Seay v. Tennessee Valley Authority
| Citation | 339 F.3d 454 |
| Decision Date | 06 August 2003 |
| Docket Number | No. 01-5953.,01-5953. |
| Parties | Clarence SEAY, Jr., Plaintiff-Appellant, v. TENNESSEE VALLEY AUTHORITY; Craven Crowell, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
John R. Benn (argued and briefed), Sheffield, AL, for Plaintiff-Appellant.
Thomas F. Fine (briefed), Sr. Litigation Atty., John E. Slater (briefed), Barbara S. Maxwell (argued and briefed), Dillis D. Freeman (briefed), Tennessee Valley Authority, Knoxville, TN, for Defendants-Appellees.
Before: COLE and CLAY, Circuit Judges; BERTELSMAN, Senior District Judge.*
Plaintiff Clarence Seay, Jr. appeals from the district court's grant of summary judgment, on all counts of Plaintiff's amended complaint, in favor of Defendants Tennessee Valley Authority and Craven Crowell (collectively "TVA"). The lawsuit concerned certain adverse actions TVA took against Plaintiff which Plaintiff alleged constituted violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and various other statutes and policies. Plaintiff contends that genuine issues of material fact remain for this case to proceed to trial, and that the district court erred in denying Plaintiff's request to strike evidentiary submissions from TVA's reply briefs. As discussed below, we AFFIRM in part and REVERSE in part the district court's judgment.
On November 17, 1999, Plaintiff filed a 131-count complaint with the United States District Court for the Northern District of Alabama, which alleged, in pertinent part, the following: (1) wrongful non-selection relating to forty-three posted vacant positions due to race discrimination and retaliation, in violation of Title VII; (2) violation of TVA's hiring and retention policy for disabled veterans; (3) violation of Supplementary Agreement 10 of TVA's collective bargaining agreement; (4) violation of Plaintiff's procedural and substantive reduction-in-force ("RIF") rights; (5) wrongful adverse action (suspension); and (6) racially discriminatory suspension. The district court for the Northern District of Alabama dismissed with prejudice forty-eight counts of Plaintiff's complaint and transferred the case to the Eastern District of Tennessee. Subsequent to the transfer, Plaintiff filed an amended complaint.
TVA filed four motions for partial summary judgment, which collectively sought to dismiss with prejudice all remaining counts in Plaintiff's amended complaint. The first motion sought to dismiss fifty-nine counts, and Plaintiff filed responsive papers in opposition on March 15, 2001. TVA then filed a reply brief on March 26, 2001. TVA attached to the reply brief some additional evidentiary submissions. Three days later, on March 29, 2001, the district court issued an order granting summary judgment to TVA on all fifty-nine counts. The following day Plaintiff filed a motion to strike the evidentiary submissions attached to TVA's reply brief, which the district court denied.
On March 26, TVA filed its second motion for partial summary judgment; Plaintiff filed papers in opposition on April 20, 2001, and TVA filed a reply brief on April 25, 2001. Plaintiff did not challenge any submissions in connection with this sequence.
On March 30, 2001 TVA filed its third motion for partial summary judgment. Plaintiff filed his response on April 26, 2001, and on May 2, 2001 TVA filed a reply brief, which included new declarations. Attached to the declarations were exhibits containing evidentiary material that had not previously been submitted by TVA, although the evidentiary material had been submitted by Plaintiff. Plaintiff moved to strike the evidentiary submissions, and the district court denied this request.
On April 2, 2001, TVA filed its fourth motion for partial summary judgment. Plaintiff filed papers in opposition on April 26, 2001. On May 4, 2001, TVA submitted an amended fourth motion, which argued, in part, that the district court lacked subject matter jurisdiction over counts 126, 127, 130, and 131 of Plaintiff's amended complaint. Plaintiff filed a motion to strike TVA's amended motion, arguing that it was not timely. The district court denied this motion.
On May 29, 2001, the district court granted summary judgment in favor of TVA on all of the remaining counts in Plaintiff's amended complaint. Plaintiff then filed a motion for reconsideration or clarification, which the district court also denied. This timely appeal followed.
