Grose v. Napolitano
| Decision Date | 16 July 2012 |
| Docket Number | CAUSE NO. 1:11CV227-LG-RHW |
| Parties | ANTHONY T. GROSE, SR. PLAINTIFF v. JANET NAPOLITANO, Secretary, Department of Homeland Security, Federal Emergency Management Agency; and JOHN STEVIAN, Human Resources Specialist, Department of Homeland Security, FEMA Human Capital Recruitment DEFENDANTS |
| Court | U.S. District Court — Southern District of Mississippi |
BEFORE THE COURT are the Motion to Dismiss for Lack of Subject Matter Jurisdiction, or in the Alternative, Motion for Summary Judgment [46] filed by Defendants Janet Napolitano, Secretary of Department of Homeland Security, and John Stevian, Human Resources Specialist for FEMA, in their official capacities,1 and the Motion for Summary Judgment [48] filed by Anthony T. Grose. Grose claims that Napolitano and Stevian did not select him to fill a job vacancy with FEMA is 2007, due to his race, his gender, and his military-connected disability. Napolitano and Stevian seek dismissal of this lawsuit, arguing that Grose's lawsuit is untimely, it was filed in the wrong court, and FEMA had a legitimate, nondiscriminatory reason for refusing to hire Grose. Grose has filed across-motion for summary judgment, accusing the defendants of failing to comply with his discovery requests, committing perjury, and tampering with his application. He also asserts that the defendants have admitted negligence. The parties have also filed several Motions related to a sur-reply filed by Grose without the Court's permission. Upon reviewing the submissions of the parties, the Court finds that the Defendants' Motion to Dismiss and for Summary Judgment should be granted, and Grose's Motion for Summary Judgment should be denied. The Court further finds that all other pending Motions are moot.
Grose, an African-American male, served as an active duty member of the United States Coast Guard for twenty-one years. He now works for the Coast Guard in a civilian capacity. He receives service-connected disability benefits from the Department of Veterans Affairs due to hemorrhoids and allergic rhinitis. (Defs.' Mot., Ex. C at 2, ECF No. 46-3). Grose also stated at his deposition that he is disabled due to back pain, neck pain, shoulder pain, and degenerative arthritis. (Defs.' Mot., Ex. A at 23-24, ECF NO. 46-1).
In April 2007, Defendant John Stevian issued a vacancy announcement for numerous Housing Advisor Caseworker positions with FEMA. (Defs.' Mot., Ex. B at 2, ECF No. 46-2). The positions were renewable two-year term positions. (Id.) The vacancy announcement was posted on the USAJOBS website and the FEMA website. (Id.) The USAJOBS announcement did not inform applicants that they must indicate the duty station that they preferred to work at if they wanted to beconsidered for the position. (Id. at 3). However, the FEMA announcement included this information. (Id.) Stevian claims that this discrepancy was an oversight, and the agency did not realize that applicants who only viewed the USAJOBS website were not aware of this requirement for consideration. (Id. at 6). Applicants who did not identify their preferred duty station were automatically disqualified from consideration. (Id. at 4).
FEMA received 267 applications in response to the vacancy announcement. Grose and 124 other applicants were disqualified for failing to identify their preferred duty station(s). (Id.) Fifty-nine applicants were selected for employment. (Id. at 5). All of the selected applicants had identified their duty station preference. (Id.) Ten of the applicants selected were military veterans. (Id. at 5). At least eleven African-Americans, two of whom were male, were selected for positions. (Defs.' Mot., Ex. A at 136, 143, ECF No. 46-1). Grose admitted during his deposition that people who did not submit a proper application were rejected. (Id. at 135). He also conceded that some of those excluded on this basis may have been African-American or Caucasian females. (Id.) Stevian has submitted an affidavit providing that the only reason Grose's application was rejected was his failure to include his preferred duty station. (Defs.' Mot., Ex. B at 5, ECF No. 46-2).
On July 17, 2007, a Notice of Personnel Action on Vacant Position was sent to Grose that informed him he was not selected for the position, because he failed to meet the minimum qualification requirement of specialized experience. (Pl.'s Resp.,Ex. B at 24, ECF No. 53-4). Stevian has explained in his affidavit that this notice contained yet another error in that it provided that Grose lacked the required experience, while he was actually disqualified due to his failure to include his duty station preference. (Defs.' Mot., Ex. B at 5, ECF No. 46-2). The Notice also caused confusion, because the boxes next to the following reasons for refusing to consider an application were shaded: (a) "Your application was not considered because it was received after the Vacancy Announcement closing date May 05, 2007;" (b) "You did not include the announcement number in your application as required by the Vacancy Announcement;" and (c) "You are not a United States Citizen." (Id.) The Notice also could be construed to state that there were no positions available. (Id.)
