Gilliam v. U.S. Department of Veterans Affairs
OPINION and ORDER granting defendant's 67 motion to dismiss. The Clerk is directed to enter judgment accordingly, terminate all pending motions and deadlines as moot, and close the file. See Opinion and Order for details. Signed by Judge John E. Steele on 3/27/2019. (CMG)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EDWARD LEE GILLIAM,
U.S. DEPARTMENT OF VETERANS
OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss (Doc. #67) filed on August 31, 2018.
filed a Response (Doc. #73) on September 28, 2018. For the reasons
stated below, the motion is granted.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”
Id. at 555.
See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[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).
supported by mere conclusory statements, do not suffice.”
556 U.S. at 678.
“Factual allegations that are merely consistent
Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th
Cir. 2012) (citations omitted).
Thus, the Court engages in a two-
step approach: “When there are well-pleaded factual allegations,
a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”
U.S. at 679.
A pleading drafted by a party proceeding pro se, like the
Third 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.
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.”
Thus, even a pro se complaint must allege facts showing that
each cause of action asserted is facially plausible.
Plaintiff Edward Lee Gilliam (Plaintiff) initiated this case
on April 4, 2016.
On January 31, 2017, the Court
dismissed his Complaint without prejudice for failure to pay the
Plaintiff filed a Second Amended Complaint (Doc. #17).1
then moved to dismiss the Second Amended Complaint for failure to
state a claim. (Doc. #25.)
The Court granted Defendant’s motion
On January 1, 2018, Plaintiff filed another Second Amended
Complaint, and Defendant once more moved to dismiss the Second
Amended Complaint for failure to state a claim.
On August 3, 2018,
the Court granted Defendant’s motion and dismissed Plaintiff’s
Second Amended Complaint without prejudice.
Although this complaint was actually Plaintiff’s first
amended complaint, Plaintiff titled it as a Second Amended
Opinion and Order, the Court instructed Plaintiff that it would
afford him “one last opportunity to file a concise Third Amended
Complaint” that fixes the pleading deficiencies in his prior
On August 24, 2018, Plaintiff filed a Third Amended Complaint
(Doc. #66), and Defendant has again moved to dismiss the pleading
for failure to state a claim.
III. THIRD AMENDED COMPLAINT
As best the Court can gather from the Third Amended Complaint
(Doc. #66): In 2012, Plaintiff - a Protestant, Caucasian male of
European descent - worked as a police officer at the the Fort Myers
Administration (Bay Pines VA).
Plaintiff believes that Bay Pines
VA Police Chief Robert Shogren (Chief Shogren) and Lieutenant Pete
Plaintiff’s career at the VA by creating a disciplinary “paper
trail against [him],” which ultimately resulted in the termination
of Plaintiff’s employment.
(Id. p. 8.)
On June 15, 2012,
Plaintiff filed a request for “informal counseling” with an EEOC
mediation session with Chief Shogren.
(Id. pp. 17, 19.)
Mediation was ultimately unsuccessful, and on September 19,
Employment letter (the Proposed Removal Letter), which charged the
following misconduct: (1) endangering the safety of a supervisor;
(2) conduct unbecoming of a police officer; (3) failure to follow
supervisory instructions; and (4) inappropriate conduct in the
(Id. pp. 19, 31-34.)
The first charge relates to an
incident in June or July 2012 in which Plaintiff allegedly placed
Sergeant Slam in a chokehold.
(Id. p. 34.)
The second charge
deals with a heated argument between Plaintiff and Ms. Marsh at
the Clinic on April 26, 2012, which was overheard by Officer Ron
(Id. p. 33.)
The third charge arises out of Plaintiff’s
contact with Ms. Marsh during work hours.
(Id. p. 32.)
charge is based on the allegation that Plaintiff and Ms. Marsh
engaged in sexual relations on VA property.
(Id. p. 31.)
