Carl B. Hillemann, Jr. v. Univ. of Central Florida , 167 F. App'x 747 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
------------------------------------------- FILED
No. 04-15153 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar January 18, 2006
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 02-01225-CV-ORL-28-JGG
CARL B. HILLEMANN, JR.,
Plaintiff-Appellant,
versus
UNIVERSITY OF CENTRAL FLORIDA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(January 18, 2006)
Before EDMONDSON, Chief Judge, ANDERSON and WILSON, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Carl Hillemann appeals pro se the district court’s
dismissal of his claims against the University of Central Florida Board of Regents
(“UCF”) for age discrimination under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 623, and grant of summary judgment to UCF for his race
and sex discrimination and retaliation claims under Title VII, 42 U.S.C. § 2000e-2,
2000e-3. No reversible error has been shown; we affirm. Because we affirm the
district court’s decision, we determine that Defendants’ motion to strike Plaintiff’s
supplemental authorities is moot.
Plaintiff is a white male and is over seventy years old. Plaintiff’s complaint
alleged that, because of age, race, and gender discrimination, UCF refused to hire
him for three positions with its Marketing Department and approximately1 fifteen
positions with its Small Business Department. Plaintiff additionally alleged UCF
refused to hire him for the three Marketing positions in retaliation for Plaintiff’s
complaints that UCF had discriminated previously against Plaintiff because of his
age by failing to hire him for two Small Business positions.
The district court dismissed Plaintiff’s age discrimination claims under the
ADEA as barred by the Eleventh Amendment. The district court determined UCF
was entitled to summary judgment on Plaintiff’s race and gender discrimination
1
The precise number is irrelevant to our resolution of this case.
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and retaliation claims because (1) Plaintiff was procedurally barred from raising
race and gender discrimination claims about most of the Small Business positions
and Plaintiff stipulated to the dismissal of the claims about the remaining two
Small Business positions; and (2) Plaintiff was procedurally barred from bringing
race or gender discrimination or retaliation claims about the Marketing Positions
and also failed to create a question of material fact about whether UCF’s proffered
reasons for not hiring him for the Marketing positions were pretextual.
We review de novo a district court’s dismissal of a complaint on Eleventh
Amendment grounds. In re Employment Discrimination Litig. against State of
Ala., 198 F.3d 1305, 1310 (11th Cir. 1999). We review a district court’s grant of
summary judgment de novo, viewing the facts – supported by evidence in the
record – and reasonable inferences from those facts in the light most favorable to
the nonmoving party. Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th
Cir. 2004).
The district court properly dismissed Plaintiff’s age discrimination claims
under the ADEA. The ADEA prohibits employers, including states and state
entities, from refusing to hire persons because of their age. 29 U.S.C. §§
623(a)(1), 630(b). But, although the statute’s language expressly allows suits
against state entities, the Supreme Court has determined that the ADEA does not
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abrogate state entities’ Eleventh Amendment immunity because the ADEA is
grounded in Congress’s Article I powers, not Congress’s powers to enforce the
Fourteenth Amendment. Kimel v. Fla. Bd. of Regents, 120 S.Ct. 631, 640 (2000).
Therefore, because UCF is a state entity, it is immune from ADEA discrimination
claims; and Plaintiff’s ADEA claims were properly dismissed.
Likewise, the district court properly granted summary judgment on
Plaintiff’s claims about the Small Business and Marketing positions. We first
address Plaintiff’s discrimination claims about the Small Business positions, then
Plaintiff’s discrimination and retaliation claims about the Marketing positions.
1) The Small Business Claims
Before filing a Title VII action in district court, a plaintiff must file a charge
of discrimination with the EEOC. Gregory v. Ga. Dep’t of Human Res., 355 F.3d
1277, 1279 (11th Cir. 2204). Courts are “extremely reluctant” to bar Title VII
claims based on procedural technicalities and will allow judicial claims that
“amplify, clarify, or more clearly focus” the EEOC complaint allegations. Id.Still, “[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
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discrimination.” Gregory, 355 F.3d at 1280. Plaintiffs may not raise
“[a]llegations of new acts of discrimination” in the judicial proceedings. Wu v.
Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989).
Plaintiff’s federal court complaint asserted discrimination claims arising
from UCF’s refusal to hire him for approximately fifteen positions in its Small
Business department; Plaintiff’s EEOC however, charge mentioned only two of
these positions. Therefore, the district court properly determined that Plaintiff’s
judicial claims about the Small Business positions Plaintiff did not mention in his
EEOC charge were procedurally barred.
Plaintiff signed and submitted a form stipulating to the dismissal of the two
remaining Small Business claims. Plaintiff argues that he changed his mind after
signing the stipulation for dismissal and that he indicated his retraction in writing
on the document. The document in the record however, contains no such marks; it
bears only the signatures of the parties. The district court correctly determined
this stipulation was sufficient to dismiss the two remaining Small Business
position claims. Fed. R. Civ. P. 41(a). Because all the Small Business claims
were either procedurally barred or voluntarily dismissed, the district court did not
err in granting summary judgment to UCF on these claims.
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2) The Marketing Positions
Plaintiff’s complaint alleged UCF failed to hire him for three Marketing
positions because of race and gender discrimination and retaliation. Plaintiff’s
EEOC charge about the Marketing positions alleged only age discrimination under
the ADEA.2 This Court has previously refused to bar a plaintiff’s judicial claims
when that plaintiff, not represented by counsel, inadvertently did not mark her
EEOC charge form as including retaliation claims; the facts in that plaintiff’s
EEOC charge indicated she was fired after complaining about race and gender
discrimination, which reasonably would lead to an EEOC investigation of
retaliation. Gregory, 355 F.3d at 1277.
Here, Plaintiff’s EEOC charge factually supports only a claim of age
discrimination: Plaintiff said he believed he was a victim of age discrimination
and, to support this, said that the hired applicants were younger than he was. The
EEOC charge was silent about race, sex, retaliation and Title VII. The EEOC
could not reasonably be expected to investigate race and sex discrimination or
retaliation when the charge form presented no indication that such considerations
2
Plaintiff filed different EEOC charge forms for the Small Business positions and the Marketing
positions.
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might have played a role in UCF’s failure to hire Plaintiff. Therefore, the
Marketing position claims were procedurally barred; and the district court properly
granted summary judgment about these claims to UCF.
We also note that Plaintiff did not establish a material question about
whether Defendants’ reasons for not hiring him for the Marketing positions were
pretextual. If a plaintiff establishes a prima facie case of discrimination or
retaliation, and the Defendant responds with a legitimate, nondiscriminatory
reason for not hiring the plaintiff, the plaintiff must show that the defendant’s
reasons were pretext for an illegal motive. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-804 (1973); Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir.
2002). A plaintiff cannot establish pretext merely by showing he or she was better
qualified than the hired candidate; the plaintiff must show the hiring decision was
made because of an illegal motive. See Alexander v. Fulton County, 207 F.3d
1303, 1339 (11th Cir. 2000), overruled on other grounds, Manders v. Lee, 338
F.3d 1304, 1328 (11th Cir 2000).
UCF offered legitimate, nondiscriminatory reasons for not hiring Plaintiff:3
Plaintiff had no ties to central Florida, which UCF sought in hopes of reducing
3
We assume for this analysis, as did the Magistrate, that Plaintiff established a prima facie case.
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faculty turnover; and one UCF interviewer found Plaintiff “boring” and
“unenthusiastic.”
Plaintiff presented no evidence that UCF lied about these reasons. Plaintiff
merely asserted that he was the most qualified candidate for the position and
reasoned that this showed UCF’s failure to hire him was discriminatory. But a
reasonable employer could have concluded that Plaintiff’s lack of ties to central
Florida and “boring” demeanor negated Plaintiff’s credentials, and the record
reflects no evidence that UCF considered race, sex, or retaliation in hiring for the
Marketing positions. Therefore, Plaintiff did not establish that UCF’s reasons
were pretextual, and the district court properly granted summary judgment to UCF
about the Marketing position claims.
AFFIRMED.
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