UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
LIONEL BUTLER, Plaintiff, v. Case No. 1:22-cv-01146 (ACR) MERRICK B. GARLAND, et al., Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Lionel Butler brings this action against Defendants Attorney General Merrick B.
Garland; the United States Department of Justice; and the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (“ATF”) under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.
Plaintiff’s operative complaint alleges disparate treatment based on his race. Dkt. 1 ¶¶ 30–42.
Also before the Court are Plaintiff’s motions for leave to file first and second amended
complaints alleging sex discrimination and violations of the Rehabilitation Act of 1973,
29 U.S.C. § 791. Dkt. 25-1 ¶¶ 38–47; Dkt. 26-1 ¶¶ 30–48, 59–65.
For the reasons explained below, the Court GRANTS Defendants’ Motion for Judgment
on the Pleadings, Dkt. 23, and DISMISSES Plaintiff’s Complaint, Dkt. 1, without prejudice.
The Court also DENIES Plaintiff’s motions to file first and second amended complaints,
Dkts. 25 & 26; and DENIES AS MOOT Defendants’ Renewed Motion for Judgment on the
Pleadings, Dkt. 28.
1 I. BACKGROUND
A. Factual Background
For purposes of evaluating the Agency’s motion for judgment on the pleadings, the
Courts takes from the Complaint and accepts as true the following allegations. Payne v. District
of Columbia, 741 F. Supp. 2d 196, 207 (D.D.C. 2010).
Plaintiff, an African American male, began working for the federal government in March
2011 and for ATF in June 2015. Dkt. 1 ¶ 5. In October 2018, he began working as a Human
Resources Specialist at ATF. Id. He contends that starting in October 2018, his supervisors
began taking adverse employment actions against him based on his race. 1 Id. ¶ 6. He alleges the
following:
First, Plaintiff’s white-male supervisor, Edward Maguire, id. ¶ 5, denied his sick leave
requests from January 28, 2019, through February 26, 2019, id. ¶ 15. Maguire required Plaintiff
to provide doctor’s notes before taking sick days despite “the Agency’s policy that a doctor’s
note was not required for . . . less than three days of absence” and the fact that Plaintiff “did not
have any prior history of abusing sick leave.” Id. Plaintiff alleges that he was treated differently
from other employees because Maguire wanted “to make an example out of him.” Id. ¶ 17.
When Plaintiff was allowed to take sick leave, his supervisors closely monitored his
whereabouts, “going so far as to . . . attempt to determine if” Plaintiff, who also worked as an
NCAA Division I college basketball official, “was officiating at a college basketball game”
while on sick leave. Id. ¶¶ 7, 17.
1 In an order dated August 21, 2023, the Court dismissed the Complaint as to all events before January 23, 2019. Min. Order (Aug. 21, 2023). This opinion focuses on allegations after that date. 2 Second, around February 2019 Maguire revoked Plaintiff’s telework privileges “due to
the volume of work that [Plaintiff] had accumulated.” Id. ¶ 18. Plaintiff “was the only member
of . . . Maguire’s team who was not allowed to telework.” Id. ¶ 20. Before Maguire revoked his
telework privileges, Plaintiff “was able to complete more work remotely than he would have
otherwise, due to the flexibility of the remote work.” Id. ¶ 18.
Third, on February 7, 2019, Plaintiff received a formal letter of reprimand from Maguire.
Id. ¶ 21. Plaintiff does not explain the letter’s contents, but the Court deduces that it related to a
subsequent meeting with Kathryn Green, Plaintiff’s second-line supervisor, about his failure to
“complete qualifications on a particular set of [job] announcements.” Id.
Fourth, on March 8, 2019, Plaintiff’s supervisor “suspended [his] participation in the
Health Improvement Program,” a benefit that allows employees to take a few hours per week to
exercise during the workday. Id. ¶ 22. Although the Health Improvement Program was offered
to all employees, id. ¶ 23, Maguire told Plaintiff that he could not use the benefit because
Plaintiff had “work to complete.” Id. ¶ 22.
Fifth, Plaintiff’s supervisors repeatedly denied his annual leave requests between January
23, 2019, and March 15, 2019. Id. ¶ 26. Plaintiff was the only employee denied annual leave
during the relevant period. Id.
Sixth, Maguire placed Plaintiff on administrative leave for ten days from March 22,
2019, through April 1, 2019. Id. ¶ 27. The Complaint does not state the perceived or offered
reason for the administrative leave. See id.
