[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15095 FEBRUARY 24, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-01845-CV-JFK-1
MASON BROWN,
Plaintiff-Appellant,
versus
JOHN SNOW, Secretary of the Treasury of the United
States of America,
MARK W. EVERSON, Commissioner of the Internal
Revenue Service,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 24, 2006)
Before CARNES, HULL and PRYOR, Circuit Judges.
PRYOR, Circuit Judge:
Mason Brown’s appeal of the summary judgment against his complaint of
sexual harassment and retaliation while employed at the Internal Revenue Service
presents a threshold issue of jurisdiction and then two issues about the merits of his
complaint. The jurisdictional issue is whether Brown failed to exhaust his
administrative remedies when he filed his complaint in the district court fewer than
180 days after he had filed an appeal with the Equal Employment Opportunity
Commission and he allegedly did not seek counseling with an Equal Employment
Office counselor within 45 days of the alleged harassment. The issues about the
merits of Brown’s complaint are whether Brown suffered sexual harassment and
retaliation when the score on an evaluation of his job performance was lowered
and whether Brown pleaded a claim for retaliation based on his later termination.
We conclude that jurisdiction was proper. Brown exhausted his
administrative remedies. Brown cooperated with the investigation of the EEOC;
the record does not establish that he failed to seek counseling within 45 days of the
harassment; and his premature filing in the district court did not deprive the EEOC
of the time allotted for its investigation.
We also conclude that Brown’s complaint fails on the merits. Brown cannot
establish that he suffered any sexual harassment or retaliation from the lowered
score on the evaluation of his performance because he cannot prove a causal
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connection between the lowered score and the denial of promotions that he later
sought. Brown’s remaining claim of retaliation by termination was not pleaded in
his complaint. We affirm.
I. BACKGROUND
From 1999 to 2004, Brown was employed by the IRS as a tax examiner.
Brown received an evaluation of his job performance from June 1, 2000, to May
31, 2001, in which he received a score of 3.67 out of 5 and was rated “Fully
Successful” in the four performance categories. In 2001, Dolores Bagley was
assigned to Brown’s division as an interim manager. Bagley began making sexual
comments and advances towards Brown and made several attempts at physical
contact with Brown. Brown resisted Bagley’s advances.
On January 24, 2002, Bagley revised the earlier evaluation of Brown’s job
performance. Bagley lowered Brown’s rating from 3.67 to 3.33, but the evaluation
still rated Brown “Fully Successful” in the four performance categories. Shortly
afterwards, Bagley allegedly threatened to “get [Brown] back” for refusing her
sexual advances.
Brown reported Bagley’s behavior to numerous superiors, but he contends
that his complaints went unaddressed. Brown also applied for several positions
within the IRS that would have given him greater responsibility and salary. Brown
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was denied these promotions.
Brown filed a complaint of sexual discrimination with the Equal
Employment Opportunity Commission on July 18, 2002, and met informally with
an EEOC representative on September 10, 2002. Brown also filed a formal
grievance with the IRS on November 8, 2002. On January 30, 2003, the IRS
issued a final decision, which denied Brown’s complaints of sexual discrimination
and retaliation and informed Brown of his right to sue in federal court. Brown
filed a notice of appeal with the EEOC on February 4, 2003. The IRS responded
on April 2, 2003, and reiterated the denial of Brown’s complaint without further
comment.
Brown filed this complaint against the Secretary of the Treasury in the
district court on July 1, 2003. Brown alleged sex discrimination and retaliation in
violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq.
On August 7, 2003, the IRS informed the EEOC of Brown’s lawsuit and requested
that the EEOC cease its investigation of Brown’s claim. On August 28, 2003, the
Secretary of the Treasury, John Snow, filed a motion to dismiss Brown’s complaint
for lack of subject matter jurisdiction for failure to exhaust administrative
remedies. The district court denied this motion on October 28, 2003.
Both parties consented to the jurisdiction of the magistrate judge. On June
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7, 2004, Snow moved for summary judgment based on a lack of subject matter
jurisdiction and on the merits. Brown responded and filed motions for summary
judgment and injunctive relief. The magistrate judge granted Snow’s motion on
the merits and denied Brown’s motions.
Brown also alleges that, after he filed a complaint with the EEOC, the
manager of his department, Bagley’s successor, continually questioned him about
the status of the complaint. When Brown refused to answer, the manager allegedly
informed Brown that his superiors would remove Brown if he did not drop the
complaint. Brown was terminated in early 2004.
II. STANDARD OF REVIEW
We review questions of subject matter jurisdiction de novo. Williams v.
Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). We also review a grant of
summary judgment de novo. Breda v. Wolf Camera & Video, 222 F.3d 886, 888
(11th Cir. 2000). We review the record and draw all inferences from it in the light
most favorable to the non-moving party. Id.
III. DISCUSSION
Our discussion of this appeal is divided into three parts. We first address
whether Brown’s complaint should have been dismissed based on his failure to
exhaust his administrative remedies. Second, we discuss whether the district court
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erred by entering summary judgment for Snow on the ground that Brown did not
suffer an adverse employment action. Third, we examine whether the district court
correctly entered summary judgment against Brown’s claims of retaliation.
A. Brown Exhausted His Administrative Remedies.
Snow’s argument that the district court lacked subject matter jurisdiction
because Brown failed to exhaust his administrative remedies is twofold. First,
Snow contends that Brown failed to wait 180 days from the day he filed his appeal
with the EEOC before he filed his complaint in the district court. 42 U.S.C. §
2000e-16(c). Second, Snow contends that Brown failed to contact a counselor at
the Equal Employment Office of the IRS within 45 days after the alleged
harassment. We address each argument in turn.
1. Brown Did Not Fail to Cooperate with the EEOC When He
Prematurely Filed His Complaint.
Both federal statutes and EEOC regulations require a federal employee to
exhaust an administrative process before filing a civil complaint of discrimination
in the workplace. An aggrieved federal employee first must file a formal
complaint with the agency that allegedly discriminated against him. 29 C.F.R. §
1614.106(a). After the agency has rendered a final decision, the employee has the
option to appeal the decision of the agency to either the federal district court or the
EEOC. 42 U.S.C. § 2000e-16(c). If the employee appeals to the EEOC and the
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EEOC does not issue a decision within 180 days, the employee may file a
complaint in the district court. Id.; 29 C.F.R. § 1614.407(d).
Although the 180-day waiting period is part of the administrative process
that must be exhausted before filing suit in a federal district court, it is unclear
whether a premature filing of a complaint deprives a district court of subject matter
jurisdiction. Although our case law establishes that “[a] federal employee must
pursue and exhaust her administrative remedies as a jurisdictional prerequisite to
filing a Title VII action,” Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir.
1999), we have not addressed whether prematurely filing a complaint is, by itself, a
failure to exhaust administrative remedies.
The constant theme of our precedents is that “the purpose of exhaustion is to
give the agency the information it needs to investigate and resolve the dispute
between the employee and the employer.” Wade v. Sec’y of the Army, 796 F.2d
1369, 1377 (11th Cir. 1986); see also Johnson v. Bergland, 614 F.2d 415, 418 (5th
Cir. 1980). To determine whether an employee failed to exhaust his administrative
remedies, we consider whether “the complainant made a good faith effort to
comply with the regulations and, particularly, to provide all the relevant, specific
information available to him or her.” Wade, 796 F.2d at 1376; see also Crawford,
186 F.3d at 1326. Satisfaction of this requirement will ensure that “the agency [is]
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given every opportunity to investigate and resolve the dispute[—]all that is
intended by the exhaustion requirement.” Wade, 796 F.2d at 1378.
We have applied the exhaustion requirement to affirm dismissals for lack of
subject matter jurisdiction when the employee did not provide information
requested by the investigating agency. In Johnson, for example, we concluded that
a federal employee’s failure to make a complaint more specific regarding dates and
incidents of discrimination, as required by the agency, was a failure to exhaust
administrative remedies that required dismissal. 614 F.2d at 417. More recently,
in Crawford, we concluded that another federal employee’s failure to provide
information requested by the agency regarding the employee’s injuries and medical
treatment was a failure to exhaust administrative remedies that deprived the district
court of subject matter jurisdiction. 186 F.3d at 1326.
We have reversed a dismissal for lack of subject matter jurisdiction when it
was unclear from the record whether an employee had provided the agency with
the information needed to investigate the complaint. In Wade, a complaints
examiner for the Department of the Army notified federal employees who alleged
racial discrimination against a class of black employees that their complaint did not
allege numerosity, typicality, commonality, and adequacy of representation as
required by agency regulation. 796 F.2d at 1372. Because we could not discern
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from the record whether the employees had “made a good faith effort to comply
with the regulations and, particularly, to provide all the relevant, specific
information available” to them, id. at 1376, we reversed the district court and
remanded to “allow the district court to consider the exhaustion requirement in
light of the information presented to the agency and complaints examiner by [the
employees].” Id. at 1378.
Both Brown and Snow refer us to decisions of our sister circuits that
addressed the premature filing of a complaint by a federal employee to support
their respective arguments regarding exhaustion. Their arguments are unavailing,
although for different reasons. We address each party’s argument in turn.
