Eleventh Circuit Clarifies “Scrivener’s Error,” Continuing-Violation Limits, and Comparator Standards in Federal Employment Litigation

Commentary on Joseph Jimenez v. Acting U.S. Attorney General, 23-11729 (11th Cir. July 21, 2025)

1. Introduction

The Eleventh Circuit’s published decision in Joseph Jimenez v. Acting U.S. Attorney General tackles three recurring obstacles in federal-sector discrimination suits: (1) the scope of administrative exhaustion and the continuing-violation doctrine under Title VII;
(2) the evidentiary yardstick for proving disparate treatment and retaliation after Babb v. Wilkie; and
(3) whether an incorrect statutory citation in a complaint can be brushed aside as a harmless “scrivener’s error.”

Dr. Joseph Jimenez, a Hispanic physician formerly employed by the Federal Bureau of Prisons (“BOP”), alleged that the agency discriminatorily compelled him to perform “augmentation” guard shifts, denied reasonable accommodation for his PTSD, and later retaliated against him. The district court dismissed portions of his suit for failure to exhaust administrative remedies, granted summary judgment on the remaining Title VII claims, and dismissed his Rehabilitation Act count for lack of jurisdiction after he cited the wrong statutory provision. The Eleventh Circuit affirmed in full, while setting out several noteworthy principles.

2. Summary of the Judgment

• Exhaustion & Continuing Violation: Untimely claims (denial of incentive pay and non-promotion) could not be salvaged either by the “like or related” test or by characterizing them as part of a continuing violation. The Court underscored that discrete acts— pay decisions, promotions, investigations—each trigger their own 45-day EEO clock for federal employees.
• Disparate Treatment & Retaliation: Even under the more lenient Babb “played any part” standard, Jimenez offered no comparators “similarly situated in all material respects,” nor any convincing mosaic permitting an inference that race, national origin, or protected activity influenced the BOP’s decisions.
• “Scrivener’s Error” Doctrine: Mis-pleading the Rehabilitation Act as a § 794 claim (instead of § 791) was not a clerical typo but a substantive error affecting sovereign-immunity waivers and remedies. Consequently, the district court properly denied both Rule 60(a) correction and post-deadline amendment under Rule 16(b).
• Result: All district-court rulings—dismissal for non-exhaustion, summary judgment on merits, and refusal to amend—were affirmed.

3. Analysis

3.1 Precedents Cited and Their Influence

1. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) – Anchored the Court’s analysis that discrete acts are separately actionable and not rescued by continuing-violation rhetoric.
2. Green v. Brennan, 578 U.S. 547 (2016) – Emphasized that the limitations period starts when the discrete act occurs, and that constructive-discharge timing principles cannot resuscitate other untimely claims.
3. Babb v. Wilkie, 589 U.S. 399 (2020) & circuit follow-up Babb II, 992 F.3d 1193 (11th Cir.) – Supplied the “any role” causation test for federal employees, but the panel held plaintiffs still must produce evidence that discrimination “figured into” the decision.
4. Lewis v. City of Union City, 918 F.3d 1213 (11th Cir. en banc 2019) – Set the stringent “similarly situated in all material respects” comparator standard applied to Jimenez’s augmentation-shift evidence.
5. Lane v. Pena, 518 U.S. 187 (1996) – Confirmed that monetary damages are unavailable under § 794 absent express waiver; pivotal to the sovereign-immunity dismissal.
6. Sosa v. Airprint Systems, 133 F.3d 1417 (11th Cir. 1998) – Guided the Rule 16 “good-cause” analysis rejecting amendment long after deadlines passed.
7. Rule 60(a) case law (Weeks v. Jones; Fifth Circuit’s In re W. Texas Marketing) – Framed the difference between clerical errors and substantive mistakes, leading the Court to announce, for the first time in this circuit, a clear definition of “scrivener’s error” in pleadings.