Finally, on April 9, 2019, management referred Plaintiff to the Internal Affairs Division
for investigation for “fraud, waste, and abuse of sick leave.” Id. ¶ 28. The investigation was,
according to Plaintiff, “an attempt to humiliate and discredit his federal government career by
3 stating that he was not sick when taking sick leave and/or implying that he tried to mislead his
supervisors.” Id. Plaintiff does not, however, allege that the investigation caused him to lose
financial or professional opportunities. See generally id.
“Fearing the Agency would terminate his employment,” Plaintiff resigned on July 5,
2019. Id. ¶ 29.
B. Procedural Background
Plaintiff filed an administrative charge of discrimination alleging he was subject to the
above actions because of his race and sex. Dkt. 29. The ATF issued a final agency decision
denying Plaintiff’s charge, which Plaintiff appealed to the Equal Employment Opportunity
Commission (“EEOC”). Dkt. 1 ¶ 29. On January 26, 2022, the EEOC denied Plaintiff’s appeal
and affirmed the ATF’s findings. Id.
Plaintiff then filed this employment action on April 26, 2022. Id. The Complaint claims
racial discrimination under Title VII of the Civil Rights Act of 1964. Id. ¶¶ 30–42. Initially,
Defendants moved to dismiss only parts of Plaintiff’s claims. Dkt. 12. The Court granted
Defendants’ Motion to Dismiss in part, dismissing claims to extent they were based on events
before January 23, 2019, for failure to timely exhaust administrative remedies and dismissing
Plaintiff’s hostile work environment claim for failure to state a claim. Min. Order (Aug. 21,
2023). The Court rejected Defendants’ argument that the denial of Plaintiff’s telework privileges
and his suspension from the Health Improvement Program were de minimis harms. Id.
Following the Court’s ruling on Defendants’ Motion to Dismiss, seven of Plaintiff’s allegations
remain. See supra Section I.A.
On January 9, 2024, Defendants moved for judgment on the pleadings because Plaintiff’s
remaining allegations do not support an inference of discrimination based on race. Dkt. 23 at 1.
4 Rather than file an opposition to Defendant’s motion and despite having requested and received
an extension to do so, Min. Order (Feb. 1, 2024), Plaintiff moved for leave to file an amended
complaint adding a claim under the Rehabilitation Act. Dkt. 25 at 2. Plaintiff then moved to file
a second amended complaint adding a sex discrimination claim. Dkt. 26 at 2. Defendants
oppose Plaintiff’s motions for leave to amend. Dkt. 27.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
LIONEL BUTLER, Plaintiff, v. Case No. 1:22-cv-01146 (ACR) MERRICK B. GARLAND, et al., Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Lionel Butler brings this action against Defendants Attorney General Merrick B.
Garland; the United States Department of Justice; and the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (“ATF”) under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.
Plaintiff’s operative complaint alleges disparate treatment based on his race. Dkt. 1 ¶¶ 30–42.
Also before the Court are Plaintiff’s motions for leave to file first and second amended
complaints alleging sex discrimination and violations of the Rehabilitation Act of 1973,
29 U.S.C. § 791. Dkt. 25-1 ¶¶ 38–47; Dkt. 26-1 ¶¶ 30–48, 59–65.
For the reasons explained below, the Court GRANTS Defendants’ Motion for Judgment
on the Pleadings, Dkt. 23, and DISMISSES Plaintiff’s Complaint, Dkt. 1, without prejudice.
The Court also DENIES Plaintiff’s motions to file first and second amended complaints,
Dkts. 25 & 26; and DENIES AS MOOT Defendants’ Renewed Motion for Judgment on the
Pleadings, Dkt. 28.
1 I. BACKGROUND
A. Factual Background
For purposes of evaluating the Agency’s motion for judgment on the pleadings, the
Courts takes from the Complaint and accepts as true the following allegations. Payne v. District
of Columbia, 741 F. Supp. 2d 196, 207 (D.D.C. 2010).
