USCA11 Case: 21-13533 Date Filed: 09/14/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13533
Non-Argument Calendar
____________________
MICHAEL DOBBS,
Plaintiff-Appellant,
versus
MARTIN MARIETTA MATERIALS, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-04170-MHC
____________________
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2 Opinion of the Court 21-13533
Before JILL PRYOR, BRANCH, and MARCUS, Circuit Judges.
PER CURIAM:
Michael Dobbs appeals from the district court’s grant of
summary judgment in favor of Martin Marietta Materials, Inc.
(“Martin Marietta”) on his claims of age discrimination and retalia-
tion under the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 623(a)(1) and (d). Dobbs’s complaint alleged that Mar-
tin Marietta -- which, due to a settlement with the Department of
Justice (“DOJ”), was required to sell its quarry in Forsyth, Georgia
where Dobbs worked to a competitor, Midsouth Paving -- had
wrongly refused to rehire him at another Martin Marietta plant and
forced him to accept a demotion to work for Midsouth Paving at
the Forsyth plant. On appeal, Dobbs argues that the district court
erred in granting summary judgment to Martin Marietta: (1) on his
discrimination claim because he timely filed a charge of discrimina-
tion with the Equal Employment Opportunity Commission
(“EEOC”), and, alternatively, equitable tolling applied; and (2) on
his retaliation claim because each denial of his applications for re-
hire was a separate adverse employment action that occurred after
he engaged in a protected activity. After careful review, we affirm.
I.
We review the grant of summary judgment de novo.
Thomas v. Cooper Lighting Inc.,
506 F.3d 1361, 1363 (11th Cir.
2007). Summary judgment is appropriate if the movant shows that
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21-13533 Opinion of the Court 3
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Ce-
lotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). We also review de
novo whether equitable tolling applies, but we review for clear er-
ror a district court’s factual findings on equitable tolling. Cabello
v. Fernandez-Larios,
402 F.3d 1148, 1153 (11th Cir. 2005).
II.
First, we are unpersuaded by Dobbs’s claim that the district
court erred in granting summary judgment to Martin Marietta on
his ADEA discrimination claim. Before filing an ADEA action, a
plaintiff in a non-deferral state like Georgia first must file a charge
of discrimination with the EEOC within 180 days of the alleged un-
lawful employment practice. 42 U.S.C. § 2000e-5(e)(1);
29 U.S.C.
§ 626(d)(1)(A). Missing the charge deadline bars a plaintiff from su-
ing under the ADEA. Ross v. Buckeye Cellulose Corp.,
980 F.2d
648, 662 (11th Cir. 1993). The plaintiff has the burden of establish-
ing that he filed a timely charge of discrimination. See Jackson v.
Seaboard Coast Line R. Co.,
678 F.2d 992, 1010 (11th Cir. 1982).
The applicable period for filing an EEOC charge of discrim-
ination does not begin to run until the employee receives unequiv-
ocal notice of an adverse employment decision. Wright v. Am-
South Bancorporation,
320 F.3d 1198, 1201–03 (11th Cir. 2003).
However, the Supreme Court has made clear that the statute of
limitations begins at the time of the discriminatory act, not when
the consequences of that act become painful for the plaintiff. Del-
aware State College v. Ricks,
449 U.S. 250, 258 (1980).
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4 Opinion of the Court 21-13533
Timely filing a charge of discrimination is not a jurisdictional
prerequisite, but a requirement that, like a statute of limitations, is
subject to waiver, estoppel, and equitable tolling. Zipes v. Trans
World Airlines, Inc.,
455 U.S. 385, 393 (1982). Nevertheless, we’ve
held that traditional equitable tolling principles require a claimant
to justify his untimely filing by a showing of extraordinary circum-
stances. Jackson v. Astrue,
506 F.3d 1349, 1353 (11th Cir. 2007).
Extraordinary circumstances include fraud, misinformation, or de-
liberate concealment.
Id. at 1355. The plaintiff must establish that
tolling is warranted because equitable tolling is an extraordinary
remedy that should be extended only sparingly. Bost v. Federal
Express Corp.,
372 F.3d 1233, 1242 (11th Cir. 2004).
Where equitable tolling is warranted, the statute of limita-
tions period does not start to run until a plaintiff knew or reasona-
bly should have known that he was discriminated against. Carter
v. West Publ’g Co.,
225 F.3d 1258, 1265 (11th Cir. 2000). Further,
equitable tolling applies while the employer is actively trying to
find another position within the company for the employee. Cocke
v. Merrill Lynch & Co.,
817 F.2d 1559, 1561 (11th Cir. 1987). We’ve
held that a district court’s grant of equitable tolling was clearly er-
roneous where a plaintiff had some reason to believe at some point
during the 180-day filing period that he was the victim of unlawful
discrimination. Ross,
980 F.2d at 660.
Under common law, the elements of equitable estoppel are:
(1) the party to be estopped misrepresented material facts; (2) the
party to be estopped was aware of the true facts; (3) the party to be
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21-13533 Opinion of the Court 5
estopped intended that the misrepresentation be acted on or had
reason to believe that the party asserting estoppel would rely on it;
(4) the party asserting the estoppel did not know, nor should it have
known, the true facts; and (5) the party asserting the estoppel rea-
sonably and detrimentally relied on the misrepresentation. Busby
v. JRHBW Realty, Inc.,
513 F.3d 1314, 1326 (11th Cir. 2008). We’ve
held that a plaintiff is not required to prove the defendant acted in
bad faith to be entitled to equitable estoppel, but he must prove the
defendant’s conduct was for the purpose of obtaining a delay of
which it seeks to take advantage. Kazanzas v. Walt Disney World
Co.,
704 F.2d 1527, 1532 (11th Cir. 1983).
Here, the district court did not err in granting summary
judgment to Martin Marietta on Dobbs’s claim of discrimination.