3.2 The Court’s Legal Reasoning

a. Administrative Exhaustion & Continuing Violation Boundaries

The panel meticulously parsed EEOC regulations (29 C.F.R. § 1614.105) and reaffirmed that each discrete personnel action—promotion denials, pay-bonus refusals, investigations—is its own “unlawful employment practice.” Jimenez never amended his EEO charge within 45 days of those events, and a one-off email to an investigator could not substitute for formal amendment. By explicitly refusing to let a constructive narrative of “ongoing discrimination” sweep in untimely claims, the Court tightens the reins on plaintiffs hoping to piggy-back stale grievances onto timely ones.

b. Evidence Standards Post-Babb

Although Babb eliminated but-for causation for federal workers, the panel stressed that some evidence of improper motive remains indispensable. Without comparators sharing the same department, supervisors, and augmentation-roster status, Jimenez’s reliance on exempt psychologists and psychiatrists failed. The Court also distinguished between “coincidence of identities” (same employer/employee) and “similarity in material respects,” preserving the Lewis comparator formula even under Babb.

c. Retaliation Causation

A retaliation claim still demands knowledge of protected activity by the decision-maker. Because Jimenez’s key adverse acts pre-dated his EEO activity, temporal proximity dissolved, and the court refused to convert his failed accommodation request into a retaliation claim (citing Lucas v. Grainger).

d. The “Scrivener’s Error” Clarification

This opinion fills a doctrinal gap within the Eleventh Circuit by drawing on Rule 60(a) jurisprudence from other circuits to define “scrivener’s error” as an obvious clerical slip “rectifiable without serious doubt.” Mis-citing § 794 for § 791 was substantive: it altered sovereign-immunity consequences and remedial exposure. Correcting it post-judgment would prejudice the government and was thus impermissible. The Court effectively signals to practitioners that inaccurate statutory anchors will be treated as pleading defects, not harmless typos.

3.3 Likely Impact of the Decision

• Tighter Pleading Discipline: Federal-sector plaintiffs must scrutinize statutory cites; district courts now have circuit-level guidance to reject after-the-fact “scrivener’s error” claims where the correction changes immunity or remedies.
• Exhaustion Rigor: The opinion re-emphasizes that emailing an investigator or referencing later events in agency correspondence will not extend or toll the 45-day window, curbing informal attempts to broaden EEO investigations.
• Comparator Evidence Post-Babb: By marrying Babb’s lenient causation with Lewis’ strict comparator test, the Court sets a balanced—but exacting—benchmark for future summary-judgment contests in federal employment suits.
• Use of MOU/Collective-Bargaining Carve-outs: Agencies may rely on collectively bargained augmentation or shift-rotations as nondiscriminatory explanations, so long as those carve-outs are applied consistently across departments.

4. Complex Concepts Simplified

1. Discrete Act

A single employment decision with immediate effect—e.g., a promotion denial, pay change, or investigation initiation. Each starts its own time-limit clock.

2. Continuing Violation

A situation where many small acts collectively form a single claim (typical in hostile-work-environment cases). Not a tool to revive separate, finished acts.

3. Comparator “Similarly Situated in All Material Respects”

The proposed comparable employee must share the same misconduct (or performance), rules, chain of command, and relevant context—otherwise differences justify divergent treatment.

4. “Scrivener’s Error”

Merely an obvious clerical typo (e.g., transposed digits). An error that changes legal rights or the scope of statutory waiver is not clerical.

5. § 791 vs. § 794 of the Rehabilitation Act

§ 791 applies to federal agencies and imports Title VII remedies, including compensatory damages; § 794 applies to federally funded programs and omits the waiver needed to claim money damages against the United States.

5. Conclusion

The Eleventh Circuit’s opinion in Jimenez crystalizes three take-aways:

1. Plead precisely: A mis-stated statute is a substantive defect, not a typo, if it alters sovereign immunity or remedies.
2. Exhaustion is unforgiving: Discrete employment acts must be administratively raised within 45 days; later acts require new or amended EEO charges.
3. Evidence still matters post-Babb: Plaintiffs must marshal either genuine comparators or a convincing mosaic to show discrimination “played any part” in a federal employer’s decision.

Together, these holdings reinforce procedural rigor in federal employment litigation and delineate the boundary between clerical error and substantive pleading mistake, raising the bar for future plaintiffs hoping to retrofit their cases at the remedy stage.