Anthony Grose, Sr. v. Janet Napolitano, Secretary, et al

Filing

UNPUBLISHED OPINION FILED. [14-60312 Affirmed ] Judge: JES , Judge: JLW , Judge: JWE Mandate pull date is 12/11/2014 [14-60312]

Case: 14-60312

Document: 00512808627

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Date Filed: 10/20/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60312
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
October 20, 2014

ANTHONY T. GROSE, SR.,
Plaintiff - Appellant

Lyle W. Cayce
Clerk

v.
JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND
SECURITY, (DHS) Federal Emergency Management Agency (FEMA); JOHN
STEVIAN, Human Resources Specialist (DHS), FEMA Human Capital
Recruitment; DEPARTMENT OF HOMELAND SECURITY, Federal Agency
of the United States Government; FEDERAL EMERGENCY
MANAGEMENT AGENCY, Federal Agency of the United States
Government,
Defendants - Appellees

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:11-CV-227
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Anthony T. Grose, Sr., proceeding pro se, appeals the
dismissal of his lawsuit alleging claims of discrimination on the basis of race,

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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sex, and military-connected disability. In his lawsuit, Grose alleges that the
Federal Emergency Management Agency’s (“FEMA”) failure to hire him was
the result of unlawful discrimination under Title VII of the Civil Rights Act of
1964, the Veterans Employment Opportunity Act of 1998 (“VEOA”), the
Uniform Service Employment and Reemployment Rights Act of 1994
(“USERRA”), the American with Disabilities Act of 1990 (“ADA”), the
Rehabilitation Act of 1973, the Disaster Relief Act of 1974 (“Stafford Act”), 42
U.S.C. § 1983, and the Fifth and Fourteenth Amendments. He further alleges
negligence under the Federal Tort Claims Act (“FTCA”).
In 2007, Grose applied to FEMA for a position as a Housing Advisor
Caseworker. An inadvertent error in the job posting announcement led to the
disqualification of his application and those of 124 other candidates who relied
on that erroneous posting. In a separate FEMA error, the notice sent to Grose
informing him that he had not been selected for the position gave an incorrect
reason for his disqualification.
Grose filed a complaint of employment discrimination with the
Department of Homeland Security (“DHS”). An administrative law judge with
the Equal Employment Opportunity Commission (“EEOC”) found no evidence
of discrimination, and DHS dismissed his complaint in January 2010. Grose
was informed of the deadlines to file an appeal with the EEOC or a civil action
in federal district court. Rather than pursuing either option, Grose filed three
ultimately unsuccessful appeals with the Merit Systems Protection Board, the
last of which terminated in April 2011. Grose then filed the present lawsuit
on June 3, 2011, naming as defendants Janet Napolitano, Secretary of DHS,

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in her individual and official capacities, and John Stevian, Human Resources
Specialist for FEMA, in his individual and official capacities. 1
On Defendants-Appellees’ combined motion to dismiss for lack of subject
matter jurisdiction and for summary judgment, the district court dismissed all
claims against Napolitano and Stevian in their official capacities. The court
found that (1) Grose’s Title VII claims were time-barred, or alternatively, that
Grose had failed to demonstrate that the government’s legitimate,
nondiscriminatory reason for rejecting his application was pretext for
discrimination; 2 (2) Grose had failed to establish a prima facie case of
discrimination under the Rehabilitation Act; (3) Grose had failed to adduce any
evidence supporting his claim under the Stafford Act; (4) no damages remedy
existed under the Fifth Amendment for actions against federal agencies; (5)
Grose’s VEOA and USERRA claims were untimely filed; (6) Grose had failed
to exhaust administrative remedies prior to filing his FTCA claim; and (7) the
court lacked subject matter jurisdiction over Grose’s claims under the ADA,
§ 1983, and the Fourteenth Amendment. Later, in separate orders, the district
court dismissed Grose’s remaining claims against Stevian and Napolitano in
their individual capacities for, inter alia, insufficient service of process. 3 In
various post-judgment motions, Grose pleaded additional claims of bias and

Although Grose later amended his complaint to include both DHS and FEMA as
defendants, throughout this lawsuit the defendants have styled themselves according to
Grose’s original designations. Because a lawsuit against a federal official in her official
capacity is essentially a lawsuit against the entity she represents, for the purposes of this
appeal we treat as one entity DHS, FEMA, and the individual defendants in their official
capacities. See Kentucky v. Graham, 473 U.S. 159, 165–66 (1985).
2 See Vaughn v. Woodforest Bank, 665 F.2d 632, 636 (Fifth Cir. 2011) (describing the
modified McDonnell-Douglas burden-shifting framework for Title VII discrimination claims).
3 A federal official sued in her individual capacity must be served with process
according to the requirements of Federal Rule of Civil Procedure 4(e), within 120 days of the
complaint being filed. See FED. R. CIV. P. 4(e), 4(m). The complaint was filed on June 3, 2011,
and the district court allowed Grose considerable time in which to perfect service
(approximately 24 months for Stevian and 33 months for Napolitano).
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misconduct on the part of the district court and counsel for DefendantsAppellees.
On appeal, Grose does not address the reasoning of the district court in
dismissing his claims, relying instead on his own vague and unsupported
allegations. Although we construe pro se briefs liberally, Grose has waived his
claims on appeal by failing to preserve them adequately. 4 Our review of the
record and the district court’s thorough and well-reasoned opinions reveals no
reversible error of fact or law. Accordingly, the judgment of the district court
is AFFIRMED.

4

See, e.g., Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008).

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