[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13533

Non-Argument Calendar

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MICHAEL DOBBS, 

Plaintiff-Appellant,

versus

MARTIN MARIETTA MATERIALS, INC., 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:19-cv-04170-MHC

____________________

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2 Opinion of the Court 21-13533

Before JILL PRYOR, BRANCH, and MARCUS, Circuit Judges.

PER CURIAM:

Michael Dobbs appeals from the district court’s grant of 

summary judgment in favor of Martin Marietta Materials, Inc. 

(“Martin Marietta”) on his claims of age discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA”), 

29 U.S.C. § 623(a)(1) and (d). Dobbs’s complaint alleged that Martin Marietta -- which, due to a settlement with the Department of 

Justice (“DOJ”), was required to sell its quarry in Forsyth, Georgia 

where Dobbs worked to a competitor, Midsouth Paving -- had 

wrongly refused to rehire him at another Martin Marietta plant and 

forced him to accept a demotion to work for Midsouth Paving at 

the Forsyth plant. On appeal, Dobbs argues that the district court 

erred in granting summary judgment to Martin Marietta: (1) on his 

discrimination claim because he timely filed a charge of discrimination with the Equal Employment Opportunity Commission 

(“EEOC”), and, alternatively, equitable tolling applied; and (2) on 

his retaliation claim because each denial of his applications for rehire was a separate adverse employment action that occurred after 

he engaged in a protected activity. After careful review, we affirm.

I.

We review the grant of summary judgment de novo. 

Thomas v. Cooper Lighting Inc., 506 F.3d 1361, 1363 (11th Cir. 

2007). Summary judgment is appropriate if the movant shows that 

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21-13533 Opinion of the Court 3

there is no genuine dispute as to any material fact and the movant 

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We also review de 

novo whether equitable tolling applies, but we review for clear error a district court’s factual findings on equitable tolling. Cabello 

v. Fernandez-Larios, 402 F.3d 1148, 1153 (11th Cir. 2005).

II.

First, we are unpersuaded by Dobbs’s claim that the district 

court erred in granting summary judgment to Martin Marietta on 

his ADEA discrimination claim. Before filing an ADEA action, a 

plaintiff in a non-deferral state like Georgia first must file a charge 

of discrimination with the EEOC within 180 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. 

§ 626(d)(1)(A). Missing the charge deadline bars a plaintiff from suing under the ADEA. Ross v. Buckeye Cellulose Corp., 980 F.2d 

648, 662 (11th Cir. 1993). The plaintiff has the burden of establishing that he filed a timely charge of discrimination. See Jackson v. 

Seaboard Coast Line R. Co., 678 F.2d 992, 1010 (11th Cir. 1982). 

The applicable period for filing an EEOC charge of discrimination does not begin to run until the employee receives unequivocal notice of an adverse employment decision. Wright v. AmSouth Bancorporation, 320 F.3d 1198, 1201–03 (11th Cir. 2003). 

However, the Supreme Court has made clear that the statute of 

limitations begins at the time of the discriminatory act, not when 

the consequences of that act become painful for the plaintiff. Delaware State College v. Ricks, 449 U.S. 250, 258 (1980). 

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Timely filing a charge of discrimination is not a jurisdictional 

prerequisite, but a requirement that, like a statute of limitations, is 

subject to waiver, estoppel, and equitable tolling. Zipes v. Trans 

World Airlines, Inc., 455 U.S. 385, 393 (1982). Nevertheless, we’ve

held that traditional equitable tolling principles require a claimant 

to justify his untimely filing by a showing of extraordinary circumstances. Jackson v. Astrue, 506 F.3d 1349, 1353 (11th Cir. 2007). 

Extraordinary circumstances include fraud, misinformation, or deliberate concealment. Id. at 1355. The plaintiff must establish that 

tolling is warranted because equitable tolling is an extraordinary 

remedy that should be extended only sparingly. Bost v. Federal 

Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004). 

Where equitable tolling is warranted, the statute of limitations period does not start to run until a plaintiff knew or reasonably should have known that he was discriminated against. Carter 

v. West Publ’g Co., 225 F.3d 1258, 1265 (11th Cir. 2000). Further, 

equitable tolling applies while the employer is actively trying to 

find another position within the company for the employee. Cocke 

v. Merrill Lynch & Co., 817 F.2d 1559, 1561 (11th Cir. 1987). We’ve

held that a district court’s grant of equitable tolling was clearly erroneous where a plaintiff had some reason to believe at some point 

during the 180-day filing period that he was the victim of unlawful 

discrimination. Ross, 980 F.2d at 660. 

Under common law, the elements of equitable estoppel are: 

(1) the party to be estopped misrepresented material facts; (2) the 

party to be estopped was aware of the true facts; (3) the party to be 

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21-13533 Opinion of the Court 5

estopped intended that the misrepresentation be acted on or had 

reason to believe that the party asserting estoppel would rely on it; 

(4) the party asserting the estoppel did not know, nor should it have 

known, the true facts; and (5) the party asserting the estoppel reasonably and detrimentally relied on the misrepresentation. Busby 

v. JRHBW Realty, Inc., 513 F.3d 1314, 1326 (11th Cir. 2008). We’ve

held that a plaintiff is not required to prove the defendant acted in 

bad faith to be entitled to equitable estoppel, but he must prove the 

defendant’s conduct was for the purpose of obtaining a delay of 

which it seeks to take advantage. Kazanzas v. Walt Disney World 

Co., 704 F.2d 1527, 1532 (11th Cir. 1983). 

