USCA11 Case: 20-13112 Date Filed: 10/03/2022 Page: 1 of 22
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13112
____________________
ERIC M. ELLISON,
Plaintiff-Appellant,
versus
POSTMASTER GENERAL,
UNITED STATES POSTAL SERVICE,
Defendant-Appellee,
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:19-cv-726-MMH-PDB
____________________
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2 Opinion of the Court 20-13112
Before WILLIAM PRYOR, Chief Judge, LUCK, Circuit Judge, and
MOORER,* District Judge.
PER CURIAM:
Eric M. Ellison appeals the district court’s dismissal of Count
III of his amended complaint, a claim for retaliation in violation of
the Rehabilitation Act of 1973 and Title VII of the Civil Rights Act
of 1964. The district court took judicial notice of relevant public
documents that were from a federal agency administrative record
then dismissed Ellison’s retaliation claim for his failure to state a
claim upon which relief can be granted.
Ellison argues the district court erred when it took judicial
notice of the administrative records but did not treat the motion as
one for summary judgment and allow him a reasonable oppor-
tunity to present all of the material that is pertinent to the motion.
Ellison also argues the district court erred when it dismissed his re-
taliation claim for his failure to exhaust his administrative remedies
because the alleged retaliation “was like or related to, or grew out
of” acts that he detailed in a previously filed claim and was not re-
quired to file a new one. We find the district court did not err on
either issue and affirm the judgment of the district court.
* The Honorable Terry F. Moorer, United States District Judge for the South-
ern District of Alabama, sitting by designation.
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20-13112 Opinion of the Court 3
I. FACTUAL BACKGROUND
Ellison, an African-American male, began his employment
in February 2000 as a mail handler with the United States Postal
Service (“USPS”) at one of its facilities in Jacksonville, Florida. In
November 2003, Ellison sustained a lower-back injury that affected
his ability to “perform repetitive motions such as bending, lifting,
twisting, and turning,” and as a result, he did not perform his duties
as a mail handler while he received medical care and treatment for
his injury. Ellison returned to his mail-handler duties in January
2004.
During Fall 2014, Patricia Becker, a Caucasian female, be-
came Ellison’s supervisor. In February 2016, Becker assigned El-
lison a modified job position that reduced Ellison’s daily work
hours from eight (8) to two (2), which in turn reduced his daily pay.
Ellison alleges Becker discriminated against him when she assigned
him the modified job position because the decision was based on
his race and disability (i.e., his lower back injury). Ellison alleges
Becker did not reduce the hours of other mail carriers who either
were not African American or did not have a disability.
In March 2016, Ellison contacted an Equal Employment Op-
portunity (“EEO”) counselor about Becker’s alleged discrimination
then filed a formal charge of discrimination against USPS based on
his race and disability. In July 2016, during the EEO’s investigation
of Ellison’s claim and after Becker was informed of the allegations
of the claim against her, Ellison alleges Becker retaliated against
him “when she removed [him] from working at the [USPS] facility
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4 Opinion of the Court 20-13112
without pay for approximately one year[,] proximately causing
[him] to lose an annual salary of $60,000.00 plus overtime pay.”
In response, Ellison brought this action against USPS on
June 17, 2019. Ellison then amended his complaint on August 26,
2019, at the direction of the court. In the amended complaint, El-
lison brought three claims under the Rehabilitation Act,
29 U.S.C.
§ 794, and Title VII, 42 U.S.C. § 2000e, against USPS: (1) disability
discrimination (Count I), (2) race discrimination (Count II), and (3)
retaliation (Count III). Ellison further alleged “[a]ll conditions prec-
edent to this action, including the filing of a Formal Complaint of
Discrimination and the issuance of a Right to File Civil Action,”
were met.
