FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 FEBRUARY 17, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-13444

Non-Argument Calendar

________________________

D. C. Docket No. 08-00024-CV-4

TIFFANY A. MARSHALL,

Plaintiff-Appellant,

versus

MAYOR AND ALDERMAN OF THE CITY OF SAVANNAH,

GEORGIA,

CHARLES G. MIDDLETON,

Chief, City of Savannah Fire

Department individually, and

in his official capacity,

Defendants-Appellees,

CITY OF SAVANNAH FIRE DEPARTMENT,

Defendant.

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(February 17, 2010)
Before BIRCH, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Tiffany A. Marshall (“Marshall”) appeals the district court’s order granting

summary judgment to the Mayor and Aldermen of the City of Savannah

(collectively, “the City”) and to Charles Middleton (“Chief Middleton”), in his

official capacity as Fire Chief of the Savannah Fire and Emergency Services

Bureau (“Savannah Fire”). Marshall was disciplined and ultimately terminated

1

following an investigation into photographs she posted on a website. On appeal,

Marshall contends that summary judgment was erroneously granted on her claims

of gender discrimination under Title VII and 42 U.S.C. § 1983, and on her Title

VII retaliation claim. We AFFIRM.

I. BACKGROUND

We recite the evidence in the light most favorable to Marshall. In September

2006, the City hired Marshall as a firefighter trainee on a probationary status for

one year. Prior to beginning her employment with the City, Marshall switched her

account at www.myspace.com (“MySpace”) to “private” so that only designated

“friends” could view her photographs in the private section of her account. These

photographs included a picture of firefighters from Savannah Fire, which she

 By consent, the district court dismissed Chief Middleton as a defendant in his individual 1

capacity. 

2
obtained without permission from the City’s website. Marshall labeled this picture

“Diversity.” R2-32-2 at 9. The “Diversity” picture was the official recruitment

photograph displayed on Savannah Fire’s website and other recruiting materials.

Marshall also posted a photograph of herself with members from the Georgia

Search and Rescue Coastal Task Force (“GSAR”), which included employees of

Savannah Fire, as well as a link to a Savannah Fire video.

Displayed on the same page as the “Diversity” and GSAR photographs were

two photographs of Marshall. One photo, captioned “Fresh out of the shower,”

depicts Marshall posing bare-shouldered. R3-39-7 at 8. The other photo reveals

Marshall’s backside. It is difficult to tell what clothing, if any, she is wearing. She

titled that picture, “I model too – this is from like my second shoot!” Id. Marshall

met the photographer for the latter picture through a modeling website.

Savannah Fire learned about Marshall’s MySpace photographs from an

anonymous caller in February 2007. The caller reported that Marshall’s account

contained images that “may conflict” with the way Savannah Fire wanted to be

portrayed. R2-32-4 at 25. Captain Matthew Stanley (“Captain Stanley”),

Savannah Fire’s public information officer, was able to view Marshall’s MySpace

photos as her account was not set to private. Captain Stanley printed the screen

page containing the photos and delivered it to his superiors. .

3
Chief Middleton instructed Assistant Chief of Operations Stephen Bragg

(“Chief Bragg”) to investigate the complaint. Chief Bragg discussed the

photographs with Marshall’s immediate supervisor, Battalion Chief Stanley

Mosely (“Chief Mosely”). Chief Bragg decided to issue an oral reprimand, the

lowest level of disciplinary action, for Marshall’s violations of Savannah Fire’s

rules and regulations. The written summary of the oral reprimand stated that

Marshall had violated Article 13.00, sections 13.25 and 1330(a) and (b), by

2 3

 Section 13.25, entitled “Unbecoming Conduct,” states: 2

Employees are expected to maintain a reasonable and decent standard of conduct

in their private life as well as their profession[al] life and not bring discredit to the

department by his/her misdemeanors. Conduct unbecoming of an employee shall

include:

1) Actions that which brings the Department into disrepute or reflects discredit

upon the employee as a member of the Department[;]

2) Actions that directly and/or indirectly impairs the operation or efficiency of the

Department or employee.

