[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15145 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 23, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cv-20244-PAS
JAMES FRANCOIS,
Plaintiff-Appellant,
versus
MIAMI DADE COUNTY, PORT OF MIAMI,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 23, 2011)
Before HULL, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
James Francois appeals the district court’s grant of summary judgment in
favor of his former employer, the Miami Dade County Port of Miami (Miami), in
his employment discrimination suit under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-2(a), and the Florida Civil Rights Act (FCRA), § 760.07,
Fla. Stat. Francois raises two issues on appeal, which we address in turn.
I.
Francois first argues the district court abused its discretion by denying his
motion to amend his complaint to include a cause of action for retaliation. Even
though he filed his motion 52 days after the deadline to amend pleadings as set by
the scheduling order, he asserts the court erred by denying his motion before the
deadline for filing his reply to Miami’s response.1
In order to amend a pleading after a court-imposed deadline, a party must
show good cause pursuant to Federal Rule of Civil Procedure 16(b). Sosa v.
Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998). A party may not show
good cause for failing to amend his complaint within the deadline set by the
court’s scheduling order where he fails to act diligently in pursuing claims. Id.
1
We review a district court’s decision to enforce its pretrial order for an abuse of
discretion. See Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998).
2
We are willing to assume, arguendo, that Francois has preserved his
argument that the district court abused its discretion by allegedly denying his
motion prematurely. However, even if we further assume the court ruled before
the time for filing a reply had expired, Francois still has not shown the denial of
leave to amend constituted an abuse of discretion. Francois did not act diligently
in pursuing his claim of national origin discrimination. Even if given more time to
respond, he would have been hard pressed to show good cause for failing to meet
the deadline to amend pleadings. See Sosa, 133 F.3d at 1419. Additionally,
Francois does not show the alleged error was anything other than harmless
because he does not demonstrate how it affected his substantial rights. Goldsmith
v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1276 (11th Cir. 2008). Thus, we
conclude the district court did not abuse its discretion by denying Francois’
motion to amend his complaint.
II.
Second, Francois argues the court should not have granted summary
judgment on his claim of national origin discrimination. Francois contends that
even though his Equal Employment Opportunity Commission (EEOC) charge did
3
not include such a claim, he fulfilled the purposes of exhaustion by including the
claim in his EEOC intake questionnaire which put Miami on notice of this claim.2
In order to file a judicial complaint under Title VII, a plaintiff must first
administratively exhaust any claims by filing a charge with the EEOC. 42 U.S.C.
§ 2000e-5(e); Vason v. City of Montgomery, Ala., 240 F.3d 905, 907 (11th Cir.
2001). “[T]he scope of [a] judicial complaint is limited to the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of
discrimination.” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.
1970) (quotations omitted and emphasis added).
The law is clear that a charge must be verified - i.e., written under oath or
affirmation - in order to support a valid judicial suit. 42 U.S.C. § 2000e-5(b);
Vason, 240 F.3d at 907. Additionally, “charges should contain, among other
things, ‘[a] clear and concise statement of the facts, including pertinent dates,
constituting the alleged unlawful employment practices.’” Alexander v. Fulton
Cnty, Ga., 207 F.3d 1303, 1332 (11th Cir. 2000) (quoting 29 C.F.R.
§ 1601.12(a)(3)), overruled on other grounds by Manders v. Lee, 338 F.3d 1304,
1328 n. 52 (11th Cir. 2003) (en banc).
2
We review de novo a district court’s grant of summary judgment. Vason v. City of
Montgomery, Ala., 240 F.3d 905, 906 (11th Cir. 2001).
4
Though we have never directly addressed the effect of an intake
questionnaire for exhaustion purposes, we have considered the interrelationship
between an EEOC charge and an intake questionnaire several times when
assessing whether a charge has been timely filed. In Wilkerson v. Grinnell
Corporation we held an intake questionnaire could be considered a charge for the
purpose of satisfying the statute of limitations where: the questionnaire was
verified; the questionnaire contained the basic information required by a charge;
and the form’s language could have been interpreted to represent a charge. 270
F.3d 1314, 1320-21 (11th Cir. 2001).
This is not the general rule, however. In one case, we stated that, “as a
general matter an intake questionnaire is not intended to function as a charge.”
Pijnenburg v. West Georgia Health Sys., Inc., 255 F.3d 1304, 1305 (11th Cir.
2001) (emphasis added). Therefore, we held the plaintiff’s unverified intake
questionnaire did not satisfy Title VII’s timely filing requirement, as it did not
notify her employer of her claim or initiate the EEOC investigation. Id. at 1306.
In a second case, we similarly held a plaintiff’s intake questionnaire, which was
filed along with an affidavit, did not satisfy the requirements of a timely charge.
Bost v. Fed. Express Corp., 372 F.3d 1233, 1241 (11th Cir. 2004). There, after
considering the law set forth in Wilkerson, we noted the circumstances did not
5
support a conclusion that the questionnaire satisfied the timely filing requirement,
because: the plaintiff clearly understood the intake questionnaire was not a charge
because he later filed a timely charge; the EEOC did not initiate its investigation
until after the plaintiff filed his charge; and the questionnaire form itself did not
suggest it was a charge. Id.
Without definitively deciding whether an EEOC intake questionnaire may
ever be considered when determining whether a plaintiff’s Title VII or FCRA
claim has been exhausted, we hold the district court correctly granted summary
judgment in this case. First, if only the EEOC charge itself should have been
considered, Francois failed to administratively exhaust his national origin
discrimination claim because he did not check the box for national origin, or
allege any facts in the narrative section that could be construed to raise such a
claim of discrimination.
Second, even if an intake questionnaire can be taken into account under
certain circumstances, the facts do not support doing so here. As in Pijnenburg,
undisputed evidence showed Francois’s intake questionnaire was not verified, and
the form language did not indicate it would be considered a charge when a
plaintiff also filed a timely charge, as Francois did. Furthermore, the fact Francois
6
filed an actual timely charge suggests he did not intend his intake questionnaire to
function as a charge. See Bost, 372 F.3d at 1241.
Finally, none of the evidence demonstrated Miami was on notice of the
national origin claim. Moreover, the EEOC did not investigate the national origin
discrimination claim. Thus, the district court did not err when it concluded
Francois did not fulfill the purposes of exhaustion. See Kilgo v. Bowman Transp.,
Inc., 789 F.2d 859, 877 (11th Cir. 1986) (noting the filing of an EEOC charge
serves two purposes: to put the defendant on notice of the claim, and to give the
EEOC an opportunity to settle the grievance).
AFFIRMED.
7