Miller v. Fanning

• Decision Date: 25 August 2016
• Docket Number: Case No. CV416-033
• Parties: BENJAMIN FRANKLIN MILLER, Plaintiff, v. ERIC K. FANNING, Secretary of the Army, Defendant.
• Court: U.S. District Court — Southern District of Georgia

BENJAMIN FRANKLIN MILLER, Plaintiff, v. ERIC K. FANNING, Secretary of the Army, Defendant.

Case No. CV416-033

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION

August 25, 2016

AMENDED ORDER

Benjamin Franklin Miller, a former U.S. Army employee, has filed this Title VII sexual harassment, retaliation, and wrongful discharge lawsuit against the U.S. Army (nominally naming Erik K. Fanning, who is the Secretary of the Army). Doc. 1 at 1. Proceeding pro se, plaintiff also moves for leave to proceed in forma pauperis (IFP), and for appointment of counsel. Docs. 2 & 3. Because the Court finds Miller indigent, it GRANTS his IFP motion (doc. 3) and preliminarily screens his case under 28 U.S.C. § 1915(e)(2), which requires dismissal of any IFP action when the action or appeal is frivolous or malicious, fails to state a claim for relief, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

I. GOVERNING STANDARDS

A. Title VII and the Military

Title VII commands that "[a]ll personnel actions affecting employees . . . in military departments . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16. It "provides the exclusive judicial remedy for claims of discrimination in federal employment." Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976); Rouse v. Green, 359 F. App'x. 956, 957 (11th Cir. 2010); see also Thompson v. McHugh, 388 F. App'x 870, 872 (11th Cir. 2010) ("Title VII waives sovereign immunity when a federal employee seeks relief for unlawful employment practices -- that is, for "any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a), (c).").

Construing Miller's Complaint liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007),¹ he has pleaded facts showing that he was a U.S. Armyemployee and not an independent contractor. See doc. 1 at 9 (Dep't of Army administrative appeal denial letter denying his claim on the merits, indicating that he was an employee).

B. Sexual Harassment

Title VII prohibits employers from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race [or] . . . sex." 42 U.S.C. § 2000e-2(a)(1). . . . To establish a hostile environment sexual harassment claim under Title VII, an employee must show:

(1) that he or she belongs to a protected group; (2) that the employee has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment must have been based on the sex of the employee; (4) that the harassmentwas sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) a basis for holding the employer liable.

Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (cite omitted). To establish a prima facie case for hostile work environment as a result of sexual harassment, Miller's pleadings must establish that: (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the conduct was based on his sex; (4) the harassment was sufficiently severe or pervasive to alter the terms or conditions of employment and create a discriminatorily abusive working environment; and (5) his employer is responsible for that environment under either a theory of direct or vicarious liability. Mendoza, 195 F.3d at 1245; Madrid v. Homeland Security Solutions Inc., 141 F. Supp. 3d 1351, 1359 (M.D. Ga. 2015).

"In that regard, federal employment laws are not a 'general civility code,' and only harassment severe or pervasive enough to alter the terms of employment will create an actionable hostile work environment. See Faragher v. City of Boca Raton, 524 U.S. 775, 789, 118 S. Ct. 2275 (1998) (citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118S. Ct. 998 (1993))." Jamous v. Saint-Gobain Corporation, 2016 WL 4206320 at * 12 (N.D. Ala. Aug. 10, 2016) see also Millwood-Jones v. Holder, 2016 WL 1189494 at * 10 (S.D. Ga. Mar. 22, 2016) (analyzing the "severe and pervasive" element).

C. Wrongful Termination

Wrongful termination based on a prohibited Title VII factor requires the plaintiff to plead supporting facts (e.g., "My employer terminated me solely because I am black."). One may also premise Title VII liability on a constructive discharge. McConnell v. University of Alabama Healthcare Systems, 2016 WL 4132260 at * 5 (S.D. Ala. Aug. 3, 2016) ("'A constructive discharge occurs when a discriminatory employer imposes working conditions that are so intolerable that a reasonable person in [the employee's] position would have been compelled to resign. Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d 974, 977 (11th Cir. 2003) (internal quotes omitted).").

