Hooker v. Secretary, Department of Veterans Affairs

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CARLTON HOOKER, JR.,

Plaintiff,

v. Case No: 8:18-cv-2000-T-36JSS

ROBERT WILKIE, Secretary

Department of Veterans Affairs,

Defendant.

___________________________________/

ORDER

This cause comes before the Court upon Defendant’s Motion to Dismiss Second Amended

Complaint (the “Motion”), Doc. 52, and Plaintiff’s response in opposition, Doc. 53. The Court,

having considered the parties’ submissions and being fully advised in the premises, will grant the

Motion.

I. BACKGROUND

A. Factual Background1

Carlton Hooker, Jr. (“Plaintiff”), proceeding pro se in this matter,2 is a veteran with a

service-connected disability and a former employee of the Bay Pines V.A. Health Care System.

1 The following statement of facts is derived from the second amended complaint (the “Second

Amended Complaint”), Doc. 48, the allegations of which the Court must accept as true in ruling

on the instant Motion to Dismiss, Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992);

Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp. S.A., 711 F.2d 989, 994

(11th Cir. 1983).

2 The Tampa Chapter of the Federal Bar Association operates a Legal Information Program on

Tuesdays from 1:00 p.m. to 3:00 p.m. on the 2nd floor of the Sam Gibbons United States

Courthouse and Federal Building, 801 North Florida Avenue, Tampa, Florida 33602. Through that

program, pro se litigants may consult with a lawyer on a limited basis for free. Reservations for

specific appointments may be made by calling (813) 301-5400; walk-ins are welcome if space is

available. More information about the program is available on the Court’s website at

Doc. 48 at 6. Plaintiff sues Robert Wilkie, Secretary of the Department of Veterans Affairs

(“Defendant”) for discrimination based on race, color, age, disability, and reprisal. Id. at 8. On

April 3, 2017, Plaintiff applied for a “Police Officer GS-6” job under Vacancy Announcement

Number NY-17-FNC-1930856-BU (the “First Vacancy Announcement”). Id. at ¶1. The First

Vacancy Announcement was posted on the USA Jobs website on March 23, 2017, for those who

chose to apply under “Special Employment Considerations,” and the posting was scheduled to

close on April 13, 2017. Id. at ¶2. As a disabled veteran with a service-connected disability at 30%

or more, Plaintiff applied for “Special Employment Consideration” for the position listed under

the First Vacancy Announcement. Id. at ¶3. Plaintiff contacted the service placement coordinator

regarding the First Vacancy Announcement on April 3, 2017, because he was barred from

contacting her by telephone. Id. at ¶4. Three days later, Senior Human Resource Specialist Michael

Biondo (“Biondo”) notified Plaintiff that Bay Pines received his application and Plaintiff would

be considered for the position under the First Vacancy Announcement. Id. at ¶5. Twelve days later,

Plaintiff was notified that he was ineligible for consideration for the position because he did not

meet the requirements for applicants. Id. at ¶6.

On April 3, 2017, another “Police Officer GS-6” job was posted on the USA Jobs website

as opened and closed under Vacancy Announcement Number NY-17-FNC-194457-BU-NC (the

“Second Vacancy Announcement”). Id. at ¶11. This position was listed as a direct hire authority

position, which was open to all United States citizens. Id. at ¶12. On April 17, 2017, four days

after the First Vacancy Announcement closed, Bay Pines created an application date for Plaintiff

for the position under the Second Vacancy Announcement. Id. at ¶13. On April 18, 2017, Plaintiff

http://www.flmd.uscourts.gov/litigants-without-lawyers under the link “Go to the Guide for

Proceeding Without A Lawyer.”

received notice that he qualified for the position under the Second Vacancy Announcement and

that his application would be forwarded to the employing agency for consideration. Id. at ¶14.

Plaintiff e-mailed the USA Jobs helpdesk to request a printed copy of the Second Vacancy

Announcement, which was provided. Id. at ¶15.

Plaintiff also made a Freedom of Information Act (“FOIA”) request for a copy of the

“Certificate of Eligibles” regarding the Second Vacancy Announcement; upon receipt, Plaintiff

noted that the Second Vacancy Announcement was for a direct hire position and had an open dual

certification. Id. at ¶16. Biondo admitted that he created the Second Vacancy Announcement. Id.

at ¶17. Plaintiff contends that only certain individuals may create direct hire positions. Id. at ¶18.

Plaintiff made another FOIA request on October 17, 2017, this time requesting a copy of Biondo’s

direct hire request as it pertains to the Second Vacancy Announcement, but he received a “No

Records Response.” Id. at ¶19. He alleges that Biondo created the “fake” position under the Second

Vacancy Announcement to “trick” Plaintiff into believing that he was being considered for the

position under the First Vacancy Announcement, for which he was considered ineligible. Id. at

¶20. Plaintiff nonetheless asserts that he was eligible under “Special Employment Considerations”

and argues that his ineligibility stems from his “No Engagement” status with Bay Pines, the legality

of which he disputes. Id. at ¶¶20–21.

On May 9, 2017, Plaintiff contacted an EEO counselor by telephone to discuss his

ineligibility for the position under the First Vacancy Announcement. Id. at ¶7. According to

Plaintiff, the EEO counselor misrepresented the date on which Plaintiff received the notification

of non-selection for the position under the Second Vacancy Announcement as April 18, 2017,

whereas Plaintiff actually received the notification on May 25, 2017. Id. at ¶8.