In response to the amended complaint, USPS filed a motion
to dismiss for failure to state a claim. As to Counts I and II, USPS
argued Ellison failed to plead facts to support his claims of disparate
treatment. USPS also argued Ellison failed to allege an adverse em-
ployment action because the administrative record details USPS of-
fered him modified job positions based on his self-reported physical
limitations. As to Count III, USPS argued Ellison failed to exhaust
his administrative remedies because the retaliation that he alleged
occurred in July 2016 was a separate action from the retaliation for
which he filed a formal complaint of discrimination. USPS in-
cluded with its motion to dismiss records of the administrative pro-
ceedings that relate to Ellison’s claims, such as the agency’s deci-
sion and the supporting evidence. An internal USPS email details
USPS returned Ellison to full duty, full time in July 2004, though he
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20-13112 Opinion of the Court 5
denies he was made aware of it. Ellison claimed in his complaint
to the agency he was told by a USPS supervisor, on June 23, 2016,
a manager wanted him to report to the Robot Operation and, if he
did not, he would have to leave the building, which was a reprisal
for his earlier, protected activity.
In the Equal Employment Opportunity Commission's
(“EEOC”) decision, it found Ellison reported on a Department of
Labor, Office of Workers Compensation (“OWCP”) CA-17 form,
dated January 29, 2016, he was unable to: (a) continuously lift five
pounds or intermittently lift more than fifteen pounds for one hour
per day; (b) (i) stand or walk more than one hour per day, (ii) sit or
engage in fine manipulation (including the use of a keyboard) more
than two hours per day, (iii) bend/stoop fifteen minutes per day,
(iv) push/pull more than thirty minutes per day, or (v) climb,
kneel, reach above the shoulders or operate machinery. As a result
of Ellison’s reported physical condition, USPS officials offered him,
on February 2, 2016, a modified job that would allow him to per-
form two hours of work in the Robot Operation, which he refused.
Ellison then provided another later-dated OWCP CA-17 form with
similar physical restrictions to those that were indicated in the pre-
vious form, but it was noted he could perform many of the same
functions for a period of between six and eight hours per day. As a
result of Ellison’s newly reported physical condition, USPS officials
offered him, on February 5, 2016, a modified job that would allow
him to perform various tasks for up to eight hours at the Robot
Operation.
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6 Opinion of the Court 20-13112
Ellison filed his opposition to the motion to dismiss. Ellison
argued his amended complaint was sufficiently well pled to survive
dismissal under a Fed. R. Civ. P. 12(b)(6) standard because he al-
leged facts that established a prima facie case of unlawful discrimi-
nation. Ellison further argued he met the administrative exhaus-
tion requirement for his retaliation claim because the investigation
of his disability and race discrimination claims would have neces-
sarily involved an inquiry into retaliation for reporting those
claims.
In an amended response to the motion to dismiss, Ellison
objected to the records of the administrative proceedings on the
grounds that they were not referred to in the amended complaint,
were not central to his claims, and were not accompanied by a cus-
todial record of authenticity.
Following oral argument for the amended motion to dis-
miss, the district court denied the motion as to Counts I and II and
denied without prejudice the motion as to Counts III, but the dis-
trict court further allowed USPS to file a supplemental motion to
dismiss as to Count III and set a briefing schedule.
The renewed motion to dismiss focused on an exception to
the exhaustion requirement that this Court’s predecessor recog-
nized in Gupta v. East Texas State University,
654 F.2d 411 (5th Cir.
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20-13112 Opinion of the Court 7
1981), 1 and this Court later reiterated in Baker v. Buckeye Cellu-
lose Corp.,
865 F.2d 167 (11th Cir. 1988), generally referenced as
the “Gupta/Baker exception.” USPS argued the Gupta/Baker ex-
ception applied only when the alleged retaliation occurred while a
case was pending in a district court such that the claim “grew out
of” an earlier charge. USPS further argued the Gupta/Baker excep-
tion has been narrowly construed by this Court and judicial claims
that rely on “new” or “discrete acts of discrimination” that “support
a separate theory of discrimination” must be separately exhausted.
