Charles Edward Ctr. v. Sec'y, Dep't of Homeland Sec., Customs & Border Prot. Agency

Decision Date19 July 2018
Docket NumberNo. 17-14961,17-14961
Citation895 F.3d 1295
Parties Charles Edward CENTER, Jr., Plaintiff-Appellant, v. SECRETARY, DEPARTMENT OF HOMELAND SECURITY, CUSTOMS AND BORDER PROTECTION AGENCY, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Kevin F. Sanderson, Kevin F. Sanderson, Chartered, Osprey, FL, for Plaintiff-Appellant.

Jennifer Waugh Corinis, Peter J. Sholl, U.S. Attorney Service—Middle District of Florida, U.S. Attorney's Office, Tampa, FL, for Defendant-Appellee.

Before WILLIAM PRYOR, HULL, and JULIE CARNES, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

Charles Center appeals the dismissal of his complaint that his employer, the Customs and Border Protection Agency, discriminated against him in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. Center is a longtime government employee who has suffered multiple injuries on the job. When he returned from workers’ compensation leave in 2009, the agency erroneously offered him a position that paid less than his former position. Although the agency quickly corrected its mistake, Center sued the agency for retaliation and disability discrimination. The district court dismissed the complaint for lack of jurisdiction because of the Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq. , which provides comprehensive remedies for injured federal workers. In the alternative, it granted summary judgment against Center’s claims of retaliation and disability discrimination. We affirm. Center waived his claim of retaliation on appeal. And although the district court had jurisdiction to entertain Center’s claim of disability discrimination, we affirm the summary judgment in favor of the agency because Center failed to present evidence that the nondiscriminatory reasons offered by the agency were a pretext for discrimination.

I. BACKGROUND

In 1999, Center injured his back working as an inspector for the Immigration and Naturalization Service. Later, the Service merged with the Customs and Border Protection Agency, and Center assumed the job title of officer. In 2004 or 2005, while Center was classified at pay-grade level 11, step 4, he took a leave of absence due to a back injury and received federal workers’ compensation benefits. In 2005, Center resumed his duties, but in 2006, he again took a leave of absence until 2009. And in 2009, he attained a pay-grade level of 11, step 6.

In January 2009, the Office of Workers’ Compensation Programs determined that Center had permanent physical restrictions, referred him for vocational rehabilitation services, and requested that the agency find him a suitable position. Within a few months, the field operations office in Tampa, Florida, offered Center a job as a technician at pay-grade level 7, step 1. The field office warned Center that it would "rescind the job offer" and that the agency "may initiate action to separate [him] from [its] employment rolls" if he did not accept the position by May 12, 2009. Center accepted the job.

In 2010, a union steward discovered that "there were [two] full time [pay-grade level 11] Entry Specialist positions available" when Center returned to work, and she demanded to know "why ... Center [was not] offered one of these equivalent positions" as required by agency regulations. The agency admitted that it had erred by failing to offer Center a job that matched his earlier pay grade and worked to correct the oversight. In January 2011, the field office attempted to establish a "Vessels and Entry Clearance ... position" at pay-grade level 11 to accommodate Center and "fulfill [its] legal obligation." The agency headquarters approved the reclassification, but a human resources specialist decided that Center’s inexperience limited him to a pay-grade level of 9. The agency instead offered Center a position as a Vessel Specialist at pay-grade level 9 with the potential for an early promotion to pay-grade level 11. The written offer stated that, unless Center accepted the offer by July 15, 2011, he would "remain in [his] current position of ... Technician ..., which [would] become [his] accepted position of record...." Center accepted the new position.

In November 2011, the agency promoted Center to pay-grade level 11, step 6. Center questioned why he did not receive a higher pay step, and the agency explained that regulations required it to set his pay grade based on his qualifications and the rate achieved before the disabling event, which, for Center, was pay-grade level 11, step 6. In March 2012, Center filed a complaint of employment discrimination with the Equal Employment Opportunity Counselor, but the agency dismissed it after Center filed this civil action in the district court.

