         Case: 15-11945   Date Filed: 01/15/2016   Page: 1 of 12


                                                    [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-11945
                       Non-Argument Calendar
                     ________________________

                D.C. Docket No. 1:13-cv-01162-LMM



OLIVIA JIHEEKIM MACK,
DAVID KERRY MACK,
                                            Plaintiffs - Appellants,

versus

DELTA AIR LINES, INC.,
SEDGWICK CLAIMS MANAGEMENT
SERVICES, INC.,

                                            Defendants - Appellees.

                     ________________________

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

                          (January 15, 2016)
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Before HULL, MARCUS, and EDMONDSON, Circuit Judges.



PER CURIAM:



      Plaintiffs Olivia Jiheekim Mack (“Mack”) and David Mack, proceeding pro

se, appeal the district court’s dismissal of Mack’s amended complaint against

Mack’s employer, Delta Air Lines, Inc. (“Delta”), and against Sedgewick Claims

Management Services, Inc. (“Sedgewick”). Plaintiffs also appeal the district

court’s grant of Defendants’ motions for sanctions and denial of Plaintiffs’ motion

for sanctions. No reversible error has been shown; we affirm.

      This case arises out of the denial of Mack’s application for short-term

disability insurance (“STDI”) benefits. Mack declined SDTI benefits when she

was first hired as a Delta flight attendant in 2007. When Mack later applied for

SDTI benefits in October 2008, she was denied coverage because she was

pregnant. Unable to qualify for SDTI benefits, Mack continued to work as a flight

attendant during her pregnancy. Mack alleges that, as a result of her working on

long international flights, she suffered from preeclampsia and high blood pressure

-- putting both her and her unborn baby’s health at risk.

      Mack filed a charge of employment discrimination with the Equal

Employment Opportunity Commission (“EEOC”), alleging that she was


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discriminated against in violation of Title VII, the Age Discrimination in

Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”).

After efforts to obtain a settlement failed, the EEOC issued Mack a right-to-sue

notice.

         On 9 April 2013, Mack filed this civil action against Delta and Sedgewick,

the administrator of Delta’s STDI program. In her initial complaint, Mack

purported to assert against Defendants claims for violations of Title VII, the ADA,

and the ADEA, and several state-law claims.

         The district court dismissed as untimely the employment discrimination

claims arising from Mack’s EEOC charge and dismissed without prejudice Mack’s

remaining state-law claims. The district court also denied as futile Mack’s four

motions to amend the complaint but granted her leave to file an amended

complaint that complied with federal pleading requirements.

         Mack then filed the amended complaint pertinent to this appeal; she

purported to assert against Defendants claims for Title VII retaliation, civil RICO,

and state-law libel. The district court dismissed Mack’s claim for failure to state a

claim.




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                                             I.



       On appeal, Mack challenges the district court’s dismissal of her Title VII

employment discrimination claims as untimely. 1

       To pursue her Title VII discrimination claims in federal court, Mack must

first establish that her complaint was filed within 90 days of her receipt of the

right-to-sue letter from the EEOC. See Green v. Union Foundry Co., 281 F.3d

1229, 1233-34 (11th Cir. 2002) (citing 42 U.S.C. § 2000e-5(f)(1)). We determine

on a case-by-case basis what constitutes “receipt” for purposes of triggering the

90-day limitations period. Zillyette v. Capital One Fin. Corp., 179 F.3d 1337,

1341 (11th Cir. 1999). “[A] plaintiff should not be heard to complain unless the

plaintiff has assumed the minimal burden of advising the EEOC of address

changes or taken other reasonable steps to ensure delivery of the notice to his

current address.” Stallworth v. Wells Fargo Armored Servs. Corp., 936 F.2d 522,

524 (11th Cir. 1991) (quotations and alterations omitted).

       The record shows that the EEOC’s right-to-sue notice was mailed originally

on 27 December 2012, to the address listed on Mack’s EEOC charge. On 7

January 2013, the notice was returned to the EEOC as undeliverable. On 9


1
 Mack raises no challenge to the district court’s dismissal of her ADA or ADEA claims; those
claims are abandoned. See N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217
n.4 (11th Cir. 2008).
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January, the EEOC re-mailed the notice to Mack’s then-current address; and Mack

received the notice on 11 January.