USPS next argued the viability of the Gupta/Baker exception was
unclear in light of the Supreme Court’s decision in National Rail-
road Passenger Corp. v. Morgan,
536 U.S. 101 (2002), in which it
was held the time for filing a charge of discrimination ran sepa-
rately for each discrete discriminatory or retaliatory act. USPS
noted the district courts in this circuit were split on the effect of
Morgan on the precedential value of Gupta and Baker. USPS fur-
ther argued this Court limited Gupta and Baker to their facts in
Duble v. FedEx Ground Package System, Inc., 572 F. App’x 889
(11th Cir. 2014) – specifically, the Gupta/Baker exception applies
only in cases where the alleged retaliation occurred after a suit is
properly filed in a district court.
1 The Eleventh Circuit has adopted as binding precedent the decisions of the
Fifth Circuit that were decided prior to October 1, 1981. Bonner v. City of
Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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8 Opinion of the Court 20-13112
Finally, USPS argued, even if this Court chose not to follow
Duble, the Gupta/Baker exception did not apply to this case be-
cause Ellison’s suspension was not “a reasonable outgrowth” of
any of the conduct that was alleged in his administrative charges
since it was different in “type . . . timing . . . and consequence.”
USPS argued “[i]t [was] unreasonable to expect the scope of an
EEOC investigation convened for a temporary hours-reduction
[sic] to cover a different discrete act . . . at a different time[ ] . . .
without more.” USPS concluded to excuse exhaustion in this case
“would be tantamount to excusing all retaliation claims from ex-
haustion.”
In support of the renewed motion to dismiss, USPS again
attached records from the agency and the EEOC that document
the administrative proceedings of Ellison’s claims. The attached
records included two of Ellison’s agency charges of discrimination.
In the informal charge from March 2016, Ellison stated Becker
placed him in a job that required only two hours of daily work de-
spite the medical opinion of his doctor, who said Ellison could
work eight hours per day. Ellison said Becker told him to use an-
nual leave to make up the remaining six hours of a full workday,
while a white coworker who was injured outside of work was
placed in a supervisory position to work full days. In June 2016,
Ellison filed a formal charge with the EEOC in which he described
the same discriminatory conduct. On June 26, 2016, Ellison re-
quested an appointment with a Dispute Resolution Specialist and
in a second informal charge, filed on July 1, 2016, Ellison alleged
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20-13112 Opinion of the Court 9
Becker retaliated against him on June 23, 2016, when she allegedly
ordered him, through intermediaries, to “report to the robot oper-
ation” or “leave the building.”
The United States Postal Service National EEO Investigative
Services Office (“EEO ISO”) issued a partial acceptance and partial
dismissal of Ellison’s charges. In EEO ISO’s explanation of its deci-
sion, it construed Ellison’s second informal charge as an amend-
ment to his formal charge since the conduct alleged in the second
informal charge was “like or related” to the conduct alleged in the
formal charge. The EEO ISO explained it accepted for investiga-
tion Ellison’s charge that he was placed in a modified job position
that allowed him to work two hours daily, even though he was able
to work eight hours daily. The EEO ISO explained it declined to
investigate Ellison’s charge that he was made to use personal leave
to make up the remaining six hours of a full workday because the
EEOC was not the proper forum to bring the claim. The EEO ISO
explained it declined to investigate Ellison’s charge that he was or-
dered to “report to the robot operation” or “leave the building”
because it was not an adverse employment action. However, an
Administrative Law Judge (“ALJ”) later reinstated Ellison’s latter
claim.
