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                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11922
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 8:19-cv-00168-WFJ-SPF



PETER ORTIZ,

                                                          Plaintiff-Appellant,

                              versus

WASTE MANAGEMENT, INC. OF FLORIDA,
CARLOS GARCIA,

                                                       Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                             (April 27, 2020)



Before WILSON, ANDERSON and EDMONDSON, Circuit Judges.
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PER CURIAM:



       Plaintiff Peter Ortiz appeals the district court’s dismissal of his civil action

against his former employer, Waste Management, Inc. of Florida (“WMI”). 1 In his

complaint, Plaintiff asserted against WMI claims for violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”), and for violation of

Florida law.2 No reversible error has been shown; we affirm.

       Plaintiff alleged these facts in his complaint. Plaintiff was employed as a

Route Driver with WMI beginning in 2003. On 23 January 2017, a group of

Plaintiff’s coworkers taunted Plaintiff after Plaintiff arrived at work wearing a

small bandage on his face. One of the coworkers -- Carlos Garcia -- used his

cellphone to record a video of the taunting. Plaintiff told Garcia to stop filming

him. Plaintiff then walked out of the breakroom and into the men’s restroom. As

Plaintiff was sitting on the toilet, Plaintiff looked up and saw that Garcia was also

in the restroom and was filming Plaintiff, whose genitalia was exposed.




1
  Plaintiff also named as a defendant his coworker, Carlos Garcia. On appeal, Plaintiff raises no
argument about his claims against Garcia; those claims are not before us on appeal.

2
 The district court dismissed without prejudice Plaintiff’s state law claims after declining to
exercise supplemental jurisdiction. On appeal, Plaintiff raises no challenge to that ruling.
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      The next day, Plaintiff reported the incident to his supervisor, D.A. D.A.,

however, did nothing to address Garcia’s conduct and, instead, continued to assign

Plaintiff to work with Garcia after the filming incident.

      On 26 January, Plaintiff learned that two other coworkers (who had not been

present during the initial taunting episode) had seen the video of Plaintiff on the

toilet. Plaintiff complained to D.A. a second time. D.A. then spoke with Plaintiff

and Garcia about the situation. D.A. told Garcia to delete the video but did not

otherwise reprimand Garcia or confirm that the video had been deleted. In

addition, D.A. insisted on discussing the matter in a public area despite Plaintiff’s

request to move into a private office. Plaintiff later learned that D.A. and Garcia

were “very good friends.”

      Over three weeks later, Plaintiff says he was contacted by a “whistleblower”

who showed Plaintiff a copy of Garcia’s video. Plaintiff learned that Garcia had

sent the video directly to the whistleblower and to four other coworkers.

      On 22 February, Plaintiff called WMI’s “Integrity Hotline”: a phone number

for employees to report “unethical behavior” in the workplace. WMI opened an

investigation into Plaintiff’s complaint. The complaint was assigned to Y.B., a

human resources manager.

      After Y.B. began her investigation, she demanded to know the

whistleblower’s identity. Plaintiff gave Y.B. the names of the five coworkers who


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had received the video directly from Garcia (one of whom was the whistleblower)

but refused to identify the whistleblower. Y.B. told Plaintiff that he was impeding

the investigation and that he would not “like what comes next.” Plaintiff

responded that he was “being harassed and retaliated against for precisely having

integrity.”

      During a later conversation, Y.B. told Plaintiff that, because he refused to

disclose the whistleblower’s identity, “the case was out of her hands”; the

investigation had been transferred to Corporate Security. Y.B. also told Plaintiff

that -- per WMI’s lawyer -- Plaintiff would be fired if he failed to disclose the

identity of the whistleblower within 48 hours. Plaintiff refused to comply; WMI

terminated Plaintiff’s employment on 23 March 2017.

      In his civil complaint, Plaintiff asserts two claims under Title VII: one for

retaliation and another for hostile work environment. About retaliation, Plaintiff

asserts that WMI treated him differently because of his sex and retaliated against

him for reporting Garcia’s behavior and “for exercising his civil rights and

demanding to be treated equal as his female counterparts.” Plaintiff contends that

-- had he been a female employee -- WMI would have investigated the incident

more thoroughly, would have taken remedial action against Garcia, would have

assigned the investigation of Plaintiff’s complaint (which involved video footage




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of Plaintiff’s genitalia) to an investigator of the same sex, and would not have

terminated Plaintiff’s employment.

