Freddy Green v. Elixir Industries

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 11, 2005
No. 04-12973 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-00083-CV-5
FREDDY GREEN,
Plaintiff-Appellant,
versus
ELIXIR INDUSTRIES, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(October 11, 2005)
Before BARKETT, HILL and FARRIS *, Circuit Judges.
PER CURIAM:
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
We withdraw our previous opinion and substitute this opinion in its place.
Freddy Green appeals the district court’s grant of summary judgment in
favor of Elixir Industries on his race employment discrimination claim. Green
filed suit in district court alleging wrongful termination on the basis of race, as well
as racial hostile work environment discrimination, in violation of 42 U.S.C. §
2000e et seq. (Title VII) and 42 U.S.C. § 1981.1 Although the district court found
the merits of Green’s hostile work environment claim sufficient to withstand
summary judgment, the court nonetheless granted summary judgment on that claim
under both Title VII and § 1981, on the grounds that the Equal Employment
Opportunity Commission (“EEOC”) charge Green had filed was deficient.
We affirm the district court’s determination that Green’s EEOC charge was
insufficient to provide notice of a Title VII hostile work environment claim. While
§ 1981 does not require a plaintiff to exhaust administrative remedies by filing an
EEOC charge, Green has abandoned any argument concerning his § 1981 claims,
because he failed to raise them on appeal. Accordingly, we affirm.
BACKGROUND
Plaintiff Freddy Green is a black male who was employed by Defendant
Elixir Industries, Inc. at its Georgia Extrusion Division in Douglas, Georgia from
1
The wrongful termination claim went to trial, and the jury returned a verdict for Elixir
Industries.
2
March 1995 until he was terminated on January 2, 2001. Following his
termination, Green filed a pro se charge of discrimination with the EEOC. Green
checked the box stating that the discrimination alleged was racial. In the box
where Green was required to state the dates of the discrimination, Green wrote
“January 2, 2001” as the “earliest” and “latest” dates. In the factual particulars
section, Green stated:
I. I was employed from March 7, 1995 until my discharge January 2, 2001.
I was terminated for violation of the attendance policy, but I have no written
warnings for attendance. White males that have written warnings and have
committed further violations were not terminated.
II. Management stated I was discharged because of violation of the
attendance policy.
III. I believe that I have been discriminated against because of my race
(black) in violation of Title VII of the Civil Rights Act of 1964, as amended.
The EEOC investigated Green’s charges and concluded that Green was not
terminated because of his race.2 It issued Green a right to sue letter.
Green subsequently filed this action, which alleged both racial hostile
environment discrimination and racially-motivated termination in violation of Title
VII and § 1981. Green’s allegations in the suit include repeated and outrageous
2
Green claims that he told an EEOC investigator about the harassing conduct and
provided paperwork to the EEOC substantiating the incidents concerning his hostile-
environment claim. The EEOC has since destroyed Green's file. However, there is no dispute
concerning Green’s EEOC charge form, which did not include facts concerning his hostile-
environment claim.
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acts of racially motivated harassment.
Elixir filed a motion for summary judgment, asserting that Green’s EEOC
charge did not contain specific allegations of a hostile work environment, but only
mentioned his termination as the discriminatory act, and listed January 2, 2001, as
both the starting and ending date of the discriminatory conduct. Elixir claimed that
a hostile work environment investigation could not reasonably be expected to grow
out of this charge, and that Green’s Title VII claim was therefore procedurally
deficient. The district court found that Green’s EEOC charge was deficient and
granted summary judgment solely on that basis.
DISCUSSION
We review the grant of summary judgment de novo. Higdon v. Jackson, 393
F.3d 1211, 1218 (11th Cir. 2004). Before filing a Title VII action, a plaintiff must
exhaust his administrative remedies by filing a charge of discrimination with the
EEOC. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970).3
Though we must liberally construe EEOC charges that are prepared without the
assistance of counsel, a plaintiff’s civil complaint remains “limited by the scope of
the EEOC investigation which can reasonably be expected to grow out of the
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to
the close of business on September 30, 1981.
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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).
Though Green relies on Gregory to argue that his EEOC charge embraced a
hostile environment claim, we find Gregory inapposite. In Gregory, though the
plaintiff failed to check the box labeled “retaliation” on the EEOC charge, the
charge nonetheless alleged facts that reasonably encompassed a claim for
retaliation. Gregory, 355 F.3d at 1280. By contrast, all of the factual allegations
contained in Green’s EEOC charge relate to his termination and none relate to a
retaliation claim. He noted the date of his termination as both the earliest and latest
date of discriminatory conduct; explained that his termination ostensibly stemmed
from attendance policy violations; and stated that white males with inferior
attendance records were retained. Nothing in Green’s EEOC charge related to
incidents of harassment, nor did anything mention the dates on which they
occurred. Because the facts alleged in Green’s EEOC charge form cannot be said
to encompass a hostile work environment claim, we affirm the district court’s
finding that his claim was therefore procedurally deficient. See Sanchez, 431 F.2d
at 466 (explaining that a Title VII complaint may encompass only the kinds of
discrimination like or related to the allegations contained in the EEOC charge).
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Unlike Title VII, § 1981 does not require that a plaintiff exhaust
administrative remedies before filing an action in federal court. See Caldwell v.
Nat’l Brewing Co., 443 F.2d 1044, 1046 (5th Cir. 1971) (holding that a plaintiff
alleging discriminatory employment practices with regard to race “has an
independent remedy under § 1981 without respect to exhaustion under Title VII”).
As such, a hostile work environment claim brought under § 1981 cannot be
defeated by a deficient EEOC charge. Thus, while the district court improperly
entered summary judgment on Green’s § 1981 claim based on his failure to
exhaust administrative remedies, circuit precedent dictates that Green’s failure to
raise his § 1981 claim on appeal renders the issue abandoned. See United States v.
Ardley, 242 F.3d 989, 990 (11th Cir. 2001) (applying “our well-established rule
that issues and contentions not timely raised in the briefs are deemed abandoned”).
AFFIRMED.
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