Ultimately, the ALJ decided in favor of USPS on Ellison’s
claims. The ALJ found, in light of Ellison’s self-reported medical
condition, the reduction in hours and reassignment to the robot
operation was a reasonable accommodation and he was not enti-
tled to the accommodation of his choice. The ALJ reasoned, since
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10 Opinion of the Court 20-13112
Ellison was offered and rejected a reasonable accommodation, he
was not subject to an adverse employment action. Importantly,
the ALJ did not acknowledge or address any claim by Ellison that
Becker prevented him from working with pay for approximately
one year, the basis of Count III of his amended complaint.
In response to the decision of the ALJ, on March 21, 2019,
the EEO ISO issued a “Notice of Final Action” in which it decided
to implement the decision of the ALJ and notified Ellison of his
right to appeal the decision to the EEOC or file suit in a district
court within ninety days.
Ellison filed his opposition to the renewed motion to dismiss
and argued four of the documents that USPS filed in support of its
motion – the EEO ISO’s partial acceptance and partial dismissal of
Ellison’s charges, the ALJ order that reinstated Ellison’s retaliation
claim, the ALJ’s final order that found in favor of USPS, and the
EEO ISO’s “Notice of Final Action,”– could not be considered and
should be stricken because they were not referred to in the
amended complaint, central to Ellison’s claims, or accompanied by
a custodial record of authenticity. Ellison also argued he pled a
prima facie case of retaliation. As to the administrative exhaustion
argument, Ellison argued he reported Becker’s alleged retaliation
in his second informal charge, which he argued was sufficient to
satisfy the exhaustion requirement.
The district court granted the renewed motion to dismiss
and dismissed Count III. Procedurally, the district court explained
it could consider the administrative records that were attached to
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20-13112 Opinion of the Court 11
the renewed motion to dismiss without converting the motion into
one for summary judgment because the Federal Rules of Evidence
and this Court’s precedent allowed a district court to judicially no-
tice facts that are not subject to reasonable dispute, including public
records. The district court noted Ellison did not argue the admin-
istrative records were not authentic in his response to the renewed
motion to dismiss.
Substantively, the district court concluded Ellison failed to
exhaust his retaliation claim. The district court rejected Ellison’s
argument that the allegation of retaliation by Becker that was be-
fore the agency, which was based on his reassignment to the robot
operation, was sufficient to exhaust the retaliation claim in his
amended complaint, which was based on Becker’s decision to “re-
mov[e] [him] from work for approximately one year,” in July 2016,
after he filed his formal charge with the EEOC. The district court
noted the record showed the EEOC never investigated, or was
made aware of, his suspension, Ellison had reason to know about
it, and could have amended his formal EEOC complaint to include
the suspension.
The district court noted USPS presented “an extensive argu-
ment” on the inapplicability of the Gupta/Baker exception and in-
itially declined to address the argument because Ellison did not ad-
dress the argument in his response to the renewed motion to dis-
miss. Yet, in a footnote, the district court described the cases and
the lack of clarity in regard to their continued meaning and prece-
dential value in light of Morgan and Duble. The district court
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12 Opinion of the Court 20-13112
continued its analysis and surveyed the decisions of other districts
courts of this circuit. The district court then found the analysis in
Duble applied to Ellison’s retaliation claim and the claim was not
properly exhausted “[b]ecause [he] opted not to amend his Formal
Complaint to include a claim based upon his suspension, or raise
this incident during the investigation.”
Thereafter, Ellison and USPS filed a joint stipulation of dis-
missal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii) and purported to
dismiss with prejudice Counts I and II but reserve Ellison’s right to
appeal the dismissal of Count III. Pursuant to the joint stipulation
of dismiss, the district court dismissed with prejudice Counts I and
II and, in the same order, directed the Clerk of Court to enter judg-
ment pursuant to Fed. R. Civ. P. 54 and dismiss Count III. The
Clerk of Court entered the judgment as directed. Ellison then
timely filed his notice of appeal.
This Court issued to the parties a jurisdictional question of
whether their stipulation of dismissal was valid under Fed. R. Civ.
