          Case: 15-11493   Date Filed: 10/07/2015   Page: 1 of 7




                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-11493
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 5:13-cv-01880-CLS



TYRA COWMAN,

                                                          Plaintiff-Appellant,

                                versus

NORTHLAND HEARING CENTERS, INC.,
DR. RAYMOND YOUNT,

                                                       Defendants-Appellees,

STARKEY HEARING TECHNOLOGY INC., et al.,

                                                                   Defendants.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Alabama
                     ________________________

                           (October 7, 2015)
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Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

         Tyra Cowman, represented by counsel, brought this lawsuit on October 9,

2013, against Northland Hearing Centers, Inc. (“Northland”), All American

Hearing, Inc., Starkey Laboratories, Inc., and Starkey Hearing Technology, Inc.

After voluntarily dismissing the latter three defendants from the case, Cowman

filed an amended complaint against Northland and Dr. Raymond Young asserting

claims of interference and retaliation under the Family and Medical Leave Act of

1993, 29 U.S.C. § 2601 et seq. (“FMLA”). 1 By the time Northland and Dr. Young

filed a motion for summary judgment, Cowman’s counsel had withdrawn, so the

District Court appointed an attorney to investigate Cowman’s case and effectively

inform Cowman about the pending motion. After the attorney did so, the court

took the motion for summary judgment under advisement and entered an order

granting it, concluding that Cowman was ineligible for FMLA leave. Cowman,

appearing pro se, now appeals the judgment the court entered pursuant to that

order.

         Cowan argues that the District Court erred in finding her ineligible for

FMLA leave. Liberally construing her brief, she also argues that the defendants
         1
           The amended complaint alleged that Dr. Young was the audiologist employed by
Northland in its Huntsville, Alabama office, who was responsible for “the day-to-day functions”
of Northland’s “North Alabama network of affiliated offices,” and who allegedly “maintained . .
. control over the terms and conditions of Cowman’s employment” in his capacity as her “direct
supervisor.”
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should be equitably estopped from asserting her ineligibility as an affirmative

defense.

                                         I.

       The FMLA provides that an “eligible employee” is entitled to take up to 12

weeks of leave during any 12-month period because of a serious health condition

which renders the employee unable to perform the functions of her job. 29 U.S.C.

§ 2612(a)(1)(D). To protect this right, the FMLA authorizes two types of claims:

“interference claims, in which an employee asserts that his employer denied or

otherwise interfered with his substantive rights under the [FMLA]; and retaliation

claims, in which an employee asserts that his employer discriminated against him

because he engaged in an activity protected by the [FMLA].” Pereda v. Brookdale

Senior Living Cmtys., Inc., 666 F.3d 1269, 1272 (11th Cir. 2012); see also 29

U.S.C. § 2615(a)(1) (prohibiting an employer from interfering with rights provided

by the FMLA); 29 U.S.C. § 2615(a)(2) (prohibiting an employer from discharging

or otherwise discriminating against an employee for engaging in protected

activity).

       However, the protections of the FMLA only apply if the plaintiff is an

aggrieved “eligible employee.” See Pereda, 666 F.3d at 1272; 29 U.S.C.

§ 2612(a)(1) (stating that only an “eligible employee” shall be entitled to FMLA

leave); 29 U.S.C. § 2617(a)(1) (providing that an employer who violates § 2615


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shall be liable in a civil action to any “eligible employee”). The FMLA defines the

term “eligible employee” to exclude “any employee of an employer who is

employed at a worksite at which such employer employs less than 50 employees if

the total number of employees employed by that employer within 75 miles of that

worksite is less than 50.” 29 U.S.C. § 2611(2)(B)(ii). Thus, in order for the

FMLA to apply, the “employer(s) at issue must have at least 50 employees within a

75 mile radius of the worksite.” Morrison v. Magic Carpet Aviation, 383 F.3d

1253, 1254 (11th Cir. 2005).

      This “worksite requirement” is both a threshold jurisdictional issue and a

required element of a plaintiff’s claim. See Morrison v. Amway Corp., 323 F.3d

920, 923 (11th Cir. 2003). Whether the worksite requirement is met is determined

as of the date the employee gives notice of the need for leave. 29 C.F.R.

