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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10309
Non-Argument Calendar
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D.C. Docket No. 2:18-cv-00124-SPC-CM
JOHN SHORT,
Plaintiff-Appellant,
versus
IMMOKALEE WATER & SEWAGE DISTRICT,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 15, 2020)
Before GRANT, TJOFLAT and FAY, Circuit Judges.
PER CURIAM:
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John Short appeals the district court’s dismissal of his second amended
complaint in favor of his former employer, Immokalee Water & Sewage District
(“Immokalee”), on his retaliation claims under Title VII, as well as the denial of
his motions for reconsideration and for leave to file a third amended complaint.
We affirm.
I. BACKGROUND
In 2018, Short, an African American male, filed the present suit against
Immokalee, alleging retaliation by termination for having pursued and settled a
race discrimination lawsuit against Immokalee in July 2016. Short alleged that he
was terminated in April 2017 for allegedly failing to collect and send groundwater
sample reports to the Florida Department of Environmental Protection (“FDEP”).
He stated that he had worked at Immokalee for 24 years and that his immediate
supervisor, Eva Deyo, was a white female.
Short explained that a contracted lab conducted quarterly tests of ground
water and sent the samples to him. He was required to forward the test results to
FDEP. Short alleged that in 2014, a FDEP representative met with him and Deyo
and explained that a paper report would no longer be required due to a change in
reporting procedures and that the reports would be sent electronically by the lab
directly to FDEP with a copy sent to Short. He stated that, based on this change,
he believed that he no longer needed to send paper reports to FDEP.
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Consequently, Short alleged, he did not send any quarterly reports from 2014 to
2017 and no one from FDEP requested any reports during that time period.
He stated that he nonetheless was terminated in April 2017 for failing to
send those reports. Short alleged that he ceased sending the reports at Deyo’s
direction. Short alleged that Immokalee knew or should have known that Short
was not responsible for the missing groundwater reports and that it terminated him
in retaliation for pursuing his prior lawsuit against Immokalee, which constituted
protected activity. He contended that there was a causal connection between his
protected activity and his termination, despite the nine-month lapse in time, based
on a totality of the circumstances. Short clarified that Immokalee’s retaliation was
based on racial discrimination. He attached to his complaint a copy of his notice of
right to sue letter from the Equal Employment Opportunity Commission
(“EEOC”).
Immokalee responded by filing a motion to dismiss. Before the district court
ruled on the motion, Short filed an amended complaint. Short added that because
Immokalee was not racially diverse and had a custom, usage, and practice of
discrimination against African Americans, his complaint was also being brought
under 42 U.S.C. §§ 1981, 1983. He noted “disparate treatment on the basis of race
and retaliation.” Short also explained that at all relevant times, his work
performance met all the required standards and that he never received any
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warnings or discipline regarding the groundwater reports, which made
Immokalee’s stated reason for terminating him a pretext for discrimination. He
also attached a copy of the EEOC charge of discrimination form and a copy of his
termination letter from Immokalee. In his EEOC charge, Short alleged that he was
bringing his claims under Title VII based on retaliation and race. The only distinct
act of retaliation alleged was Short’s termination. Short alleged that the retaliation
was based on his engaging in his protected activity of settling his prior Title VII
lawsuit in July 2016.
Based on Short’s filing of an amended complaint, the district court denied
Immokalee’s motion to dismiss as moot. Immokalee then filed a motion to dismiss
Short’s amended complaint. The district court granted Immokalee’s motion to
dismiss Short’s amended complaint; however, the court granted Short another
opportunity to amend.
Short filed a second amended complaint, adding that Immokalee subjected
him to “a series of retaliatory and harassing incidents (i.e., retaliatory
harassment).” He stated that, between 2014 and 2017, his work performance was
never criticized, and he had no reason to expect that he was required to send
quarterly ground water reports. Short alleged that any change in the reporting
policy since he met with Deyo and an FDEP representative in 2014 may or may
not have been clearly communicated to him.
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Immokalee again responded with a motion to dismiss. The district court
granted the motion to dismiss Short’s second amended complaint in part but held
Short’s retaliatory harassment claim in abeyance to the extent that it was brought
under 42 U.S.C. § 1981 because the parties had addressed the claim only under
Title VII. The court explained that Short’s arguments that he had not changed his
legal theory contradicted his prior statement that he was changing his legal theory
from retaliation to retaliatory harassment. The court also noted that Short’s EEOC
charge only mentioned his termination and a meeting with supervisors during
which he was told not to submit any further groundwater reports; he did not
reference any incidents of retaliatory harassment. Thus, the court concluded that
Short had not administratively exhausted his remedies as to his claim of retaliatory
harassment. As to Immokalee’s timeliness argument, the court concluded that
more than 300 days had passed since the latest of the incidents of harassment that
Short alleged in his second amended complaint, making the claim time-barred
under Title VII. Lastly, the court found that aside from the new allegations,
Short’s second amended complaint was not materially different from the claim in
his first amended complaint; his complaint thus failed to state a claim. However,
the court explained that since Short’s retaliatory harassment claim could be
brought under § 1981, it was holding that claim in abeyance; it ordered Immokalee
to respond to the claim under § 1981.