P. 41(a)(1)(A). In response, USPS conceded the stipulation of dis-
missal was not valid because Fed. R. Civ. P. 41(a)(1)(A) only allows
parties to stipulate to the dismissal of an entire action, not individ-
ual claims, but argued the district court’s order was valid and final
under Fed. R. Civ. P. 41(a)(2). Similarly, Ellison, through successor
counsel, agreed the stipulation was invalid but argued the district
court’s order was still a final, appealable order because it purported
to dismiss all of the claims in the action. This Court determined it
likely has jurisdiction.
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20-13112 Opinion of the Court 13
II. STANDARD OF REVIEW
“[This Court] review[s] a district court’s decision to take ju-
dicial notice of a fact for abuse of discretion.” Paez v. Sec’y, Fla.
Dep’t of Corr.,
947 F.3d 649, 651 (11th Cir. 2020) (citing Lodge v.
Konduar Cap. Corp.,
750 F.3d 1263, 1273 (11th Cir. 2014)).
“[This Court] reviews de novo the district court’s grant of a
motion to dismiss under [Federal Rule of Civil Procedure] 12(b)(6)
for failure to state a claim, accepting the allegations in the com-
plaint as true and construing them in the light most favorable to
the plaintiff.” Griffin v. Coca-Cola Refreshments USA, Inc.,
989
F.3d 923, 931 (11th Cir. 2021) (internal quotation marks omitted).
Likewise, “[w]hether the requirement of exhaustion of administra-
tive remedies applies to a claim is a question of law that we review
de novo.” Lanfear v. Home Depot, Inc.,
536 F.3d 1217, 1221 (11th
Cir. 2008) (citing Mason v. Cont’l Grp., Inc.,
763 F.2d 1219, 1224-27
(11th Cir. 1985)).
III. DISCUSSION AND ANALYSIS
Preliminarily, the Court finds there is jurisdiction to con-
sider this appeal. The parties concede in their stipulation, which
they filed in an attempt to preserve the ability to appeal the dismis-
sal of Count III, would not be valid under Fed. R. Civ. P. 41(a)(1)(A)
as it dismisses fewer than all claims. Cf. Perry v. Schumacher Grp.
of La.,
891 F.3d 954, 958 (11th Cir. 2018) (“There is no mention in
the Rule of the option to stipulate dismissal of a portion of plaintiff's
lawsuit—e.g., a particular claim—while leaving a different part of
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14 Opinion of the Court 20-13112
the lawsuit pending before the trial court.”). A request to dismiss
an action requires a court order and dismissal by terms the court
considers “proper” if Fed. R. Civ. P. 41(a)(1) does not apply. FED.
R. CIV. P. 41(a)(2). CSX Transp., Inc. v. City of Garden City,
235
F.3d 1325, 1327 (11th Cir. 2000) (“We have held many times that a
partial adjudication on the merits, followed by a voluntary dismis-
sal without prejudice of a pending claim, does not effectively ter-
minate the litigation and, therefore, does not satisfy the finality re-
quirement of
28 U.S.C. § 1291.”).
In the case at hand, the parties requested dismissal of the re-
maining claims with prejudice, which would functionally termi-
nate the litigation. Regardless, the trial court seemingly recognized
this issue when it entered an order of dismissal of Counts I and II
with an additional reference to Fed. R. Civ. P. 54 for final judgment
on Count III. It is clear after the Court resolved Count III with its
adjudication on the motion to dismiss, that the parties resolved
Counts I and II and requested dismissal with prejudice of those
claims, while leaving the ability for Ellison to appeal the adjudica-
tion of Count III. Therefore, the Court finds that a dismissal with
prejudice of Counts I and II consistent with the parties’ request is
appropriate under Fed. R. Civ. P. 41(a)(2) accompanied by the Fed.
R. Civ. P. 54(b) certification of partial judgment of Count III.
Therefore, this Court has jurisdiction over this matter as to Count
III.
