Lipovsky v. Vilsack, 4:14-CV-00047-DMB-JMV
| Decision Date | 14 September 2016 |
| Docket Number | NO. 4:14-CV-00047-DMB-JMV,4:14-CV-00047-DMB-JMV |
| Parties | JOSEPH LIPOVSKY PLAINTIFF v. THOMAS VILSACK, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE DEFENDANT |
| Court | U.S. District Court — Northern District of Mississippi |
This employment discrimination action is brought by Joseph Lipovsky against his current employer, the United States Department of Agriculture ("Department" or "USDA"). Doc. #119. Lipovsky alleges that the Department violated Title VII of the Civil Rights Act by engaging in unlawful harassment and retaliation on the basis of his prior statutorily protected activities of filing and settling a Title VII action, and filing and pursuing administrative complaints. Before the Court is the Department's motion to dismiss or, in the alternative, for summary judgment. Doc. #121. Because the Court finds that it lacks jurisdiction over Lipovsky's claims based on failure to promote, failure to audit his position, and failure to convene a five-person review committee, the motion will be denied in part and such claims transferred to the United States Court of Federal Claims. As for Lipovsky's remaining claims of retaliation, the motion will be granted due to Lipovsky's failure to demonstrate the necessary elements to prove retaliation.
The Department seeks dismissal pursuant to Rule 12(b)(1), and dismissal pursuant to Rule 12(b)(6) or, alternatively, summary judgment pursuant to Rule 56. Doc. #121.
When "a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Smith v. Reg'l Transit Auth., 756 F.3d 340, 347 (5th Cir. 2014). "In evaluating subject matter jurisdiction on a motion to dismiss a court may consider (1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Tewari De-Ox Sys., Inc. v. Mountain States/Rosen Liab. Corp., 757 F.3d 481, 483 (5th Cir. 2014) (internal quotation marks omitted).
In the event the Court determines it has subject matter jurisdiction and proceeds to consider the 12(b)(6) motion, it must decide whether to treat it as a motion for summary judgment. McNair v. Mississippi, 43 F.Supp.3d 679, 682 (N.D. Miss. 2014) (citing Fed. R. Civ. P. 12(d)). As a general matter, where a defendant files a 12(b)(6) motion and "submit[s] matters outside the pleadings without such evidence being excluded by the Court [within ten days]," the proper course is to treat the 12(b)(6) motion as a motion for summary judgment. Id. (citing Washington v. Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir. 1990)).
Here, the Department submitted matters outside the pleadings and more than ten days have since passed without such evidence being excluded by this Court. Under these circumstances, the Court will treat the Department's 12(b)(6) motion as a motion for summary judgment. McNair, 43 F.Supp.3d at 682.
Under Rule 56 of the Federal Rules of Civil Procedure, "[s]ummary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law." Norwegian Bulk Transp. A/S v. Int'l Marine Terminals P'ship, 520 F.3d 409, 411 (5th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 22-23 (1986)). To award summary judgment, "[a] court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Id. at 411-12 (internal quotation marks and citation omitted). To this end, "[t]he moving party bears the burden of establishing that there are no genuine issues of material fact." Id. at 412.
"If ... the nonmoving party bears the burden of proof at trial, the moving party may demonstrate that it is entitled to summary judgment by submitting affidavits or other similar evidence negating the nonmoving party's claim, or by pointing out to the district court the absence of evidence necessary to support the nonmoving party's case." Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998) (citation omitted). If the moving party makes the necessary demonstration, "the burden shifts to the nonmoving party to show that summary judgment is inappropriate." Id. In making this showing, "the nonmoving party must go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Cotroneo v. Shaw Env't & Infrastructure, Inc., 639 F.3d 186, 191-92 (5th Cir. 2011) (citation and internal punctuation omitted). When considering a motion for summary judgment, the Court "resolve[s] factual controversies in favor of the nonmoving party." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
On September 10, 1990, Lipovsky began working with the Department. Doc. #126-3 at ¶ 1. During the time period relevant to this suit, Lipovsky was employed with the Office of Technology Transfer ("OTT") in the Department's Agricultural Research Service ("ARS"). See generally Doc. #121-1 at 8; Doc. #121-9. The stated mission of the ARS is to "[c]onduct research to develop [and] transfer solutions to agricultural problems of high national priority and provide information access and dissemination."1 The OTT operates the ARS Technology Transfer Program, which facilitates the transfer element of the ARS' mission. The OTT, in turn, is separated into area offices. The area offices serve as the first point of contact for scientists and companies, and are responsible for the negotiation and implementation of research and transfer agreements.
