United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 19-1456
     ___________________________

              Wendy Thompson

    lllllllllllllllllllllPlaintiff - Appellant

                       v.

   Kanabec County; Mille Lacs County

   lllllllllllllllllllllDefendants - Appellees
      ___________________________

             No. 19-1988
     ___________________________

              Wendy Thompson

    lllllllllllllllllllllPlaintiff - Appellant

                       v.

   Kanabec County; Mille Lacs County

   lllllllllllllllllllllDefendants - Appellees
                    ____________

 Appeals from United States District Court
       for the District of Minnesota
               ____________

         Submitted: March 11, 2020
                                  Filed: May 5, 2020
                                    ____________

Before ERICKSON, GRASZ, and KOBES, Circuit Judges.
                           ____________

ERICKSON, Circuit Judge.

       Wendy Thompson sued her former employer, Kanabec County, for allegedly
interfering with her rights under the Family and Medical Leave Act (“FMLA”), 29
U.S.C. § 2601 et seq., and then allegedly retaliating against her for asserting those
rights. Thompson also alleged multiple state law claims against Kanabec County and
Mille Lacs County. The district court1 granted summary judgment in favor of
Kanabec County on Thompson’s FMLA claim, declined to exercise supplemental
jurisdiction over Thompson’s state law claims, and taxed costs in favor of Kanabec
County. We affirm.

I.    Background

       In reviewing the district court’s grant of summary judgment, we describe the
facts in the light most favorable to Thompson.2 Thompson resides in Mille Lacs
County, Minnesota. She is a licensed registered nurse who began her employment
in October 1991 in neighboring Kanabec County, Minnesota. She was the Director

      1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
      2
        Thompson requests in her reply brief that Mille Lacs County’s entire statement
of the case be stricken because the facts recited do not address issues relevant to Mille
Lacs County. The statements at issue cite to evidence in the record and while they
provide unnecessary detail since the merits of the state law claims were not on appeal,
the court’s analysis of the issues on appeal was not prejudiced or otherwise
influenced by these statements. We deny the request to strike as moot.

                                          -2-
of Public Health for twenty-five years and also the Health and Human Services
Director for the last ten years. As the Health and Human Services Director,
Thompson reported directly to the Kanabec County Board (“Board”). Any decision
about her employment required a majority vote of the five person Board. The County
Coordinator, Patrick Christopherson (“Christopherson”), managed the day-to-day
personnel operations of Kanabec County. He reported directly to the Board.
Although Christopherson advised the Board on personnel issues, he lacked
termination authority.

       Thompson is the mother of eight children. In “mid-2016,” Thompson’s oldest
daughter, who had moved out of the house and was estranged from the family,
allegedly told Thompson that she had been sexually abused at least eight years earlier
by her father, Thompson’s husband. The daughter later reported the alleged abuse to
authorities. On September 28, 2016, Thompson’s husband was arrested and charged
in Mille Lacs County with kidnapping and multiple counts of criminal sexual
conduct. Mille Lacs County opened a child-protection investigation of both
Thompson and her husband. As to Thompson, the investigation pertained to
“threatened sexual abuse”3 of the minor children that were still residing with her.

      Upon the advice of outside counsel, Thompson was placed on paid
administrative leave until “the investigation into [her] alleged misconduct [was]
concluded.” Thompson was required to turn in her cell phone and iPad and told that

       3
        Minnesota law pertaining to the reporting of maltreatment of minors defines
“threatened injury” as “a statement, overt act, condition, or status that represents a
substantial risk of physical or sexual abuse or mental injury.” Minn. Stat. § 626.556,
subd. 2 (p). It includes, in part, “exposing a child to a person responsible for the
child’s care . . . who has: (1) subjected a child to, or failed to protect a child from, an
overt act or condition that constitutes egregious harm.” Id.




                                           -3-
“No Public Health or Family Services should be provided by [Thompson] to any
Kanabec County citizens or staff until further notice from the County Board.”

      On October 21, 2016, Kanabec County’s outside counsel interviewed
Thompson as part of the County’s internal investigation. Topics included
Thompson’s husband’s previous marriage, his criminal history, allegations about her
husband’s pending criminal complaint, allegations made during a closed 2001 Mille
Lacs County investigation, and information about what she witnessed or knew about
any abuse of her children. Outside counsel prepared a report memorializing the
discussion as well as her findings.

