Joseph v. Napolitano

• Decision Date: 15 March 2012
• Docket Number: Case No. 11–21468–CIV
• Citation: 839 F.Supp.2d 1324
• Parties: Michael JOSEPH, Plaintiff, v. Janet NAPOLITANO, Secretary, U.S. Department of Homeland Security, Defendant.
• Court: U.S. District Court — Southern District of Florida

839 F.Supp.2d 1324

Michael JOSEPH, Plaintiff,

v.Janet NAPOLITANO, Secretary, U.S. Department of Homeland Security, Defendant.

Case No. 11–21468–CIV

United States District Court,

S.D. Florida,

Miami Division.

March 15, 2012.

Mark Jay Berkowitz, Fort Lauderdale, FL, for Plaintiff.

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

ORDER ON MOTION FOR SUMMARY JUDGMENT

JONATHAN GOODMAN, United States Magistrate Judge.

Based on the parties' consent, this case has been referred to the Undersigned by U.S. District Judge Donald L. Graham for all pre-trial proceedings. (D.E.17–1, 18). On January 20, 2012, the Defendant, Janet Napolitano, Secretary of the U.S. Department of Homeland Security, moved for summary judgment. (DE 37). On February 7, 2012, the Plaintiff responded to the motion. (DE 42). On February 17, 2012, the Defendant filed a reply brief in further support of the motion. (DE 52).

The Undersigned has carefully reviewed the motion, the associated briefing and the pertinent portions of the record. For the reasons stated below, the Court grants the Defendant's motion for summary judgment.

I. Local Rule 56.1

Under Local Rule 56.1, a party moving for summary judgment must submit a statement of material facts in separately numbered paragraphs supported by specific citations to the record. The opponent to the motion must then submit his own statement, which “shall correspond with the order and with the paragraph numbering scheme used by the movant.” S.D. Fla. Local Rule 56.1(a). “All material facts set forth in the movant's statement filed and supported as required above will be deemed admitted unless controverted by the opposing party's statement, provided that the Court finds that the movant's statement is supported by evidence in the record.” S.D. Fla. Local Rule 56.1(b) (emphasis added).

Plaintiff, who is pursuing myriad employment discrimination and retaliation claims, did not comply with the local rule and submit a “single, concise statement of material facts as to which it is contended that there exists a genuine issue to be tried.” He also did not submit an opposing statement of material facts that “correspond[s] with the order and paragraph numbering scheme used by the movant.”

Rule 56.1's orderly procedure “ensure[s] that statements of material facts filed by movants and opponents shall correspond with each other in numerical order so as to make review or summary judgment motions less burdensome to the Court.” 2008 Comments to Local Rule 56.1. But instead of submitting a statement of facts to rebut the facts which Defendant represented to be undisputed in her summary judgment motion on a paragraph-by-paragraph basis, Plaintiff instead proffered his own independent version of facts that were not organized in separately numbered paragraphs at all.

As the official comments to Local Rule 56.1 explain, the rule's clear procedural directive is intended to reduce confusion and prevent the Court from having to scour the record and perform time-intensive fact searching. The rule thus reflects a clear policy that it is not the court's obligation to scour the record for a factual dispute that precludes summary judgment. Rather, it is the nonmovant's obligation to specifically bring the factual dispute to the court's attention by rebutting the movant's factual statements on a paragraph by paragraph basis and with specific citations to the record.

Because Plaintiff did not contradict Defendant's statement of undisputed material facts and because Defendant's statements are supported by evidence in the record, the facts alleged in the defendant's statement are deemed admitted.See Centennial Bank v. Noah Group, LLC, 755 F.Supp.2d 1256, 1258 n. 2 (S.D.Fla.2010); Gossard v. JP Morgan Chase & Co., 612 F.Supp.2d 1242, 1245–46 (S.D.Fla.2009) (deeming facts in the defendant's summary judgment motion admitted even though the plaintiff's procedurally deficient response—i.e., submitting her own version of the relevant facts—provides her idea of the treatment she received while employed by defendant, and noting Plaintiff's failure to “frame the factual issues that are in dispute and allow the Court to resolve this matter more easily”).¹

The Court in its discretion considered the arguments made by the plaintiff and the record citations included in his opposition to the motion for summary judgment. Therefore, as explained below, summary judgment is appropriate based on an independent review of the underlying record.

