                   Case: 10-15086          Date Filed: 07/12/2012   Page: 1 of 29

                                                                               [PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 10-15086
                                      ________________________

                                D.C. Docket No. 1:08-cv-02686-RWS



CRISTOBAL D. RAMIREZ,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff - Appellant,

                                                 versus

SECRETARY, U.S. DEPARTMENT OF
TRANSPORTATION,

llllllllllllllllllllllllllllllllllllllll                             Defendant - Appellee.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________
                                        (July 12, 2012)

Before EDMONDSON and WILSON, Circuit Judges, and VINSON,* District
Judge.

         *
         Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
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VINSON, District Judge:

      The plaintiff in this Title VII employment discrimination case, Cristobal D.

Ramirez, represented himself in district court. He survived summary judgment (in

part) and proceeded to trial. At the conclusion of the presentation of his evidence,

the defendant, Secretary of the U.S. Department of Transportation (“DOT), orally

moved for judgment as matter of law pursuant to Rule 50(a) of the Federal Rules

of Civil Procedure. The district court granted the motion on the sole ground that

Ramirez’s claim was time-barred because he did not contact an Equal Employment

Opportunity (“EEO”) Counselor within forty-five days of the alleged

discrimination. Ramirez, still appearing in the case pro se, appealed to this court,

where he was appointed counsel. Upon review, and with the benefit of counseled

briefing and oral argument, we reverse.

                                          I.

      The administrative requirements and legal standards for maintaining a Title

VII case feature prominently in this appeal and overlap the facts and procedural

history of the case. Therefore, to put the case in its proper context, we will begin

by briefly discussing those administrative requirements and legal standards.

      Title VII prohibits employers --- including the federal government --- from

discriminating against employees on the basis of race or national origin. 42 U.S.C.

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§ 2000e-16(a). Before bringing a Title VII action in court, a federal employee

must first seek relief from the agency where the alleged discrimination occurred.

Brown v. General Servs. Admin., 425 U.S. 820, 832, 96 S. Ct. 1961, 48 L. Ed. 2d

402 (1976). “This requirement is not a technicality; ‘[r]ather, it is part and parcel

of the congressional design to vest in the federal agencies and officials engaged in

hiring and promoting personnel primary responsibility for maintaining

nondiscrimination in employment.’” Grier v. Secretary of Army, 799 F.2d 721,

724 (11th Cir. 1986) (quoting Kizas v. Webster, 707 F.2d 524, 544 (D.C. Cir.

1983)). In accordance with the congressional design, the Equal Employment

Opportunity Commission (“EEOC”) has adopted regulations setting forth the

procedure that employees must follow in presenting discrimination claims to

federal agencies. See 29 C.F.R. §§ 1614.101 et seq. These regulations provide,

inter alia, that an aggrieved employee must “initiate contact with [an EEO]

Counselor within 45 days of the date of the matter alleged to be discriminatory . . .

.” 29 C.F.R. § 1614.105(a)(1). The purpose of this counselor-contact requirement

is to allow the agency an opportunity to investigate the claim internally and “try to

informally resolve the matter.” See 29 C.F.R. § 1614.105(a). “Generally, when the

claimant does not initiate contact within the 45-day charging period, the claim is

barred . . . .” Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir. 2008). However,

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the 45-day time limit is not jurisdictional; rather, it functions like a statute of

limitations, and, “like a statute of limitations, [it] is subject to waiver, estoppel,

and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102

S. Ct. 1127, 71 L. Ed. 2d 234 (1982). The regulations thus provide that the 45-day

rule “shall” be extended if the employee “was not notified of the time limits and

was not otherwise aware of them . . . .” See 29 C.F.R. § 1614.105(a)(2).

      If informal attempts to resolve the complaint are unsuccessful, the employee

may file a formal complaint with the agency. 29 C.F.R. § 1614.106. If the agency

dismisses the complaint for failure to comply with any of the time limits provided

for in the regulations, including the 45-day rule [29 C.F.R. § 1614.107(a)(2)], the

agency will issue a final decision and that decision may be appealed to the EEOC.

29 C.F.R. § 1614.110(b). A decision by the EEOC on appeal is final unless either

party files a motion for reconsideration within 30 days. 29 C.F.R. § 1614.405(b).

Throughout the administrative process, the employee must provide all relevant and

available information so the agency and the EEOC have notice of the claim being

pursued and can properly investigate and consider it. See Crawford v. Babbitt, 186

F.3d 1322, 1326 (11th Cir. 1999).

      An employee who has completed the administrative process and obtained an

unfavorable final decision may bring a Title VII action in district court, where he

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is entitled to a de novo review of his complaint. See Moore v. Devine, 780 F.2d

1559, 1562 (11th Cir. 1986). To prevail, the employee must first establish a prima

facie case and show that (1) he belongs to a protected class; (2) he suffered an

adverse job action; (3) the employer treated similarly situated employees

(“comparators”) outside his protected class better; and (4) he was qualified for the

job. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).

