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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12984 Non-Argument Calendar ________________________
D.C. Docket No. 2:16-cv-00255-JES-UAM
EDWARD LEE GILLIAM,
Plaintiff-Appellant,
versus
U.S. DEPARTMENT OF VETERANS AFFAIRS, ROBERT L. WILKIE, JR., Secretary,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(July 31, 2020)
Before MARTIN, GRANT, and LUCK, Circuit Judges.
PER CURIAM: Case: 19-12984 Date Filed: 07/31/2020 Page: 2 of 18
Edward Gilliam, pro se, appeals the district court’s dismissal with prejudice
of his third amended complaint alleging employment discrimination and retaliation
by his former employer, the United States Department of Veterans Affairs, and the
denials of his three motions to reconsider the dismissal. After a careful review of
the record and the parties’ briefs, we affirm.
I.
Gilliam, a Protestant Caucasian male, was employed by the VA as a police
officer at an outpatient clinic. According to Gilliam, his troubles with the VA
began in late 2011 after police chief Robert Shogren became aware of Gilliam’s
romantic relationship with Lizabeth Marsh, who worked as a medical support
assistant at the clinic. Marsh’s then-husband had discovered text messages
between Gilliam and Marsh and complained to the VA that Gilliam and Marsh
were having an affair and were having sex at the clinic. Rather than confront him
about these allegations, Gilliam says, Shogren secretly told Gilliam’s supervisors
that Gilliam was having an adulterous affair with Marsh and encouraged them to
build a “paper trail” against him so that they could fire him.
Over the next several months, Gilliam was written up or counseled by his
supervisors for multiple incidents, most—but not all—involving his contact with
Marsh at work. Gilliam believed that he was being harassed and requested
informal counseling with an Equal Employment Opportunity Commission
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counselor. In September 2012, Gilliam and Shogren participated in a mediation of
Gilliam’s EEOC concerns. The mediation was unsuccessful, and a few days later,
Shogren notified Gilliam that he proposed removing him from service based on
four charges of misconduct: (1) endangering the safety of one of his supervisors,
Sergeant Brad Slam, by placing Sgt. Slam in a chokehold on two separate
occasions in June and July 2012; (2) engaging in conduct unbecoming a police
officer by yelling and using profanity during a verbal altercation with Marsh at the
clinic during Gilliam’s scheduled work hours in April 2012; (3) failing to follow
the instructions of one of his supervisors to limit or eliminate his social interaction
with Marsh during working hours (by kissing her in the office hallway in March
2012, engaging in a loud argument with her at the clinic in April 2012, and
meeting her at her workstation and leaving her work area with her in July 2012),
and not to enter a certain equipment room at the clinic without prior permission;
and (4) engaging in inappropriate conduct in the workplace by having sex with
Marsh at the clinic during Gilliam’s duty hours in November 2011.
Gilliam submitted a written response to the notice of proposed removal, and
he met with the director of the Bay Pines VA Healthcare System, Suzanne Klinker,
to respond orally. He denied the charge that he had had sex with Marsh at the
clinic, and he argued that the other charges were exaggerated. He admitted the
other alleged conduct but he claimed that (1) the chokeholds were playful and
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harmless training demonstrations; (2) he thought his argument with Marsh was
private, and he quit yelling and left as soon as a supervisor asked him to lower his
voice; (3) his contact with Marsh was during her lunch hour or breaks, which he
thought was permitted; and (4) he only entered the prohibited equipment room to
put his police radio on the charger that was kept there. Klinker sustained the
charges against Gilliam and fired him.
Gilliam appealed his termination to the Merit Systems Protection Board
(MSPB) and the EEOC, alleging Title VII discrimination, harassment, and
retaliation for his informal EEOC complaint. The MSPB decided that the VA’s
removal of Gilliam was reasonable under the circumstances and that Gilliam failed
to prove that the decision was motivated by discrimination, and the EEOC upheld
the MSPB’s final order. Gilliam then filed a complaint in federal court alleging
that the VA had discriminated against him on the basis of his national origin, sex,
religion, and marital status, and retaliated against him because he reported the
discrimination to the EEOC. Gilliam also alleged that the VA violated his Fourth
Amendment rights by coercing Marsh’s husband to provide the text messages that
he had secretly retrieved from Marsh’s phone.
