           Case: 13-11060   Date Filed: 02/27/2014   Page: 1 of 11


                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11060
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:09-cv-01498-CAP

RICHARD V. KELLY,

                                                      Plaintiff-Appellant,


                                  versus


DUN & BRADSTREET, INC.,

                                                      Defendant-Appellee.

                       ________________________

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

                            (February 27, 2014)

Before TJOFLAT, JORDAN and KRAVITCH, Circuit Judges.

PER CURIAM:
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       This case is before us following our remand instructing the district court to

consider and determine which of Richard Kelly’s claims related to or arose out of

his timely 2003 EEOC charge in his action against his former employer, Dun &

Bradstreet (D&B). On remand, the district court determined that many of Kelly’s

claims were untimely or unexhausted. With respect to the timely charges, the

district court granted summary judgment in D&B’s favor. Kelly appeals, and after

a thorough review of the record, we affirm in part and vacate and remand in part. 1

       I. Background

       On June 4, 2009, Kelly filed suit against D&B, alleging that he was

discriminated against based on his race, sex, age, and disability (depression),

subjected to a hostile work environment, and retaliated against after he complained

about D&B’s conduct, in violation of Title VII, 42 U.S.C. § 2000e, et seq., and the

Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623. According to

Kelly’s complaint, D&B engaged in the following discriminatory and retaliatory

actions: D&B retroactively increased his 2002 sales quota in January 2003, failed

to compensate him properly in 2002, failed to give him revenue relief in February

2003, issued him a warning letter in May 2003, failed to recognize his 35th

anniversary with the company in September 2003, issued him a letter of probation



1
  We deny Kelly’s motion to supplement the record. The evidence submitted with the motion
could have been —but was not —presented to the district court.
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in March 2004, fired him at age 58 in August 2004, and failed to timely pay his

pension, insurance, and unused vacation days after his termination.

      Attached to the complaint were copies of the EEOC charges Kelly had filed.

The first charge, dated June 18, 2003, alleged that the actions complained of

occurred between June 1, 1993, and June 9, 2003. In that charge, Kelly identified

three coworkers who were treated more favorably, and he alleged constructive

discharge, wage discrimination, and hostile work environment. In the second

charge dated February 26, 2005, Kelly alleged that the actions continued through

August 31, 2004, and he added allegations of wrongful termination and post-

termination retaliation based on the withholding of his pension benefits and unused

vacation time. The third and final charge was dated August 31, 2007, and it listed

numerous allegations, including that Kelly was denied administrative help and

office space, given a lower salary than other sales team members, not paid his full

commissions on two sales, and that D&B ignored his 35-year service anniversary.

      D&B moved for summary judgment, arguing that Kelly failed to file a

timely EEOC charge and disputing his allegations on the merits. The district court

granted summary judgment to D&B on the ground that the only charge Kelly had

filed was in 2007 and was untimely. On appeal, this court disagreed and remanded

with instructions for the district court to determine which, if any, of Kelly’s

allegations related to or grew out of the allegations in the timely-filed 2003 charge.


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      On remand, D&B again moved for summary judgment. The magistrate

judge determined that the only timely claims of discrimination were those alleging

that three coworkers were treated more favorably, and that D&B retaliated against

Kelly by issuing the 2003 warning letter and delaying payment for Kelly’s unused

vacation time, pension, and retirement benefits. Addressing the merits of the

discrimination claims, the magistrate judge concluded that Kelly could not show

that any of the identified employees were similarly situated comparators because

they had different responsibilities or supervisors. Addressing the retaliation

claims, the magistrate judge found that Kelly could not establish a prima facie case

based on the warning letter, as Kelly could not have had an objectively reasonable

belief that his January 2003 comments in response to his 2002 annual review were

statutorily protected, and there was no causal connection between his comments

and the warning letter five months later. With respect to the withholding-of-

benefits claim, the magistrate judge concluded that Kelly had abandoned it, but

alternatively, there was no causal connection because Kelly’s supervisors were not

responsible for handling his benefits. Finally, although the magistrate judge found

that Kelly’s claim for retaliatory termination was untimely, the magistrate judge

nevertheless concluded that Kelly failed to establish a prima facie case of

retaliation and he could not rebut all of D&B’s legitimate non-discriminatory

reasons for firing him. Accordingly, the magistrate judge recommended granting


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D&B’s motion for summary judgment. The district court adopted the magistrate

judge’s recommendation, over Kelly’s objections, and granted summary judgment

to D&B.

