Pamela E. McClure v. Oasis Outsourcing II, Inc.

Case: 16-11783 Date Filed: 12/29/2016 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-11783
Non-Argument Calendar
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D.C. Docket No. 3:15-cv-01832-AKK

PAMELA E. MCCLURE,

Plaintiff-Appellant,

versus

OASIS OUTSOURCING II, INC.,

Defendant-Appellee.

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Appeal from the United States District Court
for the Northern District of Alabama
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(December 29, 2016)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
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Pamela McClure appeals the district court’s dismissal of her complaint

alleging a violation of the Americans with Disabilities Act (“ADA”) against her

employer, Oasis Outsourcing II (“Oasis”). On appeal, McClure argues that: (1) the

district court erred in concluding that she had failed to demonstrate that she

exhausted administrative requirements; and (2) the district court erred in

considering matters outside the pleadings in granting the motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(6). After thorough review, we affirm.

We review de novo the grant of a motion to dismiss under Rule 12(b)(6) for

failure to state a claim, accepting the allegations in the complaint as true and

construing them in the light most favorable to the plaintiff. Randall v. Scott, 610

F.3d 701, 705 (11th Cir. 2010). In reviewing a motion to dismiss, we consider

whether the pleadings contain “sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2007) (quotation omitted). A claim is facially plausible when we can “draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

First, we are unpersuaded by McClure’s claim that the district court erred in

concluding that she had failed to demonstrate that she had exhausted the

administrative requirements of the ADA. The ADA prohibits private employers

from discriminating against a qualified individual with a disability in regard to job

application issues; the hiring, advancement, or discharge of employees; employee

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compensation; job training; and other terms, conditions, and privileges of

employment. 42 U.S.C. § 12112(a); Earl v. Mervyns, Inc., 207 F.3d 1361, 1365

(11th Cir. 2000). Plaintiffs proceeding under the ADA must comply with the same

procedural requirements articulated in Title VII, and this includes the duty to

exhaust administrative remedies. 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5. “A

plaintiff’s judicial complaint is limited by the scope of the [Equal Employment

Opportunity Commission (“EEOC”)] investigation which can reasonably be

expected to grow out of the charge of discrimination.” Mulhall v. Advance

Security, Inc., 19 F.3d 586, 589 n.8 (11th Cir. 1994).

Ordinarily, a party not named in the EEOC charge cannot be sued in a

subsequent civil action. Virgo v. Riveria Beach Assocs., 30 F.3d 1350, 1358 (11th

Cir. 1994). This naming requirement serves to notify the charged party of the

allegations against it and affords the party the opportunity to participate in

conciliation. Id. However, courts liberally construe the naming requirement and

may permit a party unnamed in the EEOC charge to be subjected to the jurisdiction

of federal courts if the purposes of the act are fulfilled. Id. at 1358-59. In order to

determine if the purposes of the act are fulfilled, courts do not apply a rigid test,

but look to several factors, including:

(1) the similarity of interest between the named party and 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
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parties had an adequate opportunity to participate in the reconciliation
process; and (5) whether the unnamed party actually was prejudiced by its
exclusion from the EEOC proceedings.

Id. at 1359.

Here, the district court did not err in granting the motion to dismiss because

the record did not demonstrate that McClure exhausted the administrative

requirements. For starters, defendant Oasis, McClure’s alleged employer, was not

named in her EEOC charge of discrimination. Instead, McClure’s EEOC charge

named “Holiday Inn Express” as her employer and made no factual allegations

concerning the conduct of Oasis or its employees in relation to the claim. In fact,

the word “Oasis” appeared nowhere in the charge. Thus, Oasis was not afforded

an opportunity to participate in the reconciliation process because nothing in the

charge would notify the EEOC of the need to investigate any conduct of Oasis or

attempt reconciliation efforts with Oasis.

Moreover, Oasis did not receive adequate notice of the charge, since the

notice of right to sue letter was not addressed to Oasis, but was sent to a law firm

that did not represent Oasis. The record demonstrates that McClure could have

ascertained the identity of Oasis; she acknowledged that she had payroll documents

identifying Oasis as her employer prior to filing her EEOC charge, and that she

relied upon those documents in filing her worker’s compensation claim in 2012. In

addition, we have no reason to believe that the district court erred in concluding

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that “there is nothing in the complaint [McClure] filed in this court or in Holiday

Inn’s response to the EEOC charge to establish that Holiday Inn transmitted [the]

EEOC charge to Oasis.” On this record, McClure has failed to demonstrate that

she exhausted the administrative requirements of the ADA or that the purposes of

the act were fulfilled. See Virgo, 30 F.3d at 1359.

We also find no merit to McClure’s claim that the district court erred in

considering matters outside the pleadings in granting the motion to dismiss. Rule

of Civil Procedure 12(d) provides that “[i]f, on a motion under Rule 12(b)(6) . . .

matters outside the pleadings are presented to and not excluded by the court, the

motion must be treated as one for summary judgment under Rule 56.” There is,

however, an exception to this rule. SFM Holdings, Ltd. v. Banc of Am. Sec., LLC,

600 F.3d 1334, 1337 (11th Cir. 2010). “In ruling upon a motion to dismiss, the

district court may consider an extrinsic document if it is (1) central to the plaintiff's

claim, and (2) its authenticity is not challenged.” Id.

It is a cardinal rule of appellate review that a party may not challenge as

error a ruling or other trial proceeding invited by that party. Crockett v. Uniroyal,

Inc., 772 F.2d 1524, 1530 n.4 (11th Cir. 1985). “The doctrine of invited error

stems from the common sense view that where a party invites the trial court to

commit error, he cannot later cry foul on appeal.” Yellow Pages Photos, Inc. v.

Ziplocal, LP, 795 F.3d 1255, 1283 (11th Cir. 2015) (quotation omitted).

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In this case, the district court did not err in considering materials outside the

complaint in granting the motion to dismiss under Rule 12(b)(6). The court’s order

cited to three exhibits that McClure attached to her amended complaint and motion

to dismiss, each of which she incorporated into and referenced in her pleadings.

These included Holiday Inn’s position statement, the EEOC charge of

discrimination, and the notice of right to sue letter. Each of these documents were

central to McClure’s claim, since she provided them to the court in order to

demonstrate that she satisfied the administrative requirements of the ADA and to

support her allegation that no one informed her that the employer was

misidentified throughout her EEOC proceedings. She also relies upon these

documents in her brief to this Court. Moreover, their authenticity was not

challenged. For these reasons, the court did not err in granting the motion to

dismiss. See SFM Holdings, 600 F.3d at 1337 (court did not err in considering

materials outside the complaint in ruling on a motion to dismiss because the

plaintiff referred to the document in the complaint). But in any event, even if the

court did err, that error would have been harmless because it was invited by

McClure. Crockett, 772 F.2d at 1530 n.4.

AFFIRMED.

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