NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 11

- 1855

_____________ PAUL M. ST. JOHN, Appellant

v. POSTMASTER GENERAL OF THE UNITED STATES

___________ __ On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 2

- 09

- cv - 04196 District Judge: The Honorable Michael M. Baylson Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

March 27, 2012 Before: FUENTES , SMITH, and JORDAN, Circuit Judges

(Filed: April 2, 2012 )

_____________________ OPINION

_____________________ SMITH, Circuit Judge.
Paul M. St. John filed a civil action in the United States District Court for the Eastern District of Pennsylvania , alleging that his employer, the United States2

Postal Service (USPS), r etaliated against him because of testimony he provided at an administ rative hearing on an earlier charge of national origin discrimination . St. John is of S cottish heritage. This action, according to St. John‟s complaint,
violated Title VII o f the Civil Rights Act of 1964 , 42 U.S.C. §§ 2000e

- 3 and
2000e

- 16 , as amended . A fter the close of discovery, the USPS successfully moved for summary judgment. This timely appeal followed. 1
St. John , who was born in Scotland, has been employed by the USPS as a City Carrier at the post office in Elkins Park, Pennsylvania , since May o f 2003. On November 3, 2004, St. John filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that he had been discriminated against based on his national origin when management, particularly his supervisor James McGinn, did not pay him for eight hours of sick leave. In addition, St. John alleged that he had been discriminated against when his supervisor placed him o n

“ leave without pay ” status for a 40

- hour period. On March 15, 2007, during an EEOC hearing , St. John was asked h ow his employer‟s action s affected him. St. John responded that he “could have throttled [McGinn]” and shortly thereafter

1 The Di strict Court had jurisdiction under 28 U.S.C. § 1331 . We exercise final order jurisdiction under 28 U.S.C. § 1291. Our review of an order granting summary judgment is plenary. See Carrasca v. Pomeroy , 313 F.3d 828, 832 (3d Cir. 2002).3

stated that he “could kill [McGinn]

. ” 2
Due to co ncerns about workplace violence, the USPS ha s instituted a zero

tolerance policy reg arding any violence or threats of violence. The USPS ‟s counsel at the EEOC hearing viewed St. John‟s statements about his current supervisor as a violation of the zero

- tolerance policy. In accord with that policy, she notified the human resources manager , who convened a “Threat Assessment Team” to determine whether action should be taken against St. John because of his potentially threatening remarks. On March 20, 2007, several USPS managers held a “Threat Assessment Meeting” to discuss St. John‟s EEOC hearing testimony. On March 21, 2007, Postal Inspector Shawn Dougherty questioned St. John about his testimony in the
prese nce of his union representative Christopher Lanetti. During the interview, both St. John and Lanetti informed Dougherty of complain ts St. John had made the week before against McGinn regarding falsification of employees‟ “clock rings.” 3

2 The EEOC Admi nistrative Judge decided on June 22, 2007, that St. John was not discriminated against based on his national origin when he was denied sick time or charged for 40 hours of leave without pay. St. John did not appeal that determination.

3 “Clock rings” re fers to each time a worker uses his time ca rd to punch in or out of work. St. John alleged that employees were not being paid for their actual time worked because someone was falsifying the employee records

.4

At the conclusion of the interview , St. John gave Dougherty a written statement in which he acknowledged that he was aware of the USPS‟s zero

- toleranc e policy

r egarding threats of violence, and further indicated that he was upset when he testified before the EEOC. St. John called his choice of words “regretful,” but said that his “statements were taken completely out of context” and that he “only meant to emphasize [his] feelings and not [his] intentions.” Dougherty allowed St. John to return to his mail route , leading St. John and Lanetti to believe the investigation was over. A bout five hours later, management approached St. John on his route and di rected him to return to the office. Upon his return, St. John was met by the Officer

- in

- Charge and the Postmaster . St. John requested the presence of his union representative. When Lanetti a rrived , St. John was informed that he was being placed on emerg ency placement leave (EPL). He was directed to clean out his locker and his mail truck in the presence of his supervisor. Shortly thereafter, the Manager of Post Office Operations advised the Officer

- in

- Charge that Dougherty had determined that St. John was not a threat and had permitted St. John to return to service. Within fifteen minutes of being placed on EPL and before St. John left the building, St. John was advised by management that the EPL had been rescinded and that he could return to work. A month later, St. John filed a charge of retaliation with the EEOC. The5

EEOC initially dismissed the complaint, finding that St. John had not established a prima facie case of retaliation because he had not suffered a n adverse action, and
that the USPS h ad articulated a legitimate , nondiscriminatory reason for its actions. St. John appealed to the EEOC Office of Federal Operations (OFO) , which reversed the decision

. Pursuant to the OFO‟s order, the USPS conducted an investigation and determined that St. John was entitled to compensatory damages of $300

. Unsatisfied with t he nominal damages , St. John initiated a civil action against the United States Postmaster General pursuant to 42 U.S.C. § 2000e

- 16(c), seeking “ de novo consideration” of his retaliation claim. See Morris v. Rumsfeld , 420 F.3d 287, 291 (3d Cir. 2005). After discovery concluded, the USPS fi le d a motion for summary judgment. The District Court granted the motion, concluding that St. John had failed to
demonstrate the required element of having sustained a materially adverse action. In addition, the Court determined that St. John had failed to demonstrate that
USPS ‟s legitimate, nondiscriminatory reason for placing him on EPL was a pretext for retaliation. St. John appealed, challengin g the District Court‟s determination that he failed to demonstrate a prima facie case of retaliation and that he did not show that USPS ‟s reason was a pretext for retaliation

. We will assume for purposes of this ap peal that St. John adduced sufficient6

evid ence to establish a prima facie case of discrimination

. 4 As a result, the burden of production shifted to USPS to provide a legitimate, nondiscriminatory reason for its actions. Woodson v. Scott P aper Co. , 109 F.3d 913, 920 n.2 (3d Cir. 1997) (citing, in ter alia , Fuentes v. P erskie , 32 F .3d 759, 763 (3d Cir. 1994)). The USPS met its burden, citing its zero

- tolerance policy and St. John‟s threatening comments. Thus, St. John had the burden of demonstrating that this reason was a pretext for retaliation. Fuentes , 32 F.3d at 764

- 65. We agree with the District Court that St. John has not adduced evidence that would permit a reasonable factfinder t o cast doubt on the USPS ‟s reason. A ccordingly, we will affirm the judgment of the District Court.

4 Title VII‟s antiretaliation provision prosc ribes discriminating against a protected individual because he opposed a practice forbidden by Title VII or participated in a Title VII proceeding. 42 U.S.C. § 2000e

- 3(a). In Burlington Northern & Santa Fe Railway Co. v. White , 548 U.S. 53, 59 (2006), t he Supreme Court declared that “[n]o one doubts that the term „discriminate against‟ [in the antiretaliation provision] refers to distinctions or differences in treatment that injure protected individuals.” In light of the zero

- tolerance policy at the he art of this appeal, we are skeptical that St. John established that he was treated differently than any other USPS employee who uttered a potentially threatening statement. The USPS did not raise this issue, however, in challenging whether St. John suffic iently demonstrated a materially adverse action, and we need not address it in resolving this appeal.