As the undisputed record reflects, Martin Marietta notified Dobbs
on April 10, 2018 that he would be terminated and would not be
eligible for rehire. Thus, Martin Marietta provided unequivocal
notice of its separation and no-rehire decision on April 10, 2018,
starting the 180-day clock. See Wright,
320 F.3d at 1201–03.
Dobbs’s claim that the statute of limitations should not have
begun to run until he realized Martin Marietta would not make
him whole -- since he’d lose pension benefits by accepting a transfer
to Midsouth Paving, the new owner of the Forsyth quarry -- is with-
out merit. Under our case law, the alleged discriminatory act oc-
curred when Martin Marietta expressed its intention to terminate
his employment, not when Dobbs realized its effects. Ricks,
449
U.S. at 258. Thus, the correct period for the statute of limitations
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6 Opinion of the Court 21-13533
is April 10, 2018, through October 8, 2018, and Dobbs’s EEOC
charge, which was filed October 22, 2018, was untimely. 42 U.S.C.
§ 2000e-5(e)(1);
29 U.S.C. § 626(d)(1)(A); Watson, 324 F.3d at 1258.
Moreover, the district court did not err in determining that
equitable tolling was not warranted. Dobbs failed to show that any
extraordinary circumstances prevented him from timely filing his
EEOC charge. Jackson,
506 F.3d at 1353. The record reveals that
Dobbs had enough evidence to bring a discrimination claim on
April 10, 2018, when he was told that he would be terminated with
no opportunity to be rehired and that Wilson Lin, a younger em-
ployee, would be transferred to continue to work for Martin Mari-
etta. See Carter,
225 F.3d at 1265. According to Dobbs’s testimony,
he already had suspicions by this time that he was being discrimi-
nated against because of his age. To start the statute of limitations
clock under our law, Dobbs simply needed unequivocal notice and
reason to believe Martin Marietta’s decision was a discriminatory
act. Wright,
320 F.3d at 1201–03; Carter,
225 F.3d at 1265. On the
undisputed factual record, Dobbs had both on April 10, 2018.
Nor is equitable tolling warranted on the ground that Martin
Marietta secured future employment for Dobbs at Midsouth Pav-
ing. As of April 10, 2018, Dobbs knew that Martin Marietta had
decided not to search for positions within the company for him to
retain his employment. See Cocke,
817 F.2d at 1561.
Dobbs also raised an equitable estoppel claim based on Mar-
tin Marietta’s false statements that the DOJ required his termina-
tion. But even assuming that Martin Marietta intentionally misled
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21-13533 Opinion of the Court 7
Dobbs for the purpose of delaying his filing of an EEOC charge, the
record indicates that Dobbs did not rely on that statement. Rather,
as we’ve noted, Dobbs believed as of April 10, 2018, that Martin
Marietta had discriminated against him because of his age. Busby,
513 F.3d at 1326. Accordingly, his EEOC charge was filed out of
time, and we affirm the grant of summary judgment to Martin
Marietta on Dobbs’s discrimination claim.
III.
We also are unconvinced by Dobbs’s argument that the dis-
trict court erred in granting summary judgment to Martin Marietta
on his ADEA retaliation claim. The ADEA prohibits retaliation
against employees who complain of age discrimination. See
29
U.S.C. § 623(d). A plaintiff alleging retaliation establishes a prima
facie case by showing that (1) he engaged in a statutorily protected
expression, (2) he suffered an adverse employment action, and (3)
there was a causal link between the protected expression and the
adverse action. Hairston v. Gainesville Sun Pub. Co.,
9 F.3d 913,
919 (11th Cir. 1993). To show a causal link between the protected
expression and the adverse employment action, the plaintiff must
show that the employer had knowledge of the protected expression
at the time it took the adverse employment action. Bungart v. Bell-
South Telecomms., Inc.,
231 F.3d 791, 799 (11th Cir. 2000).
The undisputed record in this case shows that the alleged
retaliatory act -- Martin Marietta’s decision not to rehire Dobbs --
occurred and was expressed to Dobbs before August 2018, the date
he first engaged in protected activity by communicating his
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8 Opinion of the Court 21-13533
concern of age discrimination with the company. See Bungart, 231
F.3d at 799. So while the denials of his several applications for re-
hire occurred later, they were not separate adverse employment
actions because the decision not to rehire him was made before he
applied for any position. Indeed, his testimony reflected that he
understood he would not be rehired based on the original no-rehire
determination on April 10, 2018. See Ellerth, 524 U.S. at 761.
Because the only adverse employment action Dobbs suf-
fered -- the no-rehire decision on April 10, 2018 -- occurred before
his August 2018 protected activity, Dobbs failed to establish a
causal connection between Martin Marietta’s action and his later
protected activity. And establishing a causal connection was nec-
essary for him to state a prima facie case of retaliation. See Bungart,
231 F.3d at 799. Further, any evidence concerning whether the
DOJ required Martin Marietta to terminate Dobbs was irrelevant
to his retaliation claim. Even if Martin Marietta misled Dobbs
about its reason for the termination, the adverse employment ac-
tion was taken prior to Dobbs engaging in any protected activity.
See id. Accordingly, there is no genuine issue of material fact con-
cerning whether Dobbs failed to state a prima facie case of retalia-
tion, and we affirm the grant of summary judgment in favor of
Martin Marietta.
AFFIRMED.