       About his second Title VII claim, Plaintiff says he was subjected to a hostile

work environment because of his sex. Plaintiff says he was treated differently

from female employees because WMI would have treated more seriously a similar

incident involving a female employee.

       WMI moved to dismiss Plaintiff’s complaint. In pertinent part, WMI

asserted that Plaintiff’s allegations fell outside the scope of the operative charge of

discrimination Plaintiff filed with the Equal Employment Opportunity Commission

(“EEOC”).

       Plaintiff -- through his lawyer -- filed with the EEOC the charge of

discrimination pertinent to this appeal on 4 August 2017. 3 Plaintiff marked (on

small spaces similar to tick-boxes that were part of the complaint form) that he was

discriminated against based on “retaliation” and “other (specify below).” Identical

small spaces existed to be checked for several other kinds of discrimination,

including “SEX”; the “__ SEX” space was not checked by Plaintiff. Briefly stated,

Plaintiff alleged that he “was retaliated against for constantly complaining about


3
  Plaintiff filed two charges of discrimination with the EEOC. Plaintiff filed his first charge on 4
August 2017. Based on that charge, the EEOC issued Plaintiff a Notice of Right to Sue on 24
October 2018: that notice is attached to Plaintiff’s complaint. Plaintiff later filed a second charge
on 8 November 2018, which the EEOC dismissed as untimely. In the district court and on
appeal, Plaintiff relies solely upon the 4 August 2017 EEOC charge and raises no argument that
the district court erred in failing to consider Plaintiff’s second EEOC charge.
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having my rights and dignity violated by [Garcia],” and that Garcia had recorded

and circulated a video of Plaintiff seated naked on the toilet.

      In his “Discrimination Statement” (which extends over several pages),

Plaintiff said he believed he had been harassed, subjected to a hostile work

environment, and retaliated against in violation of Title VII. Plaintiff then

described in detail the same factual allegations about Garcia’s conduct, WMI’s

investigation, and about the termination of Plaintiff’s employment that Plaintiff

alleged in his complaint. Never did Plaintiff’s EEOC charge allege that Plaintiff

was treated differently or discriminated against because of his sex or allege that he

had made it known to WMI that he believed he was being discriminated against

based on his sex.

      After conducting a hearing on WMI’s motion, the district court dismissed

with prejudice Plaintiff’s Title VII claims. The district court determined that the

operative EEOC charge “simply said nothing about sex discrimination.” At the

hearing on WMI’s motion to dismiss, Plaintiff’s lawyer conceded that Plaintiff

alleged no sex discrimination in his first -- that is the pertinent -- EEOC charge.

Determining that Plaintiff’s Title VII claims fell outside the scope of the EEOC

investigation that reasonably could be expected to grow out of the charge of

discrimination, the district court concluded that those claims were subject to

dismissal.


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      We review de novo a district court’s dismissal for failure to state a claim,

accepting all properly alleged facts as true and construing them in the light most

favorable to the plaintiff. Butler v. Sherriff of Palm Beach Cty., 685 F.3d 1261,

1265 (11th Cir. 2012).

      Title VII makes it unlawful for an employer to discriminate against an

employee “with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1). The phrase “terms, conditions, or privileges

of employment” has been construed to include claims about “a discriminatorily

hostile or abusive environment.” See Hulsey v. Pride Rests., LLC, 367 F.3d 1238,

1244 (11th Cir. 2004). We have stressed that Title VII “does not prohibit

harassment alone, however severe and pervasive.” See Baldwin v. Blue

Cross/Blue Shield, 480 F.3d 1287, 1301 (11th Cir. 2007). “Instead, Title VII

prohibits discrimination, including harassment that discriminates based on a

protected category such as sex.” Id. at 1301-02. Discrimination is the heart of

Title VII; not every unreasonable, uncivil, or mean-spirited act is covered.