But given that the undisputed facts proffered by the defendant and supported by the record contain legitimate non-discriminatory and non-retaliatory explanations for the defendant's actions, the defendant is also entitled to summary judgment by virtue of Rule 56.1. Thus, the application of Rule 56.1 constitutes an alternate basis to support this ruling granting the defendant's summary judgment motion.²

II. Background

From November 2002 through August 2010, the United States Citizenship and Immigration Service (USCIS) employed Plaintiff Michael Joseph as a student-employee under the Student Career Experience Program (SCEP), a program designed for students to work at federal agencies. The program is only open to students actively pursuing a university degree and students must execute an agreement signed by their respective university in order to participate in the program.Students must also keep the agency appraised of their academic progress on a regular basis and, upon request, must provide verification of their academic status and course schedule. After a student completes his educational requirements, the agency has discretion to noncompetitively appoint to the student to a career position within 120 days.

Joseph executed a SCEP agreement in 2002 based on his pursuit of an undergraduate degree at Florida International University (FIU). Joseph completed his undergraduate work in 2004 and received a new appointment based on his participation in an MBA program, also at FIU.³ Through discovery, the Defendant has learned that Joseph actually completed his MBA course requirements in 2006, that he was not enrolled at FIU in any capacity between May 2007 and August 2009 and, in an apparent attempt to prolong his eligibility under the SCEP program, was enrolled for only one credit hour during the Fall 2009 and Summer 2010 semesters. In fact, Joseph was removed from FIU's MBA program and readmitted for the Fall 2009 Term. Joseph told FIU that he was required by the Department of Homeland Security to keep his MBA degree open until he completed law school. Joseph ultimately completed 64 credits even though he needed only 46 to complete his degree.

Joseph did not apply for graduation from the MBA program until September 2009, shortly after being readmitted to the program. Instead, Joseph began studying law at St. Thomas University. Under the terms of the SCEP program, Joseph was required to update the agency and execute a new agreement upon changes in his enrollment status. However, a new SCEP agreement was never executed with St. Thomas University. Joseph's absence from FIU during the period from May 2007 through August 2009 rendered him ineligible for continued participation in the SCEP program (because he was not a student at FIU and never executed a new SCEP agreement with St. Thomas). Joseph was also ineligible for the program for another reason: he never executed a new SCEP agreement upon starting his MBA program.

Nevertheless, despite these issues, which developed in the final years of Joseph's SCEP work, his first seven years with USCIS passed without incident. Then, in the summer of 2009, Joseph was temporarily detailed to the Office of Chief Counsel (OCC) so that he could get exposure to a legal setting. Joseph requested that he be permanently transferred to the OCC when his detail ended, but the USCIS required that he return to the Miami Field Office and complete his SCEP work there.

After Joseph indicated that he would be in school between 10:00 a.m. and 3:00 p.m., the agency advised him that he could work between 7:00 a.m. and 9:00 a.m. Joseph then claimed that those times conflicted with his class schedule but did not provide his superiors with a copy of his course list from the registrar as requested. Indeed, Joseph has not provided any evidence that he had a class conflict during those morning hours and during his deposition he gave four inconsistent answers as to why he could not work between 7:00 a.m. and 9:00 a.m. Joseph eventually provided the agency with an unofficial course schedule—not an official schedule from the registrar—which showed that he had no classes on any day of the week before 12:15 p.m. and no classes at all on Tuesdays or Fridays. In other words, the schedule established that the scheduling conflict that Joseph described did not exist. When Joseph failed to show up at the time requested by the agency, he was temporarily placed on “absent without leave” (AWOL) status.

On September 28, 2009 Joseph filed a complaint with the agency, alleging that four women discriminated against him on the basis of sex, race and national origin by declining to approve his transfer and placing him on AWOL status. It appears, however, that Joseph continued working in the OCC in a clerical position until his ultimate termination in August 2010.

Meanwhile, Kriston Hardley, a USCIS Human Resource Specialist in Washington, D.C. who has never met Joseph, began auditing SCEP participants in the Spring of 2009. In April 2010, Hardley sent an email to all students participating in the SCEP, advising them of their annual verification requirements. When Joseph failed to respond to Hardley's request for information, and refused to comply with requests to submit documentation verifying his enrollment at FIU, Hardley reviewed Joseph's file and found numerous discrepancies that rendered him ineligible for the SCEP program. For example, Joseph's resume showed that he completed his MBA...