After he received the Notice of Personnel Action, Grose filed a complaint of employment discrimination with the Department of Homeland Security. He claimed that he was denied the Housing Advisor Caseworker position due to his race, gender, age, and his military-connected disability. On December 14, 2009, Administrative Judge Perry N. Martin of the Equal Employment Opportunity Commission found that FEMA did not discriminate against Grose on the bases of his race, gender, age, or disability when he was disqualified from consideration for the position. (Def.'s Mot., Ex. C at 12, ECF No. 46-3). The Department of Homeland Security issued a Final Order on Grose's equal employment opportunity complaint on January 6, 2010, finding that Judge Martin's decision should be affirmed. (Def.'s Mot., Ex. 4 to Ex. A, ECF No. 46-1). Grose was informed that he had the right to file an appeal with the Equal Employment OpportunityCommission within thirty days or file a civil action in the appropriate United States District Court within ninety days. (Id.) Grose received the Final Order and the Notice of Appeal Rights on January 12, 2010. (Def.'s Mot., Ex. 4-A to Ex. A, ECF No. 46-1).
Grose then filed an appeal with the Merit Systems Protection Board. In a September 14, 2010 Final Order, the MSPB found that FEMA had altered or falsified the Notice of Personnel Action provided to Grose before submitting it to the MSPB. (Def.'s Mot., Ex. 1 to Ex. A, ECF No. 46-1). However, the MSPB found that it did not have jurisdiction over Grose's appeal, because his appeal concerned non-selection for a position. (Id.) MSPB notified Grose that he had the right to request review of its decision from the United States Court of Appeals for the Federal Circuit within sixty days. (Id.) Grose received the MSPB final order and notice of appeal rights on September 18, 2010. (Def.'s Mot., Ex. 1-A to Ex. A, ECF No. 46-1).
In another appeal filed with the MSPB, Grose claimed that FEMA's decision to disqualify him violated the Veterans Employment Opportunities Act. (Def.'s Mot., Ex. 2 to Ex. A, ECF No. 46-1). This appeal was denied as untimely on September 14, 2010, and Grose was notified of his right to file an appeal on September 18, 2010. (Id.; Def.'s Mot., Ex. 2-A to Ex. A, ECF No. 46-1).
In a third MSPB appeal, Grose claimed that FEMA discriminated against him on the basis of his military status in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994. (Def.'s Mot., Ex. 3 to Ex. A, ECF No. 46-1). On April 5, 2011, the MSPB held that Grose's military status wasnot a factor in FEMA's decision to reject Grose' application. (Id.) On this occasion, the MSPB rejected Grose's claim that FEMA altered the Notice of Personnel Act and appeared to accept Stevian's explanation that the Notice of Personnel Action contained errors caused by computer malfunction. (Id.) Grose was notified that he had the right to appeal on April 8, 2011. (Id.; Def.'s Mot., Ex. 3-A to Ex. A, ECF No. 46-1).
Grose filed the present lawsuit on June 3, 2011. (Compl., ECF No. 1). He asserts claims pursuant to the Fourteenth Amendment, Fifth Amendment, 42 U.S.C. § 1983, Title VII, the Americans with Disabilities Act, the Rehabilitation Act, the Veterans Employment Opportunities Act, the Uniform Services Employment and Reemployment Rights Act, the Stafford Act, and the Federal Tort Claims Act. He originally claimed that he was discriminated against on the basis of his race, age, gender, and military-connected disability. He is no longer pursuing his age discrimination claim.
Absent direct evidence of discrimination, claims of race or gender discrimination are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In order to set forth a prima facie case of employment discrimination under this framework, a plaintiff must first demonstrate (1) that he belongs to a protected class; (2) that he was qualified for the position; (3) that he suffered an adverse employment decision; and (4) "after hisrejection, the position remained open and the employer continued to seek applicants from persons with complainant's qualifications." McDonnell, 411 U.S. at 802, cited in Godfrey v. Katy Indep. Sch. Dist., 395 F. App'x 88, 91 n.15 (5th Cir. 2010); see also Scales v. Slater, 181 F.3d 703, 709 (5th Cir. 1999). If the plaintiff presents a prima facie case, the burden shifts to the defendant to provide a "legitimate, nondiscriminatory justification for its actions." Manning v....
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