                                               II.

       We review the grant of a Rule 50(a) motion for judgment as matter of law

de novo. Johnson Enterprises of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d

1290, 1308 (11th Cir. 1998). In doing so, we view the evidence in a light most

favorable to the non-moving party, and we will affirm only if “‘reasonable people

could not arrive at a contrary verdict.’” See id. (quoting Pulte Home Corp. v.

Osmose Wood Preserving, Inc., 60 F.3d 734, 739 (11th Cir. 1995)).

       The following facts are derived from the evidence admitted during the trial

and from Ramirez’s deposition testimony. Consistent with the foregoing standard

of review, these facts are viewed in the light most favorable to Ramirez.1

       1
         Selected portions of Ramirez’s deposition testimony were referenced to, and quoted, by
both sides during trial, but the transcript was not actually admitted into evidence. We recognize
that motions for judgment as matter of law must be decided at trial (and reviewed on appeal) “on
the evidence that has been admitted.” See Bill Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S.
731, 745 n.11, 103 S. Ct. 2161, 76 L. Ed. 2d 277 (1983). Thus, to be clear, we use certain of the
facts taken from Ramirez’s deposition testimony (but which were not referenced at trial) merely

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       Ramirez is Hispanic and was born in the Dominican Republic. He

immigrated to the United States in or about 1977 (after graduating from high

school) and joined the Army the same day that he arrived. While in the Army, he

was an infantryman and served several tours overseas. In 1981, after sustaining

duty-related injuries, he was assigned to the Robert Gray Army Radar Tower in

Fort Hood, Texas, where he became an air traffic controller. The Fort Hood tower

is a large and very complex “joint-use” radar facility that handles both civilian and

military air traffic. After being honorably discharged from the Army in December

1985, Ramirez was classified as a disabled veteran and immediately hired by the

United States Department of Defense (“DOD”) as a civilian air traffic controller, a

position that he still holds today. He was assigned to Fort Hood, where he worked

in the same building as he had in the military. About ten years later, in 1996, he

began to apply for air traffic controller positions within the Federal Aviation

Administration (“FAA”), an agency of the DOT. He wanted a position in Miami so

that he could be closer to his family.

       In May 2000, the DOT issued an announcement that it was hiring air traffic

controllers in Miami. Ramirez applied for the job under this announcement, which

the parties have referred to throughout this litigation as the “A215 announcement,”


for background --- not evidentiary --- purposes.

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and he was put on the “selection list.” At the time he applied for this job, Ramirez

was not aware that there was a separate announcement for essentially the same air

traffic controller position at the Miami facility, which has been generally referred

to throughout this case as the “VRA12 announcement.”2

       Several months passed and no one from the DOT contacted Ramirez about

his application. After waiting months but getting no response, he called the DOT.

He spoke with someone there who told him that there was a “hiring freeze” while

the agency was “waiting on funding.” Undeterred, Ramirez continued to call the

DOT every month to check on the status of his application and provide updated

performance evaluations when they became available. In April or May 2001, he

learned from a friend who worked as a trainer at the Miami facility that there was

no hiring freeze and, in fact, that new employees were being hired “all the time.”


       2
          The distinction between these two announcements is a significant issue in this case and
will be discussed further infra. We emphasize here, however, as noted in the text above, that the
announcements were essentially for the same job, and they shared the same “KG” (these letters
refer to the location and career level/pay band, respectively). Earlier in the case --- most notably,
at the summary judgment stage --- there was a lot of confusion and disagreement about whether
the announcements were for two different positions. On the first day of trial, the parties told the
district court that they now “absolutely” agreed that the announcements were just “two vehicles
to get to the same place” and, therefore, “it doesn’t matter which announcement . . . [Ramirez]
would have been selected from, [he] would have received the same position, the air traffic
controller KG position.” The only difference in the announcements appears to be that the A215
announcement (with higher experience and skills requirements) was open to anyone who chose
to apply, whereas the VRA12 announcement (with essentially entry-level skills requirements)
was a Veterans Readjustment Appointment, but the underlying positions were, according to the
parties, “the same position.”

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Upon hearing this, Ramirez contacted the Hispanic Coalition of Federal Aviation

Employees (“Coalition”) --- a group within the FAA that advocates for minorities

at the agency --- and asked them to check on his application. Shortly thereafter, the

Coalition discussed the matter with agency officials during a previously-scheduled

Southern Region Managers’ meeting in June 2001.