Ellison presents two arguments on appeal: (1) the district
court erred when it took judicial notice of the administrative
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20-13112 Opinion of the Court 15
records but did not treat the motion as one for summary judgment
and allow him a reasonable opportunity to present all of the mate-
rial that is pertinent to the motion, and (2) the district court erred
when it dismissed his retaliation claim for his failure to exhaust his
administrative remedies because the alleged retaliation “was like or
related to, or grew out of” acts that he detailed in a previously filed
claim and he was not required to file a new one. Since the latter
issue was decided based on the administrative records that were
judicially noticed, the Court will first address the issue of judicial
notice.
A. Judicial Notice
Ellison argues the district court erred when it “appl[ied] the
summary judgment standard of review” and reviewed documents
that went “beyond the four corners” of the amended complaint
when it decided to dismiss Count III. Since the district court went
“beyond the face of the [amended] complaint,” Ellison argues this
Court should treat the district court’s decision as a grant of sum-
mary judgment, which required the court to provide notice to the
parties and allow them to conduct discovery. Further, Ellison ar-
gues, if the district court applied the correct standard for a motion
to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), he pled sufficient
facts to state a prima facie claim for retaliation.
In response, USPS argues Ellison did not challenge the dis-
trict court’s decision to take judicial notice of the administrative
records but challenged the court’s decision to apply a summary
judgment standard when it adjudicated Count III. USPS argues a
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16 Opinion of the Court 20-13112
district court may, when it considers a motion to dismiss, “take ju-
dicial notice of relevant public documents” without converting it
to a motion for summary judgment. Bryant v. Avado Brands, Inc.,
187 F.3d 1271, 1280 (11th Cir. 1999). Further, USPS argues, since
the district court did not convert the motion to one for summary
judgment, it was not obligated to provide notice to the parties and
allow them to conduct discovery.
Ellison did not file a reply brief.
This Court has held a district court, at the motion to dismiss
stage, may take judicial notice of relevant public documents. Id.;
see also Lozman v. City of Riviera Beach,
713 F.3d 1066, 1075 n.9
(11th Cir. 2013) (“Although this matter is before the court on a mo-
tion to dismiss, we may take judicial notice of the court documents
from the state eviction action.”); McCone v. Thorpe, 828 F. App’x
697, 698 (11th Cir. 2020) (“A district court may take judicial notice
of public records without converting a motion to dismiss into a
motion for summary judgment.”). “Under the doctrine of incor-
poration by reference, [a district court] may also consider docu-
ments attached to the motion to dismiss if they are referred to in
the complaint, central to the plaintiff’s claim, and of undisputed au-
thenticity.” Hi-Tech Pharms., Inc. v. HBS Int’l Corp.,
910 F.3d
1186, 1189 (11th Cir. 2018); see also Tellabs, Inc. v. Makor Issues &
Rights, Ltd.,
551 U.S. 308, 322 (2007) (“[C]ourts must consider the
complaint in its entirety, as well as other sources courts ordinarily
examine when ruling on Rule 12(b)(6) motions to dismiss, in
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20-13112 Opinion of the Court 17
particular, documents incorporated into the complaint by refer-
ence, and matters of which a court may take judicial notice.”).
Likewise, the Federal Rules of Evidence provide, “[A] court
may judicially notice a fact that is not subject to reasonable dispute
because it . . . can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” FED.
R. EVID. 201(b)(2). “[A] court may take judicial notice at any stage
of the proceeding.” FED. R. EVID. 201(d).
“When considering a motion to dismiss, all facts set forth in
the plaintiff’s complaint are to be accepted as true and the court
limits its consideration to the pleadings and exhibits attached
thereto.” Tello v. Dean Witter Reynolds, Inc.,
410 F.3d 1275, 1288
n.12 (11th Cir. 2005) (internal quotation marks omitted) (quoting
Grossman v. Nationsbank, N.A.,
225 F.3d 1228, 1231 (11th Cir.
2000)).
