[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-11922

Non-Argument Calendar

________________________

D.C. Docket No. 8:19-cv-00168-WFJ-SPF

PETER ORTIZ, 

 Plaintiff-Appellant,

 versus

WASTE MANAGEMENT, INC. OF FLORIDA, 

CARLOS GARCIA, 

 Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(April 27, 2020)

Before WILSON, ANDERSON and EDMONDSON, Circuit Judges.

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PER CURIAM: 

Plaintiff Peter Ortiz appeals the district court’s dismissal of his civil action 

against his former employer, Waste Management, Inc. of Florida (“WMI”).1

 In his 

complaint, Plaintiff asserted against WMI claims for violation of Title VII of the 

Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”), and for violation of 

Florida law.2

 No reversible error has been shown; we affirm.

Plaintiff alleged these facts in his complaint. Plaintiff was employed as a 

Route Driver with WMI beginning in 2003. On 23 January 2017, a group of 

Plaintiff’s coworkers taunted Plaintiff after Plaintiff arrived at work wearing a 

small bandage on his face. One of the coworkers -- Carlos Garcia -- used his 

cellphone to record a video of the taunting. Plaintiff told Garcia to stop filming 

him. Plaintiff then walked out of the breakroom and into the men’s restroom. As 

Plaintiff was sitting on the toilet, Plaintiff looked up and saw that Garcia was also 

in the restroom and was filming Plaintiff, whose genitalia was exposed. 

1 Plaintiff also named as a defendant his coworker, Carlos Garcia. On appeal, Plaintiff raises no 

argument about his claims against Garcia; those claims are not before us on appeal. 

2 The district court dismissed without prejudice Plaintiff’s state law claims after declining to 

exercise supplemental jurisdiction. On appeal, Plaintiff raises no challenge to that ruling. 

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The next day, Plaintiff reported the incident to his supervisor, D.A. D.A., 

however, did nothing to address Garcia’s conduct and, instead, continued to assign 

Plaintiff to work with Garcia after the filming incident. 

On 26 January, Plaintiff learned that two other coworkers (who had not been 

present during the initial taunting episode) had seen the video of Plaintiff on the 

toilet. Plaintiff complained to D.A. a second time. D.A. then spoke with Plaintiff 

and Garcia about the situation. D.A. told Garcia to delete the video but did not 

otherwise reprimand Garcia or confirm that the video had been deleted. In 

addition, D.A. insisted on discussing the matter in a public area despite Plaintiff’s 

request to move into a private office. Plaintiff later learned that D.A. and Garcia 

were “very good friends.” 

Over three weeks later, Plaintiff says he was contacted by a “whistleblower” 

who showed Plaintiff a copy of Garcia’s video. Plaintiff learned that Garcia had 

sent the video directly to the whistleblower and to four other coworkers. 

On 22 February, Plaintiff called WMI’s “Integrity Hotline”: a phone number 

for employees to report “unethical behavior” in the workplace. WMI opened an 

investigation into Plaintiff’s complaint. The complaint was assigned to Y.B., a 

human resources manager. 

After Y.B. began her investigation, she demanded to know the 

whistleblower’s identity. Plaintiff gave Y.B. the names of the five coworkers who 

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had received the video directly from Garcia (one of whom was the whistleblower) 

but refused to identify the whistleblower. Y.B. told Plaintiff that he was impeding 

the investigation and that he would not “like what comes next.” Plaintiff 

responded that he was “being harassed and retaliated against for precisely having 

integrity.” 

During a later conversation, Y.B. told Plaintiff that, because he refused to 

disclose the whistleblower’s identity, “the case was out of her hands”; the 

investigation had been transferred to Corporate Security. Y.B. also told Plaintiff 

that -- per WMI’s lawyer -- Plaintiff would be fired if he failed to disclose the 

identity of the whistleblower within 48 hours. Plaintiff refused to comply; WMI 

terminated Plaintiff’s employment on 23 March 2017. 

In his civil complaint, Plaintiff asserts two claims under Title VII: one for 

retaliation and another for hostile work environment. About retaliation, Plaintiff 

asserts that WMI treated him differently because of his sex and retaliated against 

him for reporting Garcia’s behavior and “for exercising his civil rights and 

demanding to be treated equal as his female counterparts.” Plaintiff contends that 

-- had he been a female employee -- WMI would have investigated the incident 

more thoroughly, would have taken remedial action against Garcia, would have 

assigned the investigation of Plaintiff’s complaint (which involved video footage 

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of Plaintiff’s genitalia) to an investigator of the same sex, and would not have 

terminated Plaintiff’s employment. 

