Petition for Writ of Certiorari — Steven D'Agostino, Petitioner v. Gary A. Ashworth, Acting Secretary of the Air Force

Supreme Court briefNov 4, 2024

Ask Donna

What actually matters in this document.

Text

STEVEN D’AGOSTINO

25 Nautilus Dr.

Bamegat NJ 08005

609-622-8964 / info@stevedagostino.biz

UNITED STATES SUPREME COURT DOCKET NO: TBD

STEVEN D’AGOSTINO

Plaintiff-Appellant

UNITED STATES SUPREME COURT

BELOW UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

DOCKET NO: 22-2835

BELOW NO: 1:19-CV-281-RBK-AMD

The Honorable Frank Kendall, Secretary

of The United States Air Force;

Defendant-Appellee

PLAINTIFF-PETITIONER’S APPENDIX

PLAINTIFF-PETITIONER’S

APPENDIX

TABLE OF APPENDIX

PAGE

Docket entries in the District Court, 19-281-RBK

Pal

MOST SIGNIFICANT PRE-TRIAL DOCUMENTS

ECF No. 21, My motion for partial summary judgment, which was not timely opposed

EOF No. 22, Defendant-Appellee’s untimely request for an extension to respond to ECF No. 21

ECF No. 28, the District Court’s Mar 25, 2021 order (which includes opinion) on several motions

ECF No. 41, the District Court’s Sep 14,2021 order on summary judgment motions

ECF No. 42, the District Court’s Sep 14,2021 opinion on summary judgment motions

Excerpts from ECF No. 76, Defendant-Appellee’s Findings of Fact and Conclusions of Law

Excerpts from ECF No. 77, Defendant-Appellee’s Trial Brief

Pa4

Pa30

Pa32

Pa36

Pa39

Pa64

Pa68

MOST SIGNIFICANT TRIAL DOCUMENTS / EXHIBITS *

P-2, my self-made transcript of P2-A video (30 seconds of my Fri Sep 6,2013 interaction with Mr. Dunn) Pa70

P2-A, the actual 30-second video that was played in court corresponding to my P-2 exhibit ON USB DRIVE

P-5, my (mostly disallowed) self-made transcript of my Tues Sep 3,2013 conversation with Mr. Dunn

Pa71

P5-A, the tiny portion which I was allowed to play in court of the actual video corresponding to P-5 ON USB

P-8, Mr. Dunn’s Apr 8, 2014 written statements to the EEOC investigator, under penalty of peijury

Pa83

P-8A, Mr. Dunn’s May 16, 2014 written statements to the EEOC investigator, under penalty of peijuiy Pal07

P-9, Ms. Beard’s Apr 8,2014 written statements to the EEOC investigator, under penalty of peijury

Pal 10

Pal27

P-20, my self-made spreadsheet showing how much I was paid/underpaid throughout my employment

Pal28

J-2, the joint exhibit (later-withdrawn by me) of Mr. Dunn’s Sep 12,2013 Notice of Termination

D-5, the Fri Sep 6,2013 email from Mr. Dunn to HRO, plus the attachment (along with its file properties) Pal30

D-5 A, my “zoomed in” view of the file properties of the attachment to the Fri Sep 6, 2013 email

Pal33

D-6, Mr. Dunn’s June 17,2013 “Team Member Progress Statement” about the van, signed by both of us Pa 134

D-7, Ms. Beard’s July 7 - Sep 12,2013 self-purported list of my comings and goings from the office.

Pal35

D-16, Ms. Beard’s July 22 - Sep 6, 2013 self-purported list of same, with numerous inconsistencies to D7 Pal36

D-17, one of Mr. Dunn’s unverifiable “reports”, stating my coworkers’ resentment of my accommodation Pal37

The relevant excerpts from D-19, the Air Force manual 34-310

Pal38

MOST SIGNIFICANT POST-TRIAL DOCUMENTS

ECF No. 85, my Findings of Fact and Conclusions of Law, which the District Court completely ignored Pal46

ECF No. 86, the District Court’s Jul 26, 2022 order denying my motion

Pal63

ECF No. 87, the District Court’s Aug 4,2022 opinion of “no cause”

Pal65

ECF No. 88, the District Court’s Aug 4, 2022 order for the entry of the of “no cause”

Pal 85

ECF No. 89, the District Court’s Aug 4,2022 entry of the order of “no cause”

Pal 86

ECF No. 90, my Sep 29,2022 Notice of Appeal to the Third Circuit

Pal 87

Third Circuit’s Mar 21,2024 Opinion

Pal 88

• Docket entries (with full docket text) in the Third Circuit Court, 22-2835, after last appendix page

* P-2, P-3, P-4 and P-5 can also be found in the original record at ECF No. 33 (pages 15 - 33). P-8 can also

be found at both ECF Nos. 25-8 and 30-8. Likewise, P-9 can be also found at both ECF Nos. 25-9 and 30-9.

Lastly, P-8A can also be found at ECF No. 83 (pages 37 - 39).

Query

Reports

Utilities

Help

Log Out

1:19-cv-00281-RBK-AMD D'AGOSTINO v. ROTH

Robert B. Kugler. presiding

Ann Marie Donio, referral

Date filed: 01/08/2019

Date terminated: 08/04/2022

Date of last filing: 10/04/2022

Documents

Doc.

No.

Description

Dates

Filed:

Entered:

Filed & Entered: 01 /10/2019 Cl- Summons Issued

Filed & Entered: 02/20/2019 Cl- Certificate of Service

Filed & Entered: 03/29/2019 Cl- Application for Clerk's Order to Ext Answer/Proposed Order

Filed & Entered: 04/16/2019 Cl Motion to Dismiss

Terminated:

10/11/2019

Filed & Entered: 05/06/2019 Cl Brief in Opposition to Motion

Filed & Entered: 05/14/2019 Cl Reply Brief to Opposition to Motion

Filed & Entered: 10/11/2019 Cl Opinion

Filed & Entered: 10/11 /2019 Cl Order on Motion to Dismiss

01/08/2019 Cl Complaint

01/10/2019

iQ Filed & Entered: 10/21 /2019 Cl Amended Complaint

Filed & Entered: 10/21 /2019 Cl Motion for Reconsideration

Terminated:

03/30/2020

Filed & Entered: 11 /04/2019 Cl Answer to Amended Complaint

Filed & Entered: 11 /04/2019 Cl Response in Opposition to Motion

Filed & Entered: 11 /05/2019 Cl Order Initial Scheduling Conference (Camden)

Filed & Entered: 12/10/2019 Cl Pretrial Conference - Initial

16 Filed & Entered: 12/10/2019 Cl Scheduling Order

18 Filed & Entered: 03/30/2020 d Order on Motion for Reconsideration

20 Filed & Entered: 05/06/2020 Cl Status Conference

Filed & Entered: 06/15/2020 Cl Motion for Partial Summary Judgment

Terminated:

03/25/2021

Filed & Entered: 08/06/2020 Cl Letter

Filed & Entered: 08/12/2020 Cl Response (NOT Motion)

Pa1

24 Filed & Entered: 09/10/2020 Cl Status Conference

25 Filed & Entered: 09/30/2020 Cl Motion for Summary Judgment

Terminated:

03/25/2021

26 Filed & Entered: 10/13/2020 Cl Motion to Strike

Terminated:

03/25/2021

27 Filed & Entered: 10/21 /2020 Cl Response to Motion

28 Filed & Entered: 03/25/2021 Cl' Order on Motion to Strike

22 Filed & Entered: 04/01/2021 Cl- Substitution ofAttorney

30 Filed & Entered: 04/01/2021 Cl- Motion for Summary Judgment

10/19/2021

Terminated:

Filed & Entered: 04/01/2021 C|- Exhibit (to Document)

32 Filed & Entered: 04/15/2021 Cl- Motion to Seal Document

Term inated:

09/14/2021

33 Filed:

Entered:

Terminated:

04/15/2021 d Motion for Summary Judgment

04/16/2021

10/19/2021

34 Filed & Entered: 04/20/2021 Cl' Letter

35 Filed & Entered: 04/21 /2021 C|- Order

36 Filed & Entered: 05/07/2021 Cl- Letter

37 Filed & Entered: 05/10/2021 Cl Notice of Appearance

38 Filed & Entered: 05/21/2021 Cl' Brief in Opposition to Motion

39 Filed & Entered: 05/21/2021 Cl- Certificate of Service

40 Filed & Entered: 05/28/2021 Cl' Response in Support of Motion

Filed & Entered: 09/14/2021 Cl Order on Motion to Seal Document

42 Filed & Entered: 10/19/2021 Cl Opinion

43 Filed & Entered: 10/19/2021 Cl Order on Motion for Summary Judgment

44 Filed & Entered: 10/20/2021 C| Scheduling Order

45 Filed & Entered: 11 /02/2021 Cl Substitution of Attorney

46 Filed & Entered: 11 /17/2021 Cl Letter

48 Filed & Entered: 12/07/2021 Cl Letter

50 Filed & Entered: 12/20/2021 Cl Letter

52 Filed & Entered: 01/06/2022 Cl Letter

53 Filed & Entered: 01/07/2022 Cl Letter

54 Filed & Entered: 01/10/2022 Cl Letter

55 Filed & Entered: 01/11/2022 Cl Letter

57 Filed & Entered: 01/19/2022 Cl Order

58 Filed & Entered: 01/19/2022 Cl Discovery Hearing

Pa2

59 Filed & Entered: 02/09/2022 Cl Pretrial Order

60 Filed & Entered: 04/06/2022 Cl- Letter

62 Filed & Entered: 04/12/2022 Cl Letter

64 Filed & Entered: 05/09/2022 Cl Substitution of Attorney

65 Filed & Entered: 05/09/2022 Cl Status Conference

67 Filed & Entered: 05/16/2022 Ct Status Conference

68 Filed & Entered: 05/16/2022 Cl Order to Show Cause

69 Filed & Entered: 05/16/2022 Cl- Letter

70 Filed & Entered: 06/03/2022 Cl- Letter

72 Filed & Entered: 06/07/2022 Cl Show Cause Hearing

73 Filed & Entered: 06/14/2022 Cl Notice of Hearing

74 F7/e<7 & Entered: 06/22/2022 Cl Letter

75 Filed:

Entered:

06/27/2022 Cl Trial Brief

06/28/2022

76 Filed & Entered: 06/29/2022 Cl Proposed Findings of Fact

77 Filed & Entered: 06/29/2022 Cl Trial Brief

78 Filed & Entered: 07/05/2022 Cl" N otice of Appearance

79 Filed:

Entered:

07/06/2022 Cl- Bench Trial - Begun

07/07/2022

80 Filed:

Entered:

07/07/2022 Cl Bench Trial - Completed

07/08/2022

81 Filed:

Entered:

07/07/2022 Cl Transcript

07/08/2022

82 Filed:

Entered:

07/07/2022 Cl Transcript

07/08/2022

83 Filed:

07/19/2022 Cl- Motion for Sanctions

07/20/2022

07/26/2022

Entered:

Terminated:

84 Filed & Entered: 07/21/2022 Cl Proposed Findings of Fact

85 Filed:

Entered:

07/21/2022 Cl Brief in Support of Motion

07/22/2022

86 Filed & Entered: 07/26/2022 Cl" Order on Motion for Sanctions

87 Filed & Entered: 08/04/2022

V* • >

union

88 Filed & Entered: 08/04/2022 Cl Judgnent

89 Filed:

Entered:

08/04/2022 Cl Judgnent

08/05/2022

2Q Filed & Entered: 09/29/2022 Cl Notice of Appeal (USCA)

91 Filed & Entered: 10/04/2022 Cl USCA Case Number

Pa3

Case l:19-cv-00281-RBK-AMD Document 87 Filed 08/04/22 Page 1 of 20 PagelD: 1734

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

STEVEN D’AGOSTINO,

Plaintiff,

Civil No. 19-281 (RBK/AMD)

OPINION

FRANK KENDALL, SEC’Y OF THE

AIRFORCE,

Defendant.

ROBERT B. KUGLER, United States District Judge:

This action is an employment dispute between Plaintiff Steven D’Agostino and the Secretary

of the U.S. Air Force.

The relevant procedural history is as follows. Plaintiff brought claims for violations of the

Rehabilitation Act, Title VII, the Americans with Disabilities Act (“ADA”), unspecified wage and

hour law, and common law. (Doc. No. 1). Defendants made a motion to dismiss in part, and we

granted that motion: dismissing a civil conspiracy claim and dismissing all Defendants except the

Air Force. (Doc. No. 9). Plaintiffs Operative Complaint against the Secretary of the Air Force

mentions claims for disability discrimination, failure to accommodate, retaliation, hostile work

environment, and unpaid wages. (Doc. No. 10). After discovery, both parties moved for summary

judgment. (Docs. Nos. 30, 33). We granted summary judgment to Defendant for the ADA

discrimination claim, failure to accommodate claim, and hostile work environment claim, finding

that the sparse evidence of Plaintiff s sleep problems did not indicate an affliction severe enough

to qualify him as disabled under the ADA. (Doc. No. 42).

Pa165

Case l:19-cv-00281-RBK-AMD Lxu.:,.r^;r:

A?2 Page P of 20 PageiD' 1735

After summary judgment, two claims remained: retaliation and unpaid wages. The parties

disputed whether Plaintiff was entitled to a trial by jury. The Court determined that the retaliation

claim, brought under the Rehabilitation Act, entitles Plaintiff to equitable relief only. 42 U.S.C. §

2000e-5(g)(l). The Court further determined that the unspecified unpaid wages claim is best

understood as a contract claim for which the government waives its sovereign immunity under the

Little Tucker Act. 28 U.S.C. § 1346(a)(2). Such a claim “shall be tried by the court without a

jury[.]” 28 U.S.C. § 2402. Because neither claim permits a jury, the Court proceeded with a bench

trial.

For the reasons set forth below, the Court finds that Plaintiff is not entitled to judgment on

either claim. Consequently, the Court will enter judgment in favor of Defendants. The following

constitutes the Court’s Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil

Procedure 52(a).

A. Findings of Fact

Hiring and Duties

1. In February 2013, Plaintiff applied for the federal civilian position of Visual Information

Specialist for the 87th Force Support Squadron, Marketing Department, at Joint Base

McGuire Dix Lakehurst, New Jersey. Transcript of Bench Trial Vols. I and II (“Tr.”)

(Docs. Nos. 81, 82) at 8:8-14.

2. The 87th Force Support Squadron is a Non-Appropriated Fund Instrumentality (“NAFI”).

A NAFI is “[a]n instrumentality of the Federal Government established to generate and

administer nonappropriated-funds for programs and services contributing to the mental and

physical well-being of Department of Defense personnel and their dependents.” 32 C.F.R.

§ 756.2. NAFIs employ civilian employees. Tr. 8:23-25.

Pa 166

Case l:19-cv-00281-RBK-AMD Document 8/ Filed Uf'04/22 Page 3 of 20 PagelD; 1736

3. Plaintiff interviewed with Charles “Monty” Dunn, Marketing Director of the 87th Force

Support Squadron (formerly a Supervisory Marketing Specialist), and Mika Beard,

Assistant Director of Marketing (formerly a Marketing Assistant). Tr. 9:1-3.

4. In March 2013, Mr. Dunn selected Plaintiff for the position of Visual Information

Specialist. Tr. 8:12-14.

5. Plaintiff requested a later start time than the core work hours for the position of 7:30 a.m.

to 4:30 p.m. Tr. 9:15-20.

6. Acknowledging Plaintiffs request for a later start time than the usual 7:30 a.m., Mr. Dunn

asked Plaintiff to begin work by 10:00 a.m. and remain until 7:00 p.m., thereby working a

full 8-hour shift (with one hour off for lunch). Tr. 219:19-220:18.

7. Plaintiff was officially hired as of March 25, 2013. Tr. 8:12-14.

8. Plaintiffs first day in the office was April 1, 2013. Tr. 68:13-14.

9. NAF job expectations and requirements are set out in the position description and again

verbalized during the indoctrination meeting between the supervisor and new hire via the

NAF New Employee Checklist. Tr. 69:4-6; Defense Exhibit (“DE”) 4, 19.

10. Plaintiffs orientation meeting took place on April 1, 2013, his first day in the office, and

he underwent a week or two of training. Tr. 68:13-18. Plaintiff signed a document

indicating that he had been briefed on the subjects identified on the checklist, which

included work schedules, time and attendance cards, leave procedures, and lunch/break

periods. Tr. 81:16-17; DE 2.

11. As the role was designed, the Visual Information Specialist was responsible for audio

visual content, shepherding of multimedia, and managing the website for the 87th Force

Pa167

Case l:19-cv-00281-RBK-AMD Document 87 Filed 08/04/22 Page 4 of 20 PagelD: 1737

Support Squadron, as well as perform other related duties as assigned. Tr. 68:22-69:3;

73:19-21.

12. The duties and responsibilities, qualifications, and performance standards for the Visual

Information Specialist position were listed in the NAF Position Guide. DE 4; DE 19.

