                                  UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 18-1661


PHILLIP B. FAULCONER,

                   Plaintiff – Appellant,

             v.

CENTRA HEALTH, INC.,

                   Defendant – Appellee.



Appeal from the United States District Court for the Western District of Virginia, at
Lynchburg. Norman K. Moon, Senior District Judge. (6:17-cv-00023-NKM-RSB)


Argued: December 11, 2019                                     Decided: April 7, 2020


Before KING, HARRIS, and RUSHING, Circuit Judges.


Affirmed by unpublished opinion. Judge Harris wrote the opinion, in which Judge King
and Judge Rushing joined.


ARGUED: Terry Neill Grimes, TERRY N. GRIMES, ESQ., PC, Roanoke, Virginia, for
Appellant. Joshua Richard Treece, WOODS ROGERS, P.L.C., Roanoke, Virginia, for
Appellee. ON BRIEF: Brittany Michelle Haddox, GRIMES & HADDOX, P.C.,
Roanoke, Virginia, for Appellant. Frank K. Friedman, Victor O. Cardwell, WOODS
ROGERS, P.L.C., Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                            2
PAMELA HARRIS, Circuit Judge:

       Phillip Faulconer sued his former employer, Centra Health, under Title VII of the

Civil Rights Act of 1964, alleging that he was fired in retaliation for filing a charge of age

discrimination with the Equal Employment Opportunity Commission. The district court

granted summary judgment to Centra, holding that Title VII does not forbid retaliation for

making age discrimination claims, which are covered instead by a separate statute, the Age

Discrimination in Employment Act. We agree with the district court and affirm its

judgment in all respects.



                                              I.

       In July of 2016, Phillip Faulconer filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) against his then-employer, Centra

Health. In that charge – which we will refer to as the “July Charge” – Faulconer, who

worked in various departments at a hospital, described an incident in the blood bank in

which he was disciplined for failing to provide blood for patients when requested and for

clerical errors. But Faulconer believed, as he told the EEOC, that he actually had been

“disciplined and retaliated against because of [his] age (62), in violation of the Age

Discrimination in Employment Act [(“ADEA”)].”             J.A. 97.    The EEOC dismissed

Faulconer’s age discrimination charge and issued a right-to-sue letter. Faulconer did not

file suit within the prescribed 90-day period.

       In October of 2016, Centra terminated Faulconer for behavior it deemed

“threatening, intimidating, and disruptive” that occurred over multiple episodes in a single

                                              3
day. Faulconer v. Centra Health, Inc., 2018 WL 2187447, at *2 (W.D. Va. May 11, 2018).

According to Centra, Faulconer, who was displeased with repeated assignments to the same

medical department, aggressively confronted the schedule-maker and then followed her

into a manager’s office, where he continued to intimidate her. Then, during a follow-up

meeting with the manager and a human resources (“HR”) officer, Faulconer invaded the

manager’s personal space despite requests to stop. After consulting with Centra HR

executives, the manager and HR officer decided to fire Faulconer.

       Faulconer saw things differently, and in December of 2016, he filed the EEOC

charge – the “December Charge” – that would become the basis for this lawsuit. According

to Faulconer’s December Charge, it was the manager, not Faulconer, who had acted in a

threatening manner. Faulconer was fired, he claimed, not for inappropriate behavior, but

in retaliation for having filed his July Charge with the EEOC. Faulconer again alleged age

discrimination under the ADEA and, this time, referred as well to sex discrimination under

Title VII without providing any supporting information. The EEOC again dismissed

Faulconer’s charge and issued a right-to-sue letter.

       This time, Faulconer, represented by counsel, did file suit, in March of 2017,

alleging one claim: retaliation in violation of Title VII. The complaint described the blood-

bank incident that led to Faulconer’s July Charge, and recounted the filing of a “pro se []

Charge of Discrimination with the EEOC on July 26, 2016 alleging age discrimination and

retaliation.” J.A. 17. According to the complaint, Faulconer was terminated in retaliation

for that July Charge, which constituted “protected activity” for which he could not be

penalized under Title VII. J.A. 18.

