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Morgan v. Federal Aviation Administration

September 28, 2009


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document Nos.: 7, 8, 26



This matter is before the court on the defendants' motion to dismiss, or, in the alternative, for summary judgment. The pro se plaintiff is a former employee of the Federal Aviation Administration ("FAA"), an agency housed within the Department of Transportation ("DOT"). He has brought suit against the FAA and Susan Marmet, his former co-worker. The plaintiff invokes the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the California Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code §§ 12900 et seq., alleging nonpayment of overtime, unlawful discharge and retaliation. The defendants move to dismiss, or for summary judgment, on the grounds of res judicata and collateral estoppel. Because the defendants filed this motion post-answer, the court treats it as one for summary judgment rather than a motion to dismiss. And because there is no genuine issue of material fact as to whether res judicata bars this action, the court concludes that the defendants are entitled to judgment as a matter of law.


The facts giving rise to the plaintiff's claim have been set forth in detail in the court's memorandum opinion of August 25, 2009. See Mem. Op. (Aug. 25, 2009). In short, on September 30, 2005, the FAA terminated the plaintiff's employment as an air traffic control specialist. See Compl., Ex. 6 ("Morgan Decl.") ¶ 8. The plaintiff has brought three separate actions in three distinct venues challenging his termination. In the first action, brought on October 31, 2005, the Merit Systems Protection Board (MSPB) determined that the DOT*fn1 "proved by preponderant evidence that on February 16, 2005 the [plaintiff] worked beyond the scheduled end of his shift without authorization, and then claimed 45 minutes overtime." Morgan v. Dep't of Transp., 105 M.S.P.R. 647 (2007) (unpublished table decision); No. SF-0752-06-0090-I-1 at 21-22, slip op. (M.S.P.B. July 14, 2006). The administrative judge also determined that the plaintiff's termination was not in retaliation for whistleblowing, id. at 27, and that his termination was proper given findings that he claimed unauthorized overtime and threatened a co-worker, id. at 32. The Federal Circuit upheld the MSPB decision. See generally Morgan v. Dep't of Transp., 300 F. App'x 923 (Fed. Cir. 2008).

On September 28, 2007, the plaintiff then brought the instant action contesting his termination. See generally Compl. In this action, the plaintiff seeks compensation under the FLSA for the forty-five minutes he spent obtaining information for his medical clearance on February 16, 2005. See id. ¶ 18. His second claim under the FLSA alleges that he was terminated in retaliation for bringing or threatening to bring an FLSA action. See id. ¶ 26. Lastly, the plaintiff challenges his termination under California law, claiming that Marmet violated the FEHA by "discharging and/or discriminating [against] and or harass[ing]" the plaintiff. See id. ¶ 34.

The third action commenced by the plaintiff, alleging similar FLSA claims and involving fifty-two other air traffic control specialists, was brought in the Court of Federal Claims on October 1, 2007. See Whalen v. United States, No. 07-707C, slip op. (Fed. Cl. Mar. 12, 2008). On March 12, 2008, the Court of Federal Claims dismissed the plaintiff from the case due to the pendency of the instant action. See id. at 5-7.

The defendants filed the instant motion on February 9, 2009. See generally Defs.' Mot. The motion sought to dismiss the plaintiff's complaint on the grounds of res judicata, id. at 3-5; but because those defenses were not included in the defendants' original answer, the defendants amended their answer to include them, Mem. Op. (Aug. 25, 2009); see also Harris v. Sec'y, U.S. Dep't of Veterans Affairs, 126 F.3d 339, 345 (D.C. Cir. 1997) (holding that "a party must first raise its affirmative defenses in a responsive pleading before it can raise them in a dispositive motion," but remanding to the trial court to allow the defendant to amend its answer to include affirmative defenses and then renew its dispositive motion). The court now turns to the defendants' motion for summary judgment.


A. Legal Standard for a Motion for Summary Judgment

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.

The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he "support[s] his allegations . . . with facts in the record," Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993)), or provides "direct testimonial evidence," Arrington v. United States, 473 F.3d 329, 338 (D.C. Cir. 2006). Indeed, for the court to accept anything less "would defeat the central purpose of the summary judgment ...

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