[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11106

Non-Argument Calendar

____________________

COLLIS SUMBAK, 

Plaintiff-Appellant,

versus

EATON CORPORATION, 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:19-cv-01286-MLB

____________________

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

PER CURIAM:

Collis Sumbak, a black male of Sudanese origin, appeals the 

district court’s order granting summary judgment to his employer, 

Eaton Corporation, on his claims for race and national origin-based 

discrimination based on a failure to promote, retaliation, and a 

hostile work environment in violation of Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. § 2000e-2(a) and 3; and 42 U.S.C.

§ 1981. After review, we affirm.

I. Background1 

Eaton is a power management company that provides 

services across varied industries. Plaintiff, a current Eaton 

1 We rely on the factual findings in the magistrate judge’s report and 

recommendation (R&R) adopted by the district court. In his counseled brief 

on appeal, Sumbak challenges those factual findings and the district court’s 

application of Local Rule 56.1(B) to deem undisputed or improperly 

challenged facts asserted by the movant as admitted. Local Rule 56.1(B) 

provides that:

A movant for summary judgment shall include with the 

motion and brief a separate, concise, numbered statement of 

the material facts to which the movant contends there is no 

genuine issue to be tried. Each material fact must be numbered 

separately and supported by a citation to evidence proving 

such fact. The Court will not consider any fact: (a) not 

supported by a citation to evidence (including page or 

paragraph number); (b) supported by a citation to a pleading 

rather than to evidence; (c) stated as an issue or legal 

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employee, worked as a Production Technician at Eaton’s San 

Francisco branch from 2000 to January 2012, when he transferred 

to its facility in Smyrna, Georgia. Plaintiff currently reports to 

Facilities Manager John Biggins and Production Manager Barrett 

Hachey. 

Sumbak testified that in 2015, he told Biggins that his fellow 

employees would not help him lift heavy equipment. At the time, 

Sumbak complained that “[i]t looks like they—they don’t want to 

work with me because I’m not from this place or what.” He further 

explained to his boss that he was part of a tribe and had been

tortured because of his tribal identity back in Sudan. Sumbak 

explained that when his fellow employees would not help him, “it 

make[s] me feel back—I’m back home again . . . It doesn’t sit well 

conclusion; or (d) set out only in the brief and not in the 

movant’s statement of undisputed facts.

N.D. Ga. Civ. R. 56.1(B). However, Sumbak waived these arguments by 

failing to object to the magistrate judge’s R&R despite a prior warning of the 

consequences of not objecting. 11th Cir. R. 3-1 (providing that a party who 

fails to object to the R&R “waives the right to challenge on appeal the district 

court’s order based on unobjected-to factual and legal conclusions if the party 

was informed of the time period for objecting and the consequences on appeal 

for failing to object”); Resol. Tr. Corp. v. Hallmark Builders, Inc., 996 F.2d 

1144, 1149 (11th Cir. 1993). In the absence of proper objections, we may 

review the factual and legal findings “on appeal for plain error if necessary in 

the interest of justice.” 11th Cir. R. 3- 1. Although Sumbak argues generally 

that the district court “failed to consider some of [his] evidence,” he fails to 

identify any specific evidence or instance of plain error. Accordingly, we find 

no plain error in any of the district court’s factual findings.

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with me when they don’t want to work with me.” After Biggins 

declined to take any corrective measures, Sumbak spoke to Mr. 

Hoover—Biggins’s boss—who sent Matt Stephens—a human 

resources employee—to conduct an investigation. Stephens 

identified that an employee named Casey was causing the issue and 

relayed that to Sumbak. After Sumbak met with Casey, Biggins, 

and Stephens, he started getting more help in his work. No Eaton 

employees ever made racially derogatory or racially offensive 

comments toward Sumbak. 

Eaton’s employees are paid according to salary grades, and 

each position has a range of salary grades associated with that 

position. The salary grades associated with the Production 

Technician position are SG34, SG36, and SG38. Plaintiff is 

currently paid at the SG38 rate—the highest in the range for his 

position. Once an employee at Eaton reaches the highest salary 

grade associated with her or his current position, the employee 

must move to a position with a higher salary grade to advance. To 

obtain a new position, the employee must go through Eaton’s

application process, which includes the interview and selection

process. 

Eaton only creates positions at the SG40 rate when there is 

a specific business need. Since January 2016, the Smyrna facility

has one SG40 position—Lead Quality Technician (tester). Eaton 

created the tester position, the first SG40 position at the Smyrna 

facility in about ten years, in response to a spike in quality issues. 

