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Center v. Secretary, Department of Homel and Security

United States Court of Appeals, Eleventh Circuit

July 19, 2018

CHARLES EDWARD CENTER, JR., Plaintiff-Appellant,
v.
SECRETARY, DEPARTMENT OF HOMEL AND SECURITY, Customs and Border Protection Agency, Defendant-Appellee.

          Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:15-cv-02097-CEH-TBM

          Before WILLIAM PRYOR, HULL, and JULIE CARNES, Circuit Judges.

          WILLIAM PRYOR, Circuit Judge

         Charles Center appeals the dismissal of his complaint that his employer, the Customs and Border Protection Agency, discriminated against him in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. Center is a longtime government employee who has suffered multiple injuries on the job. When he returned from workers' compensation leave in 2009, the agency erroneously offered him a position that paid less than his former position. Although the agency quickly corrected its mistake, Center sued the agency for retaliation and disability discrimination. The district court dismissed the complaint for lack of jurisdiction because of the Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq., which provides comprehensive remedies for injured federal workers. In the alternative, it granted summary judgment against Center's claims of retaliation and disability discrimination. We affirm. Center waived his claim of retaliation on appeal. And although the district court had jurisdiction to entertain Center's claim of disability discrimination, we affirm the summary judgment in favor of the agency because Center failed to present evidence that the nondiscriminatory reasons offered by the agency were a pretext for discrimination.

         I. BACKGROUND

         In 1999, Center injured his back working as an inspector for the Immigration and Naturalization Service. Later, the Service merged with the Customs and Border Protection Agency, and Center assumed the job title of officer. In 2004 or 2005, while Center was classified at pay-grade level 11, step 4, he took a leave of absence due to a back injury and received federal workers' compensation benefits. In 2005, Center resumed his duties, but in 2006, he again took a leave of absence until 2009. And in 2009, he attained a pay-grade level of 11, step 6.

         In January 2009, the Office of Workers' Compensation Programs determined that Center had permanent physical restrictions, referred him for vocational rehabilitation services, and requested that the agency find him a suitable position. Within a few months, the field operations office in Tampa, Florida, offered Center a job as a technician at pay-grade level 7, step 1. The field office warned Center that it would "rescind the job offer" and that the agency "may initiate action to separate [him] from [its] employment rolls" if he did not accept the position by May 12, 2009. Center accepted the job.

         In 2010, a union steward discovered that "there were [two] full time [pay-grade level 11] Entry Specialist positions available" when Center returned to work, and she demanded to know "why . . . Center [was not] offered one of these equivalent positions" as required by agency regulations. The agency admitted that it had erred by failing to offer Center a job that matched his earlier pay grade and worked to correct the oversight. In January 2011, the field office attempted to establish a "Vessels and Entry Clearance . . . position" at pay-grade level 11 to accommodate Center and "fulfill [its] legal obligation." The agency headquarters approved the reclassification, but a human resources specialist decided that Center's inexperience limited him to a pay-grade level of 9. The agency instead offered Center a position as a Vessel Specialist at pay-grade level 9 with the potential for an early promotion to pay-grade level 11. The written offer stated that, unless Center accepted the offer by July 15, 2011, he would "remain in [his] current position of . . . Technician . . ., which [would] become [his] accepted position of record . . . ." Center accepted the new position.

         In November 2011, the agency promoted Center to pay-grade level 11, step 6. Center questioned why he did not receive a higher pay step, and the agency explained that regulations required it to set his pay grade based on his qualifications and the rate achieved before the disabling event, which, for Center, was pay-grade level 11, step 6. In March 2012, Center filed a complaint of employment discrimination with the Equal Employment Opportunity Counselor, but the agency dismissed it after Center filed this civil action in the district court.

         Center's complaint in the district court alleged retaliation and disability discrimination in violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq. He alleged that he "suffered [the] adverse employment actions of [being] deni[ed] . . . his earned rightful compensation grade level . . . and [being] hired for a lower position" in retaliation for "engag[ing] in the statutorily protected activities of accepting the work offered him . . ., inquiring as to [the] availability of suitable work at his compensation grade level[, ] and filing an inquiry." And he alleged that he was "discriminated against because of his disabilities" when he was "hired back . . . at a much lower compensation grade" and "not given back-compensation."

         The agency moved to dismiss Center's complaint and, in the alternative, for summary judgment, and the district court granted the motion. The district court ruled that it lacked subject matter jurisdiction over Center's claims of retaliation and disability discrimination because his claims "appear[ed] to be seeking judicial review of the Secretary of Labor's . . . compensation decision" under the Compensation Act, 5 U.S.C. § 8101 et seq., a statutory scheme that establishes substantial agency discretion over the treatment of injured workers. In the alternative, the district court granted summary judgment in favor of the agency and against Center's claims of retaliation and disability discrimination. The district court ruled that Center failed to make a prima facie showing of retaliation. And the district court ruled that Center "failed to establish that anyone at [the agency] intentionally discriminated against him because of his disability." It also explained that even if Center could make a prima facie showing of discrimination, "he . . . failed to establish that [the agency's] explanation for placing him in a lower paying position was a pretext for intentional discrimination."

         II. STANDARD OF REVIEW

         We review a dismissal for lack of subject matter jurisdiction de novo. Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir. 2006). We also review de novo a grant of summary judgment. Burton v. Tampa Hous. Auth., 271 F.3d 1274, 1276 (11th Cir. 2001). A district court may grant summary judgment when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

         III. ...


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