FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 30, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-13670

________________________

D. C. Docket No. 04-00020-CV-CDL-4

SANDRA J. DAVIS, 

Plaintiff-Appellee,

VELMA B. DUNCAN, et al,

 

Plaintiffs,

versus 

VALLEY HOSPITALITY SERVICES, LLC, 

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(November 30, 2006)

Before BIRCH, PRYOR and FAY, Circuit Judges.

PER CURIAM:
 This appeal was consolidated with Nos. 05-13107 and 05-13342, appeals filed by 1

plaintiffs Velma B. Duncan, Rosa Brown, and Annette Amick from orders which, respectively,

denied their motion for class certification and granted Valley Hospitality summary judgment on

their employment discrimination claims. In the separate opinion issued in those appeals, we

vacated the consolidation of those appeals with this case. 

2

Defendant Valley Hospitality Services, LLC. (“Valley Hospitality”) appeals

the interlocutory order denying its motion for summary judgment against plaintiff

Sandra J. Davis in her employment discrimination action.1

Davis, an over 40-year-old African-American woman, was employed as

Front Office Manager at the Wyndham hotel in Columbus, Georgia. During her

employment, the hotel had eight department managers, including the Front Office

Manager, who reported to the General Manager. As Front Office Manager, Davis

managed seven to ten employees, and supervised five areas including the bell staff,

communications, front desk, reservations, and security. In October 2002, Valley

Hospitality was chosen to take over management of the hotel and began planning

toward that end. The Wyndham’s acting general manager held a meeting with the

hotel managers in late October 2002, advised them of the anticipated changes in

management organization, and asked each employee to complete a new application

for employment and submit to a drug test. On 31 October 2002, Davis completed

an application for employment for the position of “Guest Service Manager.” Exh.

66 at Exh. 4. 
3

On 1 November 2002, Valley Hospitality took over full control of the

Wyndham. It reorganized the hotel management into three functional areas: sales,

finance, and general hotel operations. The general hotel operations were organized

into two departments which were supervised by executives: the Rooms Department

and the Food and Beverage Department. The Rooms Department Executive was

given supervision of a newly created of Front Desk Supervisor; the staff previously

assigned to the Front Office Manager, including the bell staff, communications,

reservations, and security; and other staff, including housekeeping, laundry, and

maintenance. The Front Desk Supervisor oversaw only the front desk and its staff,

lost supervision of numerous positions previously assigned to the former Front

Office Manager, and earned less than the former Front Office Manager. The newly

created positions, including “front desk clerks,” were advertised in the local

newspaper on 3 November 2002. Exh. 66 at 103-04, Exh. 7. 

On 4 November 2002, Davis was terminated because her position was

eliminated. Immediately after being advised of her termination, she asked whether

there were any other positions that she could do at the hotel. She was told “no.” 

Exh. 66 at 71-72.

The Front Desk Supervisor position was filled on 4 November 2002 with an

African-American male. He was dismissed on 6 November when his drug test
4

came back positive, and was replaced by a 24-year-old white female who

transferred from another Valley Hospitality property. 

On 19 November 2002, Davis filed a charge of discrimination with the

Equal Employment Opportunity Commission (“EEOC”). In her charge, she stated

that she was “discharged from [her] position as Front Desk Manager/Supervisor”

despite assurances that she would remain in her position following a change of

ownership. R1-31, Exh. A. She alleged that she was “discriminated against . . .

based on [her] race (Black).” Id. 

Davis subsequently brought an action against Valley Hospitality under 42

U.S.C. § 1981 and 29 U.S.C. §§ 623, alleging that she was discharged on the basis

of her race and age, respectively. She requested job reinstatement and monetary

damages. She argued that her position was not truly eliminated but was merely

renamed and that the position was filled with a younger white woman. Valley

Hospitality moved for summary judgment, and explained that all of the hotel’s

employees were required to complete a new employment application during the

reorganization. Although Davis stated that she wanted another position at the

hotel, she also answered “[n]o” when asked if she wanted to be transferred to a

different position within the hotel. Exh. 66 at 107-08. Valley Hospitality

responded that Davis failed to apply for any advertised position with the hotel after
5

her position was terminated. 

