Carl B. Hillemann, Jr. v. Univ. of Central Florida

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

------------------------------------------- FILED

No. 04-15153 U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Non-Argument Calendar January 18, 2006

-------------------------------------------- THOMAS K. KAHN

CLERK

D.C. Docket No. 02-01225-CV-ORL-28-JGG

CARL B. HILLEMANN, JR.,

Plaintiff-Appellant,

versus

UNIVERSITY OF CENTRAL FLORIDA,

Defendant-Appellee.

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Appeal from the United States District Court

for the Middle District of Florida

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(January 18, 2006)

Before EDMONDSON, Chief Judge, ANDERSON and WILSON, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Carl Hillemann appeals pro se the district court’s

dismissal of his claims against the University of Central Florida Board of Regents

(“UCF”) for age discrimination under the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 623, and grant of summary judgment to UCF for his race

and sex discrimination and retaliation claims under Title VII, 42 U.S.C. § 2000e-2,

2000e-3. No reversible error has been shown; we affirm. Because we affirm the

district court’s decision, we determine that Defendants’ motion to strike Plaintiff’s

supplemental authorities is moot.

Plaintiff is a white male and is over seventy years old. Plaintiff’s complaint

alleged that, because of age, race, and gender discrimination, UCF refused to hire

him for three positions with its Marketing Department and approximately1 fifteen

positions with its Small Business Department. Plaintiff additionally alleged UCF

refused to hire him for the three Marketing positions in retaliation for Plaintiff’s

complaints that UCF had discriminated previously against Plaintiff because of his

age by failing to hire him for two Small Business positions.

The district court dismissed Plaintiff’s age discrimination claims under the

ADEA as barred by the Eleventh Amendment. The district court determined UCF

was entitled to summary judgment on Plaintiff’s race and gender discrimination

1

The precise number is irrelevant to our resolution of this case.

2

and retaliation claims because (1) Plaintiff was procedurally barred from raising

race and gender discrimination claims about most of the Small Business positions

and Plaintiff stipulated to the dismissal of the claims about the remaining two

Small Business positions; and (2) Plaintiff was procedurally barred from bringing

race or gender discrimination or retaliation claims about the Marketing Positions

and also failed to create a question of material fact about whether UCF’s proffered

reasons for not hiring him for the Marketing positions were pretextual.

We review de novo a district court’s dismissal of a complaint on Eleventh

Amendment grounds. In re Employment Discrimination Litig. against State of

Ala., 198 F.3d 1305, 1310 (11th Cir. 1999). We review a district court’s grant of

summary judgment de novo, viewing the facts – supported by evidence in the

record – and reasonable inferences from those facts in the light most favorable to

the nonmoving party. Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th

Cir. 2004).

The district court properly dismissed Plaintiff’s age discrimination claims

under the ADEA. The ADEA prohibits employers, including states and state

entities, from refusing to hire persons because of their age. 29 U.S.C. §§

623(a)(1), 630(b). But, although the statute’s language expressly allows suits

against state entities, the Supreme Court has determined that the ADEA does not

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abrogate state entities’ Eleventh Amendment immunity because the ADEA is

grounded in Congress’s Article I powers, not Congress’s powers to enforce the

Fourteenth Amendment. Kimel v. Fla. Bd. of Regents, 120 S.Ct. 631, 640 (2000).

Therefore, because UCF is a state entity, it is immune from ADEA discrimination

claims; and Plaintiff’s ADEA claims were properly dismissed.

Likewise, the district court properly granted summary judgment on

Plaintiff’s claims about the Small Business and Marketing positions. We first

address Plaintiff’s discrimination claims about the Small Business positions, then

Plaintiff’s discrimination and retaliation claims about the Marketing positions.

1) The Small Business Claims

Before filing a Title VII action in district court, a plaintiff must file a charge

of discrimination with the EEOC. Gregory v. Ga. Dep’t of Human Res., 355 F.3d

1277, 1279 (11th Cir. 2204). Courts are “extremely reluctant” to bar Title VII

claims based on procedural technicalities and will allow judicial claims that

“amplify, clarify, or more clearly focus” the EEOC complaint allegations. Id.

