Kirkland

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

FOY D. KIRKLAND,

Plaintiff,

v. Case No. 5:24-cv-538-CLM

THOMAS J. VILSACK,

Secretary, Department of

Agriculture, et al.,

Defendants.

MEMORANDUM OPINION

Until he resigned in 2024, Plaintiff Foy Kirkland worked for the

Natural Resources Conservation Service (“NRCS”), an agency the United

States Department of Agriculture (“USDA”), alongside the Morgan Soil

and Water Conservation District (“MSWCD”). Kirkland sues the USDA

Secretary and five individual members of the MSWCD. Kirkland pleads

three counts: (1) Defendants discriminated against him because of his age;

(2) Defendants retaliated against him for reporting the discrimination;

and (3) the five individual members of the MSWCD defamed him. All

Defendants move to dismiss Kirkland’s claims under Rule 12. (Docs. 38,

68). For the reasons explained below, the court GRANTS their motions.

BACKGROUND

Defendants move to dismiss Kirkland’s complaint under Rule 12. So

the court draws its facts from Kirkland’s Third Amended Complaint, (doc.

34), and views them in the light most favorable to Kirkland.

I. Factual Background

Kirkland is a 72-year-old former District Conservationist with the

NRCS. During the relevant period, Kirkland supervised the NRCS field

office in Morgan County, Alabama. In that role, he managed conservation

programs, oversaw staff, and served as the primary liaison between NRCS

and the MSWCD, a local governmental entity that worked closely with

NRCS to implement federal conservation initiatives. MSWCD operated

out of the NRCS office and exercised significant influence over day-to-day

operations within that workplace. Kirkland reported to April Hill, an

NRCS management official responsible for overseeing multiple northern

Alabama counties. Hill, in turn, reported to senior NRCS leadership.

The events underlying Kirkland’s claims began when he identified

irregularities in the administration of a federally funded conservation

program supported by Clean Water Act Section 319 grants. The program

relied on grant funding to support conservation initiatives in Morgan

County. While reviewing program operations, Kirkland discovered what

he believed to be financial irregularities involving an MSWCD-affiliated

employee and a member of the MSWCD board. Kirkland concluded that

the conduct did not comply with federal grant requirements and could

constitute fraud involving federal funds. So he reported these concerns to

the appropriate authorities and raised them internally with MSWCD

leadership. Following these reports, Kirkland’s relationship with MSWCD

officials deteriorated.

Shortly after Kirkland raised concerns about misconduct, MSWCD

altered the supervisory structure within the NRCS field office.

Historically, Kirkland supervised the office’s administrative coordinator.

In early 2020, however, MSWCD removed that responsibility from

Kirkland and reassigned it someone else. An MSWCD official justified the

decision by stating that Kirkland would soon be retiring and that the

change would ease his workload. Kirkland objected, explaining that he

had not indicated an intent to retire and that the change constituted an

unwanted reduction in his responsibilities. But MSWCD implemented the

change anyway. Kirkland alleges that this action represented the first

step in a broader effort to marginalize him within the workplace as he

approached retirement age.

Following the restructuring, MSWCD officials began submitting

complaints about Kirkland to his supervisor, April Hill. These complaints

were frequently relayed through a newly-hired administrative employee

who, according to Kirkland, acted at the direction of MSWCD board

members. In May 2020, Hill issued Kirkland his first “conduct caution”

based on these complaints—marking the first disciplinary action of his

nearly 40-year career. Additional complaints followed over the next year,

resulting in continued scrutiny and further cautionary communications

from Hill. Kirkland alleges that many of these complaints were baseless

and pretextual. He further contends that Hill was aware that the

complaints were meritless but nevertheless relied on them to justify

disciplinary action against him.