13. The position paid an hourly wage and guaranteed 20 hours of work per week. Tr. 75:8-18.

14. The NAFI Notification of Personnel Action noted that Plaintiff was subject to a 12-month

probationary period beginning on March 25, 2013. Tr. 75:5-7.

15. The Air Force Manual provides that, “[t]he probational period tests the employee’s ability,

suitability, and fitness for the job, as shown by actual job performance.” DE 19,

4.6 at

60. “During this period, the employee’s conduct and performance are observed, and he or

she may be separated if conditions warrant.” Id. “The NAF-HR processes a personnel

action upon satisfactory completion of the probationary period.” Id.

16. The Air Force Manual provides that “[a]n employee may be separated during probation if

he or she fails to demonstrate that he or she possesses the skills or character traits necessary

for satisfactory performance in the position.” DE 19, *\\ 4.6.6 at 62.

17. The Air Force Manual does not entitle probationary employees to written warnings prior

to termination. DE 19, *[ 4.6.6.1 at 62.

18. The Visual Information Specialist position fell under Mr. Dunn’s direct supervision. Tr.

9:1-3.

The Office and Other Employees

19. Within the office space configuration, Ms. Beard observed when Plaintiff came and went

in the office. Tr. 82:6-12, 83:1-5.

Pa168

Case l:19-cv-00281-RBK~AMD Dceiiit-ent 8 / H!ei: 06/047.2 Page 5 of 20 PageSD: 1738

20. Ms. Beard almost always arrived at the office before Plaintiff. There were some days where

both Plaintiff and Ms. Beard left at the same time, or she left a little before Plaintiff. On

some days, Ms. Beard arrived before Plaintiff and was still there after Plaintiff left for the

day. Tr. 83:6-13.

21. Mr. Dunn also observed Plaintiffs arrival and departure times first-hand. Tr. 83:14-18.

Job Attendance

22. Plaintiffs supervisor, Mr. Dunn, credibly testified that Plaintiffs official hours were 10:00

a.m. to 7:00 p.m. 220:17-221:4.

23. Plaintiff did not consistently comply with the agreed-upon 10:00 a.m. start time. See, e.g.,

Tr. 93:25-94:8; DE 7; DE 16.

24. Plaintiff testified that other employees in the office came and went at their own discretion.

Tr. 87:10-88:5.

25. Plaintiff, and other employees in the office, were not allowed to come and go as they

pleased. Tr. 221:5-7.

26. The employees Plaintiff described who came and went as they pleased did not report to

Plaintiff. Tr. 88:6-8.

27. Plaintiff did not see the timesheets of those employees and Plaintiff does not know whether

those employees submitted leave requests. Tr. 88:9-15.

28. After Plaintiff had been working about a month, during May 2013, Mr. Dunn began to

notice Plaintiffs pattern of late arrivals, early departures, and frequent absences from the

office in the middle of Plaintiff s expected working hours and the office’s core hours. Tr.

299:8-14.

Pa169

Case l:19-cv-00281-RBK A7r?

•'■7?

7"’

X733

29. Ms. Beard also noticed Plaintiffs tardiness around the same time, so she began tracking

Plaintiffs arrival and departure times. Tr. 152:1-25.

30. Contemporaneous records document incidents of Plaintiff s late arrivals, early departures,

and frequent absences from the office in the middle of Plaintiff s expected working hours

and the office’s core hours. See, e.g., DE 17.

31. Mr. Dunn wanted everyone in his office to succeed. Tr. 220:8-15.

32. On May 2, 2013, Mr. Dunn spoke to staff generally about the need to make sure the office

has personnel present at all times during the core office hours. He asked staff members to

communicate their intentions to leave before doing so. Tr. 229:24-25; Tr. 230:1.-14; DE 17.

33. On May 3,2013, Plaintiff left the office for the day with the website inoperable and without

access. Tr. 230:15-22; DE 17.

34. On May 6, 2013, Mr. Dunn instructed Plaintiff that the website is important to the office’s

mission and that it cannot be left “down,” for any extended period of time, including over

the weekend. Tr. 230:23-25; Tr. 231:1 -6; DE 17. 35. Mr. Dunn instructed Plaintiff to always ensure the website was up and running, and that he

expected Plaintiff to make that a priority before leaving for the day. Tr. 230:23-25; Tr.

231:1-6; DE 17.

36. On June 6, 2013, Mr. Dunn counseled Plaintiff about his “responsibility to both arrive on

time and work a full shift.” Mr. Dunn also told Plaintiff that he needed to arrive at a set

time and leave only after completing eight hours of work and a one-hour unpaid lunch

break for a total of nine hours in-office time. Tr. 232:11-25; DE 17.

37. The 87th Force Support Squadron, Marketing Department, at Joint Base McGuire Dix

Lakehurst, New Jersey has a government vehicle for its employees to use for official

Pa170

Case l:19-cv-00281~RBK-AWD On:

^i r

r5“'

na>n./.i9'9

Pp:rr(~ T r*f ?0 PprralD' 1"M0

authorized purposes. Staff members are not permitted to use the government vehicle to

commute home unless they have authorization to do so. Tr. 221:25-222:13.

38. On June 14, 2013, Plaintiff took the government vehicle to commute home and without

authorization to do so. Tr. 84:6-85:14; Tr. 221:24-222:5; DE 6.

39. Mr. Dunn counseled Plaintiff concerning his unauthorized use of the government vehicle.

Tr. 221:24-222:5; DE 6.

40. Plaintiff acknowledged that he could have been fired for taking a government vehicle

without authorization. Tr. 85:21-22.

41. In August 2013, Plaintiffs coworkers complained to Mr. Dunn that Plaintiff was

abandoning the office without notice, even when he had promised to cover for others. Tr.

233:1-25; 234:1-4; 297:25-300:11; DE 17.

42. Before Plaintiff began working, office abandonment was not an issue. Tr. 233:23-234:4;

299:12-14; 300:6-11.

43. Mr. Dunn responded by reiterating the rules to the entire team and requiring employees to

maintain timecards for their hours worked as of August 16, 2013. Tr. 233:1-234:4, 18235:16; DE 17.

44. Despite these reminders, Plaintiff continued to have poor work attendance and did not

submit timecards for the first two weeks that the policy was in effect. DE 17.

45. Plaintiff completed timecards for the weeks ending August 23, 2013 and August 30, 2013,

which indicated that he was entitled to 8 hours of pay for each of those days, except for

August 30, 2013. Tr. 90:22-92:12; DE 15.

Pa171

Case l:19-cv-00281-RBK-AMD Dociirnsnl 87 r-'fefi C8/CK-/22 Page 8 of 20 PagelD: 1741

46. On every day of the pay period ending August 30, 2013, except for August 30, 2013,

Plaintiff indicated that he arrived at 10:00 am, and left at 6:00 pm, without taking any time

for lunch. DE 15.

47. In reality, Plaintiff actually arrived later than 10:00 a.m. each day. See, e.g., Tr. 92:13-93:3;

DE 7.

48. Plaintiff indicated on his timecards that he did not take time for lunch on each of those

days; he actually took time for lunch. Tr. 93:4-21; DE 7.

49. Plaintiff indicated on his timecards that he worked 8 hours for each of the days for the

weeks ending August 23, 2013, and August 30, 2013, Plaintiff worked less than that

amount. See DE 7.

50. Mr. Dunn went on annual leave beginning August 19, 2013, and returning on September

3, 2013. Mr. Dunn designated Ms. Beard to temporarily assume his duties, including the

supervision of Plaintiff. Tr. 94:13-20; 234:23-235:2.

51. Prior to taking leave, Mr. Dunn had told HR he did not think Plaintiff would make it

through the probationary time due to marginal work and terrible attendance. Tr. 237:11-

20.

52. Ms. Beard kept detailed records regarding Plaintiffs job attendance and conduct during

her time as acting supervisor. DE 8, 9, 10, and 11.

53. Ms. Beard’s records indicate that Plaintiff consistently arrived later than 10:00 a.m. and

left before completing a full 8-hour shift. DE 7; DE 16.

54. On August 22, 2013, Ms. Beard specifically requested Plaintiff to arrive by 9:30 a.m. for a

special event, the “Family Fun Installation-Wide Picnic”; Plaintiff showed up late, arriving

at 10:30 a.m. Tr. 94:21-25; Tr. 162:1-2; DE 5; DE 8; DE 9.

Pa172

Page 9 a' pn PageUp r?42

Case l:19-cv-00281-RBK-AMD Dp. j -a

55. On August 30, 2013, Plaintiff amved for work several hours after 10:00 a.m. with no

advance notice or communication. Tr. 239:10-14; DE 12.

