Butler v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

LARRY J. BUTLER,

Plaintiff,

v. Case No: 2:19-cv-331-JLB-MRM

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

ORDER

The Court dismissed pro se Plaintiff Larry Butler’s Second Amended

Complaint for failure to state a claim and as a shotgun pleading. (Doc. 58.) As it

had previously, the Court provided Mr. Butler with instructions on how to remedy

his pleading. (Id.; see also Docs. 19, 21, 32, 34.) But the Commissioner of Social

Security moves to dismiss the Third Amended Complaint, arguing it suffers from

the same deficiencies. (Doc. 60.) The Court agrees. And because Mr. Butler was

expressly warned that no further amended complaints would be permitted (Doc. 58

at 13), this case is DISMISSED.

BACKGROUND

As best the Court can tell from this iteration, Mr. Butler began working as an

Administrative Law Judge (“ALJ”) for the Social Security Administration (“SSA”) in

1996. (Doc. 59 at ¶¶ 4, 6.) He developed respiratory ailments after the SSA began

extensive remodelling of its Fort Myers Hearing Office where Mr. Butler worked.

(Id. at ¶¶ 13–18.) Mr. Butler required respiratory therapy and medication to

control his symptoms. (Id. at ¶¶ 18, 56–57.) On September 23, 2016, Mr. Butler

submitted a reasonable accommodation request to work from home given that his

ailments were “directly related to a hazardous work environment at the Fort Myers

Hearing Office.” (Id. at ¶ 29.) That same day, ALJ Duane Young informed Mr.

Butler that his request had been “forwarded to Atlanta” for processing but that Mr.

Butler was temporarily authorized to telework through October 4, 2016 given his

medical condition. (Id. at ¶ 30.)

Even so, Mr. Butler alleges that he “invoked the mandatory Informal Stage of

the EEOC complaint process” on November 29, 2016 because SSA managers “had

not responded to Plaintiff’s September 23, 2016 Reasonable Accommodation

request.” (Id. at ¶ 34.) “By December 21, 2016,” Mr. Butler “had clarified” that

his reasonable accommodation request “included a request” that a decision writer

assist him with “processing” his workload. (Id. at ¶ 66.) But Mr. Butler’s

superiors also began issuing him “Directives” that “disadvantaged the Plaintiff

including, the repeated issuance of Directives to schedule additional hearings when

Plaintiff was not deficient in that regard.” (Id. at ¶ 92.)1 On January 27, 2017,

Mr. Butler “prepared an EEOC Initial Interview Summary which described

Plaintiff’s EEOC Complaints related to disability discrimination, failure to grant

reasonable accommodation . . . , illegal reprisal and retaliation, harassment, and

creation of a hostile work environment.” (Id. at ¶ 37.) Mr. Butler filed “an EEOC

1 Mr. Butler’s pleading seems to contain a typographical error in stating the

first “Directive” was issued December 21, 2015. (Doc. 59 at ¶ 92.) Elsewhere, he

claims the first Directive was issued on December 21, 2016. (Id. at ¶ 167.)

Formal Complaint” on March 13, 2017. (Id. at ¶ 41.) On May 3, 2017, a complaint

was filed with the Merit Systems Protections Board (“MSPB”) seeking Mr. Butler’s

removal as an ALJ. (Id. at ¶ 158.) Mr. Butler was placed on administrative leave

and “remains in Administrative Leave status” at the time of filing the operative

pleading. (Id. at ¶ 160.)

Mr. Butler raises three claims in his pleading. Count I is titled “Failure to

Provide Reasonable Accommodation (RA).” (Doc. 59 at 3.) Count II reads

“Retaliatory Hostile Work Environment (HWE).” (Id. at 19.) And Count III is

styled “Retaliation (Discrete).” (Id. at 26.) All in all, Mr. Butler’s Third Amended

Complaint is 44 pages long and spans some 184 paragraphs. (See Doc. 59.) The

Commissioner moves to dismiss, arguing Mr. Butler has once more violated Federal

Rule of Civil Procedure 8 and 10 by not including a short and plain statement of his

claims or presenting them in a concise manner. (Doc. 60 at 3.) Alternatively, the

Commissioner argues Mr. Butler’s conclusory allegations fail to state a claim. (Id.

at 4–17.)

LEGAL STANDARD

“At the motion to dismiss stage, all well-pleaded facts are accepted as true,

and the reasonable inferences therefrom are construed in the light most favorable to

the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir.

1999) (citation omitted). A complaint must contain “a short and plain statement of

the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

Under this standard, the 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)). “Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Id. at 678.