By 2022, MSWCD’s efforts escalated to an explicit attempt to

remove Kirkland from his position. In May 2022, MSWCD sent a formal

request to Hill that Kirkland be removed as District Conservationist. The

request included numerous statements about Kirkland’s conduct that he

alleges were false and defamatory. Kirkland contends that these

statements were made in retaliation for his earlier reports of financial

irregularities and workplace misconduct and were intended to damage his

professional reputation within NRCS and the broader agricultural

community.

Following MSWCD’s request for his removal, Kirkland continued to

report concerns about MSWCD officials to NRCS leadership. He alleges

that Hill responded with hostility and failed to take corrective action. In

August 2022, NRCS implemented a partial separation between MSWCD

and the NRCS field office to limit direct interaction between MSWCD

officials and Kirkland. Despite this separation, MSWCD continued to

submit communications criticizing Kirkland and accusing him of

misconduct. Kirkland alleges that MSWCD officials directed others to

document his daily activities and report negative information to NRCS

management, which in turn led to further internal scrutiny. Kirkland

says these actions created a sustained pattern of harassment designed to

force him from his position. Kirkland ultimately resigned, but not before

filing a formal complaint with the USDA and EEOC.

II. Procedural Background

This case actually involves two distinct administrative proceedings,

and its result turns on the distinction between them.

A. EEOC-I and the Miscellaneous Civil Suit

Kirkland filed his first administrative complaint on August 25,

2022, alleging age discrimination and harassment during his employment

with the NRCS/USDA (referred to as “EEOC-I”). The USDA investigated

the complaint; the matter proceeded to the EEOC; and the EEOC granted

summary judgment for the Government on November 22, 2023. The

USDA issued a Final Agency Order implementing the EEOC’s decision on

November 28, 2023. The order notified Kirkland of his rights to either (a)

appeal the decision to the EEOC within 30 days or (b) file a civil action in

federal district court within 90 days. But Kirland took a third path.

Kirkland let the 30-day window to appeal pass. But rather than file

a lawsuit in this court, Kirkland filed a “Motion for Extending Time”

directly with this court, asking the court to enter an order “that the time

for filing the appeal be extended from February 26, 2024 for 90 days or as

the Court may determine.” Because Kirkland filed a 2-page motion

without a complaint outside of an existing case, the Clerk’s Office styled

the proceeding as a miscellaneous action, called it Kirkland v. Vilsack, No.

4:24-mc-210-MHH (“Misc. Case”), and assigned it to Judge Haikala.

During a phone conference, Kirkland’s attorney told Judge Haikala that

Kirkland wanted extra time to appeal the order to the EEOC and did not

intend for the motion “to serve as a civil action in district court.” See Misc.

Case (doc. 6, p. 2-3). Judge Haikala denied the motion because this court

lacks jurisdiction to extend EEOC appellate deadlines and thus closed the

case. (Id.)

B. EEOC-II

During the 30-day window to appeal the EEOC-I order, Kirkland

filed his second administrative complaint (“EEOC-II”). In it, Kirkland

alleged retaliation based on his EEOC-I activity and challenged the

dismissal of his EEOC-I complaint. On January 30, 2024, the USDA

issued a Final Agency Decision dismissing the EEOC-II complaint in its

entirety. The agency concluded that several of Kirkland’s allegations

constituted impermissible collateral attacks on the EEO process and that

the alleged conduct did not rise to the level required to establish a

retaliatory hostile work environment.

C. This Civil Lawsuit

On April 29, 2024, Kirkland filed this case, asking the court to

overturn the EEOC-II Final Order and asserting claims for age

discrimination and retaliation. (Doc. 1). Kirkland then amended his

complaint multiple times, eventually adding the MSWCD Defendants and

a defamation claim against them. Each amended pleading included

additional factual allegations and supporting exhibits that exceed 3,300

pages in total. Kirkland’s second amended complaint also referenced the

EEOC-I complaint and appeared to incorporate events from the first

administrative proceeding into the claims asserted in this case.

