Gilliam v. U.S. Department of Veterans Affairs

Filing 38

OPINION AND ORDER granting 25 Defendant's Motion to Dismiss Plaintiff's Amended Complaint. Plaintiff may file a Second Amended Complaint that fixes the pleading deficiencies discussed in this Opinion on or before Wednesday, December 27, 2017. Claims barred by sovereign immunity should not be reasserted. The Court denies without prejudice as moot 26 Plaintiff's Motion for Summary Judgment; 28 Defendant's Motion for Summary Judgment. Signed by Judge John E. Steele on 12/12/2017. (KP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EDWARD LEE GILLIAM,
Plaintiff,
v.

Case No:

2:16-cv-255-FtM-29CM

U.S. DEPARTMENT OF VETERANS
AFFAIRS,
Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Dismiss or for a More Definite Statement (Doc. #25) filed on July
31, 2017 and Plaintiff’s Response in Opposition (Doc. #32) filed
on October 2, 2017.

Also before the Court are the parties’ cross

motions for summary judgment (Docs. ## 26, 28) and the responses
thereto (Doc. #28, 35).

For the reasons set forth below, the

Court grants Defendant’s Motion to Dismiss and denies as moot the
motions for summary judgment.
I.
This case arises out of the 2012 termination of Plaintiff
Edward Lee Gilliam’s employment as a police officer at the Fort
Myers Outpatient Clinic (the Clinic) of the Bay Pines Veterans
Administration (Bay Pines VA).

On February 27, 2017, Plaintiff -

a Protestant, Caucasian male of Northern European descent - filed

a pro se Amended Complaint 1 (Doc. #17) against the United States
Department of Veterans Affairs (Defendant or the VA) alleging
numerous violations of Title VII of The Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., the Fourth Amendment to the United
States Constitution, and 18 U.S.C. § 1001. 2
As

best

the

Court

can

gather

from

the

lengthy

Amended

Complaint and its voluminous attachments, 3 Plaintiff believes that
Bay Pines VA Police Chief Robert Shogren (Chief Shogren) and
Lieutenant Pete Quimby (Lieutenant Quimby) orchestrated a scheme
to

sabotage

Plaintiff’s

career

at

the

VA

by

creating

“a

disciplinary paper trail against [him],” (Doc. #17, p. 41), which
ultimately resulted in termination of Plaintiff’s employment.

The

alleged motive or motives for this scheme are not entirely clear
to the Court, but Plaintiff’s “prior turbulent relationship” with
Lieutenant Quimby” (id. p. 41), Chief Shogren’s “corrupt” nature

1

Plaintiff’s original Complaint was dismissed for failure to pay
the filing fee (Doc. #14), but the Court vacated dismissal and
reopened the case upon payment (Doc. #16). Defendant was served
with the Amended Complaint on June 6, 2017 (Doc. #24-1).
2

This statute criminalizes, in relevant part, “knowingly and
willfully . . . mak[ing] any materially false, fictitious, or
fraudulent statement or representation” in connection with any
governmental matter. 18 U.S.C. § 1001(a)(2).
3

The Amended Complaint, with attachments, is 216 pages. The Court
may consider these attachments in ruling on Defendant’s Motion to
Dismiss without converting the same into a motion for summary
judgment. Solis-Ramirez v. U.S. Dep’t of Justice, 758 F.2d 1426,
1430 (11th Cir. 1985); see also Fed. R. Civ. P. 10(c) (“A copy of
a written instrument that is an exhibit to a pleading is a part of
the pleading for all purposes.”).
- 2 -

(id. p. 6), and Plaintiff’s extra-marital affair with another
Clinic employee,

Lizabeth

Marsh

seemingly all played a part. 4

(Ms.

Marsh)

(id.

pp.

8,

12)

According to Plaintiff, other

individuals were involved in the scheme, including Jeff Marsh (Mr.
Marsh) - Ms. Marsh’s then-husband, 5 Sergeant Walter Slam 6 (Sergeant
Slam), and Officer Ron Testa (Officer Testa).
Plaintiff claims he made several requests to meet with Chief
Shogren to discuss concerns regarding his treatment at the Clinic
– particularly related to his relationship with Ms. Marsh - but
was continually rebuked.

(Id. pp. 16, 18.)

On June 15, 2012,

Plaintiff filed a request for “informal counseling” with an EEOC
Counselor (id.

p. 18), and he met with an EEOC representative on

July 24, 2012.

(Doc. #17-2, p. 18.) On September 13, 2012, EEOC

Counselor Kelley Schafer sent Plaintiff a letter informing him
that his file was being closed and that he had fifteen (15) days
to file a formal complaint.

(Doc. #17, p. 18.)

Plaintiff did not

4

Ms. Marsh worked as a medical support assistant at the Clinic.
(Doc. #17, p. 9.)
5

Plaintiff claims that Mr. Marsh searched his then-wife’s cell
phone and photographed explicit text messages she had exchanged
with Plaintiff, which Mr. Marsh then provided to Clinic personnel.
(Id. p. 16.)
6

Plaintiff’s filings continually refer to Sergeant Slam as “Brad
Slam,” except for Paragraph 14.H.ii of the Amended Complaint (Doc.
#17), which mentions a “Sergeant Walter Slam.” It is not clear
why Plaintiff calls Sergeant Slam “Brad,” but a review of the file
leaves the Court confident that the individual at issue is named
“Walter Slam.” (E.g., Docs. ## 28-22; 28-24, p. 2; 28-30, p. 5.)
- 3 -

do so at that time, but he did attend a mediation session with
Chief Shogren on September 14, 2012.

