           Case: 14-13527   Date Filed: 07/16/2015   Page: 1 of 19




                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13527
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 3:13-cv-00051-CDL

CAREY A. FORTSON,

                                                            Plaintiff-Appellant,

                                  versus

MICHELLE CARLSON,
Human Resources,
MELVIN DUTTON,
Manager,
ROBERT C. JOHNSON,
CEO,
COLUMBIA FARMS OF GEORGIA,
a.k.a. Columbia Farms Feed Mill,
BARRY CRONIC,

                                                         Defendants-Appellees.
                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                              (July 16, 2015)
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Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Plaintiff Carey Fortson sued his former employer, Columbia Farms of

Georgia (“Columbia Farms”), and three members of its management, Michelle

Carlson, Melvin Dutton, and Barry Cronic. Fortson alleged claims of gender and

race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2(a) (“Title VII”); racially hostile work environment under 42 U.S.C.

§ 1981; and intentional infliction of emotional distress and negligent supervision

under state law. The district court dismissed Fortson’s Title VII claims as time-

barred and subsequently granted summary judgment to the defendants on his

§ 1981 and state-law claims. Fortson now appeals.

      After review, we affirm.

                                 I. BACKGROUND

      We describe the relevant events, viewing the evidence in the light most

favorable to Fortson.

A.    Harassment of Fortson

      From January 2010 to June 2012, plaintiff Fortson, a 52-year-old African

American man, worked as a dispatcher for defendant Columbia Farms in its feed

mill. Fortson processed customer orders for chicken feed and provided Columbia

Farms truck drivers with delivery information for the orders. Fortson generally


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communicated with the truck drivers via radio, but the drivers sometimes entered

the dispatch office and spoke to Fortson in person.

      These truck drivers often directed rude or offensive language at dispatchers,

usually out of frustration with their delivery assignments or a dispatcher’s failure

to have load paperwork ready on time. Fortson points to twelve incidents of

harassment by truck drivers that occurred during his two-and-and-half years of

employment with Columbia Farms. Nine of these comments involved racial

epithets—specifically, “black ass” or “black ass fool.” Fortson made

contemporaneous notes concerning the following twelve instances of harassment.

      On August 10, 2011, truck driver Kenny Allen called Fortson names and

cursed at Fortson in person, saying, “Hey black ass hurry so I can get back and get

another load.” On August 12, 2011, driver Danny Young threatened Fortson when

Fortson did not have his paperwork ready for a load. Young said to Fortson, in

person, “I’ll have your black ass taken care of[.] [Y]ou don’t [know] me.”

      On August 19, 2011, driver Steve Andrews—who Fortson identified as a

“bully” and his primary harasser—“threatened and cursed” at Fortson after Fortson

did not have his load paperwork ready. Andrews said to Fortson, “I’ll take your

black ass across the track[,] buddy. You have my damn paper work ready.”

      On September 2, 2011, Andrews again “threatened” and “curs[ed]” at

Fortson, stating, “I can have your black ass put away[,] buddy. Give me my damn


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paper work.” On September 8, 2011, Allen, apparently mad that he had received a

long-haul assignment, cursed at Fortson and said, “You don’t know me[.] I’ll have

your black ass fired.”

       On September 15, 2011, both Andrews and Young “scream[ed]” at Fortson

to “hurry up” and get their paperwork ready. On September 30, 2011, Fortson

noted that both “Andrews & Allen [were] cursing at [him],” in person, saying,

“You are one dumb black ass taking up space for nothing.”

       On October 8, 2011, Andrews cursed at Fortson, “You sorry ass fuck[.] We

need Brad[, a former dispatcher,] to come back to work.” On October 14, 2011,

Andrews said to Fortson, “You no good mother fucker. Your black ass need [sic]

to be cleaning up the load out[,] not on the computer.”