Here, the district court did not err in granting summary 

judgment to Martin Marietta on Dobbs’s claim of discrimination.

As the undisputed record reflects, Martin Marietta notified Dobbs 

on April 10, 2018 that he would be terminated and would not be 

eligible for rehire. Thus, Martin Marietta provided unequivocal 

notice of its separation and no-rehire decision on April 10, 2018, 

starting the 180-day clock. See Wright, 320 F.3d at 1201–03. 

Dobbs’s claim that the statute of limitations should not have 

begun to run until he realized Martin Marietta would not make 

him whole --since he’d lose pension benefits by accepting a transfer 

to Midsouth Paving, the new owner of the Forsyth quarry -- is without merit. Under our case law, the alleged discriminatory act occurred when Martin Marietta expressed its intention to terminate 

his employment, not when Dobbs realized its effects. Ricks, 449 

U.S. at 258. Thus, the correct period for the statute of limitations 

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6 Opinion of the Court 21-13533

is April 10, 2018, through October 8, 2018, and Dobbs’s EEOC 

charge, which was filed October 22, 2018, was untimely. 42 U.S.C. 

§ 2000e-5(e)(1); 29 U.S.C. § 626(d)(1)(A); Watson, 324 F.3d at 1258.

Moreover, the district court did not err in determining that 

equitable tolling was not warranted. Dobbs failed to show that any

extraordinary circumstances prevented him from timely filing his 

EEOC charge. Jackson, 506 F.3d at 1353. The record reveals that 

Dobbs had enough evidence to bring a discrimination claim on 

April 10, 2018, when he was told that he would be terminated with 

no opportunity to be rehired and that Wilson Lin, a younger employee, would be transferred to continue to work for Martin Marietta. See Carter, 225 F.3d at 1265. According to Dobbs’s testimony, 

he already had suspicions by this time that he was being discriminated against because of his age. To start the statute of limitations 

clock under our law, Dobbs simply needed unequivocal notice and 

reason to believe Martin Marietta’s decision was a discriminatory 

act. Wright, 320 F.3d at 1201–03; Carter, 225 F.3d at 1265. On the 

undisputed factual record, Dobbs had both on April 10, 2018. 

Nor is equitable tolling warranted on the ground that Martin 

Marietta secured future employment for Dobbs at Midsouth Paving. As of April 10, 2018, Dobbs knew that Martin Marietta had 

decided not to search for positions within the company for him to 

retain his employment. See Cocke, 817 F.2d at 1561. 

Dobbs also raised an equitable estoppel claim based on Martin Marietta’s false statements that the DOJ required his termination. But even assuming that Martin Marietta intentionally misled 

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Dobbs for the purpose of delaying his filing of an EEOC charge, the 

record indicates that Dobbs did not rely on that statement. Rather, 

as we’ve noted, Dobbs believed as of April 10, 2018, that Martin 

Marietta had discriminated against him because of his age. Busby, 

513 F.3d at 1326. Accordingly, his EEOC charge was filed out of 

time, and we affirm the grant of summary judgment to Martin 

Marietta on Dobbs’s discrimination claim.

III.

We also are unconvinced by Dobbs’s argument that the district court erred in granting summary judgment to Martin Marietta 

on his ADEA retaliation claim. The ADEA prohibits retaliation 

against employees who complain of age discrimination. See 29 

U.S.C. § 623(d). A plaintiff alleging retaliation establishes a prima 

facie case by showing that (1) he engaged in a statutorily protected 

expression, (2) he suffered an adverse employment action, and (3) 

there was a causal link between the protected expression and the 

adverse action. Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 

919 (11th Cir. 1993). To show a causal link between the protected 

expression and the adverse employment action, the plaintiff must 

show that the employer had knowledge of the protected expression 

at the time it took the adverse employment action. Bungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000). 

The undisputed record in this case shows that the alleged 

retaliatory act -- Martin Marietta’s decision not to rehire Dobbs --

occurred and was expressed to Dobbs before August 2018, the date 

he first engaged in protected activity by communicating his 

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8 Opinion of the Court 21-13533

concern of age discrimination with the company. See Bungart, 231 

F.3d at 799. So while the denials of his several applications for rehire occurred later, they were not separate adverse employment 

actions because the decision not to rehire him was made before he 

applied for any position. Indeed, his testimony reflected that he 

understood he would not be rehired based on the original no-rehire 

determination on April 10, 2018. See Ellerth, 524 U.S. at 761.

Because the only adverse employment action Dobbs suffered -- the no-rehire decision on April 10, 2018 -- occurred before 

his August 2018 protected activity, Dobbs failed to establish a 

causal connection between Martin Marietta’s action and his later

protected activity. And establishing a causal connection was necessary for him to state a prima facie case of retaliation. See Bungart, 

231 F.3d at 799. Further, any evidence concerning whether the 

DOJ required Martin Marietta to terminate Dobbs was irrelevant 

to his retaliation claim. Even if Martin Marietta misled Dobbs 

about its reason for the termination, the adverse employment action was taken prior to Dobbs engaging in any protected activity. 

See id. Accordingly, there is no genuine issue of material fact concerning whether Dobbs failed to state a prima facie case of retaliation, and we affirm the grant of summary judgment in favor of 

Martin Marietta. 

AFFIRMED. 

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