           Case: 19-14115   Date Filed: 03/19/2020   Page: 1 of 10



                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-14115
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 2:18-cv-01930-CLM



SHAWNA STEWART,

                                                           Plaintiff-Appellant,

                               versus

JONES UTILITY AND CONTRACTING CO. INC.,
RICHARD JONES,
PATRICIA JONES,

                                                        Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                            (March 19, 2020)

Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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       This is an employment dispute. Shawna Stewart alleges that she worked for

some time at her father’s company, Jones Utility and Contracting Co., Inc. She

later sued Jones Utility for hostile work environment (Counts One and Two) and

retaliation (Counts Three and Four) under Title VII of the Civil Rights Act of 1964

and the Americans with Disabilities Act (ADA). 1 The district court dismissed her

hostile-work-environment and retaliation claims when it found that she did not file

a charge of discrimination with the Equal Employment Opportunity Commission

(EEOC) within 180 days of an allegedly unlawful employment practice. Though

we agree with the district court that Stewart’s hostile-work-environment claims are

due for dismissal for failure to file a timely EEOC charge, we reverse the dismissal

of her retaliation claims, because she has plausibly alleged that she filed her EEOC

charge within 180 days of a retaliatory act. We thus affirm in part, vacate in part,

and remand for proceedings consistent with this opinion.

                                                I.

       We review de novo a district court’s ruling on a motion to dismiss for failure

to state a claim. Ironworkers Local Union 68 v. AstraZeneca Pharm., LP, 634

F.3d 1352, 1359 (11th Cir. 2011). To survive a motion to dismiss, the complaint


       1
          She also sued her father and her stepmother, Patricia Jones, individually under Title VII
and the ADA. And she filed a bevy of state-law claims and an ADA interference claim. The
district court dismissed these claims. Because Stewart does not challenge their dismissal on
appeal, she has abandoned these issues. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 681 (11th Cir. 2014) (holding that a party abandons an issue on appeal when she does not
“plainly and prominently” raise it in her brief).
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must “contain sufficient factual matter, accepted as true, to state a claim to relief

that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

quotation mark omitted). A plausible claim is one that allows a court to draw

reasonable inferences that the defendant is liable for the claims. Id. We view the

complaint in the light most favorable to the plaintiff and accept all of the plaintiff’s

well-pleaded facts as true. Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043,

1057 (11th Cir. 2007).

      Procedurally, a plaintiff must exhaust her administrative remedies with the

EEOC before filing a complaint for discrimination under Title VII or the ADA.

Stamper v. Duval Cty. Sch. Bd., 863 F.3d 1336, 1339–40 (11th Cir. 2017); see also

42 U.S.C. § 12117(a) (incorporating Title VII filing requirements to ADA actions).

This is a mandatory claims-processing rule, not a jurisdictional prerequisite, and a

defendant may waive it as a defense if the issue is not timely raised. Fort Bend

Cty. v. Davis, 587 U.S. __, 139 S. Ct. 1843, 1846, 1849, 1851 (2019). A plaintiff,

absent an exception not relevant here, must file a charge with the EEOC within 180

days of the alleged unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1).

Only unlawful employment practices complained of in a timely filed charge of

discrimination to the EEOC can form the basis for liability. See City of Hialeah v.

Rojas, 311 F.3d 1096, 1102 (11th Cir. 2002).




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       Substantively, Title VII prohibits employers from discriminating against an

individual “because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1);

Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1244 (11th Cir. 2004).

Harassment is a viable claim under Title VII if, among other things, it is based on

the plaintiff’s sex. Hulsey, 367 F.3d at 1244–45. This includes claims of a gender-

based hostile work environment. Id. at 1247–48. And as the ADA uses identical

language, we assume for purposes of this opinion that an ADA hostile-work-

environment claim exists as well. Compare 42 U.S.C. § 2000e-2(a)(1) (stating that

no employer shall discriminate against any individual on the basis of sex “with

respect to his compensation, terms, conditions, or privileges of employment”), with

42 U.S.C. § 12112(a) (stating that no employer “shall discriminate against a

qualified individual on the basis of disability in regard to . . . employee

compensation, . . . and other terms, conditions, and privileges of employment”). 2

       In National Railroad Passenger Corp. v. Morgan, the Supreme Court set

forth general principles to determine whether timely filed acts in an EEOC charge

can save non-timely acts. See 536 U.S. 101, 112–114 (2002). First, it held that

“discrete discriminatory acts are not actionable if time barred, even when they are

related to acts alleged in timely filed charges.” Id. at 113. The Court reasoned that



2
 Because we ultimately affirm the district court’s dismissal of the ADA hostile-work-
environment claim, we need not decide whether that cause of action does in fact exist.
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“[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal

to hire” were easy to identify, and each therefore “constitute[d] a separate

actionable unlawful employment practice.” Id. at 114 (internal quotation mark

omitted). Further, the Court reasoned, because each is an identifiable violation of

Title VII, “[e]ach discrete discriminatory act start[ed] a new clock for filing

charges alleging that act.” Id. at 113. A party, therefore, must file a charge within

180 days of the date of a discrete discriminatory or retaliatory act or lose the ability

to recover for it. Id.

       In contrast, the Court held that hostile-work-environment claims continue to

occur over time. Id. at 115, 117. So the entire time period of the hostile

environment may be considered by a court for the purposes of determining liability

if an act relating to the claim occurred within the filing period. Id. A Title VII

plaintiff cannot recover for acts that occurred before the filing period if such acts

are no longer part of the same hostile-work-environment claim because of a

“certain intervening action by the employer,” like the employee’s termination. See

id. at 118.