About his second Title VII claim, Plaintiff says he was subjected to a hostile 

work environment because of his sex. Plaintiff says he was treated differently 

from female employees because WMI would have treated more seriously a similar 

incident involving a female employee. 

WMI moved to dismiss Plaintiff’s complaint. In pertinent part, WMI 

asserted that Plaintiff’s allegations fell outside the scope of the operative charge of 

discrimination Plaintiff filed with the Equal Employment Opportunity Commission 

(“EEOC”). 

Plaintiff -- through his lawyer -- filed with the EEOC the charge of 

discrimination pertinent to this appeal on 4 August 2017.3

 Plaintiff marked (on 

small spaces similar to tick-boxes that were part of the complaint form) that he was 

discriminated against based on “retaliation” and “other (specify below).” Identical 

small spaces existed to be checked for several other kinds of discrimination, 

including “SEX”; the “__ SEX” space was not checked by Plaintiff. Briefly stated, 

Plaintiff alleged that he “was retaliated against for constantly complaining about 

3 Plaintiff filed two charges of discrimination with the EEOC. Plaintiff filed his first charge on 4 

August 2017. Based on that charge, the EEOC issued Plaintiff a Notice of Right to Sue on 24 

October 2018: that notice is attached to Plaintiff’s complaint. Plaintiff later filed a second charge 

on 8 November 2018, which the EEOC dismissed as untimely. In the district court and on 

appeal, Plaintiff relies solely upon the 4 August 2017 EEOC charge and raises no argument that 

the district court erred in failing to consider Plaintiff’s second EEOC charge. 

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having my rights and dignity violated by [Garcia],” and that Garcia had recorded 

and circulated a video of Plaintiff seated naked on the toilet. 

In his “Discrimination Statement” (which extends over several pages), 

Plaintiff said he believed he had been harassed, subjected to a hostile work 

environment, and retaliated against in violation of Title VII. Plaintiff then 

described in detail the same factual allegations about Garcia’s conduct, WMI’s 

investigation, and about the termination of Plaintiff’s employment that Plaintiff 

alleged in his complaint. Never did Plaintiff’s EEOC charge allege that Plaintiff 

was treated differently or discriminated against because of his sex or allege that he 

had made it known to WMI that he believed he was being discriminated against 

based on his sex. 

After conducting a hearing on WMI’s motion, the district court dismissed 

with prejudice Plaintiff’s Title VII claims. The district court determined that the 

operative EEOC charge “simply said nothing about sex discrimination.” At the 

hearing on WMI’s motion to dismiss, Plaintiff’s lawyer conceded that Plaintiff 

alleged no sex discrimination in his first -- that is the pertinent -- EEOC charge. 

Determining that Plaintiff’s Title VII claims fell outside the scope of the EEOC 

investigation that reasonably could be expected to grow out of the charge of 

discrimination, the district court concluded that those claims were subject to 

dismissal. 

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We review de novo a district court’s dismissal for failure to state a claim, 

accepting all properly alleged facts as true and construing them in the light most

favorable to the plaintiff. Butler v. Sherriff of Palm Beach Cty., 685 F.3d 1261, 

1265 (11th Cir. 2012). 

Title VII makes it unlawful for an employer to discriminate against an 

employee “with respect to his compensation, terms, conditions, or privileges of 

employment, because of such individual’s race, color, religion, sex, or national 

origin.” 42 U.S.C. § 2000e-2(a)(1). The phrase “terms, conditions, or privileges 

of employment” has been construed to include claims about “a discriminatorily 

hostile or abusive environment.” See Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 

1244 (11th Cir. 2004). We have stressed that Title VII “does not prohibit 

harassment alone, however severe and pervasive.” See Baldwin v. Blue 

Cross/Blue Shield, 480 F.3d 1287, 1301 (11th Cir. 2007). “Instead, Title VII 

prohibits discrimination, including harassment that discriminates based on a 

protected category such as sex.” Id. at 1301-02. Discrimination is the heart of 

Title VII; not every unreasonable, uncivil, or mean-spirited act is covered.