      In or about September 2001, three months after the Coalition spoke on his

behalf, the DOT offered Ramirez an air traffic controller position in Miami, and he

quickly accepted. There were a lot of pre-employment forms and paperwork sent

along with the contract, and he did not notice at the time that the offer was made

under the VRA12 announcement, and not the A215 announcement. Nor did he

realize (until several days later, when he looked more closely at the paperwork)

that the salary was lower than he expected. Indeed, the offer was for less than he

was earning at the DOD. Ramirez researched the applicable pay rules and spoke

with people in the Finance Department and Human Resources. Based on what he

read and what they told him, he became convinced that the DOT had incorrectly

calculated his salary. Over the next several months --- before he started the new

position --- he and Stan Wayland (the DOT official responsible for processing his

application) spoke numerous times about the salary. Ramirez repeatedly asked

(“practically begg[ed]”) Wayland to look into the issue and recalculate his salary,

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but Wayland kept telling him “your pay is set” and “that’s what your pay is going

to be.” Because he was not satisfied with the pay, Ramirez wrote to Wayland on

July 12, 2002, declining the position.3

       Even after he turned the job down, Ramirez continued to research the pay

rules that applied to air traffic controllers transferring to the DOT from the DOD.

In August 2003, about one year after he declined the position, he learned via a

Freedom of Information Act inquiry that several non-Hispanic air traffic

controllers who transferred from the DOD received the higher salary that he was

denied. The next month, September 2003, Ramirez contacted an EEO Counselor

and complained that he had been discriminated against with respect to his pay (the

“pay claim”). When the informal grievance process did not resolve his claim, he

filed an official complaint. The DOT dismissed the complaint as it concluded that

Ramirez did not contact the EEO Counselor within 45 days of when he should

have first suspected discrimination, which the DOT found was July 2002 (i.e.,

when he complained to Wayland about the pay and declined the position).

Ramirez appealed to the EEOC on the ground that he did not know about the 45-


       3
          Ramirez was also unhappy with the job offer because it required him to attend training
classes that he believed were beneath his experience level. He testified during trial that this was
another reason he declined the position, because they were “sending me to learn how to become
an air traffic controller, back to the school. I was already in a ten-speed bike, now they want me
to go to a tricycle, baby tricycle.”

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day time limit. The EEOC agreed with Ramirez. It expressly found that there was

“nothing in the record to show that [Ramirez] either knew or should have known

the time limits for initiating the EEO process following a discriminatory event.”

See Ramirez v. Department of Transp., Appeal No. 01A41793, 2004 WL 1396966,

at *2 (E.E.O.C. June 9, 2004). As this was tantamount to finding that the claim

was timely, the EEOC held that dismissal “for untimely EEO Counselor contact

[was] improper” and it remanded the case to the DOT for further proceedings. Id.

The DOT did not appeal this ruling or move for reconsideration; instead, it began

an investigation into the merits of Ramirez’s pay claim and found that there was

no discrimination. It was at some point during this administrative process that

Ramirez discovered that the position the DOT had previously offered to him was

made under the VRA12 announcement, and not the A215 announcement. As will

be further discussed infra, and as indicated in note 2, supra, the misunderstanding

about these two positions is highly significant in this case and led to considerable

confusion in the district court.

      While his complaint was on remand, Ramirez requested a hearing before an

Administrative Law Judge (“ALJ”), and he sought leave to amend his complaint to

include a claim regarding his not being offered the position pursuant to the A215

announcement (the “non-selection claim”). The ALJ granted Ramirez’s request for

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a hearing, but denied as untimely the request to amend his complaint to include the

non-selection claim.4 After the hearing, the ALJ concluded that Ramirez had not

established a prima facie case with respect to the pay claim. Ramirez appealed to

the EEOC, which affirmed the ALJ initially, in 2007, and on reconsideration, in

2008. See Ramirez v. Department of Transp., Appeal No. 0120055306, 2007 WL

556789 (E.E.O.C. Feb. 15, 2007), reconsideration denied by, No. 0520070364,

2008 WL 382192 (E.E.O.C. Feb. 4, 2008).

       Ramirez thereafter timely filed a civil action against the DOT in the United

States District Court for the Western District of Texas, pro se, alleging race and

national origin discrimination. On the DOT’s motion, the case was transferred to

the Northern District of Georgia, where (after discovery closed) the DOT moved

for summary judgment. It argued, among other things, that summary judgment was

appropriate on the non-selection claim since Ramirez did not contact an EEO


       4
          The ALJ denied Ramirez’s request to amend his complaint on the ground that Ramirez
did not contact an EEO Counselor within forty-five days of when he knew or reasonably should
have known of the factual basis for his non-selection claim. We agree with Ramirez that it was
error for the ALJ to apply the 45-day rule to his motion to amend. The regulations provide that,
after a hearing is requested, a complainant may move to amend his complaint to include “issues
or claims like or related to those in the complaint.” 29 C.F.R. § 1614.106(d). It is now apparent
that the non-selection claim was inarguably related to the pay claim. The EEOC has explained
(and case law confirms) that a claim “like or related to” the original claim is not subject to the
45-day counseling requirement. See, e.g., Weber v. Battista, 494 F.3d 179, 183 (D.C. Cir. 2007)
(explaining that if a new claim is related to the original claim “‘[t]here is no requirement that the
amendment be subject to counseling’”) (quoting Core v. Brownlee, Appeal No. 01A34550, 2004
WL 189570, at *1 (E.E.O.C. Jan. 23, 2004)).