       Viewing the allegations in Mack’s complaint in the light most favorable to

Mack, Mack provided no notice to the EEOC of her new address.2 Mack relied

instead on an expired mail-forwarding request filed with the post office. Because

Mack failed to satisfy her minimal burden of ensuring delivery of the right-to-sue

notice, the 90-day limitation period began running on the date on which Mack

would have received the EEOC’s initial right-to-sue notice at her former address.

See Kerr v. McDonald’s Corp., 427 F.3d 947, 953 (11th Cir. 2005). Assuming

three days for delivery of mail, the limitation period began running on 30

December 2012. See id. at 953 n.9. Because Mack’s complaint was filed 100 days

after the limitation period began to run, and because Mack failed to show

“extraordinary circumstances” warranting equitable tolling, see Jackson v. Astrue,

506 F.3d 1349, 1353 (11th Cir. 2007), the district court committed no error in

dismissing Mack’s Title VII discrimination claims as untimely.




2
  Mack asserts on appeal -- and for the first time -- that she notified the EEOC of her new address
on 11 January 2011. As an initial matter, we do not generally consider issues raised for the first
time on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.
2004). Moreover, Mack’s assertion about her change-of-address notification is contradicted
flatly by her statements in the district court, statements indicating that she in fact provided no
notice directly to the EEOC of her new address.
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                                           II.



      Mack also challenges the district court’s dismissal of her claims for

retaliation and for retaliatory hostile work environment under Title VII. Briefly

stated, Mack’s retaliation claims stem from a letter that Delta’s lawyer sent to the

EEOC in response to Mack’s charge of discrimination (“March 2012 Letter”). In

pertinent part, the March 2012 Letter alleged that Mack declined SDTI benefits at

the time of hire and that it was “only after [Mack] became pregnant and knew the

likelihood of an extended absence was likely” that she applied for SDTI benefits.

      We review de novo a district court’s grant of a motion to dismiss, accepting

the allegations in the complaint as true and construing them in the light most

favorable to the plaintiff. Simmons v. Sonyika, 394 F.3d 1335, 1338 (11th Cir.

2004). A “complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct.

1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974

(2007). To state a plausible claim for relief, a plaintiff must go beyond merely

pleading the “sheer possibility” of unlawful activity by a defendant and so must

offer “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. Our analysis of the plausibility




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standard is “context-specific” and “requires [us] to draw on [our] judicial

experience and common sense.” Id. at 1950.

      To establish a cause of action for retaliation, the plaintiff must show that a

“reasonable employee would have found the challenged action materially adverse.”

Burlington N. & Santa Fe Ry. v. White, 126 S.Ct. 2405, 2415 (2006). An act is

materially adverse if it “might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Id. (quotation omitted). A plaintiff may

also establish a cause of action for retaliatory hostile work environment if she can

show that the defendant’s retaliatory acts were “sufficiently severe or pervasive to

alter the terms and conditions of employment.” Gowski v. Peake, 682 F.3d 1299,

1312 (11th Cir. 2012).

      The district court committed no error in dismissing Mack’s retaliation claims

for failure to state a claim. Mack has failed to allege facts demonstrating plausibly

that the March 2012 Letter would dissuade a reasonable worker from making or

supporting a charge of discrimination. See Burlington, 126 S.Ct. at 2415. When

an employee makes a charge of discrimination, the reasonable employee must

expect that the employer will defend itself to the EEOC. In addition, the March

2012 Letter by itself was not sufficiently severe or pervasive to alter the terms and

conditions of Mack’s employment. See Gowski, 682 F.3d at 1312 (“Discrete acts

cannot alone form the basis of a hostile work environment claim.”).


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                                                 III.



       About Mack’s civil RICO claim, Mack failed to allege with particularity that

Defendants engaged in a pattern of racketeering activity. See McCulloch v. PNC

Bank, Inc., 298 F.3d 1217, 1225 (11th Cir. 2002). In her amended complaint,

Mack alleges that Defendants engaged in mail fraud by underpaying doctors

intentionally so that the completion of medical-eligibility forms would be delayed.

Even accepting this allegation as true, the alleged conduct is no “scheme to defraud

another of money or property” and, thus, constitutes no mail fraud. See Pelletier v.

Zweifel, 921 F.2d 1465, 1498 (11th Cir. 1991).3



                                                 IV.



       The district court also committed no error in dismissing Mack’s state-law

libel claim against Delta, which is based solely on the contents of the March 2012

Letter.




