The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LARRY J. BUTLER,
Plaintiff,
v. Case No: 2:19-cv-331-FtM-32MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
On January 10, 2020, the assigned United States Magistrate Judge issued a
Report and Recommendation (Doc. 19) recommending that Defendant’s Motion to
Dismiss (Doc. 11) be granted and the Complaint be dismissed without prejudice to
Plaintiff filing an amended complaint. Defendant filed Objections to the Report and
Recommendation (Doc. 20).
Plaintiff pro se Larry J. Butler is an Administrative Law Judge (ALJ) with the
Office of Disability Adjudication and Review. On September 23, 2016, Butler
requested that the Social Security Administration (SSA) grant him a reasonable
accommodation based upon disability resulting from alleged hazardous working
conditions at the SSA Office of Hearings Operations in Fort Myers, Florida. Believing
that the SSA was discriminating against him based on his disability, Butler filed a
formal complaint with the EEOC in March 2017. The SSA accepted Butler’s EEOC
formal complaint and ordered an investigation of Butler’s three claims: (1) hostile
work environment based on disability and reprisal; (2) failure to provide a reasonable
accommodation; and (3) disability discrimination and reprisal. (Doc. 1 at ¶ 9).
Two months after Butler filed his formal complaint, the SSA filed a Merit
Systems Protection Board (MSPB) Complaint against Butler, requesting that the
MSPB find good cause to remove him from the position of ALJ for failure to follow
instructions and neglect of duties (the “removal action”). In the MSPB proceedings,
Butler filed an Answer and Affirmative Defenses on June 21, 2017, and raised some
of the same discrimination allegations he raised with the EEOC and SSA as
affirmative defenses, alleging that the SSA subjected him to discriminatory and
retaliatory treatment and harassment, and failed to accommodate him. (Doc. 1-6). As
part of the requested relief in the removal action, Butler claimed compensatory and
consequential damages. On April 12, 2018, the MSPB Administrative Judge denied
the SSA’s attempts to strike the affirmative defenses based on lack of jurisdiction.
(Doc. 1-7). Based on the information before the Court, it appears that the removal
action remains pending before the MSPB.
On February 19, 2019, the EEOC Administrative Judge issued an order
dismissing Butler’s complaint because the issues raised before the EEOC are pending
before the MSPB. (Doc. 1-8). The EEOC’s Order of Dismissal notified Butler of his
right to either file an appeal with the EEOC directly or to file a civil action in the
appropriate district court. On March 7, 2019, the SSA issued a Final Order on Butler’s
discrimination complaint, implementing the EEOC’s dismissal order with similar
appeal rights outlined and informing Butler that if he filed a civil action
administrative processing of his complaint would end. (Doc. 1-9).
Butler filed this action on May 22, 2019, styled as an “appeal” of the EEOC and
SSA’s dismissal pursuant to the Administrative Procedures Act, requesting that the
Court vacate the EEOC and SSA’s dismissal orders and “remand the matter for a
hearing in accordance with the law.” (Doc. 1).
The question presented in Defendant’s Motion to Dismiss is whether Butler is
impermissibly prosecuting his discrimination claims on two tracks simultaneously;
that is, before the MSPB and this Court. Defendant argues that Butler elected to
proceed before the MSPB on his discrimination claims and therefore this Court should
decline to exercise jurisdiction or otherwise dismiss the Complaint on estoppel
grounds.
The Magistrate Judge recommends that Butler’s discrimination claims may
proceed here because the record shows that Butler elected to pursue his EEO claims
before the EEOC, not the MSPB. However, Judge McCoy also recommends that an
appeal of the EEOC and SSA’s decisions was not the proper avenue to file his case
here. Since the administrative process has concluded, Butler should have filed a direct
claim in this Court to obtain de novo review. See Ellis v. England, 432 F.3d 1321,
1323-24 (11th Cir. 2005). Therefore, Judge McCoy recommends that the Complaint
(Doc. 1), styled and framed as an “appeal,” be dismissed without prejudice to Butler’s
ability to file an amended complaint seeking de novo review of his discrimination
claims.
Defendant objects to the portion of the R&R on subject matter jurisdiction but
agrees that Plaintiff should be allowed to amend if this case will proceed. Under 28
U.S.C. § 636(b), a district judge may accept, reject or modify in whole or in part the
magistrate judge’s report and recommendation; parts to which objections have been
lodged must be reviewed de novo. Fed. R. Civ. P. 72(b)(3).
The Court agrees that Plaintiff’s purported basis for the Court’s jurisdiction –
that is, an appeal of the EEOC and SSA’s Final Orders – is improper. See Ellis, 432
F.3d at 1323-24. The Court will allow Plaintiff to amend to assert a direct claim to
obtain de novo review of his EEO claims. The remainder of Defendant’s motion to
dismiss is moot but may be re-raised by Defendant if necessary after an amended
complaint is filed.1
Upon de novo review of the file it is hereby
ORDERED:
1. The Complaint (Doc. 1) is DISMISSED. No later than March 20, 2020,
Plaintiff shall file an amended complaint consistent with this opinion. Defendant shall
respond to the amended complaint by April 17, 2020.
2. The Report and Recommendation of the Magistrate Judge (Doc. 19)
recommending that the Complaint (Doc. 1) styled and framed as an “appeal” be
dismissed without prejudice to Butler’s ability to file an amended complaint seeking
1 Any amended complaint must comply with Federal Rules of Civil Procedure 8
and 10(b) (requiring that a complaint be separated into numbered paragraphs and
counts).
de novo review of his discrimination claims is ADOPTED as the opinion of the Court.
The remaining portions of the Report and Recommendation are MOOT.
3. Defendant’s Motion to Dismiss (Doc. 11) is DENIED.
4. The parties shall file a Case Management Report no later than April 17,
2020.
DONE AND ORDERED in Jacksonville, Florida the 2nd day of March, 2020.
LH, (7 Cr
TIMOTHY J. CORRIGAN
United States District Judge
Copies to:
Honorable Mac R. McCoy
United States Magistrate Judge
Counsel of Record
Pro se parties