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In early 2016, Eaton notified employees at the Smyrna office 

about the newly created tester position but did not mention its 

higher salary grade. Sumbak, an electrician, did not apply for this 

position because he did not feel like he could do testing. Even if 

Sumbak had known that the position had the salary grade of SG40, 

he would not have applied for it. At some time, Sumbak was 

notified that the open position for tester was posted on Eaton’s 

internal website where any interested employee could view the 

position, along with the salary grade, and apply. 

Eaton hired Vincent Kee, a black male and Sumbak’s 

coworker, for the tester position. Sometime in 2016, Sumbak

informed Biggins that he desired to transfer out of the Smyrna 

facility because he was “not growing” there and wanted an SG40

position. According to Sumbak, Biggins responded that he did not 

need to transfer for an SG40 role because Biggins would “take care 

of” it. Biggins also said that he would talk to Hachey about “the 

next date” for a promotion and encouraged Sumbak to take a class 

at Eaton University, an internal training program, in order to get 

the promotion. Sumbak expected to receive a SG40 promotion at 

the end of 2017. He did not.

On February 26, 2018, Sumbak received a “P” rating on his 

annual review, signifying “satisfactory” performance. According 

to Sumbak, Hachey told him that this rating, along with the fact 

that the Smyrna facility did not need another SG40 position, were 

the reasons that he could not be promoted. 

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In March 2018, Sumbak was provided a cross-training 

opportunity in another department. Sumbak remained an SG38 

while doing this cross-training but was no longer allowed to work

overtime. Meanwhile, a white employee who had only been with 

the company several months was temporarily transitioned into

Sumbak’s old position, which included leadership responsibilities. 

Sumbak’s cross-training period lasted three to four months, ending 

when Sumbak’s replacement quit. 

According to Sumbak, at some point, Hachey told him that, 

given his lack of a college degree, he should be happy with the 

amount of money he makes. Sumbak later acknowledged that 

Hachey did not mention race or national origin when he made this 

comment. 

Sometime in 2017, Sumbak wrote a letter to Eaton’s CEO 

about the perceived deception related to his promotion and the 

unfair treatment he received. Sumbak did not mention race in the 

letter, but stated that he was from Africa, complained about the 

lack of promotion, Hachey’s comment about his education, and his 

belief that he was not being treated fairly. But the CEO never 

received the letter. 

Sumbak filed a charge with the Equal Employment 

Opportunity Commission (EEOC) on March 28, 2018. The EEOC 

charge asserted a claim for discrimination based on race and 

national origin based on the following: (1) Sumbak received a “Prating on [his] annual review which resulted in [him] not being 

promoted to a Grade 40,” (2) Sumbak was denied a transfer to 

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another location, (3) Sumbak was removed from his job and 

replaced by a less qualified white male, and (4) Sumbak was no 

longer able to work overtime. The EEOC issued a dismissal and 

notice of right to sue letter on December 28, 2018. 

II. Procedural History 

Sumbak filed his counseled complaint in March 2019, 

alleging claims for discrimination based on race and national origin, 

retaliation, and hostile work environment in violation of Title VII 

and race-based discrimination in violation of § 1981. Eaton moved

for summary judgment, attaching a statement of undisputed 

material facts to its filing. Sumbak opposed the motion and filed a 

response to Eaton’s statement of undisputed material facts. The 

magistrate judge issued a R&R, accepting the facts submitted by 

Eaton that were supported by citations to record evidence and that 

were not specifically disputed and refuted properly by Sumbak in 

his response. The magistrate judge concluded that Sumbak failed 

to provide sufficient direct, circumstantial, or statistical evidence to 

plead a prima facie case of discrimination, retaliation, or a hostile 

work environment. Turning to Sumbak’s failure to promote

claim, the magistrate judge concluded that he could not establish a 

prima facie case because he never applied for the tester position. 

And, assuming there were other SG40 positions, Sumbak failed to 

show he applied, was rejected, and that an equally or less qualified 

person outside of his protected class got the position. With regard 

to retaliation, the magistrate judge found that the adverse actions 

of which Sumbak complained of—failure to promote, refusal of 

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overtime, and the P rating on his performance evaluation—all 

occurred before the protected conduct upon which his claim 

relied—the filing of the EEOC complaint—and therefore those 

actions could not constitute retaliation for the protected conduct. 

Further, even though the refusal of overtime continued after the 

filing of the EEOC complaint, the magistrate judge held that 

because it was an adverse action initially taken prior to the 

protected conduct, temporal proximity alone could not establish 

causation. As for Sumbak’s hostile work environment claim, the 

magistrate judge concluded that it fell outside the scope of the 

EEOC charge. But, even assuming such a claim was within the 

scope, the facts nevertheless did not establish “an environment that 

rose to a sufficiently severe level.” 

The court notified the parties and their counsel that they had 

14 days in which to object to the R&R, and that “[i]f no objections 

[were] filed, the [R&R] may be adopted as the opinion and order of 

the District Court, and on appeal, the Court of Appeals will deem 

waived any challenge to factual and legal findings to which there 

was no objection, subject to interest-of-justice plain error review.” 

