Case: 19-11922 Date Filed: 04/27/2020 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11922
Non-Argument Calendar
________________________
D.C. Docket No. 8:19-cv-00168-WFJ-SPF
PETER ORTIZ,
Plaintiff-Appellant,
versus
WASTE MANAGEMENT, INC. OF FLORIDA,
CARLOS GARCIA,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 27, 2020)
Before WILSON, ANDERSON and EDMONDSON, Circuit Judges.
Case: 19-11922 Date Filed: 04/27/2020 Page: 2 of 11
PER CURIAM:
Plaintiff Peter Ortiz appeals the district court’s dismissal of his civil action
against his former employer, Waste Management, Inc. of Florida (“WMI”). 1 In his
complaint, Plaintiff asserted against WMI claims for violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”), and for violation of
Florida law.2 No reversible error has been shown; we affirm.
Plaintiff alleged these facts in his complaint. Plaintiff was employed as a
Route Driver with WMI beginning in 2003. On 23 January 2017, a group of
Plaintiff’s coworkers taunted Plaintiff after Plaintiff arrived at work wearing a
small bandage on his face. One of the coworkers -- Carlos Garcia -- used his
cellphone to record a video of the taunting. Plaintiff told Garcia to stop filming
him. Plaintiff then walked out of the breakroom and into the men’s restroom. As
Plaintiff was sitting on the toilet, Plaintiff looked up and saw that Garcia was also
in the restroom and was filming Plaintiff, whose genitalia was exposed.
1
Plaintiff also named as a defendant his coworker, Carlos Garcia. On appeal, Plaintiff raises no
argument about his claims against Garcia; those claims are not before us on appeal.
2
The district court dismissed without prejudice Plaintiff’s state law claims after declining to
exercise supplemental jurisdiction. On appeal, Plaintiff raises no challenge to that ruling.
2
Case: 19-11922 Date Filed: 04/27/2020 Page: 3 of 11
The next day, Plaintiff reported the incident to his supervisor, D.A. D.A.,
however, did nothing to address Garcia’s conduct and, instead, continued to assign
Plaintiff to work with Garcia after the filming incident.
On 26 January, Plaintiff learned that two other coworkers (who had not been
present during the initial taunting episode) had seen the video of Plaintiff on the
toilet. Plaintiff complained to D.A. a second time. D.A. then spoke with Plaintiff
and Garcia about the situation. D.A. told Garcia to delete the video but did not
otherwise reprimand Garcia or confirm that the video had been deleted. In
addition, D.A. insisted on discussing the matter in a public area despite Plaintiff’s
request to move into a private office. Plaintiff later learned that D.A. and Garcia
were “very good friends.”
Over three weeks later, Plaintiff says he was contacted by a “whistleblower”
who showed Plaintiff a copy of Garcia’s video. Plaintiff learned that Garcia had
sent the video directly to the whistleblower and to four other coworkers.
On 22 February, Plaintiff called WMI’s “Integrity Hotline”: a phone number
for employees to report “unethical behavior” in the workplace. WMI opened an
investigation into Plaintiff’s complaint. The complaint was assigned to Y.B., a
human resources manager.
After Y.B. began her investigation, she demanded to know the
whistleblower’s identity. Plaintiff gave Y.B. the names of the five coworkers who
3
Case: 19-11922 Date Filed: 04/27/2020 Page: 4 of 11
had received the video directly from Garcia (one of whom was the whistleblower)
but refused to identify the whistleblower. Y.B. told Plaintiff that he was impeding
the investigation and that he would not “like what comes next.” Plaintiff
responded that he was “being harassed and retaliated against for precisely having
integrity.”
During a later conversation, Y.B. told Plaintiff that, because he refused to
disclose the whistleblower’s identity, “the case was out of her hands”; the
investigation had been transferred to Corporate Security. Y.B. also told Plaintiff
that -- per WMI’s lawyer -- Plaintiff would be fired if he failed to disclose the
identity of the whistleblower within 48 hours. Plaintiff refused to comply; WMI
terminated Plaintiff’s employment on 23 March 2017.
In his civil complaint, Plaintiff asserts two claims under Title VII: one for
retaliation and another for hostile work environment. About retaliation, Plaintiff
asserts that WMI treated him differently because of his sex and retaliated against
him for reporting Garcia’s behavior and “for exercising his civil rights and
demanding to be treated equal as his female counterparts.” Plaintiff contends that
-- had he been a female employee -- WMI would have investigated the incident
more thoroughly, would have taken remedial action against Garcia, would have
assigned the investigation of Plaintiff’s complaint (which involved video footage
4
Case: 19-11922 Date Filed: 04/27/2020 Page: 5 of 11
of Plaintiff’s genitalia) to an investigator of the same sex, and would not have
terminated Plaintiff’s employment.
