[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 13, 2006
No. 05-13107 and 05-13342 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00020-CV-CDL-4
SANDRA J. DAVIS,
Plaintiff,
VELMA B. DUNCAN,
ROSA BROWN,
ANNETTE AMICK,
Plaintiffs-Appellants,
versus
VALLEY HOSPITALITY SERVICES, LLC,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Middle District of Georgia
_________________________
(November 13, 2006)
Before BIRCH, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Plaintiffs Velma B. Duncan, Rosa Brown, and Annette Amick appeal the
district court’s orders in their employment discrimination action denying class
certification, No. 05-13107, and granting defendant Valley Hospitality Services,
LLC (“Valley Hospitality”) summary judgment, No. 05-13342.1
Duncan, Brown, and Amick were employed and fired by a hotel in
Columbus, Georgia, owned by Valley Hospitality. Following their terminations,
each filed charges of discrimination with the Equal Employment Opportunity
Commission (“EEOC”). Duncan alleged that she was fired because of her race,
Brown alleged that she was fired because of her race and age, and Amick alleged
that she was fired because of her age. R1-31, Exh. A. None of the EEOC charges
sought to assert claims on behalf of other employees or alleged that Valley
Hospitality’s discrimination was class-wide. After Duncan and Brown had filed
their charges but before Amick had filed her charge, Duncan and Brown’s attorney
sent a letter to the EEOC alleging that Valley Hospitality engaged in class-wide
race and age discrimination and seeking “to amend their EEOC charges . . . for all
other similarly situated employees.” R2-33, Exh. A. The parties, however, took
1
. These appeals were consolidated with No. 05-13670, in which defendant Valley
Hospitality Services, LLC appealed the district court’s interlocutory order denying its motion for
summary judgment against plaintiff Sandra J. Davis. We hereby vacate the consolidation of
these appeals. This opinion deals only with Nos. 05-13107 and 05-13342. A separate opinion
will be issued as to No. 05-13670.
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no further action to amend their EEOC charges. After the EEOC issued right to
sue letters, Duncan, Brown, and Amick filed their complaint.
The district court correctly granted Valley Hospitality’s motion to dismiss
the class-wide discrimination charges because the letter from Duncan and Brown’s
attorney did not comply with Title VII’s charge and amendment requirements. The
letter did not constitute a valid EEOC charge of discrimination because it was not
verified and there was no effort made to amend it to include a verification. See
Vason v. City of Montgomery, Ala., 240 F.3d 905, 907 (11th Cir. 2001) (per
curiam). The letter did not validly amend the previously filed charge because it
clearly sought to add new separate charges of class-wide discrimination instead of
clarifying or amplifying the original allegations. See 29 C.F.R. § 1601.12(b);
Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500, 502-03 (7th Cir. 1994). The
charge, therefore, failed to give the EEOC or Valley Hospitality adequate notice
that an investigation of class-wide discrimination was relevant to Duncan and
Brown’s individual claims. See Grayson v. K Mart Corp., 79 F.3d 1086, 1107
(11th Cir. 1996); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.
1979).
In a thorough and well-reasoned opinion, the district court also correctly
granted Valley Hospitality’s motion for summary judgment. The district court
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dismissed Duncan, Brown, and Amick’s disparate impact claims because the
policy leading to their asserted claim did not give rise to a disparate impact.
Duncan, Brown, and Amick argued that they were adversely affected by the hotel’s
policy regarding the “right look.” This policy was not facially neutral, but facially
discriminatory, and its impact was properly reviewed under Duncan, Brown and
Amick’s systemic disparate treatment claim. See EEOC v. Joe’s Stone Crab, Inc.,
220 F.3d 1263, 1278 (11th Cir. 2000).
The district court correctly found that summary judgment was appropriate as
to both the systemic and individual disparate impact claims of Duncan, Brown, and
Amick. Duncan, Brown, and Amick claimed that Valley Hospitality’s policy
regarding a “right look” for employees treated African American and older
employees less favorably and resulted in a greater discharge rate to them than that
of white and younger employees. A plaintiff seeking to show an employer’s
pattern and practice of discrimination or disparate treatment based upon race and
age must prove, typically through statistics and anecdotes, that the course of action
was chosen at least in part because of its adverse effect on an identifiable group.
Joe’s Stone Crab, 220 F.3d at 1273-74, 1286-87. Duncan, Brown, and Amick
failed to offer sufficient evidence to show that Valley Hospitality engaged in
systemic disparate treatment as to positions in management or at the front desk.
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They offered no statistical evidence, and the uncontradicted evidence submitted by
Valley Hospitality reflected that, although two African American managers were
terminated, one African American manager was retained, and two over 40-year-old
African Americans were promoted to management. They failed to offer sufficient
evidence to show disparate treatment in the discharge of older and African
American front desk employees.
Duncan, Brown, and Amick also failed on their individual disparate
treatment cases. To establish a prima facie case of disparate treatment, the plaintiff
must show (1) membership in a protected group, (2) subjection to an adverse
employment action, (3) qualification for a position, and (4) placement in the
position of an individual outside of a protected group. Chapman v. AI Transport,
229 F.3d 1012, 1024 (11th Cir. 2000) (en banc). Duncan was a member of a
protected class, was subjected to an adverse employment action, and was qualified
for the position for which she applied. She was unable to show, however, that
Valley Hospitality offered the position that she applied for to someone outside of
the protected class or any other evidence of intentional discrimination on the basis
of race. In fact, the evidence showed that the individual selected for the position
instead of Duncan was an African American woman over the age of 40 who also
qualified for the position.
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Brown alleged that, while she was fired for certain infractions, white
employees who committed the same infractions were retained. Although she
established a prima facie case of discriminatory discharge, the evidence supported
Valley Hospitality’s proffered legitimate nondiscriminatory reasons for her
dismissal and Brown failed to produce evidence showing that these reasons were
pretextual. See R3-63 at 2; Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228
(11th Cir. 1993) (plaintiff’s “burden of proving pretext . . . can be met . . . by
discrediting the employer’s proffered explanation.”).
Because the evidence showed that Amick’s position was eliminated and she
did not show that she was replaced with an individual outside of the protected
group, she was unable to establish a prima facie case of discriminatory discharge.
To the extent that she did make a prima facie case, she did not show that Valley
Hospitality’s proffered legitimate nondiscriminatory reason for her discharge was
pretextual. The evidence showed that Valley Hospitality was concerned with
Amick’s performance and counseled her numerous times before her discharge.
R3-62, Exh. at 10-13; Exh. 65 at 131-32, 135-46, Exhs. 18, 21, 23, 25. Valley
Hospitality’s proffered reason for Amick’s termination is “one that might motivate
a reasonable employer” and we will not consider her arguments as to the wisdom
of that reason. Chapman, 229 F.3d at 1030-31.
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For the reasons stated above, the district court’s dismissal of the class-wide
discrimination charges and grant of summary judgment on Duncan, Brown, and
Amick’s systemic and individual disparate treatment claims are
AFFIRMED.
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