On October 12, 2012, Plaintiff met with Bay Pines VA Director
Susanne Klinker (Director Klinker) to discuss the charges in the
Proposed Removal Letter. (Id. p. 20.) Director Klinker ultimately
October 27, 2012.
(Id. p. 19.)
This lawsuit followed.
MOTION TO DISMISS
violations of Title VII of The Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq.2
Defendant now moves to dismiss Plaintiff’s Third
Plaintiff also asserts a claim for violation of his Fourth
In its previous Opinion and Order granting
Defendant argues that Plaintiff has not alleged
facts necessary to state actionable claims under Title VII.
Title VII Principles
Although the Third Amended Complaint cites only Title VII
generally, the Court will proceed under Section 2000e-16, which
applies to federal employers.
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).
As explained in the Court’s prior Opinion and Order (Doc.
#63, p. 8), the language in Section 2000e-16(a) is a bit different
from that contained in Title VII’s anti-discrimination provision
Defendant’s motion to dismiss (Doc. #38), the Court found it lacked
subject matter jurisdiction over Plaintiff’s Fourth Amendment
claim because that claim was barred by sovereign immunity. The
Court instructed Plaintiff that such claims barred by sovereign
immunity “should not be reasserted.” (Id. pp. 25-26.) Although
Plaintiff now claims that he “is not intentionally disrespecting
the [Court’s] Order to not further discuss crimes protected by
sovereign immunity,” (Doc. #66, p. 8), he has clearly disregarded
the Court’s order and reasserted such claims. Because the Court
previously found Plaintiff’s Fourth Amendment claim is barred by
sovereign immunity, the Court will not again address the merits of
that claim here, but will dismiss it with prejudice.
pertaining to private employers.
Although the Eleventh Circuit
Section 2000e–16(a) are legally equivalent, the Eleventh Circuit
has “assume[d] . . . that the coverage is the same.
Sec’y, Dep’t of Veterans Affairs, 510 F. App’x 827, 829 (11th Cir.
Thus, in addressing the viability of Plaintiff’s Title VII
claims, the Court proceeds on the presumption that his claims under
Section 2000e-16 are as actionable as they would be against a
private employer under 42 U.S.C. § 2000e-2(a).
Discrimination - Disparate Treatment
1) 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 (European).
discriminatory intent.” Trask v. Sec’y, Dep’t of Veterans Affairs,
822 F.3d 1179, 1192 (11th Cir. 2016) (citation omitted).
direct evidence of discriminatory intent exists, establishing “a
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 h[is] protected class more favorably
than he was treated; and (4) he was qualified to do the
Id. (citation omitted); see also McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
To establish the third factor, a plaintiff must identify a
proper “comparator” – that is, someone who is “similarly situated”
to the plaintiff “in all material respects.”
Union City, Georgia,
Lewis v. City of
, 2019 WL 1285058, at *8 (11th
Cir. Mar. 21, 2019)(internal quotation marks omitted).
employees are not similarly situated in all material respects, the
inference that invidious discrimination is afoot.”
Id. at *10.
“[A] plaintiff is not required to plead a prima facie case of
discrimination in order to survive dismissal.”
McCone v. Pitney
Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002)(holding
that the prima facie standard in employment discrimination cases
Nonetheless, the claim must still be “facially plausible,” that
is, it must “allow the court to draw the reasonable inference that
Id. at 801.
Thus, 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
See Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1254 (11th
Plaintiff alleges that “proof” of discriminatory intent for
claims lies in the fact that he was fired for having an affair
with Ms. Marsh, whereas Ms. Marsh – a Hispanic woman – was only
suspended for three days.
However, as with Plaintiff’s two prior
race, national origin, and gender discrimination complaints, the
instant claim is facially implausible because Plaintiff has failed
to identify a viable comparator.
In fact, Plaintiff appears to
concede that Ms. Marsh is not an adequate comparator “because they
worked at different departments within the Veteran Affairs,” but
asserts this “inflexible and t[oo] rigid” rule is “absurd in
reasoning” and should not foreclose Plaintiff’s claim.