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Short filed a motion responding to the district court’s order granting
Immokalee’s motion to dismiss. Short argued that the district court “ha[d]
improperly raised the pleading and proof standards so high that no reasonably
objective plaintiff’s counsel can properly draft and file a pleading under Title VII
without the ability to engage in some discovery in order to add additional facts in
support of the claims being asserted.”
After Immokalee responded as ordered, the district court granted
Immokalee’s motion to dismiss Short’s claims under § 1981 and § 1983. The court
noted that it had not raised the pleading standards but found that Short no longer
wished to pursue any claims under § 1981 or § 1983. The court further found that,
abandonment aside, Short failed to state a § 1983 claim against Immokalee because
he did not allege that any retaliatory harassment he suffered resulted from an
official policy or custom of Immokalee. The court explained that Short’s claim
therefore failed because he had not alleged an essential element of his retaliatory
harassment claim.
Short filed a motion for reconsideration and leave to file a third amended
complaint, and the district court denied it. It explained that, no matter how Short
labeled his claim, the factual allegations in the second amended complaint differed
from those alleged in the EEOC charge. The court concluded that the claim was
thus unexhausted and time barred. The court explained that Short’s continued use
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of the term “totality of the circumstances” did not override the factual allegations
that he pled and that he had not presented a compelling argument for the court to
reconsider its prior order. Additionally, the court concluded that a third amended
complaint would have been futile because Short was represented by counsel, he
had had several opportunities to plead his claim against Immokalee, and the court’s
allowing a third amendment would prejudice Immokalee.
On appeal, Short first argues that the district court erred by dismissing his
second amended complaint for failure to a state claim because he never changed
his theory of recovery and, accordingly, his claims were neither unexhausted nor
time barred. Second, Short argues that the district court abused its discretion by
denying leave to file a third amended complaint.1
II. DISCUSSION
A. Motion to Dismiss
We review de novo a district court’s ruling on a Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss for failure to state a claim. Ironworkers
Local Union 68 v. AstraZeneca Pharm., LP,
634 F.3d 1352, 1359 (11th Cir. 2011).
In considering a Rule 12(b)(6) motion, we construe the pleading in the non-
1
Short has abandoned any challenge to the district court’s denial of his motion for
reconsideration by failing to raise any argument as to that issue in his initial brief. See Sapuppo
v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680-81 (11th Cir. 2014) (recognizing that a litigant
abandons a legal claim or argument when he fails to plainly and prominently raise it in his initial
brief).
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movant’s favor and accepts the allegations of facts therein as true. Duke v.
Cleland,
5 F.3d 1399, 1402 (11th Cir. 1993).
In employment cases, plaintiffs must exhaust administrative remedies before
filing suit. E.E.O.C. v. Joe’s Stone Crabs, Inc.,
296 F.3d 1265, 1271 (11th Cir.
2002). “[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) (quoting Alexander v. Fulton County,
207 F.3d 1303, 1332 (11th Cir.
2000)). However, “the scope of an EEOC complaint should not be strictly
interpreted.”
Id. (quoting Sanchez v. Standard Brands, Inc.,
431 F.2d 455, 465
(5th Cir. 1970)). Nonetheless, “judicial claims are allowed if they ‘amplify,
clarify, or more clearly focus’ the allegations in the EEOC complaint, but . . .
allegations of new acts of discrimination are inappropriate.”
Id. at 1279-80
(quoting Wu v. Thomas,
863 F.2d 1543, 1547 (11th Cir. 1989)). Additionally, in
Florida, a plaintiff has 300 days from the last discriminatory act to file an EEOC
charge of discrimination if the charging party institutes proceedings with a state
agency with authority to grant or seek relief from unlawful employment practices.
42 U.S.C. § 2000e-5(e)(1); see also E.E.O.C. v. Commercial Office Prods. Co.,
486 U.S. 107, 110,
108 S. Ct. 1666, 1669 (1988).
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The district court properly dismissed Short’s second amended complaint
under Rule 12(b)(6). 2 Short’s EEOC charge alleged only his termination as a
retaliatory act. However, his second amended complaint alleged—for the first
time—seven incidents of alleged harassment by his supervisor. Because the scope
of Short’s complaint was limited by what could reasonably be expected to grow
out of the EEOC investigation, see
Gregory, 355 F.3d at 1280, the district court
properly concluded that the seven new incidents, all of which occurred prior to his
termination, could not have been expected to grow from a charge alleging
retaliatory termination. While Short argues that these new incidents were
encompassed in the “totality of the circumstances” alleged in his EEOC charge,
that argument is refuted by our precedent holding “allegations of new acts of
discrimination are inappropriate.”
Id. at 1279-80.
