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Lipovsky v. Vilsack

United States District Court, N.D. Mississippi, Greenville Division

July 13, 2015

JOSEPH LIPOVSKY, Plaintiff,
v.
THOMAS VILSACK, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant.

ORDER GRANTING MOTION TO DISMISS

DEBRA M. BROWN, District Judge.

This employment discrimination action is brought by Plaintiff Joseph Lipovsky against his current employer, the United States Department of Agriculture ("USDA"). Doc. #84. Lipovsky alleges that Defendant violated Title VII of the Civil Rights Act by engaging in unlawful harassment and retaliation on the basis of his prior statutorily protected activity. Id. Before the Court is Defendant's motion to dismiss or, in the alternative, for summary judgment. Doc. #96.

I

Previous Lawsuit and Procedural History

A. 2005 Lawsuit

In 2005, Plaintiff filed a civil suit in the United States District Court for the Central District of Illinois[1] alleging that the USDA engaged in unlawful employment discrimination when it downgraded him from a GS-14 Patent Advisor position to a GS-11 Patent Advisor/Foreign Document Prosecution Specialist. See Lipovsky v. Johanns, No. 1:05-cv-1304 (C.D. Ill. Oct. 11, 2005) (" Lipovsky I "), at Doc. #1 at ¶ 6. Although Plaintiff's complaint purported to arise from the Americans with Disabilities Act and Title VII, the document asserted only a single count - a claim for discrimination under the ADA that "plaintiff was demoted in violation of the ADA due to his alleged inability to perform the excessive workload given him." Id. at ¶¶ 4, 18.

On March 17, 2006, Plaintiff filed an amended complaint "for discriminatory conduct in violation of the Rehabilitation Act of 1973 and 42 U.S.C. § 2000(e) (Title VII)." Lipovsky I, Doc. #18 at ¶ 1. Plaintiff's amended complaint alleged that "plaintiff was demoted in violation of the [Rehabilitation] Act due to his alleged inability to perform the excessive workload given him." Id. at ¶ 18.

On June 26, 2008, Defendant moved for summary judgment on Plaintiff's Rehabilitation Act claim. Lipovsky I, at Doc. #39. Approximately six weeks later, U.S. Magistrate Judge John A. Gorman denied the motion for summary judgment. Id. at Doc. #49.

On November 14, 2008, Defendant and Plaintiff executed a settlement agreement under which Plaintiff agreed to "waive all claims whether known or unknown against the USDA, its agents, servants or employees that relate to any and all allegations of discrimination which occurred prior to the entry of the Order dismissing this case." Lipovsky I, at Doc. #70 at ¶ 3. In return, Defendant agreed to pay Plaintiff $350, 000 and to "provide the plaintiff with an Associate Technology Transfer Coordinator ("ATTC") position located in New Orleans, Louisiana." Id. at ¶¶ 4-5.

Under the terms of the settlement, the parties agreed that the ATTC position:

shall be classified as a GS-14, Step 10 level. Further, the plaintiff may seek an audit of this position in approximately one year or when events warrant to determine if the duties engaged in by the plaintiff allow for a job re-classification. This audit shall be conducted in the usual manner. The parties shall agree between themselves on when the plaintiff is to commence acting in this position. Unless otherwise approved in writing by the parties, in no case shall the time for plaintiff to start at this position be later than 90 days from the entry of the Order dismissing this case. The plaintiff shall be physically located in New Orleans and the costs of relocation to New Orleans shall be borne by the plaintiff.

Id. at ¶ 5.

On November 14, 2008, commensurate with the terms of the Settlement Agreement, Judge Gorman entered an order dismissing the case. Lipovsky I, at Doc. #71. The stipulated order of dismissal provided: "The parties further agree that this Court shall retain jurisdiction to enforce the terms and conditions set forth in the Agreement for Compromise and Settlement and Release of Claims for a period ...


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