About his second Title VII claim, Plaintiff says he was subjected to a hostile
work environment because of his sex. Plaintiff says he was treated differently
from female employees because WMI would have treated more seriously a similar
incident involving a female employee.
WMI moved to dismiss Plaintiff’s complaint. In pertinent part, WMI
asserted that Plaintiff’s allegations fell outside the scope of the operative charge of
discrimination Plaintiff filed with the Equal Employment Opportunity Commission
(“EEOC”).
Plaintiff -- through his lawyer -- filed with the EEOC the charge of
discrimination pertinent to this appeal on 4 August 2017. 3 Plaintiff marked (on
small spaces similar to tick-boxes that were part of the complaint form) that he was
discriminated against based on “retaliation” and “other (specify below).” Identical
small spaces existed to be checked for several other kinds of discrimination,
including “SEX”; the “__ SEX” space was not checked by Plaintiff. Briefly stated,
Plaintiff alleged that he “was retaliated against for constantly complaining about
3
Plaintiff filed two charges of discrimination with the EEOC. Plaintiff filed his first charge on 4
August 2017. Based on that charge, the EEOC issued Plaintiff a Notice of Right to Sue on 24
October 2018: that notice is attached to Plaintiff’s complaint. Plaintiff later filed a second charge
on 8 November 2018, which the EEOC dismissed as untimely. In the district court and on
appeal, Plaintiff relies solely upon the 4 August 2017 EEOC charge and raises no argument that
the district court erred in failing to consider Plaintiff’s second EEOC charge.
5
Case: 19-11922 Date Filed: 04/27/2020 Page: 6 of 11
having my rights and dignity violated by [Garcia],” and that Garcia had recorded
and circulated a video of Plaintiff seated naked on the toilet.
In his “Discrimination Statement” (which extends over several pages),
Plaintiff said he believed he had been harassed, subjected to a hostile work
environment, and retaliated against in violation of Title VII. Plaintiff then
described in detail the same factual allegations about Garcia’s conduct, WMI’s
investigation, and about the termination of Plaintiff’s employment that Plaintiff
alleged in his complaint. Never did Plaintiff’s EEOC charge allege that Plaintiff
was treated differently or discriminated against because of his sex or allege that he
had made it known to WMI that he believed he was being discriminated against
based on his sex.
After conducting a hearing on WMI’s motion, the district court dismissed
with prejudice Plaintiff’s Title VII claims. The district court determined that the
operative EEOC charge “simply said nothing about sex discrimination.” At the
hearing on WMI’s motion to dismiss, Plaintiff’s lawyer conceded that Plaintiff
alleged no sex discrimination in his first -- that is the pertinent -- EEOC charge.
Determining that Plaintiff’s Title VII claims fell outside the scope of the EEOC
investigation that reasonably could be expected to grow out of the charge of
discrimination, the district court concluded that those claims were subject to
dismissal.
6
Case: 19-11922 Date Filed: 04/27/2020 Page: 7 of 11
We review de novo a district court’s dismissal for failure to state a claim,
accepting all properly alleged facts as true and construing them in the light most
favorable to the plaintiff. Butler v. Sherriff of Palm Beach Cty.,
685 F.3d 1261,
1265 (11th Cir. 2012).
Title VII makes it unlawful for an employer to discriminate against an
employee “with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). The phrase “terms, conditions, or privileges
of employment” has been construed to include claims about “a discriminatorily
hostile or abusive environment.” See Hulsey v. Pride Rests., LLC,
367 F.3d 1238,
1244 (11th Cir. 2004). We have stressed that Title VII “does not prohibit
harassment alone, however severe and pervasive.” See Baldwin v. Blue
Cross/Blue Shield,
480 F.3d 1287, 1301 (11th Cir. 2007). “Instead, Title VII
prohibits discrimination, including harassment that discriminates based on a
protected category such as sex.”
Id. at 1301-02. Discrimination is the heart of
Title VII; not every unreasonable, uncivil, or mean-spirited act is covered.
Title VII also makes it unlawful for an employer to retaliate against an
employee because of the employee’s opposition to an employment practice, if that
kind of practice is made unlawful under Title VII. 42 U.S.C. § 2000e-3(a).
