Alvio Dominguez, Jr. v. Miami-Dade County , 416 F. App'x 884 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 3, 2011
No. 09-15918 JOHN LEY
CLERK
_______________________
D. C. Docket No. 09-20003-CV-KMM
ALVIO DOMINGUEZ, JR.,
Plaintiff-Counter-
Defendant-Appellant,
versus
MIAMI-DADE COUNTY,
Defendant-Counter-
Claimant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 3, 2011)
Before TJOFLAT, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Alvio Dominguez appeals from an adverse summary judgment on his claims
that his former employer, Miami-Dade County Fire Rescue Department
(“MDFRD”), took numerous employment actions against him and retaliated
against him based on his membership in the Florida Army National Guard in
violation of his rights under the Uniformed Services Employment and
Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301, et seq. He also argues
that the district court erroneously granted summary judgment to MDFRD awarding
it $21,705.00 on its state law counterclaims for civil theft and conversion under §§
772.11 and 775.089(8), Florida Statutes. Having carefully considered the parties’
briefs, the record and after oral argument, we affirm the district court’s summary
judgment.
As to Dominguez’s claims that his rights under USERRA were violated
because of the MDFRD’s decisions to (1) delay or deny him the right to take
missed promotional exams, (2) give him negative evaluations and counseling, (3)
delay promotional pay increases,1 (4) and dock his pay, we find no genuine issues
of material fact disputing that any of these actions were fully remedied or that the
1
As to Dominguez’s claim that he was denied a longevity increase in October 2005, the
district court found that it was undisputed that Dominguez eventually received his retroactive
increase but granted summary judgment to Dominguez as to the interest owed on the retroactive
payment. The parties stipulated to the fact that the amount of interest owed was $225.24, which
amount was subtracted from MDFRD’s recovery of $21.705.00 on its counterclaim and after
accounting for $6,256.86 in restitution that MDFRD already recovered from Dominguez resulted
in the entry of a Final Judgment in favor of MDFRD of $15,222.90.
2
MDFRD’s actions were not on account of his military status. As to his
termination, we find no genuine issue of material fact to support Dominguez’s
claim that the MDRFD terminated him on account of his military status rather than
for the reason given in his Disciplinary Action Report of conduct unbecoming an
employee of the County due to his arrest for grand theft from the Miami-Dade
County’s Tuition Refund Program. Dominguez has not met his burden showing
that there were any similarly-situated employees, not in the military, who received
more favorable treatment than he did regarding the discipline imposed as a result
of the fraudulent receipt of funds through the Tuition Refund Program.
AFFIRMED.
3