UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LIONEL BUTLER, Plaintiff, v. Case No. 1:22-cv-01146 (ACR) MERRICK B. GARLAND, et al., Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Lionel Butler brings this action against Defendants Attorney General Merrick B.

Garland; the United States Department of Justice; and the Bureau of Alcohol, Tobacco, Firearms,

and Explosives (“ATF”) under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.

Plaintiff’s operative complaint alleges disparate treatment based on his race. Dkt. 1 ¶¶ 30–42.

Also before the Court are Plaintiff’s motions for leave to file first and second amended

complaints alleging sex discrimination and violations of the Rehabilitation Act of 1973,

. Dkt. 25-1 ¶¶ 38–47; Dkt. 26-1 ¶¶ 30–48, 59–65.

For the reasons explained below, the Court GRANTS Defendants’ Motion for Judgment

on the Pleadings, Dkt. 23, and DISMISSES Plaintiff’s Complaint, Dkt. 1, without prejudice.

The Court also DENIES Plaintiff’s motions to file first and second amended complaints,

Dkts. 25 & 26; and DENIES AS MOOT Defendants’ Renewed Motion for Judgment on the

Pleadings, Dkt. 28.

1 I. BACKGROUND

A. Factual Background

For purposes of evaluating the Agency’s motion for judgment on the pleadings, the

Courts takes from the Complaint and accepts as true the following allegations. Payne v. District

of Columbia,

(D.D.C. 2010).

Plaintiff, an African American male, began working for the federal government in March

2011 and for ATF in June 2015. Dkt. 1 ¶ 5. In October 2018, he began working as a Human

Resources Specialist at ATF.

He contends that starting in October 2018, his supervisors

began taking adverse employment actions against him based on his race. 1 Id. ¶ 6. He alleges the

following:

First, Plaintiff’s white-male supervisor, Edward Maguire, id. ¶ 5, denied his sick leave

requests from January 28, 2019, through February 26, 2019, id. ¶ 15. Maguire required Plaintiff

to provide doctor’s notes before taking sick days despite “the Agency’s policy that a doctor’s

note was not required for . . . less than three days of absence” and the fact that Plaintiff “did not

have any prior history of abusing sick leave.” Id. Plaintiff alleges that he was treated differently

from other employees because Maguire wanted “to make an example out of him.” Id. ¶ 17.

When Plaintiff was allowed to take sick leave, his supervisors closely monitored his

whereabouts, “going so far as to . . . attempt to determine if” Plaintiff, who also worked as an

NCAA Division I college basketball official, “was officiating at a college basketball game”

while on sick leave. Id. ¶¶ 7, 17.

1 In an order dated August 21, 2023, the Court dismissed the Complaint as to all events before January 23, 2019. Min. Order (Aug. 21, 2023). This opinion focuses on allegations after that date. 2 Second, around February 2019 Maguire revoked Plaintiff’s telework privileges “due to

the volume of work that [Plaintiff] had accumulated.” Id. ¶ 18. Plaintiff “was the only member

of . . . Maguire’s team who was not allowed to telework.” Id. ¶ 20. Before Maguire revoked his

telework privileges, Plaintiff “was able to complete more work remotely than he would have

otherwise, due to the flexibility of the remote work.” Id. ¶ 18.

Third, on February 7, 2019, Plaintiff received a formal letter of reprimand from Maguire.

Id. ¶ 21. Plaintiff does not explain the letter’s contents, but the Court deduces that it related to a

subsequent meeting with Kathryn Green, Plaintiff’s second-line supervisor, about his failure to

“complete qualifications on a particular set of [job] announcements.” Id.

Fourth, on March 8, 2019, Plaintiff’s supervisor “suspended [his] participation in the

Health Improvement Program,” a benefit that allows employees to take a few hours per week to

exercise during the workday. Id. ¶ 22. Although the Health Improvement Program was offered

to all employees, id. ¶ 23, Maguire told Plaintiff that he could not use the benefit because

Plaintiff had “work to complete.” Id. ¶ 22.

Fifth, Plaintiff’s supervisors repeatedly denied his annual leave requests between January

23, 2019, and March 15, 2019. Id. ¶ 26. Plaintiff was the only employee denied annual leave

during the relevant period. Id.

Sixth, Maguire placed Plaintiff on administrative leave for ten days from March 22,

2019, through April 1, 2019. Id. ¶ 27. The Complaint does not state the perceived or offered

reason for the administrative leave. See id.

Finally, on April 9, 2019, management referred Plaintiff to the Internal Affairs Division

for investigation for “fraud, waste, and abuse of sick leave.” Id. ¶ 28. The investigation was,

according to Plaintiff, “an attempt to humiliate and discredit his federal government career by

3 stating that he was not sick when taking sick leave and/or implying that he tried to mislead his

supervisors.” Id. Plaintiff does not, however, allege that the investigation caused him to lose

financial or professional opportunities. See generally id.

