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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-12144
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:17-cv-00116-WTM-GRS



LAKESHA SMITH,


                                                         Plaintiff – Appellant,

                                 versus


ST. JOSEPH’S/CANDLER HEALTH SYSTEM, INC.,


                                                        Defendant – Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Georgia
                     ________________________

                             (May 7, 2019)

Before MARCUS, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Lakesha Smith, who is proceeding pro se, appeals the district court’s grant

of summary judgment to her former employer on her claim alleging she was

terminated in violation of the Family and Medical Leave Act (“FMLA”). After

careful review, we affirm.

                                         I.

      Lakesha Smith slipped and fell on March 20, 2014 while at work at St.

Joseph’s/Candler hospital (“St. Joseph’s”). About a week later, she began

treatment with a doctor, who deemed her temporarily unfit for duty. Smith notified

St. Joseph’s that she needed to take a leave of absence because of a work-related

injury. St. Joseph’s gave her leave beginning March 28, 2014.

      After visiting a physical therapist for a couple of weeks, Smith attempted to

return to work on April 14, 2014. But lingering injuries prevented her from

performing her work effectively. She notified her employer that she needed to take

another leave of absence for a work-related injury, and she submitted a leave of

absence request form. In the following days, she visited a nurse practitioner, the

original treating physician, an emergency room physician, and an orthopedic

physician, informing each of numbness and pain in her right leg and back.

      At the end of April 2014, a doctor released Smith back to work, where she

was expected to resume her full duties. But, shortly thereafter, Smith notified St.

Joseph’s that she wanted to continue to take leave because she did not feel able to


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return to work. On May 2, 2014, she submitted a leave of absence request form

indicating that illness or injury prevented her from performing her normal duties.

Written on that leave form was a message from someone in the hospital’s human

resources department indicating Smith had 240 hours of FMLA leave remaining.

Because Smith worked 30 hours per week, these 240 hours of FMLA leave

equaled eight work-weeks. Smith’s manager, Leigh Craft, approved and signed

the leave form.

      During her third leave of absence, Smith visited a neurologist who wrote in a

letter dated June 27, 2014—eight weeks after Smith started her leave of absence—

that she had been evaluated, she was prescribed physical therapy, and she would

need to be out of work until July 25, 2014 when she was scheduled to be re-

evaluated. On July 3, 2014, Craft notified Smith that she was terminated effective

immediately. According to Smith, Craft first asked about the status of her injuries

and the next steps her doctor planned to take to treat her. When she was unable to

thoroughly answer these questions, Craft informed her of her termination. Smith

later received a letter confirming her termination.

      On June 30, 2017, Smith filed pro se a lawsuit against St. Joseph’s alleging

she had been improperly denied health benefits and wrongfully terminated in

violation of the Family and Medical Leave Act. Smith requested permission to

bring suit in forma pauperis—that is, without paying filing fees.


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      In an order addressing Smith’s request, a magistrate judge indicated that

Smith’s complaint was deficient. One deficiency was that the complaint—which

was filed almost three years after Smith was terminated—did not establish whether

she brought her action within the applicable statute of limitations. The magistrate

judge explained that FMLA actions generally have a two-year statute of

limitations, and under that timeline, Smith’s complaint was plainly time-barred.

However, when a plaintiff establishes that an employer willfully violated her

FMLA rights, she has three years to bring her action. The magistrate judge

instructed Smith to amend her complaint to show whether the three-year statute of

limitations applied.

      In response, Smith amended her complaint, fleshing out the factual

allegations against her former employer. Thereafter, in October 2017, St. Joseph’s

filed a Motion to Dismiss or, Alternatively, for Summary Judgment. St. Joseph’s

motion sought dismissal on the grounds that (1) the complaint was not filed within

the FMLA’s two-year statute of limitations, and Smith had not pleaded facts that

might entitle her to the extended three-year statute of limitations; and (2) Smith

received the full amount of leave she was entitled to under the FMLA. The motion

sought summary judgment on the ground that declarations and exhibits proved Ms.

Smith’s employment was terminated after she exhausted her FMLA leave.