On February 19, 2025, Kirkland filed a Third Amended Complaint,

which now serves as the operative complaint. (Doc. 34). That complaint

asserts three claims: (1) Age Discrimination in violation of the Age

Discrimination in Employment Act (“ADEA”); (2) Retaliation under the

ADEA; and (3) a state-law defamation claim against the individual

members of the MSWCD. All Defendants move to dismiss under Rule 12.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 8(a)(2), a plaintiff must

provide “a short and plain statement of the claim showing that the pleader

is entitled to relief.” The “[f]actual allegations [in the complaint] must be

enough to raise a right to relief above the speculative level.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). This “requires

more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Id. (citation omitted). “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 Twombly, 550 U.S. at

570).

“Exhaustion of administrative remedies is a matter in abatement

that should be raised in a motion to dismiss.” Duble v. FedEx Ground

Package Sys., Inc., 572 F. App’x 889, 892 (11th Cir. 2014) (citing Bryant v.

Rich, 530 F.3d 1368, 1374–75 (11th Cir. 2008)). The Court can look to the

factual record outside the pleadings to adjudicate the abatement issue.

See Bryant, 530 F.3d at 1376. If a party fails to comply with the charge-

filing requirement or the administrative time limits, he cannot assert a

claim in court. See Sheffield v. United Parcel Serv., Inc., 403 F. App’x 452,

454 (11th Cir. 2010); Robinson v. Regions Fin. Corp., 242 F. Supp. 2d 1070,

1076-77 (M.D. Ala. 2003). And “[o]nce a defendant contests the issue of

whether the complaint was filed timely, the plaintiffs bear the burden of

showing that they have met the requirement.” Kerr v. McDonald’s Corp.,

427 F.3d 947, 951 (11th Cir. 2005).

DISCUSSION

Defendants move to dismiss Kirkland’s claims for failure to exhaust

administrative remedies, failure to state a claim, and because the

complaint is a shotgun pleading. The Defendants are right; the complaint

is a shotgun pleading. But the court mentions that glaring problem only

briefly in Part II so that it can focus instead on the material problem with

the two claims that give this court federal question jurisdiction: Kirkland

is trying to use his second EEOC charge and this lawsuit to resurrect the

claims from his first EEOC charge that he failed to timely appeal after

losing at the agency level. The court proceeds with Kirkland’s claims in

the order that he pleads them.

I. Count 1: Age Discrimination

Count 1 alleges age discrimination claim under the ADEA. (Doc. 34,

p. 31). The court DISMISSES this count because Kirkland failed to follow

requisite administrative procedures. The court starts by explaining those

procedures, then explains how Kirkland failed to follow them.

A. The ADEA and Administrative Procedure

The ADEA protects individuals who are at least 40 years of age from

age discrimination in employment. 29 U.S.C. § 631(a). The law is clear

that to bring an action for age discrimination or retaliation under the

ADEA, a plaintiff must first file a timely charge of discrimination with the

EEOC or appropriate state or local agency. 29 U.S.C. § 626(d); see also

Bost v. Fed. Express Corp., 372 F.3d 1233, 1238 (11th Cir.2004) (“The

ADEA requires that an individual exhaust available administrative

remedies by filing a charge of unlawful discrimination with the EEOC

before filing a lawsuit.”). If the EEOC dismisses a plaintiff’s charge of

discrimination, the ADEA allows him to bring a civil action within 90 days

after the date he receives the notice of dismissal. See 29 U.S.C. § 626(e).

The 90-day window imposes on complainants some “minimum

responsibility ... for an orderly and expeditious resolution” of their claims.

Kerr, 427 F.3d at 952. The limitation further serves to quell the Eleventh

Circuit’s “expressed concern over enabling complainants to enjoy

a ‘manipulable open-ended time extension which could render the

statutory minimum meaningless.’” Id. “Thus, what is effectively the

ADEA’s statute of limitations is based on compliance with administrative

filing deadlines.” Robinson, 242 F. Supp. 2d at 1077.