(Id. p. 16.)

Mediation was unsuccessful and, on September 19, 2012, Chief
Shogren issued Plaintiff a Proposed Removal of Employment letter
(the

Proposed

Removal

Letter),

which

charged

the

following

misconduct: (1) endangering the safety of a supervisor; (2) conduct
unbecoming a police officer; (3) failure to follow supervisory
instructions; and (4) inappropriate conduct in the workplace.

The

first charge relates to an incident in June or July 2012 in which
Plaintiff allegedly placed Sergeant Slam in a chokehold.
#17, p. 22.)

(Doc.

The second charge deals with a heated argument (a

“lover’s quarrel”) between Plaintiff and Ms. Marsh at the Clinic
on April 26, 2012, which was overheard by Officer Testa. 7
14.)

The

third

charge

arises

out

of

Plaintiff’s

(Id. p.

disobeying

Lieutenant Quimby’s order that Plaintiff have no contact with Ms.
Marsh during work hours.

(Id.)

The fourth charge is based on the

allegation that Plaintiff and Ms. Marsh engaged in sexual relations
on VA property on or around November 5, 2011. 8
Plaintiff

submitted

a

written

response

(Id. p. 16.)
to

the

Proposed

Removal Letter and met with Bay Pines VA Director Susanne Klinker
(Director Klinker) on October 12, 2012 to discuss the charges.

7

Officer Testa reported the incident one week later, after which
Plaintiff’s “VA law enforcement authority” was suspended. (Doc.
#17, p. 15.)
8

The evidentiary basis for this charge was, in large part, the
text messages provided by Mr. Marsh.
- 4 -

(Doc. #17-4, pp. 12.)

In a letter dated October 19, 2012, Director

Klinker sustained the four charges and terminated Plaintiff’s
employment, effective October 27, 2012.

(Id. pp. 9-10.)

Plaintiff then filed a “mixed case complaint” with the Merit
Systems

Protection

1614.302(b),

Board

alleging

(Id. pp. 20, 38.)

(MSPB)

pursuant

discrimination

claims

to

29

under

C.F.R.

Title

§

VII. 9

The MSPB held a hearing on April 9, 2014 and

sustained Plaintiff’s termination, finding good cause for the
removal and concluding Plaintiff had failed to show discriminatory
motives underlying the termination.

(Id. pp. 38-39.)

Plaintiff

appealed that decision to the EEOC, which affirmed the MSPB’s
findings on March 2, 2016.

(Id. p. 39.)

This lawsuit followed.

The Court has jurisdiction over Plaintiff’s “mixed” case pursuant
to 5 U.S.C. § 7703(b)(2).

Perry v. Merit Sys. Prot. Bd., 137 S.

Ct. 1975, 1981 (2017); Kloeckner, 568 U.S. at 50.
II.
According to Plaintiff, the events underlying these charges
either never occurred (sex on VA property; the no-contact order)
or were overblown (the private “lover’s quarrel” with Ms. Marsh;
the “playful” chokehold).

He contends that the fact that he was

fired and Ms. Marsh – a Hispanic female – was only suspended for

9

A “mixed case” is one in which a federal employee alleges that
he was subjected to an adverse “personnel action” that was
motivated, at least in part, by discrimination.
Kloeckner v.
Solis, 568 U.S. 41, 44 (2012); Sarhan v. Dep’t of Justice Fed.
Bureau of Prisons, No. 15-13834, --- Fed. App’x ---, 2017 WL
5479450, at *3 (11th Cir. Nov. 15, 2017); 29 C.F.R. § 1614.302.
- 5 -

three days proves that the VA discriminated against him based on
his race, national origin, and gender.

He also (i) claims that

his Fourth Amendment privacy rights were violated when Mr. Marsh
searched Ms. Marsh’s cell phone and seized her text messages and
(ii) believes that, in carrying out the conspiracy to fire him,
various individuals at the VA engaged in criminally fraudulent
behavior, in violation of 18 U.S.C. § 1001.
Defendant has moved to dismiss Plaintiff’s claims.

Defendant

argues that the Fourth Amendment and Section 1001 claims must be
dismissed because the VA, a governmental agency, is protected from
suit by the doctrine of sovereign immunity.

Defendant also claims

that Section 1001 is a criminal statute that provides no private
cause

of

action

discrimination,

to

a

civil

harassment,

litigant.

and

As

retaliation

for

Plaintiff’s

claims,

Defendant

contends that Plaintiff has not alleged the facts necessary to
state actionable claims under Title VII.
Shortly

after

Defendant

filed

the

Motion

to

Dismiss,

Plaintiff filed a four-page document titled “Motion for Summary
Judgment,”

which

contends

that

Plaintiff’s

claims

“can

be

reasonably established on the evidence already provided in [his]
Complaint” (Doc. #26, p. 3), and which also seeks a default on the
ground that Defendant should have answered the Amended Complaint,
not sought to dismiss it.

(See Doc. #32, p. 1.)

