Miller v. Fanning

Filing 6

Amended ORDER granting 3 Motion for Leave to Proceed in forma pauperis; denying 2 Motion to Appoint Counsel. Plaintiff has 21 days from the date this Order is served to file an Amended Complaint. Signed by Magistrate Judge G. R. Smith on 8/25/16. (trb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
BENJAMIN FRANKLIN MILLER,
Plaintiff,
v.
ERIC K. FANNING,
Secretary of the Army,
Defendant.

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Case No. CV416-033

AMENDED ORDER
Benjamin Franklin Miller, a former U.S. Army employee, has filed
this Title VII sexual harassment, retaliation, and wrongful discharge
lawsuit against the U.S. Army (nominally naming Erik K. Fanning, who is
the Secretary of the Army). Doc. 1 at 1. Proceeding pro se , plaintiff also
moves for leave to proceed in forma pauperis (IFP), and for appointment
of counsel. Docs. 2 & 3. Because the Court finds Miller indigent, it

GRANTS his IFP motion (doc. 3) and preliminarily screens his case
under 28 U.S.C. § 1915(e)(2), which requires dismissal of any IFP action
when the action or appeal is frivolous or malicious, fails to state a claim for
relief, or seeks monetary relief against a defendant who is immune from

such relief. 28 U.S.C. § 1915(e)(2).

I. GOVERNING STANDARDS
A. Title VII and the Military
Title VII commands that “[a]ll personnel actions affecting
employees . . . in military departments . . . shall be made free from any
discrimination based on race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-16. It “provides the exclusive judicial remedy for claims
of discrimination in federal employment.”

Brown v. Gen. Servs. Admin .,

425 U.S. 820, 835 (1976); Rouse v. Green , 359 F. App’x. 956, 957 (11th Cir.
2010); see also Thompson v. McHugh , 388 F. App’x 870, 872 (11th Cir.
2010) (“Title VII waives sovereign immunity when a federal employee
seeks relief for unlawful employment practices -- that is, for “any
discrimination based on race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-16(a), (c).”).
Construing Miller’s Complaint liberally, Erickson v. Pardus, 551
U.S. 89, 94 (2007),1 he has pleaded facts showing that he was a U.S. Army

1

Pleading stage claims are analyzed under Fed. R. Civ. P. 8 & 12:
Rule 8 requires that federal courts give pleadings a liberal reading in the face of
a [Rule] 12(b)(6) motion to dismiss. This admonition is particularly true when
2

employee and not an independent contractor.

See doc. 1 at 9 (Dep’t of

Army administrative appeal denial letter denying his claim on the merits,
indicating that he was an employee).

B. Sexual Harassment
Title VII prohibits employers from discriminating “against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race [or] . . .
sex.” 42 U.S.C. § 2000e-2(a)(1). . . . To establish a hostile
environment sexual harassment claim under Title VII, an employee
must show:
(1) that he or she belongs to a protected group; (2) that the
employee has been subject to unwelcome sexual harassment,
such as sexual advances, requests for sexual favors, and other
conduct of a sexual nature; (3) that the harassment must have
been based on the sex of the employee; (4) that the harassment
the parties are proceeding pro se . Courts do and should show a leniency to pro se
litigants not enjoyed by those with the benefit of a legal education. See, e.g.,
Powell v. Lennon , 914 F.2d 1459, 1463 (11th Cir. 1990). Yet even in the case of
pro se litigants this leniency does not give a court license to serve as de facto
counsel for a party, see Hall v. Bellmon , 935 F.2d 1106, 1109 (10th Cir.
1991), or to rewrite an otherwise deficient pleading in order to sustain an
action, see Pontier v. City of Clearwater , 881 F. Supp. 1565, 1568 (M.D. Fla.
1995).

GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) ,
overruled in part on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 709
(11th Cir. 2010); Butler v. Broward County Cent. Examining Bd. , 367 F. App’x 992-93
(11th Cir. 2010). Formulaic recitations of a claim’s elements will not suffice; every
complaint must contain sufficient factual matter which, if accepted as true, states a
claim to relief that is plausible on its face. Edwards v. Prime, Inc. , 602 F.3d 1276,
1301 (11th Cir. 2010); Grissett v. H.J. Baker Bros ., 2015 WL 5734452 at * 1 (S.D. Ala.
Sept. 30, 2015).
3

was sufficiently severe or pervasive to alter the terms and
conditions of employment and create a discriminatorily
abusive working environment; and (5) a basis for holding the
employer liable.

Mendoza v. Borden, Inc ., 195 F.3d 1238, 1245 (11th Cir. 1999) (cite
omitted). To establish a prima facie case for hostile work environment as
a result of sexual harassment, Miller’s pleadings must establish that: (1)
he belongs to a protected group; (2) he was subjected to unwelcome
harassment; (3) the conduct was based on his sex; (4) the harassment was
sufficiently severe or pervasive to alter the terms or conditions of
employment and create a discriminatorily abusive working environment;
and (5) his employer is responsible for that environment under either a

Mendoza , 195 F.3d at 1245; Madrid

theory of direct or vicarious liability.

v. Homeland Security Solutions Inc ., 141 F. Supp. 3d 1351, 1359 (M.D. Ga.
2015).
“In that regard, federal employment laws are not a ‘general civility
code,’ and only harassment severe or pervasive enough to alter the terms
of employment will create an actionable hostile work environment.

See

Faragher v. City of Boca Raton , 524 U.S. 775, 789, 118 S. Ct. 2275 (1998)
(citing Oncale v. Sundowner Offshore Services, Inc ., 523 U.S. 75, 80, 118
4

S. Ct. 998 (1993)).”

Jamous v. Saint-Gobain Corporation, 2016 WL

4206320 at * 12 (N.D. Ala. Aug. 10, 2016) see also Millwood-Jones v.

Holder, 2016 WL 1189494 at * 10 (S.D. Ga. Mar. 22, 2016) (analyzing the
“severe and pervasive” element).

C. Wrongful Termination
Wrongful termination based on a prohibited Title VII factor requires
the plaintiff to plead supporting facts ( e.g. , “My employer terminated me
solely because I am black.”). One may also premise Title VII liability on a
constructive discharge.

McConnell v. University of Alabama Healthcare

Systems , 2016 WL 4132260 at * 5 (S.D. Ala. Aug. 3, 2016) (“‘A
constructive discharge occurs when a discriminatory employer imposes
working conditions that are so intolerable that a reasonable person in [the
employee's] position would have been compelled to resign.

Fitz v.

Pugmire Lincoln-Mercury , Inc., 348 F.3d 974, 977 (11th Cir. 2003)
(internal quotes omitted).”).

D.

Retaliation

Employers are prohibited from retaliating against an employee
“because he has opposed any practice made an unlawful employment
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practice by this subchapter (Title VII), or because he has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under [42 U.S.C. § 2000e-3(a)].”

Little v. United

Techs., Carrier Transicold Div ., 103 F.3d 956, 956 (11th Cir. 1997) (citing
42 U.S.C. § 2000e-3(a)). A plaintiff pleads a prima facie retaliation case
by showing that (1) he engaged in statutorily protected activity; (2) he
suffered a materially adverse action; and (3) there was a causal connection
between that protected activity and the materially adverse action.

Howard v. Walgreen Co ., 605 F.3d 1239, 1244 (11th Cir. 2010).
Under th[at] framework, if a plaintiff establishes a prima facie case
of retaliation, a presumption of retaliation arises, and the burden of
production shifts to the defendant to rebut the presumption by
articulating a legitimate, non-discriminatory reason for the adverse
employment action. If the employer articulates such a reason, the
presumption raised by the prima facie case is rebutted and drops
from the case. The plaintiff then has a full and fair opportunity to
demonstrate that the defendant's proffered reason was merely a
pretext to mask discriminatory actions.

