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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-12263
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 3:15-cv-00655-WKW-WC



TIFFANY DAVIS,

                                                           Plaintiff - Appellant,

versus

AUBURN BANK,

                                                         Defendant - Appellee.

                       ________________________

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

                             (August 21, 2017)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Plaintiff appeals the dismissal without prejudice of her Complaint against

her former employer for violations of various employment statutes. The district

court dismissed Plaintiff’s claims on timeliness and sufficiency grounds. Plaintiff

argues that equitable tolling should be applied and that leave to amend her

Complaint should be granted. We affirm.

I.     BACKGROUND

       On February 24, 2014, Plaintiff Tiffany Davis (“Plaintiff”) filed a charge of

discrimination with the Equal Employment Opportunity Commission (“EEOC”)

alleging that her employer, Defendant AuburnBank (“Defendant”), discriminated

and retaliated against her because of her race and disability. On June 12, 2015,

Plaintiff had received from the EEOC a Dismissal and Notice of Rights letter

(“right-to-sue letter”), allowing her to sue Defendant in court.1 On September 12,

2015, Plaintiff filed a Complaint in the Middle District of Alabama against

Defendant for claims under Title VII, 42 U.S.C. § 2000e et seq.; the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; the Family and Medical

Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.; and 42 U.S.C. § 1981.

       Plaintiff’s Complaint alleges that she was employed by Defendant as a teller

in September 2012, when she was subjected to discrimination, retaliation, a hostile

1
  Plaintiff attached to her Complaint a copy of her original complaint to the EEOC, the right-to-
sue letter from the EEOC, and a photocopy of the envelope in which she received her right-to-
sue letter, which has a handwritten notation that the letter was opened on June 12, 2015.


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work environment, and unlawful termination. Plaintiff was subject to abuse by

other employees that included “outward cursing” and “rude and unwanted

conversations that forced Plaintiff to be isolated in her cubicle,” and bank

management did nothing to prevent the treatment.

      Plaintiff also points to instances of disparate treatment, namely that she was

forced to work at a different location without any adjusted compensation while

Caucasian employees remained at her previous work location; that she was

“subjected to numerous extensive requirements, such as, but not limited to,

providing a doctor’s excuse when other Caucasian employees were given no such

requirement”; that Caucasian employees were allowed to shoot rubber bands

around, cut coupons out of books, play, read books, and sleep, but that she was

reprimanded for humming, which she had done for years while at the bank; and

that she was reprimanded for “discussing President Obama,” while Caucasian

employees were allowed to discuss politics without discipline.

      Plaintiff further alleges that Defendant was complicit in creating this hostile

work environment, which led to Plaintiff’s constructive discharge as she “felt that

it was impossible to work in the environment,” and that she continues to suffer

“complete disruption of her household” because of the requirements placed on her

by Defendant. Plaintiff also alleges that Defendant was aware of Plaintiff’s




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disability, and that she was terminated without cause before the expiration of her

FMLA leave.

       Defendant filed a motion to dismiss for failure to assert plausible claims, or

in the alternative, a motion for a more definite statement of the claims. Defendant

argued that Plaintiff’s Title VII and ADA claims were time-barred because she did

not file her complaint within 90 days of receiving her right-to-sue letter.2

Defendant argued that Plaintiff’s FMLA and § 1981 claims were vague and

conclusory, and so failed to meet the minimum pleading requirement to survive

dismissal under Rule 12(b)(6).

       In response to the magistrate judge’s order to show cause why the motion to

dismiss should not be granted, Plaintiff argued that her claims are not time-barred.

According to Plaintiff, her attorney had prepared the Complaint and was prepared

to file it on September 10, 2015, but only then did he learn that the Middle District

did not accept online filing for initial complaints. Plaintiff’s attorney “had

conflicts the following day that would not allow his arrival in Montgomery until

after nightfall,” and, due to the attorney’s unfamiliarity with Montgomery, he “felt

it an uncomfortable situation to be attempting to file anything during non-daylight

hours.” Plaintiff’s attorney filed the Complaint the next day, September 12, 2015,
2
  A Title VII or ADA plaintiff must file a civil action within 90 days of receiving the right-to-
sue letter. 42 U.S.C. §§ 12117(a), 2000e-5(f)(1). Plaintiff received her right-to-sue letter by
June 12, 2015, and so needed to file her claim by September 10, 2015. Because she filed on
September 12, 2015, her claim was untimely.


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“when the sun was still shining.” Plaintiff further argued that because Defendant

was aware of her specific disabilities (“depression, heightened anxiety,

schizophrenia, etc.”), it would be “redundant” to elaborate in the Complaint. In

addressing whether she had sufficiently met the burden of pleading requirements,

Plaintiff cited to several Alabama Supreme Court cases discussing pleading

requirements.

