Olivia Jheekim Mack v. Delta Air Lines, Inc. , 639 F. App'x 582 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11945
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-01162-LMM
OLIVIA JIHEEKIM MACK,
DAVID KERRY MACK,
Plaintiffs - Appellants,
versus
DELTA AIR LINES, INC.,
SEDGWICK CLAIMS MANAGEMENT
SERVICES, INC.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 15, 2016)
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Before HULL, MARCUS, and EDMONDSON, Circuit Judges.
PER CURIAM:
Plaintiffs Olivia Jiheekim Mack (“Mack”) and David Mack, proceeding pro
se, appeal the district court’s dismissal of Mack’s amended complaint against
Mack’s employer, Delta Air Lines, Inc. (“Delta”), and against Sedgewick Claims
Management Services, Inc. (“Sedgewick”). Plaintiffs also appeal the district
court’s grant of Defendants’ motions for sanctions and denial of Plaintiffs’ motion
for sanctions. No reversible error has been shown; we affirm.
This case arises out of the denial of Mack’s application for short-term
disability insurance (“STDI”) benefits. Mack declined SDTI benefits when she
was first hired as a Delta flight attendant in 2007. When Mack later applied for
SDTI benefits in October 2008, she was denied coverage because she was
pregnant. Unable to qualify for SDTI benefits, Mack continued to work as a flight
attendant during her pregnancy. Mack alleges that, as a result of her working on
long international flights, she suffered from preeclampsia and high blood pressure
-- putting both her and her unborn baby’s health at risk.
Mack filed a charge of employment discrimination with the Equal
Employment Opportunity Commission (“EEOC”), alleging that she was
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discriminated against in violation of Title VII, the Age Discrimination in
Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”).
After efforts to obtain a settlement failed, the EEOC issued Mack a right-to-sue
notice.
On 9 April 2013, Mack filed this civil action against Delta and Sedgewick,
the administrator of Delta’s STDI program. In her initial complaint, Mack
purported to assert against Defendants claims for violations of Title VII, the ADA,
and the ADEA, and several state-law claims.
The district court dismissed as untimely the employment discrimination
claims arising from Mack’s EEOC charge and dismissed without prejudice Mack’s
remaining state-law claims. The district court also denied as futile Mack’s four
motions to amend the complaint but granted her leave to file an amended
complaint that complied with federal pleading requirements.
Mack then filed the amended complaint pertinent to this appeal; she
purported to assert against Defendants claims for Title VII retaliation, civil RICO,
and state-law libel. The district court dismissed Mack’s claim for failure to state a
claim.
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I.
On appeal, Mack challenges the district court’s dismissal of her Title VII
employment discrimination claims as untimely. 1
To pursue her Title VII discrimination claims in federal court, Mack must
first establish that her complaint was filed within 90 days of her receipt of the
right-to-sue letter from the EEOC. See Green v. Union Foundry Co., 281 F.3d
1229, 1233-34 (11th Cir. 2002) (citing 42 U.S.C. § 2000e-5(f)(1)). We determine
on a case-by-case basis what constitutes “receipt” for purposes of triggering the
90-day limitations period. Zillyette v. Capital One Fin. Corp., 179 F.3d 1337,
1341 (11th Cir. 1999). “[A] plaintiff should not be heard to complain unless the
plaintiff has assumed the minimal burden of advising the EEOC of address
changes or taken other reasonable steps to ensure delivery of the notice to his
current address.” Stallworth v. Wells Fargo Armored Servs. Corp., 936 F.2d 522,
524 (11th Cir. 1991) (quotations and alterations omitted).
The record shows that the EEOC’s right-to-sue notice was mailed originally
on 27 December 2012, to the address listed on Mack’s EEOC charge. On 7
January 2013, the notice was returned to the EEOC as undeliverable. On 9
1
Mack raises no challenge to the district court’s dismissal of her ADA or ADEA claims; those
claims are abandoned. See N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217
n.4 (11th Cir. 2008).
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January, the EEOC re-mailed the notice to Mack’s then-current address; and Mack
received the notice on 11 January.
Viewing the allegations in Mack’s complaint in the light most favorable to
Mack, Mack provided no notice to the EEOC of her new address.2 Mack relied
instead on an expired mail-forwarding request filed with the post office. Because
Mack failed to satisfy her minimal burden of ensuring delivery of the right-to-sue
notice, the 90-day limitation period began running on the date on which Mack
would have received the EEOC’s initial right-to-sue notice at her former address.