Plaintiff, an African American male, began working for the federal government in March
2011 and for ATF in June 2015. Dkt. 1 ¶ 5. In October 2018, he began working as a Human
Resources Specialist at ATF. Id. He contends that starting in October 2018, his supervisors
began taking adverse employment actions against him based on his race. 1 Id. ¶ 6. He alleges the
following:
First, Plaintiff’s white-male supervisor, Edward Maguire, id. ¶ 5, denied his sick leave
requests from January 28, 2019, through February 26, 2019, id. ¶ 15. Maguire required Plaintiff
to provide doctor’s notes before taking sick days despite “the Agency’s policy that a doctor’s
note was not required for . . . less than three days of absence” and the fact that Plaintiff “did not
have any prior history of abusing sick leave.” Id. Plaintiff alleges that he was treated differently
from other employees because Maguire wanted “to make an example out of him.” Id. ¶ 17.
When Plaintiff was allowed to take sick leave, his supervisors closely monitored his
whereabouts, “going so far as to . . . attempt to determine if” Plaintiff, who also worked as an
NCAA Division I college basketball official, “was officiating at a college basketball game”
while on sick leave. Id. ¶¶ 7, 17.
1 In an order dated August 21, 2023, the Court dismissed the Complaint as to all events before January 23, 2019. Min. Order (Aug. 21, 2023). This opinion focuses on allegations after that date. 2 Second, around February 2019 Maguire revoked Plaintiff’s telework privileges “due to
the volume of work that [Plaintiff] had accumulated.” Id. ¶ 18. Plaintiff “was the only member
of . . . Maguire’s team who was not allowed to telework.” Id. ¶ 20. Before Maguire revoked his
telework privileges, Plaintiff “was able to complete more work remotely than he would have
otherwise, due to the flexibility of the remote work.” Id. ¶ 18.
Third, on February 7, 2019, Plaintiff received a formal letter of reprimand from Maguire.
Id. ¶ 21. Plaintiff does not explain the letter’s contents, but the Court deduces that it related to a
subsequent meeting with Kathryn Green, Plaintiff’s second-line supervisor, about his failure to
“complete qualifications on a particular set of [job] announcements.” Id.
Fourth, on March 8, 2019, Plaintiff’s supervisor “suspended [his] participation in the
Health Improvement Program,” a benefit that allows employees to take a few hours per week to
exercise during the workday. Id. ¶ 22. Although the Health Improvement Program was offered
to all employees, id. ¶ 23, Maguire told Plaintiff that he could not use the benefit because
Plaintiff had “work to complete.” Id. ¶ 22.
Fifth, Plaintiff’s supervisors repeatedly denied his annual leave requests between January
23, 2019, and March 15, 2019. Id. ¶ 26. Plaintiff was the only employee denied annual leave
during the relevant period. Id.
Sixth, Maguire placed Plaintiff on administrative leave for ten days from March 22,
2019, through April 1, 2019. Id. ¶ 27. The Complaint does not state the perceived or offered
reason for the administrative leave. See id.
Finally, on April 9, 2019, management referred Plaintiff to the Internal Affairs Division
for investigation for “fraud, waste, and abuse of sick leave.” Id. ¶ 28. The investigation was,
according to Plaintiff, “an attempt to humiliate and discredit his federal government career by
3 stating that he was not sick when taking sick leave and/or implying that he tried to mislead his
supervisors.” Id. Plaintiff does not, however, allege that the investigation caused him to lose
financial or professional opportunities. See generally id.
“Fearing the Agency would terminate his employment,” Plaintiff resigned on July 5,
2019. Id. ¶ 29.
B. Procedural Background
Plaintiff filed an administrative charge of discrimination alleging he was subject to the
above actions because of his race and sex. Dkt. 29. The ATF issued a final agency decision
denying Plaintiff’s charge, which Plaintiff appealed to the Equal Employment Opportunity
Commission (“EEOC”). Dkt. 1 ¶ 29. On January 26, 2022, the EEOC denied Plaintiff’s appeal
and affirmed the ATF’s findings. Id.
Plaintiff then filed this employment action on April 26, 2022. Id. The Complaint claims
racial discrimination under Title VII of the Civil Rights Act of 1964. Id. ¶¶ 30–42. Initially,
Defendants moved to dismiss only parts of Plaintiff’s claims. Dkt. 12. The Court granted
Defendants’ Motion to Dismiss in part, dismissing claims to extent they were based on events
before January 23, 2019, for failure to timely exhaust administrative remedies and dismissing
Plaintiff’s hostile work environment claim for failure to state a claim. Min. Order (Aug. 21,
2023). The Court rejected Defendants’ argument that the denial of Plaintiff’s telework privileges
and his suspension from the Health Improvement Program were de minimis harms. Id.
Following the Court’s ruling on Defendants’ Motion to Dismiss, seven of Plaintiff’s allegations
remain. See supra Section I.A.