R2-32-2 at 47. 

 Section 13.30, entitled “Department Representation/Conflict of Interest,” states in 3

relevant part:

a) Commercial Testimonials: Employees shall not permit their names or

photographs to be used in endorsing any product that is service-connected with

the Fire and Rescue Department without the permission of the Fire Chief, and

shall not allow their names or photographs to be used in any commercial

testimonial, which alludes to their positions or employment with the Department.

b) Personal Publicity: Employees shall not use their positions within the

Department to enhance or promote any private enterprise, or to seek personal

publicity. 

4
posting Savannah Fire pictures on MySpace, which in conjunction with pictures of

a personal nature, brought “discredit to [the] City and Savannah Fire Department.”

R2-32-2 at 42. Additionally, the reprimand stated that she had exhibited

unbecoming conduct by using her position with Savannah Fire “to enhance and to

seek personal publicity” without permission. Id.

Chief Middleton agreed with Chief Bragg’s assessment of the situation.

Chief Middleton explained the rationale for disciplining Marshall as follows:

I had been made aware that she had posted a Savannah Fire

photograph and other photographs containing images of Savannah

Fire personnel without authorization. At Savannah Fire we work at

having a positive image, and we want to be viewed as a professional,

competent department with outstanding members. We don’t want to

be viewed as the fire department with female firefighters wrapped in

towels. Her personal photographs showing her scantily clad and

promoting her modeling, next to a Savannah Fire photograph and

other clear images of Savannah fire personnel, alluded to her position

as a firefighter with Savannah Fire while using her notoriety as a

Savannah Fire firefighter to promote herself as a model or for other

personal publicity reasons. This use conflicted with, and discredits,

the professional image of Savannah Fire.

R2-32-3 at 2.

After learning of Marshall’s web page, Savannah Fire decided to issue

General Order 07.012, “to reinforce everyone’s understanding of our existing

Rules and Regulations which pertained to posting Savannah Fire photos and

R2-32-2 at 49.

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images on websites.” R2-32-3 at 4. The order, dated 28 February 2007, stated that

Savannah Fire’s identity could not be used for personal, recreational, or fraternal

endorsement without the permission of the Fire Chief or his designee. If personnel

did not remove the identifiers from their web pages or seek permission to use them

by 7 March 2007, they would face disciplinary action. According to Chief Bragg

and Chief Middleton, the General Order had “nothing to do” with Marshall’s

reprimand, which was instead based on her violation of Savannah Fire’s rules and

regulations. R2-32-5 at 38; R2-32-3 at 4.

On 2 March 2007, Marshall met with Chief Middleton, Chief Bragg, and

Chief Mosely. Chief Middleton informed Marshall that her MySpace account

violated Savannah Fire’s rules and regulations as cited in the oral reprimand. Chief

Middleton gave her a copy of those rules and explained that she lacked permission

to post pictures related to Savannah Fire, including photographs of her co-workers

in uniform. Marshall denied violating any rules. Instead, she questioned both

Chief Middleton and Chief Bragg as to whether they had shown the pictures to

anyone else. Although Marshall indicated that she would remove the Diversity

photograph, she never agreed to remove the GSAR picture, even after Chief

Middleton gave her a direct order to do so. Marshall also initially refused to sign

the oral reprimand. When Chief Bragg told her to “give it back,” Marshall told

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him, “[S]ir, I will not be talked to like that.” R2-32-2 at 17. After that comment,

Chief Mosely asked Marshall to speak with him in another room.

