Ziegler v. Salazar et al, No. 4:2012cv04042 - Document 61 (D.S.D. 2014)

Court Description: Memorandum Opinion and Order RE: Motion to Dismiss for Lack of Jurisdiction denying 49 Motion to Dismiss for Lack of Jurisdiction; denying 56 Motion for Alternative Action. Signed by U.S. District Judge Lawrence L. Piersol on 10/16/2014. (JLS)

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Ziegler v. Salazar et al Doc. 61 PILBD UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * OCT 162 I 01; * * * CIY. 12-4042 Plaintiff, * vs. * MEMORANDUM OPINION AND * ORDER RE: MOTION TO DISMISS KEN SALAZAR, SECRETARY * FOR LACK OF JURISDICTION DEPARTMENT OF INTERIOR; * PAT RAGSDALE, GOV. Official; * CARL RENVILLE, GOV. official, * * Defendants. * * *************************************************** VICTOR R. ZIEGLER, Defendants have moved to dismiss this case for lack ofjurisdiction (Doc. 49), and Plaintiff Victor R. Ziegler has moved for alternative action (Doc. 56). A jurisdiction motion can be raised at any time so the motion has been considered. This case is properly before this Court. The present case does not concern the enforcement of a payment or some other condition of the Settlement Agreement entered into by Victor Ziegler and the Department ofthe Interior on October 15,2008. Instead, this lawsuit, which was filed after the EEOC issued its right to sue letter on December 7, 2011, deals with the question ofwhether the Settlement Agreement is enforceable to dismiss two ADEA claims of Mr. Ziegler's. One of those claims is Ziegler IL that being a claim "that defendant violated the ADEA by constructively discharging him in April, 1999 and failing to rehire him in June 1999." Ziegler v. Kempthorne, 266 Fed.Appx. 505 (8th Cir. 2008) (per curiam). That claim was dismissed with prejudice in paragraph 11 ofthe Settlement Agreement. A Stipulation for Dismissal with Prejudice in Civ. 04-4098 was signed by Victor Ziegler and Defendants' representatives on October 15, 2008, and a Judgment dismissing the case with prejudice was entered by this Court on November 10,2008. The other ADEA claim which was dismissed with prejudice in paragraph 12 of the Settlement Agreement is Ziegler v. Merit System Protection Board, Fed. Cir. No 2008-3161. That claim involved alleged involuntary resignation and constructive demotion. Dockets.Justia.com For purposes ofthe trial on October 28,2014, the parties should be aware that as was pointed out by the Eighth Circuit in Ziegler v. Kempthorne: We note, however, that the district court record raises the question whether the instant lawsuit was timely filed: it is undisputed that the decision denying the underlying consolidated Equal Employment Opportunity complaint was issued in September 2003, and that the instant lawsuit was not filed until June 2004. See 29 C.F.R. § 1614.407(c) (federal sector complainant should file civil action in appropriate district court within 90 days ofreceipt ofCommissioner's final decision on appeal). Further development of the record is necessary to determine timeliness. Ziegler v. Kempthorne. The parties should also be aware that under 29 U.S.C. § 626(f)(3), "the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary pursuant to paragraph (1) or (2)." The parties should also be aware that 29 U.S.C. § 626(f) is not applicable to this case. However, the requirements ofsubparagraphs (A) through (E) of paragraph (1) of29 U. S.C. § 626(f) must be met and it must also be shown that at a minimum Victor Ziegler was given a reasonable period of time within which to consider the terms of the Settlement Agreement. 29 U.S.C. § 626(f)(2). Accordingly, IT IS HEREBY ORDERED that Defendants' motion to dismiss for lack of jurisdiction (Doc. 49) is denied, and Plaintiffs motion for alternative action (Doc. 56) is denied. Dated this of October, 2014. BY THE COURT: ATTEST: JOSEPH HAAS, CLERK (8 AL) I awrence L. Piersol United States District Judge D PUTY 2

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