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Johnson v. United States Dep't of Homeland Security

July 12, 2010

KENNETH JOHNSON, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Plaintiff filed the instant action against the United States Department of Homeland Security, the Secretary of the Department of Homeland Security, the United States Transportation Security Administration ("TSA"), and the Acting Administrator of the United States Transportation Security Administration (collectively referred to herein as "Defendants") asserting claims under Title VII of the Civil Rights Act of 1964. Presently before the Court is Defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56 seeking partial dismissal of Plaintiff's Complaint. Plaintiff failed to timely file opposition papers.

I. FACTS

The following facts are taken from Defendants' properly supported statement of material facts submitted pursuant to N.D.N.Y.L.R. 7.1(a)(3). Although Plaintiff was specifically advised of the consequences of failing to respond to a summary judgment motion, see Dkt. No. 26 at attachment 18, Plaintiff did not timely file opposition papers.*fn1

Because Plaintiff has not submitted a proper counter-statement of material facts, the properly supported facts set forth in Defendants' statement of material facts are deemed to be true. See N.D.N.Y.L.R. 7.1(a)(3).

"Plaintiff is a 54 year old black African American single male." Am. Compl. at ¶. 23. In November 2002, Plaintiff began working for the Department of Homeland Security as a Transportation Security Officer. On December 22, 2003, Plaintiff was informed that Defendant was undergoing "some changes to its workforce to achieve... approved staffing levels." Def. Ex. A at 292. Plaintiff was advised that "[w]e have a limited number of positions available for full-time employees and those are being offered to those who ranked higher [than Plaintiff] on the [competency-based] tests." Id. As a result, Defendant was notified that he was "at risk of an involuntary conversion to a part-time position" or termination. Id. Plaintiff was offered the option of accepting a part-time position with a schedule of 20 hours per week or being terminated. Id. Plaintiff elected the reduction in hours. Id. On December 12, 2003, Plaintiff was advised that he was converted to a part-time employee with a schedule of 20 hours per week. Id. at 293. Plaintiff was informed that, if he believed the change in his status to be discriminatory, he could contact the Office of Civil Rights within 45 days.

In May 2007, Plaintiff was presented with a Notice of Proposed 14 Day Calendar Suspension for failing to follow instructions. Id. at 264-67. Plaintiff responded in writing to the notice. On or about May 17, 2007, Plaintiff contacted the Office of Civil Rights claiming that he was going to be suspended and that he was refused conversion to full-time on account of his age and race and in retaliation for contacting the ombudsman's office. Id. at 43-49. On June 4, 2007, Plaintiff was informed that he would be suspended for 5 (rather than 14) days.

On September 12, 2007, Plaintiff was presented with a Notice of Proposed Removal from Federal Service. Id. at 23-32. The notice specified three charges of misconduct as the basis for the removal. Plaintiff responded in writing to the notice and, on September 15, 2007, he filed a complaint of discrimination. Id. at 16-17. On September 20, 2007, Plaintiff was removed from federal service.

On May 22, 2009, an Administrative Law Judge granted the TSA's motion for summary judgment and dismissed Plaintiff's complaint of discrimination. On May 27, 2009, the Department of Homeland Security issued its Final Agency Decision affirming the dismissal of Plaintiff's claims.

On August 28, 2009, Plaintiff commenced the instant action against Defendants asserting claims of discrimination on account of race, color, age, marital status, and national origin. Plaintiff also asserted a claim of retaliation. On February 24, 2010, Plaintiff filed an Amended Complaint asserting claims against Broome County Government Security. By Decision and Order dated April 14, 2010, the Court granted Broome County's motion to dismiss the Complaint against it. Presently before the Court is Defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12, or, in the alternative, for partial summary judgment pursuant to Fed. R. Civ. P. 56.

II. STANDARD OF REVIEW

Defendants moved to dismiss pursuant to Rule 12 or, in the alternative, for partial summary judgment pursuant to Rule 56. Because Defendants put Plaintiff on notice that they were moving for partial summary judgment; Defendants served Plaintiff with a notice informing of the consequences of failing to respond to a motion for summary judgment; and Defendants filed and served materials outside the pleadings, the Court will consider Defendants' motion pursuant to Rule 56.

Rule 56 of the Federal Rules of Civil Procedures governs motions for summary judgment. It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and... the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56( c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 ...


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