Case: 18-12148 Date Filed: 04/08/2019 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-12148 Non-Argument Calendar ________________________ D.C. Docket No. 1:17-cv-00276-KD-C JOSEPH WILBUR, JR., Plaintiff-Appellant, versus UNITED STATES OF AMERICA, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Alabama ________________________ (April 8, 2019) Before WILLIAM PRYOR, GRANT, and HULL, Circuit Judges. PER CURIAM: Joseph Wilbur, Jr., appeals the dismissal of his Federal Tort Claims Act complaint as time-barred and within the discretionary function exception. We Case: 18-12148 Date Filed: 04/08/2019 Page: 2 of 9 agree with the district court that Wilbur’s complaint should be dismissed, but for other reasons: Wilbur’s claims are precluded by the Civil Service Reform Act. I. We recite the facts in the light most favorable to Wilbur. See, e.g., Duty Free Ams., Inc. v. Estee Lauder Cos., 797 F.3d 1248, 1262 (11th Cir. 2015). Wilbur served as a compliance safety and health officer for the Occupational Safety and Health Administration (OSHA). His amended complaint alleges that in November or December of 2011, the area director (AD) for OSHA’s Mobile, Alabama office “performed a crude and sexually obnoxious behavior” in which the AD simulated a sexual act. Wilbur, finding the AD’s behavior “morally offensive,” reported the AD to his union representative, but nothing came of it. In January 2012, the AD did the same thing in front of a new employee. This time Wilbur reported the behavior to the assistant area director, but again nothing came of it. In July 2012, Wilbur reported the AD to OSHA’s regional office, but—again—nothing came of it. In December 2012, the AD showed a “new female hire” inappropriate materials on his computer. Wilbur helped the new employee lodge a complaint with OSHA’s regional director; this one did lead to an investigation, but no inappropriate material was found on the AD’s computer and the new employee “was later forced to resign.” Wilbur continued to complain, but 2 Case: 18-12148 Date Filed: 04/08/2019 Page: 3 of 9 the assistant area director warned him “not to continue making waves in the office.” Wilbur’s work life quickly went downhill from there. In March 2013, he was “verbally admonished” regarding one of his inspections. In June, he received a poor mid-year performance evaluation. There were smaller slights as well: Wilbur perceived that he was being treated differently by his coworkers, his travel reimbursement claims were delayed, he faced challenges to his attempts to take sick leave, and he experienced “other work related issues.” Wilbur “learned that management was reviewing case files, and traveling to inspection sites [that he had] previously inspected,” and based on that he “suspected, not confirmed, that the Defendant had initiated an investigation” into him. His suspicions were correct: the Department of Labor’s Office of Inspector General (OIG) had opened an investigation into allegations that Wilbur had committed perjury in connection with one of his inspections. Wilbur ultimately resigned in July 2013, which he characterizes ...
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