Center’s complaint in the district court alleged retaliation and disability discrimination in violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq. He alleged that he "suffered [the] adverse employment actions of [being] deni[ed] ... his earned rightful compensation grade level ... and [being] hired for a lower position" in retaliation for "engag[ing] in the statutorily protected activities of accepting the work offered him ..., inquiring as to [the] availability of suitable work at his compensation grade level[,] and filing an inquiry." And he alleged that he was "discriminated against because of his disabilities" when he was "hired back ... at a much lower compensation grade" and "not given back-compensation."

The agency moved to dismiss Center’s complaint and, in the alternative, for summary judgment, and the district court granted the motion. The district court ruled that it lacked subject matter jurisdiction over Center’s claims of retaliation and disability discrimination because his claims "appear[ed] to be seeking judicial review of the Secretary of Labor’s ... compensation decision" under the Compensation Act, 5 U.S.C. § 8101 et seq. , a statutory scheme that establishes substantial agency discretion over the treatment of injured workers. In the alternative, the district court granted summary judgment in favor of the agency and against Center’s claims of retaliation and disability discrimination. The district court ruled that Center failed to make a prima facie showing of retaliation. And the district court ruled that Center "failed to establish that anyone at [the agency] intentionally discriminated against him because of his disability." It also explained that even if Center could make a prima facie showing of discrimination, "he ... failed to establish that [the agency’s] explanation for placing him in a lower paying position was a pretext for intentional discrimination."

II. STANDARD OF REVIEW

We review a dismissal for lack of subject matter jurisdiction de novo . Barbour v. Haley , 471 F.3d 1222, 1225 (11th Cir. 2006). We also review de novo a grant of summary judgment. Burton v. Tampa Hous. Auth. , 271 F.3d 1274, 1276 (11th Cir. 2001). A district court may grant summary judgment when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

III. DISCUSSION

We divide our discussion in two parts. First, we explain that Center waived his claim of retaliation. Second, we explain that although the district court erred when it ruled that it lacked jurisdiction, it correctly granted summary judgment against Center’s claim of disability discrimination because Center failed to establish that the explanation offered by the agency is a pretext for discrimination.

A. Center Waived His Claim of Retaliation.

Center waived his claim of retaliation when he "fail[ed] to make arguments and cite authorities in support of" his position. Hamilton v. Southland Christian Sch., Inc. , 680 F.3d 1316, 1319 (11th Cir. 2012). Although he curtly asserts that this claim "should be allowed to continue," he fails to explain why. And we have repeatedly explained that "argument[s] ... briefed in the most cursory fashion ... [are] waived." In re Globe Mfg. Corp. , 567 F.3d 1291, 1297 n.3 (11th Cir. 2009) ; see also Greenbriar, Ltd. v. City of Alabaster , 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) ("Although [the cross-appellant] refers to the district court’s dismissal of its amendment in its Statement of the Case in its initial brief, it elaborates no arguments on the merits as to this issue in its initial or reply brief. Accordingly the issue is deemed waived."); Tallahassee Mem’l Reg’l Med. Ctr. v. Bowen , 815 F.2d 1435, 1446 n.16 (11th Cir. 1987) ("In this case, the single footnote in the [appellant’s] initial brief did not sufficiently preserve the ... issue.").

B. The District Court Correctly Granted Summary Judgment Against Center’s Claim of Disability Discrimination.

The agency contends that we may affirm on alternative grounds. First, it argues that the district court correctly dismissed Center’s claims under the Rehabilitation Act for lack of jurisdiction because the Compensation Act bars judicial review of remedies for work-related injuries. Second, it contends, in the alternative, that the district court correctly granted summary judgment against Center’s claim of disability discrimination. We disagree with the first argument, but we agree with the second.

1. We Have Jurisdiction Over Center’s Claim of Disability Discrimination Under the Rehabilitation Act.

Center’s claim requires us to determine whether two statutory schemes that concern the treatment of disabled federal employees conflict and, if so, what the effect of the conflict is. The first is the Compensation Act, which is a "comprehensive workers’ compensation law for federal employees that is designed to provide quick and uniform coverage for work-related injuries" and provides the agency with extensive discretion over these remedies. Woodruff v. U.S. Dep’t of Labor, Office of Workers Comp. Program , 954 F.2d 634, 639 (11th Cir. 1992). The second is the Rehabilitation Act, which broadly prohibits federal agencies from discriminating on the basis of disability and...

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