56. Ms. Beard consulted with Mr. Dunn as to how to respond to Plaintiffs late arrival, and Mr.

Dunn instructed her that Plaintiff was considered absent without official leave (“AWOL”)

and should be sent home upon arrival. Tr. 240:9-13; DE 12.

57. Ms. Beard spoke with Plaintiff, and, in accordance with Mr. Dunn’s instructions, sent him

home for the day. Tr. 240:9-16; DE 12.

Plaintiff’s Interactions with Coworkers

58. On August 22, 2013, there was a major event on the base called the “Family Fun

Installation-Wide Picnic.” DE 9.

59. Plaintiff was tasked with assisting the rest of the marketing team with this event. Tr. 162:818.

60. Ms. Beard was the supervisor of the event. Tr. 94:9-14; Tr. 158:3-18; Tr. 234:23-25.

61. Ms. Beard wrote a report shortly after the event concluded in which she described

Plaintiffs conduct at the event. DE 9.

62. In the report, Ms. Beard notes that Plaintiff was late, reluctant to help, quick to complain,

and generally unreliable at the event. DE 9.

63. Ms. Beard testified that there was nothing positive to note about Plaintiffs conduct in the

report. Tr. 164:2-14.

64. Although she asked Plaintiff to gather customer surveys, Ms. Beard ultimately concluded

that Plaintiff “didn’t (doesn’t) have the right attitude” to successfully interact with others.

DE 9.

Pa173

Case l:19-cv-00281-RBK-AMD Document 8Y Filed 08/04/22 Page 10 of 20 PagelD: 1743

65. After the event, Ms. Beard “beggjed] [Mr. Dunn] to remove [Plaintiff] from the Marketing

Office as soon as possible” in the report dated August 23, 2013. DE 9.

66. Ms. Beard testified that Plaintiff avoided doing his work duties and was quick to complain,

but he was eager to disrupt others working on matters outside of his duties that interested

him personally. Tr. 167:4-168:6; 201:4-202:16.

Plaintiff’s Disputes over Timesheets and Hourly Compensation

67. On August 23, 2013, Plaintiff received his biweekly paycheck for the hours he worked

from August 4 through August 17. D3.

68. His total hours for the pay period were calculated as 75.50, instead of a full 80 hours. D22

at DAG 001212.

69. Additionally, 2.75 hours were paid at a lower rate of $1.80 per hour. D22 at DAG 001212.

70. Plaintiff went directly to Human Resources to request a correction and to request additional

wages to be paid to him. Tr. 14:23-25; Tr. 15:1-4.

71. The Human Resources Officer complied with Plaintiffs request and issued him a check

for his additional claimed wages, which included paying Plaintiff his usual $ 18 rate for the

2.75 hours. Tr. 15:5-6.

72. He was additionally given $98 on the basis that he claimed to have worked 80 hours, not

75.50. Tr. 15:5-6.

73. When Mr. Dunn returned from leave, he became aware of the check issued to Plaintiff by

Human Resources. Tr. 309:7-19.

74. Mr. Dunn informed Human Resources that Plaintiff had not worked 80 hours and was not

due the extra $98 he was given.

Pa174

Case l:19-cv-00281-RBK-AMD Document 87 Filed 08/04/22 Page 11 of 20 PageiD: 1744

75. The log kept by Ms. Beard shows that Plaintiff worked fewer than 75.50 hours in the

relevant pay period. DE 7, 16.

76. Human Resources therefore deducted the $98 from Plaintiffs next check. DE 22 at DAG

001213.

77. On September 3, 2013, Plaintiff confronted Mr. Dunn about his concern that he was being

underpaid. Mr. Dunn again explained to Plaintiff that, as an hourly employee, Plaintiff

would only be paid for the hours he worked. Mr. Dunn reminded Plaintiff to abide by his

set arrival and departure times, to work a full 8-hour shift, and to check in so Mr. Dunn

knew where he was. DE 14.

78. On September 6,2013, Plaintiff received his paycheck for the hours worked on August 1831. DE 22 at DAG 001213.

79. He was upset to find that money he believed he was owed had been deducted. Plaintiffs

paystub reflected 0 hours worked during the week of August 18-24 and only 26 hours

worked during the week of August 25-31. DE 21 at 21-22.

80. Because Plaintiff had not submitted a timesheet for August 18-24, he had been declared

AWOL for that week in accordance with applicable payroll rules. DE 21 at 21.

81. Plaintiff had arrived to work after 1:00 p.m. on August 30, and he had been declared

AWOL and sent home when he did finally arrive at work that day. Tr. 368:4-7; DE 5, 12.

82. Plaintiff had only worked 6 hours per day on August 27, 28, and 29. DE 21 at 23 (showing

8 hours of sick leave on 8/27/2013 and 6 hours of sick leave on 8/28/2013 and 8/29/2013).

83. 83. Mr. Dunn approved 40 hours’ wages for the week of August 18 to 24 after plaintiff

informed him that he believed he was underpaid for that period. DE 13.

Pa175

Case 1:19-CV-00281-R BK-AMD Doc; -reset ST' Diferi :m'AQ2. Page 12 of 20 PageiD: 1745

84. Nonetheless, Ms. Beard’s log indicated that Plaintiff had not worked full shifts or that he

accumulated 40 hours during the week of August 18 to 24. DE 7, 16; Tr. 142:20-21.

85. Plaintiffs wages for the week of August 25 to 31 remained calculated at 26 hours. DE 21

at 23, DAG 001198; DE 22 at 11, DAG 001213.

Other Events Preceding Plaintiff’s Termination

86. In the first week of August 2013, Mr. Dunn approached Ms. Sandra McKay, a Human

Resources Officer, to seek guidance on terminating Plaintiff during his probationary

period. Tr. 237:11-25; Tr. 335:21-24.

87. At the end of August 2013, while Mr. Dunn was on vacation, Ms. Beard recommended

terminating Plaintiffs employment in a memo to Mr. Dunn. DE 9, DAG 000034.

88. Some time before September 3, 2013, Mr. Dunn decided to terminate Plaintiffs

employment. Tr. 242: 2-4; Tr. 294:19-20.

89. On September 5, 2013, Mr. Dunn began drafting a document necessary for effectuating

Plaintiffs termination of employment. Tr. 242:2-4; Tr. 294:19-20.

90. On September 6, 2013, Plaintiff had a conversation with Mr. Dunn. Plaintiff surreptitiously

recorded part of this conversation. Tr. 32:17-18; Tr. 243:2-3.

91. In this conversation, which occurred after Plaintiff received his paycheck, Plaintiff believed

that he had been underpaid. Tr. 35:14-19; Tr. 243:7.

92. As captured on Plaintiffs surreptitious recording of the conversation, Plaintiff raised his

voice to Mr. Dunn and stated the following: stating “I worked for you—I worked the hours!

You owe me the hours! I gotta get paid for them, okay? And if this doesn’t get fixed, I’m

going to file a formal grievance against you and against Mika. Because I’m tired of being

Pa176

Case l:19-cv-00281-RBK-AMD Documents/' rise 08/G4/22 Page 13 of 20 PagelD: 1746

treated like crap! I’m tired of being the low man on the totem pole! You can’t jerk me

around with my damn hours here! This is what I was . ..Tr. 35:14-19.

93. During this encounter with Mr. Dunn, Plaintiff threatened to file an unspecified grievance

regarding his pay issue. Tr. 35:16-17.

94. Mr. Dunn appears to say in the recording: “We’re done. Goodbye. Go back to work or do

whatever you want to do. We’re done. Nobody threatens me; nobody threatens anybody

on my staff, ever. We’re done. We’re done. I’ll look into it; that’s the best promise I’m

going to give you. Other than that, we’re done. We’re done now.” Tr. 35:22-25; Tr. 36:1-

95. Prior to September 2013, Mr. Dunn had never terminated one of his employees. Tr. 241:1315.

96. Mr. Dunn emailed a formal request to terminate Plaintiffs employment to Human

Resources on September 6, 2013. Tr. 244:15-19; DE 5, DAG 000695.

97. Plaintiff contacted the EEO Office and initiated an informal EEO complaint on September

10, 2013, naming Mr. Dunn and Ms. Beard as the responsible management officials. Tr.

22:23-25; Tr. 23:1-11.

98. On September 12, 2013, Plaintiff received a written memorandum, signed by Mr. Dunn,

notifying Plaintiff of the termination during his probationary period.

99. The memorandum informed Plaintiff that his termination was effective the next day. Tr.

23:12-14; JE 2.

100.

