Rapp v. Department of the Interior United States
Filing
33
ORDER AND REASONS GRANTING 16 Motion for Partial Summary Judgment, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 3/7/2019. (jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TIMOTHY R. RAPP
CIVIL ACTION
VERSUS
NO. 18-1183
DEPARTMENT OF THE INTERIOR
UNITED STATES
SECTION: “B”(1)
ORDER AND REASONS
Before the Court are Defendant Ryan Zinke in his capacity as
Secretary of the Department of Interior’s Motion for Partial Summary
Judgment
(Rec.
Doc.
16),
Plaintiff
Timothy
Rapp’s
Response
in
Opposition (Rec. Doc. 17) 1, and Defendant’s Reply (Rec. Doc. 22).
For the reasons discussed below,
IT IS ORDERED that the partial motion for summary judgment is
GRANTED.
FACTS AND PROCEDURAL HISTORY
This
is
an
employment
discrimination
case
involving
discriminatory garnishment and discriminatory discharge under Title
VII. See Rec. Doc. 16-3 at 5. The instant motion only involves the
discriminatory discharge claim. See Rec. Doc. 16 at 1.
Plaintiff is a former employee of the Department of the Interior
(“DOI”). See id. He worked as a petroleum engineer in the Bureau of
Safety and Environmental Enforcement. See Rec. Doc. 16-3 at 1.
On November 23, 2018, Plaintiff filed his Amended Reply to Response to Motion
re: Defendant’s Motion for Partial Summary Judgment (Rec. Doc. 25). It contains
the same content contained in Plaintiff’s Response in Opposition (Rec. Doc. 17).
1
1
Plaintiff began his employment with Defendant on December 1,
2013. See id. He was terminated on November 4, 2014. See id.
According to Defendant, Plaintiff’s termination notice cited two
instances of Plaintiff’s inappropriate workplace communications with
co-workers. See id. at 2. Plaintiff states that one of the two
instances “never happened and is completely fraudulent.” See Rec.
Doc. 17-2 at 2. Plaintiff also states that he has repeatedly asserted
that response throughout his EEO process. See id. Defendant states
that Plaintiff signed the termination notice to signify his receipt.
See Rec. Doc. 16-3 at 2.
Plaintiff
first
contacted
an
Equal
Employment
Opportunity
(“EEO”) counselor on October 20, 2016. See id. In addition to
alleging
discriminatory
garnishment
in
2016,
he
alleged
discriminatory discharge from DOI in 2014 based on his non-Cajun
national origin. See id. Plaintiff filed a formal complaint on
January 23, 2017. See id. DOI’s Office of Civil Rights issued a final
agency decision in November 2017 finding that Plaintiff was not
subjected to unlawful employment discrimination. See id.
On February 23, 2018, Plaintiff filed an amended complaint
alleging that DOI terminated him and recouped its relocation payments
because of Plaintiff’s non-Cajun national origin. See Rec. Doc. 3.
Plaintiff seeks, inter alia, a letter from DOI stating that his
employment ended in good standing as well as monetary damages in the
amount of $10,399,133.00. See Rec. Doc. 3-2 at 1-3. On June 4, 2018,
2
Defendant answered with affirmative defenses. See Rec. Doc. 9.
Subsequently, on August 23, 2018 Defendant filed the instant motion
for summary judgment on the claim of discriminatory discharge.
LAW AND ANALYSIS
A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate
when
interrogatories,
“the
and
pleadings,
admissions
on
depositions,
file,
answers
together
with
to
the
affidavits, if any, 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(quoting Fed. R. Civ. P. 56(c)). See also TIG Ins. Co. v. Sedgwick
James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A genuine issue
of material fact exists if the evidence would allow a reasonable
jury to return a verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The court should view all
facts and evidence in the light most favorable to the non-moving
party. United Fire & Cas. Co. v. Hixson Bros. Inc., 453 F.3d 283,
285 (5th Cir. 2006). Mere conclusory allegations are insufficient to
defeat summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th
Cir. 1996).