“Fearing the Agency would terminate his employment,” Plaintiff resigned on July 5,

2019. Id. ¶ 29.

B. Procedural Background

Plaintiff filed an administrative charge of discrimination alleging he was subject to the

above actions because of his race and sex. Dkt. 29. The ATF issued a final agency decision

denying Plaintiff’s charge, which Plaintiff appealed to the Equal Employment Opportunity

Commission (“EEOC”). Dkt. 1 ¶ 29. On January 26, 2022, the EEOC denied Plaintiff’s appeal

and affirmed the ATF’s findings. Id.

Plaintiff then filed this employment action on April 26, 2022. Id. The Complaint claims

racial discrimination under Title VII of the Civil Rights Act of 1964. Id. ¶¶ 30–42. Initially,

Defendants moved to dismiss only parts of Plaintiff’s claims. Dkt. 12. The Court granted

Defendants’ Motion to Dismiss in part, dismissing claims to extent they were based on events

before January 23, 2019, for failure to timely exhaust administrative remedies and dismissing

Plaintiff’s hostile work environment claim for failure to state a claim. Min. Order (Aug. 21,

2023). The Court rejected Defendants’ argument that the denial of Plaintiff’s telework privileges

and his suspension from the Health Improvement Program were de minimis harms. Id.

Following the Court’s ruling on Defendants’ Motion to Dismiss, seven of Plaintiff’s allegations

remain. See supra Section I.A.

On January 9, 2024, Defendants moved for judgment on the pleadings because Plaintiff’s

remaining allegations do not support an inference of discrimination based on race. Dkt. 23 at 1.

4 Rather than file an opposition to Defendant’s motion and despite having requested and received

an extension to do so, Min. Order (Feb. 1, 2024), Plaintiff moved for leave to file an amended

complaint adding a claim under the Rehabilitation Act. Dkt. 25 at 2. Plaintiff then moved to file

a second amended complaint adding a sex discrimination claim. Dkt. 26 at 2. Defendants

oppose Plaintiff’s motions for leave to amend. Dkt. 27.

II. LEGAL STANDARD

When a party moves to amend a complaint, the Court should “freely give leave when

justice so requires.” Fed. R. Civ. P. 15(a)(2). That said, a district court may, within its

discretion, deny the motion where the amendment “would be futile . . . or where the pleading as

amended would ‘not survive a motion . . . for judgment on the pleadings.’” United States v. All

Assets Held at Bank Julius Baer & Co.,

(D.D.C. 2011) (quoting Jung v.

Ass’n of Am. Med. Colls.,

(D.D.C. 2005)).

Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the

pleadings “after the pleadings are closed—but early enough not to delay trial.” To prevail, the

moving party must establish that “no material fact is in dispute and that it is entitled to judgment

as a matter of law.” Robinson-Reeder v. Am. Council on Educ.,

(D.D.C.

2008) (quoting Peters v. Nat’l R.R. Passenger Corp.,

(D.C. Cir. 1992)).

Judgment on the pleadings is only appropriate when there are no “issues of fact which if proved

would defeat recovery, even if the trial court is convinced that the party opposing the motion is

unlikely to prevail at trial.” Dist. No. 1 v. Liberty Mar. Corp.,

(D.C. Cir.

2019) (cleaned up).

The Court may rely on “‘facts alleged in the complaint, documents attached to the

complaint as exhibits or incorporated by reference, and matters about which the court may take

5 judicial notice.’” Yancey v. District of Columbia,

(D.D.C. 2013)

(quoting Cole v. Boeing Co.,

(D.D.C. 2012)). That said, a court need

not accept “inferences drawn by plaintiffs if such inferences are unsupported by the facts set out

in the complaint.” Browning v. Clinton,

(D.C. Cir. 2002).

III. ANALYSIS

A. Motions for Leave to Amend the Complaint

Rather than oppose Defendants’ Motion for Judgment on the Pleadings, Plaintiff twice

moved to amend his Complaint. Dkts. 25 & 26. The First Amended Complaint adds a claim

under the Rehabilitation Act of 1973,

, alleging that Defendants not only failed

to reasonably accommodate Plaintiff’s migraines, but also instituted an ad hoc policy requiring

Plaintiff, and no one else, to present a doctor’s note before taking sick leave. Dkt. 25-1

¶¶ 15–17. The Second Amended Complaint adds a sex discrimination claim under Title VII.

Dkt. 26-1 ¶¶ 30–37. Plaintiff did not make any amendments addressing his race discrimination

claims.

1. First Amended Complaint

An amendment is futile if a plaintiff does not meet an exhaustion requirement. S.S. by

and through Street v. District of Columbia,

, 4–5 (D.D.C. 2014). The

Rehabilitation Act requires individuals to exhaust their administrative remedies, allowing federal

agencies the opportunity to handle matters internally before facing suit in federal court. Williams

v. Brennan,

(D.D.C. 2018). Plaintiff’s EEO charge did not claim

discrimination based on disability or physical health, Dkt. 29, and he does not allege that he

attempted to exhaust his claim in any other way. See Dkt. 25-1 ¶ 29. Because Plaintiff did not

6 exhaust his administrative remedies, amendment on that basis is futile. 2 The Court therefore

DENIES Plaintiff’s Motion for Leave to File an Amended Complaint, Dkt. 25.