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Counselor within 45 days of being on notice of a possible discrimination claim. As

for the pay claim, the DOT assumed at the time that the A215 and VRA12

announcements were for two different jobs [see note 2, supra]; it believed the

former was for an air traffic controller specialist position (which carried a higher

salary), while the latter was for a “developmental” position (which carried a lower

salary). The DOT therefore insisted that there was a reason why Ramirez was

offered less pay: “he was not an A215 selectee, but rather a VRA12,

developmental selectee.”

       The DOT’s summary judgment motion was referred to the Magistrate Judge

on the case. The Magistrate Judge issued a 33-page Report and Recommendation

(“Report”). The Report recommended that summary judgment be denied on the

non-selection claim because there were disputed issues of material fact as to when

Ramirez should have first known that he had a non-selection discrimination claim

under the A215 announcement and, also, whether he had even been aware of the

45-day rule.5 With respect to the pay claim, the Report noted that to the extent

Ramirez was alleging that his salary was incorrectly calculated based on unlawful



       5
        Although the Report suggested that there was a disputed issue of fact as to whether
Ramirez knew about the 45-day rule, the Magistrate Judge quoted directly from the EEOC’s
ruling which had found “‘nothing in the record to show that [he] either knew or should have
known the time limits for initiating the EEO process following a discriminatory event.’”

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discrimination, there was no evidence in the record to support the claim. However,

inasmuch as Ramirez was alleging that he had been selected for the lower-paying

“developmental” position due to his race or national origin, the Report concluded

“he may be able to establish a discriminatory pay claim.” The Magistrate Judge

thus recommended that summary judgment be granted against Ramirez on the pay

claim, to the extent the claim was not “intertwined with [the] non-selection claim.”

The district court thereafter adopted the Report, and the case proceeded to a two-

day jury trial.

       As previously noted, by the time the case got to trial, the parties had come to

agree that the A215 and VRA12 announcements were merely different notices for

the same position, and the DOT advised the district judge of this “newly

presented” issue on the first morning of trial. This appears to have changed the

complexion of the entire case, as it impacted both Ramirez’s primary claim (that

the DOT did not offer him the particular position that he had applied for), and the

DOT’s defense (that Ramirez was offered lower pay because he was hired for a

“developmental” position). It thus called into question the summary judgment

ruling, as it arguably undercut the basis for the prior dismissal of the pay claim.

This caused significant confusion about the claims that still remained viable,

particularly in light of some language in the summary judgment order (that the

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district court conceded was “a little vague”) which suggested that the two claims

were “intertwined.” The DOT acknowledged that its former position on the job

announcements caused “a lot of confusion,” and it “apologize[d] for that.” The

DOT asked the district court for “some additional guidance” on what claims

remained in the case and what the jury would be asked to decide. The district

judge replied that throughout the case, and in preparing for trial, he had been

“struggling” with “a lot of smoke” caused by the confusion over the

announcements and their impact on Ramirez’s claims.6 He then addressed Ramirez

directly:

               [T]he claim that is still in this case, based upon the
               rulings that have been made to this point, is a claim that
               you were denied the opportunity for this position based
               upon race or national origin. If they show, which it
               appears we all [now] agree, that you were offered . . .
               that position, then that destroys any claim of
               discrimination in terms of the offer of the position.

                                               ***

               So then what it does leave open is the question of why
               did they calculate the pay at this rate instead of giving
               you the benefit that you contend you’re entitled to

       6
          We understand the district court’s confusion as the issue is still unclear, even on appeal.
On one hand, as noted, the parties expressly and “absolutely” agreed at the outset of trial that the
two announcements were merely different notices for the same job. On the other hand, Ramirez
testified on direct examination that the position advertised under the VRA12 announcement was
“for less money” than the A215 announcement, and it required a considerable amount of basic
training at the FAA academy that the A215 announcement did not.

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             coming out of the Department of Defense? Did they
             properly calculate the pay that you would receive in this
             position based on your experience, based upon the fact
             that you already had a position in the Department of
             Defense? That is the question that it seems to me is in
             your mind that you’ve been trying to get an answer to
             and that you are arguing about, but that is a question that
             is not any longer in the case.

Ultimately, the judge explained that while he believed the pay claim was no longer

in the case, and while the non-selection claim was all but “destroy[ed]” because

the parties now agreed that the DOT offered Ramirez the position that he was

seeking, Ramirez had one claim left: “The fact that they passed over you, while

they may have offered you the job later, they passed over you . . . [and offered] the

positions to others when you should have gotten it, that is the case that is still

here[.]” It was this very narrow and specific “delay in hiring” claim, as the district

court called it, that the jury would be called upon to consider.