On May 25, 2017, Plaintiff was notified that another candidate was selected to fill the

position under the Second Vacancy Announcement. Id. at ¶23. Plaintiff alleges that the selected

candidate, Micah Shoaf (“Shoaf”), was not on the direct hire authority certificate and he was thus

ineligible for this direct hire authority position. Id. at ¶24. Plaintiff contends that he was the only

certified individual on this list. Id. Plaintiff also contends that Shoaf was selected under the “rule

of threes” procedure for the position under the First Vacancy Announcement over two other

candidates for that position, Mr. William Doherty and Mr. Edward Gonzalez, rather than the

position under the Second Vacancy Announcement. Id. at ¶26. On May 30, 2017, Plaintiff “made

an informal counseling” regarding his non-selection for the position under the Second Vacancy

Announcement. Id. at ¶27.

On May 30, 2017, Plaintiff moved for leave to file a formal EEOC complaint for each

position, which the Court granted on June 1, 2017, in Hooker v. Department of Veterans Affairs,

No. 8:17-mc-00062-MSS-AAS (M.D. Fla.) (the “Scriven Order”). Id. at ¶¶10, 28; Doc. 48-5 at

11–12. Plaintiff filed a complaint for the position under the First Vacancy on June 6, 2017. Id. at

¶10. Plaintiff filed a complaint for the position under the Second Vacancy on June 10, 2017. Id. at

¶28. On October 13, 2017, AFGE Local 548 President Tatishka Thomas (“Thomas”) sent an e-

mail to Plaintiff, stating that the Second Vacancy Announcement was created for him and

informing him that, although the position thereunder was offered to Shoaf, such offer had been

retracted and the position had not yet been filled. Id. at ¶29.

The Second Amended Complaint identifies two claims, labeled “Claim A” and “Claim B.”

Id. at 8. Claim A asks the Court to determine whether Defendant discriminated against Plaintiff

based on his race, color, age, disability, and reprisal (for prior EEO activity) when he was not

selected for the position under the First Vacancy Announcement. Id. Claim B asks the Court to

determine whether Defendant discriminated against Plaintiff when it did not select him for the

position under the Second Vacancy Announcement based on reprisal for prior EEO activity and

age. Id. Plaintiff seeks $300,000 in compensatory damages, placement into one of the two police

officer positions, and $600,000 in lieu of lifting the lifetime ban against Plaintiff. Id. at 18–19.

B. Procedural Background

The Court has previously detailed the procedural history of this action, but will briefly do

so again. On August 30, 2018, Plaintiff filed an amended complaint (the “Amended Complaint”),

which identified three claims, labeled “Claim A,” “Claim B,” and “Claim C.” Doc. 13 at 7, 10, 13.

First, Claim A requested the Court to determine whether Defendant discriminated against Plaintiff

based on “race (African American), color (Black), age, disability, and reprisal” in issuing a

“Restricted Access Letter” that placed Plaintiff on “No Engagement” status. Id. at 7. Second,

Claim B requested the Court to determine whether Defendant discriminated against Plaintiff based

on reprisal for prior EEO activity and age when it did not select him for the position under the First

Vacancy Announcement. Id. at 10. Third, Claim C requested the Court to determine whether

Defendant discriminated against Plaintiff based on reprisal for prior EEO activity and age when it

did not select him for the position under the Second Vacancy Announcement. Id.

Defendant moved to dismiss the Amended Complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6). Doc. 17 at 6–10. The Court agreed and granted Defendant’s motion to dismiss,

finding first that Claim A exceeded the scope of the Scriven Order, was an attempt to relitigate

issues, and failed to state a claim. Doc. 43 at 9–11. The Court also found that Claims B and C

failed to state a claim upon which relief could be granted. Id. at 9–12. The Court granted Plaintiff

leave to file a new amended complaint and instructed Plaintiff to confine his claims to the positions

under the First Vacancy Announcement and the Second Vacancy Announcement. Id. at 14.

Plaintiff subsequently filed the Second Amended Complaint, and Defendant thereafter filed the

Motion.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), a pleading must include a “short and

plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556

U.S. 662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Labels, conclusions and formulaic

recitations of the elements of a cause of action are not sufficient. Id. (citing Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). Furthermore, mere naked assertions are not sufficient. Id. A

complaint must contain sufficient factual matter, which, if accepted as true, would “state a claim

to relief that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (internal citation omitted).

The court, however, is not bound to accept as true a legal conclusion stated as a “factual allegation”

in the complaint. Id. In addition to including “a short and plain statement of the claim showing that

the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2); Ashcroft, 556 U.S. at 677–78, each claim

must be “limited as far as practicable to a single set of circumstances,” and each claim founded on

a separate transaction or occurrence must be stated in a separate count or defense if doing so would

promote clarity, Fed. R. Civ. P. 10(b).

In ruling on motions to dismiss, courts must: “(1) disregard conclusory allegations, bald

legal assertions, and formulaic recitation of the elements of a claim; (2) accept the truth of well-

pled factual allegations; and (3) view well-pled facts in the light most favorable to the plaintiff.”

Doe v. Rollins College, 352 F. Supp. 3d 1205, 1208 (M.D. Fla. 2019) (Dalton, J.) (citing Horsley

v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)). Plausible claims must be founded on sufficient

“factual content” to allow “the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” See Iqbal, 556 U.S. at 679.