DISCUSSION2

To begin, the Court appreciates Mr. Butler’s efforts in streamlining his

pleading—he has reduced his allegations from 112 pages and more than 400

paragraphs to 44 pages and 184 paragraphs. (Compare Doc. 55 with Doc. 59.)

Nonetheless, the pleading still fails to include “a short and plain statement of [his]

claim[s]” in a “simple, concise, and direct” manner. (Doc. 58 at 6); Fed. R. Civ. P.

8(a), (d); Carvel v. Godley, 404 F. App’x 359, 360 & n.2 (11th Cir. 2010). It remains

“a mostly incoherent document containing duplicative, inconsistent, and wholly

conclusory allegations . . . .” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294

(11th Cir. 2018). Accordingly, Mr. Butler cannot be allowed to proceed on his

operative pleading.

2 Mr. Butler is proceeding pro se. “A document filed pro se is to be liberally

construed, and a pro se complaint, however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

Even so, the Supreme Court has “never suggested that procedural rules in ordinary

civil litigation should be interpreted so as to excuse mistakes by those who proceed

without counsel.” McNeil v. United States, 508 U.S. 106, 113 (1993); Moon v.

Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (pro se litigants “subject to the

relevant law and rules of court, including the Federal Rules of Civil Procedure”).

I. Count I

Count I is Mr. Butler’s reasonable accommodation claim. (Doc. 59 at 3–19.)

He must therefore allege, among other things, that “he was discriminated against

because of his disability.” Palmer v. McDonald, 624 F. App’x 699, 705–706 (11th

Cir. 2015) (citing Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir.

2001)). “[A] qualified individual is unlawfully discriminated against if the

employer does not make reasonable accommodations for the disability.” Knowles v.

Sheriff, 460 F. App’x 833, 835 (11th Cir. 2012) (citing 42 U.S.C. § 12112(b)(5)(A)).

Accepting the well-pleaded factual allegations as true and drawing all reasonable

inferences in his favor, Mr. Butler fails to state a claim for at least one main

reason—he fails to allege that he was denied a reasonable accommodation.

He explains he requested to telework from home on September 23, 2016 after

succumbing to respiratory issues “directly related to a hazardous work environment

at the Fort Myers Hearing Office.” (Doc. 59 at ¶¶ 29–30.) But he also quotes an

email from that very same day stating that “[d]ue to your current medical condition,

temporary liberal telework is authorized through [October 2016].” (Id. at ¶ 30.)

Later, he states that he invoked the EEOC complaint process in November 2016

because the SSA “had not responded to Plaintiff’s . . . request.” (Id. at ¶ 34.) Still

elsewhere, he alleges he experienced a “continuing pattern of unlawful refusal . . . to

grant Plaintiff’s Reasonable Accommodation requests—that unlawful refusal

constituting illegal retaliation and conduct contributing to the creation of a hostile

work environment.” (Id. at ¶¶ 96, 144.)

Importantly, nowhere in his pleading does Mr. Butler allege this temporary

authorization was revoked or that he was forced to return to the Fort Myers office

after October. Though perhaps his request was never denied because he also

claims that the SSA in fact “never approved or denied Plaintiff’s [reasonable

accommodation] requests.” (Id. at ¶ 71.) Suffice it to say, Mr. Butler has not

plausibly alleged that he suffered discrimination by way of his reasonable

accommodation request being denied. Further, Mr. Butler’s threadbare allegations

fail to “give[] the [Commissioner] adequate notice of the claims against [her] and the

grounds upon which each claim rests.” Weiland v. Palm Beach Cnty., 792 F.3d

1313, 1323 (11th Cir. 2015).3

II. Count II

In Count II, Mr. Butler maintains he was retaliated against for “his

membership in [a protected class of disabled individuals] by the failure of [the SSA]

. . . to process Plaintiff’s EEO complaints and his requests for Reasonable

Accommodation.” (Doc. 59 at ¶¶ 89–90.)4 He also claims that he “was subjected to

3 That Mr. Butler also requested an SSA decision writer or agency attorney

to assist him with his caseload does not change the Court’s analysis. (Doc. 59 at ¶

66.) There are no allegations connecting that request to Mr. Butler’s medical

disability requiring him to telework from home. In fact, Mr. Butler’s response

asserts that “[t]here is no requirement that a request for temporary assistance as a

Reasonable Accommodation be solely related to medical considerations . . . .”