      The magistrate judge’s Report and Recommendation (“R&R”) concluded

that Defendant’s motion to dismiss should be granted. The R&R concluded that

Plaintiff’s Title VII and ADA claims were time-barred, and that Plaintiff had not

demonstrated that equitable tolling was appropriate in this case. The R&R further

concluded that the FMLA and § 1981 claims should be dismissed under Rule

12(b)(6) for failure to state a claim. Plaintiff did not file any objections to the

R&R, and, so noting, the district court adopted the R&R and granted Defendant’s

motion to dismiss. Plaintiff timely appealed.

II.   DISCUSSION

      A.     Standard of Review

      When a party fails to object to a magistrate judge’s R&R at the district court

level after receiving notice of the objection time period and the consequences for

failing to object, the party “waives the right to challenge on appeal the district




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court’s order based on unobjected-to factual and legal conclusions.”3 11th Cir. R.

3-1. We review such waived objections only for plain error, if necessary in the

interests of justice. Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1257 (11th Cir.

2017). Courts may correct a plain error only when an error has occurred, the error

was clear or obvious (“plain”), and the error affected substantial rights, and then

only if the error “seriously affect[ed] the fairness, integrity, or public reputation of

judicial proceedings.” United States v. DiFalco, 837 F.3d 1207, 1220–21 (11th

Cir. 2016) (alteration in original) (internal citation omitted). Meeting this test is

difficult, placing a “daunting obstacle before the appellant” in the criminal context,

id. at 1221 (citations omitted), and it requires an even greater showing in civil

appeals. Evans, 850 F.3d at 1257.

       B.     Whether Plaintiff’s Title VII and ADA Claims Were Timely

       There is no dispute that Plaintiff’s claim was filed outside of the 90-day

window after she received her right-to-sue letter. Plaintiff argues nevertheless that

equitable tolling is appropriate in her case, so her claim should be considered

timely. To qualify for equitable tolling, Plaintiff must show “(1) that [she] has

3
  In the R&R, the magistrate judge ordered Plaintiff to file any objections to the R&R by April
13, 2016, and noted that failure to do so

       shall bar a party from a de novo determination by the District Court of legal and
       factual issues covered in the Recommendation and waives the right of the party to
       challenge on appeal the district court’s order based on unobjected-to factual and
       legal conclusions accepted or adopted by the District Court except upon grounds
       of plain error or manifest injustice.


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been pursuing [her] rights diligently, and (2) that some extraordinary circumstance

stood in [her] way and prevented timely filing.” Villarreal v. R.J. Reynolds

Tobacco Co., 839 F.3d 958, 971 (11th Cir. 2016) (quoting Menominee Indian

Tribe of Wis., v. United States, 136 S. Ct. 750, 755 (2016)).

      Plaintiff argues that she pursued her rights diligently by noting that she

exhausted remedies with her superior and administrative remedies with the EEOC,

hired an attorney to help with her claim, and she called her attorney several times

prior to the 90-day deadline, although he never returned her calls.

      She also argues that the extraordinary circumstance that stood in the way of

her timely filing was her own attorney’s negligence. Plaintiff specifically notes

that her former counsel failed to timely file her claim, failed to seek leave to amend

the complaint, and failed to file any objections to the R&R or otherwise seek

redress. Plaintiff also notes that her attorney never told her that he filed her claim

late or informed her about the court’s actions until the case was dismissed, that he

only interviewed her once over telephone upon accepting her as a client, that he

never provided her with any documents in her case, and that he filed “one of the

most poorly-drafted complaints ever written,” despite her providing information to

him about her claim in “great detail.”

      Even assuming Plaintiff could show that she had diligently pursued her

rights, Plaintiff has not shown that her attorney’s negligence amounted to an


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“extraordinary circumstance” that prevented her from timely filing her complaint.

Villarreal, 839 F.3d at 971. Equitable tolling is an “extraordinary remedy which

should be extended only sparingly.” Bost v. Fed. Express Corp., 372 F.3d 1233,

1242 (11th Cir. 2004) (quoting Justice v. United States, 6 F.3d 1474, 1479 (11th

Cir. 1993)). Mere attorney negligence, an attorney’s miscalculation of the

limitations period, or mistake do not justify equitable tolling. Steed v. Head, 219

F.3d 1298, 1300 (11th Cir. 2000). Specifically in the Title VII context, this Court

has recognized three situations in which equitable tolling may be appropriate:

(1) when a state court action is pending; (2) when the defendant has concealed

facts supporting a cause of action under Title VII; and (3) when the defendant

misled the plaintiff about the nature of her rights under Title VII. Manning v.

Carlin, 786 F.2d 1108, 1109 (11th Cir. 1986).

      None of these situations apply to the present circumstances. Concerning

why her claims were filed late, all that Plaintiff argues concerning her attorney’s

conduct is that he was unaware that the Middle District of Alabama did not accept

electronic filing, he had other priorities, and he was afraid to file after dark. There

is no indication that these actions amount to anything more than a “garden variety

claim” of negligence. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)

(“[P]rinciples of equitable tolling . . . do not extend to what is at best a garden

variety claim of excusable neglect.”). We conclude therefore that the magistrate


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judge’s rejection of Plaintiff’s request for equitable tolling and district judge’s

adoption of the magistrate judge’s R&R was not plain error as to Plaintiff’s Title

VII and ADA claims.

