Filed: Dec. 04, 2006
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT DECEMBER 4, 2006 No. 05-15964 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 04-02690-CV-WSD-1 EDWARD EARL JEROME, Plaintiff-Appellant, versus MARRIOTT RESIDENCE INN BARCELO CRESTLINE/AIG, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (December 4, 2006) Before ANDERSON, CARNES, and PRYOR, Circuit
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT DECEMBER 4, 2006 No. 05-15964 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 04-02690-CV-WSD-1 EDWARD EARL JEROME, Plaintiff-Appellant, versus MARRIOTT RESIDENCE INN BARCELO CRESTLINE/AIG, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (December 4, 2006) Before ANDERSON, CARNES, and PRYOR, Circuit J..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 4, 2006
No. 05-15964 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-02690-CV-WSD-1
EDWARD EARL JEROME,
Plaintiff-Appellant,
versus
MARRIOTT RESIDENCE INN
BARCELO CRESTLINE/AIG,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 4, 2006)
Before ANDERSON, CARNES, and PRYOR, Circuit Judges.
PER CURIAM:
Edward Earl Jerome appeals pro se the district court’s orders granting
motions by Marriott Residence Inn, d/b/a/ Barcelo Crestline (“Crestline”)1 for
judgment on the pleadings and summary judgment on his pro se claims. Jerome
has alleged race and gender discrimination in the form of discriminatory pay
practices, the denial of a promotion, and racial harassment, which were brought
pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e-2(1)(1). He raises three distinct issues on appeal: (1) whether the district
court erred by granting the defendant’s motion for judgment on the pleadings as to
Jerome’s disparate pay claim, based on his failure to exhaust his administrative
remedies; (2) whether the district court erred by granting summary judgment to the
defendant on Jerome’s failure to promote claim; and (3) whether the district court
abused its discretion by finding that Jerome was provided adequate opportunities
for discovery. Upon careful review of the record and consideration of the parties’
briefs, we affirm.
I. Disparate Pay Claim
In his brief, which we liberally construe, Jerome argues that because he
circled “wages” on a questionnaire that he filled out for the Equal Employment
Opportunity Commission (“EEOC”) and informed the EEOC about his disparate
1
According to the defendant, it is named incorrectly in the style of this case.
2
pay claim 2 during the intake process, the EEOC and Crestline were on notice of
this claim, and, thus, the district court should have denied Crestline’s motion for
judgment on the pleadings.
We review de novo a district court’s grant of judgment on the pleadings,
“accept[ing] all facts in the complaint as true and view[ing] them in the light most
favorable to the [nonmovant].” Hardy v. Regions Mortgage, Inc., 449 F.3d 1357,
1359 (11th Cir. 2006) (internal quotations and citation omitted). “No action
alleging a violation of Title VII may be brought unless the alleged discrimination
has been made the subject of a timely-filed EEOC charge.” Alexander v. Fulton
County, Ga.,
207 F.3d 1303, 1332 (11th Cir. 2000). See generally 42 U.S.C.
§ 2000e-5. “EEOC regulations provide that charges should contain, among other
things, ‘[a] clear and concise statement of the facts, including pertinent dates,
constituting the alleged unlawful employment practices.’”
Alexander, 207 F.3d at
1332 (quoting 29 C.F.R. § 1601.12(a)(3)). Although we liberally construe EEOC
charges that are prepared without the assistance of counsel, “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 discrimination.” Gregory v. Ga. Dep’t of
2
Because Jerome fails to challenge the district court’s dismissal of his gender
discrimination and racial harassment claims, we deem these issues abandoned. See Greenbriar,
Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).
3
Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (internal quotations omitted);
see Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998) (“Pro se
pleadings are held to a less stringent standard than pleadings drafted by attorneys
and will, therefore, be liberally construed.”). In Gregory, for example, we held that
even though the plaintiff failed to check the box labeled “retaliation” on the EEOC
charge, she nonetheless alleged facts in the charge that reasonably encompassed a
retaliation claim, and, thus, her retaliation claim was exhausted.
Gregory, 355 F.3d
at 1280.
When Jerome filed his EEOC charge, he alleged only the denial of a
promotion. Nowhere does there appear on the charge a reference to his disparate
pay claim. Jerome’s only evidence for making the claim to the EEOC, other than
his own unsworn statements, is an EEOC charge questionnaire on which he circled
“wages” when prompted to identify the specific discriminatory actions he was
complaining of. Immediately below this section, however, when asked to explain
these discriminatory actions, Jerome complained only of being passed over for a
promotion. Given his own explanation, merely circling “wages” on the
questionnaire fell far short of putting the EEOC on notice that Jerome was also
claiming that Crestline paid its white employees less than its black employees.