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       After discovery closed, 1 the magistrate judge issued a report and

recommendation advising the district court to grant St. Joseph’s motion for

summary judgment and deny as moot its motion to stay discovery. First, the

magistrate judge found that Smith’s complaint adequately alleged that St. Joseph’s

FMLA violations were willful. For that reason, the magistrate judge recommended

denying St. Joseph’s motion to dismiss. Then, the magistrate judge explained that,

even though Smith adequately pled her claim, she had not supported her allegation

of willfulness. He concluded St. Joseph’s was entitled to summary judgment on

that basis. In particular, in the magistrate judge’s view, “Smith ha[d] not presented

sufficient evidence to support a dispute of material fact that her termination

constituted a willful violation of the FMLA.”

       The magistrate judge recognized that St. Joseph’s had not raised the statute

of limitations as a basis for granting summary judgment. But because the

timeliness issue was raised in the context of St. Joseph’s motion to dismiss, he

found Smith had sufficient notice to justify the Court’s consideration of the issue.

The magistrate judge advised Smith to submit any additional evidence showing St.



       1
           The record indicates that the parties may not have completed discovery by the official
deadline. In January 2018, the parties filed a joint status report noting they had not yet
completed discovery. In that report, St. Joseph’s stated it was waiting to see how the district
court resolved its outstanding motions before scheduling depositions. Because the record reveals
no request to extend discovery and because Smith has never complained on record about any
inability to access relevant discovery, we presume the parties honored the court-ordered
deadline.
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Joseph’s violations were willful along with her objections to the report and

recommendation.

      Smith timely objected to the magistrate judge’s report and recommendation.

She outlined six points she said proved that St. Joseph’s violations were willful.

Along with her filing, she submitted several attachments, including St. Joseph’s

patient care policy, her leave of absence request forms, her worker’s compensation

records, and documents she believed showed the hospital had miscalculated her

available FMLA leave.

      After reviewing the entire record, the district court adopted the magistrate

judge’s report and recommendation. The district court explained that, although

Smith had objected to the report and recommendation, she still had not provided

evidence that revealed a genuine dispute about whether St. Joseph’s willfully

violated the FMLA. Among other things, the district court noted that Smith’s

unsupported allegation St. Joseph’s miscalculated her FMLA leave did not show

that the hospital willfully violated her rights. Because Smith could not show any

genuine issue of fact remained on the question of willfulness, the district court

found the two-year statute of limitations applied. It granted summary judgment for

St. Joseph’s because Smith’s complaint was untimely filed. Smith sought

reconsideration, but the district court denied her request. This is her appeal.




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                                         II.

      This Court reviews de novo a district court’s grant of summary judgment.

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Summary

judgment is warranted “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). “In making this assessment, [we] must view all the evidence and

all factual inferences reasonably drawn from the evidence in the light most

favorable to the nonmoving party.” Rioux v. City of Atlanta, 520 F.3d 1269, 1274

(11th Cir. 2008) (quotation marks omitted). “Mere conclusions and unsupported

factual allegations are legally insufficient to create a dispute to defeat summary

judgment.” Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir.

1989). Also, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s

position will not suffice; there must be enough of a showing that the jury could

reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.

1990) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S. Ct. 2505,

2512 (1986)).

      In conducting our review, we liberally construe pleadings and briefs

submitted by non-lawyers. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.

2008) (per curiam). However, we still require pro se litigants to conform to our

Court’s procedural rules. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007)


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(per curiam). Thus, “issues not briefed on appeal by a pro se litigant are deemed

abandoned.” Timson, 518 F.3d at 874.

                                               III.

