Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Grose v. Lew

United States District Court, W.D. Tennessee, Western Division

January 16, 2015

ANTHONY T. GROSE, SR., Plaintiff,
v.
JACOB J. LEW, SECRETARY OF THE TREASURY, Defendant.

ORDER DENYING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE SUR-REPLY AND PLAINTIFF'S MOTION TO FILE NEW EVIDENCE IN SUR-REPLY REPORT AND RECOMMENDATION ON DEFENDANT'S SECOND MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR ALTERNATIVELY JURY TRIAL

CHARMIANE G. CLAXTON, Magistrate Judge.

Before the Court are the following motions: Defendant's Second Motion for Summary Judgment (Docket Entry "D.E." #101); Plaintiff's "Motion for Summary Judgment and/or Alternatively Jury Trial" (D.E. #108); Plaintiff's Motion for Extension of Time to File Sur-Reply (D.E. #111)[1]; and, Plaintiff's Motion to File New Evidence in Sur-Reply (D.E. #112)[2]. All pretrial matters in this case within the Magistrate Judge's jurisdiction have been referred for determination pursuant to 28 U.S.C. § 636(b)(1)(A) and all other pretrial matters have been referred for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B)-(C). (D.E. #28). For the reasons set forth herein, Plaintiff's Motion for Extension of Time to File Sur-Reply and Plaintiff's Motion to File New Evidence in Sur-Reply are DENIED. Further, it is recommended that Plaintiff's "Motion for Summary Judgment and/or Alternatively Jury Trial" be DENIED and that Defendant's Second Motion for Summary Judgment be GRANTED.

I. Introduction

On July 5, 2011, Plaintiff Anthony T. Grose, Sr. filed a pro se Complaint alleging claims of employment discrimination in violation of numerous provisions of law against eleven named defendants. (D.E. #1). Plaintiff paid the civil filing fee. (D.E. #2). On December 22, 2011, Plaintiff filed a motion seeking leave to amend his complaint (D.E. #7), which the District Court granted in a January 13, 2012 Order and construed as the Amended Complaint. (D.E. #8). In this same Order, however, the District Court sua sponte dismissed all of Plaintiff's claims in the Amended Complaint with the exception of his Title VII, Age Discrimination in Employment Act ("ADEA"), and Rehabilitation Act claims against Defendant Timothy F. Geithner, Secretary of the Treasury, in his official capacity. (D.E. #8).

On February 13, 2012, Plaintiff filed an "Amended Complaint" (D.E. #9) ("Second Amended Complaint"), which set forth that the crux of his employment discrimination claims centered around his application for the position of contact representative under vacancy announcement Number 41-Reply 78-AM07-856 ("Vacancy Announcement") on or about July 2, 2007. The District Court construed this filing as a motion to amend (D.E. #10). As so construed, the District Court granted Plaintiff's motion to amend "[t]o the extent that the complaint merely clarifies and reorganizes the factual allegations and expands the prayer for relief"; however, the District Court denied Plaintiff's motion to amend "to the extent that Plaintiff is attempting to reassert the claims that were dismissed." (D.E. #10). The District Court reiterated that the "only claims in this action are the claims against Defendant Geithner in his official capacity under Title VII, the ADEA, and the Rehabilitation Act." (D.E. #10). On October 1, 2013, the District Court entered an Order, inter alia, to modify the docket to substitute Jacob J. Lew, the current Secretary of the Treasury, for Timothy F. Geithner as the sole Defendant pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. (D.E. #44).

On April 4, 2014, the parties filed cross motions for summary judgment. (D.E. #76, #77). On July 30, 2014, the Magistrate Judge recommended that Defendant's Motion to Dismiss be granted in part and denied in part, that Plaintiff's Motion for Summary Judgment be denied, and that Defendant's Motion for Summary Judgment be granted in part and denied in part. (D.E. #83). On October 3, 2014, the District Court adopted the Magistrate Judge's Report and Recommendation but provided specifically that the rulings on the cross motions for summary judgment were without prejudice. (D.E. #98). Thus, the sole remaining claims at this juncture are Plaintiff's Title VII, ADEA, and Rehabilitation Act claims against Defendant Lew in his official capacity arising from EEODFS-08-0166-F. The District Court further permitted Defendant Lew to file a second motion for summary judgment on or before November 3, 2014 and provided a briefing schedule if such a motion were filed. The District Court advised that, with the exception of the filings permitted by its Order, "[n]o further briefing will be permitted." The District Court also advised that it was "unnecessary for Plaintiff to file a separate cross-motion for summary judgment" and that he "should make all of his arguments in response to Defendant's motion."

On October 10, 2014, Defendant Lew filed a Second Motion for Summary Judgment. On November 24, 2014, Plaintiff filed his Response to Defendant's Second Motion for Summary Judgment. (D.E. #107). Also on November 24, Plaintiff filed his "Motion for Summary Judgment and/or Alternatively Jury Trial." On December 5, 2014, Defendant Lew filed his Reply to Plaintiff's Response to Defendant's Second Motion for Summary Judgment in which he also responded to certain other filings by Plaintiff. (D.E. #109). On December 17, 2014, Plaintiff filed his Motion for Extension of Time to File Sur-Reply and Plaintiff's Motion to File New Evidence in Sur-Reply.

II. Proposed Findings of Fact

At the time Plaintiff applied for the position of contact representative under the Vacancy Announcement, he was employed as a contact representative with Defendant. (Def.'s Mot. for Summ. J., Exh. 1 ("Pl.'s Dep.") at 201:9-16, 65:15-20). The Vacancy Announcement was for a seasonal position that "wouldn't have been a promotion" but "was more like a lateral move" with no change in pay or in benefits. (Pl.'s Dep. at 201:17-202:12). Plaintiff's application for the open position of contact representative under the Vacancy Announcement was not considered because the application was treated as a duplicate application. (Def.'s Mot. for Summ. J., Exh 2 ("Pruitt Dep.") at 31 & Exh. 3 ("Dyer Dep.") at 79).[3]

Former Human Resources Specialist Pamela McNeil was the primary point of contact for the Vacancy Announcement. (Def.'s Mot. for Summ. J., Exh. 4 ("McNeil Decl.") ¶ 2). McNeil has never known Plaintiff, including during the time when she served as Human Resources Specialist, and she had no knowledge of Plaintiff's race, age, medical condition(s), or previous EEO activity. ( Id. ¶ 4). McNeil was never asked to disregard or mishandle Plaintiff's application for the Vacancy Announcement by anyone in Plaintiff's chain of command or anyone employed by the Defendant. ( Id. ¶ 3). Likewise, Dyer did not know Plaintiff's age, color, gender, disabilities, or prior EEO activity, including EEO complaints or investigations. (Dyer Dep. at 90-91).

III. Proposed Analysis

A. Plaintiff's "Motion for Summary Judgment and/or Alternatively Jury Trial, " Plaintiff's Motion for Extension of Time to File Sur-Reply, and Plaintiff's Motion to File New Evidence in Sur-Reply

In its October 3, 2014 Order, the District Court explicitly permitted Defendant to file a second motion for summary judgment and for the parties to file responsive briefing as set forth in the Order. The District Court expressly stated that "[n]o further briefing will be permitted." The District Court further admonished that "[i]t is unnecessary for Plaintiff to file a separate cross-motion for summary judgment" and that he "should make all of his arguments in his response to Defendant's motion." Accordingly, Plaintiff's Motion for Extension of Time to File Sur-Reply and Plaintiff's Motion to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.