Defendant, in

turn, filed a dual Response in Opposition/Cross Motion for Summary
Judgment

reiterating

its

sovereign

- 6 -

immunity

arguments

and

contending that Plaintiff cannot meet the burden of proof required
to sustain his Title VII claims.
Because the Court concludes that dismissal of Plaintiff’s
claims is warranted, and since it is not clear what stage of
discovery the parties are in (or if discovery has even begun 10),
the Court will deny as moot the cross motions for summary judgment.
III.
Federal
requirements

Rule
for

of

Civil

Procedure

complaints

and

8(a)

demands

a

governs
“short

pleading
and

plain

statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8(a)(2).

The United States Supreme

Court has interpreted this language as requiring the complaint to
“raise a right to relief above the speculative level.”
Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Bell Atl.

To do so requires

“enough facts to state a claim to relief that is plausible on its
face.”

Id. at 570.

This plausibility pleading obligation demands

“more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”

Id. at 555

(citation omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“Threadbare recitals of the elements of a cause of action,
supported

by

mere

conclusory

statements,

do

not

suffice.”);

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012)
(“Factual

allegations

that

are

10

merely

consistent

with

a

The parties never submitted a Case Management Report and thus
the Court did not issue a Case Management Scheduling Order.
- 7 -

defendant’s liability fall short of being facially plausible.”
(citation omitted)).

Instead, the complaint must contain enough

factual allegations as to the material elements of each claim to
raise the plausible inference that those elements are satisfied,
or,

in

layman’s

terms,

that

the

plaintiff

has

suffered

a

redressable harm for which the defendant may be liable.
If the defendant does not believe the allegations show the
plaintiff is legally “entitled to relief,” it may move to dismiss
the case under Federal Rule of Civil Procedure 12.

In evaluating

a Rule 12 motion to dismiss, the Court must accept as true all
factual allegations in the complaint and “construe them in the
light most favorable to the plaintiff.”

Baloco ex rel. Tapia v.

Drummond Co., 640 F.3d 1338, 1345 (11th Cir. 2011).

However, mere

“[l]egal conclusions without adequate factual support are entitled
to no assumption of truth.”

Mamani v. Berzain, 654 F.3d 1148,

1153 (11th Cir. 2011) (citations omitted).
A pleading drafted by a party proceeding pro se, like the
Amended Complaint at issue here, is held to a less stringent
standard than one drafted by an attorney, and the Court will
construe the allegations contained therein liberally.
Fla.

Parole

Comm’n,

787

F.3d

1105,

1107

(11th

Jones v.

Cir.

2015).

Nevertheless, “a pro se pleading must suggest (even if inartfully)
that there is at least some factual support for a claim; it is not
enough just to invoke a legal theory devoid of any factual basis.”

- 8 -

Id.

Nor will pro se status salvage a complaint that pleads claims

over which the court lacks jurisdiction.
Put simply, even a pro se complaint must set forth claims the
court has the power to resolve and allege facts showing that each
cause of action is facially plausible.
IV.
A

federal

court

must

ensure

that

it

has

subject

matter

jurisdiction over the claims alleged before it may proceed to
decide those claims.

Santiago-Lugo v. Warden, 785 F.3d 467, 471

(11th Cir. 2015) (citing Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 93–102 (1998)).

According to Defendant, the

sovereign immunity doctrine strips the court of its subject matter
jurisdiction

over

–

and

thereby

prevents

the

Court

from

adjudicating – Plaintiff’s Fourth Amendment and 18 U.S.C. § 1001
claims.
A.

The Court begins its analysis there.

Sovereign Immunity
The doctrine of sovereign immunity presumptively “shields the

Federal Government and its agencies from suit.”

F.D.I.C. v.

Meyer, 510 U.S. 471, 475 (1994) (citations omitted).

Congress has

the

power

particular

to

waive

this

immunity

context,

id.,

but

be explicit.”
Cir. 1986).

and

consent

“[s]uch waivers[]

to
.

suit
.

.

in

a

must

Terrell v. United States, 783 F.2d 1562, 1565 (11th
Where there is no express waiver, a “jurisdictional

bar” exists, and a court has no power to proceed against a claim
asserted against the Federal Government or one of its agencies.

- 9 -

In re Custom Contractors, LLC, 745 F.3d 1342, 1347 (11th Cir.
2014); see also United States v. Mitchell, 463 U.S. 206, 212
(1983).

The VA is a federal agency and thus enjoys the protection

of sovereign immunity.

Com. of Mass. v. U.S. Veterans Admin., 541

F.2d 119, 123 (1st Cir. 1976); see also Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 95-96 (1990)
1)

The Fourth Amendment

Plaintiff’s Fourth Amendment claim is based on the allegation
that Mr. Marsh unlawfully searched Ms. Marsh’s cell phone and
seized (by photographing) certain text messages indicating that
Plaintiff and Ms. Marsh may have engaged in workplace sexual
relations,

which

in

turn

formed

the

basis

for

the

VA’s

“inappropriate workplace conduct” charge against Plaintiff.
Even assuming Plaintiff’s Fourth Amendment claim is otherwise
viable, 11 he cannot sue the VA on this ground because Congress has
not waived sovereign immunity.

Meyer, 510 U.S. at 486; Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 69 (2001).