In assessing the sufficiency of factual content and the plausibility of a claim, courts draw

on their “judicial experience and common sense” in considering: (1) the exhibits attached to the

complaint; (2) matters that are subject to judicial notice; and (3) documents that are undisputed

and central to a plaintiff's claim. Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211,

1215–16 (11th Cir. 2012). While pleadings from pro se litigants are held to a less stringent standard

than pleadings drafted by attorneys, Tannenbaum v. United States¸ 148 F.3d 1262, 1263 (11th Cir.

1998) (per curiam), they still must meet minimal pleading standards, Pugh v. Farmers Home

Admin., 846 F. Supp. 60, 61 (M.D. Fla. 1994) (Kovachevich, J.).

III. ANALYSIS

A. Motion to Dismiss

Under Claim A in the Second Amended Complaint, Plaintiff asks the Court to determine

whether Defendant discriminated against Plaintiff on the basis of race (African-American), color

(Black), age, disability, and reprisal (for prior EEO activity described in Hooker v. Shuklin, No.

8:17-mc-104-EAK-TGW (M.D. Fla.)) when he was not selected for the position under the First

Vacancy Announcement. Doc. 48 at 8. Claim B asks the Court to determine whether Defendant

discriminated against Plaintiff when it did not select him for the position under the Second

Vacancy Announcement based on reprisal for prior EEO activity and age. Id. Plaintiff seeks

$300,000 in compensatory damages, placement into one of the two police officer positions, and

$600,000 in lieu of lifting the lifetime ban against Plaintiff. Id. at 18–19. The Second Amended

Complaint contains scattered references to Title VII of the Civil Rights Act of 1964 (“Title VII”),

42 U.S.C. § 2000e et seq., such as his allegation that he is entitled to relief under Title VII, as

amended by the Civil Rights Act of 1991 and the Lily Ledbetter Fair Pay Act of 2009.3 Id. at 4.

Defendant moves to dismiss, arguing: (1) Claim A fails to state a cause of action of

discrimination on the selected bases and fails to state a claim of retaliation based on prior EEO

activity; and (2) Claim B fails to allege plausible claims of retaliation or age discrimination.4 Doc.

52 at 3–7. Upon consideration, and for the reasons discussed below, the claims are due to be

dismissed because they fail to state a claim upon which relief may be granted.

i. Discrimination Based on Race and Color

Under Claim A, Plaintiff requests the Court to determine whether Defendant discriminated

against him on the basis of his race and color in not selecting him for the position under the First

Vacancy Announcement. Doc. 48 at 8. To state a claim for failure-to-hire based on racial

discrimination under Title VII, a plaintiff must allege that he: (1) is a member of a protected class;

(2) applied, and was qualified, for a position for which the employer was accepting applications;

(3) despite his qualifications, he was not hired; and (4) the position remained open or was filled

by another person outside of his protected class. E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d

1265, 1273 (11th Cir. 2002).

At the outset, under his “Concise Statement of the Precise Relief Requested,” Plaintiff sets

forth these elements and accompanying allegations to argue that he “meets th[e] criteria.” Doc. 48

3 Plaintiff also mentions Title VII in the “Jurisdiction” section of the Second Amended Complaint.

Doc. 48 at 5.

4 Plaintiff alleges that he “has complied with all jurisdictional prerequisites to [the] action under

Title VII of the Civil Rights Act of 1964 and 1991 as amended,” including “having exhausted all

remedies” through the Veterans Affairs Office of Resolution Management. Doc. 48 at 5. Defendant

does not dispute Plaintiff’s alleged satisfaction of such prerequisites, but instead attacks the

plausibility of Plaintiff’s claims. Doc. 52 at 3–7.

at 18. Although these elements and allegations are listed under a section describing Plaintiff’s

requested relief and are therefore removed from the allegations offered to support Plaintiff’s

individual claims, the Court construes these allegations as being offered in support of Claim A,

given that Plaintiff alleges that Defendant discriminated against him on the basis of race or color

in Claim A only. In an effort to support his claim for failure-to-hire on the basis of racial

discrimination, Plaintiff indicates in these allegations that he is Black and African American, but

asserts that he was qualified for the position under the Second Vacancy Announcement.5 Id.

Indeed, he asserts that he constituted “the only person on the Direct Hire Authority Police Officer

Position Certificate of Eligibles” for the position under the Second Vacancy Announcement. Id.

But Claim A pertains to the position under the First Vacancy Announcement, while Claim B

pertains to the position under the Second Vacancy Announcement. Claim B, as framed by Plaintiff,

does not include a failure-to-hire claim on the basis of racial discrimination under Title VII against

Defendant. Thus, this effort to allege his qualification for the position under the First Vacancy

Announcement is unavailing.

A review of the remaining allegations demonstrates that Plaintiff has failed to state a claim

that he was qualified for the position under the First Vacancy Announcement. Plaintiff alleges that

he applied for the position on the basis of “Special Employment Consideration” on April 3, 2017.

Doc. 48 ¶¶1, 3. Three days later, he received an e-mail regarding his application, stating that he

5 Perhaps as a result of noticing his error, Plaintiff sets forth these elements again in his response

to the Motion and argues that he qualified for the position under the First Vacancy Announcement

on April 6, 2017, when Biondo advised him that his application had been received and he would

be considered. Doc. 53 at 2. However, Plaintiff may not amend the Second Amended Complaint

through his response. Grandrimo v. Parkcrest Harbour Island Condo. Ass’n, Inc., No. 8:10-cv-

964-T-27MAP, 2011 WL 550579, at *5 (M.D. Fla. Feb. 9, 2011) (Whittemore, J.). Further, while

pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys, “a district

judge is not required to rewrite a deficient pleading.” McFarlin v. Douglas Cnty., 587 F. App’x

593, 595 (11th Cir. 2014).

would be considered. Id. at ¶5. Significantly, he subsequently received a notification that he was

ineligible for the position because he did not meet the requirements for who could apply. Id. at ¶6.