       During a closed meeting on November 2, 2016, outside counsel provided the
Board with their findings and recommended that the Board terminate Thompson.
Counsel also advised the Board that the options it had before it included demotion,
retirement, resignation, or delay the decision. The Board chose to delay its decision
pending a determination in the child-protection investigation. Christopherson
notified Thompson that outside counsel had recommended termination, “but if the
child protection investigation concluded in her favor, the Board would probably
reinstate her.” Christopherson told Thompson that because of Thompson’s request
to postpone the Board’s decision, Thompson’s paid administrative leave status was
changed to paid time off (“PTO”). Thompson denied that she made a continuance
request.

       On November 18, 2016, Thompson learned that she needed surgery. She
notified Christopherson on November 21, 2016, that she was under a physician’s care
and required surgery “in the near future.” The next day, Mille Lacs County issued its
determination, finding maltreatment against Thompson for “threatened sexual abuse”
of her two minor children. The determination concluded that Thompson, as a
mandatory reporter, had an obligation to report her daughter’s allegations of sexual



                                         -4-
abuse to authorities. Thompson received the determination notice on November 25,
2016, and she made a timely request for reconsideration.

      On December 7, 2016, Thompson notified Christopherson of the maltreatment
determination and her request for reconsideration. That evening, Christopherson
called Thompson to advise her that the Board scheduled a special session on
December 16, 2016, to discuss the maltreatment determination. Christopherson told
Thompson that the Board would allow her to resign in lieu of termination. Thompson
responded that she did not know what she had done to be terminated. She informed
Christopherson that she had surgery scheduled for December 12, and that her doctor
had recommended four weeks of leave.

       On the morning of December 9, 2016, Thompson provided to Christopherson
a copy of the maltreatment determination along with her request for reconsideration.
Thompson requested an opportunity to speak to the Board about “her side of the
story.” The Board cancelled the special session due to Thompson’s upcoming
surgery and her request for FMLA. In an email to Kanabec County’s outside counsel,
Christopherson accused Thompson of “playing games” and expressed confidence that
the Board would grant him the authority to execute a “resignation/termination”
resolution that he had previously asked counsel to draft.

       On December 16, 2016, Mille Lacs County denied Thompson’s request for
reconsideration of the maltreatment determination.4 On December 19, 2016, a police
officer served Thompson with notice that the Board would address her employment
status during a closed meeting on December 21, 2016. The notice stated that
Thompson’s request for FMLA did not change the fact that the Board had been
considering termination since October. It further stated that if the Board decided not


      4
      On February 23, 2017, Mille Lacs County reversed the maltreatment
determination.

                                         -5-
to terminate her employment or postponed making a decision, Thompson’s FMLA
paperwork would be processed.

      On December 20, 2016, Thompson emailed Christopherson, requesting that the
meeting be postponed. Thompson expressed concern about interference with her
FMLA, and alleged that Kanabec County was discriminating against her because of
her marital status and possibly her religion. She also emailed and hand-delivered a
similar letter to the Board. The Board declined to postpone a decision on
Thompson’s employment status.

       After denying the continuance request, Kanabec County’s outside counsel
spoke with Thompson’s attorney on the telephone. That evening, Thompson’s
attorney sent an email to Kanabec County’s outside counsel thanking her for the call
“in which [they] discussed the County’s intent to proceed with terminating
[Thompson’s] employment.” Thompson’s attorney stated that she had relayed the
suggestion of resignation in lieu of termination to Thompson and that Thompson was
“retiring from her position at Kanabec County, effective immediately.” The County’s
outside counsel responded with a request that Thompson submit a resignation letter
for the Board to accept. That night, at around 8:00 p.m., Thompson emailed
Christopherson a statement that she was retiring from her position, effective January
10, 2017. The Board accepted Thompson’s resignation during its meeting on
December 21, 2016.

       Thompson alleged in her complaint that Kanabec County interfered with her
exercise of rights protected by the FMLA, and then retaliated against her for asserting
those rights. She also alleged state law claims for marital discrimination under the
Minnesota Human Rights Act, a violation of the Minnesota Government Data
Practices Act, and wage payment violations against Kanabec County, as well as
aiding and abetting marital discrimination under the Minnesota Human Rights Act,
a violation of the Minnesota Government Data Practices Act, and tortious interference

                                         -6-
with a contract against Mille Lacs County. The parties filed cross-motions for
summary judgment.