When she went back into the meeting, Marshall protested that she was being

singled out. When asked why, she stated that she was not the only firefighter on

MySpace with photographs related to Savannah Fire. Chief Middleton replied that

he was unaware of other such firefighters and asked her for their names. Marshall

would not disclose any. Instead, she told Chief Middleton that he could find their

web pages himself in the same way he found hers. Marshall further noted that the

recently issued General Order afforded all personnel until 7 March 2007 to remove

any violating pictures, and that Marshall was being denied this opportunity.

Marshall ultimately signed the reprimand but added the following: “By signing

this disciplinary action, in no way, shape, or form do I agree to the charges posted

against me.” R2-32-2 at 42.

Although Marshall admits that she became “upset” during the meeting, she

denies speaking in a loud or combative manner. Id. at 19-20. All three Chiefs

were left with different impressions of Marshall’s behavior, however. Chief

Middleton described Marshall as “defensive, at first in denying and not being

aware of policy violations, to being combative.” R2-32-3 at 2. In his recollection,

Marshall aggressively “demanded that I give her everything that we had, and she

7
demanded to know who else knew about the website, and was I sharing the

information with anyone else.” Id. at 2-3. Chief Middleton was also shocked by

Marshall’s refusal to disclose the names of other potential violators, noting that he

had never had a firefighter refuse a request for information. He summed up the

meeting by stating, “Her combative tone, the sharpness of her words, and her

disregard for my authority, I have never experienced with a subordinate to this

extent during my thirty-three years of fire service. This was even more astounding

since this was a probationary firefighter.” Id. at 3. Chief Bragg likewise viewed

Marshall as argumentative, disrespectful, loud, and combative. According to Chief

Bragg, Marshall pointed fingers and argued with Chief Middleton as to whether he

had shown the photos to others. Chief Bragg further found Marshall’s refusal to

address him by his title, as well as her conduct toward Chief Middleton, to be

insubordinate. Chief Mosely concurred that Marshall’s demeanor and attitude

were disrespectful and inappropriate.

Three days after the meeting, Chief Bragg advised Chief Middleton that

Marshall would be terminated based on her “denial of violation of Fire Department

policy, disrespect toward administration and Chief Officers, [and] disregard for

[the] oath of a Savannah Fire Department Firefighter.” R2-32-5 at 63-65, 86.

Chief Middleton, who is responsible for making termination decisions, agreed with

8
the recommendation and accepted Chief Bragg’s decision to dismiss Marshall as a

probationary employee. Chief Bragg also relayed the decision to Chief Mosely,

who agreed that Marshall should be terminated based on her insubordination. In a

letter dated 6 March 2007, Chief Bragg notified Marshall that, effective 8 March

2007, she would no longer work for Savannah Fire based on her “unsatisfactory

probation period.” R2-32-5 at 87.

In February 2008, Marshall filed suit, asserting one count of a violation of

Title VII of the Civil Rights Act of 1964 based on gender, race, and/or national

4

origin discrimination. In April 2008, she filed an amended complaint. In count

one, she alleged she was terminated based on her gender and race in violation of

Title VII. Specifically, she claimed that no similarly situated male employees, or

white or black employees, “were subjected to this discipline for equal offenses.”

R1-12 at 4. Marshall did not allege that she was terminated in retaliation for

complaining that she was being singled out as a female. In count two, she added a

claim under 42 U.S.C. §1983, stating that Chief Middleton had violated her

Fourteenth Amendment equal protection rights. In count three, Marshall claimed

that her termination violated her First Amendment right “to freely communicate on

 Marshall stated in her amended complaint that she is “of mixed race.” R1-12 at 4. She 4

later explained in her deposition that her mother is Caucasian and her father’s ethnic background

consists of Hindu Indian and African-American. 

9
a completely personal basis where no real or imagined damage to her employer has

been demonstrated.” Id. at 6.

After the City and Chief Middleton filed a motion for summary judgment,

Marshall filed a response, raising for the first time a Title VII claim for retaliation.

Specifically, she argued that her termination violated Title VII because it was in

retaliation for her complaints that she was singled out as a female.