Thus, Plaintiff was declared ineligible for the position. Plaintiff asserts that “it is an undisputed

fact” that this declaration of ineligibility stems from his ban from the Bay Pines VA Healthcare

System and “No Engagement” status. Id. at ¶21. To undercut the veracity of his purported

ineligibility for the position, Plaintiff contends that the ban “was in fact illegal” based on “court

documentation” he received from this Court. Id. at ¶22. The Court is not bound to accept this legal

conclusion and, in any event, the documents offered in support of the ban’s purported illegality,

which are attached to the Second Amended Complaint, do not permit the Court to draw the

reasonable inference that Defendant is liable for the alleged misconduct.

Plaintiff offers the following documents: (1) a “Records Check Request” by Plaintiff to the

Clerk of this Court to determine if Plaintiff “was ever arrested, charged, fined or imprisoned by

the Bay Pines VA Police Department, under the authority of 38 [C.F.R] 1.218”; and (2) a records

search certification from the Clerk, dated August 10, 2017, which simply lists fourteen closed civil

actions in which Plaintiff was a party and no search results for criminal cases involving Plaintiff.

Doc. 48-8 at 5–7. These documents, together with the accompanying allegations, simply do not

plausibly show that Plaintiff was eligible for the position. Further, Plaintiff’s argument in his

response that he “provided documentary evidence” from Defendant demonstrating that he met the

application requirements is also insufficient. Doc. 53 at 6. Even when viewing the factual

allegations in the light most favorable to Plaintiff and accepting as true his allegation that he

applied for the position on a “Special Employment Consideration” basis as a veteran with a

service-connected disability, this assertion fails to address Defendant’s subsequent notification—

sent to Plaintiff after he had allegedly applied for “Special Employment Consideration” —that he

was ineligible for the position because he did not meet the requirements for applicants.6 Simply

put, the Second Amended Complaint does not allege plausible facts that Plaintiff was qualified for

the position under the First Vacancy Announcement.

Additionally, the Second Amended Complaint does not allege plausible facts that the

position under the First Vacancy Announcement was filled with a person outside the protected

class or filled at all. Whether Shoaf was initially selected for the position under the First Vacancy

Announcement or the position under the Second Vacancy Announcement is entirely unclear.

Plaintiff alleges that he received notification indicating that another candidate was selected for the

position under the Second Vacancy Announcement. Doc. 48 ¶23. But Plaintiff lodges a failure-

to-hire claim on the basis of racial discrimination only as to the position under the First Vacancy

Announcement. Plaintiff initially contends that Shoaf, who is Caucasian, was “selected” for the

position under the Second Vacancy Announcement, even though he could not have been selected

off of the direct hire authority certificate for such position because Plaintiff was the only person

on the certificate. Id. at ¶24. Plaintiff next alleges that Shoaf was “selected off a competitive

certificate under the rule of three procedures as it pertains to” the position under the First Vacancy

Announcement, for which he competed with two other individuals. Id. at ¶26. Plaintiff then alleges

6 Further, the e-mail from Thomas to Plaintiff, which is attached to the Second Amended

Complaint, states that the “referenced announcement” was a direct-hire announcement because

Plaintiff reached out “regarding the [p]olice announcement which was announced from March 23

– April 13 for Bay Pines Staff only.” Doc. 48-10 at 11. Given Plaintiff’s assertion that the First

Vacancy Announcement closed on April 13, 2017, this e-mail suggests that the position under the

First Vacancy Announcement was for Bay Pines staff only. As Plaintiff was not a member of Bay

Pines staff, he would be ineligible for the position on this basis. Plaintiff also alleges that the EEO

counselor’s note references the position under the First Vacancy Announcement, which, as alleged,

was open to “[c]urrent, [p]ermanent Bay Pines employees.” Doc. 48 ¶9. An exhibit identified as

the EEO counselor’s report also describes the position as being open to current, permanent Bay

Pines employees. Doc. 48-4 at 6. These documents further undercut Plaintiff’s purported

eligibility.

that Thomas notified him that the Second Vacancy Announcement was created just for him and

that the position under the First Vacancy Announcement was offered to Shoaf, but the offer was

subsequently retracted, and, as of the date of Thomas’ e-mail, the position had not yet been filled.

Id. at ¶29.

These confusing allegations do not sufficiently allege whether the position under the First

Vacancy Announcement remained open or was filled by a person outside of the protected class.