      During the trial, Ramirez introduced several documents into evidence that

he had obtained from the DOT which, he believed, showed “exactly what

happened as far as the position and being overpassed.” These documents reflected

that although Ramirez was included on the original selection list for the position

under the A215 announcement, his name (and only his name) was “scratched” out.

The documents further showed that there were several non-Hispanic applicants



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who were left off the original selection list and not recommended for hire

specifically because they lacked the necessary qualifications and experience

(particularly with radar). And yet, they were all hired before Ramirez.

      At the conclusion of Ramirez’s case, the DOT orally moved for judgment as

a matter of law under Rule 50(a). As grounds for the motion, the DOT made three

arguments: (1) Ramirez did not establish a prima facie case on the “delay in

hiring” (as the district judge had characterized it) claim because he “has not

offered any comparators”; (2) he failed to adequately exhaust his administrative

remedies on the “delay in hiring” claim as there was no evidence “that [claim] was

reviewed or investigated below at the EEO”; and (3) his contact with the EEO

Counselor in September 2003 was “well outside the 45-day period,” as he knew or

reasonably should have known of the discrimination back in 2001.

      In considering the DOT’s first argument, the district judge referenced the

evidence at trial which showed that certain of the applicants who were selected

ahead of Ramirez “couldn’t pass the training because they had never even been

around radar before.” The Rule 50(a) motion was thus denied on the first ground

because, as the district judge explained, “[t]here’s evidence here that there were

people who were grossly unqualified who were then selected ahead of him, [they]

couldn’t pass the training because they didn’t have the background they needed,

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and [there is] evidence that they were white [or] non-Hispanic.” The district judge

proceeded to consider and reject the DOT’s second argument as well, finding that

Ramirez adequately exhausted his administrative remedies as “[i]t is my view that

the claim of failure to hire is broad enough to have put the defense on notice of a

delay in hiring claim.” After stating that “the problem is timing,” the district judge

then considered the DOT’s third and final argument. He told Ramirez from the

bench:

             [Y]ou were on notice [in 2001] that hiring was taking
             place --- that you had been misled by someone. You
             were on notice that it’s time to inquire. Someone has told
             you there’s a hiring freeze. Your buddy tells you, there is
             no hiring freeze, they’re hiring folks left and right . . .
             [yet] you did not file a claim until 2003. You’re
             supposed to file within 45 days. That’s not a timely
             claim.

The district court thus granted the DOT’s motion and entered judgment as matter

of law in its favor, solely and exclusively “on a timeliness basis.”

                                         III.

      Ramirez appeals the district court’s judgment. He contends that he was not

aware of the 45-day rule at the outset of the administrative process, as the EEOC

previously found; and since the DOT did not challenge the EEOC’s finding on that

point either factually or legally, the DOT was bound by that finding and waived



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the right to argue untimeliness.7 Before addressing this argument, however, we

must consider the DOT’s request that we not reach it because Ramirez did not

raise the argument before the trial judge in response to the DOT’s oral Rule 50(a)

motion. The DOT is essentially arguing that Ramirez has “waived this waiver

argument.”

A. Waiver Rule

       It is well-settled that we will generally refuse to consider arguments raised

for the first time on appeal. Federal Deposit Ins. Corp. v. 232, Inc., 920 F.2d 815,

817 (11th Cir. 1991); see also United States v. Godoy, 821 F.2d 1498, 1504 (11th

Cir. 1987) (“The general rule, of course, is that an appellate court will not consider

a legal issue unless it was presented to the trial court.”). This rule applies, as here,

to waiver arguments that could have been raised in opposition to Rule 50 motions.

Cf. Howard v. Walgreen Co., 605 F.3d 1239, 1243-44 (11th Cir. 2010) (plaintiff

“forfeited his right to raise waiver on appeal” by not raising the argument in the

district court in response to Rule 50(b) motion for judgment as a matter of law).


       7
          Ramirez also contends that there was a factual dispute (which should have been left for
the jury to decide) regarding when he should have first learned that his non-selection was due to
discrimination, and whether his EEO Counselor contact was timely thereafter. Thus, while the
DOT argues (and the district court agreed) that Ramirez should have realized he had a potential
claim as early as 2001 (when he learned there was no hiring freeze), Ramirez argues that he did
not know that he had a potential claim until August 2003 (when he learned via the Freedom of
Information Act that non-Hispanic applicants were offered the job at the salary he was denied).

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Our reluctance to consider waived legal arguments is “merely a rule of practice,”

however, and is not absolute. Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d

355, 360 (11th Cir. 1984). The decision of whether to consider an argument that

was not raised in the district court below is left primarily to the discretion of the

appellate court, to be exercised on the particular facts of the individual cases. Id.