       On January 12, 2012, 1 Andrews and Monte Wynn, another Columbia Farms

trucker driver, called Fortson an “ass hole” and a “black ass fool.” Andrews and

Wynn were upset about their delivery assignments and wanted long-haul

assignments that would yield more mileage pay.




       1
      Fortson testified that there was about a three-month break in the harassment because
Andrews, the main “instigat[or],” was out from work.

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       On January 18, 2012, Wynn “call[ed] [Fortson] names” and said, “I want to

go to South Carolina[,] black ass[,] so that I can get a lot of miles.” On February 3,

2012, Andrews and Wynn threatened Fortson, stating, “We will take you out.” 2

       From February 3, 2012, through his June 27, 2012, discharge, Fortson did

not experience any further harassment. Fortson attributed this to the fact that all

but one of the truck drivers who had harassed him either quit or were fired.

B.     Fortson’s Reports of Harassment to Columbia Farms Management

       Although Fortson never filed any written complaints with Columbia Farms,

Fortson testified that he complained verbally on multiple occasions to his shift

supervisor, defendant Melvin Dutton. 3 Dutton told Fortson that he would “take

care of it” but never did anything to stop the harassment.

       In a declaration, supervisor Dutton admitted that “[r]ough or uncouth

language was common at the feed mill.” Dutton indicated that dispatchers often

were the target of “rude or angry comments from drivers who were dissatisfied

       2
         In the district court, Fortson also filed a questionnaire—purportedly filled out and signed
by his primary harasser, Andrews—in which Andrews admits to harassing Fortson for “2 years[,]
3 months.” Andrews further indicates that he heard other Columbia Farms coworkers “use[]
racial epithets toward the Plaintiff . . . 50 Times.” The district court, however, indicated that it
would not consider the questionnaire because it contained hearsay, it was inconsistent with
Fortson’s own testimony that he was subjected to only nine racial epithets, and Fortson could not
rely on conduct to which he was oblivious to show a hostile work environment. On appeal,
Fortson does not challenge the district court’s failure to consider the questionnaire, and thus, we
too decline to consider it.
       3
        In his declaration, defendant Dutton, on the other hand, stated that “Fortson never
complained to [him] that anyone used egregiously offensive racial epithets while speaking to or
at him.” In his deposition, Dutton repeatedly denied that Fortson reported any harassment to
him.
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with the routes they were assigned or impatient to get their loads on the road.” For

example, when Dutton worked as a dispatcher before being promoted to a

supervisor, Columbia Farms drivers often told Dutton to get his “white ass” in gear

and “get their damn paperwork ready.”

      Fortson reported the harassment only to Dutton and not to any other

members of Columbia Farms management. The record contains no evidence that

either defendant Michelle Carlson, a Columbia Farms human resources manager,

or defendant Barry Cronic, Columbia Farms’s Chief Executive Officer, had any

knowledge of the harassment.

      In a declaration, defendant Carlson disputed several of the dates on which

Fortson alleged that harassment occurred based on a review of time card records.

Specifically, Carlson noted that several of the instances of harassment claimed by

Fortson fell on days when either he or his alleged harasser did not work or did not

work overlapping shifts. But, at this juncture, we must view the evidence in the

light most favorable to Fortson.

C.    Effect of Harassment on Fortson

      The record contains no evidence that the alleged harassment suffered by

Fortson interfered in any way with his job performance or affected his ability to

perform his duties.




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       The only evidence of impact is on Fortson’s personal relationships outside of

work. In an affidavit, Lisa Rucker, Fortson’s estranged wife, averred that the

harassment Fortson suffered while employed at Columbia Farms caused Fortson

great distress, led to the deterioration of their relationship, and ultimately resulted

in their separation. Melesa Gary, Fortson’s ex-girlfriend, testified that during her

relationship with Fortson, the harassment Fortson experienced at work caused him

to become depressed, changed his normally happy attitude, and made him become

“more agitated” and “complain[] more.”

D.     Fortson’s Termination

       On June 21, 2012, another employee photographed Fortson sleeping while

on duty. When questioned by management, Fortson admitted to sleeping on the

job.

