Opinion
CIVIL ACTION NO. 00-2369, SECTION: I/3
March 5, 2003
ORDER AND REASONS
Before the Court is a motion to dismiss and motion for summary judgment (Rec. Doc. No. 52) filed by defendant, Richard J. Danzig, Secretary of the Navy ("the Secretary"). The Court has reviewed the record, the motion, the memoranda of counsel and the attachments thereto, and the applicable law.
Plaintiff, Dood Johnson, III, filed the instant action seeking to recover pursuant to Title VII, 42 U.S.C. § 2000(e), et seq., and the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) for alleged discriminatory employment practices which occurred in connection with his employment at the Naval Support Activity's Naval Exchange. Defendant seeks dismissal, or in the alternative, summary judgment, arguing that this Court lacks subject matter jurisdiction over all claims filed pursuant to the Whistleblower Protection Act because the plaintiff failed to demonstrate that he suffered an adverse action. Defendant also argues that the plaintiff cannot establish a prima facie case of disparate treatment pursuant to Title VII, and in the alternative, even if the plaintiff can establish a prima facie case of disparate treatment, the plaintiff cannot establish that the defendant's employment decisions were motivated by discriminatory animus.
While the defendant styled his motion to dismiss plaintiffs whistleblower claim as one for lack of subject matter jurisdiction, he seeks dismissal, or alternatively, summary judgment due to a lack of evidence demonstrating a required element of the claim, i.e., an adverse job action. Because the Whistleblower Protection Act, 5 U.S.C. § 2302 (b), is a federal law, this Court has subject matter jurisdiction over any claim arising under it pursuant to 28 U.S.C. § 1331. The defendant asks the Court to consider matters outside the pleadings in determining whether the plaintiff has evidence to establish an adverse job action. The motion, therefore, should properly have been styled a motion for summary judgment. See, Rule 12(b).
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551, 91 L.Ed.2d 265 (1986). In determining whether summary judgment should be granted, the Court must find "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Hunt v. Rapides Healthcare System, LLC, 2001 WL 150961 (9 Cir. 2001); Sanders v. Diamond Offshore Drilling, Inc., 2002 WL 31654973 *1 (E.D. La. 2002).
The burden of establishing that there are no genuine issues of material fact is upon the moving party. Krim v. Banc Texas Group, Inc., 989 F.2d 1435, 1445 (9 Cir. 1993). The Court must construe all facts in the light most favorable to the non-moving party in evaluating a summary judgment motion. Anderson, 477 U.S. at 255, 106 S.Ct. at 2505; Hamlin v. Blue Cross and Blue Shield of Louisiana, 178 F. Supp.2d 673, 678 (E.D. La. 2001). However, the non-moving party may not rely upon denials of the moving party's allegations, but must come forward with competent evidence to support his claims. Donaghey v. Ocean Drilling Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992); Martin v. John W. Stone Oil Dist., Inc., 819 F.2d 547, 549 (9 Cir. 1987); Hernandez v. Wal-Mart Stores, Inc., 2001 WL 1229592 at *1 (E.D. La. 2001).
Having carefully reviewed the record, the Court finds that there are disputes as to genuine issues of material fact which preclude dismissal and/or summary judgment. Accordingly,
IT IS ORDERED that the motion of defendant, Richard J. Danzig, Secretary of the Navy, for dismissal and for summary judgment, is hereby DENIED.