2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-27-2011

Olaf Venter v. John Potter

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2062

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Recommended Citation

"Olaf Venter v. John Potter" (2011). 2011 Decisions. Paper 1186.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-2062

_____________

OLAF VENTER, 

Appellant

v.

JOHN E. POTTER, POSTMASTER GENERAL OF THE UNITED STATES; 

UNITED STATES POSTAL SERVICE

On Appeal from the United States District Court

for the Western District of Pennsylvania

(No. 08-cv-00795)

District Judge: Joy Flowers Conti

Submitted May 11, 2011

Before: SMITH, CHAGARES, and VANASKIE, Circuit Judges.

(Filed May 27, 2011)

____________

OPINION

____________

CHAGARES, Circuit Judge.

Plaintiff Olaf Venter appeals the District Court’s grant of summary judgment to 

the Postmaster General and the United States Postal Service (“USPS”) on his claims for 

age and disability discrimination and retaliation for filing four complaints with the United 
2

States Equal Employment Opportunity Commission. Because no genuine issues of 

material fact persist and defendants are entitled to judgment as a matter of law, we will 

affirm the judgment of the District Court.

I.

We write solely for the benefit of the parties and will, therefore, only briefly recite 

the facts essential to our disposition. Venter was hired as a full-time employee of USPS 

in 1997 at the age of fifty-four. Between 2000 and 2007, Venter suffered from tendonitis, 

carpal tunnel syndrome, a shoulder and bicep tear, a bulging disc injury, and a depressive 

disorder. Because of his injuries, Venter was placed on limited duty. At certain times 

throughout his employment, he disagreed with the precise manner in which the USPS 

chose to accommodate his impairments. 

In February 2004, Venter filed the first of four administrative complaints with the 

EEOC, contending that his supervisors had discriminated against him because of his age 

and disability in choosing his work assignments. An administrative law judge (“ALJ”) 

found that no discrimination had occurred. Venter initiated a second such complaint in 

August 2004, alleging that Leonard Baranowski, manager of vehicle services, had denied 

two of his requests for advanced sick leave in retaliation for the filing of his earlier 

complaint with the EEOC. An ALJ found that no retaliation had occurred. Venter filed a 

third administrative complaint in April 2005, claiming that Baranowski had introduced 

errors into his pay and leave records in retaliation for his previous filings. An ALJ again

found that no retaliation had occurred. 
3

On January 18, 2007, Baranowski offered Venter a new limited duty assignment 

requiring him to work from 3:00 p.m. through 11:00 p.m. as a clerk in the transportation 

office two days per week, and to work from 6:00 p.m. through 2:30 a.m. in the mail 

processing unit three days per week. Venter signed a form, indicating that he was 

accepting the assignment “under protest.” Unhappy with this new assignment because it 

required him to begin his shift at different times on different days, Venter asked Greg 

Hoburg, his union steward, to initiate the grievance procedure. Although Hoburg 

indicated that the filing of a grievance was unwarranted by the situation, Venter doggedly 

persisted in his efforts to have one filed. In February 2007, Venter filed his fourth 

complaint with the EEOC, alleging discrimination based on age, disability and national 

origin, as well as retaliation for his earlier administrative filings.

On March 7, 2007, Venter again approached Hoburg about filing a grievance on 

his behalf. Hoburg reiterated his position that a grievance was unwarranted and that he 

did not wish to discuss the matter further. Venter, however, continued to insist that a 

grievance be filed. Hoburg sought the intervention of Transportation Operations 

Supervisor Thomas P. Dziubinski (“Dziubinski”), who took Venter to a smoking area and 

told him that his behavior was inappropriate. 

After engaging in these verbal confrontations with Hoburg and Dziubinski, Venter 

found himself distraught and went to the Occupational Health Office, where he was 

treated by nurses Kimberly Sample and Beverly Streitman. Venter stated that he wanted 

to “punch” or “kill” Hoburg. Nurse Sample, who had never dealt with Venter before, 

contacted Motor Vehicle Service Supervisor Ed Hosack to report Venter’s threatening 
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statements about Hoburg. She also contacted Distribution Operations Manager Ken 

Pawlowski about the matter. Because of Venter’s mental state, Nurse Sample believed it 

appropriate for him to leave work for the day, even though his shift was not yet over. At

Nurse Sample’s direction, Venter went to Hosack’s office to request permission to leave 

early. While with Hosack, he again expressed a desire to “kill” Hoburg. Viewing this 

statement as a potentially dangerous threat, Hosack told Venter to go home.