In reviewing Gilliam’s motion to proceed in forma pauperis, the magistrate
judge determined that Gilliam’s complaint did not meet the standards of Rule 8 of
the Federal Rules of Civil Procedure because it contained only vague, conclusory,
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or irrelevant statements. The magistrate judge recommended that the district court
direct Gilliam to file an amended complaint. The district court adopted the
magistrate judge’s recommendation and dismissed Gilliam’s initial complaint
without prejudice, stating that it would permit Gilliam to file an amended
complaint that corrected the deficiencies identified by the magistrate judge.
Gilliam proceeded to file three amended complaints, each of which restated
his claims for discrimination and retaliation. The district court dismissed the first
two amended complaints without prejudice, each time explaining the deficiencies
in Gilliam’s allegations in detail. In its order dismissing Gilliam’s second
amended complaint, the court noted that Gilliam still had not corrected the
previously identified pleading deficiencies, encouraged him to consult a website
with resources for pro se litigants, and warned him that he would not be given any
additional opportunities to file a complaint that stated a viable claim in compliance
with the federal rules.
In his third amended complaint, Gilliam alleged that Shogren had created a
hostile work environment (composed of repeated disciplinary actions for minor or
nonexistent infractions) based on Gilliam’s adulterous relationship with Marsh,
which allegedly offended Shogren’s religious beliefs, and based on Gilliam’s race,
color, sex, and national origin. He also alleged that Shogren was “infuriated” by
Gilliam’s contact with the EEOC and issued the proposed removal in retaliation.
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He alleged that Klinker’s decision to fire him was based on his failure to adhere to
her Roman Catholic religious beliefs (by committing adultery with Marsh and
using profanity during his workplace argument with Marsh). And he alleged that
the VA violated his Fourth Amendment rights when two of his supervisors coerced
Marsh’s husband into giving them the text messages that Mr. Marsh had found by
breaking into Marsh’s cellphone without her permission.
The district court granted the VA’s motion to dismiss Gilliam’s third
amended complaint, finding that Gilliam had failed to state plausible claims for
discrimination or retaliation and that his Fourth Amendment claim was barred by
sovereign immunity. The court determined that permitting Gilliam to amend his
complaint a fourth time would be futile, and it therefore dismissed the third
amended complaint with prejudice.
Gilliam filed a series of motions challenging the dismissal, arguing that the
court had overlooked or ignored his arguments and evidence supporting his claims.
The district court considered each motion in turn, construed them as motions for
reconsideration, and denied them because Gilliam had failed to identify a clear
error or need to prevent manifest injustice that would warrant reconsideration.
Gilliam filed a pro se notice of appeal from the denial of his third motion for
reconsideration, which we read liberally to encompass the dismissal of his third
amended complaint as well as the orders denying all three of his motions for
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reconsideration. On appeal, Gilliam argues that the district court erred in
dismissing his Title VII retaliation claim and his Fourth Amendment claim and
abused its discretion in denying his motions for reconsideration with respect to
those claims. He makes no argument regarding the dismissal of his discrimination
and hostile-work-environment claims, and we therefore deem those claims
abandoned. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
II.
We review the district court’s grant of a Rule 12(b)(6) motion to dismiss for
failure to state a claim de novo, accepting the factual allegations in the complaint
as true and construing them in the light most favorable to the plaintiff. Hill v.
White, 321 F.3d 1334, 1335 (11th Cir. 2003). We review a district court’s ruling
on a motion for reconsideration for an abuse of discretion. Richardson v. Johnson,
598 F.3d 734, 740 (11th Cir. 2010).
III.
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). And to state a plausible claim for relief, the plaintiff
must plead “factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. “[C]onclusory
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allegations, unwarranted deductions of facts or legal conclusions masquerading as
facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d
1182, 1188 (11th Cir. 2002).
A.