       The district court noted that while it appeared Thompson was not “treated with
the dignity or respect to which she was entitled as a long-time public servant, or as
a human being,” she failed to establish that Kanabec County had interfered with her
FMLA rights or retaliated against her for exercising those rights. The court dismissed
the federal claim with prejudice, declined to exercise supplemental jurisdiction over
the state law claims, and dismissed the state law claims without prejudice. The court
also awarded costs to Kanabec County, as the prevailing party, in the amount of
$2,877.80.

II.   Discussion

       We review the grant of summary judgment de novo, viewing the facts and
drawing all inferences in the light most favorable to Thompson. RSA 1 Ltd. P’ship
v. Paramount Software Assocs., Inc., 793 F.3d 903, 906 (8th Cir. 2015). Summary
judgment is appropriate if “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).

       The FMLA entitles eligible employees to twelve workweeks of unpaid leave
during a twelve-month period under certain enumerated circumstances. 29 U.S.C. §
2612(a)(1). One of the permissible circumstances is the development of “a serious
health condition that makes the employee unable to perform the functions of [her]
position.” Id. The FMLA allows an employee to bring a private right of action if the
employer engages in conduct in violation of the Act, which includes interfering with
an employee’s exercise of her rights, discharging an employee because of the exercise
of her rights, or otherwise discriminating against an employee based on the exercise
of her rights. 29 U.S.C. §§ 2615, 2617(a).



                                         -7-
      1.     Interference

        Thompson asserts that Kanabec County interfered with her FMLA rights when
it did not act on her FMLA leave request, asked her to do work while on leave, failed
to give her notice of her rights under the FMLA, and forced her to choose between
FMLA leave and attending a Board meeting regarding her employment status.
Because the Board refused to postpone discussion of her employment status at its
December 21, 2016, meeting, Thompson felt she had no other viable option other
than to submit her notice of retirement on December 20, 2016.

       To prevail on an interference claim, an employee must show she was (1)
entitled to a benefit under the FMLA, (2) the employer “interfered with” that
entitlement, and (3) the reason for the denial was connected to the employee’s FMLA
leave. Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149, 1160
(8th Cir. 2016) (citation omitted). “Even if successful on this front, a claim for
interference will fail unless the employee also shows that the employer’s interference
prejudiced the employee as the result of a real, remediable impairment of her rights
under the FMLA.” Id. (citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81,
89–90 (2002)).

      Thompson has shown no prejudice resulting from Kanabec County’s delay in
acting on her FMLA request or its failure to give her notice of her FMLA rights.
Thompson was already on administrative leave when she requested FMLA. Even if
Thompson had received proper notice of her rights and Kanabec County acted
immediately on her FMLA request, Kanabec County would have required Thompson
to exhaust her PTO before placing her on unpaid leave. Because Thompson was on
PTO when she requested FMLA and remained on PTO until she resigned, Thompson
cannot show that she suffered prejudice as a result of Kanabec County’s failure to
provide proper notice or its delay in processing her FMLA request. See Massey-Diez,



                                         -8-
826 F.3d at 1160 (explaining that an employee is required to show the employer’s
interference with FMLA rights prejudiced the employee).

       As to Thompson’s next claim that Kanabec County interfered with her FMLA
rights by requiring her to perform work while on medical leave, “the FMLA does not
prohibit ‘an employee’s voluntary and uncoerced acceptance (not a condition of
employment) of a light duty assignment while recovering from a serious health
condition.’” Massey-Diez, 826 F.3d at 1158 (quoting 29 C.F.R. § 825.220(d)). The
“assignments” at issue in this case included participating in telephone calls, supplying
documentation regarding the child-protection investigation, providing information
required under the FMLA, responding to meeting notices, and deciding whether to
attend a meeting about her employment status. We have explained that there is “a
distinction between, on the one hand, receiving nondisruptive communications such
as short phone calls requesting the employee to pass on institutional knowledge or
property as a professional courtesy, and, on the other hand, requiring the employee
to complete work-related tasks or produce work product.” Id. at 1158–59 (citations
omitted). Thompson was neither asked to nor required to complete work-related
tasks. In fact, she was prohibited from performing such tasks when she was placed
on leave. Instead, the activities Thompson was asked to do related to the underlying
child-protection investigation, her FMLA request, and her employment status.
Kanabec County did not impose upon Thompson work-related duties that materially
interfered with her medical leave. Kanabec County was entitled to summary
judgment on Thompson’s interference claim.

