          Case: 12-11602   Date Filed: 02/11/2013   Page: 1 of 11

                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 12-11602
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:10-cv-01490-TCB

CRAIG BASEL,


                                                           Plaintiff-Appellant,

                                 versus

SECRETARY OF DEFENSE,
l
                                                                    Defendant,

U.S. SECRETARY OF THE NAVY,

                                                         Defendant-Appellee.

                     ________________________

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

                           (February 11, 2013)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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       Craig Basel appeals the district court’s grant of the United States Secretary of

the Navy’s (“Navy”) motion to dismiss his complaint under Title VII, 42 U.S.C. §

2000e-16(a), for failing to exhaust his administrative remedies. Basel alleged that he

filed a November 16, 2009, letter with the Navy’s Equal Employment Opportunity

(“EEO”) Specialist in which Basel complained of harassment and a hostile

work-environment, and that the Navy failed to process or investigate his complaint.

Instead, on November 30, 2009, the Navy informed Basel that it would terminate his

employment, so Basel raised claims that, in terminating him, the Navy discriminated

against him on the basis of his sex, and retaliated against him for filing his letter. On

appeal, Basel argues that: (1) he exhausted his administrative remedies because he

timely contacted the EEO Specialist through the letter, and he gave the Navy the

required 180 days to investigate his claims; (2) the district court had ancillary

jurisdiction over his retaliation claim, thereby making exhaustion unnecessary; and

(3) even if he failed to exhaust his termination claims, equitable tolling and equitable

estoppel excused his failure. After thorough review, we affirm.1

       We review de novo a district court’s order granting a motion to dismiss. See

McGinley v. Houston, 361 F.3d 1328, 1330 (11th Cir. 2004). We review the district


       1
     In addition, Craig Basel’s motion for leave to file his reply brief out of time is
GRANTED.

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court’s findings regarding equitable relief for clear error. See Ross v. Buckeye

Cellulose Corp., 980 F.2d 648, 660 (11th Cir. 1993) (holding that the district court’s

finding of equitable tolling was clearly erroneous).

      Exhaustion of administrative remedies is a matter in abatement that should be

raised in a motion to dismiss, or treated as such if raised in a motion for summary

judgment. See Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008) (addressing

the Prison Litigation Reform Act’s exhaustion requirements). Thus, it is permissible

for a district court to consider facts outside of the pleadings and resolve factual

disputes so long as the factual disputes do not decide the merits and the parties are

given sufficient opportunity to develop a record. Id. at 1376. Deciding a motion to

dismiss for failing to exhaust administrative remedies is a two-step process. Turner

v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). First, the court must look to the

factual allegations in the defendant’s motion and the plaintiff’s response, taking the

plaintiff’s version of the facts as true to the extent that it conflicts with that of the

defendant. Id. If the complaint is not subject to dismissal at this step, the court must

then make specific findings to resolve the parties’ factual disputes, and determine

whether the defendant bore its burden of proving that the plaintiff failed to exhaust

his administrative remedies. Id. at 1082-83.




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      The federal government must make all personnel actions affecting employees

in the military departments, including the Navy, free of any discrimination based

upon sex. 42 U.S.C. § 2000e-16(a); 5 U.S.C. § 102 (defining the term “military

departments” as including the Department of the Navy). Both federal statutes and

Equal Employment Opportunity Commission (“EEOC”) regulations require that a

federal employee exhaust an administrative process before filing a judicial complaint

of discrimination. Brown v. Snow, 440 F.3d 1259, 1262 (11th Cir. 2006). We

consider whether the plaintiff made a good faith effort to comply with the regulations

and provide all of the relevant specific information available to him so that the agency

is given every opportunity to investigate and resolve the dispute. Id. at 1263.

      A plaintiff alleging discrimination against the Navy must first consult an EEO

Counselor within 45 days of the effective date of the alleged discriminatory personnel

action. 29 C.F.R. § 1614.105(a)(1). This time period must be extended by the agency

under certain circumstances. Id. § 1614.105(a)(2). Over the 30 days following the

plaintiff’s initial contact, the EEO Counselor must try to informally resolve the

plaintiff’s complaint, and advise the plaintiff regarding a number of rights and

responsibilities. See id. § 1614.105(a)-(d). If the informal counseling procedure does

not resolve the issue, the EEO Counselor must, within 30 days after the plaintiff

contacted him, advise the plaintiff of his right to file a discrimination complaint. Id.