Plaintiff’s allegations under his “Concise Statement of the Precise Relief Requested” section, as

discussed above, do not fare any better, as Plaintiff doubles down on this approach by again

referencing Shoaf’s “selection” for the position.7 Id. at 48. Even if the Court somehow construes

the Second Amended Complaint’s allegations as asserting that Shoaf, as a Caucasian, was initially

selected for the position under the First Vacancy Announcement and the position remained open

following the retraction of the offer, Plaintiff fails to allege plausible facts that he was qualified

for the position. As such, his failure-to-hire claim on the basis of racial discrimination does not

state a proper claim under Title VII.

ii. Discrimination Based on Age

1. Claim A

7 Plaintiff’s response to the Motion only reinforces the muddled nature of these allegations. Despite

bringing a racial discrimination failure-to-hire claim for only the position under the First Vacancy

Announcement, Plaintiff sets forth the failure-to-hire elements for the position under the First

Vacancy Announcement and the Second Vacancy Announcement in an apparent attempt to argue

that he has “clearly” stated a racial discrimination failure-to-hire claim for both positions. Doc. 53

at 2–6. Under the fourth failure-to-hire element for each claim, Plaintiff references Shoaf’s

selection off a competitive certification for the position under the First Vacancy Announcement

over Mr. William Doherty and Mr. Edward Gonzalez. Id. at 3. As consistently emphasized herein,

Plaintiff, as master of his Second Amended Complaint, elected to bring a racial discrimination

failure-to-hire claim for only the position under the First Vacancy Announcement.

Claim A also asks the Court to determine whether Defendant discriminated against Plaintiff

on the basis of age when he was not selected for the position under the First Vacancy

Announcement. The Court will again interpret this request as a claim for age discrimination under

the Age Discrimination in Employment Act (the “ADEA”), 29 U.S.C. § 621 et seq.8

“All personnel actions affecting employees or applicants for employment who are at least

40 years of age . . . in executive agencies . . . shall be made free of any discrimination based on

age.”9 28 U.S.C. §633a. As set forth in the Court’s prior order, a plaintiff seeking to state a claim

for age discrimination in the failure-to-hire context must allege that: (1) he was a member of a

protected class—in this case, that he was over 40 years-old; (2) he applied for and was qualified

for an available position; (3) he was rejected; and (4) the defendant filled the position with someone

outside the protected class. Childress v. Caterpillar Logistics Servs., Inc., 369 F. App’x 95, 96

(11th Cir. 2010) (per curiam) (citing Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270,

1274–75 (11th Cir. 2002)).

While a plaintiff asserting discrimination under the ADEA is not required to allege specific

facts stating a prima facie case, the complaint must nonetheless contain sufficient factual matter

to suggest intentional discrimination. Castillo v. Allegro Resort Mktg., 603 F. App’x 913, 917

(11th Cir. 2015) (per curiam). Indeed, “[w]here a complaint pleads facts that are merely consistent

8 Claim B of the Amended Complaint similarly requested the Court to determine whether

Defendant discriminated against Plaintiff on the basis of age when it did not select him for the

position under the First Vacancy Announcement, Doc. 13 at 10, which the Court construed as

Plaintiff’s attempt to state a claim for relief for age discrimination under the ADEA, Doc. 43 at

10–11.

9 Congress has defined “executive agency” as “an Executive department, a Government

corporation, and an independent establishment.” 5 U.S.C. § 105.

with a defendant’s liability, it stops short of the line between possibility and plausibility of

entitlement to relief.” Iqbal, 556 U.S. at 678 (internal quotations omitted).

Here, Plaintiff again fails to plead a proper claim for age discrimination under the ADEA.

Notably absent from the face of the Second Amended Complaint are allegations regarding

Plaintiff’s age.10 Furthermore, as discussed above, Plaintiff has not sufficiently alleged that he was

qualified for the position under the First Vacancy Announcement. Third, Plaintiff does not allege

plausible facts that the position under the First Vacancy Announcement was filled with a person

outside the protected class. Whether Shoaf was initially selected for the position under the First

Vacancy Announcement or the Second Vacancy Announcement is unclear. The e-mail from

Thomas suggests that that the position may not have been filled. Nonetheless, to the extent that

Shoaf or another individual was selected to fill the position, Plaintiff does not allege the age of

Shoaf or such individual. While the Court is mindful that Plaintiff is not required to allege specific

facts stating a prima facie case of age discrimination under the ADEA at this stage of the litigation,

an encompassing review of Plaintiff’s allegations demonstrates that the Second Amended

Complaint fails to allege a plausible claim for age discrimination under the ADEA. The Court

identified Plaintiff’s failure to state his age, his qualification for position, and the age of the person

who received the position in its previous order on Defendant’s first motion to dismiss. Plaintiff has

not amended his pleading errors. This age discrimination claim is due to be dismissed.

10 Both a “Declaration for Federal Employment” form and a “Certificate of Release or Discharge

from Activity” form attached to the Second Amended Complaint indicate that Plaintiff was born

in September of 1970, making him forty-nine years old. Doc. 48-1 at 3, 11. Nonetheless, Plaintiff

does not affirmatively plead his age in the Second Amended Complaint. The Court previously

noted this shortcoming in its order on the prior motion to dismiss. Doc. 43 at 11.

2. Claim B

Similarly, Claim B asks the Court to determine whether Defendant discriminated against

Plaintiff based on age when he was not selected for the position under the Second Vacancy

Announcement. This age discrimination claim is also due to be dismissed.

First, as discussed above, the Second Amended Complaint does not contain any allegations

regarding Plaintiff’s age. Next, in an effort to state his purported application and qualification for

the position under the Second Vacancy Announcement, Plaintiff alleges that he received an April

18, 2017 e-mail stating that his application had been reviewed and that he qualified for the position.

Doc. 48 ¶14. Plaintiff attaches this e-mail to the Second Amended Complaint, which indeed states

that Bay Pines had reviewed his application and he qualified for the position. Doc. 48-5 at 13.