The position of Technology Transfer Coordinator ("TTC"), the job relevant to this action, has three primary duties: (1) negotiating Cooperative Research and Development Agreements ("CRADA"); (2) negotiating confidentiality agreements; and (3) negotiating Material Transfer Agreements ("MTA").2 Doc. #121-19 at 12.
As of August 2000, since his work with the Department began, Lipovsky had performed three jobs for the Department: "Acting TTC, GS-15 position; a Patent Advisor, GS-14 position;and Licensing Specialist, a GS-11 to GS-14 position." Doc. #126-3 at ¶ 22. On August 17, 2000, Lipovsky suffered a stroke. Id. at ¶ 3. The following year, he underwent a heart transplant. Id. In 2004, Lipovsky was demoted to a GS-11 Patent Advisor/Foreign Document Prosecution Specialist. Id.
In 2005, Lipovsky filed a civil suit in the United States District Court for the Central District of Illinois3 alleging that the Department engaged in unlawful employment discrimination when it downgraded him from a GS-14 Patent Advisor position to a GS-11 Patent Advisor/Foreign Document Prosecution Specialist. See Lipovsky v. Johanns, 1:05-cv-1304 (C.D. Ill. Oct. 11, 2005) ("Lipovsky I"), at Doc. #1, at ¶ 6. Although Lipovsky's complaint purported to arise from the Americans with Disabilities Act and Title VII, it asserted only a single count - a claim for discrimination under the ADA that "plaintiff was demoted in violation of the ADA due to his alleged inability to perform the excessive workload given him." Id. at Doc. #1, at ¶¶ 4, 18.
On March 17, 2006, Lipovsky filed an amended complaint "for discriminatory conduct in violation of the Rehabilitation Act of 1973 and 42 U.S.C. § 2000(e) ("Title VII")." Id. at Doc. #18, at ¶ 1. Lipovsky's amended complaint alleged that "plaintiff was demoted in violation of the [Rehabilitation] Act due to his alleged inability to perform the excessive workload given him." Id. at Doc. #18, at ¶ 18.
On June 26, 2008, the Department moved for summary judgment on Lipovsky's Rehabilitation Act claim. Id. at Doc. #40. Approximately six weeks later, United States Magistrate Judge John A. Gorman denied the summary judgment motion. Id. at Doc. #49.
On November 14, 2008, the Department and Lipovsky executed a settlement agreement under which Lipovsky agreed to "waive all claims whether known or unknown against the USDA, its agents, servants or employees that relate to any and all allegations of discrimination which occurred prior to the entry of the Order dismissing this case." Id. at Doc. #70, at ¶ 3. In return, the Department agreed to pay Lipovsky $350,000 and to "provide the plaintiff with an Associate Technology Transfer Coordinator ("ATTC") position located in New Orleans, Louisiana." Id. at Doc. #70, at ¶¶ 4-5.
Under the terms of the settlement, the parties agreed that the ATTC position:
shall be classified as a GS-14, Step 10 level. Further, the plaintiff may seek an audit of this position in approximately one year or when events warrant to determine if the duties engaged in by the plaintiff allow for a job re-classification. This audit shall be conducted in the usual manner. The parties shall agree between themselves on when the plaintiff is to commence acting in this position. Unless otherwise approved in writing by the parties, in no case shall the time for plaintiff to start at this position be later than 90 days from the entry of the Order dismissing this case. The plaintiff shall be physically located in New Orleans and the costs of relocation to New Orleans shall be borne by the plaintiff.
Id. at Doc. #70, at ¶ 5. Although not expressly stated in the settlement agreement, Lipovsky claims that, in October 2008, the Department, acting through Richard...
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