Richard v. Kelly v. Dun & Bradstreet, Inc. , 557 F. App'x 896 ( 2014 )

Case: 13-11060 Date Filed: 02/27/2014 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11060
Non-Argument Calendar
________________________
D.C. Docket No. 1:09-cv-01498-CAP
RICHARD V. KELLY,
Plaintiff-Appellant,
versus
DUN & BRADSTREET, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 27, 2014)
Before TJOFLAT, JORDAN and KRAVITCH, Circuit Judges.
PER CURIAM:
Case: 13-11060 Date Filed: 02/27/2014 Page: 2 of 11
This case is before us following our remand instructing the district court to
consider and determine which of Richard Kelly’s claims related to or arose out of
his timely 2003 EEOC charge in his action against his former employer, Dun &
Bradstreet (D&B). On remand, the district court determined that many of Kelly’s
claims were untimely or unexhausted. With respect to the timely charges, the
district court granted summary judgment in D&B’s favor. Kelly appeals, and after
a thorough review of the record, we affirm in part and vacate and remand in part. 1
I. Background
On June 4, 2009, Kelly filed suit against D&B, alleging that he was
discriminated against based on his race, sex, age, and disability (depression),
subjected to a hostile work environment, and retaliated against after he complained
about D&B’s conduct, in violation of Title VII, 42 U.S.C. § 2000e, et seq., and the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623. According to
Kelly’s complaint, D&B engaged in the following discriminatory and retaliatory
actions: D&B retroactively increased his 2002 sales quota in January 2003, failed
to compensate him properly in 2002, failed to give him revenue relief in February
2003, issued him a warning letter in May 2003, failed to recognize his 35th
anniversary with the company in September 2003, issued him a letter of probation
1
We deny Kelly’s motion to supplement the record. The evidence submitted with the motion
could have been —but was not —presented to the district court.
2
Case: 13-11060 Date Filed: 02/27/2014 Page: 3 of 11
in March 2004, fired him at age 58 in August 2004, and failed to timely pay his
pension, insurance, and unused vacation days after his termination.
Attached to the complaint were copies of the EEOC charges Kelly had filed.
The first charge, dated June 18, 2003, alleged that the actions complained of
occurred between June 1, 1993, and June 9, 2003. In that charge, Kelly identified
three coworkers who were treated more favorably, and he alleged constructive
discharge, wage discrimination, and hostile work environment. In the second
charge dated February 26, 2005, Kelly alleged that the actions continued through
August 31, 2004, and he added allegations of wrongful termination and post-
termination retaliation based on the withholding of his pension benefits and unused
vacation time. The third and final charge was dated August 31, 2007, and it listed
numerous allegations, including that Kelly was denied administrative help and
office space, given a lower salary than other sales team members, not paid his full
commissions on two sales, and that D&B ignored his 35-year service anniversary.
D&B moved for summary judgment, arguing that Kelly failed to file a
timely EEOC charge and disputing his allegations on the merits. The district court
granted summary judgment to D&B on the ground that the only charge Kelly had
filed was in 2007 and was untimely. On appeal, this court disagreed and remanded
with instructions for the district court to determine which, if any, of Kelly’s
allegations related to or grew out of the allegations in the timely-filed 2003 charge.
3
Case: 13-11060 Date Filed: 02/27/2014 Page: 4 of 11
On remand, D&B again moved for summary judgment. The magistrate
judge determined that the only timely claims of discrimination were those alleging
that three coworkers were treated more favorably, and that D&B retaliated against
Kelly by issuing the 2003 warning letter and delaying payment for Kelly’s unused
vacation time, pension, and retirement benefits. Addressing the merits of the
discrimination claims, the magistrate judge concluded that Kelly could not show
that any of the identified employees were similarly situated comparators because
they had different responsibilities or supervisors. Addressing the retaliation
claims, the magistrate judge found that Kelly could not establish a prima facie case
based on the warning letter, as Kelly could not have had an objectively reasonable
belief that his January 2003 comments in response to his 2002 annual review were
statutorily protected, and there was no causal connection between his comments
and the warning letter five months later. With respect to the withholding-of-
benefits claim, the magistrate judge concluded that Kelly had abandoned it, but
alternatively, there was no causal connection because Kelly’s supervisors were not
responsible for handling his benefits. Finally, although the magistrate judge found
that Kelly’s claim for retaliatory termination was untimely, the magistrate judge
nevertheless concluded that Kelly failed to establish a prima facie case of
retaliation and he could not rebut all of D&B’s legitimate non-discriminatory
reasons for firing him. Accordingly, the magistrate judge recommended granting
4
Case: 13-11060 Date Filed: 02/27/2014 Page: 5 of 11
D&B’s motion for summary judgment. The district court adopted the magistrate
judge’s recommendation, over Kelly’s objections, and granted summary judgment
to D&B.
