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Fissel v. Napolitano

October 29, 2009

STACEY FISSEL, PLAINTIFF
v.
JANET NAPOLITANO, SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY DEFENDANT



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

In this case, Plaintiff seeks relief pursuant to Title VII*fn1 of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII") against Defendant Janet Napolitano in her capacity as Secretary of the United States Department of Homeland Security. Plaintiff is a former employee of the United States Immigration and Customs Enforcement ("ICE"), an agency located within the Department of Homeland Security. Before the court is Defendant's motion for summary judgment. Defendant argues that Plaintiff is precluded from proceeding with this lawsuit because she failed to properly exhaust her administrative remedies. The parties have briefed the issues, and the motion is ripe for disposition. For the reasons that follow, the court will grant Defendant's motion for summary judgment.

I. Background

Ordinarily, when disposing of a motion for summary judgment the court would identify those facts that are subject to genuine dispute, and cite to the record in order to highlight the precise nature of any disputed facts. See Forbes v. Twp. of Lower Merion, 313 F.3d 144, 148--49 (3d Cir. 2002) (reaffirming the supervisory rule that "district courts in this circuit [must] accompany grants of summary judgment hereafter with an explanation sufficient to permit the parties and this court to understand the legal premise for the court's order.")(citations omitted). Here, however, the facts are not genuinely in dispute.

Although Plaintiff filed a response to Defendant's statement of material facts, she does not dispute the accuracy of the contents of the administrative record submitted by Defendant. Moreover, while she has attempted to dispute some of the facts presented by Defendant, Plaintiff has not filed any affidavits, declarations to support her assertions, or any other competent evidence. (See Docs. 14 & 15.) It is axiomatic that in defending against summary judgment, a party cannot simply reassert the facts alleged in her complaint; instead, she must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Plaintiff has not done so here. Instead, in her answers to Defendant's statement of material facts, she elaborated on statements made in her complaint but did not submit any affidavits or other admissible evidence to refute the facts set forth by Defendant.*fn2 While Plaintiff does submit various documents in support of her opposition to Defendant's motion, these documents were either a part of the administrative record below and were submitted by Defendant, or they are other documentation that does not support Plaintiff's denials contained in her response to Defendant's statement of material facts.*fn3 For instance, Plaintiff frequently references documents R.61 through R.89 which she includes with her response to Defendant's Statement of Material Fact, and which were also provided by Defendants. (See Doc. 15 at 8-36 of 80; Doc. 11-2 at R. 61-R.89.) These papers are statements that Plaintiff made in her filing to the Office of Spcial Counsel concerning her allegation that ICE committed prohibited personnel practices and retaliated against her for violation of the Whistleblower Act; however, they do not meet the requirements of an affidavit because they were unsworn and were not made subject to the penalties of perjury. See Woloszyn v. County of Lawrence, 396 F.3d 314, 323 (3d Cir. 2005)(citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17 (1970) for the proposition that an unsworn statement does not satisfy the requirements of Fed.R.Civ. P. 56(e)).

Although, Plaintiff is proceeding pro se, she is not excused from complying with the Federal Rules of Civil Procedure. Specifically, Rule 56(e) requires that all statements of material fact must be supported by affidavit of other competent evidence. Fed.R.Civ. P. 56(e). Furthermore, in this case, as it does with all cases where the plaintiff is proceeding pro se, the court, on January 20, 2009, issued its Standing Practice Order 94-2. (Doc. 3.) This order put Plaintiff on notice of "briefing and other litigation responsibilities that commonly arise during the course of a lawsuit." (Doc. 3 at 2 of 11.) Part B of the court's Standing Practice Order reviews the procedure for summary judgment under both the Federal Rules of Civil Procedure and the court's Local Rules, and plainly states:

Rule 56(e) also provides that a party opposing a summary judgment motion may not rely on the mere allegations or denials in his or her pleading, such as a complaint.

Instead, Rule 56(e) requires a party opposing a motion for summary judgment to file evidentiary material (affidavits of other evidence), as described in Rule 56, setting forth specific facts showing there is a genuine issue for trial. (Doc. 3 at 4 of 11.) Plaintiff was duly warned that in defending against summary judgment she must produce evidence to support her claims, she has not done so in this case. Accordingly, the court will treat the facts as alleged and supported by Defendant as if they are unopposed.

A. Facts

Plaintiff Stacey Fissel is a former employee of the United States Immigration and Customs Enforcement, an agency which is a part of the United States Department of Homeland Security. Defendant is Janet Napolitano, Secretary of the United States Department of Homeland Security.*fn4 Plaintiff has been a probationary employee in the position of Detention and Removal Assistant in the Office of Detention and Removal of ICE in York, Pennsylvania. Plaintiff began her employment with ICE on May 14, 2006, and was terminated effective May 10, 2007. Plaintiff's termination notice stated that she was terminated because she "failed to demonstrate acceptable performance of assigned duties and the ability to follow supervisory instructions." (Doc. 11-2, R. 4.)

1. Termination

When Plaintiff was informed of her termination, Joseph Sallemi, the Assistant Field Office Director, read the entire two-page termination notice to Plaintiff. (Doc. 11-2, R. 2, Sallemi Decl. ¶ 7.) Plaintiff signed the notice on that date, and added the additional statement -- "not in agreement with this" -- under her name. (Id. at R. 2 ¶ 8; R. 5.) At the time of her termination, Plaintiff was given a copy of the two-page termination memo. (Id. at R. 2 ¶¶ 10-11; R. 17, Kelly Mitra Decl.. ¶ 8.) On May 14, 2007, Plaintiff called and asked for a copy of the signature page of her termination notice, and on May 15, 2007, another copy of the termination notice with the signed signature page was sent to her. (Id. at R. 2 ¶ 11.)

The termination notice advised Plaintiff that she could take the following steps if she ...


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