      II. Issues on Appeal

      On appeal, Kelly challenges the district court’s determination that many of

his claims were untimely and did not relate back to or grow out of the 2003 EEOC

charge; that the district court erroneously concluded that he failed to raise wage

discrimination and hostile-work-environment claims sufficiently in his 2003

charge, and that he suffered a retaliatory hostile work environment. Finally, he

challenges the district court’s grant of summary judgment on the merits.

      III. Discussion

      We review a district court’s grant of summary judgment de novo, viewing all

evidence, and reasonable inferences drawn therefrom, in the light most favorable to

the non-moving party. Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d

1160, 1161 (11th Cir. 2006); Wascura v. City of S. Miami, 257 F.3d 1238, 1242

(11th Cir. 2001). Summary judgment is appropriate if the evidence demonstrates

that there is no genuine issue as to any material fact, and that the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

      Both Title VII and the ADEA require that a plaintiff exhaust all available

administrative remedies prior to filing a lawsuit. Bost v. Fed. Express Corp., 372


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F.3d 1233, 1238 (11th Cir. 2004) (ADEA requirement); Wilkerson v. Grinnell

Corp., 270 F.3d 1314, 1317 (11th Cir. 2001) (Title VII requirement). In Georgia, a

charge of discrimination must be filed within 180 days after the alleged unlawful

practice. Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 (11th Cir. 2004); 29

U.S.C. § 626(d)(1)(A); 42 U.S.C. § 2000e-5(e)(1). The 180-day clock begins

running at the time the employee receives notice of the subject adverse

employment action. Wright v. AmSouth Bancorp., 320 F.3d 1198, 1201-02 (11th

Cir. 2003) (ADEA); Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848

(11th Cir. 2000) (Title VII).

      A charge of discrimination is considered filed upon receipt, but a petitioner

may amend it in order to clarify and/or amplify the allegations made therein. 29

C.F.R. §§ 1601.12(b), 13(a) (Title VII), 1626.8(c) (ADEA). Amendments that

allege additional acts that constitute unlawful employment actions related to or

growing out of the subject matter of the original charge relate back to the date the

charge was first received. Id. §§ 1601.12(b) (Title VII), 1626.8(c) (ADEA).

      Although a plaintiff must exhaust his claims prior to seeking judicial review,

the failure to make specific factual allegations in a charge does not necessarily

preclude judicial review of those allegations. See Gregory v. Ga. Dep’t of Human

Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (holding that a charge of retaliation was

not administratively barred despite plaintiff’s failure to check the box marked


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“retaliation” on the EEOC charge form when the facts stated in the charge could

reasonably be extended to encompass a claim for retaliation). A plaintiff’s judicial

complaint is, however, limited by the scope of the EEOC investigation that can

reasonably be expected to grow out of the charge of discrimination. Id. The scope

of an EEOC complaint should not be strictly interpreted, and we are “extremely

reluctant” to allow procedural technicalities to bar discrimination claims. Id.

(internal quotation marks omitted). Judicial claims that amplify, clarify, or more

clearly focus earlier EEOC complaints are appropriate. Ray v. Freeman, 626 F.2d

439, 443 (5th Cir. 1980).2 The proper inquiry is whether the complaint is like or

related to, or grew out of, the allegations contained in the relevant charge.

Gregory, 355 F.3d at 1280.

       On the other hand, allegations of new acts of discrimination that are offered

as the essential basis for requested judicial review are not appropriate absent prior

EEOC consideration. Ray, 626 F.2d at 443. Discrete acts of discrimination, such

as termination or failure to promote, that occur after the filing of an EEOC

complaint must first be administratively reviewed before they may serve as a basis

for a judicial finding of discriminatory conduct. Id. at 442; see also Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). But a charge alleging a

2
  In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.

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hostile work environment will not be time barred so long as all acts which

constitute the claim are part of the same unlawful employment practice and at least

one act falls within the relevant time period. Id. at 120-21.

