                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                March 27, 2008
                               No. 07-14313                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 06-60934-CV-MGC

EDUARDO PADILLA,


                                                             Plaintiff-Appellant,

                                    versus

THE NORTH BROWARD HOSPITAL DISTRICT,

                                                            Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                               (March 27, 2008)

Before BIRCH, DUBINA and KRAVITCH, Circuit Judges.

PER CURIAM:

     Eduardo Padilla appeals the district court’s grant of summary judgment in
favor of North Broward Hospital District (“the District”) in his employment

discrimination action, brought pursuant to Title VII, 42 U.S.C. § 2000e, and the

Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.10. After a thorough review of

the record, we conclude that the district court properly granted summary judgment

and we affirm.

      I. Background

      Padilla had been employed with the District as an IT manager for about five

years when, in July 2002, chief information officer John Wagner asked and

Padilla’s direct supervisor Ronaldo Montmann about Padilla’s racial and ethnic

classification. After Montmann confirmed that Padilla was Hispanic, Wagner

made a change in Padilla’s ethnic classification from white to Hispanic in

connection with diversity paperwork requested by the human resources

department. The classifications reports were disseminated to all vice presidents

and managers to ensure that employees were classified correctly for purposes of

diversity reports because the District wanted its employee make-up to reflect the

make-up of the surrounding community. Padilla did not believe that such

information should have been widely disseminated. In connection with this

diversity report, Wagner made two such changes to employee classifications; he

reclassified Montmann and Padilla, notified them of the change by e-mail, and



                                         2
requested that Nancy Caroll, a member of his department, forward the changes to

human resources. Padilla was concerned about the change because he considered

his race to be white and his ethnicity to be Hispanic, and attempted to learn why

the reclassification had been made. Padilla further believed that the District could

not make such changes without the employee’s consent, and that it was the

employee’s choice how to classify himself. Padilla also perceived this change to

be a threat to his job security.

       When Padilla did not receive a response to his inquiry, he filed a complaint

on October 16 and October 18, 2002, by letter to the District’s human resources

department. In these letters, Padilla alleged that he had been harassed, but did not

provide any details. He also alleged that the classification change was improper

and caused him undue stress, which was exacerbated by Montmann’s inappropriate

conduct. According to Padilla, Montmann made choking gestures toward Padilla

and made references to the Bible. In response to his allegations, Padilla was

scheduled to meet with human resources to discuss his complaint. On November

12, 2002, the date he was to meet about his complaint, Padilla was terminated as

part of a reduction-in-force (“RIF”) that resulted from financial constraints. About

35 employees were terminated during the RIF.

       Although Padilla had not been aware of any rumors when he filed his



                                          3
complaint in October, rumors of a RIF had been circulating for several months.

Prior to any announced RIF and due to the rumors, Montmann had started thinking

about his department and how he would restructure the department if asked. He

sketched out a possible reassignment of jobs that combined the units in his

department. When Wagner came to him about the RIF months later, the two

discussed Montmann’s restructuring plan. Wagner did not give Montmann any

guidelines for implementing the RIF, but requested recommendations on how to

consolidate the units. Montmann made recommendations based on the skill sets of

his employees, taking into consideration the functions of each group and where

there was overlap. As a result, he recommended terminating Padilla and Dennis

Cheek, a white manager. Montmann did not consider seniority, performance

evaluations, or education; he only considered the knowledge and skills of his

employees. There was no discussion of ethnicity as the RIF decisions were made.

Montmann split Padilla’s and Cheek’s jobs between other managers, both of whom

were white. Another Hispanic manager, Carlos Gill, was not terminated.

Although Wagner was aware of Padilla’s complaint, Wagner accepted

Montmann’s suggestions for the RIF, which included Padilla’s termination.

      Padilla believed his termination was “obviously” and directly connected to

his reclassification as Hispanic, and he thought Wagner was manipulating the



                                         4
demographic information to suit some need of the District. He also alluded to a

comment made by a board member at a management meeting in which the member

stated that the “face” of the organization needed to change. Padilla believed the

District planned to eliminate white and Hispanic employees in favor of black

employees, and that the District collected the diversity data to effectuate these

changes. He could not, however, name any black employee who had replaced him.