D. Retaliation

Employers are prohibited from retaliating against an employee "because he has opposed any practice made an unlawful employmentpractice by this subchapter (Title VII), or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [42 U.S.C. § 2000e-3(a)]." Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 956 (11th Cir. 1997) (citing 42 U.S.C. § 2000e-3(a)). A plaintiff pleads a prima facie retaliation case by showing that (1) he engaged in statutorily protected activity; (2) he suffered a materially adverse action; and (3) there was a causal connection between that protected activity and the materially adverse action. Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010).

Under th[at] framework, if a plaintiff establishes a prima facie case of retaliation, a presumption of retaliation arises, and the burden of production shifts to the defendant to rebut the presumption by articulating a legitimate, non-discriminatory reason for the adverse employment action. If the employer articulates such a reason, the presumption raised by the prima facie case is rebutted and drops from the case. The plaintiff then has a full and fair opportunity to demonstrate that the defendant's proffered reason was merely a pretext to mask discriminatory actions.

Savage v. Secretary of Army, 439 F. App'x 828, 830 (11th Cir. 2011) (quotes and cites omitted); Gardner v. Aviagen, 454 F. App'x 724, 728 (11th Cir. 2011). The pleading requirements are reasonably demanding in this particular area because merely claiming that a "bad write up" wasdiscriminatory (or retaliatory) often will not suffice:

A Title VII discrimination claim rarely may be predicated merely on [an] employer's allegedly unfounded criticism of an employee's job performance, where that criticism has no tangible impact on the terms, conditions, or privileges of employment. Subsequent Eleventh Circuit cases have essentially transformed "rarely" into "never." See, e.g., Barnett v. Athens Regional Medical Center, Inc., 550 Fed. Appx. 711, 713 (11th Cir. 2013) ("We have held [in Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1242 (11th Cir. 2001)], that memoranda of reprimand or counseling that amount to no more than a mere scolding, without any following disciplinary action, do not rise to the level of adverse employment actions sufficient to satisfy the requirements of Title VII.") (internal quotes omitted); Wallace v. Georgia Department of Transportation, 212 Fed. Appx. 799, 801 (11th Cir. 2006) ("Under the standard articulated in Davis, [there was no] adverse employment action [because] [t]he written reprimand did not lead to any tangible harm in the form of lost pay or benefits [and] there is no evidence that [the plaintiff] has been denied job promotions as a result of the written reprimand."); Embry v. Callahan Eye Foundation Hospital, 147 Fed. Appx. 819, 828-29 (11th Cir. 2005) (plaintiff "failed to cite evidence showing that this reprimand resulted in her suffering any tangible consequences in the form of loss of pay or benefits, and it, thus, was not an 'adverse employment action.' ") (citing Davis).

McConnell, 2016 WL 4132260 at * 4.

II. ANALYSIS

The form Title VII Complaint Miller used asked him to "[d]escribe the discriminatory actions or events that you are complaining of in this lawsuit. Give factual detail, including names and dates concerning whathappened. You do not need to refer to any statutes or law." Doc. 1 at 3 ¶ 10. Other than laundry listing his claims (he wrote: "Sexual Assault," "Retaliation" and "Wrongful Termination," doc. 10 at 3 ¶ 10), Miller left this blank. He did attach filings from what appears to be his administrative appeal within Army channels, but he cites nothing from them to satisfy the elements of a prima facie case as set forth above.

The Court is not Miller's attorney and cannot provide him with legal assistance. See Kaiser v. Steele, 2016 WL 1296388 at *1 (11th Cir. April 4, 2016) (courts "will not act as . . . "de facto counsel" for litigants). Nor can it research the law and plead supporting facts for him. Boles v. Riva, 565 F. App'x 845, 846 (11th Cir. 2014) ("[E]ven in the case of pro se litigants this leniency does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action.") (quotes and cite omitted); Sec'y, Fl. Dept. of Corr. v. Baker, 406 F. App'x 416, 422 (11th Cir. 2010); Swain v. Colorado Tech. Univ., 2014 WL 3012693 at * 1 (S.D. Ga. June 12, 2014) ("While Congress has chosen to provide indigents with access to the courts by way of its IFP statute, it has not funded a pro se support function. Judges, then, atmost can construe liberally what pro se litigants say factually, but they cannot develop legal arguments or plug the legal holes in their cases for them.").

Nevertheless, "when a more carefully drafted complaint might state a claim, a district court should give a pro se plaintiff at least...