Sheryl R. Bourne v. School Board of Broward County

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11402
Non-Argument Calendar
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D.C. Docket No. 0:10-cv-60942-RNS
SHERYL R. BOURNE,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
SCHOOL BOARD OF BROWARD COUNTY,
lllllllllllllllllllllllllllllllllllllll lDefendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 1, 2013)
Before TJOFLAT, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
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Sheryl L. Bourne, an African American woman, appeals the district court’s
grant of summary judgment in favor of her former employer, the Broward County
School Board, on her employment discrimination complaint that alleged racial
discrimination, harassment, and retaliation under Title VII of the Civil Rights Act
of 1964 (Title VII), 42 U.S.C. §§ 2000e-2 and 2000e-3, and the Florida Civil
Rights Act (FCRA), Fla. Stat. § 760.10(1), (7). In her complaint, Bourne alleged
that her white coworker racially harassed her and created a hostile work
environment and that the School Board did not take any action in response (Counts
I and IV). Bourne also alleged that the School Board retaliated against her “for
opposing the racially discriminatory and harassing behavior of her co-worker” by
terminating her (Counts II and V). Bourne further alleged that the School Board
retaliated against her for opposing her co-worker’s behavior and filing a complaint
with the Board’s internal Department of Equal Educational Opportunities (EEO),
in which she “complain[ed] of the harassment . . . and of retaliation in connection
with her termination,” by refusing to interview or hire her for a vacant position
(Counts III and VI).
On appeal, Bourne challenges the district court’s decision to grant summary
judgment in favor of the School Board on Counts I and IV on the ground that her
claims were time-barred. Bourne argues she was entitled to equitable tolling of the
applicable filing deadlines. Bourne also appeals the district court’s decision to
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grant summary judgment in favor of the School Board on Counts III and VI on the
ground that Bourne “failed to establish a prima facie case for her retaliation
claims” because “she did not engage in statutorily protected activity.” Bourne
argues that she did establish a prima facie case, under an alternative test, because
she was fired after she filed a complaint to the School’s Board’s internal EEO
office.1
“We review de novo a district court’s grant of summary judgment, applying
the same legal standards as the district court.” Chapman v. AI Transport, 229 F.3d
1012, 1023 (11th Cir. 2000) (en banc). “Summary judgment is appropriate if the
evidence before the court shows that there is no genuine issue as to any material
fact . . . .” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (quotation
marks omitted). “A genuine issue of material fact does not exist unless there is
sufficient evidence favoring the nonmoving party for a reasonable jury to return a
verdict in its favor.” Id. In making this determination, we “make all reasonable
inferences in favor of the party opposing summary judgment.” Id. We also review
de novo a district court’s legal decision on equitable tolling. See Drew v. Dep’t. of
Corr., 297 F.3d 1278, 1283 (11th Cir. 2002).
I.
1
The district court also granted summary judgment in the School Board’s favor on Counts II and
V. Bourne does not appeal the ruling on these counts.
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The district court dismissed Bourne’s racial discrimination/hostile work
environment claims, Counts I and IV, as time-barred. Prior to filing a Title VII
claim, such as Count I, a plaintiff must exhaust her administrative remedies by
filing a charge of discrimination with the Equal Employment Opportunity
Commission (EEOC). Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279
(11th Cir. 2004). That discrimination charge must be filed in a timely manner:
within 180 days of the discriminatory act or, in some states including Florida,
within 300 days “if proceedings are instituted with the state agency.” See Thomas
v. Fla. Power & Light Co., 764 F.2d 768, 769 (11th Cir. 1985). Prior to filing a
claim under the FCRA, like the one Bourne asserted in Count IV, a plaintiff must
file formal charges with the EEOC or a state commission within 365 days of the
alleged FCRA violation. Fla. Stat. § 760.11(1).
Bourne’s last day at work was March 30, 2007. This is the last day that any
discriminatory acts related to a hostile work environment could have taken place.
Bourne did not file her charge of discrimination with the EEOC until March 31,
2008, 367 days later. Therefore, the charge was not timely filed.
However, our inquiry does not end there. Title VII’s timely-filing
requirement is non-jurisdictional, so it may be subject to equitable tolling. Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 1132 (1982).
