Gilliam v. U.S. Department of Veterans Affairs

Filing 75

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,
Plaintiff,
v.

Case No:

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

U.S. DEPARTMENT OF VETERANS
AFFAIRS,
Defendant.

OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss (Doc. #67) filed on August 31, 2018.

Plaintiff

filed a Response (Doc. #73) on September 28, 2018. For the reasons
stated below, the motion is granted.
I.

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
do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted).

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).
“more

than

accusation.”

an

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
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).
“Threadbare

recitals

of

the

elements

of

a

cause

of

action,

supported by mere conclusory statements, do not suffice.”
556 U.S. at 678.
with

a

“Factual allegations that are merely consistent

defendant’s

plausible.”

Iqbal,

liability

fall

short

of

being

facially

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.”

Iqbal, 556

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.

2

Jones v.

Fla.

Parole

Comm’n,

787

F.3d

1105,

1107

(11th

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.”
Id.

Thus, even a pro se complaint must allege facts showing that

each cause of action asserted is facially plausible.
II.

BACKGROUND

Plaintiff Edward Lee Gilliam (Plaintiff) initiated this case
on April 4, 2016.

(Doc. #1.)

On January 31, 2017, the Court

dismissed his Complaint without prejudice for failure to pay the
requisite

filing

fee

(Doc.

#14),

and

on

February

27,

Plaintiff filed a Second Amended Complaint (Doc. #17).1

2017,

Defendant

then moved to dismiss the Second Amended Complaint for failure to
state a claim. (Doc. #25.)
and

dismissed

Plaintiff’s

The Court granted Defendant’s motion
Second

Amended

Complaint

without

prejudice.
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.

(Doc. #63.)

In that

Although this complaint was actually Plaintiff’s first
amended complaint, Plaintiff titled it as a Second Amended
Complaint.
1

3

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
complaints.
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
Outpatient

Clinic

(the

Clinic)

Administration (Bay Pines VA).

of

the

Bay

Pines

Veterans

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],” 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
Counselor,

and

on

September

14,

2012,

mediation session with Chief Shogren.

Plaintiff

attended

a

(Id. pp. 17, 19.)

Mediation was ultimately unsuccessful, and on September 19,
2012,

Chief

Shogren

issued

Plaintiff

a

Proposed

Removal

of

Employment letter (the Proposed Removal Letter), which charged the

4

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
workplace.

(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
Testa.

(Id. p. 33.)

disobeying

The third charge arises out of Plaintiff’s

Lieutenant

Quimby’s

order

contact with Ms. Marsh during work hours.

that

Plaintiff

(Id. p. 32.)

have

no

The fourth

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
upheld

the

charges

October 27, 2012.

and

terminated

(Id. p. 19.)
IV.

Plaintiff

asserts

Plaintiff’s

employment

on

This lawsuit followed.

MOTION TO DISMISS

claims

against

Defendant

for

numerous

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
Amendment rights.
In its previous Opinion and Order granting
2

5

Amended Complaint.

Defendant argues that Plaintiff has not alleged

facts necessary to state actionable claims under Title VII.

The

Court agrees.

A.

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.

6

pertaining to private employers.
has

not

explicitly

addressed

Although the Eleventh Circuit
whether

Section 2000e–2(a)

and

Section 2000e–16(a) are legally equivalent, the Eleventh Circuit
has “assume[d] . . . that the coverage is the same.

Putman v.

Sec’y, Dep’t of Veterans Affairs, 510 F. App’x 827, 829 (11th Cir.
2013).

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).
B.

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).
“Employment

discrimination

claims

all

require

proof

of

discriminatory intent.” Trask v. Sec’y, Dep’t of Veterans Affairs,
822 F.3d 1179, 1192 (11th Cir. 2016) (citation omitted).

Where no

direct evidence of discriminatory intent exists, 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 h[is] protected class more favorably
than []he was treated; and (4) []he was qualified to do the

7

job.”

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,

F.3d

Lewis v. City of

, 2019 WL 1285058, at *8 (11th

Cir. Mar. 21, 2019)(internal quotation marks omitted).

If two

employees are not similarly situated in all material respects, the
“comparator[]

[is]

simply

too

dissimilar

to

permit

inference that invidious discrimination is afoot.”

a

valid

Id. at *10.

