FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 18, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-11072

Non-Argument Calendar

________________________

D. C. Docket No. 05-00332-CV-FTM-99-DNF

RICHARD BOTELHO, JR.,

Plaintiff-Appellant,

versus

MIKE JOHANNS, Secretary,

U.S. Department of Agriculture,

Animal and Plant Health Inspection Service,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(November 18, 2009)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
Richard Botelho Jr. appeals the summary judgment in favor of the Secretary

of the United States Department of Agriculture and against Botelho’s complaint of

discrimination in violation of his race and gender and of retaliation under Title VII

of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e-2(a)(1), -3(a). The district

court ruled that Botelho failed to exhaust his available administrative remedies for

three charges and he failed to prove a prima facie case of discrimination or

retaliation. We affirm.

I. BACKGROUND

In 2000, the Department of Agriculture hired Botelho, a white male, as an

animal care inspector at level GS-5. Botelho was required to inspect facilities for

compliance with the Animal Welfare Act, which required him to interact with the

licensed owners and operators of the facilities. In 2001, Botelho received a twolevel promotion to GS-7.

In March 2002, licensee Frank Levy contacted Botelho’s supervisor, Dr.

Gregory Gaj, and complained that Botelho had harassed Levy and his wife. Levy

alleged that Botelho had inspected Levy’s facility 18 times in a period of two

years; surveilled the Levys’ home without scheduling a visit or inspecting the

property; and trespassed on the Levys’ property during which he peeped into their

bedroom window. Gaj forwarded the complaint to his supervisor, Dr. Elizabeth

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Goldentyer, who submitted the complaint for investigation to the Resource

Management Systems Evaluation Staff.

The Department received two additional complaints about Botelho in March

and April 2002, and those complaints were included in the Resource Management

investigation. In one complaint, licensee Richard Miller reported that Botelho had

been verbally abusive and had intimidated Miller. Miller also reported that, during

one inspection, a lead inspector forced Botelho to remain at his vehicle because he

was “out of control.” Miller stated that Botelho had an unstable personality that

made Miller fear for his personal safety. In the other complaint, licensee Jaynie

Moon described Botelho as a “playground bully” with a “macho type hostile

attitude.” Moon complained that Botelho had investigated whether Moon had

violated rules of a state agency and had attempted to trespass on her property.

Moon also complained that Botelho had become irate and threatened Moon

because she was unavailable for an inspection and Botelho had left four messages

on Moon’s answering machine saying, “[c]ome out, come out, I know you are in

there.” Moon stated that she had not encountered problems with former inspectors

Christine Cox and Sylvia Taylor.

In late March, Gaj instructed Botelho to file weekly itineraries of his

inspections. Dr. Gaj explained that he wanted to monitor Botelho because of the

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complaint by licensee Moon and other complaints stemming from Botelho’s

inspections. In April, Botelho sent an email to another supervisor stating that he

would not “tolerate the office again believing the licensee without investigating

this matter. . . . They want war, they got it.”

In April and May 2002, Botelho filed two charges of discrimination with the

Equal Employment Opportunity Commission. In the first charge, Botelho accused

Gaj and Goldentyer of discrimination based on Botelho’s race and gender because

they had required him to submit weekly itineraries. Botelho alleged that

Goldentyer had failed to comply with department procedures to address licensee

complaints. In the second charge, Botelho accused Gaj and Goldentyer of

discrimination based on race and gender and of reprisal. Botelho alleged that Gaj

had accused Botelho of excessive inspections, but Botelho alleged the Department

had female inspectors with an equally high number of inspections who had not

been investigated. Botelho also alleged that the investigation was in retaliation for

his first charge of discrimination.

On June 5, 2002, Botelho received a letter from licensee, Mario Tabraue,

who demanded that Botelho cease slandering Tabraue, and twelve days later, Gaj

reported to a Resource Management investigator two additional complaints against

Botelho. In the first complaint, a potential licensee reported that Botelho had

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called Tabraue a “crook and a drug dealer,” advised the potential licensee not to

buy from Tabraue, and said he would end Tabraue’s business. In the second

complaint, a state wildlife agent reported that Botelho seemed obsessed with

Tabraue, Botelho inquired about actions against Tabraue, and Botelho sought to

have Tabraue’s state permit revoked. Gaj stated that he had agreed with the

wildlife agent that Botelho should not interfere with the actions of other agencies.