And unlike the allegations in the Gregory case, the facts relating to Jerome’s
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promotion claim (such as the comparative qualifications of Jerome and Schultz) do
not encompass facts that would also support a disparate pay claim. Because
Jerome failed to inform the EEOC of such a claim, the district court correctly
granted the defendant’s motion for judgment on the pleadings.
II. Failure to Promote Claim
The district court granted summary judgment to Crestline on Jerome’s
failure to promote claim. Jerome argues that Crestline discriminated against him
by promoting Lisa Schultz to the position of Assistant General Manager, despite
knowing about her alleged drinking problems and inability to complete her
assignments. He contends that he should not have been rejected from the position
based only on his handwriting.
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light more favorable to the nonmoving party. Gitlitz v.
Compagnie Nationale Air Fr., 129 F.3d 554, 556-57 (11th Cir. 1997). Federal
Rule 56(c) provides that summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P
56(c).
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In order for Jerome to establish a prima facie case of discrimination for
Crestline’s failure to promote him, he must show that (1) he is a member of a
protected class; (2) he was qualified and applied for the promotion; (3) he was
rejected despite his qualifications; and (4) other equally or less qualified employees
who were not members of the protected class were promoted.” Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir. 2004). If Jerome makes out a
prima facie case of discrimination, Crestline may rebut that presumption by
articulating a legitimate, nondiscriminatory reason for not promoting him. Carter
v. Three Springs Residential Treatment,
132 F.3d 635, 642-43 (11th Cir. 1998). If
Crestline successfully proffers a legitimate, nondiscriminatory reason, Jerome is
left with the burden to show that the employer’s offered reasons are pretextual.
Id.
at 643.
The district court did not err by granting summary judgment to Crestline
because there is no evidence that Schultz was equally or less qualified for the
Assistant General Manager position, the fourth element of Jerome’s prima facie
case. The undisputed evidence establishes that (1) Crestline advertised that the
position required strong verbal and written communication skills and expressed a
preference for a candidate with a college degree; (2) Schultz had a college degree,
but Jerome did not; and (3) Schultz’s written communication skills were superior
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to Jerome’s. Thus, the evidence demonstrates that Schultz was better qualified for
the position. The district court correctly concluded that Jerome failed to make out
a prima facie case of discrimination as to his failure to promote claim when it
granted summary judgment for the defendant.
III. Adequacy of Discovery
Jerome also argues that he was denied adequate discovery in this case
because, even though he submitted the appropriate discovery requests, Crestline
failed to answer or fully comply with them.3 He points out that, during a
telephonic hearing on April 26, 2005 before the magistrate judge, Crestline
promised that it would release discovery.4
We review a district court’s decision on discovery issues for abuse of
discretion. Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999).
A district court’s decisions regarding discovery may only be disturbed upon a
showing of substantial harm to the party seeking relief. Edward Leasing Corp. v.
3
Jerome also identifies, in his brief, several instances of misconduct on the part of
Crestline. To the extent that Jerome’s allegations are relevant to the instant case, none of them
have evidentiary support in the record.
4
Jerome also appears to argue, for the first time on appeal, that the magistrate exhibited
bias toward Crestline when she denied Jerome’s discovery motions. Jerome offers only
conclusory arguments that the magistrate was biased in favor of Crestline, and, therefore, recusal
was not required because the alleged bias was based only on unsupported speculation. See
United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986) (per curiam) (stating that “a
judge, having been assigned to a case, should not recuse himself on unsupported, irrational, or
highly tenuous speculation”).
7
Uhlig & Assocs., Inc., 785 F.2d 877, 881 (11th Cir. 1986). “Parties may obtain
discovery regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending action . . . The information sought need not be
admissible at the trial if the information sought appears reasonably calculated to
lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). “[A] district
court can deny a motion to compel further discovery if it concludes that the
questions are irrelevant.” Commercial Union Ins. Co. v. Westrope,
730 F.2d 729,
732 (11th Cir.1984).
The district court did not abuse its discretion by finding that Jerome was
provided with adequate opportunities for discovery. Although the district court did
deny Jerome’s request to discover the personnel files of certain Crestline
employees, this evidence was irrelevant to his failure to promote claim as none of
the employees had applied for the Assistant General Manager position. Even his
request for potentially relevant evidence, such as his own and Schultz’s personnel
files, were properly denied when Jerome refused to comply with Crestline’s
conditions for producing this sensitive information. Moreover, Jerome has failed
to identify any substantial harm brought about by the unavailability of the evidence
he seeks. Accordingly, we affirm.
AFFIRMED.
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