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Gilliam v. U.S. Department of Veterans Affairs

United States District Court, M.D. Florida, Fort Myers Division

December 12, 2017




         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.


         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 (id. p. 6), and Plaintiff's extra-marital affair with another Clinic employee, Lizabeth Marsh (Ms. Marsh) (id. pp. 8, 12) seemingly all played a part.[4] 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 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. (Doc. #17, p. 22.) 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] (Id. p. 14.) The third charge arises out of Plaintiff's 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] (Id. p. 16.)

         Plaintiff submitted a written response to the Proposed Removal Letter and met with Bay Pines VA Director Susanne Klinker (Director Klinker) on October 12, 2012 to discuss the charges. (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 Board (MSPB) pursuant to 29 C.F.R. § 1614.302(b), alleging discrimination claims under Title VII.[9](Id. pp. 20, 38.) 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.


         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 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 to a civil litigant. As for Plaintiff's discrimination, harassment, and retaliation 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 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.


         Federal Rule of Civil Procedure 8(a) governs pleading requirements for complaints and demands a “short 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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 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 merely consistent with a 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. 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. 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.


         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. The Court begins its analysis there.

         A. 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 to waive this immunity and consent to suit in a particular context, id., but “[s]uch waivers[] . . . must be explicit.” Terrell v. United States, 783 F.2d 1562, 1565 (11th Cir. 1986). 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. 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 ...

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