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Center v. Secretary, Department of Homeland Security

United States District Court, M.D. Florida, Tampa Division

September 5, 2017



          Charlene Edwards Honeywell, United States District Judge

         This cause comes before the Court upon the Defendant Secretary, Department of Homeland Security, Customs and Border Protection Agency's (“CBP”) Motion to Dismiss for Lack of Subject Matter Jurisdiction or, in the alternative, for Summary Judgment (Doc. 24). In the motion, Defendant contends that this Court lacks subject matter jurisdiction because (1) Plaintiff's exclusive remedy in this case is through the Federal Employees' Compensation Act (FECA); and (2) Sections 501 and 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. (“the Act”) do not provide jurisdiction for a claim of age discrimination. In the alternative, Defendant contends that summary judgment is appropriate because Plaintiff cannot identify a genuine issue of material fact. Plaintiff Charles Edward Center (“Plaintiff”) responded in opposition to the Motion (Doc. 27). The Court, having considered the parties' submissions, including depositions, affidavits, and exhibits, and being fully advised in the premises will now grant Defendant's Motion.


         This litigation arises from allegations of retaliation, age and disability discrimination pursuant to the Rehabilitation Act. Plaintiff first became a federal employee in 1991 when he was hired by the Immigration and Naturalization Service (“INS”) as an immigration inspector, a position he held until 2003 when INS merged with the CBP. Doc. 24-1, Exh. A; Doc. 24-4, Exh. D, Plaintiff's deposition (“Pl.”) at 14:8-11. When Plaintiff became a CBP Officer his supervisors included Chief Todras, Benji Cerrvetti, Greg Brown and possibly one other person. Pl. at 10:8-22; 12:17-27, 13:17-21. Plaintiff was injured on the job on February 27, 1999 while moving two desks, and his injuries got worse over time. Pl. at 15:5-11; 29:8-30:10. Subsequently, Plaintiff sought and received workers' compensation in 2004 or 2005 and was initially out of work on workers' compensation for ten months. Pl. at 15:12. Plaintiff returned to work for one year, after which he went out on workers' compensation for three years before returning to work in 2009. Pl. at 15:12-14; 26:7-16; 41:4-19; 76:4-20.

         On March 19, 2008, while Plaintiff was out of work on workers' compensation, Dr. William Dinenberg prepared an independent medical examination report. Doc. 24-5 at pp. 26-28. Dr. Dinenberg concluded that Plaintiff had reached maximum medical improvement with respect to his 1999 injury, and that, in his opinion, Plaintiff was unable to perform the duties of a CBP Officer. Id. According to Dr. Dinenberg, Plaintiff's permanent work-related restrictions consisted of standing no greater than one hour; lifting, pushing or pulling no greater than 20 pounds; an eight-hour work day; and work on a computer no greater than one hour at a time without breaks. Id. at pp. 31-32.

         Pursuant to a letter dated January 23, 2009, DOL requested that CBP offer Plaintiff a permanent job that met his medical restrictions. Doc. 24-5 at p. 23. At the time, Plaintiff was employed as a CBP Officer with a salary level of General Schedule (“GS”) level 11, Step 6. Doc. 24-6, Exh. F. In April of 2009, Plaintiff was offered a position as a CBP Technician with a salary at the GS-7 level, Step 10. Doc. 24-5, Exh. E at pp. 50-51. Previously, Plaintiff had been a GS-11 level, Step 6. Pl. at 15:17-19. And despite representations to the contrary, when Plaintiff returned, there were two GS-11 level positions which should have been offered to Plaintiff. Doc. 24-5 at p. 103; Pl. at 82:23-25; 84:8-20. Regardless, at the time, Plaintiff had to either accept the lower grade position or be removed from his position with CBP. Doc. 24-5 at p. 51; Pl. at 21:10-12. Plaintiff chose to return to work as a CBP Technician since he could not perform essential duties of a CBP Officer (his former position). 51; Pl. at 83:15-84:2.

         In an email dated July 22, 2010, Jane Mary Greco, National Treasury Employees Union (“NTEU” or “Union”) Chief Steward, notified CBP that when Plaintiff was offered the CBP Technician position, there were two vacancy announcements for higher graded entry specialist positions that Plaintiff could have been offered. Doc. 24-5 at pp. 55-56. The entry specialist positions had a full performance level of GS-11. Id. Ms. Greco requested a meeting with management to address the issue. Id. Based upon Ms. Greco's message, CBP looked into the matter and determined that it had erred in not offering Plaintiff a higher graded entry specialist position. Id. at pp. 53-57, 61, 62, 69. CBP also concluded that, at that time, it did not have a vacant GS-11 level position for Plaintiff. Id. at pp. 61-69.