USPS maintains a Zero Tolerance Policy regarding violence, which prohibits

employees from making “any actual, implied or veiled threat, made seriously or in jest.” 

Supplemental Appendix (“App.”) 3. Threats made by employees are evaluated on a 

“Priority Risk Scale.” App. 220. Threats deemed to convey an “Extreme Risk” of 

violence are categorized as priority one threats, while statements involving “No Risk” of 

violence are categorized as priority four “threats.” Priority two threats are those 

indicating the presence of a “High Risk” of violence, and priority three threats are those 

indicating the presence of a “Low or Moderate Risk” of violence. 

On March 9, 2007, USPS’ Threat Assessment Team convened a meeting 

regarding Venter’s threatening statements. The Assessment Team determined that 

Venter’s statements constituted priority two threats. As part of the investigation, Postal 

police officers interviewed Venter at his home. Venter indicated that he had no intention 

of harming Hoburg, but admitted that he made the threats. 

In a letter dated March 9, 2007, Baranowski informed Venter that he had been 

placed on “off-duty (without pay) status effective March 7, 2007 at approximately 9:58 
5

pm.” The stated reason for this action was a concern that Venter’s return to the 

workplace could have been “injurious” to Venter or to others. 

On March 14, 2007, the Postal Inspection Service issued an investigative 

memorandum concerning Venter's statements about Hoburg. After reviewing the 

investigative memorandum, MVS management officials initiated disciplinary 

proceedings. On March 28, 2007, they conducted a pre-disciplinary interview with 

Venter, during which Venter admitted that he had expressed a desire to “kill” Hoburg. 

He indicated, however, that he never intended to actually harm Hoburg, and that he had 

made that clear to Hosack. Nonetheless, on April 3, 2007, Dziubinski completed a form 

recommending that Venter’s employment with the USPS be terminated based on his 

violation of the Zero Tolerance Policy. Baranowski concurred in this recommendation. 

Accordingly, Dziubinski issued a “Notice of Proposed Removal” to Venter on April 6, 

2007. Transportation Manager William Kustarz met with Venter and his counsel on 

April 23, 2007, in order to discuss the matter. And in a final “Letter of DecisionRemoval” dated May 8, 2007, Kustarz informed Venter that his employment with the 

USPS would be terminated as of the close of business on May 16, 2007. 

Venter appealed his discharge to the Merit Systems Protection Board (“MSPB”). 

After a hearing, an ALJ issued a decision affirming the USPS’ decision to terminate 

Venter’s employment. In that decision, the ALJ rejected Venter’s affirmative defenses of 

age discrimination, disability discrimination, and retaliation. Venter filed a petition for 

review of the ALJ’s decision, which was similarly denied.
6

On June 9, 2008, Venter commenced this action in the District Court, claiming

that his termination was the result of age and disability discrimination in violation of the 

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq., and the 

Rehabilitation Act (“Rehabilitation Act”), 29 U.S.C. §§ 701, et seq.,

1

as well as 

retaliation for engaging in statutorily-protected activities. On March 9, 2010, the District 

Court issued a lengthy opinion, thoroughly addressing each of Venter’s claims, and 

ultimately granting summary judgment to defendants. Venter timely filed this appeal.

II.

The District Court properly exercised jurisdiction over this action pursuant to 29 

U.S.C. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

“We subject the District Court’s grant of summary judgment to plenary review, 

and we apply the same standard that the lower court should have applied.” Smathers v. 

Multi-Tool, Inc., 298 F.3d 191, 194 (3d Cir. 2002) (citing Farrell v. Planters Lifesavers 

Co., 206 F.3d 271, 278 (3d Cir. 2000)). Under that standard, summary judgment is 

appropriate only “if the pleadings, the discovery and disclosure materials on file, and any 

affidavits show that there is no genuine issue as to any material fact and that the movant 

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “While the evidence of 

the non-movant is to be believed, and all justifiable inferences are to be drawn in his 

 

1 Venter also claims that his termination violated the Americans with Disabilities Act of 

1990 (“ADA”), 42 U.S.C. §§ 12101 et seq., but “[i]n clear statutory language, Congress 

established that USPS is part of the federal government and that the entire federal 

government is excluded from the coverage of the ADA.” Henrickson v. Potter, 327 F.3d 

444, 447 (5th Cir. 2003) (citations omitted). Accordingly, Venter may not maintain a 

claim against USPS pursuant to the ADA.
7

favor in determining whether a genuine factual question exists, summary judgment 

should not be denied unless there is sufficient evidence for a jury to reasonably find for 

the nonmovant.” Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011) 

(citations, quotation marks, and brackets omitted).

