United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell, United States District Judge
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.
BACKGROUND AND STATEMENT OF FACTS
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.
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.
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). Id.at 51; Pl. at 83:15-84:2.
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.
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.
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.
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.
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.
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.
12(b)(1) Lack of Subject Matter Jurisdiction
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
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).
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.
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).
Retaliation and Disability Discrimination ...