                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1604
                         ___________________________

                                  Aldridge Winfrey

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

    City of Forrest City, Arkansas; E.P. Reynolds, In his official and individual
     capacities as police or law enforcement officer of the City of Forrest City,
   Arkansas; Deon Lee, In his official and individual capacities as police or law
   enforcement officer of the City of Forrest City, Arkansas; Eric McCoy, In his
 official and individual capacities as police or law enforcement officer of the City
                               of Forrest City, Arkansas

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

                     Appeal from United States District Court
                    for the Eastern District of Arkansas - Helena
                                   ____________

                             Submitted: January 9, 2018
                              Filed: February 16, 2018
                                   ____________

Before GRUENDER, MELLOY, and SHEPHERD, Circuit Judges.
                         ____________

SHEPHERD, Circuit Judge.

       It is well-settled that the “plaintiff is the master of [his] complaint.” Holmes
Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002) (internal
quotation marks omitted). Here, plaintiff Aldridge Winfrey charges in his complaint
that he was terminated by the Forrest City, Arkansas Police Department
(“Department”) as “retaliat[ion] . . . for exercising his rights . . . regarding the
Plaintiff and other police officers being underpaid by the [Department].” The district
court1 dismissed this claim as plainly insufficient under Title VII of the Civil Rights
Act of 1964. It also dismissed related state-law contract and promissory estoppel
claims. Winfrey now appeals, arguing that evidence he introduced at summary
judgment shifts the focus of his complaint and that his state-law contract claim should
not have been dismissed.2 Exercising de novo review, Odom v. Kaizer, 864 F.3d 920,
921 (8th Cir. 2017), we reject his arguments and affirm the district court.

       Winfrey’s complaint alleges his dismissal was retaliatory. Under Title
VII—which Winfrey admits controls his claim—Winfrey’s retaliation claim, on its
face, is outside the bounds of the statute: Winfrey has not pled he engaged in
“protected conduct.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.
1999) (en banc) (holding “a prima facie case of retaliation” is made only when the
plaintiff shows “he engaged in protected conduct”). Title VII’s antiretaliation section
protects either “1) opposing any discrimination made unlawful by Title VII or 2)
making a charge or participating in any manner in an investigation or proceeding
under Title VII.” Bogren v. Minnesota, 236 F.3d 399, 407-08 (8th Cir. 2000). Title
VII prohibits, broadly speaking, “employer discrimination on the basis of race, color,
religion, sex, or national origin, in hiring, firing, salary structure, promotion and the
like.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2522 (2013).




      1
       The Honorable D.P. Marshall Jr., United States District Judge for the Eastern
District of Arkansas.
      2
       Winfrey does not appeal the district court’s dismissal of his promissory
estoppel claim.

                                          -2-
       Protesting application of unfair treatment unmoored from the distinct classes
Title VII protects—as Winfrey has said, both in his complaint and at his deposition,
he was doing—is not a basis for a Title VII retaliation claim.3 Thus, in Bogren, we
found that where a female police officer accused a police department of intimidating
cadets, but “she explained that the intimidation was directed at both male and female
cadets,” this was “unprotected by Title VII” because the police department did not
engage in “discrimination made unlawful by Title VII.” 263 F.3d at 408.

       In an affidavit that was submitted at the summary judgment stage, Winfrey
attempts to inject a new angle to his complaint, claiming that his dismissal was race-
based. This, however, is a distinct claim from a Title VII retaliation claim. See
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006) (emphasizing
Title VII “antiretaliation provision” is separate from “employment discrimination”
provision). We agree with the district court that “[i]ts too late” to bring a separate
employment discrimination claim in this action. Nothing in Winfrey’s complaint or
his deposition testimony indicated that he was pursuing a Title VII claim
encompassing race-based discrimination. Submitting a new claim via an affidavit at
the summary judgment stage is an “attempted surprise” which the Federal Rules of
Civil Procedure are designed to prevent. See Swierkiewicz v. Sorema N. A., 534
U.S. 506, 513 (2002) (internal quotation marks omitted). As we have said previously,
“[w]hile we recognize that the pleading requirements under the Federal Rules are
relatively permissive, they do not entitle parties to manufacture claims, which are not
pled, late into the litigation.” Falco v. Farmers Ins. Grp., 795 F.3d 864, 868 n.4 (8th
Cir. 2015) (internal quotation marks omitted). We affirm the district court’s dismissal


      3
        At his deposition, when asked to explain “in [his] own words why [he] filed
this lawsuit,” Winfrey stated “I believe I was retaliated against for standing up against
the city and the mayor.” In his mind, “standing up” meant that he was “represent[ing]
individuals that was in, that was having the issue of getting their money.” As the
district court noted, Winfrey never stated in his deposition that “race or gender
discrimination motivated his dispute with Forrest City about pay.”

                                          -3-
of Winfrey’s Title VII retaliation claim and its rejection of his untimely Title VII
discrimination claim.

       Winfrey also argues the district court erred in dismissing his contract claim.
He concedes that he was an “at-will employee,” meaning, under Arkansas law, he
could be terminated at any time. See Cottrell v. Cottrell, 965 S.W.2d 129, 130
(Ark. 1998). He contends, though, that there is a “public policy exception” in this
case. See Sterling Drug, Inc. v. Oxford, S.W.2d 380, 385 (Ark. 1988) (recognizing
“public policy exception”). In his view, Arkansas law is committed to “progressive
discipline,” which means that his dismissal contravened Arkansas public policy. But,
the one case he cites from the Arkansas Court of Appeals, McAteer v. Director,
Department of Workforce Services, spoke about “progressive discipline” solely in the
narrow area of eligibility for unemployment benefits. 481 S.W.3d 776, 779 (Ark. Ct.
App. 2016). The strain of public policy Winfrey seeks to invoke is simply inapposite
to the facts here. Thus, the district court was correct in dismissing his contract claim
as well.

      For the foregoing reasons, we affirm the district court in full.
                      ______________________________




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