In June 2009, the district court granted the motion for summary judgment.

The court first dismissed Marshall’s racial discrimination claim on grounds that

she did not assert it her in Charge of Discrimination with the Equal Employment

Opportunity Commission (“EEOC”), nor did she address it in her response to the

motion for summary judgment. Turning to her gender discrimination claim, the

court found that Marshall failed to make out a prima facie case of disparate

treatment because she did not establish that other similarly situated male

employees were treated more favorably. Specifically, the court found that

Marshall had failed to show that Chief Middleton or Chief Bragg knew of other

violators at the time they disciplined Marshall. With respect to Marshall’s

retaliation claim, the court found that this claim was never pled prior to her

response to the motion for summary judgment. The court concluded that the lack

of fair notice prejudiced the defendants, as evidenced by the absence of any

10
questions about retaliation during Marshall’s deposition. Finally, the court

determined that her “speech” in disseminating photographs on her MySpace page

was not entitled to First Amendment protection. R4-48 at 29-30.

On appeal, Marshall only contests the grant of summary judgment with

respect to the City on her claims of gender discrimination under Title VII and 42

U.S.C. § 1983, and on her claim of retaliation under Title VII.

5

II. DISCUSSION

We review the district court’s grant of summary judgment de novo,

considering the evidence in the light most favorable to Marshall. Rioux v. City of

Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). Summary judgment is proper

if “there is no genuine issue as to any material fact” and the moving party “is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2) (2009). No

genuine issue of material fact exists if Marshall fails to establish an element

essential to her claim on which she will bear the burden of proof at trial. See Jones

v. Gerwens, 874 F.2d 1534, 1538 (11th Cir. 1989).

A. Sex Discrimination Claims under Title VII and Section 1983

Marshall alleges that her discipline and termination violated Title VII and

 Marshall does not argue on appeal any claims against Chief Middleton in his official 5

capacity, or any claims of racial discrimination or First Amendment violations. These claims are

therefore deemed abandoned. See United States v. Jernigan, 341 F.3d 1273, 1284 n.8 (11th Cir.

2003). 

11
her equal protection rights pursuant to 42 U.S.C. § 1983. Title VII prohibits

employers from engaging in practices that discriminate on the basis of sex. 42

U.S.C. § 2000e-2(a) (2003). The Equal Protection Clause of the United States

Constitution prohibits unlawful sex discrimination in public employment. Cross v.

State of Ala., 49 F.3d 1490, 1507 (11th Cir. 1995). Title VII and § 1983 claims

have the same elements where, as here, the claims are based on the same set of

facts. Rioux, 520 F.3d at 1275 n.5. Accordingly, we will analyze Marshall’s Title

VII claims in conjunction with her § 1983 claims.

Marshall bases her disparate treatment claim on circumstantial evidence. In

order to prevail, Marshall must first establish a prima facie case of discrimination

by showing that “she was a qualified member of a protected class and was

subjected to an adverse employment action in contrast with similarly situated

employees outside the protected class.” Wilson v. B/E Aerospace, Inc., 376 F.3d

1079, 1087 (11th Cir. 2004). The adverse employment action here consists of the

oral reprimand and her discharge. For claims involving discipline for a violation

of work rules, Marshall must show either that she did not violate the work rule, or

that she “engaged in misconduct similar to that of a person outside the protected

class, and that the disciplinary measures enforced against [her] were more severe

than those enforced against the other persons who engaged in similar misconduct.”

12
Jones, 874 F.2d at 1540. A prima facie case for discriminatory discharge may be

satisfied by showing that she was a member of a protected minority, she was

qualified for the job, she suffered an adverse employment action, and she was

replaced by someone outside her protected class or was treated less favorably than

a similarly situated individual outside her protected class. Maynard v. Bd. of

Regents of the Div. of Univs. of the Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th

Cir. 2003).

