Johnny Lee Litman v. Secretary, Of the Navy

Case: 15-14507 Date Filed: 07/18/2017 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-14507

Non-Argument Calendar

________________________

D.C. Docket No. 1:13-cv-00043-WLS

JOHNNY LEE LITMAN,

Plaintiff-Appellant,

versus

SECRETARY, OF THE NAVY,

JOSIE DRISTY,

Department of the Navy, Acquisition & Integrity Office,

in her individual and official capacities,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

________________________

(July 18, 2017)

Before JULIE CARNES, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:

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Johnny Litman appeals the district court’s dismissal of his complaint in his

discrimination, retaliation, and hostile working environment suit under Title VII of

the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-16, the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the

Rehabilitation Act, 29 U.S.C. § 791. Litman raises several issues on appeal, which

we address in turn. After review,1 we affirm the district court.

I. PROCEDURAL BACKGROUND

Litman is a licensed attorney who is proceeding pro se2 against the Secretary

of the Navy and Josie Dristy, the director of the Navy’s Office of Acquisition and

Integrity (Defendants). Litman filed his first complaint on March 20, 2013, which

the district court explained contained “71 paragraphs encompassing 22 pages and

five counts, with each count incorporating by reference all preceding paragraphs

and all 51 paragraphs of factual allegations.” The district court granted

Defendants’ Motion for a More Definite Statement, holding Litman’s complaint

1

We review de novo the district court’s grant of a motion to dismiss under Fed. R. Civ.

P. 12(b)(6) for failure to state a claim, accepting the allegations in the complaint as true and

construing them in the light most favorable to the plaintiff. Hill v. White, 321 F.3d 1334, 1335

(11th Cir. 2003). We review the district court’s conclusions regarding equitable relief for clear

error. See Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 660 (11th Cir. 1993).

We review a district court’s decision on a motion for judgment on the pleadings de novo,

accepting the allegations in the complaint as true and construing them in the light most favorable

to the plaintiff. Hart v. Hodges, 587 F.3d 1288, 1290 n.1 (11th Cir. 2009). To survive a motion

to dismiss, a complaint must contain sufficient factual matter to make a claim for relief that is

plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint that merely

provides “a formulaic recitation of the elements of a cause of action” is inadequate. Id.

2

Licensed attorneys are not accorded the liberal construction normally given to pro se

litigants. See Olivares v. Martin, 555 F.2d 1192, 1194 n.1 (5th Cir. 1977).

2

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was a “quintessential shotgun pleading requiring a more definite statement.” The

Court then ordered Litman to submit an Amended Complaint setting forth:

(1) which cause or causes of action are asserted against each Defendant; (2) what

factual allegations form the basis of each claim against each Defendant; and (3) the

legal theory upon which he asserts liability against each Defendant, in line with the

factual allegations.

On November 12, 2013, Litman filed an amended complaint that was almost

identical to his first complaint. With a few slight changes, the amended complaint

retained the form and structure the district court earlier described as a shotgun

pleading. His amended complaint prompted Defendants to again move for a more

definite statement, or, in the alternative, for dismissal. Rather than responding to

the Defendants’ motion, Litman filed, without the district court’s leave or

Defendants’ consent, a second amended complaint that again could be described as

a shotgun pleading. On February 21, 2014, the district court granted Dristy’s

Motion to Dismiss Litman’s claims against her in her individual capacity. The

district court also ordered Litman to submit a third amended complaint. Litman

submitted a third amended complaint on March 7, 2014. His third amended

complaint was substantially the same as his second amended complaint except that

Litman added headings for each count, dividing his factual allegations up by count.

He also added a paragraph at the end of each count stating that Defendants’ alleged

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conduct violated the statute or statutes that provided the basis for the count.

Litman also added factual allegations to Count Four under the ADEA and Count

Five under the Rehabilitation Act.

Defendants moved to dismiss Litman’s third amended complaint for failure

to state a claim upon which relief could be granted. The district court granted the

motion in part. It dismissed Litman’s claim of racial discrimination under Title

VII because Litman failed to allege in that count that similarly situated employees

outside his protected class were treated more favorably. It also dismissed Litman’s

claim of retaliation under Title VII and the ADEA because Litman failed to allege

any materially adverse action during or after protected activity or any causal

connection between the protected activity and any materially adverse action. It

dismissed the ADEA and Rehabilitation Act portions of Litman’s hostile work

environment claim for two reasons, because (1) Litman failed to allege in that

count a qualifying age covered by the ADEA or a sufficient disability covered by

the Rehabilitation Act, and (2) Litman failed to allege any harassment based on his

age or disability. Finally, it dismissed Litman’s Rehabilitation Act claim because

Litman failed to plead facts plausibly suggesting that he was disabled.

