United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
pro se, plaintiff Anthony Oliver brings this
employment discrimination action against his former employer.
See doc. 1. Oliver alleges that Hayley Sheth
Investments, LLC -- the entity responsible for the management
of “Country Inn” or “Country Inn &
Suites” -- is located in Port Wentworth, Georgia.
See doc. 1. He alleges that he was hired as a
“front desk manager” at Country Inn and performed
his first training shifts well. See Id. at 4. After
his second shift, however, the individual who hired him
(identified only as “Nick”) questioned Oliver
about his sexual orientation. Id. at 5. Several days
later that same individual terminated Oliver's employment
“due to the fact that Nick and [defendant Hayley Sheth
Investments] felt that [he] was lying to management about his
sexual preferences.” Id. He further alleges
that “Nick” reiterated that his termination was
based on his perceived sexual preference when he
“informed [Oliver] that he (Nick) cannot have gay
people working for him, or at his hotel because it's bad
for ‘all types of business.'” Id. at
claims that conduct violated Title VII and constituted
tortious intentional infliction of emotional distress.
Id. at 7-8. He seeks damages and an injunction
directing “the Georgia Secretary of State to suspend,
terminate, and/or vacate any and all State business licenses
against the Defendant, and its subsidiary
corporations.” Id. at 9. He further filed a
Charge of Discrimination with the United States Equal
Employment Opportunity Commission (EEOC) on July 10, 2017,
see doc. 1 at 3, and a Right to Sue Notice was
issued on July 13, 2017, see id., Exh. A. He filed
his Complaint on August 14, 2017. See Id. It
appears, therefore, that Oliver's Complaint is timely and
that he has exhausted his administrative
prior Order, the Court stayed the case pending the outcome of
the petition for certiorari (review by the Supreme
Court) in Evans v. Georgia Regional Hosp., S.D. Ga.
No. CV415-103. In that case, the Eleventh Circuit held that
“binding precedent forecloses” a claim under
Title VII based on “workplace discrimination because of
[a plaintiff's] sexual orientation.” Evans v.
Ga. Regional Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017)
(citing Blum v. Gulf Oil Corp., 597 F.2d 936, 938
(5th Cir. 1979)). This case added to the split between the
circuits on whether sexual orientation discrimination is
actionable. See, e.g., Hiley v. Ivy Tech Community
Coll., 853 F.3d 339 (7th Cir. 2017) (sexual orientation
discrimination is actionable under Title VII); Zarda v.
Altitude Express, Inc., 855 F.3d 76 (2d Cir. 2017)
(sexual orientation discrimination is not actionable),
reh'g en banc granted, No. 15-3775, doc. 271
(May 25, 2017) (to reconsider its position). The Supreme
Court, however, denied certiorari, Evans v. Ga.
Regional Hosp., 2017 WL 4012214 (U.S. Dec. 11, 2017),
making the Eleventh Circuit's decision in the case final
in this Circuit.
other words, discrimination on the basis of sexual
orientation is not actionable under Title VII in this
Circuit. Oliver's Complaint thus fails to state a claim
and should be DISMISSED. While normally a
pro se plaintiff would be granted leave to amend,
Oliver's claim is dead on arrival and does not appear
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitche l v. United States,
612 Fed.Appx. 542, 545 (11th Cir. 2015).
REPORTED AND RECOMMENDED.
 “For an EEOC charge to be
timely[, ] . . . [it] must be filed within 180 days of when
the alleged violation occurred. 42 U.S.C. 200e-5(e)(1);
Wilkerson [v. Grinnell Corp.] 270 F.3d
[1314, ] . . . 1317 [(11th Cir. 2001)]. Once the EEOC
dismisses the charge and notifies the plaintiff of her right
to sue, the plaintiff has 90 days in which to file suit on
her claims in district court. 42 U.S.C. § 2000e-5(f)(1);
Santini v. Cleveland Clinic Florida, 232 F.3d 823,
825 (11th Cir. 2000).” Abram v. Fulton Cty.
Gov't, 598 Fed.Appx. 672, 674 (11th Cir. 2015). This
Court has noted that there is disagreement among jurists
about whether timeliness and exhaustion are pleading
requirements. See Dawkins v. J.C. Lewis Primary Health
Care, 2015 WL 1607989 at * 2 (S.D. Ga. April 8, 2015)
(citing Luckey v. Visalia Unified Sch. Dist., 2014
WL 730699 at * 2 (E.D. Cal. Feb. 24, 2014)). Even assuming
that they are, however, Oliver has pled sufficient facts to
 Despite the lack of any apparent basis
for viable amendment, Oliver's opportunity to object to
this Report and Recommendation within 14 days of service, see
infra, affords him an opportunity to resuscitate his
case. He may also submit an Amended Complaint during that
period, if he believes it would cure the legal defects
discussed above. See Willis v. Darden, 2012 WL
170163 at * 2 n.3 (S.D. Ga. Jan. ...