Jackson v. Widnall

• Decision Date: 14 November 1996
• Docket Number: No. 95-10353,95-10353
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 608, 71 Empl. Prac. Dec. P 44,981 Ray N. JACKSON, Plaintiff-Appellant Cross-Appellee, v. Sheila E. WIDNALL, Secretary of the United States Department of the Air Force, Defendant-Appellee Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 710

99 F.3d 710

72 Fair Empl.Prac.Cas. (BNA) 608,

71 Empl. Prac. Dec. P 44,981

Ray N. JACKSON, Plaintiff-Appellant Cross-Appellee, v. Sheila E. WIDNALL, Secretary of the United States Department of the Air Force, Defendant-Appellee Cross-Appellant.

No. 95-10353.

United States Court of Appeals Fifth Circuit.

Nov. 14, 1996.

Ray N. Jackson, Fort Worth, TX, pro se.

Marleigh D. Dover, Stephanie Robin Marcus, United States Department of Justice, Civil Division, Appellate Staff, Washington, DC, William J. Andersen, Assistant U.S. Attorney, Office of the United States Attorney, Fort Worth, TX, H. Lee Einsel, Jr., U.S. Air Force, Arlington, VA, for Sheila E. Widnall, Secretary of Department of the Air Force.

Appeals from the United States District Court for the Northern District of Texas.

Before SMITH and PARKER, Circuit Judges, and JUSTICE, District Judge. ^*

JERRY E. SMITH, Circuit Judge:

Ray Jackson appeals a summary judgment dismissing his various claims of employment discrimination arising under title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994), and the Constitution. The Secretary of the United States Department of the Air Force ("Air Force"), cross-appeals a summary judgment ordering the Air Force to pay interest on back pay awarded to Jackson pursuant to a settlement agreement. We affirm the summary judgment dismissing Jackson's claims but, concluding that Jackson abandoned his claim for back pay interest by voluntarily entering into a settlement agreement, we reverse the award of back pay interest and render judgment in favor of the Air Force.

I.

Jackson commenced his employment with the Air Force in April 1984, accepting a civilian position as an Electronic Measurement Equipment Mechanic at Sheppard Air Force Base. Soon thereafter, he filed an informal complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging that the Air Force had discriminated against him on the basis of race by failing to hire him when he first applied for the position in 1982. This original EEOC complaint was resolved in September 1984 by an informal agreement.

In March 1985, the Air Force discharged Jackson, who filed administrative charges alleging that his termination constituted both racial discrimination in employment and retaliatory discharge. This second complaint was referred to the Air Force Equal Employment Opportunity Complaint Investigator (the "Investigator").

While his charges of racial discrimination and retaliation were pending, Jackson filed a third complaint in December 1986, alleging that the Air Force had failed to comply with the terms of the 1984 settlement and seeking to reinstate his original charge that the Air Force had engaged in racial discrimination by failing to hire him in 1982. The Air Force rejected this renewed claim in January 1987, finding that it had fully complied with the terms of the 1984 settlement. Jackson appealed this adverse decision to the Equal Employment Opportunity Commission Office of Review and Appeals (EEOC/ORA), which, by action dated July 14, 1987, refused to reinstate the claim. Jackson filed suit in federal court on August 17, 1987, seeking review of this claim. The district court dismissed, however, because Jackson had failed to file suit within thirty days of the final administrative order as required by title VII.

Meanwhile, the investigation of Jackson's 1986 EEOC complaint, alleging discriminatory termination and retaliatory discharge, continued apace. In March 1988, the Investigator recommended a finding that the Air Force had discharged Jackson in retaliation for his original EEOC complaint and in violation of the prohibition against racial discrimination in employment. Pursuant to this recommendation, the Air Force offered to reinstate Jackson as an Electronic Mechanic, including, inter alia, full compensation of back pay and benefits. Jackson accepted this settlement by letter on July 6, 1989, and the Air Force issued a Notice of Final Air Force Decision three days later.

