[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 20, 2006

THOMAS K. KAHN

N o . 06-13043

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 05-23285-CV-CMA

F R A N Z A. WAKEFIELD,

Plaintiff-Appellant,

versus

CORDIS CORPORATION,

A Johnson & Johnson Co.,

Defendant-Appellee.

A p p e al from the United States District Court

fo r the Southern District of Florida

(N o v em b er 20, 2006)

B efo re BIRCH, MARCUS and PRYOR, Circuit Judges.

P E R CURIAM:

F ran z A. Wakefield, proceeding pro se, appeals the denial of his motion for

reco n sid eratio n following the dismissal of his Title VII action against his em p lo yer, Cordis Corporation (Cordis"). We affirm.

I. BACKGROUND W ak efield was employed as an engineer by Cordis until March 11, 2002, ab o u t two years after he graduated from college. On March 7, 2003, Wakefield f ile d a complaint with the Florida Commission on Human Relations ("FCHR") that C o rd is discriminated against him on account of race. On January 6, 2004, the F C H R determined that it did not have jurisdiction over Wakefield's complaint b ecau se Wakefield had signed a separation agreement that released all claims a g a in s t Cordis. Wakefield appealed to an administrative law judge who dismissed W ak efield 's complaint on May 12, 2004. Wakefield then appealed this d eterm in atio n through the Florida court system and on May 26, 2005, the Florida S u p rem e Court denied his petition for a writ of mandamus to reinstate his c o m p la in t.

On December 22, 2005, Wakefield filed this action in the district court and c o m p la in e d of racial discrimination. Wakefield requested over one billion dollars in damages. He alleged that Cordis created a hostile work environment on account o f his race and retaliated against him because he complained internally. Wakefield alleg ed numerous acts on the part of Cordis, including filing patent applications for tw o of his inventions without giving him credit.

Cordis moved to dismiss the complaint based on the statute of limitations a n d Wakefield's failure to obtain a "right-to-sue" letter from the Equal E m p lo ym en t Opportunity Commission ("EEOC"). The district court treated the m o tio n to dismiss as a motion for summary judgment and ordered Wakefield to p ro d u ce a "right-to-sue" letter. Wakefield argued that the determination of the F C H R that it lacked jurisdiction over his complaint constituted a "right-to-sue" letter. The district court granted summary judgment for Cordis on the ground that, e v e n if the FCHR determination constituted a "right-to-sue" letter, Wakefield filed h is federal complaint more than 90 days after this determination issued. See 42 U .S .C . § 2000e-5(f)(1).

W ak efield filed a motion for reconsideration and alleged that his failure to b rin g his action in a timely fashion was the fault of Cordis, the FCHR, and the E E O C . The district court construed Wakefield's motion as a request for equitable to llin g . The district court determined that Wakefield did not meet the requirements fo r the extraordinary remedy of equitable tolling and denied the motion for r e c o n s id e r a tio n .

II. STANDARD OF REVIEW W e review a denial of a motion for reconsideration for abuse of discretion. C liff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1121 (11th Cir. 2004).

III. DISCUSSION W ak efield makes two arguments that the district court abused its discretion in denying his motion for reconsideration. First, Wakefield argues he is entitled to eq u itab le tolling of the 300-day period to request a "right-to-sue" letter from the E E O C . Second, Wakefield argues that he is entitled to equitable tolling of the 90d ay period he had to file suit after receiving a "right-to-sue" letter. Wakefield a rg u e s that he should be granted equitable tolling because (1) he did not discover C o rd is's alleged discriminatory appropriation of his patents until April and N o v em b er of 2004; (2) the FCHR gave him inadequate notice of his rights and did n o t dual-file his charge with the EEOC; and (3) he was litigating in Florida state co u rt. These arguments fail.