Where exhaustion . . . is treated as a matter in abate-
ment and not an adjudication on the merits, it is
proper for a judge to consider facts outside of the
pleadings and to resolve factual disputes so long as the
factual disputes do not decide the merits and the par-
ties have sufficient opportunity to develop a record.
Bryant v. Rich,
530 F.3d 1368, 1376 (11th Cir. 2008) (footnotes omit-
ted); Brady v. Postmaster General, U.S. Postal Serv., 521 F. App’x
914, 916 (11th Cir. 2013) (citing the same in the context of a motion
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18 Opinion of the Court 20-13112
to dismiss for failure to exhaust administrative remedies in an ac-
tion that was brought under Title VII, among other statutes).
Here, the district court did not abuse its discretion when it
took judicial notice of the four documents that were filed with
USPS’s renewed motion to dismiss, despite objections by Ellison.
It is clear a district court, at the motion to dismiss stage, may take
judicial notice of relevant public documents. See Avado Brands,
Inc.,
187 F.3d at 1280. Additionally, as the district court noted, El-
lison has not argued against the authenticity of the documents. Fi-
nally, Ellison’s description in his amended complaint of the events
that preceded his suit includes “the filing of a formal charge, or
complaint, of discrimination,” and all of the “conditions precedent”
to filing suit occurred, all of which events are described in the con-
tested documents and are central to his claim. Doc. 12 ¶ 3; see Hi-
Tech Pharms., Inc., 810 F.3d at 1189.
Because it is well established a district court may take judi-
cial notice of relevant public records when it decides a motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and Ellison does not
challenge the authenticity of the administrative records, we affirm
the district court as to this issue.
B. Administrative Exhaustion
i. Whether the Argument was Abandoned
USPS argues Ellison failed to preserve the issue of whether
he administratively exhausted his retaliation claim.
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20-13112 Opinion of the Court 19
An appellant in this Court is required to include in her brief
“a statement of the issues presented for review” and legal argu-
ments as to her positions on those issues “with citations to the au-
thorities and parts of the record on which the appellant relies.”
FED. R. APP. P. 28(a)(5), (a)(8)(A). When an appellant fails to list or
otherwise state an issue in his brief, or fails to argue and cite au-
thorities in support of an issue, he is deemed to have abandoned it.
Hamilton v. Southland Christian Sch., Inc.,
680 F.3d 1316, 1318-19
(11th Cir. 2012).
USPS’ argument is unavailing. Ellison argues in his brief he
sufficiently exhausted his retaliation claim because it grew out of
the conduct described in his EEOC charge, and he cites to Baker
and Gupta to support his argument. Therefore, the Court will ad-
dress Ellison’s challenge to the district court’s order. 2
ii. Whether Ellison Administratively Exhausted the Claim
Ellison argues, assuming the district court did not err when
it considered extrinsic evidence, Count III should not have been
dismissed because the retaliation that he alleged in his amended
2 Ellison did not raise this issue with the district court, but the district court
ultimately described the Gupta/Baker exception and subsequent case law, and
found “[u]pon due consideration, the [c]ourt is persuaded by the analysis in
Duble and finds it entirely applicable here . . . . [T]he [c]ourt finds that any
claim based on the suspension is not properly exhausted.” Therefore, the dis-
trict court expressly considered and decided the issue, and USPS does not ar-
gue Ellison failed to preserve the issue below.
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20 Opinion of the Court 20-13112
complaint “was like or related to, or grew out of” the acts that he
described in his second informal charge.
In response, USPS argues the retaliation that Ellison alleged
to the EEOC “ha[d] nothing to do with the suspension-based retal-
iation claim that he later raised in [C]ount III of his amended com-
plaint.” USPS argues the retaliation that Ellison alleges in Count
III is a “new act of alleged discrimination that occurred after he filed
a formal complaint in his EEOC proceedings” and he was required
to administratively exhaust his claim. USPS reiterates its argu-
ments that it presented to the district court that the Supreme Court
in Morgan, and this Court in Duble, have limited or extinguished
the precedential value of Baker and Gupta.