See Kerr v. McDonald’s Corp., 427 F.3d 947, 953 (11th Cir. 2005). Assuming
three days for delivery of mail, the limitation period began running on 30
December 2012. See id. at 953 n.9. Because Mack’s complaint was filed 100 days
after the limitation period began to run, and because Mack failed to show
“extraordinary circumstances” warranting equitable tolling, see Jackson v. Astrue,
506 F.3d 1349, 1353 (11th Cir. 2007), the district court committed no error in
dismissing Mack’s Title VII discrimination claims as untimely.
2
Mack asserts on appeal -- and for the first time -- that she notified the EEOC of her new address
on 11 January 2011. As an initial matter, we do not generally consider issues raised for the first
time on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.
2004). Moreover, Mack’s assertion about her change-of-address notification is contradicted
flatly by her statements in the district court, statements indicating that she in fact provided no
notice directly to the EEOC of her new address.
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II.
Mack also challenges the district court’s dismissal of her claims for
retaliation and for retaliatory hostile work environment under Title VII. Briefly
stated, Mack’s retaliation claims stem from a letter that Delta’s lawyer sent to the
EEOC in response to Mack’s charge of discrimination (“March 2012 Letter”). In
pertinent part, the March 2012 Letter alleged that Mack declined SDTI benefits at
the time of hire and that it was “only after [Mack] became pregnant and knew the
likelihood of an extended absence was likely” that she applied for SDTI benefits.
We review de novo a district court’s grant of a motion to dismiss, accepting
the allegations in the complaint as true and construing them in the light most
favorable to the plaintiff. Simmons v. Sonyika, 394 F.3d 1335, 1338 (11th Cir.
2004). A “complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974
(2007). To state a plausible claim for relief, a plaintiff must go beyond merely
pleading the “sheer possibility” of unlawful activity by a defendant and so must
offer “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Our analysis of the plausibility
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standard is “context-specific” and “requires [us] to draw on [our] judicial
experience and common sense.” Id. at 1950.
To establish a cause of action for retaliation, the plaintiff must show that a
“reasonable employee would have found the challenged action materially adverse.”
Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2415 (2006). An act is
materially adverse if it “might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. (quotation omitted). A plaintiff may
also establish a cause of action for retaliatory hostile work environment if she can
show that the defendant’s retaliatory acts were “sufficiently severe or pervasive to
alter the terms and conditions of employment.” Gowski v. Peake, 682 F.3d 1299,
1312 (11th Cir. 2012).
The district court committed no error in dismissing Mack’s retaliation claims
for failure to state a claim. Mack has failed to allege facts demonstrating plausibly
that the March 2012 Letter would dissuade a reasonable worker from making or
supporting a charge of discrimination. See Burlington, 126 S. Ct. at 2415. When
an employee makes a charge of discrimination, the reasonable employee must
expect that the employer will defend itself to the EEOC. In addition, the March
2012 Letter by itself was not sufficiently severe or pervasive to alter the terms and
conditions of Mack’s employment. See Gowski, 682 F.3d at 1312 (“Discrete acts
cannot alone form the basis of a hostile work environment claim.”).
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III.
About Mack’s civil RICO claim, Mack failed to allege with particularity that
Defendants engaged in a pattern of racketeering activity. See McCulloch v. PNC
Bank, Inc., 298 F.3d 1217, 1225 (11th Cir. 2002). In her amended complaint,
Mack alleges that Defendants engaged in mail fraud by underpaying doctors
intentionally so that the completion of medical-eligibility forms would be delayed.
Even accepting this allegation as true, the alleged conduct is no “scheme to defraud
another of money or property” and, thus, constitutes no mail fraud. See Pelletier v.
Zweifel, 921 F.2d 1465, 1498 (11th Cir. 1991).3
IV.
The district court also committed no error in dismissing Mack’s state-law
libel claim against Delta, which is based solely on the contents of the March 2012
Letter.
3
Mack has also failed to allege sufficiently a causal connection between her injury and
Defendants’ alleged mail fraud. Mack contends she was denied STDI benefits based on her
pregnancy, not because she failed to complete her paperwork on time.