Still, “[a] plaintiff’s judicial complaint is limited by the scope of the EEOC

investigation which can reasonably be expected to grow out of the charge of

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discrimination.” Gregory, 355 F.3d at 1280. Plaintiffs may not raise

“[a]llegations of new acts of discrimination” in the judicial proceedings. Wu v.

Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989).

Plaintiff’s federal court complaint asserted discrimination claims arising

from UCF’s refusal to hire him for approximately fifteen positions in its Small

Business department; Plaintiff’s EEOC however, charge mentioned only two of

these positions. Therefore, the district court properly determined that Plaintiff’s

judicial claims about the Small Business positions Plaintiff did not mention in his

EEOC charge were procedurally barred.

Plaintiff signed and submitted a form stipulating to the dismissal of the two

remaining Small Business claims. Plaintiff argues that he changed his mind after

signing the stipulation for dismissal and that he indicated his retraction in writing

on the document. The document in the record however, contains no such marks; it

bears only the signatures of the parties. The district court correctly determined

this stipulation was sufficient to dismiss the two remaining Small Business

position claims. Fed. R. Civ. P. 41(a). Because all the Small Business claims

were either procedurally barred or voluntarily dismissed, the district court did not

err in granting summary judgment to UCF on these claims.

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2) The Marketing Positions

Plaintiff’s complaint alleged UCF failed to hire him for three Marketing

positions because of race and gender discrimination and retaliation. Plaintiff’s

EEOC charge about the Marketing positions alleged only age discrimination under

the ADEA.2 This Court has previously refused to bar a plaintiff’s judicial claims

when that plaintiff, not represented by counsel, inadvertently did not mark her

EEOC charge form as including retaliation claims; the facts in that plaintiff’s

EEOC charge indicated she was fired after complaining about race and gender

discrimination, which reasonably would lead to an EEOC investigation of

retaliation. Gregory, 355 F.3d at 1277.

Here, Plaintiff’s EEOC charge factually supports only a claim of age

discrimination: Plaintiff said he believed he was a victim of age discrimination

and, to support this, said that the hired applicants were younger than he was. The

EEOC charge was silent about race, sex, retaliation and Title VII. The EEOC

could not reasonably be expected to investigate race and sex discrimination or

retaliation when the charge form presented no indication that such considerations

2

Plaintiff filed different EEOC charge forms for the Small Business positions and the Marketing

positions.

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might have played a role in UCF’s failure to hire Plaintiff. Therefore, the

Marketing position claims were procedurally barred; and the district court properly

granted summary judgment about these claims to UCF.

We also note that Plaintiff did not establish a material question about

whether Defendants’ reasons for not hiring him for the Marketing positions were

pretextual. If a plaintiff establishes a prima facie case of discrimination or

retaliation, and the Defendant responds with a legitimate, nondiscriminatory

reason for not hiring the plaintiff, the plaintiff must show that the defendant’s

reasons were pretext for an illegal motive. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-804 (1973); Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir.

2002). A plaintiff cannot establish pretext merely by showing he or she was better

qualified than the hired candidate; the plaintiff must show the hiring decision was

made because of an illegal motive. See Alexander v. Fulton County, 207 F.3d

1303, 1339 (11th Cir. 2000), overruled on other grounds, Manders v. Lee, 338

F.3d 1304, 1328 (11th Cir 2000).

UCF offered legitimate, nondiscriminatory reasons for not hiring Plaintiff:3

Plaintiff had no ties to central Florida, which UCF sought in hopes of reducing

3

We assume for this analysis, as did the Magistrate, that Plaintiff established a prima facie case.

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faculty turnover; and one UCF interviewer found Plaintiff “boring” and

“unenthusiastic.”

Plaintiff presented no evidence that UCF lied about these reasons. Plaintiff

merely asserted that he was the most qualified candidate for the position and

reasoned that this showed UCF’s failure to hire him was discriminatory. But a

reasonable employer could have concluded that Plaintiff’s lack of ties to central

Florida and “boring” demeanor negated Plaintiff’s credentials, and the record

reflects no evidence that UCF considered race, sex, or retaliation in hiring for the

Marketing positions. Therefore, Plaintiff did not establish that UCF’s reasons

were pretextual, and the district court properly granted summary judgment to UCF

about the Marketing position claims.

AFFIRMED.

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