       Columbia Farms’s employee handbook—a copy of which Fortson admitted

receiving upon starting with Columbia Farms—states that employees are

prohibited from sleeping on the job. The handbook further provides that a

violation of any of its terms could result in immediate termination.

       After the sleeping incident on June 21, Columbia Farms initially suspended

Fortson for three days pending further disciplinary action. Then, on June 27, 2012,

Columbia Farms terminated Fortson.

                                  II. DISCUSSION


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A.     Title VII Gender and Race Discrimination Claims

       The district court did not err in dismissing Fortson’s Title VII gender and

race discrimination claims as time-barred. 4 Fortson did not file his Equal

Employment Opportunity Commission (“EEOC”) charge until February 12, 2013,

more than 180 days after his June 27, 2012 termination, the final adverse

employment activity he suffered. See Wilkerson v. Grinnell Corp., 270 F.3d 1314,

1317 (11th Cir. 2001); 42 U.S.C. § 2000e-5(e)(1) (requiring an employee in a non-

deferral state such as Georgia to exhaust administrative remedies by filing a charge

of discrimination with the EEOC within 180 days of the alleged unlawful

employment practice).

       In his initial appellate brief, Fortson argues, as he did in the district court,

that his complaint was timely filed within 90 days of his EEOC right-to-sue letter.

This argument is misplaced, however, because Fortson’s Title VII claims are time-

barred based on the late filing of his EEOC charge, not based on the timeliness of

his complaint with respect to his right-to-sue letter.

       Fortson also contends that his EEOC charge must have been timely because

the EEOC issued him a right-to-sue letter and did not state that his EEOC charge




       4
        We review de novo a district court’s grant of a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
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was untimely filed. 5 The problem for Fortson is his EEOC letter does not address

timeliness at all. This is not a case where the EEOC affirmatively stated that the

charge was timely. Cf. Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 F.3d 1239,

1250-53 (11th Cir. 2012) (holding that where the EEOC affirmatively determines

that a charge is timely filed, and a governmental agency defendant fails to

challenge the EEOC finding of timeliness, the defendant and the district court are

subsequently bound by that finding). Rather, the EEOC letter does not address that

issue and the district court thus did not err in addressing it. Further, the district

court correctly found that Fortson’s EEOC charge was not timely filed within 180

days of his termination and therefore his Title VII claims are time-barred.

B.     Section 1981 Racially Hostile Work Environment Claim
       The district court also did not err in granting summary judgment to the

defendant on Fortson’s § 1981 racially hostile work environment claim. 6 To

establish a hostile work environment claim under § 1981, a plaintiff must prove

that the “the workplace is permeated with discriminatory intimidation, ridicule, and

insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s

       5
        Fortson raises this argument for the first time in his reply brief and thus the question
arises whether this argument comes too late. We need not address this issue because the
argument fails in any event.
       6
          We review a district court’s grant of summary judgment de novo, viewing all evidence
in the light most favorable to the non-moving party. Owen v. I.C. Sys., Inc., 629 F.3d 1263,
1270 (11th Cir. 2011). Summary judgment is appropriate when “there is no genuine dispute as
to any material fact” and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a).
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employment and create an abusive working environment.” Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993) (quotations and citation omitted)

(listing elements of Title VII claim); see Shields v. Fort James Corp., 305 F.3d

1280, 1282 (11th Cir. 2002) (noting that Title VII and § 1981 hostile work

environment claims have the same elements and are subject to the same analytical

framework).

      If the plaintiff bases his hostile work environment claim on race, he must

prove five elements: (1) he belongs to a protected group; (2) he has been the

subject of unwelcome harassment; (3) the harassment was based on his race;

(4) the harassment was sufficiently severe or pervasive to alter the terms and

conditions of employment and create a discriminatory abusive working

environment; and (5) the employer was responsible for such environment under a

theory of vicarious or direct liability. Adams v. Austal, U.S.A., L.L.C., 754 F.3d

1240, 1248-49 (11th Cir. 2014).