“[T]raditional equitable tolling principles require a claimant to justify her untimely
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filing by a showing of extraordinary circumstances,” such as fraud,
misinformation, or deliberate concealment. Jackson v. Astrue, 506 F.3d 1349,
1353, 1355 (11th Cir. 2007). Under the equitable tolling doctrine, the time period
to file a discrimination charge with the EEOC “does not start to run until a plaintiff
knew or reasonably should have known that she was discriminated against.”
Carter v. W. Publ'g Co., 225 F.3d 1258, 1265 (11th Cir. 2000).2 “A plaintiff who
asserts the applicability of equitable tolling bears the burden of proving that it is
appropriate.” Id.Bourne has not sufficiently demonstrated that she did not know or
reasonably should have known that she was discriminated against. See Carter, 225
F.3d at 1265. Contrary to Bourne’s argument, the fact that she had filed a
complaint with the School Board’s internal EEO in October 2007 does not prove
that equitable tolling is appropriate. Instead, it factors against equitable tolling
because it supports the district court’s conclusion that “[t]here is no genuine
dispute that by the time Bourne was informed of her termination she was possessed
of sufficient facts to bring a complaint for discrimination.”
Neither has Bourne shown that she was not “generally aware of her legal
right to obtain redress.” See Stewart v. Booker T. Washington Ins., 232 F.3d 844,
2
Decisions construing Title VII apply when evaluating claims under the FCRA. See Harper v.
Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998).
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853 (11th Cir. 2000). Also, she has not offered any evidence suggesting that her
late filing was the result of fraud, misinformation, or deliberate concealment. See
Carter, 225 F.3d at 1265. Therefore, equitable tolling does not apply and it was
proper for the district court to grant summary judgment to the School Board on the
grounds that Counts I and IV were time-barred.
II.
The district court dismissed Bourne’s retaliatory failure to hire claims,
Counts III and VI, on the grounds that Bourne had not established a prima facie
case. In order to make out a prima facie case of retaliation under Title VII and the
FCRA, a plaintiff must show that: (1) she engaged in an activity protected under
Title VII, (2) she suffered an adverse employment action, and (3) a causal
connection existed between the protected activity and the adverse employment
action. McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008).
Under Title VII and the FCRA there are two categories of protected activity:
those activities that fit under the “opposition clause” of 42 U.S.C. § 2000e-3(a) and
those activities that fit under the “participation clause.” Merritt v. Dillard Paper
Co., 120 F.3d 1181, 1185 (11th Cir. 1997). The district court focused on whether
Bourne’s activity fit under the “opposition clause” and determined that it did not.
Bourne does not challenge this determination. And our review of the record
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supports the district court’s determination that her activities were not protected on
these grounds.
Bourne argues that the district court erred by failing to consider whether her
actions constituted “protected activity under the “participation clause” because her
actions properly fit in that category. The participation clause protects an employee
who “has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing” under the relevant section. 42 U.S.C.
§ 2000e-3(a); see also Fla. Stat. § 760.10(7).
Bourne’s argument fails. Contrary to Bourne’s argument, she cannot find
refuge under the “participation clause” on the grounds that she had filed a
complaint with the School Board’s internal EEO office prior to submitting
applications for the vacant positions. This Court has explained that the
participation clause “protects proceedings and activities which occur in
conjunction with or after the filing of a formal charge with the EEOC; it does not
include participating in an employer’s internal, in-house investigation, conducted
apart from a formal charge with the EEOC.” EEOC v. Total Sys. Servs., Inc., 221
F.3d 1171, 1174 (11th Cir. 2000); see also Guess v . City of Miramar, 889 So. 2d
840, 846-47 (Fla. 4th DCA 2004) (discussing the “participation clause” in the
context of a FCRA claim). At the time Bourne applied for the vacant positions,
she had not yet filed a charge with the EEOC or otherwise instigated proceedings
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under the statute. Therefore, her conduct does not come under the “participation
clause.” See Total Sys. Servs., 221 F.3d at 1175 n.2; Guess, 889 So. 2d at 846-47.
Because Bourne did not engage in statutorily protected activity, she did not
establish a prima facie case of retaliation. Therefore, it was proper for the district
court to grant summary judgment in favor of the School Board.
III.
Upon review of the record and upon consideration of the parties’ briefs, we
affirm.
AFFIRMED.
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