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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13384
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-03560-MHC
REBECCA SUTHERLAND,
Defendant-Appellant Cross-Appellee,
versus
GLOBAL EQUIPMENT CO., INC.,
Plaintiff-Appellee Cross-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(October 4, 2019)
Before MARTIN, NEWSOM and BLACK, Circuit Judges.
PER CURIAM:
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Rebecca Sutherland appeals from the district court’s order granting summary
judgment in favor of Global Equipment Co. (Global) on her claims under the
Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA).
Sutherland asserts the district court erred by: (1) granting summary judgment on
her FMLA interference and retaliation claims because her managers did not assign
a designated “cover” person for her absences and requested that she choose five of
her sales accounts to be reassigned; and (2) granting summary judgment on her
ADA claim because her managers discriminated against her based on her
association with her disabled husband. On cross-appeal, Global contends the
district court abused its discretion by declining to exercise supplemental
jurisdiction over Sutherland’s state law claims without properly analyzing the
factors in United Mine Workers v. Gibbs,
383 U.S. 715 (1966). We address each
issue in turn, and, after review, 1 affirm the district court.
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We review a district court’s grant of summary judgment de novo, viewing the evidence
and all reasonable inferences in the light most favorable to the nonmoving party. Martin v.
Brevard Cty. Public Sch.,
543 F.3d 1261, 1265 (11th Cir. 2008). Summary judgment is
appropriate when there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a).
We review the district court’s decision to decline to exercise supplemental jurisdiction for
an abuse of discretion. Ameritox, Ltd. v. Millennium Laboratories, Inc.,
803 F.3d 518, 532 (11th
Cir. 2015). We review questions of subject-matter jurisdiction de novo. St. Paul Fire and
Marine Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA,
80 F.3d 1265, 1269 (11th Cir.
2018).
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I. DISCUSSION
A. FMLA Claims
1. FMLA Interference
The FMLA provides an eligible employee shall be entitled to a total of 12
workweeks of leave during any 12-month period in order to care for a spouse with
a serious health condition. 29 U.S.C. § 2612(a)(1). An employer may not interfere
with, restrain, or deny the exercise of any right provided under the FMLA.
Id.
§ 2615(a)(1). A claim an employer interfered with the exercise of FMLA rights
has two elements: (1) the employee was entitled to a benefit under the FMLA; and
(2) her employer denied her that benefit. White v. Beltram Edge Tool Supply, Inc.,
789 F.3d 1188, 1191 (11th Cir. 2015).
The district court did not err in granting summary judgment to Global on
Sutherland’s FMLA interference claim. Sutherland did not provide evidence
showing Global denied her a benefit to which she was entitled under the FMLA.
See
White, 789 F.3d at 1191. Sutherland testified Global approved her requests for
FMLA leave both for her personal medical issue and to take care of her husband.
She provided no evidence Global ever denied her FMLA leave when she requested
it, and her time sheets show she took three to four days of intermittent FMLA leave
each month following approval, including three days of FMLA leave in January
2016.
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Further, the record as a whole could not lead a rational trier of fact to find
Sutherland’s past tardies were approved under the FMLA. See Scott v. Harris,
550
U.S. 372, 380 (2007) (stating if the record as a whole could not lead a rational trier
of fact to find for the nonmoving party, there is no genuine issue for trial). Her
time sheets, which Sutherland offered as evidence in support of her response, do
not show any tardies that were reported as FMLA leave, and Global’s FMLA
policy required FMLA leave be taken in increments of no less than one hour.
Additionally, whether Global treated other employees who took FMLA leave
differently or better by providing a dedicated cover person for their accounts is not
relevant, because a dedicated cover person was not a right to which Sutherland was
entitled under the FMLA. See 29 U.S.C. § 2614. Finally, that a Global manager in
New York e-mailed Global’s human resources manager to inquire about the status
of Sutherland’s FMLA balances does not prove interference because Global did
not deny Sutherland’s FMLA leave before or after the e-mail, and the e-mail did
not instruct anyone to interfere with Sutherland’s FMLA leave.
2. FMLA Retaliation
An employer may not discriminate against an employee for exercising her
rights under the FMLA. 29 U.S.C. § 2615(a)(2). To succeed on a claim of FMLA
retaliation, an employee must demonstrate her employer intentionally
discriminated against her in the form of an adverse employment action for having
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exercised an FMLA right. Jones v. Gulf Coast Health Care of Del., LLC,
854 F.3d
1261, 1270 (11th Cir. 2017). Where an employee puts forth no direct evidence of
discrimination, we employ the burden-shifting framework established in
McDonnell Douglas Corp v. Green,
411 U.S. 792 (1973). See
id. at 1271. Under
that framework, a plaintiff must first establish a prima facie case of discrimination
by proving: (1) she engaged in statutorily protected conduct; (2) she suffered an
adverse employment action; and (3) the adverse action was causally related to the
protected conduct.