Because the

Court lacks jurisdiction over this claim, it is dismissed without

11

Aside from sovereign immunity, Plaintiff likely lacks standing
to pursue this claim.
The Fourth Amendment protects against
unlawful governmental intrusions on an individual’s privacy
expectations, not against intrusions by private citizens - like
Mr. Marsh. United States v. Steiger, 318 F.3d 1039, 1045 (11th
Cir. 2003). Moreover, “Fourth Amendment rights are personal and
may not be vicariously asserted. . . . [A] person does not have a
reasonable expectation of privacy in another’s belongings.” Lenz
v. Winburn, 51 F.3d 1540, 1549 (11th Cir. 1995).
It was Ms.
Marsh’s cell phone and thus her privacy interest that was
putatively violated, not Plaintiff’s.
- 10 -

prejudice.

Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys.,

Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (“A dismissal for lack
of subject matter jurisdiction is not a judgment on the merits and
is entered without prejudice.”).
2)

18 U.S.C. § 1001

Plaintiff

believes

that,

in

carrying

out

the

alleged

conspiracy to fire him, various individuals at the VA engaged in
criminally fraudulent behavior, thereby violating 18 U.S.C. §
1001.

Defendant counters that, again, the Court lacks the power

to entertain this claim because Congress has not waived sovereign
immunity and further, that this statute is inapplicable in a civil
lawsuit.
statute

The Court agrees that 18 U.S.C. § 1001 is a criminal
that

“does

not

provide

a

civil

cause

of

action.”

Lichtenberg v. Sec’y of the Navy, 627 F. App’x 916, 917 (11th Cir.
2015) (per curiam); see also Fed. Sav. & Loan Ins. Corp. v. Reeves,
816 F.2d 130, 137 (4th Cir. 1987); Greenblatt v. Klein, 634 F.
App’x 66, 69 (3d Cir. 2015) (per curiam).

Plaintiff’s 18 U.S.C.

§ 1001 claim is dismissed without prejudice. 12

12

Plaintiff’s Motion for Summary Judgment states that “Plaintiff
is not seeking criminal violation enforcement but merely to express
the severity of corruption used . . . against him in his wrongful
termination.”
(Doc. #26, p. 2.)
Plaintiff suggests the Court
simply read his claim as one of corruption. (Id.) Even if the
Court could construe the Amended Complaint as asserting a claim
under the Racketeer Influenced and Corrupt Organizations Act
(RICO), 18 U.S.C. § 1961 et seq., the Court would still lack
jurisdiction because there is no evidence that “the United States
specifically waived its sovereign immunity for [RICO] claim[s].”
Lichtenberg, 627 F. App’x at 917; see also Chevron Corp. v.
Donziger, 833 F.3d 74, 138 (2d Cir. 2016).
- 11 -

B.

Title VII - Discrimination, Harassment, Retaliation
That leaves Plaintiff’s Title VII claims.

Although the

Amended Complaint cites only Title VII generally, the Court will
proceed

under

employers.

Section

2000e-16,

which

applies

to

federal

See Canino v. U.S. E.E.O.C., 707 F.2d 468, 472 (11th

Cir. 1983) (observing that Section 2000e-16 “is the exclusive
remedy for charges brought against federal employers including
reprisals”); see also 5 U.S.C. § 7703(a)(2).

As relevant here,

that section mandates that “[a]ll personnel actions affecting
employees . . . in executive agencies . . . be made free from any
discrimination based on race, color, religion, sex, or national
origin.”

42 U.S.C. § 2000e-16(a).

Before continuing, the Court notes that the language in
Section 2000e-16(a) is a bit different from that contained in the
anti-discrimination provision pertaining to private employers. 13
The Eleventh Circuit “ha[s] not addressed, in a published opinion,

13

42 U.S.C. § 2000e-2(a)(1) makes it an “unlawful employment
practice . . . to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color, religion,
sex, or national origin.” This provision has been interpreted as
protecting
against
“the
creation
or
perpetuation
of
a
discriminatory work environment,” also known as a “hostile work
environment.” Vance v. Ball State Univ., 133 S. Ct. 2434, 2440
(2013); see also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
64-67 (1986).
Title VII also expressly prohibits private
employers from retaliating against an employee “on account of
[that] employee’s having opposed, complained of, or sought
remedies for, unlawful workplace discrimination.” Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2522 (2013) (citing 42
U.S.C. § 2000e-3(a)).
- 12 -

whether

§ 2000e–2(a)

equivalent.”

.

.

.

and

§ 2000e–16(a)

are

legally

Putman v. Sec’y, Dep’t of Veterans Affairs, 510 F.

App’x 827, 829 (11th Cir. 2013) (per curiam).

It has, however,

noted that “other Circuits have so held” and more than once
“assume[d] . . . that the coverage is the same.” 14

Id.; Thomas v.

Miami Veterans Med. Ctr., 290 F. App’x 317, 319 (11th Cir. 2008)
(per curiam) (“[D]espite the differences in language, Title VII
places the same restrictions on federal agencies as it does on
private employers.” (citing Czekalski v. Peters, 475 F.3d 360, 363
(D.C. Cir. 2007))).

Accordingly, in addressing the viability of

Plaintiff’s Title VII claims, the Court proceeds on the presumption
that those claims are actionable under Section 2000e-16, as they
would be against a private employer under 42 U.S.C. § 2000e-2(a).
As Defendant acknowledges, by allowing employees to file suit
after

exhausting

their

administrative

remedies,

Congress

has

explicitly waived immunity for Title VII claims asserted against
governmental agencies like the VA.