Title VII also makes it unlawful for an employer to retaliate against an 

employee because of the employee’s opposition to an employment practice, if that 

kind of practice is made unlawful under Title VII. 42 U.S.C. § 2000e-3(a). 

Although a plaintiff “need not prove the underlying claim of discrimination which 

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led to [his] protest,” he must demonstrate that he “engaged in statutorily protected 

expression.” Meeks v. Comput. Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir. 

1994). An employee’s complaint -- formal or informal -- about an employment 

practice constitutes statutorily protected expression if the employee “explicitly or 

implicitly communicate[s] a belief that the practice constitutes unlawful 

employment discrimination.” Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 

1311 (11th Cir. 2016). 

Before filing a civil complaint alleging violations of Title VII, an employee 

must exhaust his administrative remedies by first filing a timely charge of 

discrimination with the EEOC. Stamper v. Duval Cty. Sch. Bd., 863 F.3d 1336, 

1339 (11th Cir. 2017). The purpose of the exhaustion requirement is to allow the 

EEOC “the first opportunity to investigate the alleged discriminatory practices to 

permit it to perform its role in obtaining voluntary compliance and promoting 

conciliation efforts.” Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279 

(11th Cir. 2004). 

Given the importance of the exhaustion requirement, a plaintiff’s civil 

complaint under Title VII “is limited by the scope of the EEOC investigation 

which can reasonably be expected to grow out of the charge of discrimination.” Id. 

at 1280. In determining whether a complaint falls within the scope of the EEOC 

charge, we consider whether the complaint is “like or related to, or grew out of, the 

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allegations contained in [the] EEOC charge.” Id. Judicial claims that merely 

“amplify, clarify, or more clearly focus” the allegations in the EEOC complaint are 

permissible; but a judicial complaint may not assert “allegations of new acts of 

discrimination.” Id. at 1279-80. We have also said that courts should avoid strict 

interpretation of the scope of the EEOC charge and avoid dismissing Title VII 

claims based merely on procedural technicalities. See id. at 1280. 

On appeal, Plaintiff contends that the newly-added assertion in his civil 

complaint -- that Plaintiff was treated differently and less well because he was a 

male and not a female -- is permissible because that assertion merely “amplifies, 

clarifies, and more clearly focuses” the allegations in the EEOC charge. In a 

similar way, Plaintiff contends that an EEOC investigation of his allegations would 

have uncovered evidence of sex discrimination. We disagree. 

Plaintiff’s EEOC charge contained no factual allegations which could be 

construed reasonably as complaining about discrimination, harassment, or 

retaliation based on Plaintiff’s sex. Plaintiff also alleged no facts showing that 

Plaintiff had engaged in statutorily protected expression. Although Plaintiff 

described in detail his complaints about Garcia’s conduct and about the 

investigation to his supervisor, to the Integrity Hotline, and to Y.B., nothing 

evidenced that Plaintiff “explicitly or implicitly communicate[d]” to WMI that 

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Plaintiff believed he was being treated differently because of his sex. See Furcron, 

843 F.3d at 1311. 

Plaintiff’s allegations in his civil complaint about sex discrimination 

constitute a claim in addition to and altering significantly the allegations in 

Plaintiff’s EEOC charge. Given the complete lack of factual allegations about sex 

discrimination in the EEOC charge, we cannot conclude that an EEOC 

investigation would have reasonably uncovered evidence of sex discrimination. 

See Chanda v. Engelhard/ICC, 234 F.3d 1219, 1225 (11th Cir. 2000) (concluding 

that a reasonable investigation based on plaintiff’s EEOC charge -- which 

mentioned only discrimination and retaliation based on disability, not national 

origin -- would not have encompassed retaliation based on complaints about 

national origin discrimination). 

The district court committed no error in concluding that Plaintiff’s Title VII 

claims for retaliation and for hostile work environment based on sex discrimination 

fell outside the scope of Plaintiff’s EEOC charge. Contrary to Plaintiff’s assertion, 

the district court neither engaged in an unreasonably strict interpretation of the 

scope of Plaintiff’s EEOC charge nor based its ruling on a mere procedural 

technicality, such as Plaintiff’s failure to mark the “__ SEX” space on the EEOC 

charge form. Taking everything into account, Plaintiff’s EEOC complaint omitted 

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altogether a claim based on sex discrimination. 

AFFIRMED.

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