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§ 1614.105(d). The plaintiff must then file a complaint with the agency against which

he alleges discrimination within 15 days of receiving notice from the EEO Counselor.

Id. § 1614.106(a)-(c). The plaintiff’s failure to comply with any of the these time

limits requires the agency to dismiss a complaint. Id. § 1614.107(a)(2).

       Title VII also contains a statute of limitations for claims filed with the district

court. See 42 U.S.C. § 2000e-16(c). If the plaintiff received a notice of final action

regarding his administrative complaint from a department, or the EEOC if an

administrative appeal was taken, he must file his action with the district court within

90 days of his receipt of the notice. Id.; 29 C.F.R. § 1614.407(a), (c). Otherwise,

where no final action has been taken, the plaintiff must wait at least 180 days after

filing the initial charge with the department before he may file his judicial complaint.

42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407(b).

       The purpose of exhaustion is to permit the department the first opportunity to

investigate the alleged discriminatory or retaliatory practices, and a plaintiff’s judicial

complaint is thereby limited by the scope of the investigation that can reasonably be

expected to grow out of the administrative charge of discrimination or retaliation.

See Gregory v. Georgia Dep’t of Human Res., 355 F.3d 1277, 1279-80 (11th Cir.

2004). The proper inquiry is, therefore, whether the plaintiff’s judicial complaint was

like or related to, or grew out of, the administrative allegations. See id. at 1280.

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Judicial claims are allowed if they “amplify, clarify, or more clearly focus” the

charges made before the agency, and, given that we are reluctant to allow procedural

technicalities to bar Title VII claims, the scope of the administrative charges should

not be strictly construed. See id. at 1279-80 (quotation omitted).

      In this same vein, it is unnecessary for a plaintiff to exhaust administrative

remedies prior to raising a judicial claim of retaliation that grows out of an earlier

charge. Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 168-69 (11th Cir. 1988).

Where a retaliation claim grows out of an administrative charge that the plaintiff

properly presented to the court, the district court has ancillary jurisdiction over the

claim. See id. at 169. A district court, however, may not consider a retaliation claim

that was not first administratively exhausted where no other properly raised judicial

claim exists to which the retaliation claim may attach. See Hargett v. Valley Fed.

Sav. Bank, 60 F.3d 754, 761-62 (11th Cir. 1995) (agreeing with the Fifth Circuit’s

holding that the district court properly dismissed an unexhausted retaliation claim

because no other discrimination charges were properly presented to the district court,

and concluding that the district court properly denied the plaintiff’s motion to amend

her complaint to raise an unexhausted retaliation claim where the underlying age

discrimination claim was untimely filed).




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       Although judicial complaints do not necessarily have to be mirror images of

earlier administrative complaints, allegations of new acts of discrimination that are

offered as the essential basis for judicial review must nonetheless be presented to the

agency. See Ray v. Freeman, 626 F.2d 439, 442-43 (5th Cir. 1980).2 Discrete acts

of discrimination that occur after an administrative filing must first be

administratively reviewed before a plaintiff may obtain judicial review of those same

acts. See id. (concluding that the plaintiff failed to administratively exhaust her

judicial claims that arose from acts that occurred after she filed her EEOC charge of

discrimination).      Readily identifiable acts, such as termination, are discrete

employment actions. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114

(2002).

       The administrative deadlines, however, are not jurisdictional prerequisites, and

are subject to estoppel and equitable tolling. Ross, 980 F.2d at 660 (quotation

omitted); 29 C.F.R. § 1614.604(c). Equitable tolling of a limitations period applies

only where the plaintiff demonstrates that an inequitable event prevented his timely

action. See Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993) (discussing

equitable tolling of the statute of limitations under the Public Vessels Act and the


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

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Suits in Admiralty Act). The plaintiff does not have to demonstrate any misconduct

by the defendant. See Browning v. AT&T Paradyne, 120 F.3d 222, 226 (11th Cir.