B. Kirkland’s Age Discrimination Claim

Kirkland’s Count 1 age discrimination claim stems from his EEOC-

I charge. (Doc. 9-3, pp. 77-98). In fact, all of the allegations Kirkland raises

in the Third Amended Complaint are derived from the EEOC-I charge.

(See id.) But more on that later.

1. Time bar: The USDA issued a final order implementing the

EEOC-I decision on November 28, 2023. (Doc. 9-68). The Agency included

a notice advising Kirkland of his right to appeal to the EEOC within 30

days or file an action in federal district court “[w]ithin ninety (90) days of

receipt of the final action if no [EEOC] appeal has been filed.” (Doc. 9-68,

p. 3). The notice sets out the well-settled procedure for bringing an ADEA

claim. That is, a plaintiff asserting a claim under the ADEA must file his

complaint within 90 days of his receipt of a right-to-sue letter. 29 U.S.C.

§ 626(e); Kerr, 427 F.3d at 951; Edward v. Shalala, 64 F.3d 601, 605–06

(11th Cir. 1995) (holding that federal employees must bring claims based

on the ADEA within the filing periods provided for a Title VII action, 42

U.S.C. § 2000(e)-16(c)).

But that’s not what Kirkland did. He did not file an EEOC appeal

within 30 days. Nor did he file a lawsuit with this court within 90 days.

Instead, Kirkland filed a second administrative charge (EEOC-II) within

30 days and a motion asking this court to extend his time to appeal EEOC-

I to the EEOC by another 90 days. See Misc. Case (docs. 1, 6).

Neither of these actions stopped the clock for filing a lawsuit in this

court. So Kirkland’s deadline expired on February 26, 2024. Kirkland filed

this lawsuit on April 30, 2024, well after the deadline. And, as the court

explains later, Kirkland’s second administrative complaint (EEOC-II) did

not contain new allegations of age discrimination; it only alleged

retaliation for filing the EEOC-I charge. So EEOC-II didn’t restart the

clock for Kirkland to raise his age discrimination claim. As a result, unless

the court equitably tolls the statutory deadline, any claim stemming from

the EEOC-I charge is time barred.

2. Equitable tolling: Kirkland recognizes that he missed the window

to file a lawsuit that contains the claims he levied in his EEOC-I charge.

But he blames the untimeliness of his claim on “an unfortunate flurry of

confusing activity on the part of Mr. Henson, [Kirkland’s former attorney],

and Judge Haikala.” (Doc. 34, pp. 27-28). Kirkland “asserts that the delay

in filing was due to extraordinary circumstances, including the confusion

caused by his former counsel’s serious health issues and the subsequent

procedural missteps” such that his claim warrants equitable tolling. (Doc.

55, pp. 3-4). The court disagrees.

“Equitable tolling is an extraordinary remedy. As a result, it will

not extend to a garden variety claim of excusable neglect.” Hogan v. Sec’y,

U.S. Dep’t of Veterans Affs., 121 F.4th 172, 178 (11th Cir. 2024) (citation

modified). A party seeking equitable tolling must prove “(1) that he has

been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing.” Villarreal v.

R.J. Reynolds Tobacco Co., 839 F.3d 958, 971 (11th Cir. 2016) (quotations

omitted). The “extraordinary circumstance” standard is a relatively high

bar. Kirkland must show an “abandonment of the attorney-client

relationship;” “attorney negligence, and even gross negligence or

recklessness, is not an extraordinary circumstance” sufficient for

equitable tolling. Thomas v. Att’y Gen., Fla., 795 F.3d 1286, 1291 (11th

Cir. 2015).

While the court is sympathetic to Kirkland’s former counsel’s health

issues, the court notes that he filed Kirkland’s EEOC-II charge and the

erroneous “Motion for Extending Time” during the 90-day window to file

this lawsuit. So it doesn’t appear that counsel was medically unable to

satisfy the deadline; he just got it wrong (twice). Attorney error is not the

“extraordinary” type of circumstance required for equitable tolling, so the

court will not apply that remedy here. As a result, Kirkland’s age

discrimination claims stemming from his EEOC-I charge are untimely.