Savage v. Secretary of Army , 439 F. App’x 828, 830 (11th Cir. 2011)
(quotes and cites omitted); Gardner v. Aviagen , 454 F. App’x 724, 728
(11th Cir. 2011). The pleading requirements are reasonably demanding
in this particular area because merely claiming that a “bad write up” was
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discriminatory (or retaliatory) often will not suffice:
A Title VII discrimination claim rarely may be predicated merely on
[an] employer's allegedly unfounded criticism of an employee's job
performance, where that criticism has no tangible impact on the
terms, conditions, or privileges of employment. Subsequent
Eleventh Circuit cases have essentially transformed “rarely” into
“never.” See, e.g., Barnett v. Athens Regional Medical Center, Inc .,
550 Fed. Appx. 711, 713 (11th Cir. 2013) (“We have held [in Davis v.
Town of Lake Park, Fla ., 245 F.3d 1232, 1242 (11th Cir. 2001)], that
memoranda of reprimand or counseling that amount to no more
than a mere scolding, without any following disciplinary action, do
not rise to the level of adverse employment actions sufficient to
satisfy the requirements of Title VII.”) (internal quotes omitted);
Wallace v. Georgia Department of Transportation, 212 Fed. Appx.
799, 801 (11th Cir. 2006) (“Under the standard articulated in Davis ,
[there was no] adverse employment action [because] [t]he written
reprimand did not lead to any tangible harm in the form of lost pay
or benefits [and] there is no evidence that [the plaintiff] has been
denied job promotions as a result of the written reprimand.”);
Embry v. Callahan Eye Foundation Hospital, 147 Fed. Appx. 819,
828-29 (11th Cir. 2005) (plaintiff “failed to cite evidence showing
that this reprimand resulted in her suffering any tangible
consequences in the form of loss of pay or benefits, and it, thus, was
not an ‘adverse employment action.’ ”) (citing Davis ).

McConnell , 2016 WL 4132260 at * 4.
II. ANALYSIS
The form Title VII Complaint Miller used asked him to “[d]escribe
the discriminatory actions or events that you are complaining of in this
lawsuit. Give factual detail, including names and dates concerning what
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happened. You do not need to refer to any statutes or law.” Doc. 1 at 3 ¶
10. Other than laundry listing his claims (he wrote: “Sexual Assault,”
“Retaliation” and “Wrongful Termination,” doc. 10 at 3 ¶ 10), Miller left
this blank. He did attach filings from what appears to be his
administrative appeal within Army channels, but he cites nothing from
them to satisfy the elements of a prima facie case as set forth above.
The Court is not Miller’s attorney and cannot provide him with legal
assistance. See Kaiser v. Steele , 2016 WL 1296388 at *1 (11th Cir. April
4, 2016) (courts “will not act as . . . “ de facto counsel” for litigants). Nor
can it research the law and plead supporting facts for him.

Boles v. Riva ,

565 F. App’x 845, 846 (11th Cir. 2014) (“[E]ven in the case of pro se
litigants this leniency does not give a court license to serve as de facto
counsel for a party, or to rewrite an otherwise deficient pleading in order
to sustain an action.”) (quotes and cite omitted); Sec’y, Fl. Dept. of Corr. v.

Baker , 406 F. App’x 416, 422 (11th Cir. 2010); Swain v. Colorado Tech.
Univ. , 2014 WL 3012693 at * 1 (S.D. Ga. June 12, 2014) (“While Congress
has chosen to provide indigents with access to the courts by way of its IFP
statute, it has not funded a pro se support function. Judges, then, at
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most can construe liberally what pro se litigants say factually, but they
cannot develop legal arguments or plug the legal holes in their cases for
them.”).
Nevertheless, “when a more carefully drafted complaint might state
a claim, a district court should give a pro se plaintiff at least one chance to
amend the complaint before the court dismisses the action.”

Jenkins v.