§ 825.110(e). In certain situations, a plaintiff may reach the 50-employee

threshold by aggregating the employees of separate corporate entities. See Magic

Carpet Aviation, 383 F.3d at 1255-58. However, separate entities are generally

only considered as a single “integrated employer” for FMLA purposes if they share

a number of overlapping characteristics, such as: common management;

interrelation between operations; centralized control of labor relations; and a

degree of common ownership or financial control. Id. at 1257; see also 29 C.F.R.

§ 825.104(c).


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      In this case, the district court did not err by granting summary judgment on

Cowman’s FMLA claims based on its finding that she was not an “eligible

employee” within the meaning of 29 U.S.C. § 2611(2)(B)(ii). Taking the evidence

in the light most favorable to Cowman, the uncontroverted evidence established

that her employer, Northland, employed fewer than 50 individuals within 75 miles

of her worksite. Regardless of whether Cowman’s primary worksite was in

Decatur or Gadsden, Northland’s business records, clearly showed that it employed

fewer than 50 individuals within 75 miles of either location. Throughout this

litigation, Cowman failed to present any evidence demonstrating that Northland

actually employed 50 or more employees within 75 miles of either of her

worksites.

      Although a plaintiff may, in certain situations, aggregate the employees of

separate corporate entities to reach the 50-employee threshold, Cowman

abandoned this argument—that Northland and Starkey Laboratories, Inc. should be

considered as a single integrated employer—by failing to raise it in her initial brief.

See Access Now, Inc. v. Southwest Airlines, Co., 385 F.3d 1324, 1330 (11th Cir.

2004). Regardless, however, this argument fails on the merits, as she voluntarily

dismissed Starkey Laboratories from the lawsuit, and, at any rate, undisputed

evidence showed that Northland and Starkey Laboratories combined still employed

fewer than 50 individuals within 75 miles of her worksites.


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        In sum, the record demonstrates that there was no genuine dispute as to

Cowman’s inability to meet the worksite requirement and therefore eligibility for

FMLA benefits.

                                           II.

        We have not determined whether the doctrine of equitable estoppel applies

as a matter of federal common law in the FMLA context. See Dawkins v. Fulton

Cty. Gov’t, 733 F.3d 1084, 1089 (11th Cir. 2013) (declining to decide whether

equitable estoppel applies to the FMLA). However, we have found it unnecessary

to decide whether equitable estoppel doctrine applies in that context where—even

assuming that it does—the plaintiff fails to establish an essential element of her

equitable estoppel claim. Id. at 1089-91 (affirming summary judgment on

plaintiff’s FMLA case based on her failure to establish an essential element of her

equitable estoppel claim, without deciding whether federal common law equitable

estoppel applies to the FMLA).

        A party seeking to invoke the doctrine of equitable estoppel must establish

that:

        (1) the party to be estopped misrepresented material facts; (2) the
        party to be estopped was aware of the true facts; (3) the party to be
        estopped intended that the misrepresentation be acted on or had reason
        to believe that the party asserting the estoppel would rely on it; (4) the
        party asserting the doctrine did not know, nor should it have known,
        the true facts; and (5) the party asserting the estoppel reasonably and
        detrimentally relied on the misrepresentation.


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Id. at 1089. To demonstrate detrimental reliance, a plaintiff must show that the

defendant’s actions caused her to change her position for the worse. Id.

      Assuming that federal common law equitable estoppel applies to FMLA

claims, Cowman’s estoppel argument fails, as she did not establish an essential

element of an equitable estoppel claim—that she reasonably and detrimentally

relied on Northland’s misrepresentation that she was eligible for FMLA leave.

See Dawkins, 733 F.3d at 1089-91. Indeed, Cowman’s medical condition

necessitated emergency surgery on September 25, 2012, nearly two weeks before

her originally scheduled leave date of October 11. There is no indication that this

emergency surgery was contingent upon Northland’s representation that she was

entitled to FMLA leave, or that she changed her position for the worse in light of

Northland’s representation. See id.

      AFFIRMED.




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