      2.     Discrimination

     Thompson asserts the district court ignored “strong evidence” that Kanabec
County acted in a retaliatory manner when, in response to her doctor’s note
documenting a serious medical need, Christopherson wrote to the County’s outside
counsel:

                                          -9-
      I'm attaching both letters from her Dr...of which I JUST received
      yesterday, even though one is dated 11/18 and the other 12/7. This has
      been a Board request/directive to me to give her the opportunity to
      speak; this is why my hands have been tied. But, I will say, I’m fairly
      certain that when I bring this up to them on Wednesday it will be the last
      straw, and I’m fairly certain they will bestow upon me the authority I
      requested to execute this resignation/termination per the resolution you
      drafted me last week. That being said, when you review the doctor’s
      note regarding her surgery, let me know if we should just process her
      under FMLA or not? If something else comes up along the way, I would
      like to get the clock ticking so to speak sooner rather than later.

      Ann, I am completely fed up with dealing with this and I have
      articulated that to my Board, Board Chair, and our County Attorney. W
      is playing games now, and the sooner we are finished the better. I
      apologize if I was short yesterday over email, but as I said FED UP!

(Email dated December 15, 2016).

       Although the parties and the district court refer to Thompson’s claim as a
retaliation claim, it is “more properly characterized” as a discrimination claim.
Jackson v. City of Hot Springs, 751 F.3d 855, 858 n.1 (8th Cir. 2014) (citing
Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005 (8th Cir. 2012)).
Thompson may demonstrate FMLA discrimination by introducing direct or indirect
evidence. “Direct evidence provides a strong causal link between the alleged
discriminatory bias and the adverse employment decision.” McCullough v. Univ. of
Ark. For Med. Scis., 559 F.3d 855, 861 (8th Cir. 2009). “The bias, however, must be
that of the decision maker and must relate to the decisional process.” Massey-Diez,
826 F.3d at1160 (citing Doucette v. Morrison Cty., Minn., 763 F.3d 978, 986 (8th
Cir. 2014)).

      While cases finding direct evidence of discrimination typically involve
statements or actions more blatant than Thompson has presented, even assuming the


                                        -10-
email from Christopherson demonstrated a bias regarding Thompson’s FMLA
request, Christopherson did not have the authority to terminate Thompson. Only a
majority vote of the Board could terminate Thompson’s employment. As such,
Thompson has failed to demonstrate a bias from a decision maker.

      In the absence of direct evidence, we apply the familiar McDonnell Douglas
framework, which first requires a plaintiff to demonstrate a prima facie case.
Massey-Diez, 826 F.3d at 1161. To establish a prima facie case of FMLA
discrimination, an employee must show: (1) she engaged in activity protected under
the Act; (2) she suffered a materially adverse employment action; and (3) a causal
connection existed between the employee’s action and the adverse employment
action. Id. (quoting Hite v. Vermeer Mfg. Co., 446 F.3d 858, 865 (8th Cir. 2006)).

       Thompson has failed to raise a genuine issue of material fact on the second and
third prongs. The adverse employment action Thompson asserts was constructive
discharge. To prove constructive discharge, Thompson must show that Kanabec
County created “working conditions [that were] so intolerable that a reasonable
person in [her] position would have felt compelled to resign.” Garrison v.
Dolgencorp, LLC, 939 F.3d 937, 943 (8th Cir. 2019) (quoting Green v. Brennan, __
U.S. __, 136 S.Ct. 1769, 1776 (2016)). An employer’s insensitive actions do not
necessarily leave a reasonable employee with no choice but to resign. Id.

       Thompson was not working in intolerable conditions at the time she resigned.
Rather, Thompson had been on leave for over two months pending a determination
in a child-protection investigation. The record demonstrates the Board elected to
delay making a decision about Thompson’s employment status until the child-
protection investigation concluded. After the investigation was concluded and a
maltreatment determination was issued, the Board gave notice to Thompson that it
was going to resume discussion of Thompson’s employment status. According to
Thompson’s own allegations in the complaint, Christopherson mentioned to

                                        -11-
Thompson as early as December 7, 2016, that the Board would allow Thompson to
resign. When Thompson asked if termination and resignation were her only options,
Christopherson said they were not the only options.