                                             4
         On May 22, 2017, the district court entered a pretrial scheduling order under Federal

Rule of Civil Procedure 16(b), which requires time limits for amending pleadings and

provides that those limits “may be modified only for good cause and with the judge’s

consent.” Fed. R. Civ. P. 16(b)(4). Accordingly, the district court’s scheduling order

required that any motion to amend the complaint be filed within 45 days of the date of the

order, “[e]xcept for good cause shown.” J.A. 13. The district court later granted an

unopposed motion by Faulconer to file an amended complaint that made one minor

correction.

         Nearly a year later, in March of 2018 – months after the 45-day period for

amendments and after the close of discovery – Centra moved for summary judgment. In

support, Centra argued that Faulconer’s complaint suffered from a fundamental flaw: Title

VII prohibits retaliation for opposing activity made unlawful by Title VII, such as race or

sex discrimination, see 42 U.S.C. § 2000e-3(a), but does not prohibit retaliation for

opposing age discrimination. Both age discrimination and retaliation for opposing age

discrimination are, however, prohibited by a separate statute, the ADEA. See 29 U.S.C.

§ 623.     Accordingly, Centra contended, an EEOC age discrimination charge – like

Faulconer’s July Charge – cannot be the predicate for a Title VII retaliation claim.

         In response, Faulconer moved for leave to file a second amended complaint, in order

to add the ADEA as a statutory basis for his retaliation claim. Faulconer sought leave to

amend not under Rule 16(b), the source of the district court’s scheduling order, but rather

under Rule 15(a)(2), which provides that district courts should “freely give leave” to amend

pleadings when “justice so requires.” Fed. R. Civ. P. 15(a)(2). Faulconer acknowledged

                                               5
that his complaint alleged retaliatory discharge only under Title VII, not the ADEA, but

attributed that to a “scrivener’s error” that could be corrected without prejudice to Centra.

J.A. 323.

       The district court denied the motion. “[O]nce the deadlines in a scheduling order

have expired,” it explained, “the Rule 15 standard” – under which leave to amend is freely

given – “ceases to apply and a ‘good cause’ standard under Rule 16(b)(4) governs” instead.

J.A. 1687. The “touchstone of good cause,” the court continued, is “diligence.” Id. And

Faulconer could not meet that standard, the court concluded, given that the time to amend

had expired over eight months ago; that there was no explanation for the prolonged delay;

and that Centra already had moved for summary judgment, with briefing ongoing.

       Faulconer had another response to the potential defect in his complaint identified by

Centra: In his opposition to summary judgment, Faulconer for the first time contended that

his firing was in retaliation for objecting to sex discrimination, which is covered by Title

VII. Faulconer raised a new set of factual allegations to support that claim, asserting that

his supervisor at Centra, Markem Smith, sexually harassed women and made sexual (and

also racial) remarks in the workplace; that Faulconer had objected to that conduct; and that

those objections were the basis for the retaliatory discharge alleged in his complaint.

       The district court granted summary judgment to Centra. First, the court agreed with

Centra that Faulconer’s Title VII retaliation claim suffered from a fundamental defect:

“Faulconer’s complaint contended that he was actually terminated for making the age

discrimination allegation in July. Yet . . . Title VII does not forbid retaliation for making

age discrimination complaints. The ADEA does, but there is no ADEA claim in the case.”

                                             6
Faulconer, 2018 WL 2187447, at *1. The court elaborated, explaining that Title VII and

the ADEA protect against discrimination based on different characteristics and have

distinct anti-retaliation provisions, with “each . . . protect[ing] conduct related to its own

scope, not that of the other.” Id. at *3. As a result, Faulconer’s claim – that he was

retaliated against for objecting to age discrimination in his July Charge – could be

cognizable under the ADEA, but not under Title VII, as alleged in his complaint.

       The district court then turned to Faulconer’s new claim: that he actually was fired

not in retaliation for the July Charge of age discrimination, but for objecting to Smith’s

inappropriate workplace conduct, and especially his contact with women employees.