       We have concluded that the Supreme Court’s ruling in Morgan “essentially

rejected the continuing violation doctrine and simplified the law by allowing courts

to view allegations of a hostile work environment as a single unlawful employment

practice.” Shields v. Fort James Corp., 305 F.3d 1280, 1281–82 (11th Cir. 2002)


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(internal quotation marks omitted). We reasoned that if the smallest portion of that

“practice” occurred within the limitations period, then a court should consider it as

a whole. Id. And in Chambless v. Louisiana-Pacific Corp., we held that the

employer’s retaliation against the employee was a discrete act that was not the

same type of “discriminatory intimidation, ridicule, and insult” characterizing the

employee’s untimely hostile-work-environment allegations. 481 F.3d 1345, 1350

(11th Cir. 2007). We thus held that the timely discrete act of retaliation was not

part of the employee’s hostile-work-environment claim and could not save the

earlier, untimely acts that comprised that claim. Id.

      Against this backdrop, the district court was right to dismiss Stewart’s

hostile-work-environment claims. Stewart agrees that she was terminated in

November 2016. The hostile work environment effectively ended on this date, as

there was no longer a “work” environment. See Morgan, 536 U.S. at 118. She

filed her EEOC charge in February 2018—well after the 180-day deadline.

See 42 U.S.C. § 2000e-5(e)(1). And any retaliatory acts in between were discrete

acts distinct from the hostile work environment and were not sufficiently related so

that they saved the earlier untimely acts. See Chambless, 481 F.3d at 1350.

      For these reasons, the district court did not err when it dismissed Counts One

and Two of Stewart’s amended complaint for failure to state a claim.




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                                          II.

      Title VII prohibits employers from retaliating against employees because

they have engaged in protected conduct. See Howard v. Walgreen Co., 605 F.3d

1239, 1244 (11th Cir. 2010). Protected activity under Title VII includes opposing

any employment practice made unlawful by the opposition clause in Title VII. See

42 U.S.C. § 2000e-(3)(a). Title VII also prohibits retaliation against former

employees. Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997).

      Under the ADA, it is unlawful for an employer to “discriminate against any

individual because such individual has opposed any act or practice made unlawful

by [the ADA] or because such individual made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under [the

ADA].” 42 U.S.C. § 12203(a). The ADA’s anti-retaliation provision is similar to

Title VII’s, and we assess ADA retaliation claims under the same framework.

Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir.

1997).

      To state a viable claim for retaliation under both Title VII and the ADA, a

plaintiff must plead facts that plausibly support a finding that: (1) she engaged in

statutorily protected expression; (2) she suffered an adverse employment action;

and (3) there was a causal link between the protected expression and adverse

action. See id. In Burlington Northern, the Supreme Court held that Title VII’s


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“antiretaliation provision extends beyond workplace-related or employment-related

retaliatory acts and harm,” and rejected previous standards that “limited actionable

retaliation to so-called ultimate employment decisions.” Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 67 (2006) (internal quotation mark omitted). The

Supreme Court held that, in a retaliation action, an employee instead must allege

“that a reasonable employee would have found the challenged action materially

adverse.” Id. at 68. The Supreme Court clarified that a materially adverse action

was one that “might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Id. (internal quotation mark omitted). An

employer’s lawsuit against an employee can qualify, so long as the lawsuit was

filed with a retaliatory motive and was lacking a reasonable basis in fact or law.

See id. at 66–67; Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 740

(1983).

      Turning to the facts, Stewart has alleged protected conduct, as she alleged

that Jones Utility filed a lawsuit in January 2018 against her in retaliation for her

filing a 2016 EEOC charge and for her participation in her sister’s federal

discrimination action against Jones Utility. See Stewart, 117 F.3d at 1287. She

has also alleged an adverse employment action—the filing of a retaliatory

lawsuit—and a causal connection to her protected conduct. See Burlington, 548

U.S. at 66–67; Bill Johnson’s, 461 U.S. at 740. Indeed, Stewart alleged that the


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January 2018 lawsuit was filed because she filed the 2016 EEOC charge and

because she helped her sister in a federal discrimination lawsuit against Jones

Utility. She also alleged that Jones Utility threatened to file a lawsuit against her

unless she ceased her protected conduct. And she alleged that the 2018 lawsuit

lacked a basis in law or fact. See id.; Bill Johnson’s, 461 U.S. at 740. According

to Stewart, the January 2018 lawsuit alleged that Stewart improperly converted a

check, failed to pay a promissory note, and failed to pay back loans to Jones

Utility. But Stewart attacked these allegations in her complaint, claiming that the

allegedly converted check was part of a bribery scheme, that the promissory note

was fraudulent, that there was an agreement that she would not be expected to

personally repay the loans to Jones Utility, and that it cost more to prosecute the

lawsuit than she was alleged to have unlawfully converted. These allegations were

enough to plausibly support a finding of an adverse employment action and a

causal connection between her protected conduct and Jones Utility’s lawsuit. See

Stewart, 117 F.3d at 1287; Am. United Life Ins. Co., 480 F.3d at 1057. And since

Jones Utility filed the lawsuit in January 2018—a month before Stewart filed her

February 2018 EEOC charge—her EEOC charge was allegedly filed well within

the 180-day deadline. We therefore vacate the district court’s ruling that Counts

Three and Four are barred for failure to file a timely EEOC charge, and we remand

for further proceedings consistent with this opinion.


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AFFIRMED IN PART AND VACATED AND REMANDED IN PART.




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