3
 Mack has also failed to allege sufficiently a causal connection between her injury and
Defendants’ alleged mail fraud. Mack contends she was denied STDI benefits based on her
pregnancy, not because she failed to complete her paperwork on time.
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      Under Georgia law, absolute immunity applies to “official court documents

and acts of legal process,” including filings with a state employment agency and

“other quasi-judicial proceedings in administrative tribunals.” Skoglund v.

Durham, 502 S.E.2d 814, 816 (Ga. Ct. App. 1998) (quotations omitted) (citing

O.C.G.A. § 51-5-8). In determining whether absolute immunity applies, courts

look to the “nature of the proceeding and the character of the rights which may be

affected by it.” Id. Pertinent factors to consider may include the availability of

discovery and of an evidentiary hearing, whether the merits of the complaint will

be reached during the proceeding, and the scope of judicial review. Id.

      Before filing a Title VII action in federal court, plaintiffs are required to file

a charge of discrimination with the EEOC. Gregory v. Ga. Dep’t of Human Res.,

355 F.3d 1277, 1279 (11th Cir. 2004). The EEOC is then required to investigate

the charge and may order a fact-finding conference. 29 C.F.R. § 1601.15(a). As

part of its investigative powers, the EEOC is authorized to issue subpoenas

requiring witness testimony and the production of evidence. 29 C.F.R. § 1601.16.

Based on its investigation, the EEOC makes a determination about whether

“reasonable cause” exists to believe that an unlawful employment practice

occurred. 29 C.F.R. §§ 1601.19, 1601.21.

      Given the nature of the EEOC’s investigative process, we agree with the

district court’s determination that an EEOC proceeding constitutes a “quasi-


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judicial” proceeding entitled to absolute immunity under Georgia law. Because the

March 2012 Letter was sent to the EEOC as part of the EEOC’s investigation of

Mack’s discrimination charge against Delta, it fell within the scope of the EEOC’s

“quasi-judicial” administrative process and is entitled to absolute privilege.

      In addition, Mack has failed to allege sufficiently that the March 2012 Letter

was “published”: a necessary element for establishing a claim for libel. See

ComSouth Teleservs., Inc. v. Liggett, 531 S.E.2d 190, 192 (Ga. Ct. App. 2000).

Neither the alleged communication to Delta’s top management and lawyer nor the

communication to a third-party printer constituted “publication” for purposes of

stating a claim for libel under Georgia law. See Galardi v. Steele-Inman, 597

S.E.2d 571, 575-76 (Ga. Ct. App. 2004) (no publication arises from intracorporate

communication or from communication between corporations that are engaged in a

joint enterprise); Beck v. Oden, 13 S.E.2d 468, 471 (1941) (no publication arises

from communication to a “business associate in the ordinary and natural course of

business”). And Mack has failed to plead facts to support her conclusory

allegation that the 2012 March Letter was published to hundreds of other pregnant

and disabled Delta employees. See Iqbal, 129 S.Ct. at 1949.




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                                         V.



      We review for abuse of discretion the district court’s exercise of its inherent

power to impose sanctions. Sciarretta v. Lincoln Nat’l Life Ins. Co., 778 F.3d

1205, 1212 (11th Cir. 2015). Under its inherent authority, a federal court may

assess attorney’s fees and costs against a party or his lawyer “when either has acted

in bad faith, vexatiously, wantonly, or for oppressive reasons.” Byrne v. Nezhat,

261 F.3d 1075, 1106 (11th Cir. 2001) (quotation omitted). A finding of bad faith is

warranted, among other things, when a party “knowingly or recklessly raises a

frivolous argument” or when a party delays or disrupts the litigation. Id. at 1121.

      The record supports the district court’s determination that Plaintiffs acted in

bad faith in filing their third and fourth amended complaints. The third amended

complaint was 86 pages long with 125 pages of exhibits; and the fourth proposed

amendment sought to supplement the complaint with an additional 45 pages of

pleadings and 277 pages of exhibits. Neither the third nor the fourth proposed

amended complaints raised new claims against Defendants. Instead, the proposed

amendments sought only to add new facts, arguments and exhibits, the bulk of

which were not pertinent to or only tangentially related to Mack’s earlier-asserted

claims against Defendants. On this record, the district court abused no discretion

in granting in part Defendants’ motions for sanctions.


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      The district court also abused no discretion in denying Plaintiffs’ motion for

sanctions against Defendants or in denying Plaintiffs’ motion for reconsideration.

Nothing evidences that Defendants acted in bad faith in asserting a preemption

defense under ERISA.

      AFFIRMED.




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