The memorandum advising Plaintiff of his termination stated the following as

reasons for Plaintiffs termination:

Pa177

Case l:19-cv-00281-RBK-AMD Document 87 Filed 08/04/22 Page 14 of 20 PagelD: 1747

a. On 30 August 2013 [Plaintiff] w[as] marked as AWOL, preferring to show up at

1339 instead of [his] 1000 scheduled time for work.

b. On 22 August 2013 [Plaintiff] w[as] directed to a special duty assignment at the

Installation Family Fun Fest. [Plaintiff] arrived one hour late.

c. [Plaintiff] h[as] demonstrated a pattern of failing to notify any team member when

arriving to work for the day, or leaving/retuming from an appointment. [Mr. Dunn]

instructed the entire staff to not abandon the office in our staff meetings on 5 May

[20]13 and 2 August [20] 13. This practice is unacceptable and [Plaintiff] must

ensure [his] accountability at all times, however, [he] h[as] continued to disregard

[Mi-. Dunn’s] instruction and [Plaintiff has] not informed a co-worker of [his]

whereabouts during the work day.

d. [Plaintiff] do[es] not work well w[i]th fellow team members; [Plaintiff] complain[s]

if [he] is not asked to help and argue or resist when [he] [is]. JE 2.

101.

Each of the four stated reasons for Plaintiffs termination is supported by evidence.

102.

On August 30, 2013, Ms. Beard declared Plaintiff AWOL after he showed up at

1339, instead of his 1000 scheduled start time for work. DE 16.

103.

On August 22, 2013, Plaintiff arrived one hour late to his special duty assignment

at the Installation Family Fun Fest. DE 8; Tr. 162:1 -3.

104.

Despite Mr. Dunn’s instructions to the staff in May and August 2013 to not abandon

the office and to notify team members of their whereabouts and maintain accountability,

Plaintiff continued to disregard these instructions. Tr. 233:1-25; 234:1-4; 297:25-300:11;

DE 17.

105.

Plaintiff was argumentative about assignments. Tr. 168:14-22.

Pa178

Case l:19-cv-00281-RBK-AMD Document 8/ Filed 0b>'04/22 Page 15 of 20 PagelD: 1748

106.

During Plaintiffs probationary period, Plaintiff failed to demonstrate that he

possessed the skills or character traits necessary for satisfactory performance in his position

as a Visual Information Specialist for the 87th Force Support Squadron, Marketing

Department, at Joint Base McGuire Dix Lakehurst. DE 5 at DAG 000694.

107.

Plaintiff was not able to meet the performance standards of: completing work as

assigned, establishing deadlines, performing work in a timely manner to the standards set

for the objective, courtesy, professional appearance and demeanor, exercising tact and

diplomacy when dealing with both internal and external customers and co-workers,

dependability, and reliability. Tr. 226:25-227:10.

108.

The memorandum signed by Mr. Dunn advising Plaintiff of this termination

documented the reasons why Plaintiff failed to demonstrate, during his probationary

period, that he possessed the skills or character traits necessary for satisfactory performance

in his position. JE 2.

109.

The reasons for Plaintiffs termination were legitimate, nondiscriminatory, and not

retaliatory. DE 5.

110.

Mr. Dunn decided to terminate Plaintiffs probationary employment prior to

Plaintiffs announcement that he planned to file a grievance.

111.

Any protected activity engaged in by Plaintiff under the Rehabilitation Act was

unconnected to the decision to terminate his employment.

112.

No evidence indicates that the legitimate non-retaliatory reasons for terminating

Plaintiffs employment were a pretext for retaliation.

113.

The Court finds Plaintiffs testimony is generally not credible.

Pa179

Case l:19-cv-00281-RBK-AMD Document 87 Filed 08/04/22 Page 16 of 20 PagelD: 1749

Plaintiff’s Wage Loss Claim

114.

Plaintiff testified that he is owed $'273.22 in back pay. Tr. 63:24-67:7.

115.

Plaintiff had problems coming to work on time and staying for a full day, and his

absence became more noticeable beginning in July 2013. Tr. 157:1-12.

Throughout July and August of 2013, Plaintiff frequently arrived late and left early,

116.

working short of his scheduled eight-hour days with an unpaid lunch break. DE 7.

117.

Plaintiff did not put forth any evidence of hours when he was working without pay.

118.

Plaintiffs testimony that he is owed $273.22 is not supported by evidence of unpaid

hours worked and therefore is not credible.

119.

Ms. Christie Ford, the current NAF Human Resources Officer, credibly testified

that there was only one pay period where Plaintiff did not receive a full 80 hours of pay for

a two-week pay period. Tr. 127:15-9; 143:4-9.

120.

In that pay period where Plaintiff was not paid for a full 80 hours of pay for a two-

week pay period, he was paid for 74 hours of work. Tr. 143:10-144:10.

121.

Ms. Ford created a payroll record of Plaintiff. Tr. 133:20-135:3; DE 21.

122.

Ms. Ford created a spreadsheet depicting Plaintiffs timesheets and earnings that

was admitted into evidence at Defense Exhibit 22. Tr. 138:10-139:13; DE 22.

B. Conclusions of Law

1. Plaintiff proceeds to trial on a claim of retaliatory discharge under the Rehabilitation Act

of 1973,29 U.S.C. §§791 et seq. and a wage claim under the Little Tucker Act, 28 U.S.C.

§§ 1346(a)(2).

Retaliatory Discharge

Pa180

Case l:19-cv-00281-RBK-AMD Document 87 '.-'fed C8/G4/22 Page 1/' of 20 Page ID: 1750

2. The Court has jurisdiction over this employment discrimination matter under 28 U.S.C. §

1331 and 29 U.S.C. § 791(f) (incorporating ADA retaliation standard, 42 U.S.C. §

12203(a)).

3. Plaintiff has the burden of proof under the Rehabilitation Act to demonstrate by a

preponderance of the evidence that there is a “but-for” causal connection between the

adverse employment action and the retaliatory animus. See Carvalho-Grevious v.

Delaware State Univ., 851 F.3d 249, 260 (3d Cir. 2017).

4. In evaluating these claims, the Third Circuit has noted that “the timing of the alleged

retaliatory action must be ‘unusually suggestive’ of a retaliatory motive before a causal

link will be inferred.” Kronse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997).

5. There also must be more than temporal proximity between the protected activity and the

termination. Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d Cir. 2003).

6. The Third Circuit analyzes retaliation claims uses the McDonnell Douglas burden-shifting

framework used in cases brought under the ADA, 42 U.S.C. §§ 12101, et seq, for

Rehabilitation Act claims. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);

Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007).

7. Under this burden shifting framework, to establish a prima facie case of retaliation under

the Rehabilitation Act, the Plaintiff must show that: (1) he engaged in protected activity;

(2) he suffered a materially adverse action; and (3) there is a causal connection between

the adverse action and the protected activity. Fogelman v. Mercy Hosp., Inc., 283 F.3d 561,

567 (3d Cir. 2002).

8. Under this burden-shifting approach, Plaintiff has the initial burden to make a prima facie

showing of discrimination, and the burden then “shifts to the employer to articulate some

Pa181

Case l:19-cv-00281-RBK-AMD Document 87 Rtea mmi?2 Page 18 of 20 PagelD: 1751

legitimate, nondiscriminatory reason for the employment action.” Wishkin, 476 F.3d at 185

(citing McDonnell Douglas).

9. If there is enough evidence to find a prima facie case, the employer’s burden is still fairly

light as it only needs to articulate any legitimate reason for the employee’s termination to

meet its burden. Shellenberger, 318 F.3d at 189.

10. Further, even if there is a short amount of time between the plaintiffs protected conduct,

the complaint, and the tennination of the plaintiff, the plaintiff still has to prove sufficient

evidence of retaliatory animus and that their employer knew about the plaintiffs

discrimination complaint before their termination proceedings began. See, e.g., Krouse v.

Am. Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997); Drwal. v. Borough ofW. View,

Pa., 617 F. Supp. 2d 397, 422-23 (W.D. Pa. 2009) (finding that a police officer claiming

ADA retaliation did not have enough evidence to prove that the police chief knew about

the officer’s discrimination complaint before the officer was terminated). Overall, there

must be a causal link between the discriminatory conduct and the employee’s job

termination.

11. The Third Circuit applies the “but for” causation test under Title VII retaliation cases where

the statutory framework uses the term “because.” DiFiore v. CSL Behring, LLC, 879 F.3d

71, 78 (3d Cir. 2018); see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009);

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013). As such, the appropriate burden

of proof for the causal connection is the “but for” causation test.