      The fourth element requires a plaintiff to show that his work environment is

both subjectively and objectively hostile. Id. at 1249. A plaintiff must

subjectively perceive the harassment as sufficiently severe or pervasive to alter the

terms or conditions of his employment, while the objective severity of harassment

is judged from the perspective of a reasonable person in the plaintiff’s position. Id.




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      To evaluate whether a work environment is objectively hostile, the Supreme

Court in Harris identified the following factors that we should consider: (1) the

frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct

is physically threatening or humiliating, or a mere offensive utterance; and,

(4) whether the conduct unreasonably interferes with the employee’s job

performance. Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir. 1997) (citing

Harris, 510 U.S. at 23, 114 S. Ct. at 371). Thus, “[i]n the light of these factors, we

ask whether, under the totality of the circumstances, a reasonable person would

find the harassing conduct severe or pervasive to alter the terms or conditions of

the plaintiff’s employment.” Adams, 754 F.3d at 1251.

      The Harris factors are not “a mathematically precise test,” and no single

Harris factor is required for a plaintiff to show the fourth element of his hostile

work environment claim. See Harris, 510 U.S. at 23, 114 S. Ct. at 371. Instead,

the inquiry into the objective severity of the harassment is fact intensive and

involves a consideration of all of the circumstances. See Mendoza v. Borden, Inc.,

195 F.3d 1238, 1246 (11th Cir. 1999) (en banc).

      Here, the district court determined that Fortson’s hostile work environment

claim failed on the fourth element—that the harassment was sufficiently severe or

pervasive to alter the terms and conditions of employment and create a

discriminatory abusive working environment. See Adams, 754 F.3d at 1249.


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Specifically, the district court concluded that Fortson failed to present evidence

from which a reasonable jury could find that he experienced race-based harassment

that was sufficiently severe or pervasive to alter the terms and conditions of his

employment. Put differently, the district court found that Fortson failed to create a

genuine issue of material fact as to whether his workplace was subjectively and

objectively hostile. We agree.

       As an initial matter, while Fortson raises on appeal the issue of whether the

district court erred in granting summary judgment to the defendants on his hostile

work environment claim, in his opening brief he fails to explicitly challenge, or

even address, the district court’s determination that he presented insufficient

evidence as to the fourth element of his claim. Instead, he focuses on evidence and

arguments that are largely irrelevant to the fourth element of his claim and the

Harris factors. Thus, in failing to raise any argument as to the fourth element of

his claim—the single element on which the district court found that his hostile

work environment claim failed—Fortson arguably has abandoned this issue. See

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682-83 (11th Cir. 2014).

Fortson’s reply brief more squarely addresses the fourth element of his claim, but

we do not consider arguments raised for the first time in a reply brief. See id. at

683.




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      In any event, even assuming that Fortson’s initial brief could be liberally

construed to challenge the district court’s finding that he failed to show the fourth

element of his claim, we nonetheless affirm. A careful review of the record and an

application of the Harris factors reveal that, under the totality of the circumstances,

Fortson did not present evidence sufficient for a reasonable jury to find that his

workplace was subjectively and objectively hostile.

      As to the first two Harris factors, Fortson fails to raise a disputed issue

concerning both the frequency and severity of the harassing conduct. Viewing the

facts in the light most favorable to Fortson, he testified as to only twelve incidents

of harassment spanning seven months of his two-and-a-half years of employment

at Columbia Farms. And only nine of these incidents involved racially derogatory

language—specifically, “black ass” or “black ass fool.” While these slurs were

patently offensive and disturbing, we cannot say that a reasonable jury could find

the frequency of this harassing conduct to be sufficiently pervasive or severe over

Fortson’s period of employment. Cf. Adams, 754 F.3d at 1251-54 (concluding that

plaintiffs raised a disputed issue that the harassment was frequent where they saw

racist graffiti in the bathroom “every day” or “regularly,” saw confederate flags

“every morning” or “frequently,” and heard racial slurs “every day”); Miller v.

Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002) (finding sufficient

trial evidence of frequent harassing conduct where coworker “hurled . . . ethnic


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slurs at [plaintiff] three to four times a day”); Johnson v. Booker T. Washington

Broad. Serv., Inc., 234 F.3d 501, 509 (11th Cir. 2000) (finding that sexual

harassment was severe and “not infrequent” where plaintiff “point[ed] to roughly

fifteen separate instances of harassment over the course of four months” that

included her supervisor giving her “unwanted massages, standing so close to [her]

that his body parts touched her from behind, and pulling his pants tight to reveal

the imprint of his private parts”). 7 While the severity issue is close, we must

consider the context of the workplace and the crass language used between

dispatchers and truck drivers at Columbia Farms.

       As to the third Harris factor, Fortson did not present any evidence on which

a reasonable jury could find that he was subjected to sufficiently physically

threatening or humiliating harassment. Although Fortson testified as to five

arguably threatening statements by coworkers, two of the statements did not

threaten physical violence. Specifically, one coworker said he would have Fortson

fired, while another coworker suggested that he could have Fortson imprisoned.

The other three statements—that Fortson would be “taken care of,” taken “across

the track,” and “taken out”—arguably could be construed as physically

threatening. However, these statements occurred on August 12, August 19, and

       7
        In his reply brief, Fortson argues that he endured a number of more severe racial slurs,
including the “n” word, but admits that he did not record these slurs on his notepad. However,
even assuming that we consider this argument, Fortson did not testify in his deposition that he
was subjected to these alleged slurs.
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February 3, respectively, and thus appear to be isolated and do not suggest an

“escalation” of threatening incidents. Cf. Jones v. UPS Ground Freight, 683 F.3d

1283, 1303-04 (11th Cir. 2012) (reasoning that plaintiff showed a genuine issue of

material fact as to his hostile work environment claim where he endured “seven

incidents of racist acts over a year, four of which . . . occurred within a two-week

period of time near the end of [his] employment,” suggesting an “escalation of

incidents, with a possibly threatening confrontation as its centerpiece”).

      More importantly, we agree with the district court that the context of these

statements is critical in considering whether they were physically threatening or

humiliating, or were mere offensive utterances. See Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 77, 81-82, 118 S. Ct. 998, 1001, 1003 (1998)

(explaining, in same-sex harassment case involving allegations of “sex-related,

humiliating actions,” a physical assault done in a “sexual manner,” and a threat of

rape, that “[i]n . . . all[] harassment cases, [the relevant] inquiry requires careful

consideration of the social context in which particular behavior occurs and is

experienced by its target”). Here, all of the harassing statements were made in the

context of complaints about Fortson’s job performance in an environment in which

truck drivers regularly were rude to or angry with dispatchers, irrespective of race.

For example, supervisor Dutton stated that, when he previously worked as a

dispatcher, Columbia Farms drivers often told him to get his “white ass” in gear


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and “get their damn paperwork ready.” 8 The district court put it aptly: “Fortson

has painted a picture of an unsophisticated work environment where crude

language was commonplace and good manners were absent. But being subjected

to crude, boorish behavior does not necessarily provide a disgruntled employee

with a legal cause of action.”

       Finally, as to the fourth Harris factor, Fortson presented no evidence that the

harassment in any way interfered with his job performance. In particular, the

record provides no indication that the harassment was at all related to his sleeping

on the job, the undisputed reason for his termination. Although no single Harris

factor must be shown for a plaintiff to demonstrate a hostile work environment, see

Harris, 510 U.S. at 23, 114 S. Ct. at 371, the complete lack of any evidence as to

this factor weighs strongly against finding that Fortson presented sufficient

evidence for a reasonable jury to find a hostile work environment.

