Riley v. Napolitano
Filing
56
ORDER and REASONS denying 50 Motion for New Trial, as stated within document. Signed by Judge Kurt D. Engelhardt on 12/17/2012. (cab)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL J. RILEY
CIVIL ACTION
VERSUS
NO. 11-187
SECRETARY, JANET NAPOLITANO
DEPARTMENT OF HOMELAND SECURITY
SECTION “N” (1)
ORDER AND REASONS
Before the Court is the “Motion for New Trial” (Rec. Doc. 50), filed by the plaintiff.
Defendant has filed an opposition memorandum (Rec. Doc. 52), and plaintiff has filed a reply
memorandum (Rec. Doc. 55).
On November 15, 2012, the Court granted defendant’s motion for summary judgment on
plaintiff’s retaliation claim and entered judgment in favor of defendant. (Rec. Docs. 46 and 47).
Previously, in opposition to defendant’s motion for summary judgment, and in support of his
own motion for summary judgment, plaintiff argued that his alleged protected activity – the July
11, 2007 email that plaintiff sent to Lois Cleveland and Pauline Campbell – opposed an unlawful
employment practice, therefore falling within the opposition clause of 42 U.S.C. § 2000e–3(a).
Now, in support of new trial, he argues that this same email constituted participation in an
investigation, proceeding, or hearing under Title VII, and therefore falls within the participation
clause of the statute. Although plaintiff had initiated no complaint with the EEOC at the time of
the email, his argument seems to be that the July 11 email itself commenced a Title VII
proceeding within FEMA’s own complaint process for employment discrimination. However,
assuming without deciding that such an internal complaint could constitute protected activity
under the participation clause, this argument fails for the same reason as plaintiff’s earlier
opposition clause argument failed: The email does not refer to any practice made an unlawful
employment practice under Title VII. Although the plaintiff complained in the email of
mistreatment, he did not suggest that the treatment was based on any characteristic protected
under Title VII. Indeed, plaintiff has admitted that the email complaint was not based on any
protected status. See Riley Depo. at pp. 77-78 (Rec. Doc. 29-10 at p. 20 of 26). Thus, the email
cannot be construed as commencing a proceeding under Title VII. Because he cannot make out
a prima facie case of retaliatory discharge, his claim was properly dismissed as a matter of law.
Consequently, he has failed to present any basis that would warrant relief under Rule 59, Rule
60, or otherwise. Accordingly;
IT IS ORDERED that plaintiff’s Motion for New Trial (Rec. Doc. 50) is hereby
DENIED.
New Orleans, Louisiana, this 17th day of December, 2012.
____________________________________
KURT D. ENGELHARDT
UNITED STATES DISTRICT JUDGE
2
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