The district court denied Valley Hospitality’s motion for summary judgment

as to Davis’s individual disparate treatment claim. It found that Davis had

established a prima facie case of both race and age discrimination and that,

although Valley Hospitality had articulated a legitimate nondiscriminatory reason

for eliminating her position, it had not provided a legitimate nondiscriminatory

reason for not rehiring her. The court reasoned that Davis’s 31 October application

for Guest Services Manager constituted an application for the Front Desk

Supervisor position because she had no way of applying for the newly created

Front Desk Supervisor position when she completed her application. The district

court denied Valley Hospitality’s motion for reconsideration, and certified the

denial of summary judgment as to Davis’s claims for interlocutory appeal pursuant

to 28 U.S.C. § 1292(b).

On appeal, Valley Hospitality argues that the district court improperly found

that it had discriminated against Davis by failing to hire her for the Front Desk

Supervisor position because she never asserted a failure to hire claim in the case. It

maintains that her case is based on solely on her termination. It notes that she

conceded this point in her response to Valley Hospitality’s motion for

reconsideration when she stated:
6

The employment action that discriminatorily affected [Davis]

was the discharge of her from employment with [Valley Hospitality] .

. . .

. . . .

This is not a failure to hire case, but as [Davis] correctly alleged

in the Amend[ed] Complaint that [she] was discharged [based on her

race and age]. 

R4-89 at 2.

In employment discrimination actions, the plaintiff’s judicial complaint is

limited to “the scope of the EEOC investigation which can reasonably be expected

to grow out of the charge of discrimination.” Mulhall v. Advance Sec., Inc., 19

F.3d 586, 589 n.8 (11th Cir. 1994). The complaint must provide “‘a short and

plain statement of the claim’ that will give the defendant fair notice of . . . the . . .

claim . . . and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47,

78 S. Ct. 99, 103 (1957) (citing Fed. R. Civ. P. 8(a)). Allegations which fail to

provide such notice are appropriately subject to summary judgment. Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 514, 122 S. Ct. 992, 998 (2002).

To assert a failure to hire claim, the plaintiff must show, inter alia, that she

applied for a job for which she was qualified and which was available at the time

of her termination. Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1344-45 (11th

Cir. 2003) (per curiam). A plaintiff who has knowledge of an advertised position,

but fails to formally apply for it, is unable to show that she applied for the position. 
 Although we have noted that the lack of an application for a specific job would not 2

defeat a failure to hire claim where the plaintiff applied for “work” but was initially told that no

full-time positions were available, we explained that the plaintiff learned of the possibility of a

position “by word of mouth” and that “[t]he defendant did not advertise its job openings.”

Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1129, 1132 (11th Cir. 1984). We

commented that the plaintiff “was not required to do more than indicate as best he could that he

would take any available job” and “could not be expected to ask for a [specific] position when he

did not know one was available.” Id. at 1132. 

7

Id. at 1345-46. “A general interest in being rehired without submitting an

application is not enough to establish a prima facie case of age discrimination

when the defendant-employer has publicized an open position.” Id. at 1345. 2

A claim of wrongful discharge is not the equivalent of a claim of failure to

hire. Davis’s EEOC wrongful discharge claim and the resulting investigation

would not trigger an inquiry into Valley Hospitality’s hiring policies. She did not

apply for an advertised position after Valley Hospitality had reorganized the

management positions and she was terminated. Further, Davis expressly stated

that she was not raising a failure to hire claim. Accordingly, the district court erred

by finding that a rehiring claim was raised and by denying Valley Hospitality’s

motion for summary judgment regarding her discharge.

The district court’s denial of Valley Hospitality’s motion for summary

judgment on Davis’s claims is, therefore, REVERSED and the matter is

REMANDED for further proceedings consistent with this opinion.