       In sum, considering the totality of the circumstances—especially in light of

Fortson’s failure on appeal to develop any real challenge to the district court’s

ruling on the fourth element of his claim—we cannot say that the district court

erred in granting the defendants summary judgment on Fortson’s hostile work

environment claim.



       8
       Fortson’s reply brief agrees that “the record includes undisputed evidence that . . .
Dutton was repeatedly called ‘white ass’ when he worked in [Fortson’s] position.”
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C.    Intentional Infliction of Emotional Distress and Negligent Supervision
      Claims

      Finally, the district court did not err in granting summary judgment to the

defendants on Fortson’s state-law claims of intentional infliction of emotional

distress and negligent supervision. In Georgia, to state a claim for intentional

infliction of emotional distress, a plaintiff must show: (1) intentional or reckless

conduct; (2) extreme or outrageous conduct; (3) a causal connection between the

wrongful conduct and the emotional distress; and (4) severe emotional distress.

Jarrard v. United Parcel Serv., Inc., 242 Ga. App. 58, 59, 529 S.E.2d 144, 146 (Ct.

App. 2000). Georgia case law defines extreme or outrageous conduct as conduct

“so outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a

civilized community.” Yarbrough v. SAS Systems, Inc., 204 Ga. App. 428, 429,

419 S.E.2d 507, 509 (Ct. App. 1992).

      Here, we agree with the district court that Fortson presented insufficient

evidence to create a genuine issue of material fact as to both severe emotional

distress and extreme or outrageous conduct. First, although Fortson submitted

evidence showing that the alleged harassment may have affected his mood and his

personal relationships, he submitted no evidence suggesting he suffered extreme

emotional distress. See Bridges v. Winn-Dixie Atlanta, Inc., 176 Ga. App. 227,



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230, 335 S.E.2d 445, 448 (Ct. App. 1985) (explaining that the distress inflicted

must be so severe that no reasonable man could be expected to endure it).

       Second, as the district court put it, the harassing comments that Fortson

endured were “uncivil and rude” but were not so extreme as to go beyond all

bounds of decency and be atrocious and intolerable. Rather, Fortson’s case is

analogous to that of the plaintiff in Lockhart v. Marine Manufacturing Corporation,

281 Ga. App. 145, 635 S.E.2d 405 (Ct. App. 2006). There, the Georgia Court of

Appeals found that the “racist-laden and insulting comments” endured by the

plaintiff did not support a claim for intentional infliction of emotional distress

because, inter alia, “the comments did not originate from one person in a

systematic effort to belittle and abuse [the plaintiff],” but “[i]nstead, . . . originated

from different employees as reactions to particular work situations over a lengthy

period of time.” Lockhart, 281 Ga. App. at 146-48, 635 S.E.2d at 406-07. Here,

too, the comments directed at Fortson were made as part of complaints concerning

his job performance. The comments were “insulting and degrading” but were

insufficient to support a claim of intentional infliction of emotional distress. See

id. at 147, 635 S.E.2d at 407.9

                                    III. CONCLUSION
       9
         We also reject without further discussion Fortson’s argument that the district court erred
in granting the defendants summary judgment on his negligent supervision claim. See Leo v.
Waffle House, Inc., 298 Ga. App. 838, 841, 681 S.E.2d 258, 262 (Ct. App. 2009); Metro. Atlanta
Rapid Transit Auth. v. Mosley, 280 Ga. App. 486, 489, 634 S.E.2d 466, 469 (2006).

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       For the above reasons, we find no reversible error in the district court’s

dismissal of Fortson’s Title VII claims or its grant of summary judgment in favor

of defendants on his § 1981 and state-law claims. 10 Accordingly, we affirm the

judgment.

       AFFIRMED.




       10
         On appeal, Fortson also attempts to raise a number of claims that were not properly
raised before the district court, including claims of retaliatory discharge, disparate treatment, and
fraud on the district court. Because these claims were not properly raised before the district
court, we do not consider them. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324,
1331 (11th Cir. 2004).
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