Submitted: January 9, 2018
from United States District Court for the Eastern District of
Arkansas - Helena
GRUENDER, MELLOY, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
well-settled that the "plaintiff is the master of [his]
complaint." Holmes Grp., Inc. v. Vornado Air
Circulation Sys., Inc., 535 U.S. 826, 831 (2002)
(internal quotation marks omitted). Here, plaintiff Aldridge
Winfrey charges in his complaint that he was terminated by
the Forrest City, Arkansas Police Department
("Department") as "retaliat[ion] . . . for
exercising his rights . . . regarding the Plaintiff and other
police officers being underpaid by the [Department]."
The district court dismissed this claim as plainly
insufficient under Title VII of the Civil Rights Act of 1964.
It also dismissed related state-law contract and promissory
estoppel claims. Winfrey now appeals, arguing that evidence
he introduced at summary judgment shifts the focus of his
complaint and that his state-law contract claim should not
have been dismissed. Exercising de novo review, Odom v.
Kaizer, 864 F.3d 920, 921 (8th Cir. 2017), we reject his
arguments and affirm the district court.
complaint alleges his dismissal was retaliatory. Under Title
VII-which Winfrey admits controls his claim-Winfrey's
retaliation claim, on its face, is outside the bounds of the
statute: Winfrey has not pled he engaged in "protected
conduct." Kiel v. Select Artificials, Inc., 169
F.3d 1131, 1136 (8th Cir. 1999) (en banc) (holding "a
prima facie case of retaliation" is made only when the
plaintiff shows "he engaged in protected conduct").
Title VII's antiretaliation section protects either
"1) opposing any discrimination made unlawful by Title
VII or 2) making a charge or participating in any manner in
an investigation or proceeding under Title VII."
Bogren v. Minnesota, 236 F.3d 399, 407-08 (8th Cir.
2000). Title VII prohibits, broadly speaking, "employer
discrimination on the basis of race, color, religion, sex, or
national origin, in hiring, firing, salary structure,
promotion and the like." Univ. of Texas Sw. Med.
Ctr. v. Nassar, 133 S.Ct. 2517, 2522 (2013).
application of unfair treatment unmoored from the distinct
classes Title VII protects-as Winfrey has said, both in his
complaint and at his deposition, he was doing-is not a basis
for a Title VII retaliation claim. Thus, in Bogren, we
found that where a female police officer accused a police
department of intimidating cadets, but "she explained
that the intimidation was directed at both male and female
cadets, " this was "unprotected by Title VII"
because the police department did not engage in
"discrimination made unlawful by Title VII." 263
F.3d at 408.
affidavit that was submitted at the summary judgment stage,
Winfrey attempts to inject a new angle to his complaint,
claiming that his dismissal was race-based. This, however, is
a distinct claim from a Title VII retaliation claim. See
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 56 (2006) (emphasizing Title VII "antiretaliation
provision" is separate from "employment
discrimination" provision). We agree with the district
court that "[i]ts too late" to bring a separate
employment discrimination claim in this action. Nothing in
Winfrey's complaint or his deposition testimony indicated
that he was pursuing a Title VII claim encompassing
race-based discrimination. Submitting a new claim via an
affidavit at the summary judgment stage is an "attempted
surprise" which the Federal Rules of Civil Procedure are
designed to prevent. See Swierkiewicz v. Sorema N.
A., 534 U.S. 506, 513 (2002) (internal quotation marks
omitted). As we have said previously, "[w]hile we
recognize that the pleading requirements under the Federal
Rules are relatively permissive, they do not entitle parties
to manufacture claims, which are not pled, late into the
litigation." Falco v. Farmers Ins. Grp., 795
F.3d 864, 868 n.4 (8th Cir. 2015) (internal quotation marks
omitted). We affirm the district court's dismissal of
Winfrey's Title VII retaliation claim and its rejection
of his untimely Title VII discrimination claim.
also argues the district court erred in dismissing his
contract claim. He concedes that he was an "at-will
employee, " meaning, under Arkansas law, he could be
terminated at any time. See Cottrell v. Cottrell,
965 S.W.2d 129, 130 (Ark. 1998). He contends, though, that
there is a "public policy exception" in this case.
See Sterling Drug, Inc. v. Oxford, S.W.2d 380, 385
(Ark. 1988) (recognizing "public policy
exception"). In his view, Arkansas law is committed to
"progressive discipline, " which means that his
dismissal contravened Arkansas public policy. But, the one
case he cites from the Arkansas Court of Appeals, McAteer
v. Director, Department of Workforce Services, spoke
about "progressive discipline" solely in the narrow
area of eligibility for unemployment benefits. 481 S.W.3d
776, 779 (Ark. Ct. App. 2016). The strain of public policy
Winfrey seeks to invoke is simply inapposite to the facts
here. Thus, the district court was correct in dismissing his
contract claim as well.
foregoing reasons, we affirm the district court in full.
The Honorable D.P. Marshall Jr., United
States District Judge for the Eastern District of
Winfrey does not appeal the district
court's dismissal of his promissory estoppel