Walker , 620 F. App’x 709, 711 (11th Cir. 2015); Epps v. Hein , 2016 WL
3208950 at * 4 (S.D. Ga. June 7, 2016); see also Fed. R. Civ. P. 15.
In light of his pro se status, the Court will allow Miller that chance.
He has 21 days from the date this Order is served to file an Amended
Complaint curing the above-illuminated deficiencies. It must include a
“short and plain statement” of his claim, Fed. R. Civ. P. 8(a)(2), and the
facts, not legal conclusions, supporting his position.

See Bell Atl. Corp. v.

Twombly , 550 U.S. 544, 570 (2007). He doesn’t need to “present every
last detail” of his case, Swain , 2014 WL 3012693 at * 2, but he must give
“fair notice of what the . . . claim is and the grounds upon which it rests .”

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (emphasis added). Those
grounds must present the elements of each legal claim, and follow all
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procedural rules, including Fed. R. Civ. P. 8 & 10. 2 Albra v. Advan, I nc.,
490 F.3d 826, 829 (11th Cir. 2007)) (“We construe pro se briefs liberally,
but pro se litigants nonetheless must conform to procedural rules.”). 3
Meanwhile, the Court DENIES Miller’s motion for appointment of
counsel. 4 Doc. 2.

2 He is reminded that he cannot present here any claims that he failed to present to
the EEOC. See, e.g. , Richardson v. JM Smith Corp. , 473 F. Supp. 2d 1317, 1331 (M.D.
Ga. 2007) (declining to permit plaintiff to bring unexhausted claim of religious
discrimination that was never presented to the EEOC); s ee also Enwonwu v.
Fulton-DeKalb Hosp. Auth ., 286 F. App’x 586, 600 (11th Cir. 2008) (claim of racial and
national origin discrimination could not have been reasonably expected to grow out of
an EEOC disability charge); Scott v. Kindred Hosps. Ltd. , 2006 WL 2523093 at *2-3
(N.D. Ga. Aug. 28, 2006) (dismissing claim for racial discrimination as unexhausted
where plaintiff had only alleged age and disability discrimination in her EEOC
charge).

See L.R. 41(b); Betty K Agencies, Ltd. v. M/V
Monada, 432 F.3d 1333, 1337 (11th Cir. 2005) (district courts may sua sponte dismiss
an action pursuant to Fed. R. Civ. P. 41(b) if the plaintiff fails to comply with court
rules or a court order); Donaldson v. Clark , 819 F.2d 1551, 1557 n. 6 (11th Cir.1987)
(district court has inherent authority to sanction parties for “violations of procedural
rules or court orders,” up to and including dismissals with prejudice).
3 Ignoring court orders risks dismissal.

4

28 U.S.C. § 1915 was designed to enable access to the courts by indigent litigants. It
thus permits the waiver of prepayment of fees and costs, 28 U.S.C. § 1915(a), but
Congress choose not to spend taxpayer money on free lawyers for indigent civil
litigants. There is, after all, no constitutional right to counsel in a civil case. Bass v.
Perrin, 170 F.3d 1312, 1320 (11th Cir.1999); see also Davis v. City of Chicag o, 219
F.R.D. 593, 598 n. 6 (N.D. Ill. 2004) (“[A] Defendant in a civil case has no
constitutional right to counsel.”).
Instead, Congress passed § 1915(e)(1), which basically authorizes a judge to
“pressure an attorney to work for free.” Williams v. Grant , 639 F. Supp. 2d 1377, 1381
(S.D. Ga. 2009) (noting the “professional compulsion” lurking behind a judge's 28
U.S.C. § 1915(e)(1) request) ; Nixon v. United Parcel Service , 2013 WL 1364107 at * 2
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SO ORDERED , this 25th day of August, 2016.

LWIIEJ) STATES MAGISTRATE ThJDGE
SOUTHERN DISTRICT OF GEORGIA

n. 3 (M.D. Ga. Apr. 3, 2013). Even at that, a judge may do so “only in exceptional
circumstances,” Bass , 170 F.3d at 1320, and a routine Title VII case isn’t one of them.
Evans v. Georgia Regional Hospital, 2015 WL 5316694 at * 5 (S.D. Ga. Sept. 10, 2015).
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