Similarly, although he does not explicitly allege that he was rejected for the position, Plaintiff

references his alleged non-selection. Id. at ¶27. Even if the Court liberally construes the Second

Amended Complaint as satisfying the first three elements of an age discrimination claim under the

ADEA, Plaintiff fails to allege that Defendant filled the position with someone outside the

protected class. As discussed above, Plaintiff alleges that he received notification that another

candidate was selected to fill the position under the Second Vacancy Announcement on May 25,

2017. Id. at ¶23. Plaintiff alleges that Shoaf was selected for this position, but he could not be

selected off of the direct hire authority certificate under the Second Vacancy Announcement. Id.

at ¶¶24–25. The Court has already detailed the lack of clarity regarding whether Shoaf was selected

for the position under the First Vacancy Announcement or the Second Vacancy Announcement.

Like the analysis above, to the extent that Shoaf or another individual was selected to fill the

position under the Second Vacancy Announcement, Plaintiff does not allege the age of Shoaf or

such individual. Again, while Plaintiff is not mandated to plead specific facts stating a prima facie

case of age discrimination under the ADEA at the motion to dismiss stage, his claim must be

plausible. The claim here simply falls shorts of that standard. As such, this age discrimination

claim is due to be dismissed.

iii. Discrimination Based on Disability

Claim A also asks the Court to determine whether Defendant discriminated against Plaintiff

on the basis of his disability when he was not selected for the position under the First Vacancy

Announcement. Doc. 48 at 8. Whether Plaintiff seeks to bring this purported claim for disability

discrimination pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et

seq., the Rehabilitation Act of 1973 (the “Rehabilitation Act”), 29 U.S.C. § 701 et seq., or other

grounds is unclear because Claim A merely lists “disability” among purported bases of

discrimination and the Second Amended Complaint lacks factual allegations indicating the cause

of action.11 Of course, determining the cause of action is imperative for determining the claim’s

plausibility.

To analyze discrimination claims based on circumstantial evidence, courts “apply the same

standards under the Rehabilitation Act, the ADA, and Title VII and use[] the same framework to

analyze these claims as . . . a claim under Title VII.” Tarmas, 433 F. App’x at 761 n.7; see also

Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255–56 (11th Cir. 2007) (“Under the controlling

law in this Circuit, ‘[t]he burden-shifting analysis of Title VII employment discrimination claims

is applicable to ADA claims.’”); Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per

curiam) (“The standard for determining liability under the Rehabilitation Act is the same as that

under the [ADA] . . . thus, cases involving the ADA are precedent for those involving the

11 “The Rehabilitation Act prohibits federal agencies from discriminating in employment against

individuals with disabilities.” Tarmas v. Sec’y of the Navy, 433 F. App’x 754, 759 (11th Cir. 2011)

(per curiam).

Rehabilitation Act.”). As such, to state a prima facie case of discrimination under either the

Rehabilitation Act or the ADA, a plaintiff must show that he: (1) has a disability; (2) is otherwise

qualified for the position; and (3) was subjected to unlawful discrimination as the result of his

disability. Sutton v. Lader, 185 F.3d 1203, 1207 (11th Cir. 1999) (setting forth the standard in the

context of a Rehabilitation Act claim); Holly, 492 F.3d at 1255–56 (setting forth the standard in

the context of an ADA claim).

For the first element, the ADA defines “disability” as: “(A) a physical or mental

impairment that substantially limits one of more major life activities of such individual; (B) a

record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. §

12102(1). “Major life activities” include, without limitation, “caring for oneself, performing

manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,

breathing, learning, reading, concentrating, thinking, communicating, and working,” as well as

“the operation of a major bodily function, including but not limited to, functions of the immune

system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory,

endocrine, and reproductive functions.” Id. § 12102(2). The Rehabilitation Act adopts this

“disability” definition for disability discrimination purposes. 29 U.S.C. § 705(9)(B); Branscomb

v. Sec’y of Navy, 461 F. App’x 901, 903–04 (11th Cir. 2012) (per curiam). For the second element,

a plaintiff is a “qualified individual” if he, “with or without any reasonable accommodation, can

perform the essential functions of the job.” Holly, 492 F.3d at 1256 (internal quotation marks

omitted) (evaluating a disability discrimination claim under the ADA); Curry v. Sec’y, Dep’t of

Veterans Affairs, 518 F. App’x 957, 964 (11th Cir. 2013) (evaluating a disability discrimination

claim under the Rehabilitation Act and relying on the ADA in interpreting this element).

Here, Plaintiff merely alleges that he is a disabled veteran “with a compensable service

connected disability of 30% or more as stated in” the First Vacancy Announcement. Doc. 48 ¶3.

The Second Amended Complaint lacks any description or further identification of such purported

disability, including whether the disability is a physical or mental impairment substantially limiting

one or more major life activities of Plaintiff. Further, as Defendant points out, Plaintiff fails to

allege plausible facts that he is a “qualified individual.” Indeed, there is no indication that Plaintiff

can perform the essential functions of the position under the First Vacancy Announcement. The

Second Amended Complaint lacks any allegations plausibly stating that Plaintiff was subject to

unlawful discrimination as a result of his disability. Plaintiff’s disability discrimination claim

under Claim A is subject to dismissal.

iv. Retaliation Based on Prior EEO Activity

1. Claim A

Claim A further requests the Court to determine whether Defendant discriminated against

Plaintiff on the basis of “reprisal” for prior EEO activity when he was not selected for the position

under the First Vacancy Announcement. Doc. 48 at 8. The Court will again construe this request

as a claim for retaliation under Title VII.