Nothing about that claim, the district court found, was reflected in or supported by

Faulconer’s complaint: The “sole theory” of the complaint is retaliation “based on the July

ADEA charge of discrimination,” and “[n]owhere does the complaint” even “mention

Smith’s alleged sexual harassment” or provide any supporting factual allegations. Id. at

*4. Moreover, the court continued, even if Faulconer’s new claim were considered on the

merits, it would fail because Faulconer could not show a causal connection between his

alleged objections to Smith’s conduct and his firing:          Smith was not involved in

Faulconer’s discharge, and Faulconer had not directed the court to any evidence that the

individuals who were involved had considered any complaints he had raised about Smith.

       Faulconer timely appealed.




                                              7
                                             II.

       Faulconer now challenges two of the district court’s orders: the order denying his

motion for leave to file a second amended complaint to add the ADEA as a basis for his

retaliation claim, and the order granting summary judgment in favor of Centra. We address

each in turn and affirm the district court’s judgment in full.

                                             A.

       We review the district court’s denial of Faulconer’s motion for leave to amend his

complaint for abuse of discretion. Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298

(4th Cir. 2008). Faulconer argues that the district court erred by denying his motion to

amend under Federal Rule of Civil Procedure 15(a)(2), which instructs courts to “freely”

allow amendments when “justice so requires.” Fed. R. Civ. P. 15(a)(2). Under that

standard, Faulconer contends, he should have been allowed to add the ADEA to his

complaint, because he then would have a basis for what could be a viable retaliation claim

and Centra would suffer no significant prejudice as a result.

       This argument is misplaced because – as the district court explained – Rule 15 and

its generous standard for amendments do not govern this case. Under Rule 16 of the

Federal Rules of Civil Procedure, the district court was required to enter a scheduling order

“limit[ing] the time to . . . amend the pleadings.” Fed. R. Civ. P. 16(b)(1), (3)(A). And

once it did so, that schedule could be “modified only for good cause and with the judge’s

consent.” Fed. R. Civ. P. 16(b)(4). So when Faulconer moved to amend his complaint,

more than eight months after the scheduling order’s deadline, the standard that applied was

not Rule 15 but rather the “good cause” requirement of Rule 16. See Nourison Rug, 535

                                              8
F.3d at 298 (“[A]fter the deadlines provided by a scheduling order have passed, [Rule 16’s]

good cause standard must be satisfied to justify leave to amend the pleadings.”).

       As the district court further explained, the “touchstone” of that good cause

requirement is “diligence.” J.A. 1687. “[I]f the movant has not been diligent in meeting

the scheduling order’s deadlines,” then other factors – including the presence or absence

of prejudice to the other party – generally will not be considered. Kmak v. Am. Century

Cos., Inc., 873 F.3d 1030, 1034 (8th Cir. 2017) (internal quotation marks omitted). Instead,

only diligent efforts to comply with the scheduling order can satisfy Rule 16’s good cause

standard. Id. If the moving party knew of the underlying conduct giving rise to a claim

but simply failed to raise it in an initial complaint, then the party cannot establish good

cause under Rule 16. See Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1248–49 (10th Cir.

2015). 1

       We see no abuse of discretion in the district court’s determination that Faulconer

cannot meet the Rule 16 good cause standard here. Indeed, Faulconer does not argue



       1
         This court has held several times in unpublished opinions that a finding of good
cause under Rule 16 depends on the diligence of the party seeking amendment. See, e.g.,
McMillan v. Cumberland Cty. Bd. of Educ., 734 F. App’x 836, 846 (4th Cir. 2018), as
amended (Apr. 4, 2018); Southern v. Bishoff, 675 F. App’x 239, 249 (4th Cir. 2017); RFT
Mgmt. Co., LLC v. Powell, 607 F. App’x 238, 242 (4th Cir. 2015); Cook v. Howard, 484
F. App’x 805, 815 (4th Cir. 2012). Other circuits agree. See, e.g., Somascan, Inc. v. Philips
Med. Sys. Nederland, B.V., 714 F.3d 62, 64 (1st Cir. 2013); Parker v. Columbia Pictures
Indus., 204 F.3d 326, 340 (2d Cir. 2000); Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th
Cir. 2002); Alioto v. Town of Lisbon, 651 F.3d 715, 720 (7th Cir. 2011); Coleman v. Quaker
Oats Co., 232 F.3d 1271, 1294–95 (9th Cir. 2000); Romero v. Drummond Co., 552 F.3d
1303, 1319 (11th Cir. 2008).