(Doc. 61 at 12.) “It is not enough for a plaintiff to demonstrate that an adverse

employment action was based partly on his disability; rather, the plaintiff must

prove that he suffered an adverse employment action ‘solely by reason of’ his

disability.” Palmer, 624 F. App’x at 705 (quoting Ellis v. England, 432 F.3d 1321,

1326 (11th Cir. 2005))

4 Confusingly, the rest of Mr. Butler’s pleading provides ample allegations of

the Commissioner doing just that—processing his EEOC complaint. (See, e.g., Doc.

retaliatory conduct . . . by the issuance of repeated Directives within a brief period

[of] time that were not capable of being performed . . . .” (Id. at ¶ 20.) But he has

not shown that, “based on a protected characteristic,” he encountered harassment

that was “sufficiently severe or pervasive to alter the conditions of [his] employment

and create[d] an abusive working environment.” Miller v. Kenworth of Dothan,

Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (quotation omitted). First, as noted, Mr.

Butler alleges that his request was temporarily approved but fails to allude that

this approval terminated. (See Doc. 59 at ¶ 30.) Second, Mr. Butler does not

tether the alleged harassment to his disabled status and the confused nature of his

pleading prevents the Court from making any such inference. For example, he

states that “December 21, 2015 [was] the date of issuance of the first Directive.”

(Id. at ¶ 92 (formatting omitted).) This, of course, predates both his reasonable

accommodation request and EEOC activity in 2016. (Id. at ¶¶ 30, 34.)

Even assuming this is a typographical error in that the first “Directive” was

issued in December 2016, Mr. Butler fails to include sufficient factual allegations

suggesting the “Directives” were severe or pervasive enough to alter the conditions

of his employment.5 He does not allege who issued the “Directives,” how often he

59 at ¶¶ 50, 125.) For example, “[o]n 30, 2017,” one of Mr. Butler’s supervisors

“emailed Plaintiff four (4) pages of written questions to submit to his attending

physician.” (Id. at ¶ 38.) The physician completed and returned the questions on

“March 17, 2017 . . . as part of the EEOC ‘interactive process.’” (Id. at ¶ 176.)

5 The Court hesitates to assume a typographical error because, elsewhere,

Mr. Butler’s allegations suggest the “Directives” may have begun as early as May

25, 2016. (Doc. 59 at ¶ 155.) This is yet another example of how Mr. Butler’s

operative pleading is of the shotgun variety.

received them, or how exactly they affected his duties as an ALJ. The closest Mr.

Butler gets to providing this information is by noting that the “Directives [were] to

schedule additional hearings when Plaintiff was not deficient in that regard” and

they “significantly detracted from the time Plaintiff had available to perform his . . .

duties.” (Id. at ¶¶ 92, 111.) These conclusory allegations do not support an

inference that “the workplace [was] permeated with discriminatory intimidation,

ridicule, and insult” resulting in “an environment that a reasonable person would

find hostile or abusive.” Miller, 277 F.3d at 1275–76.

III. Count III

Finally, the Court turns to Mr. Butler’s claim of “Retaliation (Discrete)” in

Count III. (Doc. 59 at 26.) Candidly, it is extraordinarily difficult to determine

what Mr. Butler is claiming here because, as the Commissioner aptly notes, the

“allegations of this count are even harder to discern than in the previous counts, as

they are equally verbose but more repetitive and bear no discernible topical or

chronological organization.” (Doc. 60 at 10.) Mr. Butler is alleging he was

“subjected to discrete adverse employment actions motivated by retaliatory intent”

for requesting a reasonable accommodation and filing an EEOC complaint. (See

Doc. 59 at ¶ 165.)

A prima facie case of retaliation requires the employee to show that: (1) he

engaged in statutorily protected activity; (2) he suffered an adverse employment

action; and (3) he established a causal link between the protected activity and the

adverse action. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir.

2010) (quotation omitted). Notably, “a plaintiff must show that a reasonable

employee would have found the challenged action materially adverse,” meaning “it

well might have dissuaded a reasonable worker from making or supporting a charge

of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006) (quotation omitted).

Here, Mr. Butler identifies the following allegedly adverse employment

actions: (a) the mishandling of his EEOC complaint (see, e.g., Doc. 59 at ¶¶ 128,

130); (b) initiating the removal proceedings in the MSPB action resulting in Mr.

Butler being placed on administrative leave (id. at ¶ 140); and (c) his reasonable

accommodation request not being considered “in good faith” (id. at ¶ 143). But Mr.

