FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 11, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-10680

Non-Argument Calendar

________________________

D. C. Docket No. 01-00019-CV-WLS-6

PAULA C. HILL, 

BOBBY BATTLE, 

RALPH CLARK, 

CHARLIE HOMER, 

JAMES KNOLTON, SR., 

MICHAEL MIXON, 

Plaintiffs-Appellants, 

versus 

OIL DRI CORPORATION OF GEORGIA, 

Defendant-Appellee. 

________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(September 11, 2006)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:
Plaintiffs filed their first complaint in January 2000, but dismissed it by consent motion 1

in September 2000.

In addition to § 1981 claims, plaintiffs’ complaint also asserted Title VII claims of racial 2

discrimination and retaliation and a state law claim of negligence. The district court’s dismissal

2

In this employment discrimination action, plaintiffs appeal the district

court’s orders (1) granting summary judgment to Oil Dri Corporation of Georgia

(“Oil Dri”); (2) denying their motion to alter or amend the judgment; and (3)

granting Oil Dri’s motion to strike portions of plaintiffs’ affidavits and exhibits. 

After review, we affirm.

I. BACKGROUND

In 1997, plaintiffs Bobby Battle, Ralph Clark, Charlie Homer, James

Knowlton and Michael Mixon, who are African American, filed charges of race

discrimination against their employer, Oil Dri, with the Equal Employment

Opportunity Commission (“EEOC”). Plaintiffs claimed that Oil Dri had paid them

less than white employees and subjected them to different terms and conditions of

employment based on their race. The EEOC investigated. In March and April

1998, the EEOC issued nearly identical determinations finding that it was

reasonable to believe Oil Dri had discriminated against plaintiffs based on their

race in violation of Title VII.

In March 2001, plaintiffs filed this action against Oil Dri, asserting, inter 1

alia, a claim of racial discrimination in violation of 42 U.S.C. § 1981. Plaintiffs’ 2
of the Title VII and state law claims is not challenged on appeal. In addition, the district court

dismissed plaintiff Paula Hill’s Title VII sex discrimination and Equal Pay Act claims. Hill is

not a party to this appeal. Thus, we focus only on plaintiffs’ § 1981 claims.

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complaint alleged in general terms that similarly situated white employees were

paid at a higher rate and were afforded better working conditions and privileges.

A. Oil Dri’s Motion for Summary Judgment

Oil Dri filed a motion for partial summary judgment, arguing that plaintiffs’

§ 1981 claims arising prior to March 23, 1999 were barred by Georgia’s two-year

statute of limitations for personal injury actions. In opposition to Oil Dri’s motion,

plaintiffs submitted the same documents and affidavits submitted to the EEOC in

1997. Plaintiffs’ response brief agreed that the two-year statute of limitations

generally applied to § 1981 actions for money damages, but argued that the acts of

discrimination they suffered were “tantamount to” a hostile work environment and

constituted continuing violations. They also argued that their § 1981 claims for

injunctive and declaratory relief were governed by Georgia’s twenty-year statute of

limitations for actions seeking to enforce statutory rights. The district court

granted Oil Dri summary judgment on plaintiffs’ § 1981 claims, finding that they

involved discrete acts and thus plaintiffs’ claims were barred by Georgia’s twoyear limitations period.

B. Plaintiffs’ Motion to Alter or Amend
4

On May 7, 2004, plaintiffs filed a motion to alter or amend the judgment,

arguing correctly that Oil Dri had not moved for summary judgment with regard to

any § 1981 claims arising after March 23, 1999. In response, Oil Dri called to the

district court’s attention the newly decided opinion in Jones v. R. R. Donnelley &

Sons Co., 541 U.S. 369, 124 S. Ct. 1836 (2004), in which the Supreme Court held

that the four-year statute of limitations provided in 28 U.S.C. § 1658 applied to

certain § 1981 claims. Oil Dri argued, however, that the district court’s judgment

should stand because plaintiffs had failed to produce evidence of any adverse

employment actions occurring after March 23, 1997, and therefore plaintiffs’ §

1981 action filed on March 23, 2001 was barred even under the new four-year

limitations period of Jones. In their reply brief, plaintiffs argued for the first time

that the four-year statute of limitations in 28 U.S.C. § 1658 should apply.

The district court granted in part plaintiffs’ motion to alter or amend the

judgment, recognizing that it should not have entered summary judgment sua

sponte on plaintiffs’ claims arising after March 23, 1999 without first giving proper

notice. However, the district court denied plaintiffs’ motion to alter the judgment

to the extent plaintiffs sought to rely on the four-year statute of limitations in §

1658. The district court concluded that plaintiffs waived their right to assert the

four-year limitations period by concurring in their initial summary judgment brief
5

that the two-year limitations period applied. The district court altered the judgment

to reflect that the post-March 23, 1999 claims, if any, remained and directed Oil

Dri to file any additional summary judgment motion within ten days.

C. Oil Dri’s Renewed Motion for Summary Judgment

Oil Dri moved for summary judgment as to plaintiffs’ reinstated post-March

23, 1999 claims. Plaintiffs responded, attaching documents originally filed in their

1997 EEOC proceedings as well as the EEOC’s 1998 determinations. Among the

EEOC documents were affidavits filed by each plaintiff with the EEOC and two

unsworn statements of other Oil Dri employees. Oil Dri moved to strike (1) the

unsworn statements; (2) the EEOC’s determinations; and (3) portions of each

plaintiff’s EEOC affidavit, arguing that they contained conclusory allegations,

unsupported opinions and inadmissible hearsay.

The district court granted Oil Dri’s motions to strike the unsworn statements

and the EEOC’s 1998 determinations and granted in part Oil Dri’s motions to

strike portions of each plaintiff’s EEOC affidavit. The district court also granted

Oil Dri summary judgment on the remaining § 1981 claims, concluding that

plaintiffs had failed to establish a prima facie case of racial discrimination. 

Specifically, the district court concluded that plaintiffs had failed to present

admissible evidence that they suffered adverse employment actions or that
“The decision to alter or amend a judgment is committed to the sound discretion of the 3

district court,” and we “will not overturn a denial of a Rule 59 motion absent abuse of

discretion.” O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992). 

6

similarly situated white employees were treated more favorably. The district court

then entered final judgment in favor of Oil Dri. This appeal followed.

II. DISCUSSION

A. Motion to Alter or Amend the Judgment

On appeal, plaintiffs argue that the district court abused its discretion in

denying their motion to alter or amend the judgment as it related to the four-year

statute of limitations. We disagree.

Federal Rule of Civil Procedure 59(e) permits a district court to alter or

amend a judgment after it has been entered. Fed. R. Civ. P. 59(e). Rule 59 3

motions “should not be used to raise arguments which could, and should, have

been made before the judgment was issued.” O’Neal v. Kennamer, 958 F.2d 1044,

1047 (11th Cir. 1992). The denial of a Rule 59 motion raising new arguments is

“especially soundly exercised when the party has failed to articulate any reason for

the failure to raise [an] issue at an earlier stage in the litigation.” Id. (quoting

Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir. 1990)).

Prior to 1990, federal courts applied the most analogous state statute of

limitations to § 1981 claims. See Goodman v. Lukens Steel Co., 482 U.S. 656,
7

660-61 (1987). However, in 1990 Congress enacted 28 U.S.C. § 1658(a), which

created a “catch-all” four-year limitations period for federal claims created after

that date. See 28 U.S.C. § 1658. One year later, in the Civil Rights Act of 1991,

Congress amended § 1981 to include claims of discrimination in terms and

conditions of employment. See 42 U.S.C. § 1981.

When Oil Dri’s summary judgment motion was filed in September 2003, the

circuits were split on whether § 1658's limitation period applied to § 1981 claims. 