The court therefore GRANTS Defendants’ motions to dismiss Kirkland’s

age discrimination claim in Count 1, (docs. 38, 68).

II. Count 2: Retaliation

In Count 2, Kirkland asserts an ADEA retaliation claim under 29

U.S.C. § 623(d). (See Doc. 34, p. 32). Kirkland’s retaliation claim, on its

face, does not suffer from the same timeliness issue which hindered his

age discrimination claim because the retaliation claim arises from

Kirkland’s second administrative charge, EEOC-II. And Kirkland

managed to file this case on the last day of the 90-day deadline. So

timeliness isn’t the initial problem with this claim.

But Kirkland isn’t out of the woods yet. Kirkland has a scope

problem: the retaliation allegations in his EEOC-II charge don’t match up

with the claims Kirkland raises in this lawsuit. This is a fatal flaw.

A. The Law

A plaintiff’s judicial complaint following an EEOC charge is limited

in scope. “The starting point of ascertaining the permissible scope of a

judicial complaint alleging employment discrimination is the

administrative charge and investigation. A plaintiff’s judicial complaint is

limited by the scope of the EEOC investigation which can reasonably be

expected to grow out of the charge of discrimination.” Anderson v.

Embarq/Sprint, 379 F. App’x 924, 926 (11th Cir. 2010) (internal citations

omitted). The Eleventh Circuit has noted that “judicial claims are allowed

if they ‘amplify, clarify, or more clearly focus’ the allegations in the EEOC

complaint,” but the Circuit has also warned that “allegations of new acts

of discrimination are inappropriate.” Id.

In limited circumstances, an allegation of discrimination in an

untimely EEOC charge may bleed into a subsequent charge and judicial

complaint. “The continuing violation doctrine allows the plaintiff to sue

on otherwise time-barred claims if the defendant’s actions violate a

plaintiff’s rights on a repeated or ongoing basis. The doctrine is based on

the equitable notion that the statute of limitations ought not to begin to

run until facts supportive of the cause of action are or should be apparent.”

Jimenez v. U.S. Att’y Gen., 146 F.4th 972, 992 (11th Cir. 2025) (citation

modified). But as the Eleventh Circuit has explained, the continuing

violation doctrine is not without its limits. For example, “[w]hen a

defendant takes separate and discrete acts that repeatedly violate the

law, the continuing violation doctrine does not apply.” Id. (quotations and

citation omitted).

Determining whether an employee’s charge is timely thus

requires identifying precisely the unlawful employment

practice of which he complains. Each discrete adverse

employment decision … is a separate actionable unlawful

employment practice that starts a new clock for filing

charges alleging that act. Discrete discriminatory acts are

not actionable if time barred, even when they are related to

acts alleged in timely filed charges.

The continuing violation doctrine cannot convert related

discrete acts into a single unlawful practice for the purposes

of timely filing. Instead, when an employee alleges serial

violations, i.e., a series of actionable wrongs, a timely EEOC

charge must be filed with respect to each discrete alleged

violation. Claims of discrimination based on independent

discriminatory acts cannot be aggregated to extend the

limitations period.

Id. (citation modified, highlight added).

The analysis is slightly different in the context of a hostile work

environment or constructive discharge claim because those “claims are

continuing by their very nature—they are composed of a series of separate

acts that collectively constitute one unlawful employment practice.” Id. at

993 (citation modified). However, a “timely filed constructive discharge

claim [cannot] resuscitate other time-lapsed claims.” Id.

The pivotal question is whether the timely and untimely acts

may be fairly considered part of the same claim. To answer

this question, [courts] look to whether the timely acts were

the same type of discriminatory intimidation, ridicule, and

insult that characterized the untimely allegations.