With respect to her oral reprimand, Marshall asserts that she established her

prima facie case in both ways: she did not violate any work rule, and her conduct

was identical to similarly situated male firefighters who were neither investigated

nor disciplined. Marshall did not make this dual argument in her response to the

summary judgment motion, however. She instead framed her claim as follows:

“The disparate treatment of which [Marshall] has complained . . . is the failure of

Defendants to give her the same opportunity to remove [Savannah Fire] images

from her Web site before being disciplined – an opportunity given to her

identically situated male co-workers.” R1-38 at 9. Not surprisingly, the district

court made no factual finding as to whether Marshall had actually violated the

City’s rules and regulations. The court only analyzed Marshall’s allegation that

similarly situated male firefighters were treated differently than her.

13
“This Court has repeatedly held that an issue not raised in the district court

and raised for the first time in an appeal will not be considered by this court.”

Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)

(quotation marks and citation omitted). The purpose of this rule is to prevent our

adjudication of fact-bound issues that district courts had no opportunity to resolve,

and to limit our review to “claims of judicial error in the trial courts.” Id. Given

that the district court was not presented with and did not resolve the fact-bound

issue as to whether Marshall established a prima facie case of discrimination based

on her non-violation of the City’s rules, we decline to consider this argument on

appeal. See id.

Marshall also contends that the disciplinary measures enforced against her

were more severe than those enforced against similarly situated employees. A

valid comparator requires an employee who is “similarly situated in all relevant

respects.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam).

Two critical factors to consider are “the nature of the offenses committed and the

nature of the punishment imposed.” Maynard, 342 F.3d at 1289 (quotation marks

and citation omitted). Additionally, Marshall must show that the person imposing

the discipline knew of the comparator’s alleged misconduct “and that the known

violations were consciously overlooked.” Jones, 874 F.2d at 1542. The ultimate

14
burden lies on Marshall to show a similarity between her conduct and that of male

employees who were treated differently, and not on the City to disprove their

similarity. See id. at 1541.

Marshall has not met her burden here. She asserts that other male

firefighters had Savannah Fire-related and other personal photos on their MySpace

pages. Even if we assumed that these firefighters violated the same rules and

regulations as Marshall, the district court correctly found that the Chiefs lacked

knowledge of these firefighters. It is undisputed that Chief Middleton told

Marshall he was unaware of any other current violators, and that Marshall refused

to disclose any specific names. Had he known of any firefighters using Savannah

Fire photos or images on their personal web page, Chief Middleton stated that

“they would have been treated exactly the same way as Ms. Marshall.” R2-32-3 at

4. While Chief Bragg and Chief Mosely had heard rumors of others in a

potentially similar situation at the time of Marshall’s oral reprimand, they never

received any information identifying a particular person, as in Marshall’s case.

Absent proof of such knowledge, Marshall cannot establish a prima facie case of

discrimination. See Jones, 874 F.2d at 1542.

Marshall attempts to rebut this conclusion with two arguments. First, she

concedes that the Chiefs knew only of a rumor at the time they delivered the oral

15
reprimand, but she nevertheless faults the Chiefs for not investigating male

firefighters. Marshall’s argument ignores the fact that Chief Middleton asked

Marshall to identify any violators and Marshall refused to cooperate. Unless

Savannah Fire receives a specific complaint, Chief Bragg explained that “we don’t

go searching for people on web sites.” R2-32-5 at 83. Marshall’s claim that Chief

Middleton acted with complete indifference to her allegations is thus without merit.

Second, Marshall argues that the issuance of General Order 07.012 proves

that the Chiefs knew other male employees were engaging in the same conduct as

Marshall, yet they chose to do nothing about it. The General Order was not issued

only for male employees though. Rather, Chief Bragg noted that it was aimed at

everybody – “m[e]n, women, doesn’t make any difference” – so as to ensure

compliance with the existing rules and regulations. Id. at 36-37. Chief Bragg

stated that he would have requested any known violator to remove the offending

materials immediately, as done with Marshall. The issuance or application of

General Order 07.012 thus does not show that other similarly-situated male

firefighters were treated differently than Marshall.