As we have explained:

             In the exercise of that discretion, appellate courts may
             pass on issues not raised below if the ends of justice will
             best be served by doing so. Specifically, the court will
             consider an issue not raised below in the district court if
             it involves a pure question of law, and refusal to consider
             it would result in a miscarriage of justice.

Caban-Wheeler v. Elsea, 904 F.2d 1549, 1557 (11th Cir. 1990), abrogated on other

grounds by, St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125

L. Ed. 2d 407 (1993). Thus, where the party seeking consideration of an argument

not raised in the district court “has raised no new factual questions” and the record

“supports its legal argument,” we have held that “refusal to consider that argument

could result in a miscarriage of justice.” Roofing & Sheet Metal Servs., Inc. v. La

Quinta Motor Inns, Inc., 689 F.2d 982, 990 (11th Cir. 1982); Federal Deposit Ins.

Corp., 920 F.2d at 818 (holding same). We have also considered arguments not

raised in the court below “‘where the interest of substantial justice is at stake’”;



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“‘where the proper resolution is beyond any doubt’”; and where the argument at

issue involves “significant questions of general impact or of great public concern.”

Dean Witter Reynolds, Inc., 741 F.2d at 361 (multiple citations omitted).

      On the specific facts of this case, it could result in a “miscarriage of justice”

if we refused to consider Ramirez’s argument. While we recognize that being pro

se does not, by itself, excuse a failure to raise an argument below [see

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (noting pro se

pleadings are viewed under a “less stringent standard than pleadings drafted by

attorneys . . . [but] issues not raised below are normally deemed waived”)], it

would defeat the “interests of substantial justice” to apply the waiver rule to a pro

se litigant on an issue that was decided in his favor both in the administrative

proceedings --- which then became final as a matter of law --- and on summary

judgment in the civil case, merely because he failed to orally re-contest the issue (a

third time) in response to the defendant’s mid-trial Rule 50(a) motion for judgment

as matter of law. In light of this particular background, and because we conclude

that Ramirez’s argument is purely a legal one that does not raise new factual

questions and is amply supported by the record and case law (as detailed below),

we will exercise our discretion and consider the argument to avoid a possible

miscarriage of justice.

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B. Discussion

       As previously discussed, when Ramirez filed his administrative complaint,

the DOT initially dismissed the complaint as untimely on the ground that Ramirez

did not make his initial contact with an EEO Counselor within 45 days. On appeal

to the EEOC, Ramirez argued that he “did not know and was not aware of the 45-

day time limit in which he was required to contact an EEO Counselor to begin the

EEO complaints process.” The EEOC agreed and held that dismissal on timeliness

grounds was improper, as there was “nothing in the record to show that [Ramirez]

either knew or should have known the time limits for initiating the EEO process

following a discriminatory event.” Significantly, the DOT did not challenge this

ruling. Rather, it accepted Ramirez’s complaint, investigated his allegations, and

denied him relief on the merits. On these facts, we conclude that the DOT and the

district court were bound by the EEOC’s timeliness finding.8


       8
          The DOT contends that while the EEOC did make a finding regarding timeliness, “that
finding only related to [Ramirez’s] disparate pay claim” (which was the claim before the EEOC
at that time), and “not the [non-selection] claim that was before the district court” at the time of
trial. The precise nature of the claim before the EEOC at that specific point in time is irrelevant,
however, particularly since (as the district court observed) the two claims are “intertwined.” See
also note 4, supra. What matters is whether Ramirez knew about the 45-day time limit when the
administrative process began. Id. The EEOC found --- and the district court also confirmed on
summary judgment --- that he “‘did not know and was not aware of the 45-day time limit in
which he was required to contact an EEO Counselor to begin the EEO complaints process.’” If
he was unaware of the 45-day rule, it necessarily follows that when the administrative process
began he was unaware that he had to bring any claim (pay claim or non-selection claim) within
its time limit.

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       The Second Circuit confronted this issue on nearly identical facts. In

Briones v. Runyon, 101 F.3d 287 (2d Cir. 1996), a postal employee, Nicanor

Briones, filed an informal complaint alleging discrimination. On December 11,

1991, the Postal Service dismissed the complaint “as untimely based on his failure

to request EEO counseling within thirty days of the alleged discriminatory

incident.” Id. at 289.9 The employee appealed to the EEOC, which vacated and

remanded because there was no evidence that the Postal Service “had informed

him of EEO procedures.” Id. The Postal Service “neither appealed the EEOC’s

determination nor refused to proceed, but, rather, began its investigation” and

eventually denied the claim on its merits. Id. at 289-91. When the employee

brought a Title VII case in federal court, “[t]he Postal Service raised the same

argument that it had raised in its original final agency decision of December 11,

1991: that Briones had failed to contact an EEO counselor within thirty days of the

alleged discriminatory incident.” Id. at 289. The district court agreed and granted

judgment for the Postal Service.