A plaintiff must point to more connecting the incidents than

the identity of the employee and of the entity employing the

discriminatory decisionmaker. … Separate acts may be

treated as part of the same unlawful employment practice if

the pre- and post-limitations period incidents involved the

same type of employment actions, occurred relatively

frequently, and were perpetrated by the same managers.”

Id. at 993-94 (citation modified).

Having set the stage, the court now turns to the retaliation claim in

Kirkland’s judicial complaint as compared to his charge in EEOC-II

B. Resurrected claims from EEOC-I

Because it is the procedural foundation of Kirkland’s claims, the

court starts with the allegations in Kirkland’s EEOC-II charge. EEOC-II

alleges that four NRCS officials retaliated against Kirkland for filing his

first EEOC-I charge. (See docs. 3-3; 3-17). The alleged discriminating

officials named in EEOC-II are: (1) Terry Crosby, NRCS Chief; (2) James

Tillman, NRCS Regional Conservationist; (3) Ben Malone, MRCS State

Conservationist; (4) April Hill, MRCS Assistant State Conservationist,

Field Operations, North Team; and (5) Traci Lillard, FPAC EEO

Specialist, Counselor, and Mediator. (Doc. 3-3, p. 1).

The EEOC-II charge lays out four alleged acts of retaliation by the

named officials that Kirkland described as Issues 1-4. (Doc. 3-3, p. 2).

Specifically, the EEOC-II charge alleges that April Hill requested medical

documentation stating that Kirkland was cleared to return to work, that

Hill told Kirkland he would not receive a new computer until he returned

from leave, and that Hill’s supervisors did not adequately respond to

Kirkland’s emails asserting that Hill was discriminating against him,

thus allowing the retaliation to continue. (Id.) Kirkland also complained

that the EEOC decision on EEOC-I was erroneous because his EEO

counselor, Traci Lillard, mischaracterized his claims. (Doc. 3-3, p. 11).

As the court explained earlier, the proper scope of Kirkland’s

judicial complaint should be limited to “the EEOC investigation which can

reasonably be expected to grow out of the charge of discrimination” raised

in EEOC-II, Anderson, 379 F. App’x at 926, because it is the only EEOC

charge from which Kirkland timely filed suit. So let’s compare the EEOC-

II retaliation allegations described above to those Kirkland asserted in his

operative complaint here:

112. The Plaintiff engaged in protected activity when raised

concerns about the job performance of Boles, the reduction

in Program 319 activity and false timekeeping records.

113. The Plaintiff engaged in protected activity when he

raised concerns about the change in his role and Position

Description.

114. The Plaintiff suffered an adverse employment action

when he was forced to terminate his employment.

115. The Plaintiff suffered an adverse employment action

when he lost his supervisory responsibilities.

116. The Plaintiff suffered an adverse employment action

when he lost his influence and ability to meet with local

farmers and carry out the responsibilities of his Position

Description.

117. The Plaintiff was terminated, in part, in retaliation for

his protected activity, expressing concern about his job

security in response to ageist comments and conduct and a

preferential treatment of younger employees by the

Defendants.

(Doc. 34, p. 33).

If you’re thinking that these allegations sound a bit different from

those the court described from the EEOC-II charge, you see the problem.

They are different. The question is whether “the timely [EEOC-II] and

untimely [EEOC-I] acts may be fairly considered part of the same claim.”

Jimenez, 146 F.4th at 993.

To be fairly considered part of the same claim, the distinct acts

Kirkland complained of in his EEOC-II charge must be the “same type of

discriminatory intimidation, ridicule, and insult that characterized the

untimely” EEOC-I allegations. Id. In other words, the “[s]eparate acts

may be treated as part of the same unlawful employment practice if the

pre- and post-limitations period incidents involved the same type of

employment actions, occurred relatively frequently, and were perpetrated

by the same managers.” Id. at 993-94 (citation modified).