See 42 U.S.C. § 2000e-5.

But

Defendant is also correct that this waiver applies only to claims
involving one or more of the five personal attributes set forth in
the statute: race, color, religion, sex, or national origin.

14

Moreover, the pre-split Fifth Circuit held that “the 1972
amendments extending the protections of Title VII to federal
employees . . . were intended to give federal employees the same
rights as private employees,” including “bar[ing] reprisals
against federal employees who file charges of discrimination.”
Porter v. Adams, 639 F.2d 273, 278 (5th Cir. 1981). That holding
is binding precedent on this Court. Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981).
- 13 -

Thompson v. McHugh, 388 F. App’x 870, 872 (11th Cir. 2010) (per
curiam).

Marital status is not in that list.

Consequently,

sovereign immunity shields Defendant from Plaintiff’s Title VII
claim of marital discrimination.

See Shaw v. Delta Air Lines,

Inc., 463 U.S. 85, 95 (1983); Pinson v. Rumsfeld, 192 F. App’x
811, 815 (11th Cir. 2006) (per curiam).

As such, the Court

dismisses that claim without prejudice and proceeds to address the
remaining Title VII claims.
1.

Discrimination - Disparate Treatment
a)

Race, National Origin, and Gender

The Court begins by considering Plaintiff’s claim that the VA
discriminated against him because of his gender (male), race
(Caucasian), and national origin (northern European).
“Employment
discriminatory

discrimination

intent.”

claims

Trask

v.

all

Sec’y,

require
Dep’t

of

proof

of

Veterans

Affairs, 822 F.3d 1179, 1192 (11th Cir. 2016) (citation omitted).
Where

no

direct

evidence

of

discriminatory

intent

exists, 15

establishing “a prima facie case for disparate treatment in an
employment discrimination case” requires the plaintiff to show
that: “(1) []he is a member of a protected class; (2) []he was
subjected to an adverse employment action; (3) h[is] employer
treated similarly situated employees outside of her protected

15

Direct evidence “refers to a type of evidence which, if true,
would require no inferential leap in order for a court to find
discrimination.” Bass v. Bd. of Cty. Comm’rs, Orange Cty., Fla.,
256 F.3d 1095, 1111 (11th Cir. 2001).
- 14 -

class more favorably than she was treated; and (4) []he was
qualified

to

do

the

job.”

Id.

(citation

omitted);

see

also

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Relevant

here,

establishing

the

third

factor

typically

requires the plaintiff to identify a proper “comparator” – that
is, someone who - protected characteristic aside - is “nearly
identical” to the plaintiff.

Id.; see also Silvera v. Orange Cty.

Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (“In order to meet
the comparability requirement a plaintiff is required to show that
he is similarly situated in all relevant aspects to the [proposed
comparator].”); Jones v. Bessemer Carraway Med. Ctr., 137 F.3d
1306, 1311 n.6 (11th Cir.) (“[N]o plaintiff can make out a prima
facie case by showing just that she belongs to a protected class
and

that

she

did

not

violate

her

employer’s

work

rule.

The

plaintiff must also point to someone similarly situated (but
outside the protected class) who disputed a violation of the rule
and who was, in fact, treated better.”), opinion modified by, 151
F.3d 1321 (11th Cir. 1998).

“If two employees are not ‘similarly

situated,’ the different application of workplace rules does not
constitute illegal discrimination.”

Lathem v. Dep’t of Children

& Youth Servs., 172 F.3d 786, 793 (11th Cir. 1999).
According to the Amended Complaint, “proof” of discriminatory
intent

for

Plaintiff’s

race,

national

origin,

and

gender

discrimination claims lies in the fact that, whereas he was fired
for the affair, Ms. Marsh – a Hispanic woman – was only suspended

- 15 -

for three days.

Defendant argues that these claims must be

dismissed because the Amended Complaint, along with the materials
Plaintiff attached thereto, leave clear that Ms. Marsh was not
“similarly

situated”

comparator,

Defendant

to

Plaintiff.

continues,

it

Without
will

be

an

adequate

impossible

for

Plaintiff to establish the third element of his prima facie case.
“[A] plaintiff is not required to plead a prima facie case of
discrimination in order to survive dismissal.”

McCone v. Pitney

Bowes, Inc., 582 F. App’x 798, 801 n.4 (11th Cir. 2014) (per
curiam).

Nonetheless, the claim as pled must still be “facially

plausible,”

that

is,

it

must

“allow

the

court

to

draw

the

reasonable inference that [the defendant] [i]s liable for . . .
[the] discrimination [charged].”

Id. at 801.

In other words,

while the failure to plead a particular discrimination element
does not mandate dismissal, it can constitute grounds for dismissal
where it is apparent that the plaintiff will never be able to carry
his burden of proof on that element.

See Evans v. Ga. Reg’l Hosp.,

850 F.3d 1248, 1254 (11th Cir. 2017).
The Court agrees that, as pled, Plaintiff’s race, national
origin, and gender discrimination claims are facially implausible
because there is no viable comparator.

Plaintiff’s sole would-be

comparator, Ms. Marsh, had a different job (she was a medical
assistant and Plaintiff was a police officer) and worked under
different

supervision.

