Johnny Litman v. Secretary of the Navy, et al

Filing

Opinion issued by court as to Appellant Johnny Lee Litman. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14507
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-00043-WLS
JOHNNY LEE LITMAN,
Plaintiff-Appellant,
versus
SECRETARY, OF THE NAVY,
JOSIE DRISTY,
Department of the Navy, Acquisition & Integrity Office,
in her individual and official capacities,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(July 18, 2017)

Before JULIE CARNES, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:

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Johnny Litman appeals the district court’s dismissal of his complaint in his
discrimination, retaliation, and hostile working environment suit under Title VII of
the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-16, the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the
Rehabilitation Act, 29 U.S.C. § 791. Litman raises several issues on appeal, which
we address in turn. After review,1 we affirm the district court.
I. PROCEDURAL BACKGROUND
Litman is a licensed attorney who is proceeding pro se2 against the Secretary
of the Navy and Josie Dristy, the director of the Navy’s Office of Acquisition and
Integrity (Defendants). Litman filed his first complaint on March 20, 2013, which
the district court explained contained “71 paragraphs encompassing 22 pages and
five counts, with each count incorporating by reference all preceding paragraphs
and all 51 paragraphs of factual allegations.” The district court granted
Defendants’ Motion for a More Definite Statement, holding Litman’s complaint
1

We review de novo the district court’s grant of a motion to dismiss under Fed. R. Civ.
P. 12(b)(6) for failure to state a claim, accepting the allegations in the complaint as true and
construing them in the light most favorable to the plaintiff. Hill v. White, 321 F.3d 1334, 1335
(11th Cir. 2003). We review the district court’s conclusions regarding equitable relief for clear
error. See Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 660 (11th Cir. 1993).
We review a district court’s decision on a motion for judgment on the pleadings de novo,
accepting the allegations in the complaint as true and construing them in the light most favorable
to the plaintiff. Hart v. Hodges, 587 F.3d 1288, 1290 n.1 (11th Cir. 2009). To survive a motion
to dismiss, a complaint must contain sufficient factual matter to make a claim for relief that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint that merely
provides “a formulaic recitation of the elements of a cause of action” is inadequate. Id.
2

Licensed attorneys are not accorded the liberal construction normally given to pro se
litigants. See Olivares v. Martin, 555 F.2d 1192, 1194 n.1 (5th Cir. 1977).
2

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was a “quintessential shotgun pleading requiring a more definite statement.” The
Court then ordered Litman to submit an Amended Complaint setting forth:
(1) which cause or causes of action are asserted against each Defendant; (2) what
factual allegations form the basis of each claim against each Defendant; and (3) the
legal theory upon which he asserts liability against each Defendant, in line with the
factual allegations.
On November 12, 2013, Litman filed an amended complaint that was almost
identical to his first complaint. With a few slight changes, the amended complaint
retained the form and structure the district court earlier described as a shotgun
pleading. His amended complaint prompted Defendants to again move for a more
definite statement, or, in the alternative, for dismissal. Rather than responding to
the Defendants’ motion, Litman filed, without the district court’s leave or
Defendants’ consent, a second amended complaint that again could be described as
a shotgun pleading. On February 21, 2014, the district court granted Dristy’s
Motion to Dismiss Litman’s claims against her in her individual capacity. The
district court also ordered Litman to submit a third amended complaint. Litman
submitted a third amended complaint on March 7, 2014. His third amended
complaint was substantially the same as his second amended complaint except that
Litman added headings for each count, dividing his factual allegations up by count.
He also added a paragraph at the end of each count stating that Defendants’ alleged
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conduct violated the statute or statutes that provided the basis for the count.
Litman also added factual allegations to Count Four under the ADEA and Count
Five under the Rehabilitation Act.
Defendants moved to dismiss Litman’s third amended complaint for failure
to state a claim upon which relief could be granted. The district court granted the
motion in part. It dismissed Litman’s claim of racial discrimination under Title
VII because Litman failed to allege in that count that similarly situated employees
outside his protected class were treated more favorably. It also dismissed Litman’s
claim of retaliation under Title VII and the ADEA because Litman failed to allege
any materially adverse action during or after protected activity or any causal
connection between the protected activity and any materially adverse action. It
dismissed the ADEA and Rehabilitation Act portions of Litman’s hostile work
environment claim for two reasons, because (1) Litman failed to allege in that
count a qualifying age covered by the ADEA or a sufficient disability covered by
the Rehabilitation Act, and (2) Litman failed to allege any harassment based on his
age or disability. Finally, it dismissed Litman’s Rehabilitation Act claim because
Litman failed to plead facts plausibly suggesting that he was disabled.
The district court did not permit Litman another opportunity to amend his
complaint, finding such an amendment would be futile. Litman’s Title VII racebased portion of his hostile work environment claim and his ADEA age
4