The Court need not decide the effect of the Supreme Court’s
decision in Morgan on the precedential value of Gupta and Baker
to decide this matter, since Ellison’s alleged retaliation occurred
while the EEOC investigation of his reported claims was pending.
“Under Title VII and the Rehabilitation Act, federal employ-
ees are required to initiate administrative review of any alleged dis-
criminatory or retaliatory conduct with the appropriate agency
. . . .” Shiver v. Chertoff,
549 F.3d 1342, 1344 (11th Cir. 2008). A
“plaintiff’s judicial complaint is limited by the scope of the EEOC
investigation which can reasonably be expected to grow out of the
charge of discrimination.” Gregory v. Ga. Dep’t of Human Res.,
355 F.3d 1277, 1280 (11th Cir. 2004) (internal quotation marks omit-
ted). This Court previously held a failure to expressly claim retali-
ation as part of an administrative charge of discrimination will not
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20-13112 Opinion of the Court 21
defeat a later suit that alleges retaliation if the charged conduct rea-
sonably led to the retaliatory conduct. See
id. at 1280.
In Duble, we held a plaintiff failed to exhaust his administra-
tive remedies for a claim of post-charge retaliation because the
claim “relate[d] to a discrete act of alleged discrimination that oc-
curred after he filed his initial charge.” 572 F. App’x at 893 (citing
Morgan,
536 U.S. at 114,
122 S. Ct at 2073). The plaintiff in Duble
was diagnosed with multiple sclerosis and, as a result, was unable
to perform certain job functions without accommodation. Id. at
890. The plaintiff ultimately filed an EEOC charge and claimed dis-
crimination and retaliation because he said his employer failed to
accommodate his disability Id. at 891. While the EEOC investi-
gated the plaintiff’s claims, he was fired “ostensibly for violating
[his employer’s] email policy.” Id. at 893. After the EEOC’s inves-
tigation concluded, the plaintiff filed suit and alleged, among other
claims, his termination was retaliatory. Id. at 892. The Court noted
Baker and Gupta established “[i]t is unnecessary for a plaintiff to
exhaust administrative remedies prior to filing a judicial claim of
retaliation if that claim grew out of an earlier charge,” but held
these cases were inapplicable. Id. at 892-93. The Court noted in
both Baker and Gupta, the uncharged retaliatory conduct that the
plaintiff alleged in his complaint occurred after the plaintiff filed
suit in district court. Id. at 893. Conversely, the Court reasoned
the plaintiff in Duble “had the opportunity to amend his EEOC
charge or file a new charge relating to his termination” and chose
not to, and that was sufficient to distinguish the earlier cases. Id.
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22 Opinion of the Court 20-13112
The Court held the plaintiff was required to administratively ex-
haust his claim. Id.
The Court finds the facts here are consistent with those that
directed the decision in Duble. Ellison’s suspension began in July
2016 and ended after “approximately one year.” Ellison received a
notice of final action that informed him his claims would be dis-
missed and notified him of his right to sue in March 2019. There-
fore, Ellison had nearly three years from the beginning and nearly
two years from the end of his suspension to amend his EEOC
charge to include his new retaliation claim. Moreover, Ellison was
aware the administrative process remained available to him during
the pendency of his initial charge.
IV. CONCLUSION
We find the district court did not err in considering the ad-
ministrative records in conjunction with the motion to dismiss.
Further, because the retaliatory act that Ellison alleges in Count III
occurred while his administrative investigation remained pending,
we also find the district court did not err when it dismissed the
claim for his failure to exhaust his administrative remedies. The
judgment of the district court is AFFIRMED.