       Smith argues that the district court erred in granting summary judgment on

the ground that her suit was time barred. She says she presented evidence showing

her former employer willfully violated the FMLA. In particular, Smith argues she

showed willfulness with evidence that St. Joseph’s miscalculated her available

FMLA leave. She also appears to argue that the hospital’s human resources

department willfully delayed responding to her requests for assistance in accessing

her health benefits and did so to retaliate against her for taking medical leave.2

       The FMLA does not define “willful,” and neither the Supreme Court nor this

Court has expressly defined that term in the context of the FMLA. But in

McLaughlin v. Richland Shoe Co., 486 U.S. 128, 108 S. Ct. 1677 (1988), the

Supreme Court defined “willful” in the context of the Fair Labor Standards Act

(“FLSA”). See id. at 133, 108 S. Ct. at 1681. There, the Supreme Court explained

that “[i]n common usage the word ‘willful’ is considered synonymous with such

words as ‘voluntary,’ ‘deliberate,’ and ‘intentional.’” Id. The word “is generally


       2
          In her notice of appeal, Smith also asked this Court to review the district court’s award
of court costs to St. Joseph’s. However, both parties have since submitted supplemental briefing
indicating the order addressing costs was not final at the time Smith filed her notice of appeal.
We agree and therefore dismiss this part of Smith’s appeal for lack of jurisdiction. See Mayer v.
Wall Street Equity Grp, Inc., 672 F.3d 1222, 1224 (11th Cir. 2012) (per curiam) (explaining that
this Court does not have jurisdiction over outstanding fee motions).
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understood to refer to conduct that is not merely negligent.” Id. To show a willful

violation of FLSA, an employee must demonstrate “that the employer either knew

or showed reckless disregard for the matter of whether its conduct was prohibited

by the statute.” Id.

      Other courts of appeal have applied the standard set out in McLaughlin to

purportedly willful violations of the FMLA. See, e.g., Bass v. Potter, 522 F.3d

1098, 1103–04 (10th Cir. 2008) (holding McLaughlin’s willfulness standard

applies to the FMLA); Hoffman v. Prof’l Med Team, 394 F.3d 414, 417–18 (6th

Cir. 2005) (same); Porter v. New York Univ. Sch. of Law, 392 F.3d 530, 531–32

(2d Cir. 2004) (per curiam) (same); Hanger v. Lake County, 390 F.3d 579, 583–84

(8th Cir. 2004) (same); Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 33–34

(1st Cir. 2003) (same). Our Circuit has not previously addressed this issue. But

because Smith has not raised any argument about the proper standard for

willfulness, we decline to resolve that matter of first impression here. Cf. Wilkes

v. United States, 289 F.3d 684, 686 n.6 (11th Cir. 2002) (per curiam) (“declin[ing]

to resolve [a] legal issue and make binding precedent” where the appellant had

abandoned any argument about the issue and the parties did not adequately brief

the question). Instead, we assume—as did the magistrate judge, the district court,

and apparently both parties—that McLaughlin provides the right standard for

assessing Smith’s FMLA claim.


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       Applying that standard, Smith has not identified evidence raising a genuine

issue of material fact about whether St. Joseph’s conduct was willful. Smith relies

primarily on unsupported allegations that the hospital intentionally miscalculated

or misled her about her available FMLA hours and intentionally disrupted her

access to health benefits. But she offers no evidence supporting her claims.

Unsupported allegations are not enough to establish a genuine issue of material

fact to survive summary judgment. See Bald Mountain Park, Ltd, 863 F.2d at

1563. Even construing the facts in Smith’s favor, as we must, we do not see record

evidence showing that St. Joseph’s knew or showed reckless disregard as to

whether its conduct violated the FMLA. 3 The two-year statute of limitations

therefore applies to Smith’s claims.

       Because there is no dispute that Smith brought her suit more than two years

after her former employer’s last alleged wrongful act, her FMLA claims are time-

barred. We therefore AFFIRM the dismissal of her claims.




       3
          Smith has not raised any argument that she received insufficient notice when the
magistrate judge proposed granting summary judgment on a ground not raised by the parties.
She has therefore abandoned this argument. In any event, it appears Smith received sufficient
notice. The magistrate judge advised Smith to marshal any evidence supporting her claim of
willfulness in her objections to his report and recommendation. And Smith did in fact present
new evidence of willfulness before the district court determined, on its own independent review
of the record, that summary judgment was warranted. Cf., e.g., Artistic Entm’t, Inc. v. City of
Warner Robins, 331 F.3d 1196, 1201–02 (11th Cir. 2003) (per curiam) (affirming a district
court’s sua sponte grant of summary judgment where the court requested and the parties supplied
briefing fully addressing the merits of the issue the court later decided sua sponte).
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