The federal-sector provision of Title VII of the Civil Rights Act provides
that employment decisions by federal agencies “shall be made free from any
discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-16(a). This provision extends to federal employees the same protections
against discrimination and retaliation that are provided to private-sector
employees. See Porter v. Adams, 639 F.2d 273, 277–78 (5th Cir. 1981).1
In his third amended complaint, Gilliam alleged that his informal contact
with the EEOC infuriated Shogren and was the real reason that Shogren
recommended that he be removed from service. To succeed on his retaliation
claim, Gilliam would be required to show, at a minimum, that he engaged in
protected activity, he suffered a materially adverse action, and a causal connection
existed between the activity and the adverse action. Dixon v. The Hallmark Cos.,
627 F.3d 849, 856 (11th Cir. 2010). Gilliam’s EEOC contact was protected
activity, and his termination was undoubtedly an adverse employment action. But
1 We rely on decisions of the former Fifth Circuit handed down before the close of business on September 30, 1981 as binding precedent in this Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). 8 Case: 19-12984 Date Filed: 07/31/2020 Page: 9 of 18
Gilliam has not alleged facts plausibly suggesting a causal relation between the
two.
“To show causation, a plaintiff in a retaliation case need prove only that
retaliatory animus was one factor in the adverse employment decision.” Brown v.
Alabama Dep’t of Transp., 597 F.3d 1160, 1182 (11th Cir. 2010). And we
construe the element of causation in a retaliation case broadly, “so that ‘a plaintiff
merely has to prove that the protected activity and the negative employment action
are not completely unrelated.’” Goldsmith v. Bagby Elevator Co., 513 F.3d 1261,
1278 (11th Cir. 2008) (citation omitted). In his complaint, Gilliam alleged that
(1) Shogren found out about his contact with the EEOC on the day that he made
the contact (June 15, 2012) or soon after, (2) the VA paid a million dollars to settle
a lawsuit filed by other police officers alleging that Shogren retaliated against them
for engaging in protected conduct, and (3) Marsh, a Hispanic female who did not
contact the EEOC, was not fired and received only a three-day suspension. These
allegations do not support an inference that Shogren’s recommendation to fire
Gilliam was related to Gilliam’s contact with the EEOC.
First, to the extent that Gilliam seeks to establish a causal link by pointing
out that Shogren’s recommendation to fire him came after his EEOC contact, the
lapse of three months between Shogren’s alleged discovery of his statutorily
protected expression and the adverse employment action is too long to permit an
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inference of causation based on temporal proximity alone. See Clark Cty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273 (2001) (“temporal proximity must be ‘very
close’” to provide sufficient evidence of causality (citation omitted)); Brown, 597
F.3d at 1182 (three-month gap is not close enough); Thomas v. Cooper Lighting,
Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (same).
Second, the fact that other VA employees accused Shogren of retaliation and
the VA paid to settle those claims says nothing about whether Shogren acted with
retaliatory intent in Gilliam’s case. Gilliam argues that the VA’s settlement of
other retaliation claims constituted an admission that VA managers in the region
fostered a “pattern, practice, and culture” of retaliation, and that because he used
the complaint from the settled lawsuit as a guide in preparing his own complaint,
the VA should have to settle his claims too.
One obvious flaw in Gilliam’s reasoning is his premise that the settlement of
a lawsuit proves liability for the plaintiffs’ claims. Not so. The mere fact of a
settlement shows only that the parties to the lawsuit reached an agreement; such
agreements do not necessarily incorporate—and often expressly disclaim—an
admission of fault by the defendant. So Gilliam’s statement that the VA settled
retaliation claims brought by other police officers in a different lawsuit, without
more, did not allege facts raising his right to relief “above the speculative level.”
Twombly, 550 U.S. at 555.
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And Gilliam alleged nothing more than that other officers made retaliation
claims and the VA settled those claims; although he contends that the lawsuit
showed that VA management was hostile toward employees who contacted the
EEOC, his complaint contained no factual allegations regarding Shogren’s alleged
retaliatory conduct toward the plaintiffs in the referenced lawsuit. More
importantly, Gilliam failed to allege any facts supporting an inference that Shogren
acted with retaliatory intent in his case. Where causal relation evidence is “wholly
generalized,” it is “plainly insufficient to establish liability without something
more.” Brown, 597 F.3d at 1182–83.