Although a plaintiff “need not prove the underlying claim of discrimination which
7
Case: 19-11922 Date Filed: 04/27/2020 Page: 8 of 11
led to [his] protest,” he must demonstrate that he “engaged in statutorily protected
expression.” Meeks v. Comput. Assocs. Int’l,
15 F.3d 1013, 1021 (11th Cir.
1994). An employee’s complaint -- formal or informal -- about an employment
practice constitutes statutorily protected expression if the employee “explicitly or
implicitly communicate[s] a belief that the practice constitutes unlawful
employment discrimination.” Furcron v. Mail Ctrs. Plus, LLC,
843 F.3d 1295,
1311 (11th Cir. 2016).
Before filing a civil complaint alleging violations of Title VII, an employee
must exhaust his administrative remedies by first filing a timely charge of
discrimination with the EEOC. Stamper v. Duval Cty. Sch. Bd.,
863 F.3d 1336,
1339 (11th Cir. 2017). The purpose of the exhaustion requirement is to allow the
EEOC “the first opportunity to investigate the alleged discriminatory practices to
permit it to perform its role in obtaining voluntary compliance and promoting
conciliation efforts.” Gregory v. Ga. Dep’t of Human Res.,
355 F.3d 1277, 1279
(11th Cir. 2004).
Given the importance of the exhaustion requirement, a plaintiff’s civil
complaint under Title VII “is limited by the scope of the EEOC investigation
which can reasonably be expected to grow out of the charge of discrimination.”
Id.
at 1280. In determining whether a complaint falls within the scope of the EEOC
charge, we consider whether the complaint is “like or related to, or grew out of, the
8
Case: 19-11922 Date Filed: 04/27/2020 Page: 9 of 11
allegations contained in [the] EEOC charge.”
Id. Judicial claims that merely
“amplify, clarify, or more clearly focus” the allegations in the EEOC complaint are
permissible; but a judicial complaint may not assert “allegations of new acts of
discrimination.”
Id. at 1279-80. We have also said that courts should avoid strict
interpretation of the scope of the EEOC charge and avoid dismissing Title VII
claims based merely on procedural technicalities. See
id. at 1280.
On appeal, Plaintiff contends that the newly-added assertion in his civil
complaint -- that Plaintiff was treated differently and less well because he was a
male and not a female -- is permissible because that assertion merely “amplifies,
clarifies, and more clearly focuses” the allegations in the EEOC charge. In a
similar way, Plaintiff contends that an EEOC investigation of his allegations would
have uncovered evidence of sex discrimination. We disagree.
Plaintiff’s EEOC charge contained no factual allegations which could be
construed reasonably as complaining about discrimination, harassment, or
retaliation based on Plaintiff’s sex. Plaintiff also alleged no facts showing that
Plaintiff had engaged in statutorily protected expression. Although Plaintiff
described in detail his complaints about Garcia’s conduct and about the
investigation to his supervisor, to the Integrity Hotline, and to Y.B., nothing
evidenced that Plaintiff “explicitly or implicitly communicate[d]” to WMI that
9
Case: 19-11922 Date Filed: 04/27/2020 Page: 10 of 11
Plaintiff believed he was being treated differently because of his sex. See
Furcron,
843 F.3d at 1311.
Plaintiff’s allegations in his civil complaint about sex discrimination
constitute a claim in addition to and altering significantly the allegations in
Plaintiff’s EEOC charge. Given the complete lack of factual allegations about sex
discrimination in the EEOC charge, we cannot conclude that an EEOC
investigation would have reasonably uncovered evidence of sex discrimination.
See Chanda v. Engelhard/ICC,
234 F.3d 1219, 1225 (11th Cir. 2000) (concluding
that a reasonable investigation based on plaintiff’s EEOC charge -- which
mentioned only discrimination and retaliation based on disability, not national
origin -- would not have encompassed retaliation based on complaints about
national origin discrimination).
The district court committed no error in concluding that Plaintiff’s Title VII
claims for retaliation and for hostile work environment based on sex discrimination
fell outside the scope of Plaintiff’s EEOC charge. Contrary to Plaintiff’s assertion,
the district court neither engaged in an unreasonably strict interpretation of the
scope of Plaintiff’s EEOC charge nor based its ruling on a mere procedural
technicality, such as Plaintiff’s failure to mark the “__ SEX” space on the EEOC
charge form. Taking everything into account, Plaintiff’s EEOC complaint omitted
10
Case: 19-11922 Date Filed: 04/27/2020 Page: 11 of 11
altogether a claim based on sex discrimination.
AFFIRMED.
11