Id. If the plaintiff establishes a prima facie case, the employer
may proffer a legitimate, non-retaliatory reason for the challenged employment
action.
Id. The employee bears the burden of showing the employer’s proffered
reason is pretextual.
Id.
To prove constructive discharge, a plaintiff must prove that her working
conditions were “so intolerable that a reasonable person in her position would have
been compelled to resign.” Hipp v. Liberty Nat. Life Ins. Co.,
252 F.3d 1208, 1231
(11th Cir. 2001) (quotation marks omitted). This standard is higher than the
standard for proving a hostile work environment.
Id. A constructive discharge
will generally not be found if the employer is not given sufficient time to remedy
the situation.
Id. at 1245 n.81.
Sutherland did not show she suffered an adverse employment action, and,
thus, did not establish a prima facie retaliation case. See
Jones, 854 F.3d at 1271.
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First, Global’s intention to transfer five of Sutherland’s accounts was not an
adverse employment action. See 29 C.F.R. § 825.204 (providing an employer may
make temporary reassignments and alter duties or responsibilities to accommodate
intermittent FMLA leave). Sutherland testified reassignment of accounts that were
not doing well was a regular occurrence based on Global’s business judgment. In
addition, it is undisputed Sutherland’s accounts suffered when she was absent.
Even assuming the reassignment could be considered an adverse employment
action, Sutherland cannot prove she actually suffered the action, because she
resigned before any accounts were transferred.
Second, Sutherland did not establish her resignation amounted to a
constructive discharge. Her time sheets and affidavit establish her former
supervisors allowed her to be tardy and to make up the time over lunch or at the
end of the day, and her new supervisors decided to change this policy and require
timeliness. However, even assuming her new supervisors threatened her with
discipline for future tardies or unexcused absences, they did not discipline her at
the time. A requirement that, going forward, an employee be on time and provide
excuses for any absences is not “so intolerable that a reasonable person would be
compelled to resign.” See
Hipp, 252 F.3d at 1231. Moreover, even if they were
intolerable, Sutherland did not raise this issue to her supervisors so they could
attempt to remedy the problem—she simply resigned. See
id. at 1245 n.81.
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Accordingly, because she did not show she suffered an adverse employment action
or a constructive discharge, Sutherland did not establish a prima facie retaliation
case and the district court did not err in granting summary judgment to Global on
Sutherland’s FMLA claims.
B. ADA Claim
The ADA protects a qualified individual from discrimination on the basis of
disability in the terms, conditions, and privileges of employment. 42 U.S.C.
§ 12112(a). The ADA defines the term “discriminate” to include “excluding or
otherwise denying equal jobs or benefits to a qualified individual because of the
known disability of an individual with whom the qualified individual is known to
have a relationship or association.”
Id. § 12112(b)(4). We evaluate disability
discrimination and association discrimination claims brought under the ADA using
the burden-shifting framework established in McDonnell Douglas. See Cleveland
v. Home Shopping Network, Inc.,
369 F.3d 1189, 1193 (11th Cir. 2004).
To establish a prima facie case of association discrimination under the ADA,
the plaintiff must show that: (1) she was subjected to an adverse employment
action; (2) she was qualified for the job at that time; (3) her employer knew at that
time that she had a relative with a disability; and (4) the adverse employment
action occurred under circumstances which raised a reasonable inference that the
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disability of the relative was a determining factor in the employer’s decision.
Wascura v. City of S. Miami,
257 F.3d 1238, 1242 (11th Cir. 2001).
The ADA prevents an employer from “not making reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability who is an . . . employee.” 42 U.S.C.
§ 12112(b)(5)(A). To succeed on a failure to accommodate claim, plaintiff must
show that (1) she is disabled; (2) she was a “qualified individual” at the relevant
time, meaning she could perform the essential functions of the job with or without
reasonable accommodations; and (3) the employer failed to provide a reasonable
accommodation. Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249, 1255 (11th Cir.
2001).
Sutherland failed to establish a prima facie case of discrimination under
either an association discrimination or failure to accommodate theory. She did not
prove association discrimination because, as discussed above, she did not suffer an
adverse employment action. See
Wascura, 257 F.3d at 1242. She did not prove
failure to accommodate because she did not argue or provide evidence she was
disabled. See
Lucas, 257 F.3d at 1255. Thus, Global was not obligated to provide
a reasonable accommodation. See id; 42 U.S.C. § 12112(b)(5)(A). Accordingly,
the district court did not err by granting summary judgment to Global on
Sutherland’s ADA claim.