      Thereafter, Padilla wrote to District CEO Wil Trower about the complaints

and reclassification. Although Padilla did not receive a response directly from

Trower, on December 12, 2002, human resources vice president Wilhemena Mack

notified Padilla by letter that an investigation into his complaint had determined

that his allegations lacked merit. She reiterated that the RIF had been due to

financial constraints. She could not, however, explain what actions were taken to

investigate Padilla’s complaints.

      On May 12, 2003, Padilla filed a charge of discrimination with the EEOC

and the Florida Commission on Human Relations, alleging that he had been

retaliated against for filing a complaint about the change in his ethnic

classification. In July, he submitted a letter to the EEOC outlining his allegations

and claiming that he had been subjected to reverse discrimination. On August 23,

2003, he filed a second charge, this time alleging that he had been discriminated



                                           5
against on the basis of his national origin and race, and he reiterated his retaliation

claim. Padilla received a right-to-sue letter dated August 29, 2003.

       In August 2004, Padilla filed an employment discrimination action in state

court, alleging that the District discriminated against him in violation of the FCRA

on the basis of his race and national origin, and retaliated against him for filing a

complaint. Two years later, Padilla sought leave to amend his complaint to add an

allegation of discriminatory discharge under Title VII. He also alleged that the

District violated reporting requirements under 29 C.F.R. § 1602.13 1 by collecting

information on his ethnicity. The court granted leave to amend, and the District

removed the case to federal court.

       The District moved for summary judgment. In support of the motion, the

District submitted the EEOC instruction booklet requiring employers to identify

the race and ethnic classification of its employees. The form listed among the


      1
          The Code of Federal Regulations provides:

       Employers may acquire the information necessary for completion of items 5 and 6
       of Report EEO-1 either by visual surveys of the work force, or at their option, by the
       maintenance of post-employment records as to the identity of employees where the
       same is permitted by State law. In the latter case, however, the Commission
       recommends the maintenance of a permanent record as to the racial or ethnic identity
       of an individual for purpose of completing the report form only where the employer
       keeps such records separately from the employee’s basic personnel form or other
       records available to those responsible for personnel decisions, e.g., as part of an
       automatic data processing system in the payroll department.

29 C.F.R. § 1602.13

                                                 6
choices: “white (non-Hispanic)” or “Hispanic.” The instructions discouraged

employers from inquiring directly of the employee for purposes of the

classification.

       Padilla opposed summary judgment, alleging for the first time that he was

subject to religious harassment by Montmann. He then indicated that the

timeliness of a complaint is subject to waiver, equitable tolling, and estoppel. In

his supporting affidavit, Padilla challenged the RIF decision and explained that he

was more qualified than those employees who were not terminated.

       The district court granted summary judgment, concluding that (1) Padilla

failed to show that there was an open position that he was denied and that the

actions were taken with discriminatory intent; (2) Padilla lacked an objectively

reasonable, good faith belief that the District was violating the law, as opposing the

accuracy of a diversity report was not a protected activity; and (3) the Title VII

discriminatory discharge claim was time-barred. Padilla now appeals.

       II. Discussion

       Padilla first argues that he established a prima facie case of retaliation

because he in good faith opposed what he reasonably believed to be unlawful

employment practices, and that he at least established a jury question on this issue.

Padilla next argues that there was sufficient evidence of discriminatory discharge,



                                            7
as the District failed to show that the elimination of his position was justified,

failed to set forth any criteria for the RIF decisions, and that he was more qualified

than the employees retained. Finally, Padilla alleges that the district court

improperly refused to consider his claims of record-keeping violations especially

where these violations were related to the challenged RIF. He disputes that the

claim was time-barred and asserts that a timely charge is subject to waiver,

estoppel, and equitable tolling. He also alleges, for the first time, that the violation

is “continuing.”