II. Issues on Appeal
On appeal, Kelly challenges the district court’s determination that many of
his claims were untimely and did not relate back to or grow out of the 2003 EEOC
charge; that the district court erroneously concluded that he failed to raise wage
discrimination and hostile-work-environment claims sufficiently in his 2003
charge, and that he suffered a retaliatory hostile work environment. Finally, he
challenges the district court’s grant of summary judgment on the merits.
III. Discussion
We review a district court’s grant of summary judgment de novo, viewing all
evidence, and reasonable inferences drawn therefrom, in the light most favorable to
the non-moving party. Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d
1160, 1161 (11th Cir. 2006); Wascura v. City of S. Miami, 257 F.3d 1238, 1242
(11th Cir. 2001). Summary judgment is appropriate if the evidence demonstrates
that there is no genuine issue as to any material fact, and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
Both Title VII and the ADEA require that a plaintiff exhaust all available
administrative remedies prior to filing a lawsuit. Bost v. Fed. Express Corp., 372
5
Case: 13-11060 Date Filed: 02/27/2014 Page: 6 of 11
F.3d 1233, 1238 (11th Cir. 2004) (ADEA requirement); Wilkerson v. Grinnell
Corp., 270 F.3d 1314, 1317 (11th Cir. 2001) (Title VII requirement). In Georgia, a
charge of discrimination must be filed within 180 days after the alleged unlawful
practice. Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 (11th Cir. 2004); 29
U.S.C. § 626(d)(1)(A); 42 U.S.C. § 2000e-5(e)(1). The 180-day clock begins
running at the time the employee receives notice of the subject adverse
employment action. Wright v. AmSouth Bancorp., 320 F.3d 1198, 1201-02 (11th
Cir. 2003) (ADEA); Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848
(11th Cir. 2000) (Title VII).
A charge of discrimination is considered filed upon receipt, but a petitioner
may amend it in order to clarify and/or amplify the allegations made therein. 29
C.F.R. §§ 1601.12(b), 13(a) (Title VII), 1626.8(c) (ADEA). Amendments that
allege additional acts that constitute unlawful employment actions related to or
growing out of the subject matter of the original charge relate back to the date the
charge was first received. Id. §§ 1601.12(b) (Title VII), 1626.8(c) (ADEA).
Although a plaintiff must exhaust his claims prior to seeking judicial review,
the failure to make specific factual allegations in a charge does not necessarily
preclude judicial review of those allegations. See Gregory v. Ga. Dep’t of Human
Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (holding that a charge of retaliation was
not administratively barred despite plaintiff’s failure to check the box marked
6
Case: 13-11060 Date Filed: 02/27/2014 Page: 7 of 11
“retaliation” on the EEOC charge form when the facts stated in the charge could
reasonably be extended to encompass a claim for retaliation). A plaintiff’s judicial
complaint is, however, limited by the scope of the EEOC investigation that can
reasonably be expected to grow out of the charge of discrimination. Id. The scope
of an EEOC complaint should not be strictly interpreted, and we are “extremely
reluctant” to allow procedural technicalities to bar discrimination claims. Id.(internal quotation marks omitted). Judicial claims that amplify, clarify, or more
clearly focus earlier EEOC complaints are appropriate. Ray v. Freeman, 626 F.2d
439, 443 (5th Cir. 1980).2 The proper inquiry is whether the complaint is like or
related to, or grew out of, the allegations contained in the relevant charge.
Gregory, 355 F.3d at 1280.
On the other hand, allegations of new acts of discrimination that are offered
as the essential basis for requested judicial review are not appropriate absent prior
EEOC consideration. Ray, 626 F.2d at 443. Discrete acts of discrimination, such
as termination or failure to promote, that occur after the filing of an EEOC
complaint must first be administratively reviewed before they may serve as a basis
for a judicial finding of discriminatory conduct. Id. at 442; see also Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). But a charge alleging a
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
7
Case: 13-11060 Date Filed: 02/27/2014 Page: 8 of 11
hostile work environment will not be time barred so long as all acts which
constitute the claim are part of the same unlawful employment practice and at least
one act falls within the relevant time period. Id. at 120-21.
A. Timeliness of Claims
In his complaint, Kelly alleged multiple instances of discrimination and
retaliation, and asserted that he suffered a hostile work environment in retaliation
for his protests in January 2003. The magistrate judge concluded that most of
Kelly’s claims were untimely, and that Kelly failed to provide any facts supporting
his allegations of wage discrimination and hostile work environment. 3
The 2003 EEOC charge forms the basis of our analysis, and in order to be
timely, claims must have been raised in that charge, or relate to, or grow out of,
that charge. Gregory, 355 F.3d at 1280. Upon review of the record, we conclude
that the magistrate judge properly determined the timeliness of Kelly’s claims and
correctly assessed those claims that could be expected to grow out of the 2003
charge. We therefore, adopt the magistrate judge’s thorough analysis on this issue,
with one exception. The magistrate judge rejected Kelly’s hostile-work-
environment claim without further discussion, finding that Kelly had not
3
Kelly does not challenge the district court’s conclusions regarding his claims for harassment,
disability discrimination, or post-termination benefits. Thus, has abandoned these issues.