"[T]he statutory time limits applicable to lawsuits against private employers u n d er Title VII are subject to equitable tolling." Irwin v. Dep't of Veterans A ffairs, 498 U.S. 89, 95 (1990) (footnote omitted). "Under equitable tolling, Title V II's statute of limitations period does not start to run until a plaintiff knew or reaso n ab ly should have known that [he] was discriminated against." Carter v. W e st Publ'g Co., 225 F.3d 1258, 1265 (2000). The plaintiff must establish that to llin g is warranted because equitable tolling "is an extraordinary remedy which sh o u ld be extended only sparingly." Bost v. Federal Express Corp., 372 F.3d 1 2 3 3 , 1242 (11th Cir. 2004) (quotation omitted). "Equitable tolling is appropriate w h en a movant untimely files because of extraordinary circumstances that are both b e y o n d his control and unavoidable even with diligence." Sandvik v. United S tates, 177 F.3d 1269, 1271 (11th Cir. 1999).

Wakefield fails to establish that the 300-day period should be tolled.

Because Florida is a deferral state that prohibits discriminatory employment p ractices under state law, see E.E.O.C. v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1 2 7 1 (11th Cir. 2002), a claimant must file an employment discrimination charge w ith the EEOC within 300 days of the last discriminatory act. See 42U.S.C. § 2 0 0 0 e -5 ( e )( 1 ) . Wakefield waited more than 300 days after he left Cordis to file a c o m p la in t with the FCHR, so Wakefield's 300-day window closed before he ever b eg an to litigate in state court. After that point, Wakefield could not have filed a ch arg e with the EEOC and anything that the FCHR may have suggested to the co n trary is irrelevant.

Wakefield says that he learned of the patent "misappropriations" more than a y ea r before he filed this action in federal court. Assuming without deciding that W ak efield could have sought a "right-to-sue" letter based on these newlyd isco v ered alleged discriminatory acts, he had ample time. No act of the FCHR or o f Cordis prevented Wakefield from requesting a "right-to-sue" letter within 300 d ays.

W a k e fie ld 's argument that the 90-day period for filing his complaint, after receip t of a "right-to-sue" letter, should be tolled also fails. An employee must file a Title VII complaint within 90 days of exhausting his administrative remedies and a fte r receipt of a "right-to-sue" letter from the EEOC. See 42U.S.C. § 2000e5 (f)(1 ); Green v. Union Foundry Co., 281 F.3d 1229, 1233-34 (11th Cir. 2002).

The employee's right to sue "is limited by the scope of the EEOC investigation w h ic h can reasonably be expected to grow out of the charge of discrimination." Gregory v. Ga. Dep't of Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004) ( q u o ta tio n omitted). Because allegations of discriminatory acts not encompassed b y an EEOC charge require a new "right-to-sue" letter, see id. at 1279-80, W ak efield 's discovery of the patents in 2004 does not help his equitable tolling a rg u m e n t. The Notice of Determination of the FCHR, which the district court assu m ed , arguendo, functioned as Wakefield's "right-to-sue" letter, arose from W ak efield 's discrimination complaint with the FCHR in March of 2003, before the p aten t applications were granted. Even if we were to assume that Wakefield had a rig h t to sue, his allegations concerning the patents would be outside the scope of th is right to sue. See Gregory, 355 F.3d at 1279-80. As a result, the alleged patent "th efts" do not support equitable tolling of Wakefield's Title VII claim.

There is no evidence that the FCHR or the EEOC did anything to discourage W ak efield from bringing a prompt suit in federal court after he received the p u r p o r te d "right-to-sue" letter. The Notice of Determination stated that W ak efield 's discrimination claim was denied because of the existence of his settlem en t agreement, outlined the procedures to seek review of the order, and su g g ested that Wakefield seek legal counsel. That Wakefield sought review of the N o tic e of Determination in Florida state court instead of filing a complaint under T itle VII in federal court does not give him grounds for equitable tolling.

W e are mindful that "procedural requirements established by Congress for g a in in g access to the federal courts are not to be disregarded by courts out of a v ag u e sympathy for particular litigants." Baldwin County Welcome Center v. B ro w n , 466 U.S. 147, 152 (1984). Wakefield failed to act with due diligence and file his action with the EEOC within the 300-day statute of limitations or file his f ed e r al claim within 90 days of any purported "right-to-sue" letter. The district co u rt did not abuse its discretion by denying Wakefield's motion for r e c o n s id e r a tio n .

IV . CONCLUSION T h e denial of Wakefield's motion for reconsideration is AFFIRMED.