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

the evidence in the light most favorable to the party opposing the motion. Skrtich

v. Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002). Summary judgment is

appropriate if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a

matter of law. Fed.R.Civ.P. 56(c); Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th

Cir. 1990).

              a. Allegations Properly Before the Court

      As an initial matter, the District correctly notes that the claims Padilla failed

to include in his EEOC charge are not properly before this court. See Sanchez v.



                                            8
Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970)2 (“Before filing a Title

VII action, a plaintiff must exhaust his administrative remedies by filing a charge

of discrimination with the EEOC”). Accordingly, Padilla’s allegations of religious

harassment are not properly before this court.

               b. Retaliation

       Under Title VII, it is an unlawful for an employer to discriminate against an

employee because he has opposed any unlawful employment practice. 42 U.S.C.

§ 2000e-3 (a). Padilla seeks to establish a prima facie showing of retaliation under

Title VII by demonstrating: “(1) that [he] engaged in a statutorily protected

expression; (2) that [he] suffered an adverse employment action;3 and (3) that there

is some causal relation between the two events.” Cooper v. Southern Co., 390 F.3d

695 (11th Cir. 2004). In order to be a statutorily protected expression, “the

opposition must be directed at an unlawful employment practice of an employer,

not an act of discrimination by a private individual.” Little v. United Technologies,

103 F.3d 956, 959 (11th Cir. 1997). However, even if conduct complained about is

not unlawful, a plaintiff can establish a prima facie case of retaliation under Title

       2
         In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this court
held that all decisions handed down by the old Fifth Circuit before the close of business on
September 30, 1981, are binding precedent in the Eleventh Circuit.
       3
         To constitute an adverse action, an “employer’s challenged action ... would have [to have]
been material to a reasonable employee.” Burlington N. & Santa Fe Ry., Co. v. White, --U.S. --,
126 S.Ct. 2405, 2410, 165 L.Ed.2d 345 (2006).

                                                9
VII if he had “an objectively reasonable belief that he opposed an unlawful

employment practice.” 103 F.3d at 960. “A plaintiff must not only show that he

subjectively (that is, in good faith) believed that his employer was engaged in

unlawful employment practices, but also that his belief was objectively reasonable

in light of the facts and record presented.” Id. Under this analysis, it is presumed

that the employee has substantive knowledge of the law. Harper v. Blockbuster

Entm’t Corp., 139 F.3d 1385, 1388 n.2 (11th Cir. 1998).

      Padilla’s retaliation claim rests on his opposition to the change in his

classification from white to Hispanic. As the district court correctly found,

however, this “opposition” was not a protected activity because Padilla did not

have an objectively reasonable belief that the District’s conduct violated the law.

      The EEOC requires employers to submit form 100 (otherwise known as

“Employer Information Report EEO-1”). 29 C.F.R. § 1602.7. This form includes

a section listing the ethnic background of employees and encourages the employer

to “acquire the information necessary . . . by visual surveys of the work force, or at

their option, by the maintenance of post-employment records. . . .” 29 C.F.R.

§ 1602.13. Among the choices on the list: “white (non-Hispanic)” or “Hispanic.”

In making the classification decisions, employers are discouraged from asking the

employee directly.



                                          10
      Under this regulation, the District was required to report the ethnicity of its

employees, and there was nothing improper in Wagner’s reclassification of

Padilla’s ethnicity. Notably, Padilla does not dispute that he is of Hispanic

ethnicity. Rather, he disputed that his racial classification is Hispanic. Because

employees are charged with substantive knowledge of the law, and the law allows

the collection of this data, Padilla’s belief that the District acted illegally was not

objectively reasonable. As such, it did not qualify as a protected activity.

      To the extent that Padilla asserts that the dissemination of the employees’

classifications was illegal, that argument is without merit. The human resources

department forwarded the forms to vice presidents and department supervisors to

ensure that the employees were probably classified. Because the EEOC

encourages visual surveys, vice presidents and department managers are in the best

position to complete the forms.

             c. Discharge

      To evaluate claims based on circumstantial evidence of discrimination, we

apply the burden-shifting framework set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

See Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc).