The district court did not permit Litman another opportunity to amend his

complaint, finding such an amendment would be futile. Litman’s Title VII race-

based portion of his hostile work environment claim and his ADEA age

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discrimination claim survived the motion to dismiss. Defendants moved for

judgment on the pleadings, arguing Litman failed to timely exhaust his

administrative remedies as to those claims. The district court granted the

Defendants’ motion concluding Litman either pursued administrative remedies too

late or not at all. Thus, it dismissed the rest of Litman’s complaint on that basis.

II. DISCUSSION

A. Title VII Race Discrimination

Litman asserts the district court erred by dismissing his racial discrimination

claims. He asserts he sufficiently pled facts demonstrating that equitable tolling

was warranted or that he should be able to amend his complaint a fourth time.

In order to establish a prima facie case of disparate treatment on the basis of

race under Title VII, a plaintiff must show he (1) is a member of a protected class;

(2) was qualified for the position; (3) suffered an adverse employment action; and

(4) similarly situated employees outside of his protected class were treated more

favorably or that he was replaced by someone outside of his protected class. Rice-

Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 842 (11th Cir. 2000).

The district court did not err in determining that Litman failed to adequately

allege similarly situated employees outside of his protected class were treated more

favorably or that he was replaced by someone who was not African American.

Litman did not allege anywhere in Count One of his third amended complaint that

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employees similarly situated to him were differently treated, and identified no

comparator employees at all. The fact that Litman was the only African-American

employee does not plausibly lead to an inference that other employees there were

similarly situated to him but differently treated. Further, that Litman later alleged

in Count Four that his office hired a younger white attorney to perform his duties

does not matter. The district court had warned Litman against filing a shotgun

pleading and he continued to do so. See Magluta v. Samples, 256 F.3d 1282, 1284

(11th Cir. 2001) (finding quintessential shotgun pleading “completely disregards

Rule 10(b)’s requirement that discrete claims should be plead in separate counts

. . . and is the type of complaint that we have criticized time and time again”

(citation omitted)).

In any case, Litman also failed to exhaust his claim by failing to timely

contact an EEOC counselor. See Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th

Cir. 2008) (explaining a federal employee is required to pursue and exhaust

administrative remedies as a prerequisite to filing suit under Title VII). Litman’s

Title VII discrimination claims rested on two alleged incidents, his suspension “on

or about April 12, 2012,” and the dissemination of a memorandum regarding his

suspension, “on or about May 9, 2012.” However, the EEOC counselor’s report

noted that Litman’s initial contact with the EEOC counselor was July 12, 2012,

more than 45 days after May 9, 2012. Thus, Litman’s Title VII discrimination

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claim was administratively unexhausted. See 29 C.F.R. § 1614.105(a)(1)

(providing a federal employee “must initiate contact with [an EEOC] Counselor

within 45 days of the date of the matter alleged to be discriminatory, or . . . within

45 days of the effective date of the action” to exhaust his remedies).

Additionally, the district court did not clearly err by concluding Litman

failed to demonstrate he warranted equitable tolling. Even if he learned about the

April 12 suspension “several weeks” later, his EEOC complaint would still have

been over 45 days after the dissemination of the memorandum regarding his

suspension on May 9. While Litman alleged there was “much confusion” as to

where and who would handle his initial EEOC complaint, that allegation, without

more, does not demonstrate that Litman was diligent in his actions sufficient to

warrant equitable tolling. See Villarreal v. R. J. Reynolds Tobacco Co., 839 F.3d

958, 971 (11th Cir. 2016) (en banc) (stating 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”). 3

B. Title VII and ADEA Retaliation

Litman next contends the district court erred by dismissing his Title VII and

ADEA retaliation claims. To establish a prima facie case of retaliation under Title

3

To the extent Litman argues he should be allowed to amend his complaint a fourth time

to put forward his equitable tolling allegations, we will not consider this argument because he

failed to make it before the district court. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d

1324, 1331 (11th Cir. 2004).

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VII, a plaintiff must allege the following elements: (1) he participated in an activity

protected by Title VII; (2) he suffered an adverse employment action; and (3) there

is a causal connection between the participation in the protected activity and the

adverse action. Pipkins v. City of Temple Terrace, 267 F.3d 1197, 1201 (11th Cir.

2001). A plaintiff establishes a causal connection by proving that the protected

activity and the negative employment action are not completely unrelated. See

Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994). The

elements of a prima facie case for a retaliation claim are the same under both Title

VII and the ADEA. Weeks v. Harden Manufacturing Co., 291 F.3d 1307, 1311

(11th Cir. 2002).

Litman argues he adequately pled retaliation because he experienced racist

comments, received phone calls requesting a white attorney, and observed

luncheons held by the “Sons of Confederacy.” However, Litman failed to include

those factual allegations in support of his retaliation claims in his complaint.

Instead, he referred to them as part of his hostile work environment claims. As a

licensed attorney, Litman’s complaint was not due liberal constructions. See

Olivares, 555 F.2d at 1194 n.1. In any event, those allegations would not have

rendered his complaint sufficient, as Litman failed to connect any of his alleged

harm to his “telephonic opposition” in any way. See Meeks, 15 F.3d at 1021.