They are not, which becomes evident when you view the allegations

side-by-side:

Kirkland’s Third Amended EEOC-II Charge, (Doc.

Complaint, (Doc. 34). 3-3).

Alleged Thomas Vilsack, Secretary, Terry Crosby, James

Perpetrators Department of Agriculture; Jeff Tillman, Ben Malone, and

Clark, Hal Lee, Doug Wiggington, April Hill, all NRCS

Doyle Whitlow, and Billy officials; and Traci

Abercrombie, Individually and as Lillard, EEOC Counselor.

Members of The Morgan County

Soil and Water Conservation

District.

Protected Kirkland raised concerns about the Kirkland filed the EEOC-

Activity job performance of Boles, the I charge.

reduction in Program 319 activity

and false timekeeping records.

Kirkland raised concerns about the

change in his role and Position

Description.

Discriminatory Kirkland lost his supervisory NRCS officials did not

Acts responsibilities, his influence, his respond to Kirkland’s

and ability to meet with local emails. Hill requested

farmers. Kirkland was medical documentation

constructively terminated for from Kirkland before he

expressing concern about his job returned from medical

security in response to ageist leave. Hill told Kirkland

comments and preferential that he would not receive

treatment of younger employees by a computer refresh until

the Defendants. he returned from leave.

And an EEO counselor

did not properly

characterize his claims.

Do the allegations in Kirkland’s judicial complaint have anything to

do with medical leave? No. What about getting a new computer? No.

Supervisors ignoring Kirkland’s emails? No, again. The allegations in

Kirkland’s judicial complaint have no relation to the four discrete

retaliatory acts he pleaded to the EEOC in EEOC-II. Instead, Kirkland

tries to use EEOC-I and this resulting lawsuit to resuscitate the time-

barred allegations from EEOC-I. This he cannot do.

For his part, Kirkland argues that the “allegations of retaliation in

Kirkland II are inherently connected to the age discrimination claims

raised in Kirkland I.” (Doc. 55, p. 4). But even if that is true, EEOC-II

asserts four numbered, discrete retaliatory actions. Each one of those acts

is clearly distinct from the EEOC-I allegations. And “[d]iscrete

discriminatory acts are not actionable if time barred, even when they are

related to acts alleged in timely filed charges.” Jimenez, 146 F.4th at 992.

The court therefore DISMISSES as time barred Count 2 because,

in it, Kirkland relies on the allegations he presented the EEOC in his

EEOC-I charge, not the EEOC-II charge.

C. Additional Pleading Deficiencies

Should Kirkland complain that the court misread or missed some

protected activity and retaliatory action that did not stem from EEOC-I,

and was squarely and fairly presented to the EEOC in EEOC-II, then the

court alternatively dismisses those portions of Count II for two reasons.

1. Shotgun Pleading: Both the EEOC-II charge (doc. 1-1) and the

operative complaint (doc. 34) are a mess. The court has tried to compare

them as best it could. While it is better than the EEOC-II charge, the

complaint does not comply with Rule 8(a)(2)’s requirement of a “short and

plain statement showing that the pleader is entitled to relief.” This is

especially concerning given that the operative complaint is Kirkland’s

fourth bite at the apple to plead a sufficient claim.

Kirkland’s Third Amended Complaint contains 30 pages of factual

allegations, and he has attached thousands of pages of exhibits from his

administrative record. It is difficult, if not unfeasible, to determine how

Kirkland’s allegations connect to the claims at issue, or where in the maze

of administrative proceedings they arise from. This problem is

compounded by the fact that each count of Kirkland’s complaint is pleaded

against “Defendants.” But Kirkland is suing six separate individual

defendants, not one of whom is named as a discriminating official in either

of Kirkland’s EEOC charges. Kirkland’s claims are impossible for the

court to understand and Defendants to defend against. So Count II is

alternatively due to be DISMISSED as a shotgun pleading.

