Case: 17-14843 Date Filed: 12/07/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14843 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cv-24000-MGC
SELWYN DON TITUS,
Plaintiff-Appellant,
versus
MIAMI DADE COUNTY,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(December 7, 2018)
Before MARCUS, ROSENBAUM, and EDMONDSON, Circuit Judges. Case: 17-14843 Date Filed: 12/07/2018 Page: 2 of 7
PER CURIAM:
Plaintiff Selwyn Titus, proceeding pro se, 1 appeals the district court’s grant
of summary judgment in favor of Plaintiff’s employer, Miami-Dade County
(“County”), in this civil action alleging employment discrimination and retaliation.
Plaintiff asserts claims for violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-1 (“Title VII”), the Age Discrimination in Employment Act, 29
U.S.C. § 621 (“ADEA”), the Florida Civil Rights Act, Fla. Stat. §§ 760.01-760.11
(“FCRA”), the Family and Medical Leave Act, 29 U.S.C. § 2601 (“FMLA”), and
the Florida Whistleblower’s Act, Fla. Stat. §§ 112.3187-112.31895. No reversible
error has been shown; we affirm.
Plaintiff began working as a heavy equipment operator in the County’s
Water and Sewer Department in 2001. In March 2011 and in October 2012,
Plaintiff applied for three posted openings for a Pipefitter Supervisor position. The
three supervisor positions were filled by applicants who Plaintiff contends had less
experience than he did and who lacked the appropriate state license for the
position.
1 We construe liberally pro se pleadings. Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1253 (11th Cir. 2017). 2 Case: 17-14843 Date Filed: 12/07/2018 Page: 3 of 7
After Plaintiff was denied the supervisor position in October 2012, Plaintiff
complained verbally to the County’s Human Resources Department that he had
been unlawfully discriminated against. In March and April 2013, Plaintiff also
filed complaints of discrimination with the Equal Employment Opportunity
Commission (“EEOC”), the County’s Office of Human Rights and Fair
Employment Practices, and the County’s Commission on Ethics and Public Trust.
In Plaintiff’s complaint to the EEOC, Plaintiff identified himself as a 51-
year-old, black, Trinidadian, Seventh-Day Adventist. Plaintiff said he sought to
bring a lawsuit for discrimination and for retaliation under Title VII and the
ADEA. Plaintiff alleged that the County’s failure to promote him was a result of
unlawful discrimination on the basis of Plaintiff’s race, national origin, religion,
and age. Plaintiff also said that he was given a negative performance review in
retaliation for having filed a complaint of discrimination. On 31 March 2015, the
EEOC issued Plaintiff a notice of right-to-sue.
On 19 June 2015, Plaintiff (through his then lawyer) filed his first civil
action in the United States District Court for the Southern District of Florida
(“Titus I”). Plaintiff alleged claims for discrimination and retaliation in violation
of Title VII, the ADEA, the FCRA, and Florida’s Whistleblower Act. The district
court dismissed without prejudice Plaintiff’s amended complaint in Titus I.
3 Case: 17-14843 Date Filed: 12/07/2018 Page: 4 of 7
Plaintiff raised no challenge to the district court’s order of dismissal either in the
district court or by appealing to this Court.
On 17 September 2016, Plaintiff (through a lawyer) filed his second civil
action: the complaint underlying this appeal. Briefly stated, Plaintiff alleges again
that the County engaged in unlawful discrimination and retaliation in violation of
Title VII, the ADEA, and the FCRA (Counts I through VI). Plaintiff also contends
that the County violated the Florida Whistleblower’s Act by retaliating against him
after Plaintiff reported the County’s licensure violations to the Department of
Environment Protection (Count VII). Plaintiff also alleges that the County violated
the FMLA by denying improperly Plaintiff’s leave requests in retaliation for
Plaintiff’s having filed discrimination complaints (Count VIII).
The district court granted the County’s motion for summary judgment. The
district court determined that Plaintiff’s claims under Title VII, the ADEA, the
FCRA, and the FMLA were time-barred. The district court rejected Plaintiff’s
contention -- pursuant to Fed. R. Civ. P. 15(c) -- that his complaint “related back”
to his earlier lawsuit in Titus I. The district court also concluded that Plaintiff had
failed to exhaust his administrative remedies under the Florida Whistleblower’s
Act.
We review de novo the district court’s grant of summary judgment. Weeks
v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment
4 Case: 17-14843 Date Filed: 12/07/2018 Page: 5 of 7
is appropriate when the evidence, viewed in the light most favorable to the non-
moving party, presents no genuine dispute of material fact and compels judgment
as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). When the party seeking summary judgment satisfies his initial
burden of demonstrating the absence of a genuine issue of material fact, the burden
shifts to the non-moving party to come forward with specific facts to rebut this
showing through affidavits or other relevant and admissible evidence. Avirgan v.
Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). “A nonmoving party, opposing a
motion for summary judgment supported by affidavits cannot meet the burden of
coming forth with relevant competent evidence by simply relying on legal
conclusions or evidence which would be inadmissible at trial.” Id.
As an initial matter, Plaintiff raises no challenge to the district court’s fact
findings about timeliness or the district court’s determination that the Title VII,
ADEA, FCRA, and FMLA claims raised in Plaintiff’s 17 September 2016
complaint -- in and of themselves -- were untimely filed. Nor does Plaintiff
challenge the district court’s determination that no equitable tolling is warranted
under the circumstances of this case.
Plaintiff’s chief argument on appeal is that his claims should be deemed
timely-filed pursuant to Fed. R. Civ. P. 15(c). Plaintiff argues that, because this
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Case: 17-14843 Date Filed: 12/07/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14843 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cv-24000-MGC
SELWYN DON TITUS,
Plaintiff-Appellant,
versus
MIAMI DADE COUNTY,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(December 7, 2018)
Before MARCUS, ROSENBAUM, and EDMONDSON, Circuit Judges. Case: 17-14843 Date Filed: 12/07/2018 Page: 2 of 7
PER CURIAM:
Plaintiff Selwyn Titus, proceeding pro se, 1 appeals the district court’s grant
of summary judgment in favor of Plaintiff’s employer, Miami-Dade County
(“County”), in this civil action alleging employment discrimination and retaliation.
Plaintiff asserts claims for violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-1 (“Title VII”), the Age Discrimination in Employment Act, 29
U.S.C. § 621 (“ADEA”), the Florida Civil Rights Act, Fla. Stat. §§ 760.01-760.11
(“FCRA”), the Family and Medical Leave Act, 29 U.S.C. § 2601 (“FMLA”), and
the Florida Whistleblower’s Act, Fla. Stat. §§ 112.3187-112.31895. No reversible
error has been shown; we affirm.
Plaintiff began working as a heavy equipment operator in the County’s
Water and Sewer Department in 2001. In March 2011 and in October 2012,
Plaintiff applied for three posted openings for a Pipefitter Supervisor position. The
three supervisor positions were filled by applicants who Plaintiff contends had less
experience than he did and who lacked the appropriate state license for the
position.
1 We construe liberally pro se pleadings. Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1253 (11th Cir. 2017). 2 Case: 17-14843 Date Filed: 12/07/2018 Page: 3 of 7
After Plaintiff was denied the supervisor position in October 2012, Plaintiff
complained verbally to the County’s Human Resources Department that he had
been unlawfully discriminated against. In March and April 2013, Plaintiff also
filed complaints of discrimination with the Equal Employment Opportunity
Commission (“EEOC”), the County’s Office of Human Rights and Fair
Employment Practices, and the County’s Commission on Ethics and Public Trust.
In Plaintiff’s complaint to the EEOC, Plaintiff identified himself as a 51-
year-old, black, Trinidadian, Seventh-Day Adventist. Plaintiff said he sought to
bring a lawsuit for discrimination and for retaliation under Title VII and the
ADEA. Plaintiff alleged that the County’s failure to promote him was a result of
unlawful discrimination on the basis of Plaintiff’s race, national origin, religion,
and age. Plaintiff also said that he was given a negative performance review in
retaliation for having filed a complaint of discrimination. On 31 March 2015, the
EEOC issued Plaintiff a notice of right-to-sue.
On 19 June 2015, Plaintiff (through his then lawyer) filed his first civil
action in the United States District Court for the Southern District of Florida
(“Titus I”). Plaintiff alleged claims for discrimination and retaliation in violation
of Title VII, the ADEA, the FCRA, and Florida’s Whistleblower Act. The district
court dismissed without prejudice Plaintiff’s amended complaint in Titus I.
3 Case: 17-14843 Date Filed: 12/07/2018 Page: 4 of 7
Plaintiff raised no challenge to the district court’s order of dismissal either in the
district court or by appealing to this Court.
On 17 September 2016, Plaintiff (through a lawyer) filed his second civil
action: the complaint underlying this appeal. Briefly stated, Plaintiff alleges again
that the County engaged in unlawful discrimination and retaliation in violation of
Title VII, the ADEA, and the FCRA (Counts I through VI). Plaintiff also contends
that the County violated the Florida Whistleblower’s Act by retaliating against him
after Plaintiff reported the County’s licensure violations to the Department of
Environment Protection (Count VII). Plaintiff also alleges that the County violated
the FMLA by denying improperly Plaintiff’s leave requests in retaliation for
Plaintiff’s having filed discrimination complaints (Count VIII).