Three circuits (the Third, Seventh and Eighth) had held that it did not, but two

circuits (the Sixth and Tenth) had reached a contrary conclusion. Compare Jones

v. R. R. Donnelley & Sons Co., 305 F.3d 717 (7th Cir. 2002); Madison v. IBP,

Inc., 257 F.3d 780 (8th Cir. 2001) and Zubi v. AT&T Corp., 219 F.3d 220 (3d Cir.

2000) with Anthony v. BTR Auto. Sealing Sys., Inc., 339 F.3d 506 (6th Cir. 2003)

and Harris v. Allstate Ins. Co., 300 F.3d 1183 (10th Cir. 2002).

Additionally, this circuit had not yet addressed the applicability of § 1658. 

See, e.g., Taylor v. Ala. Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1034

& n.2 (11th Cir. 2001) (acknowledging the issue of § 1658's applicability to § 1981

claims, but declining to address it). Furthermore, by the time summary judgment

briefing began in the fall of 2003, the Supreme Court had already granted certiorari

on May 19, 2003 to review the Seventh Circuit’s decision in Jones. See Jones v. R.
On appeal, plaintiffs do not challenge the district court’s ruling striking unsworn

4

statements of other Oil Dri employees submitted to the EEOC.

8

R. Donnelly & Sons Co., 538 U.S. 1030, 123 S. Ct. 2074 (2003).

Under these circumstances, plaintiffs could have and should have raised the

applicability of § 1658's four-year limitations period in response to Oil Dri’s

summary judgment motion. Indeed plaintiffs’ Rule 59 opening brief did not raise

the § 1658 issue even though the Supreme Court had ruled three days earlier in

Jones that § 1658's four-year limitations period applied to some § 1981 claims,

including newly cognizable § 1981 claims created by the Civil Rights Act of 1991. 

541 U.S. at 377-83, 124 S. Ct. at 1842-45. Accordingly, the district court did not

abuse its discretion in refusing to consider the § 1658 four-year limitations issue

raised for the first time in plaintiffs’ reply brief in support of the Rule 59 motion.

B. Evidentiary Rulings

Plaintiffs also argue that the district court erred in striking portions of their

EEOC affidavits and the EEOC’s determinations. We review for abuse of 4

discretion a district court’s evidentiary rulings. Hall v. United Ins. Co. of Am., 367

F.3d 1255, 1259 (11th Cir. 2004). Plaintiffs have not shown that the district court

abused its discretion in excluding this evidence.

EEOC determinations generally are admissible in bench trials under Federal
9

Rule of Evidence 803(8)(C)’s public records exception to the hearsay rule. Walker

v. NationsBank of Fla. N.A., 53 F.3d 1548, 1554 (11th Cir. 1995). However,

“public records, otherwise admissible under Rule 803(8)(C), may nonetheless be

excluded in whole or in part if the trial court finds that they are either irrelevant or

more prejudicial than probative.” Hines v. Brandon Steel Decks, Inc., 886 F.2d

299, 302 (11th Cir. 1989). Here the district court excluded the 1998 EEOC

determinations as irrelevant because they related only to incidents occurring well

before March 23, 1999 and thus did not pertain to the claims at issue on summary

judgment. Given that plaintiffs’ pre-March 23, 1999 claims are time-barred, we

cannot say that the district court abused its discretion in striking the 1998 EEOC

determinations.

The district court also struck portions of each plaintiff’s EEOC affidavit for

failure to comply with Federal Rule of Civil Procedure 56(e). Rule 56(e) requires

affidavits, supporting or opposing summary judgment, to be made on personal

knowledge and to set forth facts that would be admissible evidence. Fed. R. Civ.

P. 56(e). In a thorough order, the district court separately considered each

challenged averment or attachment and gave specific reasons for its ruling with

regard to its admissibility.

On appeal, plaintiffs do not take issue with any of the district court’s rulings
In contrast, plaintiffs devote several pages of their appeal brief to rejecting Oil Dri’s 5

argument made in the district court that plaintiffs’ EEOC affidavits should be struck because

they were not produced during discovery. However, this argument was not the basis for the

district court’s decision to strike portions of plaintiffs’ affidavits. 

Plaintiffs also challenge the district court’s decision to strike several letters that had been

submitted to the EEOC in support of plaintiffs’ 1997 charges of discrimination. Plaintiffs argue

that these letters were offered as evidence of pretext and are therefore relevant. However, the

district court excluded these letters, not on relevance grounds, but on grounds that they “were

replete with hearsay and conclusory, factually unsupported statements.”

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with regard to particular averments. Indeed, plaintiffs merely state in one sentence,

unsupported by citation to legal authority, that the district court should have

weighed the affidavits in light of the summary judgment standard and determined

whether they raised a genuine issue of material fact. Such a perfunctory statement 5

is insufficient to challenge the district court’s carefully considered individual

evidentiary rulings. See Doe v. Moore, 410 F.3d 1337, 1349 n.10 (11th Cir. 2005)

(explaining that an appellate brief must not only state contentions, but must also

give reasons for them, with citations to authority and to the record, to preserve an

issue on appeal); Flanigan’s Enters., Inc. of Ga. v. Fulton County, 242 F.3d 976,

987 n.16 (11th Cir. 2000) (explaining that the failure to elaborate upon an issue

raised in an appellate brief or to provide citation of authority in support results in a

waiver of that argument); Fed. R. App. P. 28(a)(9).

C. Section 1981 Claims Arising After March 23, 1999

Finally, plaintiffs challenge the district court’s grant of summary judgment

in favor of Oil Dri on their claims that were not barred by the two-year statute of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). 6

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limitations. Using the now-familiar McDonnell Douglas framework to evaluate

circumstantial evidence cases, the district court concluded that plaintiffs failed to 6

make out a prima facie case of discrimination with regard to these claims. To

establish a prima facie case of disparate treatment under § 1981, plaintiffs were

required to show that: (1) they were members of a protected class; (2) they were

subjected to adverse employment actions; (3) similarly situated employees who

were not members of their protected class were treated more favorably; and (4)

plaintiffs were qualified for the job or job benefits they were denied. Gillis v. Ga.

Dep’t of Corr., 400 F.3d 883, 887 (11th Cir. 2005). 

Here, the district court concluded that plaintiffs failed to present admissible

evidence of any adverse employment actions or of similarly situated white

employees who were treated more favorably. We agree. Plaintiffs’ only evidence

of adverse employment actions or white comparators was the vague and

conclusory statements contained in the portions of their EEOC affidavits struck by

the district court. As we have already discussed, the district court did not abuse its

discretion in striking this material from the record. 

Furthermore, even if these affidavits had been considered, Oil Dri still would

have been entitled to summary judgment. A plaintiff cannot defeat summary
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judgment by relying upon conclusory allegations of discrimination. See Holifield

v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997). To survive summary

judgment, opposing affidavits must set forth specific facts showing that there is an

issue for trial. See Fed. R. Civ. P. 56(e); Leigh v. Warner Bros., 212 F.3d 1210,

1217 (11th Cir. 2000). Plaintiffs’ EEOC affidavits were too conclusory and

lacking in specific facts to create genuine issues of material fact as to whether they

suffered adverse employment actions or whether white employees were similarly

situated. See Leigh, 212 F.3d at 1217 (stating that unsupported conclusory

statements have no probative value in opposing summary judgment). Because

plaintiffs failed to make out a prima facie case, the district court properly entered

summary judgment on their claims arising after March 23, 1999.

III. CONCLUSION

For these reasons, we affirm the district court’s grant of summary judgment

in favor of Oil Dri on plaintiffs’ § 1981 claims, the district court’s evidentiary

rulings and the district court’s denial of plaintiffs’ motion to alter or amend the

judgment.

AFFIRMED.