2. Constructive Discharge: Doing its best to parse through EEOC-I,

EEOC-II, and the operative complaint, the court finds that Kirkland’s

allegations about ignored emails and his new computer might be exclusive

to EEOC-II. But even in a light most favorable to Kirkland, those facts

would not prove the constructive discharge claim he pleaded in Count II.

The ADEA prohibits federal employers from retaliating against an

employee for opposing the employer’s discriminatory practices or

participating in any investigation or proceeding that is statutorily

protected. 29 U.S.C. § 633a(a); Gomez-Perez v. Potter, 553 U.S. 474, 479

(2008). To prove retaliation, a plaintiff must show that (1) they engaged

in a statutorily protected activity, (2) they then suffered an adverse

employment action, and (3) a causal connection exists between the two.

Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002).

Constructive discharge can qualify as an adverse employment

action under the ADEA. See Poole v. Country Club, 129 F.3d 551, 553 n.2

(11th Cir. 1997). To establish a constructive discharge claim, an employee

must show that an employer created working conditions so intolerable

that a reasonable person would feel compelled to resign. See id. at 553

(citations omitted). This is an objective inquiry, and courts should “not

consider the plaintiff’s subjective feelings.” Hipp v. Liberty Nat’l Life Ins.

Co., 252 F.3d 1208, 1231 (11th Cir. 2001). The standard for proving

constructive discharge is higher than the standard for proving a hostile

work environment and requires pervasive conduct by employers. See id.

Set aside for a moment that the retaliatory acts Kirkland complains

of in his Third Amended Complaint completely depart from the

allegations he made in EEOC-II. And disregard the possible implications

for timeliness or exhaustion that this departure entails. Even if Kirkland

had properly raised the allegations from the EEOC-II charge (which he

didn’t), Kirkland still fails to plead a constructive discharge claim. A few

ignored emails, a request for medical paperwork to return from leave, or

a delay in receiving a new computer do not amount to “pervasive” conduct

that is objectively “so intolerable that a reasonable person would feel

compelled to resign.” Poole, 129 F.3d at 553; Hipp, 252 F.3d at 1231. So

the court would still DISMISS Count II for failure to state a claim.

III. Count 3: Defamation

Federal district courts “have original jurisdiction of all civil actions

arising under the Constitution, laws, or treaties of the United States.” 28

U.S.C. § 1331. They also have “have supplemental jurisdiction over all

other claims that are so related to claims in the action within such original

jurisdiction that they form part of the same case or controversy under

Article III of the United States Constitution.” 28 U.S.C. § 1367(a). But a

district court has discretion to decline to exercise supplemental

jurisdiction over state-law claims when the district court has dismissed

all claims over which it has original jurisdiction. See 28 U.S.C. § 1367(c);

Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088–89 (11th Cir. 2004). In fact,

the Eleventh Circuit has “encouraged district courts to dismiss any

remaining state claims when … the federal claims have been dismissed

prior to trial.” Id. at 1089.

Having dismissed Kirkland’s ADEA claims, all that remains is

Kirkland’s state-law defamation claim. The court finds that Kirkland’s

state-law claim is best left for state courts to decide. See United Mine

Workers of America v. Gibbs, 383 U.S. 715, 726–27 (1966). So the court

declines to exercise supplemental jurisdiction under 28 U.S.C. §

1367(c)(3), GRANTS the MSWCD Defendants’ motion to dismiss, (doc.

68), and dismisses Kirkland’s defamation claim without prejudice.

CONCLUSION

For these reasons, the court GRANTS Defendants’ motions to

dismiss Counts 1 and 2 of Kirkland’s Third Amended Complaint, (docs.

38, 68), and the court declines to exercise supplemental jurisdiction over

Kirkland’s Count 3 Defamation claim.

The court will enter a separate order consistent with this

memorandum opinion that DISMISSES this case WITHOUT

PREJUDICE and closes this case.

DONE and ORDERED on March 24, 2026.

COREY L. MAZE

UNITED STATES DISTRICT JUDGE

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