The district court granted the County’s motion for summary judgment. The
district court determined that Plaintiff’s claims under Title VII, the ADEA, the
FCRA, and the FMLA were time-barred. The district court rejected Plaintiff’s
contention -- pursuant to Fed. R. Civ. P. 15(c) -- that his complaint “related back”
to his earlier lawsuit in Titus I. The district court also concluded that Plaintiff had
failed to exhaust his administrative remedies under the Florida Whistleblower’s
Act.
We review de novo the district court’s grant of summary judgment. Weeks
v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment
4 Case: 17-14843 Date Filed: 12/07/2018 Page: 5 of 7
is appropriate when the evidence, viewed in the light most favorable to the non-
moving party, presents no genuine dispute of material fact and compels judgment
as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). When the party seeking summary judgment satisfies his initial
burden of demonstrating the absence of a genuine issue of material fact, the burden
shifts to the non-moving party to come forward with specific facts to rebut this
showing through affidavits or other relevant and admissible evidence. Avirgan v.
Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). “A nonmoving party, opposing a
motion for summary judgment supported by affidavits cannot meet the burden of
coming forth with relevant competent evidence by simply relying on legal
conclusions or evidence which would be inadmissible at trial.” Id.
As an initial matter, Plaintiff raises no challenge to the district court’s fact
findings about timeliness or the district court’s determination that the Title VII,
ADEA, FCRA, and FMLA claims raised in Plaintiff’s 17 September 2016
complaint -- in and of themselves -- were untimely filed. Nor does Plaintiff
challenge the district court’s determination that no equitable tolling is warranted
under the circumstances of this case.
Plaintiff’s chief argument on appeal is that his claims should be deemed
timely-filed pursuant to Fed. R. Civ. P. 15(c). Plaintiff argues that, because this
case and Titus I both arise from the same conduct, transaction, and occurrence, his
5 Case: 17-14843 Date Filed: 12/07/2018 Page: 6 of 7
17 September 2016 complaint “relates back” to his timely-filed complaint in Titus
I. We disagree.
Rule 15(c) sets forth the circumstances in which “[a]n amendment to a
pleading relates back to the date of the original pleading” for statute-of-limitation
purposes. Fed. R. Civ. P. 15(c)(1). Plaintiff’s 17 September 2016 complaint,
however, is no “amendment to a pleading”; it is the original pleading in this civil
action. Rule 15(c)’s relation-back doctrine is thus inapplicable here and cannot be
used to cure Plaintiff’s failure to file his claims within the applicable limitation
periods. See Dade Cty. v. Rohr Indus., 826 F.2d 983, 989 (11th Cir. 1987) (when a
plaintiff files a new second complaint after his first complaint is dismissed, the
relation-back doctrine may not be used to revive the date of the filing of the first
complaint); cf. Bost v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004)
(“Dismissal of a complaint, without prejudice, does not allow a later complaint to
be filed outside the statute of limitations.”).
The district court also committed no error in granting summary judgment on
Plaintiff’s whistleblower claim. Under Florida law, a public employee must first
exhaust his administrative remedies -- by filing a complaint with the “appropriate
local governmental authority, if that authority has established by ordinance an
administrative procedure for handling such complaints” -- before filing a civil
action for violation of the Florida Whistleblower’s Act. See Fla. Stat. §
6 Case: 17-14843 Date Filed: 12/07/2018 Page: 7 of 7
112.3187(8)(b). Because the County has established such an administrative
procedure, see Miami-Dade County Code § 2-56.28.17 (2018), Plaintiff was
required to avail himself first of that administrative remedy before seeking relief in
the courts.
In support of its motion for summary judgment, the County attached an
affidavit from a manager with the County’s Human Resources, Labor Relations
and Compensation Division, in which the manager attested that Plaintiff had filed
no administrative complaint under the County’s whistleblower ordinance. Plaintiff
has come forward with no evidence or specific facts to rebut the County’s
evidence. Because no genuine issue of material fact has been shown about
whether Plaintiff exhausted his administrative remedies before filing this civil
action, the County was entitled to summary judgment on Plaintiff’s whistleblower
claim. See Avirgan, 932 F.2d at 1577.
AFFIRMED. 2
2 Plaintiff makes three additional arguments in his appellate brief: (1) that the district court erred in dismissing Titus I; (2) that the district court erred in granting Plaintiff’s lawyer’s motion to withdraw; and (3) that the district court erred in permitting the County to move prematurely for summary judgment. Because Plaintiff had an opportunity to present these arguments in the district court and failed to do so, we will not address these issues raised for the first time in this appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331-32 (11th Cir. 2004). 7