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Under Georgia law, absolute immunity applies to “official court documents
and acts of legal process,” including filings with a state employment agency and
“other quasi-judicial proceedings in administrative tribunals.” Skoglund v.
Durham, 502 S.E.2d 814, 816 (Ga. Ct. App. 1998) (quotations omitted) (citing
O.C.G.A. § 51-5-8). In determining whether absolute immunity applies, courts
look to the “nature of the proceeding and the character of the rights which may be
affected by it.” Id. Pertinent factors to consider may include the availability of
discovery and of an evidentiary hearing, whether the merits of the complaint will
be reached during the proceeding, and the scope of judicial review. Id.
Before filing a Title VII action in federal court, plaintiffs are required to file
a charge of discrimination with the EEOC. Gregory v. Ga. Dep’t of Human Res.,
355 F.3d 1277, 1279 (11th Cir. 2004). The EEOC is then required to investigate
the charge and may order a fact-finding conference. 29 C.F.R. § 1601.15(a). As
part of its investigative powers, the EEOC is authorized to issue subpoenas
requiring witness testimony and the production of evidence. 29 C.F.R. § 1601.16.
Based on its investigation, the EEOC makes a determination about whether
“reasonable cause” exists to believe that an unlawful employment practice
occurred. 29 C.F.R. §§ 1601.19, 1601.21.
Given the nature of the EEOC’s investigative process, we agree with the
district court’s determination that an EEOC proceeding constitutes a “quasi-
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judicial” proceeding entitled to absolute immunity under Georgia law. Because the
March 2012 Letter was sent to the EEOC as part of the EEOC’s investigation of
Mack’s discrimination charge against Delta, it fell within the scope of the EEOC’s
“quasi-judicial” administrative process and is entitled to absolute privilege.
In addition, Mack has failed to allege sufficiently that the March 2012 Letter
was “published”: a necessary element for establishing a claim for libel. See
ComSouth Teleservs., Inc. v. Liggett, 531 S.E.2d 190, 192 (Ga. Ct. App. 2000).
Neither the alleged communication to Delta’s top management and lawyer nor the
communication to a third-party printer constituted “publication” for purposes of
stating a claim for libel under Georgia law. See Galardi v. Steele-Inman, 597
S.E.2d 571, 575-76 (Ga. Ct. App. 2004) (no publication arises from intracorporate
communication or from communication between corporations that are engaged in a
joint enterprise); Beck v. Oden, 13 S.E.2d 468, 471 (1941) (no publication arises
from communication to a “business associate in the ordinary and natural course of
business”). And Mack has failed to plead facts to support her conclusory
allegation that the 2012 March Letter was published to hundreds of other pregnant
and disabled Delta employees. See Iqbal, 129 S. Ct. at 1949.
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V.
We review for abuse of discretion the district court’s exercise of its inherent
power to impose sanctions. Sciarretta v. Lincoln Nat’l Life Ins. Co., 778 F.3d
1205, 1212 (11th Cir. 2015). Under its inherent authority, a federal court may
assess attorney’s fees and costs against a party or his lawyer “when either has acted
in bad faith, vexatiously, wantonly, or for oppressive reasons.” Byrne v. Nezhat,
261 F.3d 1075, 1106 (11th Cir. 2001) (quotation omitted). A finding of bad faith is
warranted, among other things, when a party “knowingly or recklessly raises a
frivolous argument” or when a party delays or disrupts the litigation. Id. at 1121.
The record supports the district court’s determination that Plaintiffs acted in
bad faith in filing their third and fourth amended complaints. The third amended
complaint was 86 pages long with 125 pages of exhibits; and the fourth proposed
amendment sought to supplement the complaint with an additional 45 pages of
pleadings and 277 pages of exhibits. Neither the third nor the fourth proposed
amended complaints raised new claims against Defendants. Instead, the proposed
amendments sought only to add new facts, arguments and exhibits, the bulk of
which were not pertinent to or only tangentially related to Mack’s earlier-asserted
claims against Defendants. On this record, the district court abused no discretion
in granting in part Defendants’ motions for sanctions.
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The district court also abused no discretion in denying Plaintiffs’ motion for
sanctions against Defendants or in denying Plaintiffs’ motion for reconsideration.
Nothing evidences that Defendants acted in bad faith in asserting a preemption
defense under ERISA.
AFFIRMED.
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