Title VII prohibits retaliation against applicants for employment for opposing “any practice

made an unlawful employment practice by this subchapter” or because such applicant “has made

a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or

hearing under this subchapter.” 42 U.S.C. § 2000e–3(a). To state a claim for retaliation under Title

VII, a plaintiff must allege that: (1) he engaged in statutorily protected activity; (2) he suffered a

materially adverse action; and (3) a causal link exists between the protected activity and the

adverse action. Trask v. Sec’y, Dept’ of Veterans Affairs, 822 F.3d 1179, 1193–94 (11th Cir. 2016).

Here, even when liberally interpreting Plaintiff’s allegations, this purported Title VII

retaliation claim is not founded upon sufficient factual content to permit the Court to infer

reasonably that Defendant is liable for the alleged misconduct. First, Plaintiff addresses only the

first element of this retaliation claim. In describing his claim for “reprisal” in Claim A, Plaintiff

vaguely references Hooker v. Shuklin, No. 8:17-mc-00104-EAK-TGW (M.D. Fla.) as his “prior

EEO activity.” Doc. 48 at 8. Further explanation of the alleged EEO activity in that action does

not accompany this cursory reference, with the exception of an introductory paragraph, removed

from Claim A, which references that action and an “Employment Discrimination Complaint that

dates back to July of 2014.” Id. at 2. Despite attaching thirty exhibits to the Second Amended

Complaint, Plaintiff declined to provide supporting documentation for this reference to prior EEO

activity. In Hooker v. Shuklin, the Court granted Plaintiff leave to file a complaint for certain EEO

activity related to Defendant’s rejection of Plaintiff’s application for two security assistant

positions. No. 8:17-mc-00104-EAK-TGW (M.D. Fla.), Doc. 5 at 1.12 The order in that case states

that Plaintiff had filed a complaint of employment discrimination on July 14, 2014, and, after an

EEOC administrative judge dismissed that complaint on October 26, 2016, the EEOC denied

Plaintiff’s request to reconsider its decision to uphold Defendant’s final order in July of 2017. Id.

While it appears that Plaintiff is attempting to argue that his filing of an employment discrimination

complaint regarding these two purported security assistant positions in July of 2014 constituted

12 The Court takes judicial notice of the order granting leave to determine its contents, rather than

the truth of the statements therein. See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th

Cir. 1999) (stating the court may take judicial notice of public filings “for the purpose of

determining what statements the documents contain and not to prove the truth of the documents’

contents”); Univ. Express, Inc. v. United States S.E.C., 177 F. App’x 52, 53–54 (11th Cir. 2006)

(per curiam) (explaining that the district court could take judicial notice of public documents in

another action, such as a complaint).

prior EEO activity that served as Defendant’s alleged basis for retaliating against him, the details

of such alleged prior EEO activity are unclear in the absence of more substantive allegations. To

the extent that Plaintiff seeks to rely on other EEO activity to serve as the basis for his alleged

prior EEO activity, notwithstanding his reference to Hooker v. Shuklin, the Second Amended

Complaint lacks such supporting allegations.

The remaining EEO activity discussed in the Second Amended Complaint references

activity that occurred after the date when Plaintiff applied for the position under the First Vacancy

Announcement. Plaintiff alleges that he contacted an EEO counselor “for an informal counseling”

regarding the position under the First Vacancy on May 9, 2017. Doc. 48 ¶7. However, Plaintiff

received notice of his non-selection for the position several weeks earlier, on April 18, 2017.13 Id.

at ¶6. Thus, this allegation is insufficient to state any engagement in statutorily protected activity

for purposes of Plaintiff’s alleged retaliation claim for the position under the First Vacancy

Announcement.

In any event, turning to the next element—materially adverse action—the United States

Supreme Court has emphasized Section 2000e–3 does not confine the actions and harms forbidden

thereunder to employment-related actions or those that occur at the workplace. Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). Consequently, courts have broadly construed

such adverse actions as including those actions “not specifically related to the normal confines of

the workplace.” Toomer v. Ricketts, No. CV419-039, 2019 WL 4166783, at *3 (S.D. Ga. Aug. 30,

2019) (collecting cases). Here, while Plaintiff’s non-selection for the position under the First

13 According to Plaintiff, he received notice of his non-selection for the position under the Second

Vacancy Announcement on May 25, 2017, and the EEO counselor “fraudulently” stated that he

received the notice for this position on April 18, 2017. Doc. 48 ¶8. Of course, this allegation

pertains to the position under Second Vacancy Announcement, not the First Vacancy

Announcement.

Vacancy Announcement presumably serves as the materially adverse action, Plaintiff does not

identify a specific materially adverse action in the Second Amended Complaint, leaving both

Defendant and the Court to speculate. Nonetheless, even if the Court determines that Plaintiff has

plausibly alleged that he previously engaged in statutorily protected activity and stated his non-

selection for the position under the First Vacancy Announcement as a materially adverse action,

he has failed to allege a causal link between the two. The Court cannot discern any attempt to link

engagement in protected activity to such non-selection in the Second Amended Complaint. Thus,

the effect of Plaintiff’s purported engagement in protected activity on Defendant’s non-selection

of Plaintiff for the position, if any, is unclear.

Overall, a liberal construction of the Second Amended Complaint illustrates that Plaintiff’s

allegations simply do not provide sufficient factual support for this retaliation claim. Plaintiff has

not “nudged” this claim “across the line from conceivable to plausible.” Iqbal, 556 U.S. at 680

(internal quotation marks omitted). As such, the claim is due to be dismissed.