Butler fails to plausibly allege that his reasonable accommodation request and the

Commissioner’s treatment of his EEOC complaint were materially adverse

employment actions. Ignoring the SSA’s handling of these events as detailed

above—largely in Mr. Butler’s favor—he has not shown how the Commissioner’s

actions would dissuade a reasonable worker from pursuing an EEOC complaint.

To illustrate, Mr. Butler contacted those in charge of investigating his EEOC

complaint and expressed his frustration that they were the same individuals who

were pursuing the disciplinary proceedings against him. (See id. at ¶ 134.) That

the personnel may have overlapped, without more, fails to suggest an adverse

consequence. This is particularly true where, as here, the overlap did not dissuade

Mr. Butler from vindicating his EEOC rights. See Shannon v. Postmaster Gen. of

U.S. Post. Serv., 335 F. App’x 21, 27 (11th Cir. 2009) (“Moreover, [the plaintiff] filed

his last two complaints after the alleged adverse actions, thus casting further doubt

on whether these actions are of the sort that might have dissuaded a reasonable

worker from making . . . a charge of discrimination.” (quotation omitted)); cf.

Tarmas v. Sec’y of Navy, 433 F. App’x 754, 763 (11th Cir. 2011) (holding the

plaintiff failed to satisfy the prima facie case of Title VII retaliation by failing to

show that “email citing poor job performance was a materially adverse action” that

dissuaded the plaintiff “from filing and pursuing his discrimination complaint”).

To the contrary, Mr. Butler continued to pursue his workplace grievances

notwithstanding this overlap.

In a similar vein, the scattershot nature of Mr. Butler’s allegations in Count

III prevents the Court from inferring a causal connection between the protected

activity and any adverse consequence. “In order to show the two things were not

entirely unrelated, the plaintiff must generally show that the decision maker was

aware of the protected conduct at the time of the adverse employment action.”

Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1278 (11th Cir. 2008). He states

that “[a]t least by October 4, 2016, Meeka Savage Drayton, SAA, OGC, agency

disciplinary and defense counsel, was involved in assisting and advising SSA and

OHO managers with respect to investigation and processing of Plaintiff’s EEOC

complaints.” (Doc. 59 at ¶ 124.) Yet Mr. Butler alleges he did not begin the EEOC

complaint process until November 29, 2016 at the earliest. (Id. at ¶ 34.)6

6 Elsewhere, he alleges he “initiated a formal EEOC complaint that was active

and being processed” on “March 13, 2017.” (Doc. 59 at ¶ 180.)

Moreover, the “first draft of the MSPB-II removal complaint was completed”

“[b]y at least February 22, 2017,” which was four days before Mr. Butler emailed

SSA supervisors complaining about the overlap in personnel handling his EEOC

complaint. (Id. at ¶¶ 131–34.) This would also predate the recommendation of

Mr. Butler’s physician that he “restrict his physical presence at the Fort Myers

Hearing Office” in support of his telework request. (Id. at ¶ 150.) And, as a final

perplexing example, Mr. Butler alleges the complaint resulting in his being placed

on administrative leave was filed on May 3, 2017. (Id. at ¶ 180.) The SSA

“approved the final draft” on “April 17, 2017.” (Id. at ¶ 154.) Yet the “SSA

accepted Plaintiff’s EEOC Formal Complaint” on “April 19, 2017”—two days after

the draft was finalized. (Id. at ¶ 155.)

At bottom, this fourth iteration of the complaint is still incomprehensible.

Mr. Butler’s inability to set forth even a somewhat coherent chronology of events

has impeded the Court’s ability to decipher his allegations and determine if, for

example, the element of causation to establish a prima facie case exists on the face

of the operative pleading. From what the Court can discern of the clearer but

nonetheless threadbare allegations in his pleading, Mr. Butler still fails to plausibly

allege that he was dissuaded from pursuing his rights by the identified actions of

the Commissioner.

CONCLUSION

For these reasons, Mr. Butler’s Third Amended Complaint (Doc. 59)

constitutes a shotgun pleading and, even the Court’s best, but failed, attempts to

decipher the allegations have yielded the inescapable conclusion that the

allegations fail to plausibly state a claim of retaliation or harassment.

Accordingly, given the Court’s prior admonishment (Doc. 58 at 13) and Mr.

Butler’s prior opportunities to amend the complaint to conform with the Federal

Rules of Civil Procedure, this case is DISMISSED with prejudice. The Clerk is

DIRECTED to enter judgment accordingly, terminate all pending deadlines and

motions, and close the file.

ORDERED at Fort Myers, Florida, on July 11, 2022

iy ef kop > oF

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE