           Case: 13-10145   Date Filed: 10/03/2013   Page: 1 of 13


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10145
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:10-cv-02503-TCB

JOHNNY GILES, JR.,

                                                            Plaintiff-Appellant,

                                  versus


BELLSOUTH TELECOMMUNICATIONS, INC.,
BELLSOUTH CORPORATION,
AT&T INC.,

                                                         Defendants-Appellees.

                       ________________________

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

                            (October 3, 2013)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
             Case: 13-10145     Date Filed: 10/03/2013   Page: 2 of 13


      Johnny Giles, an African-American male over the age of 40, appeals the

district court’s grant of summary judgment in favor of defendants BellSouth

Telecommunications, Inc., BellSouth Corporation, and AT&T, Inc., on his pro se

complaint alleging discrimination in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-2(a)(1), and the Age Discrimination in Employment

Act, 29 U.S.C. § 623(a)(1). Mr. Giles argues that summary judgment was improper

because sufficient evidence showed that BellSouth discriminated on the basis of

his age, race, and sex by (1) denying him a promotion to the position of services

technician, (2) subjecting him to a hostile work environment, (3) imposing

intolerable working conditions that led to his constructive discharge, and (4)

violating the Georgia Racketeer Influenced and Corrupt Organizations Act by

defrauding customers and engaging in racial discrimination. Upon review of the

record and the parties’ briefs, we affirm the district court’s grant of summary

judgment.

                                         I.

      Mr. Giles began working for BellSouth in 1971. He held various positions

until he retired as a testing technician in 2001. Mr. Giles soon regretted his

decision. He eventually reapplied to BellSouth, and was hired as a sales associate.

      As a sales associate, Mr. Giles was responsible for recommending and

selling a variety of telecommunications products and services over the phone. He

                                         2
             Case: 13-10145     Date Filed: 10/03/2013   Page: 3 of 13


quickly became disenchanted with his position. Managers would announce over

speakers which employees had, and which had not, made sufficient sales for the

day. They would also counsel employees on their performance in areas of the

office where other employees could listen to the conversations. Mr. Giles found

this environment stressful, and testified that his job was only made worse by the

repeated counseling by his managers due to Mr. Giles frequently being late to

work. Unhappy with his position as a sales associate, Mr. Giles diligently applied

to other positions using BellSouth’s formal bidding process, but failed to apply to

any services technician positions from November to December of 2008.

      After being disciplined numerous times for his poor performance and

chronic tardiness, Mr. Giles voluntarily resigned on December 18, 2008. In his

resignation meeting with BellSouth he was repeatedly asked whether he was sure

he wanted to resign, but Mr. Giles testified he was “fed up” and had “made up [his]

mind.” Upon execution of the resignation paperwork, BellSouth agreed to, among

other things, provide Mr. Giles 79 weeks termination pay and to keep him on the

payroll until he exhausted his vacation time.

      On April 9, 2009, Mr. Giles filed an intake form and verified charge of

discrimination with the Equal Employment Opportunity Commission. The charge

of discrimination alleged only that BellSouth’s failure to promote Mr. Giles to




                                         3
             Case: 13-10145     Date Filed: 10/03/2013   Page: 4 of 13


services technician from “November 2008 up to December 31, 2008” and his

“discharge” violated Title VII and the ADEA.

                                         II.

      We review a district court’s grant of summary judgment de novo. Brooks v.

Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1161-62 (11th Cir. 2006)

(citation omitted). We consider all evidence and reasonable factual inferences in

the light most favorable to the non-moving party. Rojas v. Fla. Dep’t of Bus. &

Prof’l Regulations Pari-Mutual, 285 F.3d 1339, 1341-42 (11th Cir. 2002) (citation

and quotation marks omitted). Summary judgment is appropriate if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, show there is no genuine issue of material fact and that the moving party

is therefore entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See also

Wilson v. B/E/ Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004) (citations

omitted). The moving party bears the burden of production. Fickling v. United

States, 507 F.3d 1302, 1304 (11th Cir. 2007) (citation omitted). If the moving party

meets this burden, “the nonmoving party must present evidence beyond the

pleadings showing that a reasonable jury could find in its favor.” Id. “For factual

issues to be considered genuine, they must have a real basis in the record,” Mize v.

Jefferson City Bd. Of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (citations omitted),

and mere conclusions and unsupported factual allegations are legally insufficient to

                                         4
                Case: 13-10145       Date Filed: 10/03/2013       Page: 5 of 13


defeat a summary judgment motion. Bald Mountain Park, Ltd. v. Oliver, 863 F.2d

1560, 1563 (11th Cir.1989).

                                              III.

       Upon review, we conclude that the district court properly granted summary

judgment on Mr. Giles’ claims. In doing so, though the court correctly rejected the

majority of Mr. Giles’ claims on the merits, it erred by addressing his hostile

workplace claim because it was not administratively exhausted with the EEOC. 1

                                               A.

       Under both Tile VII and the ADEA, as a condition precedent to filing a law

suit an individual must exhaust his administrative remedies by filing a charge of

unlawful discrimination with the EEOC. See Wilkerson v. Grinnell Corp., 270 F.3d

1314, 1317 (11th Cir. 2001) (citing 42 U.S.C. § 2000e-5(b)) [Title VII]; Bost v.

Fed. Express Corp., 372 F.3d 1233, 1238 (11th Cir. 2004) (citing 29 U.S.C. §

626(d)(2)) [ADEA]. The filing of a charge of discrimination marks the beginning

of a regulatory scheme involving “‘an integrated, multi-step enforcement

procedure’ that enables the EEOC to detect and remedy various discriminatory


1
  We reject as meritless Mr. Giles’ argument on appeal that the district court erred by dismissing
AT&T Inc. and BellSouth Corporation as parties. These corporations presented a declaration
from payroll analyst Devin Meier, who explained there was no record of Mr. Giles ever working
for either company. And although Mr. Giles testified that over his career he worked for “every
company that is out there that was under the AT&T umbrella,” he admitted that between 2005
and 2009 he only worked as a sales associate for BellSouth Telecommunications. Review of the
evidence shows there is no doubt the district court properly dismissed AT&T Inc. and BellSouth
Corporation.
                                                5
              Case: 13-10145    Date Filed: 10/03/2013   Page: 6 of 13


employment practices.” Bost, 372 F.3d at 1238-1239 (quoting E.E.O.C. v. Shell Oil

Co., 466 U.S. 54, 62 (1984)). In order to ensure that individuals do not circumvent

this regulatory process and that “the settlement of grievances be first attempted

through the office of the EEOC,” Wu v. Thomas, 863 F.2d 1543, 1548 (11th Cir.

1989) (citation omitted), a plaintiff’s federal complaint is “limited by the scope of

the EEOC investigation which can reasonably be expected to grow out of the

charge of discrimination.” Mulhall v. Advance Sec., Inc., 19 F.3d 586, 589 n.8

(11th Cir. 1994) (citation omitted).

      Prior to reaching the merits of Mr. Giles’ claims of discrimination, we must

first determine whether the district court properly addressed only those claims that

Mr. Giles exhausted through his verified charge of discrimination. We have said

that judicial claims are exhausted if they are “like or related to, or grew out of”

allegations in an EEOC charge, and that a plaintiff may assert claims that merely

“‘amplify, clarify, or more clearly focus’” allegations raised before the EEOC.

Gregory v. Ga. Dept. of Human Res., 355 F.3d 1277, 1279-1280 (11th Cir. 2004).

Although we are “extremely reluctant to allow procedural technicalities to bar

claims” and “the scope of an EEOC complaint should not be strictly interpreted,”

Id. at 1280, a plaintiff is nevertheless barred from raising new acts of

discrimination in his complaint. Wu, 863 F.2d at 1547 (citation omitted).




                                         6
             Case: 13-10145     Date Filed: 10/03/2013   Page: 7 of 13


      Here, the district court correctly held Mr. Giles exhausted his failure to

promote and constructive discharge claims, but erred by addressing his hostile

workplace claim on the merits. Mr. Giles’ charge speaks for itself:

      Beginning on or about November 2008 up to December 31, 2008 I
      have been denied a promotion to Service Technician. I complained
      formally to Human Resources on December 10, 2008 that I felt that I
      was being denied a promotion based on my race and age. No
      investigation was performed. On February 23, 2009 I was discharged.

      No reason was given for denial of my promotion. The reason given
      for my termination was that: “I had a poor attendance record and that I
      did not meet sales goals.”

      I believe I have been discriminated against based on my race
      (African-American) and in retaliation for opposing unlawful
      employment practices in violation of Title VII of the Civil Rights Act
      of 1964, as amended, and because of my age (56) in violation of the
      Age Discrimination in Employment act of 1967, as amended.

Mr. Giles’ allegations pertain only to his failure to promote and constructive

discharge claims. Because his hostile workplace claim is a “new act of

discrimination” not exhausted in his administrative charge, Mr. Giles was barred

from raising the claim in his complaint. Wu, 863 F.2d at 1547 (citation omitted).

The district court should therefore have only addressed Mr. Giles’ failure to

promote, constructive discharge, and RICO claims, which we examine in turn

below.




                                         7
             Case: 13-10145     Date Filed: 10/03/2013   Page: 8 of 13


                                        B.

      We conclude that the district court properly dismissed the failure to promote,

constructive discharge, and Georgia RICO claims on the merits. Those claims are

squarely foreclosed by circuit precedent because (1) Mr. Giles never applied for

the promotion he contends he should have received, (2) his alleged workplace

conditions are insufficient to prove he was compelled to resign, and (3) his Georgia

RICO claim is not cognizable under the express terms of the statute.

                                         1.

      Under both Title VII and the ADEA, a plaintiff may show a company’s

failure to promote was discriminatory through either direct or circumstantial

evidence. Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir.

2012) (examining allegations of discrimination in ADEA context); E.E.O.C. v.

Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000) (examining

allegations of discrimination in Title VII context). “Direct evidence is evidence

that establishes the existence of discriminatory intent behind the employment

decision without any inference or presumption.” Standard v. A.B.E.L. Servs., Inc.,

161 F.3d 1318, 1330 (11th Cir. 1998) (citation omitted). See also Wilson, 376 F.3d

at 1086 (noting that “‘only the most blatant remarks, whose intent could mean

nothing other than to discriminate on the basis of’ some impermissible factor

constitute direct evidence of discrimination.”). Circumstantial evidence, on the

                                         8
             Case: 13-10145     Date Filed: 10/03/2013   Page: 9 of 13


other hand, may be proven under the framework articulated in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). See Kragor, 702 F.3d at 1308 (applying

McDonnell Douglas framework to ADEA claim); Joe’s Stone Crab, Inc., 220 F.3d

at 1286 (applying McDonnell Douglas framework to Title VII claim). A plaintiff

proves a prima facie case of discrimination under this framework by showing that:

(1) he belongs to a protected class, (2) he both applied and was qualified for a

promotion, (3) he was rejected despite his qualifications, and (4) other equally or

less-qualified employees outside his class were promoted. Brown v. Ala. Dept. of

Transp., 597 F.3d 1160, 1174 (11th Cir. 2010) (citation omitted). If, however, “an

employer has a formal system of posting vacancies and allowing employees to

apply for such vacancies, an employee who fails to apply for a particular position

cannot establish a prima facie case of discriminatory failure to promote.” Williams

v. Giant Food Inc., 370 F.3d 423, 430 (4th Cir. 2004) (citations omitted). See also

Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1345 (11th Cir. 2003) (reaching the

same conclusion in a reduction-in-force context).

      Mr. Giles’ failure to promote claim could not survive summary judgment.

Mr. Giles offered no direct evidence of discrimination, and was unable to prove his

claim by pointing to circumstantial evidence. In light of the allegations exhausted

in his charge of discrimination filed with the EEOC, Mr. Giles is limited to arguing

that his rights were violated for failing to receive a promotion to services

                                         9
               Case: 13-10145       Date Filed: 10/03/2013       Page: 10 of 13


technician from “November 2008 up to December 31, 2008.” Confined to these

factual bounds, his claim fails. 2 The undisputed facts below state that “[a]lthough

Giles bid on a number of Services Technician titles from January 2008 forward, he

did not have a bid on file for any of the Services Technician vacancies which were

filled between November 2008 and April of 2009.” Mr. Giles’ failure to submit an

application for a services technician position through his employer’s formal system

of posting vacancies dooms his claims. Generally, a plaintiff cannot claim an

employer discriminatorily failed to give a promotion when the employee never

applied for the position.3




2
  Although Mr. Giles filed an unverified EEOC intake form that provided more detailed and
temporally broader allegations of discrimination than the verified EEOC charge of
discrimination, the district court ruled that the intake form could not serve as a basis for
exhaustion. Mr. Giles does not challenge the district court’s exhaustion analysis on appeal. Even
if he had, we would reach the same conclusion as the district court. At least under the
circumstances of this case, allowing Mr. Giles’ unverified EEOC intake form to exhaust
allegations of discrimination would defeat the aim of an administrative scheme designed, in part,
to swiftly settle claims of discrimination through non-legal means. See Fed. Exp. Corp. v.
Holowecki, 552 U.S. 389, 395-407 (2008) (examining whether EEOC intake form should serve
as a charge of discrimination for ADEA claim); Pijnenburg v. West Ga. Health Sys., Inc., 255
F.3d 1304, 1305-1307 (11th Cir. 2001) (examining whether EEOC intake form should serve as a
charge of discrimination for Title VII claim).
3
  We note that a plaintiff alleging discrimination need not show he applied for a job or promotion
if doing so would have been futile, Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 367
(1977), and that this principle applies to cases where the employer has a “consistently enforced
discriminatory policy” that will deter applicants who are aware of the policy from applying
because they know they face “certain rejection.” Id. at 365. We need not consider this point
because Mr. Giles did not raise this argument before us or the district court.

                                               10
             Case: 13-10145    Date Filed: 10/03/2013   Page: 11 of 13


                                        2.

      Turning our attention next to Mr. Giles’ constructive discharge claim, we

conclude that it too lacks merit. The burden of proving a claim of constructive

discharge under both Title VII and the ADEA is high, requiring the plaintiff to

show that an employer, on account of the plaintiff’s statutorily protected status,

imposed working conditions “so intolerable” that a reasonable person in such a

position “would have been compelled to resign.” Hipp v. Liberty Nat. Life Ins. Co.,

252 F.3d 1208, 1230-1231 (11th Cir. 2001) (discussing constructive discharge in

ADEA context) (citation omitted); Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d

974, 977 (11th Cir. 2003) (discussing constructive discharge in Title VII context)

(citation omitted). We evaluate the nature of these conditions under an objective

standard, and do not take the “subjective feelings” of the plaintiff into account.

Doe v. Dekalb Cnty. Sch. Dist., 145 F.3d 1441, 1450 (11th Cir. 1998).

      Applying this standard, we conclude that Mr. Giles failed to prove his

constructive discharge claim. Viewing Mr. Giles’ described workplace conditions

from an objective standpoint, they were not so intolerable that a reasonable person

in his position would have been compelled to resign. Hipp, 252 F.3d at 1233

(noting employees are not guaranteed “a stress-free working environment.”). The

district court therefore properly granted summary judgment on this claim.




                                        11
             Case: 13-10145     Date Filed: 10/03/2013    Page: 12 of 13


                                          3.

      We address finally the claim that BellSouth violated Georgia’s RICO statute.

Mr. Giles argues on appeal that BellSouth violated the statute by adding duplicate

charges and features to customers’ bills and by discriminating against African-

Americans. Under the statute, it is unlawful to engage in a “pattern of racketeering

activity.” Ga. Code Ann. § 16-14-4. A pattern of racketeering activity is defined as

engaging “in at least two acts of racketeering activity in furtherance of one or more

incidents, schemes, or transactions,” Id. at § 16-14-3(8)(A), and racketeering

activity, in turn, is defined as committing, or attempting to commit, certain

predicate acts consisting of violent crimes, drug crimes, and fraud. Id. at § 16-14-

3(9). The statute also provides a cause of action for any person injured by a

violation of the statute, which requires proving two or more predicate acts were

committed and that the plaintiff’s injury was the proximate cause of those acts. Id.

at § 16-14-6(c); see also O’Neal v. Garrison, 263 F.3d 1317, 1323 (11th Cir.

2001).

      The district court did not err in granting summary judgment on this claim.

The record contains no evidence that Mr. Giles was injured by BellSouth’s

commission of any predicate acts. Despite Mr. Giles’ apparent argument to the

contrary, racial discrimination is not listed under the statute as a predicate act. See

Ga. Code Ann. § 16-14-3(9).

                                          12
            Case: 13-10145     Date Filed: 10/03/2013   Page: 13 of 13


                                       IV.

      We conclude the district court did not err in granting summary judgment on

Mr. Giles’ exhausted claims.

AFFIRMED.




                                        13