Thus, Litman failed to adequately plead Title VII or ADEA retaliation.

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C. Hostile Work Environment

Litman also asserts the district court erred by dismissing his Title VII,

ADEA, and Rehabilitation Act hostile work environment claims.

1. ADEA and Rehabilitation Act

To establish a prima facie case of a hostile work environment, an employee

must prove he belongs to a protected group; he has been subject to unwelcome

harassment; the harassment was based on a protected ground; the harassment was

severe or pervasive enough to alter the terms and conditions of his employment;

and his employer is responsible for the harassment under a theory of vicarious or

direct liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.

2002).

The district court did not err by dismissing Litman’s ADEA and

Rehabilitation Act hostile work environment claims. Litman failed to allege that

any harassment was connected to his age or an alleged disability. See id.

2. Title VII

Prior to filing a Title VII action, a plaintiff first must file a charge of

discrimination with the EEOC. Gregory v. Georgia Dep’t of Human Res., 355

F.3d 1277, 1279 (11th Cir. 2004). “The purpose of this exhaustion requirement is

that the EEOC should have the first opportunity to investigate the alleged

discriminatory practices to permit it to perform its role in obtaining voluntary

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compliance and promoting conciliation efforts.” Id. (quotations omitted). We

have further noted that judicial claims are allowed if they “amplify, clarify, or

more clearly focus” the allegations in the EEOC complaint, but have cautioned that

allegations of new acts of discrimination are inappropriate. Id. at 1279-80. In light

of the purpose of the EEOC exhaustion requirement, a plaintiff’s judicial

complaint is limited by the scope of the EEOC investigation that can reasonably be

expected to grow out of the charge of discrimination. Id. at 1280. Courts are

nonetheless extremely reluctant to allow procedural technicalities to bar claims

brought under Title VII, as such, we have noted that the scope of an EEOC

complaint should not be strictly interpreted. Id.

The district court did not err by dismissing Litman’s Title VII hostile work

environment claims as unexhausted. Litman’s first EEOC complaint contained no

mention of a hostile work environment claim or the alleged events which gave rise

to one. Litman’s second EEOC complaint did not specifically mention a hostile

work environment claim, and only mentioned the removal of his nameplate as

“retaliatory activity.” Litman did not list the racist comments, mugshot incident, or

phone calls in his second EEOC complaint. Though Litman did mention his

hostile work environment claim in his final interview with the EEOC counselor,

the counselor noted “[d]uring the initial interview and informal counseling

aggrieved failed to mention Hostile Work Environment; however, wanted it

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included in his Final Interview. When aggrieved filed his formal complaint, he did

not include Hostile Work Environment.” Though this Court has cautioned against

strictly interpreting the scope of an EEOC complaint, Litman’s failure to mention

his hostile work environment claim and the corresponding factual allegations

would otherwise preclude the EEOC from performing its role in obtaining

voluntary compliance and promoting conciliation efforts on that claim. See id.

Litman’s hostile work environment claim does not “amplify, clarify, or more

clearly focus” his nameplate allegation, as his EEOC complaint listed that

particular factual allegation as “retaliatory activity” as part of his retaliation claim.

As Litman’s hostile work environment claim does not grow out of the claims he

alleged in his second EEOC complaint, the district court did not err in dismissing it

as unexhausted. See id.

D. Rehabilitation Act

Further, Litman contends the district court erred by dismissing his

Rehabilitation Act discrimination claim. The Rehabilitation Act prohibits federal

agencies from discriminating in employment against qualified individuals with

disabilities. 29 U.S.C. § 794(a); Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.

2005). Private actions against federal government employers under the

Rehabilitation Act must satisfy the requirement of exhaustion of administrative

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remedies in the manner prescribed by Title VII. Doe v. Garrett, 903 F.2d 1455,

1461 (11th Cir. 1990).

The district court did not err by dismissing Litman’s Rehabilitation Act

discrimination claim. Litman made no mention of his alleged disability or any

disability discrimination in either of his EEOC complaints. Notably, Litman did

not check the “disability” discrimination box on either of the two forms, did not list

any disability in the space provided, and did not discuss his disability or acts of

discrimination related to a disability in the additional space provided. Thus, his

claim was unexhausted.

III. CONCLUSION

The district court did not err by dismissing Litman’s (1) Title VII

discrimination claim as he failed to adequately plead and timely exhaust his claim;

(2) Title VII and ADEA retaliation claims because he failed to state plausible

claims; (3) Title VII hostile work environment claim as he failed to exhaust his

claim, and ADEA and Rehabilitation Act hostile work environment claims because

he failed to state plausible claims; and (4) Rehabilitation Act discrimination claim

because he failed to exhaust his claim. Accordingly, we affirm the district court.4

AFFIRMED.

4

Additionally, though the district court noted in its judgment that the Secretary “shall

also recover costs,” no order was entered regarding costs, and thus, Litman’s challenge to any

costs awarded is premature. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

528 U.S. 167, 195 (2000).

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