Pursuant to the settlement agreement, the Air Force awarded Jackson $48,629.38 in back pay on November 30, 1989. Nevertheless, Jackson filed a new appeal with the EEOC/ORA on December 6, 1989, alleging that his new position was not the substantial equivalent of his former position, that he was entitled to receive interest on his award of back pay, and that the Air Force had failed to hire him prior to 1984 in violation of the prohibition against racial discrimination--the same claim that he had first raised in 1984, that the EEOC had refused to reinstate in 1987, and that the district court had dismissed as untimely in 1988.

The EEOC/ORA determined that Jackson was not entitled to recover back pay interest, and it dismissed the claim of discriminatory hiring practices because it was not raised in the pending EEOC complaint (which derived exclusively from Jackson's second complaint regarding the circumstances surrounding his termination--not his employment). Finally, although the EEOC/ORA vacated the decision of July 12, 1989, and remanded to the Air Force for a supplemental investigation into the position Jackson would have occupied had he not been discharged, the Air Force reaffirmed its finding that Jackson had been reinstated to the position he would have held had he not been terminated. The EEOC thereupon closed its file.

Once again, Jackson filed suit in federal court, seeking to recover interest on the back pay awarded to him pursuant to the 1989 settlement agreement and renewing his original claim that the Air Force had failed to hire him, in violation of the prohibition against racial discrimination. After the conclusion of the Air Force's supplemental investigation, and the subsequent decision of the EEOC to terminate its compliance file in this case, Jackson amended his complaint to add a cause of action for failure to reinstate him to a substantially equivalent position following the 1989 settlement agreement. Finally, Jackson alleged that the Air Force had violated his constitutional rights. ¹ The district court granted summary judgment for the Air Force on all claims except the issue of Jackson's entitlement to recover back pay interest, concluding that the Back Pay Act, 5 U.S.C. § 5596(b)(2), constitutes an express waiver of sovereign immunity authorizing the recovery of back pay interest.

II.

A.

We review a summary judgment de novo. Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.1992). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). The party seeking summary judgment bears the burden of showing that there is an absence of evidence to support the non-movant's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). After a proper motion for summary judgment is made, the non-movant must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

We view facts in the light most favorable to the non-movant and draw all reasonable inferences in its favor. Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir.), cert. denied, 513 U.S. 1045, 115 S.Ct. 639, 130 L.Ed.2d 545 (1994). If the non-movant sets forth specific facts in support of allegations essential to his claim, a genuine issue of material fact is presented, and summary judgment is inappropriate. Id.

B.

First, Jackson argues that the district court erred by permitting the Air Force to file a second summary judgment motion that merely renewed its original motion for summary judgment. We need not consider whether the second motion merely restated the first, however, as "a trial court may reconsider a previously denied motion for summary judgment even in the absence of new evidentiary material." Conkling v. Turner, 18 F.3d 1285, 1296 (5th Cir.1994); accord Enlow v. Tishomingo County, 962 F.2d 501, 507 n. 16 (5th Cir.1992).

Second, Jackson claims that the district court failed to afford him adequate notice of the summary judgment proceedings under FED.R.CIV.P. 56(c), which requires that a motion for judgment as a matter of law "shall be served at least 10 days before the time fixed for the hearing." FED.R.CIV.P. 56(c). Because the district court granted judgment as a matter of law without affording the parties a hearing in open court or giving advance notice that the motion would be considered on a date certain, Jackson contends that this procedure violated rule 56(c).

Rule 56(c) merely requires the court to give the non-movant an adequate opportunity to respond prior to a ruling. We have previously rejected Jackson's very argument, noting that rule 56(c) requires neither an oral hearing nor advance notice of a "date certain" on which a motion for summary judgment is to be decided; instead, "if there is not a hearing, the adverse party must have at least ten days to respond to the motion for summary judgment." Daniels v. Morris, 746 F.2d 271, 274-75 (5th Cir.1984). ² Jackson had more than ten days to respond to the motion for summary judgment, and did so. ³

Finally, Jackson argues that the district court erroneously applied the standards governing summary judgment, claiming that the court improperly faulted him for failing to come forth with competing evidence to survive the motion. The dispositive question in reviewing a motion for summary judgment, however, is not the nature of the evidence adduced by the parties, but merely whether the evidence before the district court--whatever its nature--shows the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53. This standard may be satisfied by...