       C.      Whether Plaintiff’s FMLA and § 1981 Claims Were Properly
               Dismissed

       To survive a motion to dismiss, Plaintiff’s complaint must state a claim that

is plausible on its face, which requires Plaintiff to “plead[] factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed

factual allegations” are not required, a complaint must offer “more than a sheer

possibility that a defendant has acted unlawfully.” Id. (citation omitted).

Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Id.

       The magistrate judge concluded that Plaintiff’s FMLA claim should be

dismissed because Plaintiff’s allegations were vague and conclusory, did not assert

which FMLA right Defendant had allegedly violated, 4 failed to specify a time

frame for such violation, and failed to even allege that Plaintiff qualified to receive

benefits under the FMLA. Plaintiff does not challenge these conclusions regarding
4
  “[T]he FMLA creates two types of claims: interference claims, in which an employee asserts
that his employer denied or otherwise interfered with his substantive rights . . . , and retaliation
claims, in which an employee asserts that his employer discriminated against him because he
engaged in activity protected by the Act.” Strickland v. Water Works & Sewer Bd. of City of
Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001).


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the FMLA claim and acknowledges that “[her] lawyer did not prepare a well-

pleaded complaint of her allegations of violations under [the] FMLA.”

       Concerning her § 1981 claim, Plaintiff does argue on appeal that her

Complaint alleges race-based employment discrimination, but as the magistrate

judge noted, her pleadings are so vague and conclusory, it is unclear what type of

§ 1981 claim she is making. 5 In any case, the facts alleged in the Complaint fail to

state a claim under any § 1981 theory of liability. Plaintiff fails to show that her

termination was based on race—she repeatedly references her termination in the

context of her FMLA claim only—and, concerning her transfer, that similarly-

situated co-workers of a different race were treated more favorably than she, and

so she cannot assert a discrimination claim. See Burke-Fowler v. Orange Cty., 447

F.3d 1319, 1323 (11th Cir. 2006). 6 Nor can Plaintiff assert a retaliation claim, as

she has not shown she engaged in protected activity or that any adverse

employment action was causally connected to protected activity. See Bryant v.

Jones, 575 F.3d 1281, 1307–08 (11th Cir. 2009) (“[A] plaintiff alleging retaliation

must first establish a prima facie case by showing that: (1) he engaged in a

statutorily protected activity; (2) he suffered an adverse employment action; and

5
  Claims for race-based discrimination, retaliation, and hostile work environments are
cognizable under § 1981.
6
  Though Burke-Fowler is a Title VII case, Title VII and § 1981 “have the same requirements of
proof and use the same analytical framework.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318,
1330 (11th Cir. 1998).


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(3) he established a causal link between the protected activity and the adverse

action.”) Finally, Plaintiff’s complaint does not allege facts that would support a

claim for a racially hostile work environment—her allegations are either not based

on her race or are not objectively severe enough to sustain such a claim—and so

could not support a claim for constructive discharge either.7 Thus, there was no

error in finding that Plaintiff’s claim did not state a claim under § 1981.

       Plaintiff did not previously request to amend her complaint, but instead

responded to Defendant’s motion to dismiss or for a more definite statement of

claims by filing a Response attempting to show cause why the Complaint should

not be dismissed. The magistrate judge explicitly declined to sua sponte invite

Plaintiff to amend her complaint. Plaintiff argues on appeal that her case should be

remanded so she can be given the chance to amend her pleading. Though leave to

amend should be freely given when justice requires, Fed. R. Civ. P. 15(a), this

Court has held that “[a] district court is not required to grant a plaintiff leave to

amend his complaint sua sponte when the plaintiff, who is represented by counsel,

never filed a motion to amend nor requested leave to amend before the district

court.” Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir.

2002) (en banc). Plaintiff cannot therefore argue that the district court abused its

7
  Establishing a constructive discharge claim requires demonstrating a greater severity or
pervasiveness of harassment than is required for a hostile work environment claim. Bryant, 575
F.3d at 1298–99.


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discretion in denying Plaintiff leave to amend her complaint, as she had ample time

and opportunity to request such leave, but did not. See Long v. Satz, 181 F.3d

1275, 1279–80 (11th Cir. 1999); see also Bankers Ins. Co. v. Florida Residential

Prop. & Cas. Joint Underwriting Ass’n, 137 F.3d 1293, 1295 n.3 (11th Cir. 1998)

(finding no abuse of discretion when the district court did not sua sponte invite

plaintiff to amend when plaintiff “never sought to amend its complaint during the

months between the motion for judgment on the pleadings and the district court’s

order, or at any time after that order.”). The district court did not err therefore in

dismissing Plaintiff’s FMLA and § 1981 claims without granting leave to amend.

III.   CONCLUSION

       Because we find no reversible error in the district court’s conclusion that

equitable tolling was unavailable to Plaintiff or in its failure to suggest to Plaintiff

that she should amend her Complaint, dismissal of Plaintiff’s claim is

AFFIRMED.




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