Turning to Marshall’s termination, we find no evidence in the record of a

valid comparator. Marshall submits that Tim Sendelbach (“Sendelbach”), a former

Chief of Training for Savannah Fire, was never disciplined despite his extensive

16
production and use of Savannah Fire images. According to Sendelbach’s affidavit,

however, he merely assisted in the production of training videos with the full

cooperation of his supervisors. Moreover, Sendelbach averred that he never had

Savannah Fire property or images on his personal website. Sendelbach is thus not

similarly situated to Marshall. Marshall’s attempt to compare herself to Chief

Mosely fails for the same reason. Marshall notes that Chief Mosely has

photographs at home of himself in uniform, and that his children most likely have

photographs with him in uniform also. Marshall does not explain how such

photographs discredited Savannah Fire or were being used to seek personal

publicity. As there is no evidence that Chief Mosely violated the same rules and

regulations as stated on Marshall’s reprimand, he does not constitute a valid

comparator.

Furthermore, Marshall’s termination was not based solely on her posting of

Savannah Fire photographs on her website. The reasons given for Marshall’s

discharge were her unsatisfactory probationary period, her denial of violating

Savannah Fire’s policies, her disrespect toward superior officers, and her disregard

for the oath of a Savannah Fire Department firefighter. The record contains no

evidence of a male firefighter who was on probationary status, disputed alleged

violations of Savannah Fire’s rules, disobeyed direct orders of the commanding

17
chiefs, and showed disrespect. Consequently, Marshall has failed to establish that

she was treated less favorably than a male firefighter who was “similarly situated

in all relevant respects.” Holifield, 115 F.3d at 1562. Without a valid comparator

or other evidence of discrimination, Marshall’s prima facie case fails.

In sum, Marshall failed to carry her burden of establishing a prima facie case

of discrimination. The district court correctly granted the City’s motion for

summary judgment on Marshall’s gender discrimination claims under Title VII and

§ 1983.

B. Title VII Retaliation Claim

Marshall further submits that her termination violated Title VII’s prohibition

against retaliation for opposing an unlawful employment practice. Specifically,

she argues that she was terminated in retaliation for her complaint during the oral

reprimand meeting that she was being singled out as a female. We agree with the

district court that Marshall failed to plead her Title VII retaliation claim in

compliance with Federal Rule of Civil Procedure 8(a).

Federal Rule of Civil Procedure 8(a) requires a complaint to contain “a short

and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

R. Civ. P. 8(a)(2) (2009). The purpose of this rule is to “‘give the defendant fair

notice of what the claim is and the grounds upon which it rests.’” Davis v. Coca18
Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964 (2007)).

Under Title VII, an employer may not discriminate against an employee in

retaliation for opposing an unlawful employment practice under Title VII. See 42

U.S.C. § 2000e-3(a) (2003). A prima facie case of retaliation requires the plaintiff

to show that: (1) she engaged in a statutorily protected activity; (2) she suffered an

adverse employment action; and (3) there is some causal connection between the

two events. See Holifield, 115 F.3d at 1566. “Although a Title VII complaint

need not allege facts sufficient to make out a . . . prima facie case, . . . it must

provide enough factual matter (taken as true) to suggest” discriminatory retaliation.

Davis, 516 F.3d at 974 (quotation marks and citation omitted).