      Title VII also makes it unlawful for an employer to retaliate against an

employee because of the employee’s opposition to an employment practice, if that

kind of practice is made unlawful under Title VII. 42 U.S.C. § 2000e-3(a).

Although a plaintiff “need not prove the underlying claim of discrimination which


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led to [his] protest,” he must demonstrate that he “engaged in statutorily protected

expression.” Meeks v. Comput. Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir.

1994). An employee’s complaint -- formal or informal -- about an employment

practice constitutes statutorily protected expression if the employee “explicitly or

implicitly communicate[s] a belief that the practice constitutes unlawful

employment discrimination.” Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295,

1311 (11th Cir. 2016).

      Before filing a civil complaint alleging violations of Title VII, an employee

must exhaust his administrative remedies by first filing a timely charge of

discrimination with the EEOC. Stamper v. Duval Cty. Sch. Bd., 863 F.3d 1336,

1339 (11th Cir. 2017). The purpose of the exhaustion requirement is to allow the

EEOC “the first opportunity to investigate the alleged discriminatory practices to

permit it to perform its role in obtaining voluntary compliance and promoting

conciliation efforts.” Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279

(11th Cir. 2004).

      Given the importance of the exhaustion requirement, a plaintiff’s civil

complaint under Title VII “is limited by the scope of the EEOC investigation

which can reasonably be expected to grow out of the charge of discrimination.” Id.

at 1280. In determining whether a complaint falls within the scope of the EEOC

charge, we consider whether the complaint is “like or related to, or grew out of, the


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allegations contained in [the] EEOC charge.” Id. Judicial claims that merely

“amplify, clarify, or more clearly focus” the allegations in the EEOC complaint are

permissible; but a judicial complaint may not assert “allegations of new acts of

discrimination.” Id. at 1279-80. We have also said that courts should avoid strict

interpretation of the scope of the EEOC charge and avoid dismissing Title VII

claims based merely on procedural technicalities. See id. at 1280.

      On appeal, Plaintiff contends that the newly-added assertion in his civil

complaint -- that Plaintiff was treated differently and less well because he was a

male and not a female -- is permissible because that assertion merely “amplifies,

clarifies, and more clearly focuses” the allegations in the EEOC charge. In a

similar way, Plaintiff contends that an EEOC investigation of his allegations would

have uncovered evidence of sex discrimination. We disagree.

      Plaintiff’s EEOC charge contained no factual allegations which could be

construed reasonably as complaining about discrimination, harassment, or

retaliation based on Plaintiff’s sex. Plaintiff also alleged no facts showing that

Plaintiff had engaged in statutorily protected expression. Although Plaintiff

described in detail his complaints about Garcia’s conduct and about the

investigation to his supervisor, to the Integrity Hotline, and to Y.B., nothing

evidenced that Plaintiff “explicitly or implicitly communicate[d]” to WMI that




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Plaintiff believed he was being treated differently because of his sex. See Furcron,

843 F.3d at 1311.

      Plaintiff’s allegations in his civil complaint about sex discrimination

constitute a claim in addition to and altering significantly the allegations in

Plaintiff’s EEOC charge. Given the complete lack of factual allegations about sex

discrimination in the EEOC charge, we cannot conclude that an EEOC

investigation would have reasonably uncovered evidence of sex discrimination.

See Chanda v. Engelhard/ICC, 234 F.3d 1219, 1225 (11th Cir. 2000) (concluding

that a reasonable investigation based on plaintiff’s EEOC charge -- which

mentioned only discrimination and retaliation based on disability, not national

origin -- would not have encompassed retaliation based on complaints about

national origin discrimination).

      The district court committed no error in concluding that Plaintiff’s Title VII

claims for retaliation and for hostile work environment based on sex discrimination

fell outside the scope of Plaintiff’s EEOC charge. Contrary to Plaintiff’s assertion,

the district court neither engaged in an unreasonably strict interpretation of the

scope of Plaintiff’s EEOC charge nor based its ruling on a mere procedural

technicality, such as Plaintiff’s failure to mark the “__ SEX” space on the EEOC

charge form. Taking everything into account, Plaintiff’s EEOC complaint omitted




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altogether a claim based on sex discrimination.

      AFFIRMED.




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