(Doc.

#17-2,

p.

16.)

Moreover,

the

Amended Complaint leaves clear that, unlike Plaintiff, Ms. Marsh

- 16 -

was never charged with endangering the safety of a supervisor (she
was not involved in the altercation between Plaintiff and Sergeant
Slam), conduct unbecoming a police officer (she was not a police
officer), or failure to follow supervisory instructions (she was
not give a no-contact order).

Where the proposed comparator works

in a different department, has different job duties, answers to a
different supervisor, and has fewer disciplinary infractions, then
she is categorically not similarly situated “in all relevant
aspects” and thus “not a proper comparator.”

Foster v. Biolife

Plasma Servs., LP, 566 F. App’x 808, 812 (11th Cir. 2014) (per
curiam); see also Bessemer, 137 F.3d at 1312-13 (no “similarity”
where proposed comparators committed one act of misconduct and
plaintiff committed two); Jones v. Gerwens, 874 F.2d 1534, 1541
(11th Cir. 1989) (“Courts have held that disciplinary measures
undertaken by different supervisors may not be comparable for
purposes of Title VII analysis.”).
There are no allegations in the Amended Complaint from which
the Court may infer that another potential comparator exists.
Accordingly, as currently pled, Plaintiff’s race, national origin,
and

gender

disparate

treatment

plausible on their face.
Plaintiff

fails

to

discrimination

claims

are

not

See Bessemer, 137 F.3d at 1311 (“If [a]

identify

similarly

situated,

nonminority

employees who were treated more favorably, [his] case must fail
because the burden is on [him] to establish [a] prima facie
case.”).

At

the

same

time

–

and

- 17 -

particularly

in

light

of

Plaintiff’s pro se status – the Court cannot say that no other
adequate comparator exists and thus will dismiss these claims
without

prejudice.

See

Evans,

850

F.3d

at

1254

(“[A] pro

se litigant generally should be permitted to amend her complaint,
[except where] it would be futile.”).
b)

Religion

Plaintiff’s
different.
identifies

religious

The
as

Amended

discrimination

Complaint

Protestant,

“was

avers

claim
that

stigmatized

committing adultery and fornication.”

is

a

Plaintiff,
for

bit
who

allegedly

(Doc. #17, p. 47.)

In

support thereof, Plaintiff cites a conversation in which Sergeant
Slam stated “he was no longer interested in having theological
conversations with the Plaintiff, as [they] had done in the past,
because the Plaintiff was now divorced and was in sin with his
relationship with Lizabeth Marsh.”

(Doc. #17, p. 46.)

Plaintiff

also points to his pre-termination hearing with Director Klinker,
during which she corrected Plaintiff’s miscategorization of Mr.
Marsh as Ms. Marsh’s “ex-husband” (which he was not yet) “in a
very seething tone.”

(Id. p. 45.)

According to Plaintiff, this

illustrated her “religious concern” about his behavior, which in
turn motivated her decision to fire him.
Read

liberally,

Plaintiff’s

claim

(Id. p. 45-46.)
appears

to

be

one

of

discrimination due to religious “nonadherence,” rather than an
archetypal disparate treatment claim.
claim,

sometimes

referred

to

- 18 -

as

A religious nonadherence
a

“reverse

religious

discrimination” claim, alleges that the failure to conform one’s
religious

beliefs

and/or

conduct

to

an

employer’s

expectations resulted in an adverse employment action.

pious

See, e.g.,

Noyes v. Kelly Servs., 488 F.3d 1163, 1168-69 (9th Cir. 2007);
Shapolia v. Los Alamos Nat. Lab., 992 F.2d 1033, 1037-38 (10th
Cir. 1993); cf. Young v. Sw. Sav. & Loan Ass’n, 509 F.2d 140, 141
(5th Cir. 1975) (“Congress, through Title VII, has provided the
courts with a means to preserve religious diversity from forced
religious conformity.”).
The

operative

question

is

whether

the

Amended

Complaint

pleads a facially plausible religious nonadherence claim.

A

plaintiff alleging religious discrimination usually must establish
the same multi-factor prima facie case discussed above. 16

Lubetsky

v. Applied Card Sys., Inc., 296 F.3d 1301, 1305 (11th Cir. 2002).
However, a number of Circuit Courts of Appeals have employed a
more relaxed prima facie standard for nonadherence claims which
does not include the “protected class” factor.
at 1038; Noyes, 488 F.3d at 1168–69.

Shapolia, 992 F.2d

Specifically,

in order to establish a prima facie case in
actions where the plaintiff claims that he was
discriminated against because he did not share
certain
religious
beliefs
held
by
his
supervisors, . . . the plaintiff must show (1)
that he was subjected to some adverse
employment action; (2) that, at the time the
employment action was taken, the employee’s
job performance was satisfactory; and (3) some
16

The plaintiff must also “present . . . evidence that the
decision-maker knew of his religion” or beliefs. Lubetsky, 296
F.3d at 1306.
- 19 -

additional evidence to support the inference
that the employment actions were taken because
of a discriminatory motive based upon the
employee’s failure to hold or follow his or
her employer’s religious beliefs.
Shapolia, 992 F.2d at 1038; see Noyes, 488 F.3d at 1168 (finding
“instructive” Shapolia’s treatment of “non-adherence” religious
discrimination claims); see also Venters v. City of Delphi, 123
F.3d 956, 972 (7th Cir. 1997) (“We agree with our colleagues in
the Tenth Circuit that the accommodation framework on which the
district court relied has no application when the employee alleges
that he was fired because he did not share or follow his employer’s
religious beliefs.” (citing Shapolia, 992 F.2d at 1038)).