On January 9, 2024, Defendants moved for judgment on the pleadings because Plaintiff’s
remaining allegations do not support an inference of discrimination based on race. Dkt. 23 at 1.
4 Rather than file an opposition to Defendant’s motion and despite having requested and received
an extension to do so, Min. Order (Feb. 1, 2024), Plaintiff moved for leave to file an amended
complaint adding a claim under the Rehabilitation Act. Dkt. 25 at 2. Plaintiff then moved to file
a second amended complaint adding a sex discrimination claim. Dkt. 26 at 2. Defendants
oppose Plaintiff’s motions for leave to amend. Dkt. 27.
II. LEGAL STANDARD
When a party moves to amend a complaint, the Court should “freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a)(2). That said, a district court may, within its
discretion, deny the motion where the amendment “would be futile . . . or where the pleading as
amended would ‘not survive a motion . . . for judgment on the pleadings.’” United States v. All
Assets Held at Bank Julius Baer & Co., 772 F. Supp. 2d 191, 197 (D.D.C. 2011) (quoting Jung v.
Ass’n of Am. Med. Colls., 226 F.R.D. 7, 9 (D.D.C. 2005)).
Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the
pleadings “after the pleadings are closed—but early enough not to delay trial.” To prevail, the
moving party must establish that “no material fact is in dispute and that it is entitled to judgment
as a matter of law.” Robinson-Reeder v. Am. Council on Educ., 532 F. Supp. 2d 6, 12 (D.D.C.
2008) (quoting Peters v. Nat’l R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992)).
Judgment on the pleadings is only appropriate when there are no “issues of fact which if proved
would defeat recovery, even if the trial court is convinced that the party opposing the motion is
unlikely to prevail at trial.” Dist. No. 1 v. Liberty Mar. Corp., 933 F.3d 751, 761 (D.C. Cir.
2019) (cleaned up).
The Court may rely on “‘facts alleged in the complaint, documents attached to the
complaint as exhibits or incorporated by reference, and matters about which the court may take
5 judicial notice.’” Yancey v. District of Columbia, 991 F. Supp. 2d 171, 175 (D.D.C. 2013)
(quoting Cole v. Boeing Co., 845 F. Supp. 2d 277, 283 (D.D.C. 2012)). That said, a court need
not accept “inferences drawn by plaintiffs if such inferences are unsupported by the facts set out
in the complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
III. ANALYSIS
A. Motions for Leave to Amend the Complaint
Rather than oppose Defendants’ Motion for Judgment on the Pleadings, Plaintiff twice
moved to amend his Complaint. Dkts. 25 & 26. The First Amended Complaint adds a claim
under the Rehabilitation Act of 1973, 29 U.S.C. § 791, alleging that Defendants not only failed
to reasonably accommodate Plaintiff’s migraines, but also instituted an ad hoc policy requiring
Plaintiff, and no one else, to present a doctor’s note before taking sick leave. Dkt. 25-1
¶¶ 15–17. The Second Amended Complaint adds a sex discrimination claim under Title VII.
Dkt. 26-1 ¶¶ 30–37. Plaintiff did not make any amendments addressing his race discrimination
claims.
1. First Amended Complaint
An amendment is futile if a plaintiff does not meet an exhaustion requirement. S.S. by
and through Street v. District of Columbia, 71 F. Supp. 3d 1, 4–5 (D.D.C. 2014). The
Rehabilitation Act requires individuals to exhaust their administrative remedies, allowing federal
agencies the opportunity to handle matters internally before facing suit in federal court. Williams
v. Brennan, 320 F. Supp. 3d 122, 129 (D.D.C. 2018). Plaintiff’s EEO charge did not claim
discrimination based on disability or physical health, Dkt. 29, and he does not allege that he
attempted to exhaust his claim in any other way. See Dkt. 25-1 ¶ 29. Because Plaintiff did not
6 exhaust his administrative remedies, amendment on that basis is futile. 2 The Court therefore
DENIES Plaintiff’s Motion for Leave to File an Amended Complaint, Dkt. 25.
2. Second Amended Complaint
Plaintiff’s Motion for Leave to File a Second Amended Complaint, Dkt. 26, fares no
better. On top of the unexhausted Rehabilitation Act claim, the Second Amended Complaint
tacks sex discrimination allegations to the existing Title VII claim. Dkt. 26-1 ¶¶ 30–48.