While Plaintiff may take issue with the state of the law,
the Court is nonetheless bound by it.
And because Plaintiff has
failed to identify an adequate comparator, his race, national
origin, and gender discrimination claims are facially implausible.
, 2019 WL 1285058, at *10; Lathem, 172 F.3d at
As to the religious discrimination claim, Plaintiff asserts
that he – a Protestant – was stigmatized for committing adultery
and behaving “like a heathen according to [Director Klinker’s]
Catholic faith.” (Doc. #66, p. 24.) In support thereof, Plaintiff
cites a conversation in which Sergeant Slam stated he no longer
wanted to have theological discussions with Plaintiff because
Plaintiff “was divorced and living in sin with staff member Liz
Marsh . . . .”
(Id. p. 28.)
In further support of his religious
discrimination claim, Plaintiff alleges that Sergeant Slam hid
Plaintiff’s car keys and locked Plaintiff out of his office.
Plaintiff also points to his pre-termination hearing with
miscategorization of Mr. Marsh as Ms. Marsh’s “ex-husband” (which
he was not yet) in an “emphatic seething tone” while looking at
Plaintiff with “a piercing glare . . . .”
(Id. p. 27.)
Plaintiff and her decision to terminate Plaintiff’s employment
were religiously motivated.
Plaintiff’s claim is one of discrimination due to religious
“nonadherence,” rather than a typical disparate treatment claim.
A religious nonadherence claim alleges that the failure to conform
one’s religious beliefs and/or conduct to an employer’s pious
expectations resulted in an adverse employment action.
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
A plaintiff alleging religious discrimination usually must
establish the same multi-factor prima facie case discussed supra.3
Lubetsky v. Applied Card Sys., Inc., 296 F.3d 1301, 1305 (11th
However, several Circuit Courts of Appeals have
employed a more relaxed prima facie standard for nonadherence
Shapolia, 992 F.2d at 1038; Noyes, 488 F.3d at 1168–69.
Under this standard,
in order to establish a prima facie case in
actions where the plaintiff claims that he was
discriminated against because he did not share
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
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
Shapolia, 992 F.2d at 1038; see Noyes, 488 F.3d at 1168 (finding
“instructive” Shapolia’s treatment of “non-adherence” religious
Regardless of which prima facie standard the Court applies,
the Third Amended Complaint does not plead a plausible religious
The plaintiff must also “present . . . evidence that the
decision-maker knew of his religion” or beliefs. Lubetsky, 296
F.3d at 1306.
First, Plaintiff has not alleged that he
was treated worse than a non-Protestant, and thus has not pled a
“routine” disparate treatment claim.4
Second, as the Court noted
Plaintiff may have been upset by Sergeant Slam’s refusal to
continue engaging in theological conversations, that refusal does
not constitute an “adverse employment action” - that is, “a serious
and material change in the terms, conditions, or privileges of
employment.” Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th
Cir. 2001) (“[T]he employee’s subjective view of the significance
and adversity of the employer’s action is not controlling; the
employment action must be materially adverse as viewed by a
reasonable person in the circumstances.”).
Moreover, Sergeant Slam’s alleged hiding of Plaintiff’s keys
and locking Plaintiff out of his office is insufficient to support
an inference that Sergeant Slam’s actions “were taken because of
a discriminatory motive” based upon Plaintiff’s
termination of Plaintiff’s employment with the VA was certainly an
adverse employment action, Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 761, (1998), her “piercing glare” and the “emphatic
seething tone” she allegedly used when discussing the Marshes’
The Third Amended Complaint contains no mention of Ms.
Marsh’s religion, if any.
marital status is insufficient to permit an inference that she
fired Plaintiff because he did not hold or adhere to her religious
Hostile Work Environment – Religious Harassment
Plaintiff also asserts 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 workplace
insult, that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,
“[I]solated incidents (unless extremely serious) will
not amount to discriminatory changes in the terms and conditions
Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998)(internal quotation omitted).