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discrimination claim survived the motion to dismiss. Defendants moved for
judgment on the pleadings, arguing Litman failed to timely exhaust his
administrative remedies as to those claims. The district court granted the
Defendants’ motion concluding Litman either pursued administrative remedies too
late or not at all. Thus, it dismissed the rest of Litman’s complaint on that basis.
II. DISCUSSION
A. Title VII Race Discrimination
Litman asserts the district court erred by dismissing his racial discrimination
claims. He asserts he sufficiently pled facts demonstrating that equitable tolling
was warranted or that he should be able to amend his complaint a fourth time.
In order to establish a prima facie case of disparate treatment on the basis of
race under Title VII, a plaintiff must show he (1) is a member of a protected class;
(2) was qualified for the position; (3) suffered an adverse employment action; and
(4) similarly situated employees outside of his protected class were treated more
favorably or that he was replaced by someone outside of his protected class. RiceLamar v. City of Ft. Lauderdale, 232 F.3d 836, 842 (11th Cir. 2000).
The district court did not err in determining that Litman failed to adequately
allege similarly situated employees outside of his protected class were treated more
favorably or that he was replaced by someone who was not African American.
Litman did not allege anywhere in Count One of his third amended complaint that
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employees similarly situated to him were differently treated, and identified no
comparator employees at all. The fact that Litman was the only African-American
employee does not plausibly lead to an inference that other employees there were
similarly situated to him but differently treated. Further, that Litman later alleged
in Count Four that his office hired a younger white attorney to perform his duties
does not matter. The district court had warned Litman against filing a shotgun
pleading and he continued to do so. See Magluta v. Samples, 256 F.3d 1282, 1284
(11th Cir. 2001) (finding quintessential shotgun pleading “completely disregards
Rule 10(b)’s requirement that discrete claims should be plead in separate counts
. . . and is the type of complaint that we have criticized time and time again”
(citation omitted)).
In any case, Litman also failed to exhaust his claim by failing to timely
contact an EEOC counselor. See Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th
Cir. 2008) (explaining a federal employee is required to pursue and exhaust
administrative remedies as a prerequisite to filing suit under Title VII). Litman’s
Title VII discrimination claims rested on two alleged incidents, his suspension “on
or about April 12, 2012,” and the dissemination of a memorandum regarding his
suspension, “on or about May 9, 2012.” However, the EEOC counselor’s report
noted that Litman’s initial contact with the EEOC counselor was July 12, 2012,
more than 45 days after May 9, 2012. Thus, Litman’s Title VII discrimination
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claim was administratively unexhausted. See 29 C.F.R. § 1614.105(a)(1)
(providing a federal employee “must initiate contact with [an EEOC] Counselor
within 45 days of the date of the matter alleged to be discriminatory, or . . . within
45 days of the effective date of the action” to exhaust his remedies).
Additionally, the district court did not clearly err by concluding Litman
failed to demonstrate he warranted equitable tolling. Even if he learned about the
April 12 suspension “several weeks” later, his EEOC complaint would still have
been over 45 days after the dissemination of the memorandum regarding his
suspension on May 9. While Litman alleged there was “much confusion” as to
where and who would handle his initial EEOC complaint, that allegation, without
more, does not demonstrate that Litman was diligent in his actions sufficient to
warrant equitable tolling. See Villarreal v. R. J. Reynolds Tobacco Co., 839 F.3d
958, 971 (11th Cir. 2016) (en banc) (stating a party seeking equitable tolling must
prove “(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing”). 3
B. Title VII and ADEA Retaliation
Litman next contends the district court erred by dismissing his Title VII and
ADEA retaliation claims. To establish a prima facie case of retaliation under Title
3

