Mason Brown v. John Snow

[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

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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,

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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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