Humphrey v. Napolitano

• Decision Date: 05 March 2012
• Docket Number: Case No. 11–20651–CIV.
• Parties: Kenneth D. HUMPHREY, Plaintiff, v. Janet NAPOLITANO, Secretary, United States Department of Homeland Security, Defendant.
• Court: U.S. District Court — Southern District of Florida

847 F.Supp.2d 1349

Kenneth D. HUMPHREY, Plaintiff,

v.Janet NAPOLITANO, Secretary, United States Department of Homeland Security, Defendant.

Case No. 11–20651–CIV.

United States District Court, S.D. Florida.

March 5, 2012.

Kenneth D. Humphrey, Miami, FL, pro se.

Christopher Macchiaroli, U.S. Attorney's Office, Miami, FL, for Defendants.

ORDER

JOHN J. O'SULLIVAN, United States Magistrate Judge.

THIS MATTER is before the Court on the Defendant's Motion for Summary Judgment and Incorporated Statement of Material Facts and Memorandum of Law (DE # 37, 11/29/11). Having reviewed the motion, the response, the reply and evidence in the record as well as applicable law, it is

ORDERED AND ADJUDGED that the Defendant's Motion for Summary Judgment and Incorporated Statement of Material Facts and Memorandum of Law (DE# 37, 11 /29/11) is GRANTED for the reasons set forth below.

BACKGROUND

The pro se plaintiff, Kenneth D. Humphrey, was employed as a U.S. Customs and Border Protection Officer from January 2000 to May 2010. On December 8, 2008, the plaintiff logged an EEO claim against Department of Homeland Security's (“DHS”) actors initiating adverse actions against him regarding a November 12, 2008 activity. On February 22, 2009, he filed a formal EEOC Complaint relating to conduct that took place in November 2008. On March 18, 2009, his employer notified him that the following claims were accepted for investigation:

Whether Customs and Border Protection discriminated against Complainant, CBP Officer, GS–1895–11, assigned to the Miami International Airport, Miami, FL based on his race/national origin/color (African American/Black) and age (Date of Birth: April 26, 1945) when: (1) on or around November 12, 2008, he was removed from field duties with the Anti–Terrorism Contraband Enforcement Team (AT–CET), assigned desk duties and not permitted to work overtime in the field; (2) on or around January 21, 2009, he was notified that his bid rotation was denied; and (3) on February 1, 2009, he was assigned to Passenger Control.

Def.'s Motion to Dismiss, Ex. 2, CBP's Mar. 18, 2009 Ltr. (DE# 14–1 and 14–2, 4/27/11). On June 9, 2009, the plaintiff was permitted to request an official EEOC hearing. On November 16, 2009, an administrative judge from the Miami District of the EEOC issued a decision without a hearing that determined that the plaintiff failed to prove his claims. DHS issued a Final Order on December 5, 2010, that adopted the administrative judge's findings.

On February 25, 2011, the plaintiff filed the present action against Janet Napolitano, Secretary, U.S. Customs and Border Protection (“CBP”), Department of Homeland Security, and Jaqueline A. Berrien, Chair, U.S. Equal Employment Opportunity Commission (“EEOC”). (DE# 1, 2/25/11). On September 28, 2011, the Court granted in part the defendant's motion to dismiss. All claims against the EEOC were dismissed. (DE# 29) On October 13, 2011, the plaintiff filed his Amended Civil Complaint and Demand for Jury Trial. (DE# 32) Only three counts in the Amended Complaint remain: Count I (race discrimination), Count II (age discrimination) and Count III (conspiracy to obstruct justice). Count I alleges discrimination in violation of the Civil Rights Act of 1964, Equal Employment Opportunities and the Civil Rights Act of 1991. Count II alleges age discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”) and the Vietnam Era Veterans Readjustment Assistance Act of 1974 (“VEVRAA”). Count III alleges a conspiracy to interfere with civil rights in violation of the Conspiracy to Obstruct Justice Act. The plaintiff seeks compensatory and punitive damages as well as injunctive relief.

