Shelby Lampley v. IMS Management Services, LLC

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11543 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 17, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:08-cv-02116-JTC
SHELBY LAMPLEY,
lllllllllllllllllllll Plaintiff - Appellant,
versus
IMS MANAGEMENT SERVICES, LLC,
d.b.a. Peachtree Road Highrise,
lllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 17, 2011)
Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Shelby Lampley, a maintenance technician with IMS Management Services
(IMS), was fired from his job two days after returning from 12 weeks’ leave under
the Family and Medical Leave Act (FMLA). Lampley, proceeding pro se, sued
IMS and contended that he was fired because of his race and his religion in
violation of Title VII of the Civil Rights Act of 1964. He also argued that he was
retaliated against for taking approved leave under the FMLA and that his employer
had interfered with the exercise of his statutory rights under the FMLA by
cancelling his health insurance while he was on leave. Last, Lampley claimed that
IMS had violated the Fair Housing Act (FHA).
IMS moved for summary judgment and the magistrate judge recommended
that the district court grant IMS’s motion because Lampley had failed to come
forward with any evidence on essential elements of his claims. The district court
overruled Lampley’s objections and adopted the magistrate judge’s report and
recommendation. Lampley now appeals. Before we can consider the merits of the
issues Lampley raises on appeal, we must decide whether he has properly
presented them.
II.
We read briefs filed by pro se litigants liberally, but if an issue is not briefed
on a pro se appeal it will be deemed abandoned, just as it would be in a case
presented through counsel. Timson v. Samson, 518 F.3d 870, 874 (11th Cir.
2
2008). Additionally, if an issue is mentioned only in passing, it is not properly
briefed and thus abandoned. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570,
1573 n.6; see also Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir. 1979)1
(stating that a point raised in the statement of issues but not elaborated on
elsewhere in the brief is deemed abandoned). We also do not consider issues
raised for the first time on appeal. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d
1324, 1331 (11th Cir. 2004).
Most of Lampley’s claims have not been properly presented in this court.
To begin with, Lampley raises for the first time on appeal the issue of whether
arbitration should have been compelled. As such, we will not consider it.
Additionally, although Lampley included these issues in his statement of the
issues, neither Lampley’s opening brief nor his reply brief elaborate further on
how the district court (1) erred by not acknowledging its local rule regarding page
limitations, (2) abused its discretion by not notifying him of a hearing on the
defendant’s motion to compel, or (3) abused its discretion by failing to appoint a
special master. Accordingly, we will not consider those issues.
1
Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (“[T]he
decisions of the United States Court of Appeals for the [former] Fifth Circuit . . . shall be binding
as precedent in the Eleventh Circuit . . . .”).
3
Reading Lampley’s brief liberally, we find only one issue properly before
us: whether the district court erred by granting summary judgment on his FMLA
claims.2
III.
The FMLA prohibits an employer from interfering with an employee’s
exercise of his FMLA rights. 29 U.S.C. § 2615(a)(1). The FMLA also requires
that while an employee is on FMLA leave, the employer must “maintain coverage
under any ‘group health plan’ . . . for the duration of such leave at the level and
under the conditions coverage would have been provided if the employee had
continued in employment continuously for the duration of such leave.” Id.§ 2614(c)(1) (emphasis added).
Lampley contends that IMS’s cancellation of his health care coverage was
prohibited interference with the exercise of his FMLA rights. IMS responds that
Lampley’s policy was cancelled because he failed to pay his share of the
premiums. At his deposition, Lampley admitted that he had failed to pay his
premiums while on leave. Although IMS was obligated to maintain Lampley’s
health care coverage while he was on FMLA leave, its obligation only extended to
2
We review an order rendering summary judgment de novo and apply the same
standards as the district court. Carter v. Galloway, 352 F.3d 1346, 1348 (11th Cir. 2003).
4
maintaining that coverage under the same conditions that it would have had to had
Lampley not been on leave. Under either scenario, Lampley was obligated to pay
his share of the premium, just as IMS was obligated to pay its share. And
Lampley admitted that once he paid his share of the premium, his benefits were
restored. As Lampley has not offered any evidence that IMS failed to pay its share
of his health care premium while he was on leave and he admitted that he failed to
pay his, we conclude that the district court was correct to render summary
judgment on his FMLA interference claim.
The FMLA also requires that if an employee takes leave under the act, he
must be restored to the position he held before taking leave or to a position with
“equivalent employment benefits, pay, and other terms and conditions of
employment.” Id. § 2614(a). Before taking FMLA leave, Lampley worked at an
IMS-managed property called the Peachtree Road Highrise. When Lampley
returned from his leave he was told to report to work at another IMS-managed
property, University Homes. It is undisputed that Lampley’s position at
University Homes had the same title, pay, and benefits as the position he held at
the Peachtree Road Highrise. Aside from the change in location, we can discern
no difference in these positions from the record. Because there is no evidence that
Lampley’s position at University Homes was not equivalent to the one he held at
5
the Peachtree Road Highrise, we conclude that the district court did not err in
rendering summary judgment on this claim.
As Lampley has not introduced any evidence showing a genuine issue of
material fact, we conclude that summary judgment for IMS was proper.
AFFIRMED.
6