III.

In his complaint, Venter alleges that his termination was the result of illegal (1) 

age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 

(2) disability discrimination in violation of the Rehabilitation Act, and (3) retaliation for 

engaging in statutorily-protected activities — namely, filing complaints with the EEOC. 

Where, as here, the plaintiff is without direct evidence of either discrimination or 

retaliation, we analyze such claims using the familiar burden-shifting framework set forth 

in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Smith v. City of 

Allentown, 589 F.3d 684, 689 (3d Cir. 2009) (applying McDonnell Douglas framework 

to an ADEA claim); Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007) (applying 

McDonnell Douglas to Rehabilitation Act claim); Moore v. City of Philadelphia, 461 

F.3d 331, 342 (3d Cir. 2006) (applying McDonnell Douglas framework to a retaliation 

claim). Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a 

prima facie case of unlawful discrimination or retaliation. 411 U.S. at 802; see also

Moore, 461 F.3d at 342. If the plaintiff succeeds, the burden of production shifts to the 

employer to articulate a legitimate, nondiscriminatory and nonretaliatory reason for its 

decision to terminate the plaintiff. McDonnell Douglas, 411 U.S. at 802; see also Moore, 

461 F.3d at 342.
8

Once the employer meets its “relatively light burden,” the burden of production 

returns to the plaintiff, who must show by a preponderance of the evidence that the 

employer’s proffered reason is pretextual. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 

1994). Accordingly, once an employer has proffered a legitimate, nondiscriminatory and 

nonretaliatory reason, the plaintiff “must submit evidence which: 1) casts sufficient 

doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder 

could reasonably conclude that each reason was a fabrication; or 2) allows the factfinder 

to infer that discrimination was more likely than not a motivating or determinative cause 

of the adverse employment action.” Id. at 762. Because the ultimate issue is whether 

“discriminatory animus” or retaliation motivated the employer in terminating the 

plaintiff, it is not enough to show that the employer made a “wrong or mistaken” 

decision. Id. at 765 (citations omitted). Rather, the plaintiff must uncover “weaknesses, 

implausibilities, inconsistencies, incoherencies, or contradictions” in the employer’s 

explanation that would allow a reasonable factfinder to believe that the employer did not 

truly act for the asserted reason. Id. 

Even assuming that Venter has successfully made out a prima facie case on each 

of his three claims — a proposition of which we are doubtful — he has presented no 

evidence to discredit defendants’ legitimate, non-discriminatory and non-retaliatory

reason for his termination. Defendants’ documented reason for terminating Venter’s 

employment was that Venter violated USPS’ Zero Tolerance Policy by stating that he 

wanted to “punch” and “kill” Hoburg. This is plainly a legitimate reason for terminating 
9

Venter’s employment. And, notably, Venter admits both that he made these threatening 

statements and that he understood the import of the Zero Tolerance Policy. 

In short, there is nothing in the record that would either cast doubt on the veracity 

of defendants’ proffered reason for Venter’s discharge or suggest that the proffered 

reason was not in fact the motivating cause of his termination.2 We must therefore 

conclude, as did the District Court, that Venter has failed as a matter of law to satisfy his 

burden to establish that defendants’ articulated, legitimate reason for his termination was 

pretextual. Accordingly, each of his claims fails. 

IV.

For the foregoing reasons, we will affirm the judgment of the District Court.

 

2 On appeal, Venter primarily seems to argue that two younger employees who violated 

the Zero Tolerance Policy were treated more favorably. This argument is unavailing for 

two reasons. First, Venter explicitly abandoned any argument based on comparators in 

the District Court. See App. 413-14, 446 n.17. Second, and even more importantly, 

neither of the younger employees can properly be considered a comparator. The situation 

of the first is incomparable because his incident occurred under the supervision of 

different decision-makers at a different USPS facility, see Sherman v. Runyon, 235 F.3d 

405, 409 (8th Cir. 2000) (finding that an employee failed to show pretext by pointing to 

the favorable treatment of another employee who was disciplined by a different 

supervisor at a different facility). And the situation of the second suggested comparator 

fails to provide support for Venter’s claim of pretext because he, like Venter, was 

removed from his position at USPS in accordance with the Zero Tolerance Policy, and 

was only later reinstated because he had been falsely accused. See App. 345.