On June 14, 2002, Gaj wrote a letter to Botelho limiting his duties. In the

letter, Gaj detailed Botelho’s past conduct and explained that the conduct was

“unacceptable.” Gaj instructed Botelho to submit weekly itineraries; cease contact

with licensees Levy, Miller, and Tabraue; report to Gaj, rather than investigate or

respond to, complaints about licensees; and comply with inspection guidelines.

Gaj warned Botelho that his failure to comply would result in discipline “up to and

including removal from the federal service.” Botelho later filed a third charge of

discrimination to allege that Gaj discriminated and retaliated against him by

issuing the letter.

While Resource Management was conducting its investigation, Botelho did

not receive a performance rating for his service between May 2001 and April 2002.

Botelho later filed a charge of discrimination complaining about the lack of an

evaluation. In July 2002, Botelho became eligible for a promotion from level GS-7

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to level GS-9. In August 2002, Gaj and Goldentyer denied Botelho the two-step

promotion.

In September 2002, another licensee reported misconduct by Botelho.

Christine Camp-Scott stated that Botelho had offered to be a “really good friend[]”

if Camp-Scott would provide information about other licensees and potential

licensees, and Botelho warned Camp-Scott that, if she refused to comply, Botelho

would make Camp-Scott’s life a costly “living hell.” Camp-Scott stated that she

was scared of Botelho and he had extorted money and information from her.

Botelho had earlier moved from Cape Coral, Florida, to Fort Myers, Florida.

In 2003, Botelho returned to Cape Coral and requested that the Department pay for

installation of a second telephone line, but the Department refused on the ground

that Botelho had relocated voluntarily for a second time within his duty area.

Botelho filed a fourth charge with the Commission and alleged that the Department

refused to pay for the installation because of Botelho’s race and gender. The

Department later reimbursed Botelho for the telephone line because he had not

received a copy of the telephone fee policy.

Resource Management completed its investigation and, on July 27, 2004, the

Department notified Botelho that he faced a 14-day suspension. The Department

mentioned in its letter 15 allegations of misconduct, which included charges of

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improper investigations, trespass, unprofessional conduct, and insubordination.

Botelho submitted two written responses and formal and informal oral responses.

In October 2004, Goldentyer mailed Botelho a letter that addressed

Botelho’s responses, made findings about each allegation of misconduct, and

imposed a 14-day suspension. Goldentyer explained that the penalty was “severe

enough” to “get[] [Botelho’s] attention and impress . . . the need to avoid similar

misconduct in the future,” but “not so severe that it deprived [him] of a continued

career in [his] position” with the Department. Botelho filed a fifth charge of

discrimination and alleged that his suspension was attributable to discrimination

and retaliation.

On March 11, 2005, Botelho moved to consolidate or amend his charges of

discrimination to include three additional claims. Botelho alleged that he had been

denied a promotion; he had received a second 14-day suspension in July 2005 for

using vulgar language in a conversation with the Director of Resource

Management; and his employer-provided laptop computer had been confiscated by

the Department on February 7, 2005. The Commission refused to consolidate the

charges with Botelho’s pending charges because his claims had been untimely and

he had engaged in “delay tactics,” “evasive[ness],” and had provided “otherwise

ambiguous responses” that affected the ability of the “Administrate Judge to

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carefully decide whether claims are like and related and/or whether the claims are

active or stale.” The Commission also refused to consolidate or amend Botelho’s

charges of discrimination to include a complaint that the Department had

suspended Botelho in January 2005. The Commission later dismissed all of

Botelho’s charges at his request so that he could pursue relief in a civil action.

Botelho filed a complaint that he had been discriminated and retaliated

against by the Department. 42 U.S.C. §§ 2000e-2(a)(1), -3(a). Botelho’s amended

complaint mentioned seven incidents: the investigation conducted by Resource

Management; the letter Gaj wrote Botelho restricting Botelho’s duties; the denial

of a promotion for Botelho to level GS-9; Botelho’s 14-day suspension in October

2004; the refusal of the Department to pay for the installation of a second

telephone line; an investigation into Botelho’s employment outside the

Department; his second 14-day suspension in July 2005; and the confiscation of

Botelho’s computer. In support of his complaint, Botelho testified in a deposition

that a former partner, Sylvia Taylor, had not been disciplined even though “several

dozen” complaints had been filed against her for inappropriate behavior. Botelho

complained that the Department had paid to install a telephone line for Michelle

Williams, a black female employee, and the Department had promoted single

females who received evaluations similar to Botelho.

