant had legitimate, non-
discriminatory reasons for not selecting Osahar for
the requested training, specifically that: 1) pursuant
to the Union Contract, Article 38, seniority at
Osahar's level was not a consideration in the
selection of electrical technicians for training; 2)
Osahar had previously received Allen-Bradley PLC
training in another course, and it was necessary for
a TMS trained electronic technician who had no
prior PLC training to obtain this training; and 3) the
supervisor needed an electronic technician for the
Network Cabling Training Course who was familiar
with TMS; and 4) Osahar was not TMS trained, and
had never volunteered for TMS training.

2. There Is No Jurisdiction Over The 42 U.S.C. §§

APP. 107

1981 and 1983 Claims

In his response, Osahar contends that he may
bring claims against Defendant under the Fifth and
Fourteenth Amendments, pursuant to 42 U.S.C. §§
1981and 1983. However, 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. See Global Mail
Ltd. v. U.S. Postal Service, 142 F. 3d 208, 210 (4*"
Cir. 1998). Sovereign immunity also bars a claim
against the United States pursuant to the Fifth
Amendment. See United States v. Timmons, 672 F.
2d 1373, 1380 (11 Cir. 1982). Furthermore, Osahar
may not assert a claim under § 1983, because that
section applies only to violations of federal or
constitutional rights under the color of state law. See
Albajon v. Gugliotta, 72 F.Supp.2d 1362, 1369 (S.D.
Fla. 1999). Therefore, Osahar's execlusive remedy
for his discrimination claims related to his
employment is Title Vil. See Brown v. Gen'l Services
Admin., 425 U.S. 820 (1976).
There, for the foregoing reasons, it is hereby

RECOMMENDED that Defendant's Motion for
Summary judgment (DE # 122, filed 1/17/06), be
GRANTED, and that Plaintiff's Amended Motion for
Summary judgment (DE # 126, filed 1/18/06), be
DENIED.

The parties will have ten days from the date of
service of this Order within which to file written
objections, if any, for consideration by the Honorable

APP. 108

Federico A. Moreno, United States District Judge.
Failure to file objections timely shall bar the parties
from attacking on appeal any factual findings
contained herein. LoConte v. Dugger, 847 F.2d 745
(11% Cir.), cert. denied, 488 U.S. 958 (1988); RTC v.
Hallmark Builders, Inc., 996 F. 2d 1144, 1149 (11%
Cir. 1993).

DONE AND SUBMITTED at Miami, Florida, this
21 day of March, 2006.

Is) ANDREA M SIMONTON
ANDREA M SIMONTON
UNITED STATES MAGISTRATE JUDGE

Copies furnished to:
The Honorable Federico A. Moreno,
United States District Judge

Omar Osahar, Pro Se: Facsimile #305-253-4121

AUSA Aloyma Sanchez (Counsel for Defendant):
Facsimile # 305-530-7139

APP. 109

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 21 2008
THOMAS K. KAHN
CLERK

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 06-15613

OMAR R. OSAHAR,
Plaintiff-Appellant,
versus

POSTMASTER GENERAL OF U.S. POSTAL
SERVICE,

UNITED STATES OF AMERICA,

APP. 110

ATTORNEY GENERAL,
Defendants-Appeliees.

On Appeal from the United States District Court for
the Southern District of Florida

ee OEE HEE EEE ROE HE OOM ERE OMe eee

BEFORE: BIRCH, CARNES and BARKETT, Circuit
Judges.

PER CURIAM:

The petition (s) for rehearing filed by the
Appellant is DENIED.

ENTERED FOR THE COURT
IS/

UNITED STATES CIRCUIT JUDGE
ORD-41

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0712%3A1. Public record. Not legal advice.