               A. Timeliness of Claims

       In his complaint, Kelly alleged multiple instances of discrimination and

retaliation, and asserted that he suffered a hostile work environment in retaliation

for his protests in January 2003. The magistrate judge concluded that most of

Kelly’s claims were untimely, and that Kelly failed to provide any facts supporting

his allegations of wage discrimination and hostile work environment. 3

       The 2003 EEOC charge forms the basis of our analysis, and in order to be

timely, claims must have been raised in that charge, or relate to, or grow out of,

that charge. Gregory, 355 F.3d at 1280. Upon review of the record, we conclude

that the magistrate judge properly determined the timeliness of Kelly’s claims and

correctly assessed those claims that could be expected to grow out of the 2003

charge. We therefore, adopt the magistrate judge’s thorough analysis on this issue,

with one exception. The magistrate judge rejected Kelly’s hostile-work-

environment claim without further discussion, finding that Kelly had not




3
  Kelly does not challenge the district court’s conclusions regarding his claims for harassment,
disability discrimination, or post-termination benefits. Thus, has abandoned these issues.
Holland v. Gee, 677 F.3d 1047, 1066 (11th Cir. 2012).
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sufficiently addressed this claim in his EEOC charge. 4 We disagree. In his 2003

charge, Kelly alleged that he suffered a hostile work environment, and he provided

sufficient facts for the EEOC to investigate this claim.

               B. Hostile environment claim

       To establish a hostile work environment under Title VII, the plaintiff must

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

and insult, that is sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment. . . .” Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation and internal quotation marks

omitted); see also Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th

Cir. 2002). The requirement that the harassment be “severe or pervasive” contains

an objective and a subjective component, “[t]hus, to be actionable, this behavior

must result in both an environment that a reasonable person would find hostile or

abusive and an environment that the victim subjectively perceive[s] . . . to be

abusive.” Miller, 277 F.3d at 1276 (internal quotation marks omitted). “[W]hether

an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all

the circumstances.” Harris, 510 U.S. at 23. But discrete acts, such as termination

or the failure to promote, cannot alone form the basis of a hostile-work-

4
  We need not address whether Kelly identified sufficient facts to preserve his claim for wage
discrimination. In his objections to the magistrate judge’s report, Kelly explained that his wages
claim related to the “spoon feeding” of accounts to Gillis. The magistrate judge considered this
claim on its merits.
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environment claim. See McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008)

(noting that a hostile-work-environment claim addresses the cumulative nature of

the conduct and not the specific discrete act (citing Nat’l R.R. Passenger Corp.,

536 U.S. at 117)); see also Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012)

(explaining that discrete acts, although not a basis for a hostile-work-environment

claim, may be taken into consideration in evaluating such a claim).

       Kelly alleged a discriminatory hostile-work-environment claim in his 2003

charge, he raised it in his complaint, and he objected to the magistrate judge’s

findings on this issue. But he does not argue on appeal that the district court erred

in finding this claim untimely. Thus, he has abandoned this issue. Holland v. Gee,

677 F.3d 1047, 1066 (11th Cir. 2012). Kelly does, however, make an argument on

appeal that the actions he suffered constituted a retaliatory hostile work

environment.

       Kelly explicitly raised the retaliatory hostile-work-environment issue in his

objections to the magistrate judge’s report. 5 To survive summary judgment on this

claim, Kelly must show that he suffered a hostile work environment in retaliation

for engaging in protected activity. See Gowski, 682 F.3d at 1311-12. After the

5
  We note that in his appellate brief, Kelly uses “hostile work environment” and “retaliatory
hostile work environment” interchangeably. But it appears that prior to the appeal, he considered
these to be two different causes of action. As Kelly explains in his reply brief on appeal, he
could not have raised the retaliatory hostile work environment until his objections because the
Eleventh Circuit did not recognize such a claim before then. Thus, Kelly did not intend for his
prior use of the term “hostile work environment” to include retaliatory hostile-work-environment
claims.
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district court considered Kelly’s objections, it adopted the magistrate judge’s report

without further discussion, and the magistrate judge never addressed this specific

issue. See, e.g., Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009)

(holding that district courts have the discretion to consider issues raised for the first

time in objections to a magistrate judge’s report). Thus, we have no factual or

legal analysis for appellate review. Accordingly, we vacate and remand for further

proceedings on this issue.

               C. Merits of the remaining discrimination and retaliation claims

       Finally, the magistrate judge reached the merits of whether the three

comparators were treated more favorably than Kelly, and whether Kelly suffered

retaliation when he received a warning letter. 6 Having conducted a thorough

review of the record, we agree with the magistrate judge’s well-reasoned opinion

concerning the merits of these claims and thus adopt it as the opinion of this court.

       Accordingly, for the foregoing reasons, we affirm the district court in part

and vacate and remand in part for the district court to address Kelly’s retaliatory

hostile-work-environment claims consistent with this opinion.

       AFFIRMED in part, VACATED and REMANDED in part.




6
 The magistrate judge also found that Kelly failed to establish retaliation in connection with his
pension benefits and unused vacation time. Kelly offers no argument on this issue on appeal and
has abandoned it. Holland, 677 F.3d at 1066.
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