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AYRAULT v. PENA

October 13, 1994

KATHY A. AYRAULT, Plaintiff,
v.
FEDERICO PENA, Secretary, United States Department of Transportation, et al., Defendants.



The opinion of the court was delivered by: CHARLES P. KOCORAS

 CHARLES P. KOCORAS, District Judge:

 This matter is before the court on cross motions for summary judgment. For the reasons set forth below, the defendants' motion is granted, and the plaintiff's motion in denied.

 BACKGROUND

 The plaintiff, Kathy A. Ayrault ("Ayrault"), a former air traffic cooperative program student ("co-op student"), filed the instant lawsuit against the defendants, Frederico Pena, Secretary of the United States Department of Transportation, and Edward Phillips, Regional Administrator of the Federal Aviation Administration ("FAA"), Great Lakes Region (collectively, "the defendants"). The complaint alleges that Ayrault was unlawfully terminated from her position with the FAA, without the protections of the Civil Service Due Process Amendments, 5 U.S.C. Chapter 75, and in violation of the Fifth Amendment to the United States Constitution. Both parties have moved for summary judgment.

 The plaintiff was appointed as a co-op student with the FAA on January 3, 1989. As a co-op student, she was given an excepted service *fn1" appointment under Schedule B *fn2" (5 C.F.R. § 213.3201). Co-op students become eligible for noncompetitive conversion to career or career-conditional appointments within 120 days of successful completion of their educational and work requirements. In addition, one of the requirements for eligibility for noncompetitive conversion to competitive status *fn3" is meeting the qualification standards of the position they will occupy after conversion.

 On January 27, 1992, the plaintiff was notified by letter that she was being terminated as a co-op student effective January 31, 1992. The letter cited poor conduct on the part of the plaintiff, namely, that she had disregarded her supervisor's direction and had been argumentative with her supervisor. The letter notified the plaintiff that, if she felt her termination was the result of discrimination, the Equal Employment Opportunity Complaints Procedure with subsequent review by the Equal Employment Opportunity Commission was available to her. The plaintiff was not advised of any right to appeal the termination to the Merit Systems Protection Board ("MSPB"), or any other forum. At the time of her termination from the FAA, the plaintiff had 30 months of service.

 The plaintiff filed a two-count complaint in federal court. Count I alleges that the defendants violated 5 U.S.C. §§ 7511-13 and implementing regulations: (1) by removing the plaintiff without the issuing of a 30-day notice of proposed termination; (2) by removing the plaintiff without affording her the right to see or review the material to be used in support of the charges; and (3) by failing to afford the plaintiff the right to reply orally or in writing or both at the agency level and prior to the agency level decision. Count II alleges that the defendants, by removing the plaintiff without affording her adequate notice of the charges and an opportunity to review and respond to the case against her, effectively denied the plaintiff of a property right without due process of law, in violation of the Fifth Amendment to the United States Constitution.

 The defendants move for summary judgment on the grounds that, as a co-op student, the plaintiff does not meet the definition of "employee" under Chapter 75 and, as such, she is not entitled to any of the appeal rights available to civil service employees. Moreover, the defendants maintain that, having failed to come within the definition of employee, the plaintiff's asserted property interest in her continued employment is insufficient to trigger Fifth Amendment protections. Following the defendants motion, the plaintiff cross-motioned for summary judgment.

 LEGAL STANDARD

 Summary judgment is appropriate if the pleadings, answers to interrogatories, admissions, affidavits and other material show "that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R.Civ. P. 56(b). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The party seeking summary judgment carries the initial burden of showing that no such issue of material fact exists. Pursuant to Rule 56(b), when a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue as to any material fact and that the moving party is not entitled to judgment as a matter of law. Anderson, 477 U.S. at 250.

 In making our determination, we are to draw inferences from the record in the light most favorable to the non-moving party. We are not required, however, to draw every conceivable inference, but rather, only those that are reasonable. De Valk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987); Bartman v. Allis-Chalmers Corp., 799 F.2d 311, 313 (7th Cir. 1986), cert. denied, 479 U.S. 1092, 94 L. Ed. 2d 160, 107 S. Ct. 1304 (1987). The nonmovant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather he must go beyond the pleadings and support his contentions with proper documentary evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Howland v. Kilquist, 833 F.2d 639, 642 (7th Cir. 1987).

 The plain language of Rule 56(c) mandates the entry of summary judgment against a party who fails 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. "In such a situation there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential ...


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