Brown cites a Second Circuit case, Boos v. Runyon, 201 F.3d 178 (2d Cir.
2000), to support his argument that the 180-day waiting period is not jurisdictional,
but Brown’s reliance on Boos is misplaced. The Second Circuit reasoned that
administrative exhaustion is not jurisdictional, id. at 181-82, but our precedents say
otherwise, see, e.g., Crawford, 186 F.3d at 1326. The Boos court also declined to
decide whether the federal employee who had filed her complaint prematurely had
exhausted her administrative remedies. Boos, 201 F.3d at 183-84.
Snow’s arguments about decisions of the Tenth and Fifth Circuits are also
unpersuasive. In Knopp v. Magaw, 9 F.3d 1478, 1479 (10th Cir. 1993), the Tenth
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Circuit, on the one hand, held that the 180-day waiting period must be exhausted as
a jurisdictional prerequisite to suit, but the Tenth Circuit did not explain whether
the investigation of the complaint by the EEOC had been impeded. The Fifth
Circuit, in Tolbert v. United States, 916 F.2d 245, 249 (5th Cir. 1990), on the other
hand, upheld a dismissal for failure to exhaust administrative remedies even
though “the EEOC issued its decision before [the employee’s] claim was dismissed
by the district court.” In contrast with Knopp and Tolbert, our precedents, in
Johnson, Wade, and Crawford, require that we discern from the record whether the
complainant participated in the administrative process in good faith.
The record does not establish that Brown’s premature filing of his complaint
evidenced a refusal to cooperate in good faith with the EEOC. Although Brown
filed his complaint in the district court 35 days early, the EEOC was not notified by
the IRS of Brown’s filing until 183 days had elapsed from the date Brown appealed
the decision of the IRS to the EEOC. Brown did not ask the EEOC to end its
investigation, and there is no evidence that the EEOC terminated its investigation
before the 180 days had elapsed.
The record even suggests that the IRS may have been responsible for
Brown’s delay. In response to the recommendation of the magistrate judge that
Brown’s complaint be dismissed based on a failure to exhaust his administrative
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remedies, Brown alleged, in a pro se filing, that he had been misled by officials of
the IRS about the deadline for filing his complaint in the district court. The IRS
did not refute or otherwise respond to this assertion, but the district court
referenced Brown’s assertion when it denied the motion of the IRS to dismiss
Brown’s complaint.
We have explained, “If the employee is hampered by the action of the
agency . . . , he or she should not be deemed thereby to have failed to comply with
exhaustion requirements.” Wade, 796 F.2d at 1377. Brown’s unrefuted assertion
that he had been misled by officials of the IRS further supports the decision of the
district court. The IRS failed to establish that Brown refused to cooperate in good
faith with the EEOC.
From all that appears in the record, the EEOC “was given every opportunity
to investigate and resolve the dispute . . . .” Id. at 1378. Brown cooperated in good
faith with the EEOC, and his early filing did not prevent the EEOC from
investigating his complaint for the full 180 days. The district court correctly
refused to dismiss Brown’s complaint for failure to exhaust his administrative
remedies.
2. The Record Does Not Establish Brown’s Failure to Cooperate with
Agency Counseling.
Snow also erroneously argues that Brown failed to exhaust his
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administrative remedies because he did not contact a counselor at the Equal
Employment Office of the IRS within 45 days of the alleged harassment. A federal
regulation requires a complainant to “initiate contact within 45 days of the date of
the matter alleged to be discriminatory,” 29 C.F.R. § 1614.105(a)(1), but that
regulation also provides an exception for complainants who acted in good faith, id.
§ 1614.105(a)(2). Snow bore the burden of establishing Brown’s failure to comply
with this regulation, and Snow failed to satisfy his burden.
The district court rejected Snow’s argument because Snow failed to supply
several of Brown’s records regarding his complaint of discrimination. Snow failed
to present any documentation regarding Brown’s informal EEO counseling session
on September 10, 2002, or the attachment to Brown’s formal complaint. Snow
even failed to produce the formal ruling of the EEO. Without this information, the
district court could not decide whether Brown had failed to exhaust his
administrative remedies.
We are in the same predicament as the district court. There is insufficient
evidence that Brown failed to exhaust his administrative remedies. We cannot
conclude that the district court erred in exercising jurisdiction.
B. The District Court Correctly Entered Summary Judgment Against
Brown.