And third, the fact that Marsh was disciplined less harshly than Gilliam does
not show that his EEOC contact played a role in his termination because Marsh is
not a valid comparator. We have explained, in discussing claims for race and
gender discrimination, that because “[d]iscrimination consists of treating like cases
differently,” the “converse, of course, is also true: Treating different cases
differently is not discriminatory, let alone intentionally so.” Lewis v. City of Union
City, 918 F.3d 1213, 1222–23 (11th Cir. 2019) (en banc) (alteration in original)
(emphasis omitted) (citation omitted). The analysis in Lewis applies equally to
Gilliam’s attempt to use Marsh as a comparator in support of his retaliation
claim—the difference in discipline does not suggest that Gilliam’s EEOC contact
was the reason for his termination because, based on the allegations in Gilliam’s
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complaint, Marsh was not “similarly situated in all material respects” to Gilliam.
Id. at 1218.
For starters, Marsh had a different job—she was not a police officer, and
might reasonably be held to different standards than Gilliam, who was. Gilliam
was also charged with several different acts of misconduct that did not apply to
Marsh, including assaulting one of his superiors, engaging in conduct unbecoming
a police officer, and disobeying the instructions of a superior officer. Moreover,
Marsh worked in a different department and had different supervisors, and a
different decisionmaker determined her discipline. The fact that Marsh’s
supervisors treated Marsh more leniently does not support an inference that
Shogren acted with retaliatory intent when he decided that Gilliam should be fired.
B.
Gilliam also attempted to state a claim against the VA for an alleged
violation of his Fourth Amendment rights. His Fourth Amendment claim was
based on his assertion that Mr. Marsh violated his wife’s privacy by “breaking and
entering” her cell phone to obtain text messages between Gilliam and Marsh, and
that the VA later coerced Mr. Marsh into providing the text messages as evidence
that Gilliam and Marsh had had sex on VA property. The district court expressed
doubts regarding the merits of this claim but concluded that it lacked jurisdiction to
reach the merits in any event. We agree.
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Gilliam sued the VA through its Secretary (in his official capacity), seeking
money damages for alleged violations of Title VII and the Fourth Amendment.
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). Congress has the power to waive this immunity and consent to suit, but
such waivers must be explicit. In re Custom Contractors, LLC, 745 F.3d 1342,
1347 (11th Cir. 2014). Where there is no express waiver, a “jurisdictional bar”
exists, and courts have no power to proceed on a claim asserted against the federal
government or one of its agencies. Id.; see Meyer, 510 U.S. at 475.
Although Congress has waived immunity for Title VII claims asserted
against government agencies like the VA, see 42 U.S.C. § 2000e-16, it has not
done so for claims against the VA seeking money damages for alleged Fourth
Amendment violations. Gilliam alleged in his third amended complaint that
Congress had waived sovereign immunity for tort claims like his through the
Federal Tort Claims Act (FTCA). It is well established, however, that claims for
constitutional torts are not cognizable under the FTCA. See Meyer, 510 U.S. at
477–78. And while Gilliam also alleged that sovereign immunity could not shield
individual federal agents from suit for constitutional violations, he failed to name
the individuals who allegedly violated his constitutional rights as defendants in his
lawsuit. See id. at 484–86 (while Bivens v. Six Unknown Named Agents of the Fed.
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Bureau of Narcotics, 403 U.S. 388 (1971), may provide a mechanism to sue
individual federal agents for their constitutional violations, it does not provide a
cause of action against federal agencies). Accordingly, the district court did not err
in dismissing Gilliam’s Fourth Amendment claim against the VA.
IV.
We turn now to Gilliam’s motions for reconsideration of the dismissal of his
third amended complaint. Rule 59(e) of the Federal Rules of Civil Procedure
“enables a party to request that a district court reconsider a just-issued judgment.”
Banister v. Davis, 140 S. Ct. 1698, 1703 (2020). A district court may only grant a
motion for reconsideration under Rule 59(e) on the grounds of “newly-discovered
evidence or manifest errors of law or fact.” Arthur v. King, 500 F.3d 1335, 1343
(11th Cir. 2007).
In each of his motions, Gilliam argued that the district court had ignored,
overlooked, or misunderstood the evidence supporting his claims. As relevant to
this appeal, Gilliam argued that the district court failed to realize that the
misconduct charges against him arose in an environment of hostility created by Mr.
