Gilliam v. U.S. Department of Veterans Affairs

Filing 83

ORDER denying plaintiff's 82 Motion for the Record and Court Reconsideration. See Order for details. Signed by Judge John E. Steele on 5/6/2019. (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.
ORDER
This matter comes before the Court on plaintiff's Motion for
the Record and Court Reconsideration (Doc. #82) filed on April 25,
2019.

For the reasons set forth below, the motion is denied.

On March 27, 2019, the Court dismissed plaintiff’s Third
Amended Complaint with prejudice because plaintiff failed to state
a legally sufficient cause of action.

(Doc. #75.)

On April 1,

2019, plaintiff filed a motion for reconsideration, arguing the
Court

erroneously

prejudice.

dismissed

(Doc. # 78.)

the

Third

Amended

Complaint

with

The Court denied plaintiff’s motion

because plaintiff failed to identify a “need to correct clear error
or

prevent

manifest

injustice.”

Sussman

v.

Salem,

Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994).

Saxon

&

(Doc. #81,

p. 3.)
Plaintiff filed the instant motion on April 25, 2019 and again
argues the Court erred in dismissing the Third Amended Complaint

with prejudice.

Plaintiff cites to the Middle District of Florida

case Atkinson v. U.S. Dep’t of Veteran Affairs, 8:10-cv-01482-MSSTBM, which he describes as a retaliation law suit that was settled
by the Department of Veteran Affairs (the VA) and resulted in a
one million dollar judgment awarded to “police officers, doctors,
nurses and other administrative personnel between the years of
2010 and 2014” – the time period during which plaintiff alleges
the retaliation against him occurred at the VA.
the

Court

“continues

evidence,”

which

to

he

ignore”

contends

Complaint’s retaliation claims.
argues

that

concealed

the

Court

incendiary

this

supports

Plaintiff argues

“clearly
the

(Doc. #82, p. 1.)

“ignores”

allegations

that

“Chief

against

documented

Third

Amended

Plaintiff also
Robert

[Plaintiff]

Shogren
for

ten

hostile months while alerting the supervisory staff to target him
for removal . . . .”
The

existence

(Id., pp. 1-2.)
of

Atkinson

and

Plaintiff’s

conclusory

allegations regarding Chief Robert Shogren have no bearing on
whether the Third Amended Complaint alleged a legally sufficient
cause of action.1

Thus, for the foregoing reasons, and for the

Plaintiff also appears to argue that the Court overlooks
the fact that the police officer plaintiffs in Atkinson are valid
comparators in support of the Third Amended Complaint’s various
discrimination claims. To plead a discrimination claim, however,
a plaintiff must identify a comparator who was treated “more
favorably than []he was treated.”
Trask v. Sec’y, Dep’t of
Veterans Affairs, 822 F.3d 1179, 1192 (11th Cir. 2016)(emphasis
added)(citation omitted). Plaintiff’s citation to Atkinson does
1

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reasons previously stated by the Court, Plaintiff has failed to
identify a “need to correct clear error or prevent
injustice.”

Sussman, 153 F.R.D. at 694.

manifest

Plaintiff’s motion is

therefore denied.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Plaintiff's Motion for the Record and Court Reconsideration
(Doc. #82) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this

6th

day of

May, 2019.

Copies:
Parties and Counsel of Record

not alter the Court’s previous finding that Plaintiff failed to
identify such a comparator.

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