# Kirkland

> District Court, N.D. Alabama · March 25, 2026

URL: https://www.frixlaw.com/law-library/cases/11281998

## Case

- **Full name:** Foy D. Kirkland v. Thomas J. Vilsack, Secretary, Department of Agriculture, et al.
- **Court:** District Court, N.D. Alabama
- **Decided:** March 25, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11281998

## How later opinions describe it (automated extraction)

- 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)

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11281998. Public record. Not legal advice.