2. Second Amended Complaint

Plaintiff’s Motion for Leave to File a Second Amended Complaint, Dkt. 26, fares no

better. On top of the unexhausted Rehabilitation Act claim, the Second Amended Complaint

tacks sex discrimination allegations to the existing Title VII claim. Dkt. 26-1 ¶¶ 30–48.

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, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. To establish a prima facie

case of discrimination under Title VII, Plaintiff must show that “(1) [he] is a member of a

protected class; (2) [he] suffered an adverse employment action; and (3) the unfavorable action

gives rise to an inference of discrimination.” Pierre v. Bennett,

, 7 (D.D.C.

2023) (quoting Wiley v. Glassman,

(D.C. Cir. 2007)). While a plaintiff need

not plead each element of a prima facie case of discrimination to survive a motion for judgment

on the pleadings, see Brown v. Sessoms,

(D.C. Cir. 2014), he still must

allege facts that if accepted as true would make the discrimination claim plausible, Jones v.

Castro,

(D.D.C. 2016).

Plaintiff adequately alleges his membership in a protected class (male) in his Complaint

and EEO charge, Dkt. 1 & 29; and that he suffered adverse employment actions, Min. Order

2 Where, as here, a complaint refers to an EEO complaint, the Court may consider the EEO complaint without converting a 12(c) motion into a motion for summary judgment. See Jimenez v. McAleenan,

, 31 n.11 (D.D.C. 2019); Hudson v. Child.’s Nat’l Med. Ctr.,

, 5 n.5 (D.D.C. 2009). 7 (Aug. 21, 2023). His Title VII claim fails, however, because he does not allege facts supporting

an inference of sex discrimination.

Plaintiff does not allege that female employees received better treatment because of their

sex. He does not allege that his supervisors made discriminatory statements about his sex or

provide statistics showing that his employer treated men and women differently. Nor does he

make any other allegation connecting the adverse employment actions to his sex. Rather, the

Complaint states his sex and those of his supervisors without ever alleging that sex was the basis

for his distinct treatment. See Dkt. 1 ¶¶ 3, 5, 8, 12. Because adverse actions without facts that if

accepted as true would make the discrimination claim plausible cannot survive a motion for

judgment on the pleadings, the Court DENIES Plaintiff’s Motion to File a Second Amended

Complaint, Dkt. 26, as futile.

B. Motion for Judgment on the Pleadings

Having denied leave to amend, the Court turns to Defendants’ Motion for Judgment on

the Pleadings, Dkt. 23, as to the operative complaint—Plaintiff’s original complaint, Dkt. 1.

Defendants contend that they are entitled to judgment on the pleadings because Plaintiff does not

connect his remaining allegations to race. Dkt. 23 at 1. The Court agrees with Defendants.

Having reviewed the operative complaint carefully the Court has found nothing “showing that

[Plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

As with his sex discrimination claim, Plaintiff adequately alleges his membership in a

protected class (African American) and that he suffered adverse employment actions. Again,

however, he does not allege any fact supporting an inference of discrimination. See supra

Section III.A.2. The Complaint states his race and those of his supervisors, but he does not trace

his allegations to those characteristics. See e.g., Dkt. 1 ¶¶ 5, 7–8, 10, 12, 16, 22, 26, 28. Instead,

8 Plaintiff either concedes that he does not know why the Agency took a particular action or

simply provides his supervisors’ stated non-discriminatory reasons for the action (e.g. workload

and poor performance). Id. ¶¶ 10, 16, 22. The fact that Plaintiff, a member of a protected class,

was treated differently from other employees does not automatically create a plausible

employment discrimination claim. Turner v. Shinseki,

, 118–19 (D.D.C.

2011).

Because Plaintiff does not allege facts tying the adverse employment actions to his race,

the Court GRANTS Defendants’ Motion for Judgment on the Pleadings, Dkt. 23.

IV. CONCLUSION AND ORDER

For these reasons, the Court GRANTS Defendants’ Motion for Judgement on the

Pleadings, Dkt. 23; DISMISSES Plaintiff’s Complaint, Dkt. 1, without prejudice; DENIES

Plaintiff’s Motion for Leave to File an Amended Complaint, Dkt. 25; DENIES Plaintiff’s

Motion for Leave to File a Second Amended Complaint, Dkt. 26; and DENIES AS MOOT

Defendants’ Renewed Motion for Judgment on the Pleadings, Dkt. 28.

This is a final appealable order. See Fed. R. App. P. 4(a).

SO ORDERED.

Date: August 2, 2024 ____________________________ ANA C. REYES United States District Judge

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