Rapp v. Department of the Interior United States

Filing 42

ORDER AND REASONS: IT IS ORDERED that the 26 motion for summary judgment is GRANTED. IT IS FURTHER ORDERED that the 37 motion to extend deadlines for discovery and other case related court activities is DENIED. IT IS FURTHER ORDERED that the 38 motion to compel is DENIED, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 06/17/2019. (am)

Case 2:18-cv-01183-ILRL-JVM Document 42 Filed 06/18/19 Page 1 of 8

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

summary

judgment on wage-garnishment claim (Rec. Doc. 26), pro se plaintiff
Timothy Rapp’s response in opposition (Rec. Doc. 27), defendant’s
reply (Rec. Doc. 30), plaintiff’s motion to extend deadlines for
discovery and other case related court activities (Rec. Doc. 37),
and plaintiff’s motion to compel discovery 1 (Rec. Doc. 38). For the
reasons discussed below,
IT IS ORDERED that the motion for summary judgment is GRANTED.
IT IS FURTHER ORDERED that the motion to extend deadlines for
discovery and other case related court activities is DENIED.
IT IS FURTHER ORDERED that the motion to compel is DENIED.
FACTS AND PROCEDURAL HISTORY
This

is

an

employment

discrimination

case

involving

discriminatory discharge and discriminatory wage-garnishment. The
Court

1

previously

ruled

on

plaintiff’s

discriminatory

Motion referred to Magistrate Judge van Meerveld.
1

discharge

Case 2:18-cv-01183-ILRL-JVM Document 42 Filed 06/18/19 Page 2 of 8

claim, dismissing it as time barred. See Rec. Doc. 33. The instant
motion for summary judgment concerns plaintiff’s discriminatory
wage-garnishment claim. See Rec. Doc. 26 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 (“BSEE”). See Rec.
Doc. 16-3 at 1.
Prior to starting employment with DOI, on October 18, 2013,
plaintiff signed a relocation agreement stating that if plaintiff
failed to remain in federal government service for a period of 12
months

following

the

effective

date

of

his

transfer,

unless

separated for reasons beyond his control and acceptable by the
DOI/BSEE, then his relocation expenses shall be recoverable as a
debt to the United States. See Rec. Doc. 26-3 at 2. His employment
with the DOI lasted from December 1, 2013 until 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. Plaintiff states that one
of the two instances never happened and is completely fraudulent.
See Rec. Doc. 27-1 at 2.
During plaintiff’s exit clearance, DOI/BSEE noted plaintiff’s
failure to remain in federal employment for at least 12 months
triggered a discrepancy in his agreement as well as a claim for
recoupment of his relocation expenses. See Rec. Doc. 26-3 at 2.
2

Case 2:18-cv-01183-ILRL-JVM Document 42 Filed 06/18/19 Page 3 of 8

DOI/BSEE processed the claim for recoupment against plaintiff. See
id. Plaintiff filed an objection. See id. DOI/BSEE sustained the
collection action. See id. The recoupment debt was referred to the
U.S.

Department

of

Treasury,

who

enforced

the

debt

through

a

garnishment of plaintiff’s wages. See id. at 3.
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, monetary damages in the amount
of $10,399,133.00. See Rec. Doc. 3-2 at 1-3.
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 non3

Case 2:18-cv-01183-ILRL-JVM Document 42 Filed 06/18/19 Page 4 of 8

moving party. United Fire & Cas. Co. v. Hixson Bros. Inc., 453 F.3d
283, 285 (5th Cir. 2006). “Only disputes over facts that might
affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson, 477 U.S. at 248.
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
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

4

Case 2:18-cv-01183-ILRL-JVM Document 42 Filed 06/18/19 Page 5 of 8

in favor of the [non-movant].” McCarty v. Hillstone Rest. Grp., 864
F.3d 354, 357 (5th Cir. 2017).
B. Instant Motion for Partial Summary Judgment
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). To
evaluate

Title

VII

claims,

a

burden-shifting

framework

was

established by the Supreme Court of the United States in McDonnell
Douglas Corp v. Green, 411 U.S. 792 (1973). See Chen v. Ochsner
Clinic Found., 630 Fed. Appx. 218, 223 (5th Cir. 2015)(unpublished)
citing to Willis v. Cleco Corp., 749 F.3d 314, 320 (5th Cir. 2014).
Specifcally, to establish a prima facie case of nationalorigin discrimination, a plaintiff must prove that he was (1) a
member of a protected class; (2) qualified for the position held;
(3)

subject

to

an

adverse

employment

action;

and

(4)

treated

differently from others similarly situated. See Abarca v. Metro.
Transit Auth., 404 F.3d 938, 941 (5th Cir. 2005). If each of the
four elements are met, the burden shifts to the defendant to
articulate a legitimate, non-discriminatory reason for the alleged
discrimination, which may then be rebutted by the plaintiff as
pretext. See Willis, 749 F.3d at 320; see also Price v. Express
Corp., 283 F.3d 715, 720 (5th Cir. 2002)(stating that the third
stage of the burden-shifting framework is to give the plaintiff a
full and fair opportunity to show defendant’s reason is a pretext
5

Case 2:18-cv-01183-ILRL-JVM Document 42 Filed 06/18/19 Page 6 of 8

for discrimination). If each of the four elements are not met, the
plaintiff is unable to establish a prima facie case and his claim
fails. In other words, if the plaintiff cannot show with admissible
evidence that a reasonable jury would find each of the four elements
to be met, summary judgment is warranted. See Abarca, 404 F.3d at
941-42; see also Anderson, 477 U.S. at 248.
The pertinent issue here concerns the fourth element: whether
there is a genuine issue of material fact as to whether plaintiff
here

was

treated

differently

from

others

similarly

situated.

