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Gilbert v. Napolitano

United States District Court, District of Columbia

July 19, 2013

ARTHUR GILBERT, Plaintiff,
v.
JANET NAPOLITANO, Defendant

Decided: July 16, 2013.

Page 10

For ARTHUR GILBERT, Plaintiff: Leizer Z. Goldsmith, LEAD ATTORNEY, THE GOLDSMITH LAW FIRM, LLC, Washington, DC.

For JANET A. NAPOLITANO, Secretary, Department of Homeland Security, Defendant: John G. Interrante, Michelle Lo, LEAD ATTORNEYS, U.S. ATTORNEY'S OFFICE, Washington, DC.

OPINION

Page 11

MEMORANDUM OPINION

RICHARD J. LEON, United States District Judge.

Plaintiff Arthur Gilbert (" plaintiff" or " Gilbert" ) is suing Janet Napolitano in her official capacity as Secretary of Homeland Security. A former employee of U.S. Customs and Border Protection (" CBP" or " Customs" ), Gilbert alleges that CBP discriminated and retaliated against him by denying his applications for a promotion in favor of younger white candidates. See Third Am. Compl. (" TAC" ) [Dkt. #57]. Before the Court is Defendant's Renewed Motion for Summary Judgment as to Claims Stemming from Selection of John Milne (" Def.'s Renewed Mot." ) [Dkt. #85]. Upon consideration of the parties' pleadings, relevant law, and the entire record therein, the motion is GRANTED.

BACKGROUND

For detailed recitations of the facts underlying all of plaintiff's claims, see Gilbert v. Napolitano , 670 F.3d 258, 259-60, 399 U.S. App. D.C. 293 (D.C. Cir. 2012), and Gilbert v. Napolitano , 760 F.Supp.2d 21, 23-25 (D.D.C. 2011). Seeing no reason to retread the same background information a third time, I will focus on the one remaining claim now at issue.

Plaintiff alleges that CBP discriminated against him based on his age and race, and retaliated against him for past Equal Employment Opportunity (" EEO" ) activity, when it chose John Milne (" Milne" ) over him from the list of best-qualified applicants (" the best-qualified list" ) for promotion to a GS-14 position (" the Milne promotion" ). TAC ¶ ¶ 109-14; 280-92. On January 12, 2011, I granted defendant's motion for summary judgment on these claims because plaintiff failed to exhaust his administrative remedies. See Final Judgment [Dkt. #74]; Gilbert , 760 F.Supp.2d at 29-30. Our Circuit Court, however, reversed that decision, holding that Customs forfeited the failure-to-exhaust defense by failing to raise it in its answer to the complaint. See Mandate of USCA [Dkt. #78]; Gilbert , 670 F.3d at 260-61. The Court noted, however, that " defendant may seek leave to amend its answer on remand." Id. at 261 (citing Harris v. Sec'y, U.S. Dep't of Veterans Affairs , 126 F.3d 339, 345, 326 U.S. App. D.C. 362 (D.C. Cir. 1997)). And so it did!

Upon its return to this Court, CBP heeded our Circuit Court's advice and amended its answer to include an exhaustion defense. See Am. Answer to TAC at 1 [Dkt. #84]. Defendant now renews its motion for summary judgment on plaintiff's claims arising from the Milne promotion. See Def.'s Renewed Mot. at 1; Mem. in Supp. of Def.'s Renewed Mot. for Summ. J. (" Def.'s Mem." ) at 10-12 [Dkt. #85]. Plaintiff, naturally, opposes the motion. See Pl.'s Mem. in Opp, to Def.'s Mot. for Partial Summ. J. (" Pl.'s Mem." ) [Dkt. #87]. Unfortunately for Gilbert, the Court again finds that his failure to exhaust his administrative remedies entitles defendant to summary judgment.

LEGAL STANDARD

The Court grants a motion for summary judgment when " the movant shows that 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). Although the burden is on the movant to show that there is no dispute of fact, the non-moving party also bears the " burden of producing in turn ...


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