12. Plaintiff has not met his burden of establishing, by a preponderance of the evidence, a

prima facie case of prohibited retaliation under the Rehabilitation Act.

Pa182

Case 1:19-cv-00281-RBK-AMD Document 87 Filed 08/04/22 Page 19 of 20 PagelD: 1752

13. Mr. Dunn began the process of terminating Plaintiff in early August (Tr. 237:11-25; Tr.

335:21-24) and Mr. Dunn’s supervisor inquired in August whether the supervisor’s

assistance was necessary in removing Plaintiff (DE 10 at DAG 000037), which pre-dated

Plaintiffs filing of an EEOC complaint.

14. Plaintiff has not met his burden of establishing, by a preponderance of the evidence, that

his notice of intent to file a grievance was the but-for cause of his termination.

15. Plaintiff has not met his burden of establishing, by a preponderance of the evidence, that

Defendant’s legitimate non-retaliatory reasons for terminating his employment were a

pretext for retaliation.

16. The memorandum advising Plaintiff of his termination stated the following as reasons for

Plaintiffs termination: being absent without leave on August 30, 2013; arriving late to the

special duty assignment on August 22; office abandonment; not working well with fellow

team members. JE 2.

17. Each of the four stated reasons for Plaintiffs termination is supported by evidence.

18. On August 30,2013, Ms. Beard declared Plaintiff AWOL after he showed up at 1:39 p.m.,

instead of his 10:00 a.m. scheduled start time. DE 16.

19. On August 22, 2013, Plaintiff arrived one hour late to his special duty assignment at the

Installation Family Fun Fest. DE 8; Tr. 162:1-3.

20. Plaintiff did not abide by Mr. Dunn’s instructions to the staff in May and August 2013 to

not abandon the office and to notify team members of their whereabouts when leaving. Tr.

233:1-25; 234:1-4; 297:25-300:11; DE 17.

21. Plaintiff has not met his burden of establishing, by a preponderance of the evidence, that

Defendant acted with retaliatory animus.

Pa183

Case 1:19-CV-00281-RBK-AMD Documents? Filed 08/04/22 Page 20 of 20 PagelD: 1753

Unpaid Wages

22. The Court has jurisdiction over Plaintiffs claim for unpaid wages under the Little Tucker

Act, 28 U.S.C. § 1346(a)(2), 1491.

23. The Little Tucker Act provides a limited waiver of sovereign immunity for certain

contractual and non-contractual claims asserting the government is responsible for paying

a plaintiff, where the sum at issue is less than $10,000. 28 U.S.C. §§ 1346(a); 1491.

24. Because Plaintiff seeks $273.22 in unpaid wages, the Little Tucker Act provides Plaintiffs

limited waiver of sovereign immunity for this Court to have jurisdiction.

25. Plaintiff has not met his burden of establishing, by a preponderance of the evidence, that

he was not compensated for hours he in fact worked.

/s/ Robert B. Kugler

ROBERT B. KUGLER

United States District Judge

Dated: August 4, 2022

Pa184

Case l:19-cv-00281-RBK-AMD Document 88 Filed 08/04/22 Page 1 of 1 PagelD: 1754

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

STEVEN D’AGOSTINO,

Plaintiff,

Civil No. 19-281 (RBK/AMD)

Order

FRANK KENDALL, SEC’Y OF THE

AIR FORCE,

Defendant.

ROBERT B. KUGLER, United States District Judge:

THIS MATTER comes before the Court upon the bench trial commenced on July 6,2022 and

completed on July 7, 2022; for the reasons expressed in the corresponding Findings of Fact and

Conclusions of Law, it is

HEREBY ORDERED judgment is entered against Plaintiff and in favor of Defendant of no

cause for action.

Dated: August 4, 2022

/s/ Robert B. Kugler

ROBERT B. KUGLER

United States District Judge

Pa185

-it l-iyc .1 or 1. EayeiP: 1755

Case l:19-cv-00281-RBK-AMD

_AO450 (Rev. 5/85)

Judgment in a Civil Case

United States District Court

NEW JERSEY

DISTRICT OF

FOR THE

STEVEN D’AGOSTINO

JUDGMENT IN A CIVIL CASE

Plaintiff

FRANK KENDALL, SECRETARY OF THE

AIR FORCE

Case Number:

19-281 (RBK)(AMD)

Defendant.

Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury

□ has

rendered its verdict.

Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or

X heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that judgment of no cause of action is entered in favor of Defendant Frank

Kendall, Secretary of the Air Force; and against Plaintiff Steven D’Agostino.

Date:

August 4. 2022

s/Robert B. Kugler

United States District Judge

Pa186

Case: 22-2835

Document: 45

Page: 1

Date Filed: 03/21/2024

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 22-2835

STEVEN D’AGOSTINO,

Appellant

SECRETARY UNITED STATES AIR FORCE

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. l:19-cv-00281)

District Judge: Honorable Robert B. Kugler

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 20, 2024

Before: BIBAS, PORTER, and MONTGOMERY-REEVES, Circuit Judges

(Opinion filed: March 21, 2024)

OPINION*

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

Pa188

Case: 22-2835

■t

Document: 45

Page: 2

Date Filed: 03/21/2024

Pro se appellant Steven D’Agostino appeals a judgment entered by the District

Court after a bench trial in his action against his former employer, the Secretary of the

Air Force (the Air Force). We will affirm.

The factual recitation that follows is drawn from the findings made by the District

Court at the conclusion of the bench trial.

D’Agostino was hired to be a “Visual Information Specialist” with the Marketing

Department of the Air Force’s 87th Force Support Squadron, a non-appropriated fund

instrumentality (“NAFI”) located at Joint Base McGuire Dix in Lakehurst, New Jersey.2

. He was subject to a twelve-month probationary period.

D’Agostino told the Air Force at the time of hiring that he suffered from a sleep

disorder. He was permitted to start each workday at 10:00 a.m. rather than the standard

(7:30 a.m.) time. Despite that, D’Agostino exhibited a pattern of arriving late, leaving

early, and being absent from the office during core working hours, all without notice to

■ his team. Not unrelated: There were multiple instances in which the amount of

Insofar as we relate these findings, we have determined that they are not clearly

erroneous. Cf. VICI Racing. LLC v. T-Mobile USA, Inc.. 763 F.3d 273, 282-83 (3d Cir.

2014) (“On appeal from a bench trial, our court reviews a district court’s findings of fact

for clear error and its conclusions of law de novo. * * * ‘To the extent that the District

Court’s conclusions rested on credibility determinations, our review is particularly

deferential.’”) (citations omitted).

2 NAFIs are “established to generate and administer non-appropriated funds for programs

and services contributing to the mental and physical well-being of Department of Defense

personnel and their dependents.” 32 C.F.R. § 756.2(a).

Pa189

Case: 22-2835

Document: 45

Page: 3

Date Filed: 03/21/2024

D’Agostino’s biweekly paycheck differed from the amount he believed he was owed for

the pay period.

Other problems marked D’Agostino’s employment with the Air Force. Once, he

took a government van home without authorization. On another occasion, he left the

department’s website inoperable at the end of the day. Additionally, after a special event .

at the base, a coworker detailed in a report that D’Agostino had been late, reluctant to

help, quick to complain, and generally unreliable.

Roughly halfway through D’Agostino’s probationary period, his supervisor had

seen enough. The supervisor sought guidance from the Human Resources department

about terminating D’Agostino and, the next month, began drafting a document to effect

termination. The following day, D’Agostino confronted his supervisor about an alleged

pay discrepancy and surreptitiously recorded their conversation. During the meeting,

D’Agostino raised his voice and said he would file a grievance if the pay issue was not

fixed. The supervisor subsequently emailed the Human Resources department, requesting

permission to terminate D’Agostino.

Four days after that, D’Agostino filed an EEO complaint. A day later, D’Agostino

received his notice of termination. The notice set forth that D’Agostino was being

terminated due to multiple late arrivals, failing to keep his department apprised of his

whereabouts, and not working well with others.

D’Agostino’s EEO complaint was dismissed by the agency. He then filed in the

District Court a pro se complaint against the Air Force, the U.S. Department of Defense,

the U.S. Army, and several former supervisory employees. D’Agostino raised claims of

Pa 190

Case: 22-2835

Document: 45

Page: 4

Date Filed: 03/21/2024

wrongful termination, discriminatory refusal to rehire, hostile work environment, and

*■ civil conspiracy. D’Agostino also claimed, under unspecified law, that he was owed $273

in unpaid wages (the backpay claim). D’Agostino alleged a causal connection between

the Air Force’s adverse employment actions on the one hand, and his sleep disorder and

filing of an EEO grievance on the other.

