                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________           FILED
                                                 U.S. COURT OF APPEALS
                              No. 10-11751         ELEVENTH CIRCUIT
                          Non-Argument Calendar     NOVEMBER 8, 2010
                        ________________________        JOHN LEY
                                                         CLERK
                  D.C. Docket No. 1:04-cv-00054-MP-AK

ROBERT B. LEWIS,

                                             lllllllllllllllllllllPlaintiff-Appellant,

                                   versus

ASPLUNDH TREE EXPERT COMPANY,
A Pennsylvania corporation, et al.,

                                                      lllllllllllllllllllllDefendants,

CITY OF GAINESVILLE,
A political subdivision,

                                            lllllllllllllllllllllDefendant-Appellee.

                       ________________________

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

                            (November 8, 2010)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.

PER CURIAM:

      Robert B. Lewis, an African-American male, filed a lawsuit against his

former employer, Asplundh Tree Expert Company, alleging racial discrimination,

harassment, and retaliation in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e–2(a) and 2000e–3(a). He also named as defendants the

City of Gainesville, alleging violations of his rights under Title VII and 42 U.S.C.

§ 1983, and an employee of a City agency, James R. Evans, alleging violations of

his rights under § 1983 and Florida tort law. Lewis settled with Asplundh and

voluntarily dismissed his claims against it. Lewis’ § 1983 and Florida tort law

claims were later dismissed as time-barred. See Lewis v. Asplundh Tree Expert

Co., 305 Fed. Appx. 623, 628 (11th Cir. 2008).

      The only claim remaining in this appeal is Lewis’ Title VII claim against the

City. The district court granted summary judgment in favor of the City on that

claim, concluding that the City was not named as a party in Lewis’ charge with the

Equal Employment Opportunity Commission. Lewis appeals that judgment.

      Lewis’ allegations against the City arise out of his employment as a laborer

with Asplundh. During that time Asplundh had a three-year utilities installation

contract with Gainesville Regional Utilities (GRU), a municipal agency operated

                                          2
by the City. Lewis alleged that Evans—the GRU site inspector responsible for

inspecting and approving Asplundh’s work for compliance with contract plans and

specifications—continuously harassed Asplundh’s African-American employees.

That harassment included placing a noose around Lewis’ neck and threatening to

hang him in a tree. After Lewis reported Evans’ conduct to his superiors at

Asplundh and was eventually laid off, he filed a charge with the EEOC. After the

EEOC failed to resolve his claim with Asplundh, issued a right-to-sue letter, and

sent notice of that letter to Asplundh, Lewis filed this lawsuit.

      Lewis contends that the district court erred by concluding that he did not

satisfy the precondition of naming the City in his EEOC charge because the

purposes of Title VII were fulfilled. He bases that contention on the fact that the

body of his EEOC charge identified Evans in his position as a GRU inspector as

the person who allegedly discriminated acts against him. He further asserts that

because various City employees had actual notice of the EEOC charge against

Asplundh and the investigation of Asplundh, the City had adequate notice that it

could be named as a defendant in a later lawsuit and was not prejudiced by Lewis’

failure to name the City anywhere in his EEOC charge.

      “We review de novo a district court’s grant of summary judgment.”

Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1263 (11th Cir. 2010).

                                           3
“We will affirm if, after construing the evidence in the light most favorable to the

non-moving party, we find that no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law.” Id. at 1263–64.

       A person seeking to file a lawsuit under Title VII must first file a charge

with the EEOC alleging a Title VII violation, and then obtain authorization from

the EEOC or, in the case of a political subdivision of a state government, the

Attorney General.1 See Virgo v. Riviera Beach Assoc., Ltd., 30 F.3d 1350, 1358

(11th Cir. 1994); 42 U.S.C. § 2000e–5(f)(1). Generally, a party not named in the

EEOC charge may not be sued in a later civil action. Virgo, 30 F.3d at 1358. That

naming precondition “serves to notify the charged party of the allegation and

allows the party an opportunity to participate in conciliation and voluntarily

comply with the requirements of Title VII.” Id.

       That naming precondition, however, must be liberally construed. Id.

Sometimes a party not named in the EEOC charge may still be sued in a later civil

action but only if doing so fulfills the purposes of the Title VII. Id. at 1358–59. In




       1
          The City argues alternatively that Lewis did not receive the requisite authorization from
the Attorney General in the form of a right-to-sue letter. The record does not contain any right-
to-sue letter from the Attorney General or show any efforts by Lewis or the EEOC to obtain such
a letter. Because we affirm on other grounds, however, we need not reach that issue.

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analyzing whether the purposes of Title VII are met, this Court considers several

factors, including:



       (1) the similarity of interest between the named party and the unnamed
       party; (2) whether the plaintiff could have ascertained the identity of the
       unnamed party at the time the EEOC charge was filed; (3) whether the
       unnamed parties received adequate notice of the charges; (4) whether
       the unnamed parties had an adequate opportunity to participate in the
       reconciliation [sic] process; and (5) whether the unnamed party actually
       was prejudiced by its exclusion from the EEOC proceedings.

Id. at 1359. That is not meant to be a “rigid test” and “[o]ther factors may be

relevant depending on the specific facts of the case.” Id.

       One additional factor sometimes considered by this Court is whether an

investigation of the unnamed party “could have reasonably grown out of [the

EEOC] charge.” Hamm v. Members of Bd. of Regents, 708 F.2d 647, 650 (11th

Cir. 1983); see also Terrell v. U.S. Pipe & Foundry Co., 644 F.2d 1112, 1123 (5th

Cir.1981), vacated on other grounds sub nom. Int’l Ass’n of Machinists &

Aerospace Workers, AFL-CIO v. Terrell, 456 U.S. 955, 102 S.Ct. 2028 (1982).2

That factor weighs in favor of inclusion of an unnamed party if the party’s identity

or participation in the alleged discrimination is or is likely to be uncovered during


       2
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.

                                               5
the EEOC’s reasonable investigation growing out of the charge. See Terrell, 644

F.2d at 1123.

      Permitting Lewis to sue the City despite his failure to name it as a party in

his EEOC charge would not further the purposes of Title VII. None of the factors

weigh in Lewis’ favor. There is no similarity of interest between the City and

Asplundh. A short term contractual relationship was the only legal relationship

between Asplundh—a private contractor and Lewis’ employer—and the City.

Lewis could have easily ascertained the City’s identity before filing his EEOC

charge. In fact, he clearly knew the City’s identity because he included Evans—an

employee of a City agency—in the factual description part of his EEOC charge.

While the City had notice of the charges against Asplundh, it had no notice of

charges or any potential charges against it on the theory that it was Lewis’

employer under Title VII. The City was not included or invited to participate in

any part of the EEOC conciliation process. The City was prejudiced by facing a

lawsuit without notice from Lewis or the EEOC that they would seek to impose

Title VII liability against the City and without an adequate opportunity to

participate in the conciliation process.

      Additionally, it is difficult to say that investigation of the City did or

reasonably could have grown out of Lewis’ EEOC charge. The EEOC

                                           6
investigated Lewis’ charge for nearly three years and never thought to include the

City within the scope of its investigation. That the EEOC did not pursue the City

makes sense. It would be a stretch for an EEOC investigator to consider the

relationship between Lewis and the City to be an employer-employee relationship

that would trigger liability under Title VII. Lewis was an employee of an

independent contractor of the City, not an employee of the City. Investigation of

the City thus did not and could not have reasonably grown out of the EEOC

charge against Lewis’s employer, Asplundh. Accordingly, the district court did

not err in granting the City’s motion for summary judgment.

      AFFIRMED.




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