Holland v. Gee, 677 F.3d 1047, 1066 (11th Cir. 2012).
8
Case: 13-11060 Date Filed: 02/27/2014 Page: 9 of 11
sufficiently addressed this claim in his EEOC charge. 4 We disagree. In his 2003
charge, Kelly alleged that he suffered a hostile work environment, and he provided
sufficient facts for the EEOC to investigate this claim.
B. Hostile environment claim
To establish a hostile work environment under Title VII, the plaintiff must
show that “the workplace is permeated with discriminatory intimidation, ridicule,
and insult, that is sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment. . . .” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation and internal quotation marks
omitted); see also Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th
Cir. 2002). The requirement that the harassment be “severe or pervasive” contains
an objective and a subjective component, “[t]hus, to be actionable, this behavior
must result in both an environment that a reasonable person would find hostile or
abusive and an environment that the victim subjectively perceive[s] . . . to be
abusive.” Miller, 277 F.3d at 1276 (internal quotation marks omitted). “[W]hether
an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all
the circumstances.” Harris, 510 U.S. at 23. But discrete acts, such as termination
or the failure to promote, cannot alone form the basis of a hostile-work-
4
We need not address whether Kelly identified sufficient facts to preserve his claim for wage
discrimination. In his objections to the magistrate judge’s report, Kelly explained that his wages
claim related to the “spoon feeding” of accounts to Gillis. The magistrate judge considered this
claim on its merits.
9
Case: 13-11060 Date Filed: 02/27/2014 Page: 10 of 11
environment claim. See McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008)
(noting that a hostile-work-environment claim addresses the cumulative nature of
the conduct and not the specific discrete act (citing Nat’l R.R. Passenger Corp.,
536 U.S. at 117)); see also Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012)
(explaining that discrete acts, although not a basis for a hostile-work-environment
claim, may be taken into consideration in evaluating such a claim).
Kelly alleged a discriminatory hostile-work-environment claim in his 2003
charge, he raised it in his complaint, and he objected to the magistrate judge’s
findings on this issue. But he does not argue on appeal that the district court erred
in finding this claim untimely. Thus, he has abandoned this issue. Holland v. Gee,
677 F.3d 1047, 1066 (11th Cir. 2012). Kelly does, however, make an argument on
appeal that the actions he suffered constituted a retaliatory hostile work
environment.
Kelly explicitly raised the retaliatory hostile-work-environment issue in his
objections to the magistrate judge’s report. 5 To survive summary judgment on this
claim, Kelly must show that he suffered a hostile work environment in retaliation
for engaging in protected activity. See Gowski, 682 F.3d at 1311-12. After the
5
We note that in his appellate brief, Kelly uses “hostile work environment” and “retaliatory
hostile work environment” interchangeably. But it appears that prior to the appeal, he considered
these to be two different causes of action. As Kelly explains in his reply brief on appeal, he
could not have raised the retaliatory hostile work environment until his objections because the
Eleventh Circuit did not recognize such a claim before then. Thus, Kelly did not intend for his
prior use of the term “hostile work environment” to include retaliatory hostile-work-environment
claims.
10
Case: 13-11060 Date Filed: 02/27/2014 Page: 11 of 11
district court considered Kelly’s objections, it adopted the magistrate judge’s report
without further discussion, and the magistrate judge never addressed this specific
issue. See, e.g., Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009)
(holding that district courts have the discretion to consider issues raised for the first
time in objections to a magistrate judge’s report). Thus, we have no factual or
legal analysis for appellate review. Accordingly, we vacate and remand for further
proceedings on this issue.
C. Merits of the remaining discrimination and retaliation claims
Finally, the magistrate judge reached the merits of whether the three
comparators were treated more favorably than Kelly, and whether Kelly suffered
retaliation when he received a warning letter. 6 Having conducted a thorough
review of the record, we agree with the magistrate judge’s well-reasoned opinion
concerning the merits of these claims and thus adopt it as the opinion of this court.
Accordingly, for the foregoing reasons, we affirm the district court in part
and vacate and remand in part for the district court to address Kelly’s retaliatory
hostile-work-environment claims consistent with this opinion.
AFFIRMED in part, VACATED and REMANDED in part.
6
The magistrate judge also found that Kelly failed to establish retaliation in connection with his
pension benefits and unused vacation time. Kelly offers no argument on this issue on appeal and
has abandoned it. Holland, 677 F.3d at 1066.
11