              Case: 15-10602     Date Filed: 06/27/2017   Page: 1 of 5


                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 15-10602
                           ________________________

                       D.C. Docket No. 2:12-cv-00138-RWS



RICHARD M. VILLARREAL,
on behalf of himself and all others similarly situated,

                                                                Plaintiff-Appellant,

                                        versus

R.J. REYNOLDS TOBACCO COMPANY,
PINSTRIPE, INC.,

                                                             Defendants-Appellees,

CAREERBUILDER, LLC,

                                                                         Defendant.

                           ________________________

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

                                   (June 27, 2017)
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Before WILSON and MARTIN, Circuit Judges, and VINSON, * District Judge.

PER CURIAM:

       Our panel opinion issued in this matter on November 30, 2015 was vacated

and has now been reversed by this Court sitting en banc. Villarreal v. R.J.

Reynolds Tobacco Co., 839 F.3d 958, 973 (11th Cir. 2016) (en banc). Because the

panel opinion did not reach Richard Villarreal’s argument that his disparate

treatment claim was timely under the continuing-violation doctrine, this Court

remanded that issue for us to consider in the first instance. Id. After careful

review, and with the benefit of oral argument, we affirm the district court.

                                               I.

       The district court dismissed Villarreal’s complaint for failure to state a claim

on both his disparate impact claim and his disparate treatment claim against R.J.

Reynolds. Id. at 962. This Court’s en banc opinion foreclosed Villarreal’s

disparate impact claim, as well as his argument that his disparate treatment claim

was timely because he was entitled to equitable tolling. Id. at 973. But in addition

to his equitable tolling argument, Villarreal argued in the alternative that his

disparate treatment claim was timely under the continuing-violation doctrine. We

consider that argument now.



       *
         Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
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      We review de novo the district court’s dismissal of a complaint for failure to

state a claim, and accept the plaintiff’s allegations as true, construing all facts in

the light most favorable to the plaintiff. Harry v. Marchant, 291 F.3d 767, 769

(11th Cir. 2002) (en banc).

                                           II.

      Generally, any claim under the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621 et seq., must be filed within 180 days of the alleged

discriminatory act in order to bring suit. Id. § 626(d)(1); see also McClinton v.

Ala. By-Products Corp., 743 F.2d 1483, 1485 (11th Cir. 1984) (“This 180-day

notification requirement is a prerequisite to an action based on the ADEA . . . .”).

But in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct.

2061 (2002), the Supreme Court recognized a distinction between discrete

discriminatory acts that alone can constitute a cause of action and a pattern or

practice of harassment that creates a hostile work environment. Id. at 114–16, 122

S. Ct. at 2072–74. Such hostile work environment claims rely on “the cumulative

effect of individual acts” over time and in “contrast to discrete acts, [each] single

act of harassment may not be actionable on its own.” Id. at 115, 122 S. Ct. at 2073

(emphasis added). Because of the nature of hostile work environment claims, the

Court held an employer may be liable for acts outside of the 180-day limitations

period if (1) at least one act contributing to the claim happens within the


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limitations period, and (2) the acts outside of the limitations period are part of the

same hostile work environment claim. See id. at 117, 122 S. Ct. at 2074. In such a

case, the plaintiff need only bring suit within 180 days of any “act contributing to

the claim.” Id.

       Villarreal relies on Morgan to argue R.J. Reynolds engaged in a pattern or

practice of discrimination against older job applicants, and therefore the

continuing-violation doctrine should make his disparate treatment claim timely.

But Villarreal’s disparate treatment claim does not fall within the scope of the

continuing-violation doctrine. Morgan made clear that timeliness claims under the

continuing-violation doctrine can apply only to types of discriminatory acts that

“are different in kind from discrete acts”—specifically, those minor incidents that

alone would not be actionable but which become actionable due to their

“cumulative effect.” Id. at 115, 122 S. Ct. at 2073. That is not so for Villarreal.

He is not challenging the cumulative effect of R.J. Reynolds’s multiple refusals to

hire older applicants; instead he is challenging each individual refusal-to-hire.1

And the Supreme Court in Morgan specifically recognized that “refusal to hire” is

“easy to identify” as a discrete act. Id. at 114, 122 S. Ct. at 2073; see also Davis v.

Coca-Cola Bottling. Co. Consol., 516 F.3d 955, 970 (11th Cir. 2008) (holding that

       1
          To the extent Villarreal argues the continuing-violation doctrine can make his claim
timely because the pattern or practice of discrimination was enforced against others who could
bring a timely claim, his argument is foreclosed by our precedent. See Hipp v. Liberty Nat’l Life
Ins. Co., 252 F.3d 1208, 1222 & n.12 (11th Cir. 2001) (per curiam).
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hiring decisions were “discrete acts of discrimination” that could not go forward

under the continuing-violation doctrine), abrogated on other grounds by Ashcroft

v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009), and Bell Atl. Corp. v. Twombly,

550 U.S. 544, 127 S. Ct. 1955 (2007). As a result, the continuing-violation

doctrine cannot make Villarreal’s disparate treatment claim timely. We therefore

affirm the district court’s dismissal of Villarreal’s complaint.

      AFFIRMED.




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