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C. State Law Claims
The doctrine of supplemental jurisdiction permits federal courts to decide
certain state law claims involved in cases raising federal questions when doing so
would promote judicial economy and procedural convenience.
Ameritox, 803 F.3d
at 530; see 28 U.S.C. § 1367(a). A district court possesses the authority to dismiss
claims brought under § 1367(a) if it has dismissed all claims over which it has
original jurisdiction. Ameritox, Ltd. v. Millennium Laboratories, Inc.,
803 F.3d
518, 532 (11th Cir. 2015); see 28 U.S.C. § 1367(c)(3). Any one of the factors
listed in § 1367(c) is sufficient to give the district court discretion to dismiss a
case’s supplemental state law claims.
Ameritox, 803 F.3d at 532. The Gibbs
factors of judicial economy, convenience, fairness to the parties, and whether all
claims would be expected to be tried together are evaluated under § 1367(c)(4).
Parker v. Scrap Metal Processors, Inc.,
468 F.3d 733, 745 (11th Cir. 2006). In
Palmer v. Hospital Authority of Randolph County, we held the district court erred
in dismissing the plaintiff’s state law claims without analyzing the discretionary
factors in § 1367(c).
22 F.3d 1559, 1567 (11th Cir. 1994).
Diversity jurisdiction exists where the parties are citizens of different states
and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332. Diversity
jurisdiction is determined at the time of filing the complaint or, if the case has been
removed, at the time of removal, regardless of any subsequent change to the
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amount in controversy. PTA-FLA, Inc. v. ZTE USA, Inc.,
844 F.3d 1299, 1306
(11th Cir. 2016).
Where the plaintiff has not alleged a specific amount of damages, the
defendant seeking removal must establish by a preponderance of the evidence that
the amount in controversy exceeds the jurisdictional minimum. Pretka v. Koter
City Plaza II, Inc.,
608 F.3d 744, 752 (11th Cir. 2010). The court may consider
facts alleged in the notice of removal, judicial admissions made by the plaintiffs,
non-sworn letters submitted to the court, or other summary judgment type
evidence.
Id. at 754.
The district court did not abuse its discretion by declining to exercise
supplemental jurisdiction over Sutherland’s state law claims. First, the district
court did not err in concluding it did not have original jurisdiction over
Sutherland’s state law claims. The only evidence Global provided to support its
argument the amount in controversy met the jurisdictional threshold was a
settlement offer from Sutherland made six months after the notice of removal was
filed. Sutherland’s settlement offer is not relevant to prove the amount at the time
of the removal. See Sierminski v. Transouth Financial Corp.,
216 F.3d 945, 949
(11th Cir. 2000) (stating while the district court may consider post-removal
evidence in assessing jurisdiction, that evidence is allowable only if it is relevant to
the time of removal). Sutherland’s state court complaint alleged only that she had
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lost approximately $25,000 due to Global’s actions in 2015. Global has offered no
evidence the amount in controversy at the time of removal exceed that amount. Its
evidence Sutherland sought more damages six months after removal is not
sufficient to prove the amount in controversy at the time of removal. See Burns v.
Windsor Ins. Co.,
31 F.3d 1092, 1097 & n.13 (11th Cir. 1994) (stating whether the
plaintiff might seek or recover more damages after removal is not sufficient to
prove the amount in controversy at the time of removal). Accordingly, the district
court did not have diversity jurisdiction over Sutherland’s state-law claims. See
28 U.S.C. § 1332.
Because it dismissed Sutherland’s federal claims and did not have diversity
jurisdiction, the district court did not err in concluding that 28 U.S.C. § 1367(c)(3)
applied. This finding was sufficient to allow the court to exercise its discretion
without analyzing the other factors in § 1367(c). See
Ameritox, 803 F.3d at 532.
This case is distinguishable from Palmer, where this Court remanded for
consideration of the discretionary factors in § 1367(c), because the district court
here analyzed its decision under § 1367(c)(3). See
Palmer, 22 F.3d at 1567.
Further, the district court was not required to analyze the Gibbs factors, which are
evaluated under § 1367(c)(4). See
Ameritox, 803 F.3d at 532;
Parker, 468 F.3d at
745. Nevertheless, it found the Gibbs factors weighed in favor of remand to state
court. Accordingly, because the district court analyzed the discretionary factors
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and correctly concluded § 1367(c)(3) applied, it did not abuse its discretion by
declining to exercise supplemental jurisdiction over Sutherland’s state law claims.
II. CONCLUSION
The district court did not err in granting summary judgment to Global on
Sutherland’s FMLA interference and retaliation claims, nor did the district court
err in granting summary judgment to Global on Sutherland’s ADA claim. The
district court did not abuse its discretion by declining to exercise supplemental
jurisdiction over Sutherland’s state law claims.
AFFIRMED.
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