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The Department moved for summary judgment. The Department argued

that Botelho had failed to exhaust available administrative remedies and he had

failed to prove his complaints of discrimination or retaliation. The Department

offered in support of its motion its correspondence with Botelho; letters and emails

about Botelho’s discipline; complaints and affidavits of licensees, supervisors, and

representatives of other agencies; and records of Botelho’s proceedings before the

Commission. The Department also submitted affidavits from two employees

stating that the Department would pay to install a telephone line for one relocation

within an employee’s official duty area.

Botelho responded and argued that a similarly situated female investigator

had behaved inappropriately, but she had not been disciplined. Botelho submitted

affidavits from three licensees who had complained about investigator Sylvia

Taylor. Lauri Caron stated that Taylor complained during her inspections that

Caron’s volunteers were untrained and uneducated; advised that Caron shave

certain animals; threatened to close Caron’s facility for importing chimpanzees

from Waldo, Florida; stated the facility “needed to be like Disney or Bush

Gardens”; and spoke negatively of other facilities. Gary Rosenblum complained

that Taylor was rude and threatened to fine Rosenblum if he failed to remove his

pet marmoset from his home. Pam Rosaire-Zoppe stated that Taylor criticized the

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housing for Zoppe’s champanzees and threatened to have her license revoked after

improvements were made.

The district court granted summary judgment in favor of the Department.

The district court found that Botelho had failed to exhaust three claims before the

Commission involving the investigation into Botelho’s outside employment, his

second 14-day suspension, and the confiscation of his computer. The district court

ruled that Botelho had failed to establish he had suffered an adverse employment

action or that he had been treated differently than similarly situated female or noncaucasian employees. The district court also ruled that Botelho had failed to

establish any relationship between his allegations of retaliation and actions of the

Department or to establish that the legitimate, nondiscriminatory reasons for his

discipline had been pretextual.

II. STANDARD OF REVIEW

We review de novo a summary judgment and consider the evidence in the

light most favorable to the nonmoving party. Brooks v. County Comm’n of

Jefferson County, Ala., 446 F.3d 1160, 1161–62 (11th Cir. 2006). Summary

judgment should be entered when there exists no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

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III. DISCUSSION

Botelho challenges the decision of the district court on two grounds. First,

Botelho argues that he exhausted his complaints of discrimination. Second,

Botelho argues that the Department discriminated against him based on his race

and gender. These arguments fail.

Botelho failed to exhaust available administrative remedies for three of his

charges of discrimination. Before a plaintiff may file a charge of discrimination

under Title VII, he must timely pursue and exhaust his administrative remedies.

EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir. 2002). Botelho

was required to submit his charge of discrimination to “a [Commissioner]

counselor within 45 days of the date of the matter alleged to be discriminatory,”

but Botelho failed to meet that deadline regarding two of his charges. 29 C.F.R. §

1614.105(a)(1). Botelho’s charge on March 11, 2005, complained about the

investigation into his outside employment in 2004 and his second suspension from

work on January 7, 2005. Although Botelho timely submitted his third charge

about the seizure of his laptop in February 2005, he nevertheless failed to exhaust

by failing to cooperate in the administrative proceedings. See Crawford v. Babbitt,

186 F.3d 1322, 1326 (11th Cir. 1999) (exhaustion requires the employee to make a

“good faith effort” to cooperate with the agency and EEOC in the administrative

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proceedings). The Commission refused to consider Botelho’s charge based on its

finding that Botelho had used “delay tactics,” was “evasive,” and had provided

“otherwise ambiguous responses” to their inquiries, and Botelho fails to challenge

that finding.

Botelho also failed to establish a prima facie case of either discrimination or

retaliation by the Department. Botelho failed to prove that he had been treated

different from a similarly situated female or non-caucasian employee in the

Department. Botelho argues that he was disciplined for licensee complaints when

a female employee, Taylor, was not penalized, but the complaints against Taylor

were not “nearly identical . . . [in] quantity or quality” to the complaints against

Botelho. Burke-Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006).

Botelho also failed to establish that the legitimate reason the Department proffered

for refusing to promote Botelho was a pretext for retaliation. See Chapman v. AI

Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc) (“Provided that the

proffered reason is one that might motivate a reasonable employer, an employee

must meet that reason head on and rebut it.”). The Department provided a

compelling reason for its failure to promote Botelho in July 2002: Botelho had

numerous complaints filed against him by licensees and he was under investigation

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for those complaints. Botelho failed to present evidence to rebut that legitimate

reason for not promoting him.

IV. CONCLUSION

The summary judgment in favor of the Department is AFFIRMED.

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