In the Defendant's Motion for Summary Judgment and Incorporated Statement of Material Facts and Memorandum of Law (DE# 37, 11/29/11), the defendant seeks judgment as a matter of law on Counts I, II and III.

DISCUSSION

I. Standard of Review on Motion for Summary Judgment

The court, in reviewing a motion for summary judgment, is guided by the standard set forth in Federal Rule of Civil Procedure 56(c), which states, in relevant part, as follows:

The judgment sought shall be rendered forthwith if 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 and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c). The moving party bears the burden of meeting this exacting standard. Celotex Corp. v. Catrett, 477 U.S. 317, 322–323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). That is, “[t]he moving party bears ‘the initial responsibility of informing the ... court of the basis for its motion,’ and identifying those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’ ” U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir.1991) (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548). In assessing whether the moving party has satisfied this burden, the court is required to view the evidence and all factual inferences arising therefrom in the light most favorable to the non-moving party. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir.1994); Sheckells v. AGV–USA Corp., 987 F.2d 1532, 1534 (11th Cir.1993); Browning v. Peyton, 918 F.2d 1516, 1520 (11th Cir.1990); Clemons v. Dougherty County, Ga., 684 F.2d 1365, 1368 (11th Cir.1982); Augusta Iron & Steel Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856 (11th Cir.1988)(per curiam). Summary judgment is appropriate when there is no dispute as to any material fact and only questions of law remain. Reich v. John Alden Life Ins. Co., 126 F.3d 1 (1st Cir.1997). If the record presents factual issues, the court must deny the motion and proceed to trial. Adickes, 398 U.S. at 157, 90 S.Ct. 1598;Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Despite these presumptions in favor of the non-moving party, the court must be mindful of the purpose of Rule 56 which is to eliminate the needless delay and expense to the parties and to the court occasioned by an unnecessary trial. Celotex, 477 U.S. at 322–323, 106 S.Ct. 2548. Consequently, the non-moving party cannot merely rest upon his bare assertions, conclusory allegations, surmises or conjectures. Id. As the Supreme Court noted in Celotex,

[T]he plain language of Rule 56(c) mandates the entry of summary judgment ... against the party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which the party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

Id. at 322–323, 106 S.Ct. 2548. Thus, the mere existence of a scintilla of evidence in support of the non-moving party's position is insufficient. There must be evidence on which the jury could reasonably find for the non-movant. Anderson, 477 U.S. at 251, 106 S.Ct. 2505;Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The plaintiff in the instant case is not represented by counsel. The Court should construe pro se pleadings liberally and hold them to a less stringent standard than pleadings drafted by attorneys. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.2003) (quoting Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.1998)). However, “a pro se litigant does not escape the essential burden under summary judgment standards of establishing that there is a genuine issue as to a fact material to his case in order to avert summary judgment.” Brown v. Crawford, 906 F.2d 667, 670 (11th Cir.1990) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348) (other citations omitted).

II. AnalysisA. Race and Age Discrimination (Counts I and II, Respectively)

Title VII prohibits an employer from discharging or otherwise discriminating against a person based on the person's race, color, religion, sex, or national origin, or retaliating against an employee for reporting discrimination. See42 U.S.C. § 2000e, et seq. The Age Discrimination in Employment Act (“ADEA”) makes it illegal to discriminate on the basis of age against any employee who is at least 40 years old. See29 U.S.C. § 623(a), 631(1). The Supreme Court ruled that a plaintiff claiming age discrimination under the ADEA “must prove that age was the ‘but-for’ cause of the employer's adverse decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).

To “establish a prima facie case of disparate treatment, Plaintiff must demonstrate that (1) he is a member of a protected class; (2) he was subjected to an adverse employment action; and (3) his employer treated similarly situated employees outside of [his] protected class more favorably that [he] was treated.” Smalley v. Holder, No. 09–21253–CV, 2011 WL 649355 *6 (S.D.Fla. Feb. 22, 2011) (citing Burke–Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir.2006)).

1. No Adverse Employment Action

Under Supreme Court authority, “tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Webb–Edwards v. Orange County Sheriff's Office, 525 F.3d 1013, 1031 (11th Cir.2008); see Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir.2001) (“[A]n employee...