“[A] plaintiff is not required to plead a prima facie case of
discrimination in order to survive dismissal.”
Bowes,

Inc.,

582

F.

App’x

798,

801

n.4

McCone v. Pitney

(11th

Cir.

2014);

Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002)(holding
that the prima facie standard in employment discrimination cases
“is

an

evidentiary

standard,

not

a

pleading

requirement”).

Nonetheless, the claim must still be “facially plausible,” that
is, it must “allow the court to draw the reasonable inference that
[the

defendant]

[charged].”

[i]s

liable

Id. at 801.

for

.

.

.

[the]

discrimination

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

8

element.

See Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1254 (11th

Cir. 2017).
Plaintiff alleges that “proof” of discriminatory intent for
Plaintiff’s

race,

national

origin,

and

gender

discrimination

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.
p. 10.)

(Doc. #66,

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.
Lewis,

F.3d

, 2019 WL 1285058, at *10; Lathem, 172 F.3d at

793.
2) Religion

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]

9

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.
p. 26.)
Director

(Id.

Plaintiff also points to his pre-termination hearing with
Klinker,

during

which

she

corrected

Plaintiff’s

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.)

to

her

Plaintiff,

this

demonstrated

that

attitude

According
towards

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.

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

10

courts with a means to preserve religious diversity from forced
religious conformity.”).
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
Cir. 2002).

However, several Circuit Courts of Appeals have

employed a more relaxed prima facie standard for nonadherence
claims.

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
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
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).
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.
3

11

discrimination claim.

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
in

its

previous

Opinion

and

Order

Second, as the Court noted
(Doc.

#63,

p.

16),

while

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
Shapolia,

992

F.2d

at

1038.

And

while

nonadherence.

Director

Klinker’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.
4

12

marital status is insufficient to permit an inference that she
fired Plaintiff because he did not hold or adhere to her religious
beliefs.
C.

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
is

permeated

with

discriminatory

intimidation,

ridicule,

and

insult, that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
environment.”
1275

(11th

omitted).

Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,
Cir.

2002)

(quotation

and

citation

“[I]solated incidents (unless extremely serious) will

not amount to discriminatory changes in the terms and conditions
of employment.”

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
can

find

only

one

factual

allegation5

supporting

Plaintiff’s

In support of his hostile work environment claim, Plaintiff
also asserts that he was forced to undergo investigation, “thwarted
5

13

hostile work environment claim: Sergeant Slam’s refusal to discuss
religion with Plaintiff because Plaintiff was “divorced and living
in sin.”

(Doc. #66, p. 28.)

Again, while this 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 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 religion with
Plaintiff seems the very opposite of religious harassment.
D.

Retaliation
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.

14

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)).

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,
however,

the

proximity

clock

begins

to

run

on

the

date

the

decision-maker gains “knowledge of [the] protected activity,” not
on the date the plaintiff engages in 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).
The

Third

Amended

Complaint,

like

the

Second

Amended

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
6

15

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.”
fact

negates

proximity.

any
Id.;

possibility
see

also

Breeden, 532 U.S. at 272.
of

causality

Smith,

565

F.

That

based

on

temporal

App’x

at

779

(no

retaliatory causation where employer “had already contemplated
disciplining [plaintiff] before she filed her Charge”).

Since the

Third Amended Complaint contains no other facts from which the
Court may plausibly infer causation, Plaintiff’s retaliation claim
is dismissed.
In its previous Opinion and Order (Doc. #63, pp. 21-22), the
Court

detailed

the

Second

Amended

Complaint’s

deficiencies,

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
complaint.

However,

Plaintiff

has

failed

to

resolve

which Director Klinker states she “do[es] not recall.”
p. 22.)

those

(Doc. #66,

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.
7

16

deficiencies and has again filed an insufficient pleading. Because
permitting

Plaintiff

another

opportunity

to

file

an

amended

complaint would be futile, the Third Amended Complaint is dismissed
with prejudice.

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
ORDERED:
1.

Defendant’s Motion to Dismiss (Doc. #67) is GRANTED and

the Third Amended Complaint (Doc. #66) is dismissed with prejudice.
2.

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
March, 2019.

Copies: Parties and Counsel of record

17

27th

day of