       In reversing, the Second Circuit relied heavily on Girard v. Rubin, 62 F.3d

1244 (9th Cir. 1995). The employee in that case, Norman C. Girard, filed a charge



       9
          The EEOC subsequently amended its regulations to extend the time limit from 30 days
to its current 45 days.

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of discrimination against his employer, the Internal Revenue Service (“IRS”). The

IRS denied it as untimely because the employee did not make contact with an EEO

Counselor within thirty days of the discriminatory event. The EEOC reversed that

finding and instructed the IRS to investigate the complaint. The IRS did not move

for reconsideration or to reopen, but rather it complied with the EEOC’s ruling and

conducted an investigation (which resulted in a finding of no discrimination). The

Ninth Circuit held in the ensuing civil action that because the EEOC’s unappealed

decision “was a final binding order on the IRS,” the IRS could not come into court

at a later stage and argue the same point; the court held that the IRS had waived its

right to re-contest the timeliness issue. Id. at 1247; accord id. (“The EEOC made a

final decision that Girard’s complaint was timely. The effect of the decision was to

waive the thirty-day filing requirement, and to require a determination of Girard’s

complaint on the merits. That decision was binding on the IRS.”).

      The Second and Ninth Circuits have thus held, on strikingly similar facts,

that “a governmental agency defendant may not have ‘a second bite at the apple’

by arguing lack of timely filing in federal court after failing to challenge an EEOC

determination that the complaint was timely filed.” Briones, 101 F.3d at 291

(quoting Girard, 62 F.3d at 1247). They have concluded that “[f]ollowing a pre-

investigation agency determination that a discrimination claim is untimely, an

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unappealed final EEOC determination ruling the filing timely is binding on the

parties and the court in a later-related Title VII action.” Briones, 101 F.3d at 292;

Girard, 62 F.3d at 1248 (“Once the EEOC determined that Girard was entitled to

pursue his discrimination claims the IRS was not entitled to ask a court to hold

otherwise. It was bound.”).

      Briones and Girard do not stand alone. Indeed, insofar as we can tell, the

Circuit Courts that have considered the issue have uniformly held that when an

agency finds that a complaint is timely, or when it fails to challenge an EEOC

finding of timeliness, it waives any subsequent objection on timeliness grounds.

See, e.g., Bruce v. United States Dep’t of Justice, 314 F.3d 71, 74 (2d Cir. 2002)

(“An agency waives a timeliness objection by . . . failing to appeal an EEOC

determination of timeliness.”); Munoz v. Aldridge, 894 F.2d 1489, 1495 (5th Cir.

1990) (“If an agency makes a specific finding during the administrative process

that the administrative complaint was timely, it cannot later defend against a civil

complaint by arguing that the administrative complaint was untimely.”) (citing

Henderson v. United States Veterans Admin., 790 F.2d 436, 441 (5th Cir. 1986)

(“In this case, the agency fully investigated the timeliness of the complaint, and

found a satisfactory reason for the delay. No more was required to fulfill the

statutory prerequisites to suit, and the district court need not have reconsidered the

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question of timeliness” as the agency cannot “simply raise[] an objection in court

that was mooted by [an] earlier unmodified finding.”)); see also Ward v. Califano,

443 F. Supp. 89, 90-91 & n.2 (D.D.C. 1977) (stating that defects caused by failure

to contact EEO Counselor within 30 days “essentially become irrelevant” when

agency finds the complaint to be untimely; that decision is reversed by the EEOC;

the agency proceeds to investigate the claim; and the employee timely files a civil

action); accord Grier v. Snow, 2006 WL 5440387, at *12 (N.D. Ga. Mar. 15,

2006) (holding on facts “nearly indistinguishable from those in Briones and

Girard” that the agency’s “binding determination regarding timeliness without

objection from the IRS prevents the IRS from arguing that Grier’s complaint was

untimely in this Court”), aff’d, 206 F. App’x. 866 (11th Cir. Oct. 26, 2006).

      We agree with and adopt the reasoning of the foregoing cases, particularly

Briones and Girard. In doing so, we recognize that we have previously criticized a

portion of the Girard decision in Ellis v. England, 432 F.3d 1321 (11th Cir. 2005).

However, we did so only to the extent that Girard allowed “fragmented review” of

an administrative decision. The plaintiff in Ellis argued that the EEOC’s favorable

finding on liability should not be reviewed de novo, but that he was “entitled to a

de novo review (by a jury) [on] the question of damages.” See id. at 1325. Girard

allowed such review, but we did not (and do not) agree with Girard’s analysis on

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that point. See id.