2. Claim B

Claim B also asks the Court to determine whether Defendant discriminated against Plaintiff

on the basis of “reprisal” for prior EEO activity when he was not selected for the position under

the Second Vacancy Announcement. Doc. 48 at 8. Like Plaintiff’s Title VII retaliation claim under

Claim A, this claim is also due to be dismissed.

At the outset, Plaintiff’s statutorily protected activity as it relates to the position under the

Second Vacancy Announcement is unclear. Unlike Claim A, which included a cursory reference

to another case before the Court, Claim B describes the alleged protected activity even more

broadly as merely “prior EEO activity.” Id. As a result, both Defendant and the Court are again

left to speculate as to the alleged protected activity.14 To the extent that Plaintiff seeks to rely on

the purported EEO activity alleged in Hooker v. Shuklin, No. 8:17-mc-00104-EAK-TGW (M.D.

Fla), as his statutorily protected activity, this reliance suffers from the same flaws as described in

the analysis for Plaintiff’s retaliation claim under Claim A. Further, Plaintiff again fails to identify

a specific materially adverse action. Finally, like Claim A, Plaintiff does not allege any causal link

between alleged protected activity and his non-selection for the position under the Second Vacancy

Announcement, and the Court can discern none.

Thus, this claim shares the same fate as its companion retaliation claim. The Second

Amended Complaint lacks sufficient factual support for the claim. In light of the absence of

sufficient plausibility, the claim is due to be dismissed.

B. Remaining Motions

Three other motions are pending before the Court: Defendant’s Motion for

Reconsideration, Doc. 57, Plaintiff’s Motion for Reinstatement of CM/ECF Privileges, Doc. 59,

and Plaintiff’s Motion Requesting Pleading to Second Amended Complaint in Lieu of Discovery,

Doc. 60. Defendant’s Motion for Reconsideration requests reconsideration of the Court’s order

lifting the stay of discovery because, according to Defendant, Plaintiff’s rhetoric and vexatious

behavior is likely to translate to discovery abuses and such abuses would lead to an influx of

motions in a case that may be subject to dismissal. Doc. 57 at 3. In the Motion for Reinstatement

14 In his response to the Motion, Plaintiff references the purported EEO activity in Hooker v.

Shuklin, No. 8:17-mc-00104-EAK-TGW (M.D. Fla.), before concluding that he “has not failed to

properly allege that he engaged in protected activity, or establish that there was a causal link

between the failure to hire and the alleged protected activity, Claim A and B of the Second

Amended Complaint cannot be dismissed.” Doc. 53 at 7. However, the Amended Complaint

references the alleged EEO activity in Hooker v. Shuklin only in reference to the position under

the First Vacancy Announcement. Additionally, as explained above, any attempt to rely on this

activity is deficient for the same reason that it is deficient under the analysis for the position under

the First Vacancy Announcement.

of CM/ECF Privileges, Plaintiff requests reinstatement of his CM/ECF filing privileges following

the revocation of Plaintiff’s privileges in another action. Doc. 59 at 1–2. Finally, in the Motion

Requesting Pleading to Second Amended Complaint in Lieu of Discovery, Plaintiff requests a

responsive pleading to the Second Amended Complaint “[d]ue to the undisputed fact” that “it

appears on it[s] face” that the Court’s lifting of the stay of discovery effectuated a denial of the

Motion. Doc. 60 at 4. As set forth above, Plaintiff’s claims are due to be dismissed in their entirety,

and the case will be closed. Based on the nature of the requested relief, each of these motions are

due to be denied as moot.

IV. CONCLUSION

The Second Amended Complaint represents Plaintiff’s second attempt to plead Claim A

and Claim B. The Court previously afforded Plaintiff an opportunity to amend his complaint to

state viable claims. “While a pro se litigant generally must be given at least one opportunity to

amend his complaint, a district judge need not allow an amendment where amendment would be

futile.” Cornelius v. Bank of Am., N.A., 585 F. App’x 996, 1000 (11th Cir. 2014) (per curiam). A

pro se complaint is properly dismissed where there is “no indication that, given a third bite at the

apple, [the plaintiff] would correct the numerous deficiencies in his complaint.” Id. The Court is

not convinced that permitting Plaintiff a third attempt to amend these claims will cure the

deficiencies. As such, Claim A and Claim B, as pleaded in Second Amended Complaint, will be

dismissed with prejudice.

Accordingly, it is ORDERED as follows:

1. Defendant’s Motion to Dismiss Second Amended Complaint, Doc. 52, is GRANTED.

Claim A and Claim B, as pleaded in the Second Amended Complaint, Doc. 48, are

DISMISSED WITH PREJUDICE.

2. Defendant’s Motion for Reconsideration, Doc. 57, is DENIED AS MOOT.

3. Plaintiff's Motion for Reinstatement of CM/ECF Privileges, Doc. 59, is DENIED AS

MOOT.

4. Plaintiff's Motion Requesting Pleading to Second Amended Complaint in Lieu of

Discovery, Doc. 60, is DENIED AS MOOT.

5. The Clerk is directed to terminate all pending motions and close this case.

DONE AND ORDERED in Tampa, Florida on January 21, 2020.

Charlene Edwards Honeywell

United States District Judge

Copies to:

Counsel of Record and Unrepresented Parties, if any

24