While

the Eleventh Circuit does not appear to have expressly addressed
whether a different prima facie standard applies to nonadherence
religious

discrimination

claims,

that

court

has

“repeatedly

emphasized that the requisite showings that make up a prima facie
case are not meant to be rigid or inflexible” and has entertained
cases in which “the evidence does not fit neatly into the classic
prima facie case formula.”

Schoenfeld v. Babbitt, 168 F.3d 1257,

1268 (11th Cir. 1999) (citations omitted).
Ultimately, whether the Eleventh Circuit would follow the
formula laid out in Shapolia or continue to apply the traditional
discrimination
Amended

framework,

Complaint

does

discrimination claim.

this

Court

must

not

plead

a

conclude

plausible

that

the

religious

First, Plaintiff has not alleged he was

treated worse than a non-Protestant, and thus he has not pled a

- 20 -

“routine” disparate treatment claim. 17

Second, while Plaintiff

may have been upset by Sergeant Slam’s refusal to continue engaging
in theological conversations, that refusal unquestionably does not
constitute an “adverse employment action” - that is, “a serious
and material change in the terms, conditions, or privileges of
employment.”
(11th

Cir.

Davis v. Town of Lake Park, 245 F.3d 1232, 1239
(“[T]he

and

adversity

significance

2001)

employee’s
of

the

subjective

employer’s

view

of

the

action

is

not

controlling; the employment action must be materially adverse as
viewed by a reasonable person in the circumstances.”).

Finally,

while Director Klinker’s termination of Plaintiff’s employment
with

the

VA

was,

undeniably,

an

adverse

employment

action,

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, (1998), the
“seething tone” she allegedly used when discussing the Marshes’
marital status is alone insufficient to permit an inference that
she fired Plaintiff because he did not hold or adhere to her
religious beliefs.

Plaintiff’s religious discrimination claim is

dismissed without prejudice.
2)

Hostile Work Environment – Religious Harassment

Plaintiff also attempts to assert a Title VII hostile work
environment claim based on religious harassment.

“A hostile work

environment claim under Title VII is established upon proof that
‘the

17

workplace

is

permeated

The Amended Complaint
religion, if any.

with

contains

- 21 -

discriminatory

no

mention

of

intimidation,

Ms.

Marsh’s

ridicule, and insult, that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an
abusive working environment.’”

Miller v. Kenworth of Dothan,

Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (quoting Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21 (1993)).
incidents

(unless

discriminatory
employment.’”
(1998).

extremely

changes

in

serious)
the

will

‘terms

not

and

“[I]solated
amount

to

conditions

of

Faragher v. City of Boca Raton, 524 U.S. 775, 788

workplace

Moreover, a “[plaintiff] cannot make actionable ordinary
tribulations

by

turning

a

‘personal

feud’

between

[him]self and a coworker into a Title VII religiously hostile work
environment claim.”

Alhallaq v. Radha Soami Trading, LLC, 484 F.

App’x 293, 296 (11th Cir. 2012) (per curiam).
Even reading the Amended Complaint liberally, the Court can
find only one factual allegation supporting Plaintiff’s hostile
work environment claim: Sergeant Slam’s aforementioned refusal to
discuss religion with Plaintiff because Plaintiff was divorced and
living “in sin.” 18

(Doc. #17, p. 46.)

Again, while this singular

incident may have truly offended Plaintiff, it is not sufficient
to allege a facially plausible hostile work environment claim based
on religious harassment.

See Alhallaq, 484 F. App’x at 296

(affirming dismissal of religious harassment claim brought by

18

As noted above, Plaintiff’s “endangering the safety of a
supervisor” charge resulted from Sergeant Slam accusing Plaintiff
of using a violent chokehold on him, which Plaintiff denies.
- 22 -

Muslim plaintiff who was subjected to constant Christian gospel
music, called “dirty,” and told to “burn in Hell,” since such
conduct – “albeit rude and insensitive” – was not “sufficiently
severe or pervasive”).

Indeed, Sergeant Slam’s decision to not

discuss

Plaintiff

religion

with

religious harassment.

seems

the

very

opposite

of

The Court dismisses this claim without

prejudice.
3)

Retaliation

Lastly, Plaintiff asserts that a “culture of retaliation”
developed after he sought informal counseling with the EEOC on
June 15, 2012.

(Doc. #17, p. 19.)

To establish a prima facie

case of retaliation under Title VII, “a plaintiff must prove that
he

engaged

in

statutorily

protected

activity,

he

suffered

a

materially adverse action, and there was some causal relation
between the two events.”

Goldsmith v. Bagby Elevator Co., 513

F.3d 1261, 1277 (11th Cir. 2008) (citing Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53 (2006)).