The crux of the defect in Short’s second amended complaint was not the
change in the theory relied upon, but instead, the change of the factual allegations
made in support of his claim. Accordingly, because Short had not alleged the new
incidents of retaliation in his EEOC charge, claims as to those incidents were
2
While Immokalee argues that Short’s failure to designate the final judgment in his notice of
appeal precludes our review of the district court’s dismissal of Short’s second amended
complaint, we do not narrowly read notices of appeal where the alleged defect does not mislead
or prejudice the appellee, as is the case here. See Nichols v. Ala. State Bar,
815 F.3d 726, 730
(11th Cir. 2016). Immokalee has not argued that it was prejudiced or misled by the alleged lack
of notice; regardless, we can look to the parties’ briefs to determine what orders a party intended
to appeal. See
id. at 731. Because Short challenged the order dismissing his second amended
complaint in his initial brief, we can review that argument. See
id.
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unexhausted, as the district court appropriately concluded. See Joe’s Stone
Crabs,
296 F.3d at 1271. Additionally, because the last of the new retaliatory acts alleged
was Short’s termination, which took place in April 2017, any claims Short wished
to raise based on retaliatory acts occurring prior to his termination are time barred
because he failed to file an EEOC charge within 300 days of the last act. See 42
U.S.C. § 2000e-5(3)(1); see also Commercial Office Prods.
Co., 486 U.S. at 110,
108 S. Ct. at 1669. Thus, a Rule 12(b)(6) dismissal was appropriate because, even
construing the complaint in Short’s favor and accepting the facts as true, Short
could not state a viable claim as to the newly alleged incidents of retaliation. See
Duke, 5 F.3d at 1402.
To the extent Short argues that the district court erred by holding his claim in
abeyance to allow the parties to address it under § 1981 and § 1983, Short’s
argument is without merit. The district court judiciously allowed Short an
opportunity to argue his claims under those statutes, out of an abundance of
caution, to make sure that Short would not suffer any unfair prejudice from its
ultimate dismissal of his claim.
B. Leave to Amend
We review the denial of a motion for leave to amend a complaint for abuse
of discretion. Covenant Christian Ministries, Inc. v. City of Marietta,
654 F.3d
1231, 1239 (11th Cir. 2011). A party may amend a pleading “once as a matter of
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course” within 21 days after serving it or within 21 days after service of a required
responsive pleading. Fed. R. Civ. P. 15(a)(1). “In all other cases, a party may
amend its pleading only with the opposing party’s written consent or the court’s
leave.” Fed. R. Civ. P. 15(a)(2). A party moving to amend his complaint must
either “attach a copy of the proposed amendment to the motion or set forth the
substance thereof,” in order to show how the “‘complaint could be amended to
save the meritless claim.’” U.S. ex rel. Atkins v. McInteer,
470 F.3d 1350, 1362
(11th Cir. 2006) (quoting Wisdom v. First Midwest Bank,
167 F.3d 402, 409 (8th
Cir. 1999)).
District courts should freely give leave to amend as justice requires.
Woldeab v. Dekalb Cty. Bd. of Educ.,
885 F.3d 1289, 1291 (11th Cir. 2018).
“Where a more carefully drafted complaint might state a claim, a plaintiff must be
given at least one chance to amend the complaint before the district court dismisses
the action with prejudice.”
Id. (quoting Bank v. Pitt,
928 F.2d 1108, 1112 (11th
Cir. 1991)). Nonetheless, district courts may properly deny leave to amend when
“a more carefully drafted complaint could not state a claim.”
Id. (quoting Bank,
928 F.2d at 1112). We have held that “a district court may properly deny leave to
amend the complaint under Rule 15(a) when such amendment would be futile.”
Hall v. United Ins. Co. of Am.,
367 F.3d 1255, 1262-63 (11th Cir. 2004).
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The district court did not abuse its discretion by denying Short’s motion for
leave to file a third amended complaint. As explained above, any claim Short
wished to raise relying on the new acts of retaliation that he alleged in his second
amended complaint was both unexhausted and time barred. Nonetheless, Short’s
proposed third amended complaint relied on those same acts of retaliation;
therefore, the third amended complaint would not have cured the deficiencies the
district court found in the second amended complaint. See
Atkins, 470 F.3d at
1362. Because those deficiencies were incurable, any further amendment would
have also failed to state a claim. See
Woldeab, 885 F.3d at 1291;
Hall, 367 F.3d at
1262-63.
To the extent Short wished to amend his complaint to plead factual
allegations in line with those presented in his EEOC charge, the district court did
not make a clear error of judgment by declining to allow Short to do so. See
Weatherly, 728 F.3d at 1270. The district court was required to give Short a
chance to amend his complaint to state a viable claim for relief, it gave him two
chances to do so, and the proposed third amended complaint did not cure the
deficiencies of the second amended complaint. See
Woldeab, 885 F.3d at 1291.
Accordingly, the district court did not abuse its discretion.
AFFIRMED.
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