Labor & Employment Law Daily Wrap Up, DISCRIMINATION—11th Cir.: Prison doctor, compelled to fill in as corrections officer, cannot revive claims, (Jul 22, 2025)

By Todd Harrison, J.D.

He failed to show that the Bureau of Federal Prisons had a discriminatory or retaliatory motive for the correctional officer duty assignments.

Affirming a district court’s dismissal of a prison doctor’s Title VII and Rehabilitation Act claims related to his assignment to correctional officer shifts, the Eleventh Circuit agreed that he had failed to administratively exhaust some of his Title VII claims based on certain adverse employment actions and had failed to show a discriminatory or retaliatory motive for the correctional officer assignments. In addition, the court upheld the dismissal of the doctor’s Rehabilitation Act claim for lack of subject matter jurisdiction, denying him the opportunity to correct what he deemed a “scrivener’s error” in his complaint, explaining that his counsel only became aware of the error after the Federal Bureau of Prisons alerted her that a Supreme Court decision foreclosed damages on the claim (Jimenez v. U.S. Attorney General, No. 23-11729 (11th Cir. July 21, 2025)).

The plaintiff, a medical doctor who was born in Puerto Rico and identifies as Hispanic, worked for the Federal Bureau of Prisons (BOP) at a federal correctional institution in Tallahassee from November 2016 to April 2020. He served in the Air Force and the National Guard, and had been diagnosed with PTSD, major depressive disorder, and anxiety.

Augmentation duty. As part of their correctional responsibilities, the prison assigned staff to cover correctional officer shifts when it did not have enough officers available through a process called “augmentation.” Some staff, including psychiatrists and psychologists, were excluded from this duty. Others, including the doctor, were placed on an “augmentation roster” to complete these shifts in reverse seniority order.

Letter. In early 2018, when the doctor learned that management planned to implement augmentation procedures while correctional officers were completing annual training, he sent a letter to prison administration and the warden requesting that physicians and dentists “not be burden[ed] with shift work as correctional officers.” He never received a response.

Everyone in the doctor’s department, including his supervisor, an Asian-American, and a Hispanic dentist were assigned augmentation duties.

Investigation. The doctor completed his assigned augmentation shifts “maybe half a dozen times.” He was scheduled, but did not perform these duties, “maybe another half a dozen” times. He would often call out sick when scheduled to perform augmentation shifts.

In July 2018, after he refused to go to his augmented post, management placed him under investigation for “violating duty assignment.” Later that month, he received a “satisfactory” rating on a performance review, lower than his previous “excellent” ratings.

Accommodation request. Two months later, the doctor requested that the prison limit his correctional duties to those incidental to his duties as a physician and exempt him from guard assignments. He submitted a letter from his psychologist explaining that guard duties exacerbated his PTSD and anxiety.

Near the end of September, the HR manager informed the doctor that assuming correctional officer posts when necessary was an essential function of his job. She requested additional documentation and the doctor provided more information from his physician showing that he had no physical limitations in performing his job. In November 2018, the prison denied his accommodation request.

EEO complaint. The doctor contacted the DOJ’s EEO counselor on July 27, 2018, and filed his first charge of discrimination on August 30, 2018. He asserted that the BOP discriminated against him based on his race and national origin by requiring him to perform augmentation duties while non-Hispanic physicians—white psychiatrists and psychologists—were exempt, that he was given a lower performance rating than in the past, and the fact that he was placed under an investigation.

He amended his charge on October 1, 2018, claiming he was subjected to “additional harassment” the previous month when he was assigned to a midnight correctional shift. In March 2019, he emailed an EEO investigator contending he was being denied certain recruitment and retention bonuses.

In December 2020, the DOJ issued its final decision, which determined that the doctor’s race, national origin, and disability played no role in the prison’s assignment of him to augmentation duty.

Lawsuit. Subsequently, the doctor sued the acting Attorney General of the United States, alleging: (1) intentional discrimination based on national origin or race in violation of Title VII and 42 U.S.C. § 1981a; (2) discrimination based on his disability under the Rehabilitation Act, 29 U.S.C. § 794 et seq., by failing to provide a reasonable accommodation; and (3) unlawful retaliation under Title VII.

To support his claims, the doctor repeated many of the allegations from his EEO charges. The district court dismissed his claims for Title VII discrimination and retaliation based on the denial of bonuses and incentive pay and the failure to promote him because he failed to raise them during the EEO investigation. It also granted summary judgment to the BOP on the remaining Title VII claims.

The district court initially denied summary judgment on the Rehabilitation Act claim because of outstanding factual disputes, but later granted the BOP’s motion for lack of subject matter jurisdiction, finding that monetary damages were not available under 29 U.S.C. § 794, due to sovereign immunity, and injunctive relief was unavailable because the doctor had voluntarily resigned. It rejected his attempt to claim scrivener’s error. This appeal followed.