The
movant
must
point
to
“portions
of
‘the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes demonstrate
3
the absence of a genuine issue of material fact.” Celotex, 477 U.S.
at 323. If and when the movant carries this burden, the non-movant
must then go beyond the pleadings and present other evidence to
establish a genuine issue. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, “where the
non-movant bears the burden of proof at trial, the movant may merely
point to an absence of evidence, thus shifting to the non-movant the
burden of demonstrating by competent summary judgment proof that
there is an issue of material fact warranting trial.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). “This court
will not assume in the absence of any proof that the nonmoving party
could or would prove the necessary facts, and will grant summary
judgment in any case where critical evidence is so weak or tenuous
on an essential fact that it could not support a judgment in favor
of the [non-movant].” McCarty v. Hillstone Rest. Grp., 864 F.3d 354,
357 (5th Cir. 2017).
B. Plaintiff Failed to Timely Exhaust Administrative Remedies
Pursuant to Title VII, employees of the federal government
“shall be made free from any discrimination based on race, color,
religion, sex, or national origin.” See 42 U.S.C. § 2000e-16(a).
Title VII grants an aggrieved federal employee the right to file
suit in federal district court, but before suing, an employee must
exhaust his administrative remedies against his federal employer.
4
See Fitzgerald v. Secretary, Dept. of Veteran Affairs, 121 F.3d 203,
206 (5th Cir. 1997).
If a federal government employee believes that he has been
discriminated against on a said basis, he must first initiate contact
with
an
EEO
counselor
within
45
days
of
date
of
alleged
discriminatory conduct to try to informally resolve the matter. See
29 C.F.R. § 1614.105. If he fails to, he has failed to timely exhaust
his administrative remedies and his claim is time barred, making
future judicial action inappropriate. See Raina v. Veneman, 152 Fed.
Appx. 348, 350 (5th Cir. 2005); see also Baker v. McHugh, 672 Fed.
Appx. 357, 360 (5th Cir. 2016) (clarifying that 29 C.F.R. § 1614.105
operates as a statute of limitation to bar claims not timely raised
before the employer agency).
In
this
administrative
case,
Plaintiff
remedies.
It
failed
is
to
undisputed
timely
that
exhaust
his
Plaintiff
was
terminated on November 14, 2014. It is also undisputed that Plaintiff
first contacted an EEO counselor on October 20, 2016. Plaintiff
waited almost two years to contact an EEO counselor. Plaintiff argues
that he timely exhausted his administrative remedies because when he
contacted the EEO counselor, Defendant was making efforts to collect
contingent relocation fees from him and those efforts are associated
with the discriminatory harassment he received while employed. 2
Defendant made the decision to recoup relocation expenses in or around November
2014. See Rec. Doc. 26-4 at 1-2 (stating that soon after Plaintiff’s termination,
his immediate supervisor initiated an exit clearance and a claim for recoupment
2
5
Plaintiff’s argument fails because he is making a claim for a
discrete
act,
discriminatory
discharge,
and
the
recoupment
of
relocation expenses in 2016 cannot constitute an act of continuing
hostile work environment harassment. See Heath v. Bd. of Supervisors
for the S. Univ. & Agric. & Mech. College, 850 F.3d 731, 737 (5th
Cir. 2017) citing to AMTRAK v. Morgan, 536 U.S. 101 (2002) (“Claims
alleging discrete acts are not subject to the continuing violation
doctrine; hostile workplace claims are.”); see also Morgan, 536 U.S.
at 114 (“Discrete acts [include] termination . . .. Each incident of
discrimination . . . constitutes a separate actionable unlawful
employment practice. [Plaintiff] can only file a charge to cover
discrete acts that occurred within the appropriate time period.”).
Therefore, Plaintiff’s discriminatory discharge claim is dismissed
as time barred.
New Orleans, Louisiana, this 7th day of March, 2019.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
against Plaintiff was forwarded to the Finance Division of the Bureau of Safety
and Environmental Enforcement).
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