Here, neither Marshall’s original nor amended complaint pled a Title VII

retaliation claim in satisfaction of the demands of Rule 8(a)(2). Not only did

Marshall omit any reference to the requirements of a cause of action under 42

U.S.C. § 2000e-3(a), but she also failed to allege facts showing that she engaged in

activities protected by Title VII that resulted, through retaliation, in her

termination. We agree with the district court that this lack of notice prejudiced the

City. During her deposition, Marshall never indicated that she believed she was

fired as a result of her telling the Chiefs that she was being singled out. She

19
instead maintained that her termination resulted from her disparate treatment as a

female. Consequently, the City never asked any questions about retaliation or the

elements of 42 U.S.C. § 2000e-3(a). The district court correctly concluded that

allowing Marshall to assert this claim for the first time in her response to the City’s

motion for summary judgment would prejudice the City.

Marshall attempts to get around her pleading defect by pointing to certain

phrases in her amended complaint – “misapplication of . . .rules,” “unequal

distribution of punishment,” “improper representation and notification,” “unequal

enforcement,” and “employee harassment.” R1-12 at 4. In Marshall’s view, any

Title VII claim could be pursued under these generalized terms of discrimination.

When considered in conjunction with her EEOC charge and discovery filings,

Marshall maintains that the City had clear notice of her retaliation claim.

We have previously rejected the argument, however, that a mere generalized

claim of discrimination is sufficient to raise a particularized Title VII claim. See

Coon v. Georgia Pacific Corp., 829 F.2d 1563, 1568-69 (11th Cir. 1987). In Coon,

the plaintiff attempted to add specific Title VII claims based on a statement in her

EEOC charge attached to her complaint that “[w]omen in general are held back

from advancement in the mill production line.” Id. at 1568. We concluded that

this generalized claim of discrimination “did not expand the scope of the complaint

20
to include her additional claims.” Id. Since Coon’s complaint never included the

additional claims, the mention of such claims in the pretrial stipulation, discovery,

and motions, was “not a substitute for the factual allegations of a complaint under

Federal Rule of Civil Procedure 8(a).” Id.

As in Coon, Marshall’s generalized claims of discrimination do not raise a

particularized claim of retaliation. Though Marshall checked the box for

retaliation in her EEOC Charge of Discrimination, she did not attach this charge to

her complaints nor did she add a claim of retaliation when she amended her

complaint. The fact that Marshall could have pleaded her Title VII retaliation

claim in her amended complaint, but did not, does not somehow render her claims

“present” within her complaint. Coon, 829 F.2d at 1570.

We also reject Marshall’s attempts to blame the City for her defective

pleading. She suggests that the City should have moved for a more definite

statement of claims under Federal Rule of Civil Procedure 12(e). That rule permits

a party to move for a more definite statement when a pleading “is so vague or

ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P.

12(e) (2009). While the City did not file such a motion, they did alert Marshall to

the inadequacy of her original complaint under Rule 8(a) by filing a motion to

dismiss the complaint. Marshall responded by filing an amended complaint in

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which she listed only one count of a Title VII violation based on her allegations

that no similarly situated male, Caucasian, or African-American colleagues were

subjected to the same discipline for equal offenses. The amended complaint was

not so “vague or ambiguous” as to require a motion for clarification. Compare

Davis, 516 F.3d at 983 (noting that defense counsel should have moved for a more

definite statement of pleading where the complaint purported to combine in one

count multiple claims of eight plaintiffs). Marshall’s argument merely seeks to

transfer her burden to satisfy Rule 8(a)’s pleading requirements onto the City’s

shoulders. See Twombly, 550 U.S. at 555, 127 S. Ct. at 1964-65 (noting that it is

the plaintiff’s obligation to provide the grounds for relief). This she cannot do.

In sum, the district court correctly concluded that Marshall’s amended

complaint was insufficient under Rule 8(a) to raise a Title VII retaliation claim.

We further agree that this lack of notice prejudiced the City. Accordingly, we

affirm the district court’s grant of summary judgment as to this claim.

III. CONCLUSION

Based on the foregoing, we AFFIRM the grant of summary judgment on

Marshall’s claims of gender discrimination under Title VII and 42 U.S.C. § 1983,

and on her Title VII retaliation claim.

AFFIRMED.

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