                                            11
       Under this framework, Padilla bears the burden of establishing a prima facie

case of discrimination. Once the plaintiff satisfies the prima facie showing, the

burden shifts to the employer to show a legitimate, non-discriminatory reason for

the decision. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,

1824, 36 L.Ed.2d 668 (1973). Padilla must then show that each reason offered was

pretext. Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)

(citation and internal quotation marks omitted).

       In a RIF case in which a position is eliminated in its entirety, the plaintiff

may seek to establish a prima facie case of discrimination by demonstrating

“(1) that he was in a protected class and was adversely affected by an employment

decision, (2) that he was qualified for his current position or to assume another

position at the time of discharge, and (3) evidence by which a fact finder could

reasonably conclude that the employer intended to discriminate in reaching that

decision.”4 Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1344 (11th Cir. 2003).

To establish intent, Padilla needed to proffer evidence that could lead a fact finder

to conclude that “(1) [the] defendant consciously refused to consider retaining a

plaintiff because of his [race or national origin], or (2) [the] defendant regarded

[race or national origin] as a negative factor in such consideration.” Allison v.


       4
         Contrary to the District’s argument, the law of this circuit does not require the plaintiff
prove that he was replaced by someone outside the protected class. See Smith, 352 F.3d at 1344.

                                                12
Western Union Tel. Co., 680 F.2d 1318, 1321 (11th Cir. 1982).

       Here, we conclude that the district court properly granted summary

judgment because Padilla failed to establish that the District intended to

discriminate against him based on his race or national origin. According to the

evidence, Montmann, who was Hispanic, made the recommendation to terminate

Padilla as part of the RIF. Moreover, one of the other managers who was retained

was Hispanic. Furthermore, Montmann explained that he considered the job skills

of his department and determined the best way to consolidate tasks. This court has

held that a subjective reason for an employer’s action can be as legitimate as any

other reason.5 See Chapman, 229 F.3d at 1033. As such, Padilla has not shown

that the District acted with any intent to discriminate.

               d. Time-Bar

       Under 42 U.S.C. § 2000e-5(f)(1), “the party who filed the charge must file

suit within ninety days or forfeit his right to bring a private civil action.”6 See

Green v. Union Foundry Co., 281 F.3d 1229, 1233 (11th Cir. 2002). Once the



       5
          And although hiring a less qualified person can support an inference of discriminatory
motivation, Alexander v. Fulton County, 207 F.3d 1303, 1340 (11th Cir. 2000), Padilla’s bare
assertion that he was more qualified is insufficient to establish such intent. See Davis v. Town of
Lake Park, Fla., 245 F.3d 1232, 1239, 1244 (11th Cir. 2001).
       6
          In contrast, the FCRA provides that such claims be filed within one year of notice of a
determination from the Florida Committee on Human Relations. See Fla. Stat. § 760.11. Thus, the
original complaint filed in state court alleging violations of the FCRA was timely.

                                                13
District contested this issue, Padilla had the burden of establishing that he met the

ninety day filing requirement. Id. at 1234.

      Here, the undisputed evidence established that Padilla did not file his Title

VII action until more than three years after he received the right to sue letter.

Although he filed his FCRA action in state court in 2004, he did not add his federal

claim until 2006. At no point has he alleged that the amended complaint related

back to the 2004 complaint or was otherwise timely. Moreover, although he

asserts that the timeliness issue is subject to waiver, equitable tolling, and estoppel,

he offers no argument on these issues. Thus, he has abandoned such a claim.

Flanigan’s Enterprises, Inc. of Georgia v. Fulton County, Georgia, 242 F.3d 976,

987 n.16 (11th Cir. 2001). Accordingly, the district court properly determined that

the Title VII claim was time-barred.

      III. Conclusion

      For the foregoing reasons, we AFFIRM the grant of summary judgment.




                                           14