Continuing violation? First, the doctor argued that even if he did not explicitly raise the denial of incentive pay and failure to promote in his EEO charges, both acts grew out of the investigation, and the continuing violation doctrine allowed him to include them in his claim. The court was not moved.

The denial of incentive pay occurred in November 2018, several weeks after the doctor amended his EEO complaint, and the failure to promote occurred several months later, in March 2019. EEO regulations required the doctor to contact an EEO counselor within 45 days of learning about each discriminatory matter. There was no evidence that the doctor ever initiated new EEO charges or amended his existing complaint. Thus, the court found that his Title VII claims based on these acts appeared to be time-barred.

Scope. Looking to the scope of the EEO charge, the court found that the doctor had failed to exhaust his administrative remedies. Failing to pay bonuses or promote were not “like or related to” the allegations of discriminatory augmentation duty assignments in the EEO charges.

As to the doctor’s continuing violation argument, the court found that the doctor’s claims were discrete acts that started a new clock for filing charges related to those acts. Even assuming the continuing violation doctrine allowed the doctor to use these untimely discrete acts to support a timely hostile work environment claim, the court determined that he had failed to present a convincing reason to treat these acts as part of the same unlawful employment practice.

The only facts common to the incidents were the identity of the employee and the agency employing the discriminatory decisionmaker, said the court, and such commonalities will always exist when a Title VII plaintiff seeks relief after allowing his rights to lapse. Accordingly, the court affirmed the dismissal of the doctor’s discrimination and retaliation claims based on the failure to promote and the denial of bonus pay for failure to exhaust his administrative remedies.

Remaining Title VII claims. Turning to the doctor’s exhausted Title VII claims based on the BOP requiring him to perform augmentation duties, placing him under investigation for failing to complete augmentation duties, giving him lower performance log ratings, and changing his work schedule, the court here agreed with the district court that the doctor failed to present evidence that his race, national origin, or protected activity motivated these actions.

Regardless of which framework would apply to these claims, the court found the doctor had failed to eliminate the most glaring nondiscriminatory explanation for the BOP’s assignment of augmentation shifts: its 2017 memorandum of understanding (MOU) between the warden and the local union.

That MOU exempted specific departments from augmentation duties. Those departments were composed of employees of various races, observed the court, and there was no showing that the BOP deviated from that policy to target individual employees. Absent a discriminatory motive, the court found that the BOP was well within its rights subject employees in different departments to different policies, and it was not the court’s role to second guess the BOP’s decision to require medical doctors, but not psychiatrists or psychologists, to augmentation duties. As such, the grant of summary judgment on these claims was affirmed.

Retaliation. Next, the court considered the doctor’s retaliation claim. The court found the doctor’s claim failed because he could not establish that retaliation somehow figured into the BOP’s augmentation duty assignments, its investigation, or performance review. The BOP could not have known about his August and October 2018 EEO complaints and his September 2018 accommodation request in July 2018, which was when it gave him a lower job evaluation, assigned him to augmentation duty, and investigated his failure to attend augmentation duty.

As to the doctor’s claim that he experienced retaliation in September 2018 when his request for an accommodation was denied and he was assigned to additional augmentation shifts, the court found he had presented no evidence that the BOP had considered anything other than standard augmentation duty procedures before taking those actions. Accordingly, the district court’s grant of summary judgment against this claim was affirmed.

“Scrivener’s error.” Finally, the court addressed the doctor’s Rehabilitation Act claim and the denial of his motion to amend his complaint to correct a “scrivener’s error.” He argued that the complaint “erroneously claimed that he was filing under 29 U.S.C. § 794 et seq.,” but he meant to file under 29 U.S.C. § 791, a different provision of the Rehabilitation Act.

Up to now, the Eleventh Circuit has not addressed a motion to correct a “scrivener’s error” in a judicial complaint. It has allowed district courts to “correct clerical errors to reflect what was intended at the time of ruling,” but has held that “corrections or alterations that affect the substantial rights of the parties” are beyond their scope.

Here, the court found the district court was within its discretion to find that the doctor’s citation to Section 794 instead of Section 791 was not a minor mistake or inadvertence. The choice to pursue a claim under one section or the other has legal significance because each section has its own remedial scheme. Allowing the argued for modification would “affect substantial rights” of the government by changing the remedial structure several years later, explained the court.

Further, the doctor’s counsel only became aware of the error after the BOP alerted her that the Supreme Court’s decision in Lane v. Pena foreclosed damages on the claim. Accordingly, the district court’s dismissal of this claim was affirmed.

The case is No. 23-11729.

Judge: Wilson, C.

Attorneys: Marie A. Mattox (Law Offices of Marie A. Mattox) for Joseph Jimenez. Mary Ann Lane Couch, U.S. Attorney's Office, for U.S. Attorney General.

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