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, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. To establish a prima facie
case of discrimination under Title VII, Plaintiff must show that “(1) [he] is a member of a
protected class; (2) [he] suffered an adverse employment action; and (3) the unfavorable action
gives rise to an inference of discrimination.” Pierre v. Bennett, 686 F. Supp. 3d 1, 7 (D.D.C.
2023) (quoting Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007)). While a plaintiff need
not plead each element of a prima facie case of discrimination to survive a motion for judgment
on the pleadings, see Brown v. Sessoms, 774 F.3d 1016, 1023 (D.C. Cir. 2014), he still must
allege facts that if accepted as true would make the discrimination claim plausible, Jones v.
Castro, 168 F. Supp. 3d 169, 178 (D.D.C. 2016).
Plaintiff adequately alleges his membership in a protected class (male) in his Complaint
and EEO charge, Dkt. 1 & 29; and that he suffered adverse employment actions, Min. Order
2 Where, as here, a complaint refers to an EEO complaint, the Court may consider the EEO complaint without converting a 12(c) motion into a motion for summary judgment. See Jimenez v. McAleenan, 395 F. Supp. 3d 22, 31 n.11 (D.D.C. 2019); Hudson v. Child.’s Nat’l Med. Ctr., 645 F. Supp. 2d 1, 5 n.5 (D.D.C. 2009). 7 (Aug. 21, 2023). His Title VII claim fails, however, because he does not allege facts supporting
an inference of sex discrimination.
Plaintiff does not allege that female employees received better treatment because of their
sex. He does not allege that his supervisors made discriminatory statements about his sex or
provide statistics showing that his employer treated men and women differently. Nor does he
make any other allegation connecting the adverse employment actions to his sex. Rather, the
Complaint states his sex and those of his supervisors without ever alleging that sex was the basis
for his distinct treatment. See Dkt. 1 ¶¶ 3, 5, 8, 12. Because adverse actions without facts that if
accepted as true would make the discrimination claim plausible cannot survive a motion for
judgment on the pleadings, the Court DENIES Plaintiff’s Motion to File a Second Amended
Complaint, Dkt. 26, as futile.
B. Motion for Judgment on the Pleadings
Having denied leave to amend, the Court turns to Defendants’ Motion for Judgment on
the Pleadings, Dkt. 23, as to the operative complaint—Plaintiff’s original complaint, Dkt. 1.
Defendants contend that they are entitled to judgment on the pleadings because Plaintiff does not
connect his remaining allegations to race. Dkt. 23 at 1. The Court agrees with Defendants.
Having reviewed the operative complaint carefully the Court has found nothing “showing that
[Plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
As with his sex discrimination claim, Plaintiff adequately alleges his membership in a
protected class (African American) and that he suffered adverse employment actions. Again,
however, he does not allege any fact supporting an inference of discrimination. See supra
Section III.A.2. The Complaint states his race and those of his supervisors, but he does not trace
his allegations to those characteristics. See e.g., Dkt. 1 ¶¶ 5, 7–8, 10, 12, 16, 22, 26, 28. Instead,
8 Plaintiff either concedes that he does not know why the Agency took a particular action or
simply provides his supervisors’ stated non-discriminatory reasons for the action (e.g. workload
and poor performance). Id. ¶¶ 10, 16, 22. The fact that Plaintiff, a member of a protected class,
was treated differently from other employees does not automatically create a plausible
employment discrimination claim. Turner v. Shinseki, 824 F. Supp. 2d 99, 118–19 (D.D.C.
2011).
Because Plaintiff does not allege facts tying the adverse employment actions to his race,
the Court GRANTS Defendants’ Motion for Judgment on the Pleadings, Dkt. 23.
IV. CONCLUSION AND ORDER
For these reasons, the Court GRANTS Defendants’ Motion for Judgement on the
Pleadings, Dkt. 23; DISMISSES Plaintiff’s Complaint, Dkt. 1, without prejudice; DENIES
Plaintiff’s Motion for Leave to File an Amended Complaint, Dkt. 25; DENIES Plaintiff’s
Motion for Leave to File a Second Amended Complaint, Dkt. 26; and DENIES AS MOOT
Defendants’ Renewed Motion for Judgment on the Pleadings, Dkt. 28.
This is a final appealable order. See Fed. R. App. P. 4(a).
SO ORDERED.
Date: August 2, 2024 ____________________________ ANA C. REYES United States District Judge