Plaintiff, an African American male, was employed with TVA from April of 1977 to September 26, 1997. At the time of his termination, he was a Safety Specialist in TVA's Labor and Safety organization. He had a grade level of SD-4 and was a 60% disabled veteran. The gravamen of Plaintiff's amended complaint concerns three events during his employment with TVA: his sixty-day suspension, his termination pursuant to a RIF, and his non-selection for forty-three vacant positions to which he applied after he was given notice of his RIF.
On February 10 and 11, 1997, Plaintiff was assigned to perform a safety inspection at TVA's Raccoon Mountain Pumped Storage Plant ("Raccoon Mountain"). Although the work would not begin until Monday, February 10, 1997, because of the traveling distance and pursuant to custom at TVA, Plaintiff checked out a TVA vehicle on Friday, February 7, 1997, and drove it to his residence in Chattanooga, Tennessee. On Monday, February 10, Plaintiff drove the vehicle to Raccoon Mountain, and after finishing work he drove the vehicle to Miles Law School in Birmingham, Alabama, some 139 miles away, where he was attending night classes. He repeated this process on the following day, February 11, 1997. Plaintiff admitted to having used the vehicle for unofficial and personal purposes of attending the law school classes on those two nights. He also acknowledged that he had not received permission to use the vehicle for this purpose. The two trips resulted in about 500 additional miles of usage for the TVA vehicle. Plaintiff's conduct was discovered, and the matter was referred to the Office of the Inspector General (OIG) for an investigation. After OIG completed its investigation into the matter, Plaintiff's supervisor James Johnson issued a Notice of Proposal recommending that Plaintiff receive a sixty-day suspension because he misused the TVA vehicle "on two separate occasions." (J.A. at 493.) Subsequently, Johnson's supervisor, Eugene Walters, issued a Notice of Decision, informing Plaintiff of his sixty-day suspension for twice misusing a TVA vehicle. After receiving the notice, Plaintiff contacted one of TVA's Equal Opportunity (EO) counselors. He then filed a formal administrative charge, or Equal Employment Opportunity (EEO) complaint, with TVA's Equal Opportunity Compliance (EOC) staff, alleging that his suspension was due to racial discrimination and retaliation for prior EOC activity.
In February of 1997, TVA obtained an outside consultant, Scott Madden, to conduct a workforce competitiveness study of several of TVA's organizations. Pursuant to Madden's recommendations, TVA decided to undertake a reorganization of four departments, resulting in numerous RIFs throughout those departments. As part of the reorganization, all of the Safety Specialist positions were eliminated. Plaintiff was notified on July 25, 1997 that he would be terminated pursuant to the RIF effective September 26, 1997.
After learning of his impending RIF termination, Plaintiff contacted an EO counselor and alleged that he was being terminated due to race discrimination and retaliation for prior EOC activity. Plaintiff also applied for approximately forty-three vacant job postings at TVA, but he was not selected for any of the positions. Plaintiff filed an EEO complaint with TVA's EOC staff for each of these non-selections.
On September 26, 1997, Plaintiff was terminated from TVA pursuant to the RIF. Although he was the highest-listed employee for retention purposes (i.e., he would be the last terminated within his group), he was still terminated because the entire department was eliminated in the reorganization.
Plaintiff filed another EEO complaint on November 22, 1997 with TVA's EOC staff. This complaint alleged that he was being terminated due to race discrimination. It also challenged whether the termination took into consideration his rights as a disabled veteran and whether the termination was conducted in accordance with TVA's collective bargaining agreement. Because the complaint involved discrimination claims as well as nondiscrimination claims, the EOC staff accepted Plaintiff's complaint as a "mixed case" complaint, pursuant to 5 U.S.C. § 7702 and 29 C.F.R. § 1614.302.1 Before the EOC director issued a final decision, but more than 120 days after the EOC staff received the complaint, Plaintiff filed the instant civil action.
We review a district court's grant of summary judgment de novo. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.2000) (en banc). Summary judgment is only appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56. The mere existence of some alleged factual dispute in the case will not defeat an otherwise properly supported summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
On appeal, Plaintiff challenges the district court's dismissal of his claims involving non-selections for the positions of (1) Contract Manager, (2) Project Manager, Safety, and (3...
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