           Case: 18-13384   Date Filed: 10/04/2019   Page: 1 of 12


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 18-13384
                         Non-Argument Calendar
                       ________________________

                  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.




       1
           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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