         In order to correct its error, CBP requested to convert a CBP technician position into a Vessel and Entry Clearance Specialist (“VECS”) position, which had a full performance level of GS-11. Doc. 24-5 at pp. 61-69. On March 7, 2011, the CBP's headquarters approved Tampa management's request to convert a technician position to a VECS position. Id. at p. 69. Based upon a review of Plaintiff's resume, however, a human resources specialist within the Agency's Minneapolis Hiring Center (“MHC”) concluded that Plaintiff was only qualified to perform the functions of the VECS position at the GS-9 level. Id. at p. 70. To ensure Plaintiff would be given the proper grade level, Plaintiff provided an updated resume that was reviewed by the MHC. Id. at p. 71. Once again, based upon a review of Plaintiff's updated resume, a human resources specialist within the MHC confirmed that, due to a lack of experience, the highest grade level that Plaintiff qualified for was the GS-9. Id. at p. 70.

         In June of 2011, Plaintiff was converted to a Vessel Entry Clearance Specialist. Doc. 24-5 at pp. 82, 118-119; Pl. at 9:19-10:10. On December 7, 2011, CBP management in Tampa recommended that Plaintiff receive an early promotion to the GS-11 level. Id. at pp. 92-94. The MHC concluded that, pursuant to 5 C.F.R. § 353.301, Plaintiff was to be placed at the GS-11 level, Step 6, pay rate because that was the highest rate he had held in his previous position as a CBP officer. Id. at p. 96. On December 23, 2011, Plaintiff was promoted to his full performance level at a GS-11, Step 6. Id. Plaintiff is on workers' compensation currently and has been on leave without pay since 2013 at a GS-11 level, Step 6, pay rate which is the same as he was in 2009. Pl. at 37:16, 81:10-17; 99:16-18.

         Shortly after being informed of his early promotion, Plaintiff began to question why he was being placed at the GS-11 level, Step 6, pay rate as opposed to Step 7 or Step 8. Doc. 24-5 at p. 113. On January 18, 2012, NTEU Chief Steward Greco interceded on Plaintiff's behalf and requested a meeting with the Agency to address Plaintiff's concerns. Id. at p. 99. A meeting was held on February 7, 2012, but the matter of a further increase in Steps remained unresolved. Id. at pp. 112-115.

         On or about February 3, 2012, Plaintiff initiated contact with an Equal Employment Opportunity (“EEO”) Counselor with the Department of Homeland Security. Id. at pp. 193-209. Plaintiff then filed a formal EEO complaint with the Department of Homeland Security on March 21, 2012. Id. at pp. 205-209. The EEO complaint was dismissed on November 23, 2015 because the claims raised in the complaint were the basis of a pending civil action in a U.S. District Court. Doc. 6-2 at pg. 3.

         Plaintiff asserts three counts in the Complaint: Retaliation pursuant to the Rehabilitation Act (Count I); Disability discrimination pursuant to the Rehabilitation Act (Count II); and Age discrimination pursuant to the Rehabilitation Act (Count III). Doc. 1. Plaintiff seeks past and future wages, pain and suffering, back pay, front pay and benefits, expenses, payment for insurance, compensatory and punitive damages, and injunctive relief. Id. at ¶¶ 34-35. CBP has now filed the instant dispositive motion. Doc. 24.


         1.Rule 12(b)(1) Lack of Subject Matter Jurisdiction

          A defendant may attack subject matter jurisdiction in two manners: facially and factually. McMaster v. U.S., 177 F.3d 936, 940 (11th Cir. 1999). A facial attack to subject matter jurisdiction requires the Court to assess if the complaint sufficiently alleges a basis for jurisdiction. Fed.R.Civ.P. 12(b)(1). In assessing a motion to dismiss pursuant to Rule12(b)(1) the Court affords Plaintiff the same safeguards as those provided in opposing a Rule 12(b)(6) motion, it considers all allegations of the complaint as true and is confined to the four corners of the complaint. See Id.

         By contrast, in assessing a factual challenge to subject matter jurisdiction, the court may consider matters outside of the complaint. See McMaster, 177 F.3d at 940; Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (“‘Factual attacks' ... challenge ‘the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.'”). If a Court finds at any point in the litigation that it lacks subject matter jurisdiction over an action, it must dismiss the complaint. Fed.R.Civ.P. 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

         2.Summary Judgment-Rule 56

         Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of stating the basis for its motion and identifying those portions of the record demonstrating the absence of genuine issues of material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). That burden can be discharged if the moving party can show the court that there is “an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325.

         When the moving party has discharged its burden, the nonmoving party must then designate specific facts showing that there is a genuine issue of material fact. Id. at 324. Issues of fact are “genuine only if a reasonable jury, considering the evidence present, could find for the nonmoving party, ” and a fact is “material” if it may affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). In determining whether a genuine issue of material fact exists, the court must consider all the evidence in the light most favorable to the nonmoving party. Celotex, 477 U.S. at 323. However, a party cannot defeat summary judgment by relying upon conclusory allegations. See Hill v. Oil Dri Corp. of Ga., 198 Fed. App'x 852, 858 (11th Cir. 2006).


         1.Motion to Dismiss

         a. Retaliation and Disability Discrimination ...

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