Yet, Sumbak did not object. After reviewing the record for plain 

error and finding none, the district court adopted the R&R and 

granted summary judgment for Eaton. Sumbak appealed.

III. Standard of Review 

We typically review a district court’s order granting 

summary judgment de novo, “viewing all evidence, and drawing 

all reasonable inferences, in favor of the non-moving party.” 

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Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 

2005). However, when, as here, a party fails to object to a 

magistrate judge’s dispositive R&R, he “waives the right to 

challenge on appeal the district court’s order based on unobjectedto factual and legal conclusions,” provided that he was informed of 

the window for objecting and the consequences for failing to do so. 

11th Cir. R. 3- 1. 

When a party fails to make a proper objection to the R&R, 

we may review the factual and legal conclusions for plain error 

when “necessary in the interests of justice.” Id. “Plain error review 

is an extremely stringent form of review.” Farley v. Nationwide 

Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir. 1999). To prevail on 

plain error, an appellant must identify (1) an error, (2) that was 

plain—meaning clear or obvious—and demonstrate that (3) the 

error affected the party’s substantial rights; and (4) “not correcting 

the error would seriously affect the fairness of the judicial 

proceeding.” Id. Summary judgment is appropriate if “the movant 

shows that 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). When reviewing the summary judgment record, “we 

must view the submitted evidence in the light most favorable to 

the non-moving party.” Sun Life Assurance Co. of Can. v. Imperial 

Premium Fin., LLC, 904 F.3d 1197, 1207 (11th Cir. 2018). 

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IV. Discussion 

A. Failure to Promote Claim 

In his brief, Sumbak challenges the district court’s factual 

finding that he did not apply for the SG40 position, insisting that he 

never made such an admission, and that Eaton knew Sumbak 

wanted the position. Additionally, he argues in passing that there 

was unspecified evidence from which a jury could infer that 

Eaton’s refusal to promote Sumbak was caused by racially-based 

discriminatory intent. 

Title VII makes it unlawful for a private employer 

“to . . . discriminate against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, 

because of such individual’s race . . . or national origin.” 42 U.S.C. 

§ 2000e-2(a). Similarly, § 1981 prohibits intentional race 

discrimination in the making and enforcement of public and 

private contracts, including private employment contracts. 42 

U.S.C. § 1981(a); Ferrill v. Parker Grp., 168 F.3d 468, 472 (11th Cir. 

1999). For employment contracts, claims of intentional 

discrimination under § 1981 are analyzed under the same 

framework as claims of discrimination under Title VII. Ferrill, 168 

F.3d at 472.

Pursuant to Title VII, a plaintiff may prove a discrimination 

claim through circumstantial evidence, generally analyzed using

the three-step, burden-shifting framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); E.E.O.C. 

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v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002). 

Under the McDonnell Douglas framework, a plaintiff “carries the 

initial burden of establishing a prima facie case of discrimination.” 

Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1162 

(11th Cir. 2006).2 

For failure to promote claims, a plaintiff may establish a 

prima facie case of discrimination by showing that: (1) he was a 

member of a protected class; (2) he was qualified for and applied 

for the promotion; (3) he was rejected despite his qualifications; 

and (4) the individual who received the promotion was not a 

member of his protected class and had lesser or equal 

qualifications. Carter v. Three Springs Residential Treatment, 132 

F.3d 635, 642 (11th Cir. 1998). 

Sumbak admitted in his deposition that he did not apply for 

the tester position, stating, “so for me, I'm an electrician. So I'm 

not going to apply as a tester,” and he has not pointed to any 

portion of the record contradicting these comments. Thus, the 

district court did not plainly err by holding that Sumbak could not 

make a prima facie case for discrimination for failure to promote. 

Id. 

2 We note that the district court concluded that Sumbak identified no direct 

or statistical evidence to support his claims. Because he does not challenge 

that finding on appeal, he abandoned any challenge on this ground. See 

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 2014) 

(explaining that a party can abandon an issue on appeal by failing to “plainly 

and prominently” address it in his opening brief). 

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The district court also analyzed whether some other 

unspecified SG40 position was promised to Sumbak and then 

denied to him because of his race. The district court did not plainly 

err by holding that Sumbak did not establish a prima facie case

because he failed to produce evidence showing that he applied for 

and was rejected from an open SG40 position, or that another 

equally or less qualified employee who was not a member of the 

protected class was promoted to such a position. 