Unsurprisingly, “[t]he

filing of an EEOC claim is a ‘statutorily protected activity.’”
Burgos v. Napolitano, 330 F. App’x 187, 189 (11th Cir. 2009) (per
curiam) (quoting Goldsmith, 513 F.3d at 1277)).
Defendant

argues

that

Plaintiff

cannot

establish

the

requisite causal link between his protected activity and the
adverse action because (i) the Amended Complaint shows that the
investigation resulting in Plaintiff’s termination began in April
2012, at least two months before Plaintiff ever contacted the EEOC,

- 23 -

and (ii) Plaintiff was fired on October 19, 2012 - more than four
months after he contacted the EEOC.

The Court agrees.

Where “temporal proximity” is the only evidence of a “causal
relation” offered, that proximity must be “very close” to allow an
inference of causation.

Clark Cty. Sch. Dist. v. Breeden, 532

U.S. 268, 273 (2001) (citations omitted); Grier v. Snow, 206 F.
App’x 866, 869 (11th Cir. 2006) (per curiam).
three months - is unquestionably too long.

Four months – even
E.g., Breeden, 532

U.S. at 273; Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364
(11th Cir. 2007).

Importantly, however, the proximity clock

begins to run not on the date the plaintiff engages in protected
activity, but on the date the decision-maker gains “knowledge of
[that] protected activity.”

Breeden, 532 U.S. at 273; see also

Smith v. City of Fort Pierce, Fla., 565 F. App’x 774, 778 (11th
Cir.

2014)

(per

curiam)

(“A

plaintiff

establishes

a

causal

connection by showing that the relevant decision-maker was ‘aware
of the protected conduct, and that the protected activity and the
adverse actions were not wholly unrelated.’” (quoting Shannon v.
Bellsouth Telecomm., Inc., 292 F.3d 712, 716 (11th Cir. 2002))).
The Amended Complaint is silent as to when Director Klinker
first learned that Plaintiff had filed an EEO Complaint.
end, that fact does not matter.

In the

Even if she found out shortly

before she decided to sustain the charges and terminate Plaintiff’s
employment with the VA, those charges had indisputably already

- 24 -

been levied against Plaintiff and his removal proposed. 19

In other

words, in deciding to fire Plaintiff, Director Klinker was merely
“proceeding along lines previously contemplated.”
U.S. at 1511.

Breeden, 532

That fact negates any possibility of causality

based on temporal proximity.

Id.; see also Smith, 565 F. App’x

at 779 (no retaliatory causation where employer “had already
contemplated
Charge”).

disciplining

[plaintiff]

before

she

filed

her

Since the Amended Complaint contains no other facts

from which the Court may plausibly infer causation, 20 Plaintiff’s
retaliation claim is dismissed without prejudice.
The Court will afford Plaintiff the opportunity to file a
concise

Second

Amended

Complaint

that

fixes

the

pleading

deficiencies discussed herein; claims barred by sovereign immunity

19

The September 19, 2012 Proposed Removal Letter, which was
attached to Plaintiff’s Amended Complaint (Doc. #17-4, pp. 4-8),
was issued more than three months after Plaintiff sought EEOC
counseling, thus falling outside the causation proximity window.
20

The Amended Complaint discusses a 2010 lawsuit filed in the
Tampa Division of this District (Case No. 8:10-cv-1482) in which
the plaintiffs accused the Bay Pines VA, and specifically Chief
Shogren, of “a pattern and practice of retaliation” against
individuals who become involved with the EEOC. (Doc. #17, p. 6.)
That lawsuit cannot serve as causation evidence here for at least
two reasons.
First, and as the Amended Complaint notes, the
defendants settled before trial, so there was no merits
determination on retaliation. Second, Plaintiff was not a party
to that suit and cannot invoke it as a sword to succeed with issues
in his own case. See United States v. Mendoza, 464 U.S. 154, 162
(1984) (“[N]onmutual offensive collateral estoppel simply does not
apply against the government in such a way as to preclude
relitigation of issues . . . .”); see also Williams v. Osmose
Utilities Servs., Inc., No. 04-CV-4109, 2006 WL 2370342, at *3
(W.D. Ark. June 12, 2006) (observing the lack of any federal case
applying nonmutual offensive collateral estoppel under Title VII).
- 25 -

should not be reasserted.

If Plaintiff chooses to amend, the

allegations should be set forth in separate numbered paragraphs,
“each

limited

as

far

as

practicable

to

a

circumstances” – generally one or two sentences.
10(b).

single

set

of

Fed. R. Civ. P.

The Court strongly encourages Plaintiff to consult the

“Proceeding Without a Lawyer” resources provided at the following
website: http://www.flmd.uscourts.gov/pro_se/default.htm.

This

site has tips, answers to frequently-asked questions, and sample
forms which may help Plaintiff generate a clear, non-repetitive
Second Amended Complaint.
Accordingly, it is hereby
ORDERED:
1.

Defendant’s

Motion

to

Dismiss

Plaintiff’s

Amended

Complaint (Doc. #25) is GRANTED.
2.

Plaintiff may file a Second Amended Complaint on or

before Wednesday, December 27, 2017.
3.

Plaintiff’s Motion for Summary Judgment (Doc. #26) and

Defendant’s

Cross-Motion

for

Summary

Judgment

(Doc.

#28)

are

denied without prejudice as moot.
DONE and ORDERED at Fort Myers, Florida, this 12th day of
December, 2017.

Copies: Parties and Counsel of Record

- 26 -