To the extent Litman argues he should be allowed to amend his complaint a fourth time
to put forward his equitable tolling allegations, we will not consider this argument because he
failed to make it before the district court. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d
1324, 1331 (11th Cir. 2004).
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VII, a plaintiff must allege the following elements: (1) he participated in an activity
protected by Title VII; (2) he suffered an adverse employment action; and (3) there
is a causal connection between the participation in the protected activity and the
adverse action. Pipkins v. City of Temple Terrace, 267 F.3d 1197, 1201 (11th Cir.
2001). A plaintiff establishes a causal connection by proving that the protected
activity and the negative employment action are not completely unrelated. See
Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994). The
elements of a prima facie case for a retaliation claim are the same under both Title
VII and the ADEA. Weeks v. Harden Manufacturing Co., 291 F.3d 1307, 1311
(11th Cir. 2002).
Litman argues he adequately pled retaliation because he experienced racist
comments, received phone calls requesting a white attorney, and observed
luncheons held by the “Sons of Confederacy.” However, Litman failed to include
those factual allegations in support of his retaliation claims in his complaint.
Instead, he referred to them as part of his hostile work environment claims. As a
licensed attorney, Litman’s complaint was not due liberal constructions. See
Olivares, 555 F.2d at 1194 n.1. In any event, those allegations would not have
rendered his complaint sufficient, as Litman failed to connect any of his alleged
harm to his “telephonic opposition” in any way. See Meeks, 15 F.3d at 1021.
Thus, Litman failed to adequately plead Title VII or ADEA retaliation.
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C. Hostile Work Environment
Litman also asserts the district court erred by dismissing his Title VII,
ADEA, and Rehabilitation Act hostile work environment claims.
1. ADEA and Rehabilitation Act
To establish a prima facie case of a hostile work environment, an employee
must prove he belongs to a protected group; he has been subject to unwelcome
harassment; the harassment was based on a protected ground; the harassment was
severe or pervasive enough to alter the terms and conditions of his employment;
and his employer is responsible for the harassment under a theory of vicarious or
direct liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.
2002).
The district court did not err by dismissing Litman’s ADEA and
Rehabilitation Act hostile work environment claims. Litman failed to allege that
any harassment was connected to his age or an alleged disability. See id.
2. Title VII
Prior to filing a Title VII action, a plaintiff first must file a charge of
discrimination with the EEOC. Gregory v. Georgia Dep’t of Human Res., 355
F.3d 1277, 1279 (11th Cir. 2004). “The purpose of this exhaustion requirement is
that the EEOC should have the first opportunity to investigate the alleged
discriminatory practices to permit it to perform its role in obtaining voluntary
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compliance and promoting conciliation efforts.” Id. (quotations omitted). We
have further noted that judicial claims are allowed if they “amplify, clarify, or
more clearly focus” the allegations in the EEOC complaint, but have cautioned that
allegations of new acts of discrimination are inappropriate. Id. at 1279-80. In light
of the purpose of the EEOC exhaustion requirement, a plaintiff’s judicial
complaint is limited by the scope of the EEOC investigation that can reasonably be
expected to grow out of the charge of discrimination. Id. at 1280. Courts are
nonetheless extremely reluctant to allow procedural technicalities to bar claims
brought under Title VII, as such, we have noted that the scope of an EEOC
complaint should not be strictly interpreted. Id.
The district court did not err by dismissing Litman’s Title VII hostile work
environment claims as unexhausted. Litman’s first EEOC complaint contained no
mention of a hostile work environment claim or the alleged events which gave rise
to one. Litman’s second EEOC complaint did not specifically mention a hostile
work environment claim, and only mentioned the removal of his nameplate as
“retaliatory activity.” Litman did not list the racist comments, mugshot incident, or
phone calls in his second EEOC complaint. Though Litman did mention his
hostile work environment claim in his final interview with the EEOC counselor,
the counselor noted “[d]uring the initial interview and informal counseling
aggrieved failed to mention Hostile Work Environment; however, wanted it
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included in his Final Interview. When aggrieved filed his formal complaint, he did
not include Hostile Work Environment.” Though this Court has cautioned against
strictly interpreting the scope of an EEOC complaint, Litman’s failure to mention
his hostile work environment claim and the corresponding factual allegations
would otherwise preclude the EEOC from performing its role in obtaining
voluntary compliance and promoting conciliation efforts on that claim. See id.
Litman’s hostile work environment claim does not “amplify, clarify, or more
clearly focus” his nameplate allegation, as his EEOC complaint listed that
particular factual allegation as “retaliatory activity” as part of his retaliation claim.
As Litman’s hostile work environment claim does not grow out of the claims he
alleged in his second EEOC complaint, the district court did not err in dismissing it
as unexhausted. See id.
D. Rehabilitation Act
Further, Litman contends the district court erred by dismissing his
Rehabilitation Act discrimination claim. The Rehabilitation Act prohibits federal
agencies from discriminating in employment against qualified individuals with
disabilities. 29 U.S.C. § 794(a); Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005). Private actions against federal government employers under the
Rehabilitation Act must satisfy the requirement of exhaustion of administrative

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remedies in the manner prescribed by Title VII. Doe v. Garrett, 903 F.2d 1455,
1461 (11th Cir. 1990).
The district court did not err by dismissing Litman’s Rehabilitation Act
discrimination claim. Litman made no mention of his alleged disability or any
disability discrimination in either of his EEOC complaints. Notably, Litman did
not check the “disability” discrimination box on either of the two forms, did not list
any disability in the space provided, and did not discuss his disability or acts of
discrimination related to a disability in the additional space provided. Thus, his
claim was unexhausted.
III. CONCLUSION
The district court did not err by dismissing Litman’s (1) Title VII
discrimination claim as he failed to adequately plead and timely exhaust his claim;
(2) Title VII and ADEA retaliation claims because he failed to state plausible
claims; (3) Title VII hostile work environment claim as he failed to exhaust his
claim, and ADEA and Rehabilitation Act hostile work environment claims because
he failed to state plausible claims; and (4) Rehabilitation Act discrimination claim
because he failed to exhaust his claim. Accordingly, we affirm the district court.4
AFFIRMED.
4

Additionally, though the district court noted in its judgment that the Secretary “shall
also recover costs,” no order was entered regarding costs, and thus, Litman’s challenge to any
costs awarded is premature. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 195 (2000).
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