       That is not the situation here. Ramirez is not seeking fragmented review of

the 2007 EEOC decision that denied his claims. To be sure, he is challenging and

seeking de novo review of the entirety of that decision. What he is doing is asking

that we enforce, as binding, the EEOC’s earlier and unappealed procedural ruling

on the timeliness of his initial contact with the EEO Counselor (from which all the

“intertwined” claims in this case sprang). That ruling found that Ramirez’s initial

contact with the EEO Counselor in September 2003 was not untimely because ---

and this was factually uncontested at the administrative level, at trial, and during

this appeal --- there is no evidence in the record that Ramirez knew about the 45-

day time limit at the outset of this matter.10

       There is a sound rationale and logic in holding that if the EEOC determines

that a discrimination claim is timely (or, at least, that there is a valid and adequate



       10
          For example, as Ramirez notes in his brief, this is not the sort of case where there was
evidence of prominently displayed signs or handbooks that informed employees of the 45-day
rule. See Gaillard v. Shinseki, 349 F. App’x. 391, 392-93 (11th Cir. 2009) (employee had notice
of 45-day rule where there was evidence of a poster on a bulletin board that described the 45-day
time period for contacting an EEO Counselor); accord Harris v. Gonzales, 488 F.3d 442, 445
(D.C. Cir. 2007) (identifying “posters, employee handbooks, orientation sessions, etc.” as the
means by which a federal agency may put employees on notice of the 45-day rule); Bailey v.
United States Postal Serv., 208 F.3d 652, 655 (8th Cir. 2000) (employer training program and
poster displayed at workplace made employee aware of 45-day rule). The DOT has made no
attempt in this case to argue that Ramirez knew or should have known about the 45-day rule.
Indeed, it implicitly conceded in the briefing and at oral argument that he did not.

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reason to excuse its untimeliness), and the agency then accepts that determination

and proceeds to investigate and attempt conciliation of the claim, that should put

the timing issue to rest. As the former Fifth Circuit noted in Boudreaux v. Baton

Rouge Marine Contracting Co., 437 F.2d 1011 (5th Cir. 1971):

             The EEOC is the agency upon which the statute places
             the burden of determining whether a charge has been
             timely filed, so as to permit it to investigate and attempt
             to conciliate the charge in accordance with the statutory
             scheme. . . . Where the EEOC has once determined that a
             charge was timely . . . , and has actually entered into a
             conciliation attempt, it does not seem particularly in
             keeping with the congressional intent that the timeliness
             of the filing of the EEOC charge should be open to
             reconsideration by the court, when, often years or many
             months afterward, a suit is brought because conciliation
             has failed.

Id. at 1014 n.6.

      Because the EEOC found that there was a satisfactory reason for Ramirez’s

delay in making initial contact with the EEO Counselor, and because the DOT did

not challenge that finding, but, instead, undertook investigation and conciliation,

the DOT and the district court were bound by the EEOC’s finding. As our ruling

on this issue is dispositive, we need not consider the other argument that Ramirez

makes on appeal, see note 7, supra, as it concerns his alternative position that his




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initial contact with the EEO Counselor was timely.11

                                                IV.

       At bottom, this case involves a very familiar and oft-seen fact pattern: an

unsuccessful job applicant brings a lawsuit against an employer, alleging that he

was passed over for the position by lesser qualified people outside his protected

class. While at first blush the case would seem to be simple and straightforward,

upon closer review, as illustrated above, it is anything but. There are, inter alia,

uncertainties and ambiguities about the two positions at issue; what was resolved

at summary judgment; and what claim the jury was being called upon to decide.

What is clear, however, is that it was error for the district court to rule as a matter

of law on the DOT’s mid-trial motion that Ramirez’s administrative charge was

untimely, given that the EEOC had previously determined it was timely.

       As the Girard court noted: “When a government employee seeks to pursue a

claim of discrimination under Title VII . . . the government cannot be at war with

itself. Protean though it may sometimes be, it cannot in its EEOC form say that the

       11
          To be clear, we emphasize once again that our decision is not based merely on the fact
that the DOT processed and investigated Ramirez’s discrimination complaint. As Briones and
Girard (and several of the other cases cited above), have explained, it is one thing for an agency
to accept a claim, conduct an investigation, and discover during the investigation that the claim is
untimely. It is quite another thing for the agency to expressly find that the claim is timely (or be
told by the EEOC that it is timely and not challenge that finding), investigate the claim, and then
challenge (or re-challenge) timeliness months or years later in a civil litigation. There is no
binding waiver in the former situation, but there is in the latter.

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employee may go forward, while in [another] form it says he may not.” Girard, 62

F.3d at 1248. Once the EEOC ruled that Ramirez could pursue his claim, and the

DOT did not appeal that ruling, the DOT “was not entitled to ask a court to hold

otherwise. It was bound.” Id.

      The district court’s judgment is, therefore, REVERSED, and this matter is

remanded for further proceedings.




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