B. Retaliation Claim 

Sumbak further maintains that the district court erred by 

disregarding much of his unspecified evidence on his retaliation 

claim and by failing to properly apply Drago v. Jenne, 453 F.3d 

1301, 1308 (11th Cir. 2006). In Drago, we held that “in a retaliation 

case, when an employer contemplates an adverse employment 

action before an employee engages in protected activity, temporal 

proximity between the protected activity and the subsequent 

adverse employment action does not suffice to show causation.” 

Drago, 453 F.3d at 1308. Sumbak argues that unlike the plaintiff in 

Drago, he has “multiple issues” that were “days and weeks in 

proximity [to the protected conduct] respectively, not ‘three and 

one-half months.’” But he fails to specify to which issues he is 

referring, what the protected conduct was, what adverse actions 

are at issue, or how the district court’s determination was plainly 

erroneous. Hence, we conclude that he has abandoned any 

challenge to this issue. Sapuppo, 739 F.3d at 681; Singh v. U.S. Att’y 

Gen., 561 F.3d 1275, 1278 (11th Cir.2009) (explaining that “simply 

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stating that an issue exists, without further argument or discussion

[or specific citations to the record], constitutes abandonment of 

that issue and precludes our considering the issue on appeal”

(quotation marks omitted)). 

Even assuming, arguendo, that Sumbak did not abandon his 

retaliation claim, he still failed to show that the district court’s 

ruling was plainly erroneous. To establish a prima facie case of 

retaliation, a plaintiff must show that: (1) he engaged in a 

statutorily protected activity; (2) he suffered a materially adverse 

employment action; and (3) that the adverse action was causally 

related to the protected activity. See Gogel v. Kia Motors Mfg. of 

Georgia, Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (en banc). Here, 

the only instance of protected conduct that Sumbak did not 

abandon or concede—filing his EEOC charge—took place after he 

received a “P” rating and after he was denied overtime. Under our 

precedent, “the plaintiff must generally show that the decision 

maker was aware of the protected conduct at the time of the 

adverse employment action,” which Sumbak failed to do here. 

Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th 

Cir. 2000). Therefore, the district court did not plainly err by 

holding that Sumbak failed to show sufficient evidence of causation

when the adverse employment actions occurred before Sumbak’s 

protected activity and he provided no other evidence of causation 

beyond temporal proximity. See id.; Drago, 453 F.3d at 1308

(holding that “in a retaliation case, when an employer 

contemplates an adverse employment action before an employee 

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engages in protected activity, temporal proximity between the 

protected activity and the subsequent adverse employment action 

does not suffice to show causation.”). 

C. Hostile Work Environment 

Finally, Sumbak contends that the district court erred in 

concluding that his hostile work environment claim was barred 

because it did not relate to his EEOC charge. He maintains that 

given his allegations about Eaton’s failure to promote him, his 

performance review, and refusal of overtime, “[a]ny rational 

person subjected to such systemic behavior at work would feel that 

[the] environment was hostile.” 

Before filing a Title VII action, a plaintiff must file a charge 

with the EEOC. Gregory v. Ga. Dep’t of Hum. Res., 355 F.3d 1277, 

1279 (11th Cir. 2004). We have noted that “judicial claims are 

allowed if they amplify, clarify, or more clearly focus the 

allegations in the EEOC complaint,” but “allegations of new acts of 

discrimination are inappropriate.” Id. at 1279–80 (quotation 

omitted). We are generally reluctant to allow technicalities to bar 

Title VII claims and have cautioned that “the scope of an EEOC 

complaint should not be strictly interpreted.” Id. at 1280 

(quotation omitted). Thus, the question is whether the allegations 

in the complaint are “like or related to, or grew out of, the 

allegations contained in [the] EEOC charge.” Id.

In his EEOC charge, Sumbak alleged as follows: 

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I began working for the employer on December 1, 

2000, as an Assembly Tech. In 2012, I transferred to 

the [Smyrna] location. My most recent position was 

Bus Layered Lead. On February 26, 2018, I received 

a P-rating on my annual review which resulted in me 

not being promoted to a Grade 40. Also, in 2016, I 

requested and was denied a transfer to another 

location in Austin, Texas. On March 26, 2018, I was 

removed from my job and replaced by a recently 

hired less qualified White male. I am presently 

performing odd jobs in the plant and I am no longer 

able to work overtime. 

I believe that I have been discriminated against 

because of my race (African-American), and national 

origin African (Sudanese), in violation of Title VII of 

the Civil Rights Act of 1964, as amended. 

Nothing in Sumbak’s EEOC charge mentioned anything about his 

coworkers refusing to help him with tasks or treating him unfairly, 

which was the basis of Sumbak’s hostile work environment claim. 

Accordingly, there was no plain error in the district court’s 

conclusion that the hostile work environment claim was not 

presented to the EEOC, and that the claim could not reasonably be 

expected to grow out of the EEOC charge. Gregory, 355 F.3d at 

1280.

AFFIRMED.

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