Some of D’Agostino’s claims fell prey to a Rule 12(b) motion to dismiss, others to

a motion for summary judgment. Two claims against the Air Force survived to be tested

- at trial: a claim for retaliatory discharge under § 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794 (the § 504 retaliation claim), and the backpay claim. At the close of a bench

trial, the District Court entered judgment in favor of the Air Force, having asserted

jurisdiction over the backpay claim under the Little Tucker Act, 28 U.S.C. § 1346(a)(2).3

D’Agostino appealed.

After the parties filed their briefs, the Clerk of this Court ordered supplemental

briefing on whether the Little Tucker Act deprives this Court of jurisdiction over the

appeal. Cf 28 U.S.C. § 1295(a)(2) (providing that the Federal Circuit “shall have

exclusive jurisdiction” over an appeal from a district court if the “jurisdiction of that

court was based, in whole or in part,” on a non-tax provision of the Little Tucker Act).

The Air Force argued in its supplemental brief that the Federal Circuit has

jurisdiction over this appeal insofar as “the district court’s jurisdiction was based in part

3 The Little Tucker Act gives federal district courts jurisdiction, concurrent with that of

the U.S. Court of Federal Claims, over federal-law claims seeking $10,000 or less in

damages against the United States.

Pa191

Case: 22-2835

Document: 45

Page: 5

Date Filed: 03/21/2024

on the Little Tucker Act.” Doc. 40 at 5. D’Agostino, meanwhile, opined that it is not

clear where appellate jurisdiction lies, though he “lean[s] toward” the Federal Circuit.

Doc. 41 at 5. At the same time, D’Agostino stands by his position “that the Tucker Act

should not have been involved, because I had never pleaded my cause of action for the

unpaid wages as a breach of contract.” Doc. 41 at 4.

II.

Whether we can exercise jurisdiction here depends on whether the District Court’s

exercise of Little Tucker Act jurisdiction was proper. If it was, we must transfer the

appeal to the Federal Circuit. See 28 U.S.C. § 1295(a)(2); Bedrosian v. IRS. 912 F.3d

144, 150 (3d Cir. 2018). If it was not proper, we can resolve this appeal on the merits.

We have jurisdiction to decide this question of our and the District Court’s

jurisdiction. See Zum Indus.. LLC v. Allstate Ins. Co.. 75 F.4th 321, 326 (3d Cir. 2023)

(“We always have jurisdiction to determine our own jurisdiction.”); Smith v. Orr. 855

F.2d 1544, 1547 (Fed. Cir. 1988) (“Congress, pursuant to 28 U.S.C. § 1295, did not

remove the power from all other circuits to decide for themselves whether jurisdiction of

the district courts in given cases was based on the Little Tucker Act.”). After setting forth

general principles governing our inquiry, we assess whether there is a viable connection

between D’Agostino’s backpay claim and a source of federal substantive law, ultimately

concluding that there is not. The consequence of that conclusion is a determination that

the Little Tucker Act did not provide the District Court with a means to exercise

jurisdiction over the backpay claim.

Pa 192

Case: 22-2835

Document: 45

Page: 6

Date Filed: 03/21/2024

To start: The Little Tucker Act effects a waiver of the immunity from suit

generally enjoyed by the United States, see FDIC v. Meyer, 510 U.S. 471, 475 (1994), in

the case of federal-law claims for which $10,000 or less in damages is sought, see 28

!L.

U.S.C. § 1346(a)(2) (predicating Little Tucker Act jurisdiction on claimed violations of

• “the Constitution, or any Act of Congress, or any regulation of an executive department,

or .. . any express or implied contract with the United States”)- The Little Tucker Act

does not itself create a private right of action. See United States v. Mitchell, 463 U.S.

206, 216-17 (1983). So a separate source of federal law must be identified. See United

States v. Testan. 424 U.S. 392, 398 (1976).

In locating that source of law in D’Agostino’s case, we are not bound by the

parties’ characterizations of the backpay claim below. See Chandler v. U.S. Air Force,

' 272 F.3d 527, 529 (8th Cir. 2001); cfi Hahn v. United States. 757 F.2d 581, 587 (3d Cir.

1985) (“We may, on appeal, consider whether jurisdiction was proper on grounds—such

as the Tucker Act—not asserted below.”).4 That said, we have considered the three

D’Agostino’s operative pleading did not tie his backpay claim to a body of substantive

law; it asserted instead that the action was predicated on violations of, inter alia,

“common law, both tort and contract.” DC ECF No. 10 at 1. Early on in the litigation,

though, there appeared to be a consensus forming around New Jersey state law as the

source of substantive law animating the backpay claim. For example, in denying the Air

Force summary judgment on that claim, the District Court said this: “Plaintiff seeks

recompense for hours he purportedly worked without pay. The parties appear to agree

that this claim falls under New Jersey state law.” DC ECF No. 42 at 24. Things changed

when trial drew near and the Air Force, looking to strike D’Agostino’s jury demand,

argued that the backpay claim was “more appropriately characterized as a [federal-law]

breach of contract [claim] arising from his terms and conditions of his employment as set

forth in” an Air Force procedural manual. DC ECF No. 50 at 6. D’Agostino argued in

response that he could “recover my unpaid wages under either N.J. state law, which this

Court would have supplemental / pendent jurisdiction to hear, and/or also under the Fair

Pa193

Case: 22-2835

Document: 45

Page: 7

Date Filed: 03/21/2024

possible ways to situate the backpay claim in federal substantive law (and the Little

Tucker Act as a result) that the parties and District Court have heretofore identified: (1)

supplemental jurisdiction under 28 U.S.C. § 1367; (2) the Fair Labor Standards Act, 29

U.S.C. § 201 et seq.; and (3) breach of contract, with the contract being the Air Force

' Manual 34-310 (the Manual).5 Ultimately, none of these ways supports a viable

construction of the backpay claim.

Initially, D’Agostino’s reliance on § 1367 can be dismissed out of hand.

Supplemental jurisdiction does not transform state-law claims into federal ones, including

for purposes of the Little Tucker Act. See Pershing Div. of Donaldson. Lufkin & Jenrette

Sec. Corp. v. United States. 22 F.3d 741, 744 (7th Cir. 1994) (agreeing with “cases from

' other circuits”—including our decision in Hahn, supra—“which found that an express

limitation embodied in the Tucker Act cannot be overcome by supplemental

jurisdiction”): see also Dia Nav. Co. v. Pomeroy. 34 F.3d 1255, 1267 (3d Cir. 1994).

Also unavailing is D’Agostino’s reliance on the FLSA. For jurisdiction under the

Little Tucker Act to be permissible under the FLSA route, D’Agostino would have had to

make a “nonfrivolous assertion” that he is “within the class of plaintiffs entitled to

recover” under that law. Jan’s Helicopter Serv., Inc, v. FAA. 525 F.3d 1299, 1307 (Fed.

Labor Standards Act (FLSA).” DC ECF No. 60 at 3 (internal citations omitted). The

District Court agreed with the Air Force “that the unspecified unpaid wages claim is best

understood as a contract claim for which the government waives its sovereign immunity

under the Little Tucker Act.” DC ECF No. 87 at 2.

5 The Manual has been described as establishing “the procedures for managing and

administering employees of [NAFIs], which includes civilian employees.” Kelsey v.

Donley. DC Civ. No. 09-cv-21125, 2010 WL 1768577, at *3 (S.D. Fla. May 4, 2010).

Pa 194

Case: 22-2835

Document: 45

Page: 8

Date Filed: 03/21/2024

Cir. 2008); see also Solano v. United States. 164 Fed. Cl. 792, 796 (Feb. 28, 2023). But

■ he could not have done so, because ordinary claims for back wages are indisputably noncognizable. See Davis v. Abington Mem’l Hosp.. 765 F.3d 236, 244 (3d Cir. 2014).

The Manual, relied on by the Air Force and the District Court, requires only

; slightly greater attention. It is presumed that federal employees are appointed, rather than

. contracted with, by the Government. See Chu v. United States. 773 F.2d 1226, 1229

(Fed. Cir. 1985) (observing the “well-established principle that, absent specific

legislation, federal employees derive the benefits and emoluments of their positions from

appointment rather than from any contractual or quasi-contractual relationship with the

government.”); see also Kizas v. Webster. 707 F.2d 524, 538 (D.C. Cir. 1983). The

appointment/contract distinction may be dispositive of the jurisdictional issue insofar as

an appointed employee in the usual circumstance does not have an employment contract

with the Government, and thus does not possess a contract-based cause of action covered

by the Little Tucker Act. See, e.g.. Army & Air Force Exch. Serv. v. Sheehan, 456 U.S.