A “[plaintiff] cannot make
actionable ordinary workplace 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).
Even reading the Third Amended Complaint liberally, the Court
In support of his hostile work environment claim, Plaintiff
also asserts that he was forced to undergo investigation, “thwarted
hostile work environment claim: Sergeant Slam’s refusal to discuss
religion with Plaintiff because Plaintiff was “divorced and living
(Doc. #66, p. 28.)
Again, while this may have truly
offended Plaintiff, it is not sufficient to allege a facially
harassment. See Alhallaq, 484 F. App’x at 296 (affirming dismissal
of religious harassment claim brought by Muslim plaintiff who was
subjected to constant Christian gospel music, called “dirty,” and
told to “burn in Hell,” since such conduct – “albeit rude and
Indeed, Sergeant Slam’s decision to not discuss religion with
Plaintiff seems the very opposite of religious harassment.
Lastly, Plaintiff asserts that a “culture of retaliation”
developed after he sought informal counseling with the EEOC on
June 15, 2012. (Doc. #66, p. 30.) Defendant argues that Plaintiff
cannot establish the requisite causal link between his protected
activity and the adverse employment action.
The Court agrees.
To establish a prima facie case of retaliation under Title
VII, “a plaintiff must prove that he engaged in statutorily
from contacting the EEOC, wrongfully accused of meeting with [his]
girlfriend outside breaks and lunches, [and] was told by Detective
Tim Torain he would never wear a police badge again.” (Doc. #66,
p. 28.) Plaintiff, however, alleges no facts plausibly indicating
that any of these events were religiously motivated.
protected activity, he suffered a materially adverse action, and
there was some causal relation between the two events.”
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
The “filing of an EEOC claim is a statutorily protected
activity.” Burgos v. Napolitano, 330 F. App’x 187, 189 (11th Cir.
2009) (quotation and citation omitted).
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).
- is too long.
Four months – even three months
See e.g. Breeden, 532 U.S. at 273; Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). Importantly,
decision-maker gains “knowledge of [the] protected activity,” not
on the date the plaintiff engages in protected activity.
532 U.S. at 273; see also Smith v. City of Fort Pierce, Fla., 565
F. App’x 774, 778 (11th Cir. 2014).
Complaint, is unclear as to when Director Klinker first learned
that Plaintiff had filed an EEO complaint.6
In the end, that fact
Plaintiff asserts that Director Klinker learned that he
filed an EEO complaint in June of 2012, yet he provides a quote in
does not matter.
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 been levied against
Plaintiff and his removal proposed.7
In other words, in deciding
to fire Plaintiff, Director Klinker was merely “proceeding along
lines previously contemplated.”
Breeden, 532 U.S. at 272.
retaliatory causation where employer “had already contemplated
disciplining [plaintiff] before she filed her Charge”).
Third Amended Complaint contains no other facts from which the
Court may plausibly infer causation, Plaintiff’s retaliation claim
In its previous Opinion and Order (Doc. #63, pp. 21-22), the
provided Plaintiff with specific instructions on how to comply
with the Federal Rules, and instructed Plaintiff that the Court
would afford him one last opportunity to file a legally sufficient
which Director Klinker states she “do[es] not recall.”
The September 19, 2012 Proposed Removal Letter was issued
more than three months after Plaintiff sought EEOC counseling,
thus falling outside the causation proximity window.
deficiencies and has again filed an insufficient pleading. Because
complaint would be futile, the Third Amended Complaint is dismissed
See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th
Cir. 2001)(noting that a district court need not allow further
amendments “where amendment would be futile” (citation omitted)).
Accordingly, it is now
Defendant’s Motion to Dismiss (Doc. #67) is GRANTED and
the Third Amended Complaint (Doc. #66) is dismissed with prejudice.
The Clerk shall enter judgment accordingly, terminate all
pending motions and deadlines as moot, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
Copies: Parties and Counsel of record
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