1997). While equitable tolling may permit consideration of an untimely filing,

however, it does not apply to relieve the plaintiff of his responsibility to exhaust, or

even begin, his administrative remedies. See Grier v. Sec’y of the Army, 799 F.2d

721, 724 (11th Cir. 1986).

      Equitable estoppel, by contrast, requires an allegation of misconduct on the part

of the party against whom it is made. See Browning, 120 F.3d at 226. Assuming that

the government may be equitably estopped from raising a limitations defense, the

party claiming estoppel must show a reliance on his adversary’s conduct in a manner

that changed his position for the worse, and that the reliance was reasonable in that

he did not know nor should he have known that his adversary’s conduct was

misleading. See Ferry v. Hayden, 954 F.2d 658, 661-62 (11th Cir. 1992).

      Here, it is undisputed that Basel never explicitly raised either of his termination

claims with the Navy. Instead, in the October 2009 written complaint he filed with

Navy EEO Commander Bennie Earvin (the “Earvin complaint”), Basel only alleged

sex discrimination, gender-related harassment, and hostile work-environment. This

was Basel’s only EEO contact with the Navy. Thus, assuming that Basel did all that

was required of him to exhaust the claims found in the Earvin complaint, his judicial

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complaint was limited by the scope of the investigation that could reasonably be

expected to grow from the Earvin complaint. See Gregory, 355 F.3d at 1279-80.

      Claims arising from Basel’s termination, however, did not grow out of the

Earvin complaint. His termination constituted a discrete employment act of which

he received notice after filing the Earvin complaint, and, as a result, Basel was

required to first present his termination claims to the Navy despite his previous filing.

See Morgan, 536 U.S. at 114; Ray, 626 F.2d at 442-43; 29 C.F.R. § 1614.105(a)(1).

Since Basel never presented either of his termination claims to the Navy, he did not

properly raise them before the district court. See Brown, 440 F.3d at 1262; 29 C.F.R.

§ 1614.105(a)(1), 1614.107(a)(2).

      Having failed to present his termination claims to the Navy, Basel cannot rely

upon the district court’s ancillary jurisdiction to save his retaliation claim. Each of

his judicial claims remained unexhausted, see 29 C.F.R. § 1614.105(a)(1), thereby

leaving no claims before the district court that were properly raised. Under these

circumstances, no judicial claims existed to which Basel’s retaliation claim could

attach in order to invoke the district court’s ancillary jurisdiction. See Hargett, 60

F.3d at 761-62; Baker, 856 F.2d at 169.

      Nor did the district court clearly err in denying Basel equitable relief. Even if

equitable tolling would have permitted Basel to pursue his administrative remedies

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in an untimely manner, it cannot excuse his failure to initiate the administrative

process altogether. See Grier, 799 F.2d at 724. Basel’s arguments that the Navy

interfered with his pursuit of his termination claims in support of equitable estoppel

are similarly without merit. It is unclear how the Navy’s failure to process the Earvin

complaint, which pre-dated Basel’s notice of his termination and did not include any

claims arising therefrom, interfered with his ability to present his termination claims

to the Navy or otherwise placed him in a worse position as to those claims. Likewise,

Basel demonstrated his personal awareness of the administrative process through his

filing of the Earvin complaint, and he had the same 45-day period to raise his

termination claims as any other claimant. See Carter v. West Pub. Co., 225 F.3d

1258, 1266 n.2 (11th Cir. 2000) (noting that the plaintiff was aware of her procedural

rights to file an administrative charge as demonstrated by her prior visit to the

EEOC); 29 C.F.R. § 1614.105(a)(1). Although he argues that the Navy denied him

an extension of the 45-day period, Basel never alleged or presented any evidence that

he was entitled to such an extension. See 29 C.F.R. § 1614.105(a)(2). Thus, Basel

did not show reasonable reliance on the Navy’s misconduct in such a manner that

changed his position for the worse so as to justify equitable estoppel. See Browning,

120 F.3d at 226; Ferry, 954 F.2d at 661-62.




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      In short, Basel failed to administratively exhaust his termination claims, see 29

C.F.R. § 1614.105(a)-(d); 29 C.F.R. § 1614.106(a)-(c), and he was not entitled to

equitable relief from his failure to do so. Accordingly, the district court properly

granted the Navy’s motion to dismiss, and we affirm.

      AFFIRMED.




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