728, 739—41 (1982) (denying Tucker Act jurisdiction over appointed Army employee’s

breach of contract claim); United States v. Hopkins. 427 U.S. 123, 129-30 (1976) (per

curiam) (holding that Tucker Act confers no jurisdiction over appointed civilian Army

employee’s claim for breach of employment contract); cf Shaw v. United States. 640

F.2d 1254, 1260 (Ct. Cl. 1981) (“Plaintiff may not base his theory of recovery on contract

law since he was a federal employee.”).

D’Agostino does not attempt to direct our attention to any evidence or statute or

regulation indicating that his employment with the Air Force was rooted in contract

Pa195

Case: 22-2835

Document: 45

Page: 9

Date Filed: 03/21/2024

‘ rather than appointment. The Air Force and the District Court cited the Manual as

supporting the notion that D’Agostino had a contractual relationship with the Air Force,

but the Manual does no such thing. Rather, the Manual makes clear many times over that

■ the typical NAF employee like D’Agostino is appointed to his position, see, e.g., Supp.

’ App. 447-50, 490 (§§ 1.4, 1.5, 1.7.1, 4.3.6), most notably by describing his employment

status with reference to 5 U.S.C. § 2105(c)(1) (providing that NAF personnel are

“employee[s]” under 5 U.S.C. § 2105(a)—i.e., they are “appointed in the civil service”—

with the qualification that they are not subject to many of “the laws administered by the

Office of Personnel Management”).

For all of those reasons, it was error for the District Court to exercise Little Tucker

Jurisdiction over the backpay claim. The claim should have instead been construed as one

arising under New Jersey’s wage-and-hour regime, see, e.g., N.J. Stat. Ann. § 34:11-4.1

et seq.: N.J. Stat. Ann. § 34:1 l-56a etseg.,—as it had been for a good chunk of the

litigation—and dismissed on grounds of sovereign immunity. On that alternative ground,

■ the District Court’s dismissal of the backpay claim will be affirmed.

III.

With our appellate jurisdiction under 28 U.S.C. § 1291 secure, we now turn to the

merits of D’Agostino’s appeal. And, preliminarily, we must observe that D’Agostino has

forfeited a number of merits issues by presenting them only in a cursory manner,

including instances in which he merely references filings in the District Court. See Fed.

R. App. P. 28(a); Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993): see also Laborers’

Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d

Pa 196

Case: 22-2835

Document: 45

Page: 10

Date Filed: 03/21/2024

Cir. 1994) (stating that parties forfeit review of issues by making only passing reference

to the issues in their opening briefs); United States v. Gonzalez, 905 F.3d 165, 206 n.18

(3d Cir. 2018) (noting that mere reference to district court documents does not equate to

properly raising an issue on appeal). Nevertheless, we have reviewed the record and are

satisfied that D’Agostino’s arguments on appeal all lack merit, for substantially the

reasons given in the District Court’s various opinions. We elaborate only as follows.

First, we discern no error in the District Court’s case-management rulings. For

example, we agree that the Air Force’s cross motion for summary judgment was timely

because it was filed by the District Court-imposed deadline for dispositive motions and

served on D’Agostino afterward, which, contraiy to his argument, was consistent with

Fed. R. Civ. P. 5(d). See Fed. R. Civ. P. 5(d) advisory committee’s note to 2018

amendment (clarifying that “it is proper to file a paper before it is served”). In addition,

the District Court’s decision to terminate both parties’ initial summary judgment motions

and reset the motion schedule was squarely within its discretion; ensuring a complete

record for resolution of the motions, moreover, did not prejudice either party. See Fed. R.

Civ. P. 56(e); see also In re Fine Paper Antitrust Litig.. 685 F.2d 810, 817-18 (3d Cir.

1982) (according district courts great deference on matters of case management and

deeming interference appropriate only upon the clearest showing of actual and substantial

prejudice).

Additionally, we discern no error in the District Court’s decision to grant summary

judgment to the Air Force on D’Agostino’s hostile-work-environment claim.

D’Agostino’s evidence of his coworkers’ slights—allegedly ignoring his birthday,

Pa197

Case: 22-2835

Document: 45

Page: 11

Date Filed: 03/21/2024

excluding him from social conversations, not saying hello or “god bless you” to him, and

so forth—do not come close to constituting intimidation, ridicule, or insult that is so

severe or pervasive that it created an objectively abusive workplace. See Harris v.

i; Forklift Svst.. Inc.. 510 U.S. 17, 21 (1993).

We also discern no error in the District Court’s decision to conduct a bench trial

on D’Agostino’s retaliation claim under tire Rehabilitation Act.6 The only remedies

available for such claims, see 29 U.S.C. § 794a(a) (incorporating 42 U.S.C. § 2000e5(g)(1)), are equitable in nature, see Israelitt v. Enter. Servs. LLC. 78 F.4th 647, 660 (4th

Cir. 2023) (holding that because § 2000e-5(g)(l) prescribes “only” equitable remedies,

. “ADA-retaliation plaintiffs are not entitled to legal damages.”); Alvarado v. Cajun

Operating Co.. 588 F.3d 1261, 1270 (9th Cir. 2009) (samel: Kramer v. Banc of Am. Sec..

LLC. 355 F.3d 961, 965 (7th Cir. 2004) tsamek cf. Richerson v. Jones. 551 F.2d 918,

926 (3d Cir. 1977). So D’Agostino was not guaranteed a jury trial. See Cox v. Keystone

Carbon Co.. 861 F.2d 390, 392 (3d Cir. 1988) (“Where the particular remedial section in

the statute provides for only equitable remedies then no right to a jury trial exists.”).

Furthermore, and having examined the record as a whole, we conclude that there

is no merit to D’Agostino’s contention-that the District Judge improperly participated in

the bench trial. It was well within the District Judge’s discretion to question witnesses,

: and he did not stray improperly into taking on an advocacy role. See Fed. R. Evid. 614(b)

6 Based on our conclusion above that the District Court lacked jurisdiction under the

Little Tucker Act over the backpay claim, we have no need to decide whether a jury trial

was required for that claim. But the answer to the question seems fairly obvious from the

text of 28 U.S.C. §2402.

Pa198

Case: 22-2835

Document: 45

Page: 12

Date Filed: 03/21/2024

& annotation. Beyond the fact that D’Agostino failed to contemporaneously object in

•

*■.

;; relevant instances, the District Judge’s sporadic interjections and clarifications were

; directed at both parties, did not prejudice either party on balance, and were indicative of a

'l-

permissible search for truth in the context of a bench trial. See United States v. Wilenskv.

v 757 F.2d 594, 597 (3d Cir. 1985) (internal citations omitted) (explaining that the trial

v judge is not forbidden from participating in the conduct of a trial since “a trial is not a

„ contest but a search for the truth so that justice may be properly administered”).

Finally, we discern no error, let alone clear error, in any of the District Court’s

factual findings underpinning its resolution of the § 504-retaliation claim. And because

v those findings confirm that any protected activity D’Agostino engaged in was

unconnected to his termination, the “no cause” verdict was, contrary to D’Agostino’s

- insistence, warranted. See Lauren W. ex rel. Jean W. v. DeFlaminis. 480 F.3d 259, 267

(3d Cir. 2007) (explaining that an element of a § 504-retaliation claim is “that there was a

causal connection between the protected activity and the retaliatory action” and, further,

that “[a] defendant may defeat the claim of retaliation by showing that it would have

taken the same action even if the plaintiff had not engaged in the protected activity”).

Accordingly, for the reasons given above, we will affirm the judgment of the

District Court. D’Agostino’s pending motions are denied.

Pa199

Case: 22-2835

Document: 48

Page: 1

Date Filed: 08/08/2024

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 22-2835

STEVEN D’AGOSTINO,

Appellant

SECRETARY UNITED STATES AIR FORCE

(D. N.J. No. l:19-cv-00281)

SUR PETITION FOR REHEARING

Present: CHAGARES, Chief Judge, JORDAN, HARDIMAN, KRAUSE, RESTREPO,

BIBAS, PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERY-REEVES, and

CHUNG, Circuit Judges

The petition for rehearing filed by appellant in the above-entitled case having been

submitted to the judges who participated in the decision of this Court and to all the other

available circuit judges of the circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing, and a majority of the judges of the

circuit in regular service not having voted for rehearing, the petition for rehearing by the

panel and the Court en banc, is denied.

BY THE COURT,

s/ David J. Porter

Circuit Judge

Date: August 8, 2024

PDB/cc: Steven D’Agostino

All Counsel of Record

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.