Defendant argues plaintiff has failed to prove that terminated
employees with a Cajun national origin were treated more favorably
that him. 2 See Rec. Doc. 26-3 at 6. Defendant points to the fact
that the processor of plaintiff’s recoupment debt confirms in a
sworn declaration that she processed plaintiff’s recoupment debt
without regard for plaintiff’s national origin. See id. at 7. She
processed his recoupment debt the same way she processed five
similar recoupment debts in previous years. See id.; see also
Abarca, 404 F.3d at 941 (finding no reversible error where district
court granted summary judgment when defendant offered deposition
testimony of union president to show similarity in plaintiff’s

2 An “Acadian” or “Cajun” is one who identifies as part of their ancestry with
someone who once lived in the French colony of “Acadia”, later renamed “Nova
Scotia.” Title VII’s national origin clause includes “Acadians” or “Cajuns”
same as those with English, African, French, Iranian, Czechoslovakian,
Portuguese, Polish, Mexican, Italian, Irish, et al., ancestors. See Roach v.
Dresser Indus. Valve & Instrument Div., 494 F. Supp. 215 (W.D. La. 1992).

6

Case 2:18-cv-01183-ILRL-JVM Document 42 Filed 06/18/19 Page 7 of 8

process and previous processes). Plaintiff’s supervisor was not
personally involved in processing, evaluating, or deciding any
aspect of the recoupment claim. See Rec. Doc. 30 at 3.
Plaintiff argues DOI fraudulently terminated him three weeks
before his one-year probation period ended to end his career and
destroy his 26-year professional reputation. See Rec. Doc. 27-1 at
2.

Plaintiff

offers

no

support

for

claiming

DOI

acted

with

fraudulent or discriminatory intent. See McCarty, 864 F.3d at 357
(stating that courts will not assume in the absence of
that

the

non-moving

party

could

or

would

prove

any

the

proof

necessary

facts). Plaintiff states he is collecting documentation that will
allow him to establish a prima facie case. See Rec. Doc. 27-1 at
In

that

deposed

regards

other

DOI/SEE

he

states

defendants

should

3.

have

personnel to uncover the discrimination he

alleges. See id. at 4-5. There is no excusable neglect shown for his
failure to depose witnesses.
Conclusory,

unsupported

contentions

do

not

defeat

summary

judgment. See Eason, 73 F.3d at 1325 (“Mere conclusory allegations
are insufficient to defeat summary judgment.”). Most importantly,
plaintiff

fails

to

“identify

any

employee

with

[whom]

he

was

similarly situated, but who was treated more favorably.” Abarca,
404 F.3d at 941.
Because plaintiff clearly fails to establish a genuine issue
as to a prima facie case of national-origin discrimination, the
Court

need

legitimate,

not

analyze

whether

non-discriminatory

defendant

reason
7

for

has

identified

plaintiff’s

wage

a

Case 2:18-cv-01183-ILRL-JVM Document 42 Filed 06/18/19 Page 8 of 8

garnishment

or

give

plaintiff

further

opportunity

to

show

defendant’s proffered reason is a pretext for discrimination. 3
Plaintiff

offers

no

evidence

to

support

his

claim

that

DOI’s

motivation for the recoupment action against him was nationalorigin-based animus. See Matsushita Elec. Indus. Co., Ltd., 475
U.S. at 586 (stating that the non-movant must then go beyond the
pleadings and present other evidence to establish a genuine issue).
Accordingly, defendant’s motion for summary judgment is granted and
plaintiff’s wage-garnishment claim is dismissed.
Plaintiff’s
supporting
action,

by

extension
motions

to

effort

mitigate

to

the

untimely

pursuit

of

evidence for his claims, before or after filing this
seeking
would

extended

lead

compel

and

to

discovery

supportive

fails

evidence.

to

show

how

Therefore,

an
the

for discovery extension are denied. See

Rec. Doc. Nos. 37, 38.
New Orleans, Louisiana, this 17th day of June, 2019.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

3

Even if plaintiff was able to establish a prima facie case of national-origin
discrimination, DOI states that plaintiff was terminated during his probation
period for inappropriate behavior in the workplace. 5 U.S.C § 5723(b) provided
that money spent by the Government is recoverable as a debt if an individual
does not remain in federal service for 12 months after his appointment. See Rec.
Doc. 26-3 at 7-8. Beyond conclusory allegation, plaintiff offers no evidence
that would allow a reasonable jury to find that the reasons on his termination
notice were completely fraudulent and a pretext for his termination. It is
undisputed that plaintiff was terminated before making 12 months of federal
employment. While liberally construing his claims, the law treats him as a pro
se litigant the same as represented ones.
8