                                             9
otherwise. Faulconer moved to amend his complaint to add the ADEA as a legal basis for

his retaliation claim more than eight months after the scheduling order’s deadline. At no

point has he offered any explanation for that delay, or for why the “scrivener’s error” he

describes could not have been remedied earlier. Under those circumstances, Faulconer

cannot show the diligence required under Rule 16’s good cause standard, and the district

court did not abuse its discretion in denying his motion to amend. 2

                                             B.

       Faulconer next challenges the district court’s grant of summary judgment in favor

of Centra on his Title VII retaliation claim. “We review a district court’s decision to grant

summary judgment de novo, applying the same legal standards as the district court, and

viewing all facts and reasonable inferences therefrom in the light most favorable to the

nonmoving party.” Carter v. Fleming, 879 F.3d 132, 139 (4th Cir. 2018) (internal

quotation marks omitted). Summary judgment is appropriate only if no material facts are

disputed and the moving party is entitled to judgment as a matter of law. Henry v. Purnell,

652 F.3d 524, 531 (4th Cir. 2011) (en banc). Again, we affirm the district court.

       The core problem with Faulconer’s complaint – alleging that Centra violated Title

VII when it fired him in retaliation for his July Charge of age discrimination – is the one

identified by Centra and the district court: Title VII does not prohibit retaliation for

complaining about age discrimination. Title VII prohibits employment discrimination


       2
        We note that Faulconer’s complaint was filed with the assistance of counsel. We
thus have no occasion to consider the application of Rule 16’s good cause standard in the
context of a pro se complaint.

                                             10
based on race, color, religion, sex, or national origin – not age – and prohibits retaliation

against anyone who opposes those practices or makes a charge of discrimination in

violation of Title VII. See 42 U.S.C. §§ 2000e-2, 2000e-3. Discrimination based on age,

and retaliation for objecting to such discrimination, are governed instead by the ADEA.

See 29 U.S.C. § 623. And as the district court explained, those two separate statutes and

anti-retaliation provisions “do not cross-pollinate.” Faulconer, 2018 WL 2187447, at *1;

see Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) (“Title VII

and ADEA claims arise from completely distinct statutory schemes.”). As a result, it is

well-established that a Title VII retaliation claim may not be “based on an employer’s

adverse response to [] ADEA-protected conduct.” Faulconer, 2018 WL 2187447, at *3

(citing cases); see, e.g., Lennon v. Rubin, 166 F.3d 6, 8 (1st Cir. 1999); Bornholdt v. Brady,

869 F.2d 57, 62 (2d Cir. 1989).

       Indeed, Faulconer does not dispute that termination in retaliation for a complaint of

age discrimination is not cognizable under Title VII. Instead, he suggests that his July

Charge to the EEOC – the conduct for which he allegedly was penalized – in fact was not

limited to age discrimination, but also encompassed complaints of race and sex

discrimination, which would qualify as protected activity under Title VII. Like the district

court, we disagree. The July Charge plainly states its basis: “I believe I was disciplined

and retaliated against because of my age (62), in violation of the Age Discrimination in

Employment Act of 1967, as amended.” J.A. 97. It does not mention Title VII or any

incidents related to sex or race discrimination; instead, it describes Faulconer’s removal

from the blood bank and his replacement with “two younger individuals.” Id. And were

                                             11
there any doubt on this score, it would be resolved by Faulconer’s own complaint, filed

with the assistance of counsel, describing the July Charge at the heart of his retaliation case

as a “Charge of Discrimination . . . alleging age discrimination and retaliation.” J.A. 17

(emphasis added).