Marsh’s allegations that Gilliam and Marsh had sex on VA property and Shogren’s
failure to inform Gilliam of those allegations for several months. Because the
misconduct charges were all tainted by Mr. Marsh’s false and inflammatory
allegations, Gilliam argued, they could not serve as the reason for his termination,
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which in turn showed that retaliation was the real reason. He also argued that the
district court misunderstood his reference to the VA’s settlement of the retaliation
suit by other police officers as an attempt to name comparators for his
discrimination claim. The settlement, Gilliam insisted, was indisputable proof that
a pattern and culture of retaliation existed throughout the VA’s regional healthcare
system, including the clinic where Gilliam worked.
The district court denied the motions, explaining again that Gilliam’s factual
allegations were insufficient to state a viable claim for relief, and concluding for
each motion that Gilliam had failed to show that reconsideration was warranted by
a change in the law, the discovery of new evidence, clear error by the court, or the
need to prevent manifest injustice. The district court did not abuse its discretion in
declining to reconsider its judgment. Gilliam’s motions for reconsideration, rather
than introducing newly-discovered evidence or showing clear factual or legal error
in the court’s judgment, merely restated the allegations from his earlier
pleadings—allegations that the district court addressed in its order dismissing
Gilliam’s complaint. “A motion for reconsideration cannot be used ‘to relitigate
old matters, raise argument or present evidence that could have been raised prior to
the entry of judgment.’” Richardson, 598 F.3d at 740 (citation omitted).
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V.
The district court committed no error in dismissing Gilliam’s third amended
complaint for failure to state a claim. Gilliam’s complaint, liberally construed,
failed to allege facts that would support a plausible claim that Gilliam was entitled
to relief. Moreover, because an additional amendment would have been futile, the
district court was under no obligation to provide Gilliam another opportunity to
amend before dismissing the complaint. See Surtain v. Hamlin Terrace Found.,
789 F.3d 1239, 1248 (11th Cir. 2015). And because Gilliam’s motions for
reconsideration failed to present newly discovered evidence or show that the
district court committed any manifest factual or legal error, the district court did
not abuse its discretion in denying those motions. We therefore affirm the
dismissal of Gilliam’s third amended complaint and the denials of his motions for
reconsideration.
AFFIRMED.
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MARTIN, Circuit Judge, concurring in the judgment:
I agree with the majority’s decision to affirm the District Court’s dismissal
of Mr. Gilliam’s third amended complaint. However, I write separately to
highlight what I believe is the majority’s mistaken characterization of our
precedent governing what evidence is required to establish causation in a
retaliation claim.
The majority cites Brown v. Alabama Department of Transportation, 597
F.3d 1160, 1182 (11th Cir. 2010), and Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007), for the rule that three months between an employee’s
protected conduct and his termination is “not close enough” a time period from
which we can infer causation. Maj. Op. at 9–10. True, we held in Thomas that
“without more” evidence, three months is not enough evidence from which a
reasonable jury could find a causal connection between the employee’s protected
activity and her termination. 581 F.3d at 1364. And in Brown, another case with a
three-month gap between the protected activity and the adverse employment
action, we explained that “this is not a case where temporal proximity alone is
sufficient to establish an inference of retaliation.” 597 F.3d at 1182. But it is
important to make clear that these cases do not stand for the proposition that a
three-month gap can never be “close enough.” See Maj. Op. at 9–10. Rather, they
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simply say that where a plaintiff is relying only on the fact of temporal proximity,
a three-month timeframe does not provide an inference of causation.
The majority opinion’s mistaken characterization of the holdings in Brown
and Thomas also seems to oversimplify the allegations made by Mr. Gilliam. In
his case, like the plaintiff in Brown, Mr. Gilliam relies on more than timing alone
to show causation. See 597 F.3d at 1182–83 (explaining that temporal proximity
evidence combined with testimony of an interaction Ms. Brown had with her
supervisor was insufficient to show causation). Although the majority appears to
recognize as much, 1 it also seems to evaluate Mr. Gilliam’s temporal proximity
evidence in a vacuum. But I am mindful that Mr. Gilliam has directed us to
additional causation evidence, such that we may not properly characterize his case
as one based on “temporal proximity alone.” Id. at 9–10.
For these reasons I concur only in the judgment reached by the majority.
1 The majority opinion separately discusses the other evidence to which Mr. Gilliam points: the facts that the VA settled other employees’ retaliation claims and Ms. Marsh was disciplined less harshly. See Maj. Op. at 10–11. 18