Because we conclude that the district court properly exercised subject matter
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jurisdiction, we address Brown’s complaint of discrimination and retaliation on the
merits. Brown argues that the district court erred when it granted summary
judgment against his claims of discrimination and retaliation because the district
court concluded that Brown did not suffer an adverse or tangible employment
action. Brown also argues that the district court erred in concluding that his claim
of retaliation by termination was not before the court. We address each argument
in turn.
1. Brown Failed to Establish That He Suffered an Adverse
Employment Action.
To establish a prima facie case of sexual harassment, Brown must make four
showings: “(1) [he] belongs to a protected group; (2) [he] was subject to
unwelcome sexual harassment; (3) the harassment complained of was based on
sex; and (4) [his] reaction to the unwelcome behavior affected tangible aspects of
his compensation, or terms, conditions or privileges of employment.” Virgo v.
Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1361 (11th Cir. 1994). Because Snow
does not contest that Brown satisfied each of the first three requirements, we
consider only the fourth. To satisfy the fourth requirement, Brown must show that
he suffered a tangible employment action, which is a “significant change in
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing significant change in
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benefits.” Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 512
(11th Cir. 2001) (quoting Burlington Indus. V. Ellerth, 524 U.S. 742, 761, 118 S.
Ct. 2257, 2268 (1998)).
Brown argues that the IRS failed to promote him because of his downgraded
performance evaluation. A lower score on Brown’s performance evaluation, by
itself, is not actionable under Title VII unless Brown can establish that the lower
score led to a more tangible form of adverse action, such as ineligibility for
promotional opportunities. Davis v. Town of Lake Park, 245 F.3d 1232, 1241
(11th Cir. 2001). We agree with the district court that Brown failed to establish
any connection between the lower score on the performance evaluation and his
lack of promotion.
Brown argues that he was denied several promotions for which he had
applied, but Brown failed to produce any evidence that the denials of the
promotions were based on discrimination or the lower score. The downgraded
evaluation still described Brown’s performance as fully successful. When
questioned, in his deposition, whether he ever was informed by the IRS that the
reason he did not receive the promotion was because his evaluation rated him at a
3.33 rather than a 3.67, Brown speculated that it was his “understanding that it’s
common knowledge” that the requirements for promotion relied on the
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performance evaluations. Brown did not provide any evidence either that he was
qualified for the promotions or that his lowered evaluation score was the reason he
did not receive the promotions.
Although we must draw all reasonable inferences from the evidence in favor
of Brown, it is unreasonable to infer from Brown’s speculative testimony alone
that he was denied promotion on the basis of his lowered evaluation score. Brown
failed to establish that he suffered a tangible employment action. The district court
correctly entered summary judgment against his claim of sex discrimination.
2. Brown’s Retaliation Claims Fail.
Brown alleges that the IRS retaliated against him for his complaints of
sexual harassment in two ways: (1) the IRS lowered the scored on Brown’s
performance evaluation, which allegedly led to the denial of Brown’s requests for
promotions; and (2) the IRS fired Brown. To establish a prima facie case of
retaliation, Brown had to present evidence “that (1) [he] engaged in statutorily
protected expression; (2) [he] suffered an adverse employment action; and (3) the
adverse action was causally related to the protected expression.” Wideman v. Wal-
Mart Stores, Inc., 141 F.3d 1453, 1454 (11th Cir. 1998). Under our case law, the
definitions of tangible employment actions and adverse employment actions are
essentially the same. See Johnson, 234 F.3d at 512. An inability to establish one
15
is an inability to establish the other.
As we explained in reference to his claim of discrimination, Brown failed to
produce any evidence that the lower score on his evaluation led to the denial of any
promotions. Brown’s failure to present evidence of a tangible employment action
regarding his claim of discrimination is also a failure to establish an adverse
employment action regarding his claim of retaliation. Because Brown did not
suffer an adverse employment action when the score on his performance evaluation
was lowered, the district court correctly concluded that Brown’s first allegation of
retaliation failed.
Brown’s second claim of retaliation by termination was not properly before
the district court. Federal Rule of Civil Procedure 8(a) requires that a complaint
contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Brown’s complaint did not allege that Brown was terminated in
retaliation for his sexual harassment charges filed with the EEOC. Although
Brown had not been fired when he filed his complaint, Brown never amended his
complaint to include a claim of retaliation based on his termination. Brown argues
that he discussed his claim of retaliation based on his termination extensively in his
deposition testimony, but the discussion of a potential claim in a deposition does
not satisfy the requirement of Rule 8(a). Coon v. Ga. Pac. Corp., 829 F.2d 1563,
16
1568 (11th Cir. 1987). The district court correctly refused to address this
allegation of retaliation.
IV. CONCLUSION
The grant of summary judgment by the district court in favor of Snow is
AFFIRMED.
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