       That brings us to Faulconer’s final effort to avoid the mismatch between his

complaint’s factual allegations and its Title VII statutory basis: his new argument, raised

for the first time in opposition to Centra’s summary judgment motion, that it was not the

July Charge, after all, that was the catalyst for his termination, but rather his objections to

supervisor Smith’s race and especially sex harassment in the workplace. Specifically,

Faulconer alleges that he complained to Centra of Smith’s race- and sex-based comments

at work, and relies especially heavily on an August 2016 follow-up letter he sent the EEOC

after dismissal of his July Charge, in which he focused on his ADEA claim but also

“complained in passing about Markem Smith’s alleged inappropriate contact with female

employees.” Faulconer, 2018 WL 2187447, at *4; see J.A. 102–03. According to

Faulconer’s new theory of his case, it was those objections – which are protected by Title

VII – that actually caused Centra to fire him, and not the July Charge.

       The main problem with this “newfound approach,” Faulconer, 2018 WL 2187447,

at *4, is that it bears no resemblance to the factual allegations in Faulconer’s complaint.

As the district court explained, “Nowhere does the complaint mention Smith’s alleged

sexual harassment. And nowhere does it mention an effort by [Faulconer] to report Smith’s

actions, either by the August [2016 EEOC] letter or some other means. Instead, the sole



                                              12
theory of the complaint is a Title VII retaliation claim based on the July ADEA charge of

discrimination.” Id.

       It is true, as Faulconer argues, that a plaintiff does not have to allege in his complaint

every fact on which he will rely at summary judgment. See, e.g., Gottesman v. J. H. Batten,

Inc., 286 F. Supp. 2d 604, 612 (M.D.N.C. 2003) (“Not every fact that a plaintiff will

eventually base his claim on must be listed in his complaint.”). But that does not mean that

a plaintiff may plead one theory and one set of facts in his complaint, and then proceed to

trial on an entirely different theory supported by entirely different facts. That kind of

wholesale change is tantamount to a constructive amendment of a complaint, and “the

district court has discretion to deny the de facto amendment and to refuse to consider the

new factual claims.” Chessie Logistics Co. v. Krinos Holdings, Inc., 867 F.3d 852, 860

(7th Cir. 2017) (citations omitted); see also Harris v. Reston Hosp. Ctr., LLC, 523 F. App’x

938, 946–47 (4th Cir. 2013). Indeed, allowing such a constructive amendment at summary

judgment may unfairly prejudice the defendant, by depriving it of the notice it needs to

conduct effective discovery. See Harris, 523 F. App’x at 946 (“Because a complaint guides

the parties’ discovery, putting the defendant on notice of the evidence it needs to adduce

in order to defend against the plaintiff’s allegations, constructive amendment of the

complaint at summary judgment undermines the complaint’s purpose and can thus unfairly

prejudice the defendant.” (internal quotation marks omitted)).

       Here, we agree with the district court that nothing in Faulconer’s complaint, filed

by counsel, even hinted at the new theory and new factual allegations Faulconer put forth

in opposition to Centra’s summary judgment motion.              As a result, Centra had no

                                              13
opportunity during discovery to gather facts targeted to this new theory. Under those

circumstances, allowing Faulconer to proceed now on his new argument would amount to

a constructive amendment of his complaint – months after the deadline for amendment has

passed, again without explanation for the delay, and in the face of the district court’s

previous denial of a motion to amend. That ground alone is enough to sustain the district

court’s rejection of Faulconer’s new theory and its award of summary judgment to Centra

on Faulconer’s Title VII retaliation claim. 3



                                                III.

       For the foregoing reasons, we affirm the district court’s judgment.

                                                                                 AFFIRMED




       3
          We do not intend to cast doubt on the district court’s alternative basis for granting
summary judgment to Centra: that even if considered on its merits, Faulconer’s new
argument cannot prevail because Faulconer cannot show the necessary causal link between
his termination and any actions he took in opposition to supervisor Smith’s workplace
conduct. See Faulconer, 2018 WL 2187447, at *4; see generally Foster v. Univ. of Md.-
E. Shore, 787 F.3d 243, 250–52 (4th Cir. 2015) (describing elements of a Title VII
retaliation claim). As the district court explained, Smith was not involved in Faulconer’s
discharge or the three incidents that immediately preceded it, and Faulconer failed to direct
the district court to any record evidence that the individuals who did make the decision to
fire Faulconer considered his accusations against his supervisor. But for the reasons given
above, we may affirm the district court’s judgment without passing conclusively on this
question.

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