       The day before the Board was to meet about Thompson’s employment status,
the Board Chair “suggested” to Thompson that she could resign from her position in
lieu of termination. Thompson has not shown that she was compelled to resign, or
that resignation was her only option. Instead, the record demonstrates that Thompson
elected to submit her resignation. Kanabec County’s actions, although perhaps
insensitive in light of the recency of her surgery, do not amount to “intolerable
working conditions.” Thompson cannot meet the second prong of her prima facie
case, which requires a showing that she suffered a materially adverse employment
action.

        Thompson’s prima facie case also fails because she cannot establish a causal
connection between her FMLA request and the Board’s choice to move forward with
its meeting to decide her employment status. An employee’s request for FMLA does
not insulate her from employment decisions that are based on reasons other than
FMLA usage. Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 923 (8th Cir. 2014).
“[I]f the employer demonstrates that it would have terminated the employment had
the employee not exercised her FMLA rights, then the employer faces no liability.”
Id. (citing Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 958–59 (8th Cir. 2012)).

       Kanabec County placed Thompson on administrative leave on October 4, 2016,
the day the County discovered that Thompson was the subject of a child-protection
investigation. On November 2, 2016, Christopherson told Thompson that the Board’s
recommendation was to terminate her employment, but that a final decision would be
made once the child-protection investigation was concluded. It was not until
November 21, 2016, that Thompson informed Christopherson that she needed surgery
in “the near future.” Consistent with the plan relayed to Thompson earlier, the Board

                                        -12-
scheduled a meeting to discuss Thompson’s employment status when it learned of the
maltreatment determination. Thompson is entitled to “no greater protection against
termination for reasons unrelated to the FMLA than she did before taking the leave.”
Estrada v. Cypress Semiconductor (Minn.) Inc., 616 F.3d 866, 871 (8th Cir. 2010).
The undisputed sequence of events does not demonstrate a causal link between
Thompson’s FMLA request and the Board’s decision to proceed with a meeting
regarding whether to terminate Thompson’s employment. The Board’s actions were
based on the maltreatment determination, not on Thompson’s exercise of FMLA
rights. Kanabec County was entitled to summary judgment on Thompson’s
discrimination claim.

      3.     State Law Claims

       We review a district court’s decision to decline to exercise supplemental
jurisdiction under the abuse of discretion standard. Zubrod v. Hoch, 907 F.3d 568,
580 (8th Cir. 2018). The Supreme Court has noted that when all federal law claims
are dismissed, the balance of factors usually points toward declining to exercise
jurisdiction over the remaining state law claims. Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 n.7 (1988). The factors include: judicial economy, convenience,
fairness, and comity. Id. at 350. Thompson has pointed to “no factor that
distinguishes this case from the usual case;” therefore, the balance of factors
demonstrates that Thompson’s state law claims properly belong in state court.
Wilson v. Miller, 821 F.3d 963, 971 (8th Cir. 2016).

      4.     Taxation of Costs

        Thompson contends the district court abused its discretion in awarding costs
to Kanabec County because Kanabec County was not a “prevailing party” and nearly
all of the costs were incurred in defending against the state law claims that the state
court will decide upon remand. Federal Rule of Civil Procedure 54(d)(1)

                                         -13-
presumptively provides for the recovery of costs to the “prevailing party.” In re
Derailment Cases, 417 F.3d 840, 844 (8th Cir. 2005). “We review de novo the legal
issues related to costs and review for abuse of discretion the actual award of costs.”
Dindinger v. Allsteel, Inc., 853 F.3d 414, 431 (8th Cir. 2017) (cleaned up).

       The district court dismissed all of Thompson’s claims – the federal claim with
prejudice and the state claims without prejudice. We have defined “prevailing party”
as “one ‘in whose favor a judgment is rendered, regardless of the amount of damages
awarded.’” Firefighter’s Inst. for Racial Equality ex rel. Anderson v. City of St.
Louis, 220 F.3d 898, 905 (8th Cir. 2000) (quoting Black’s Law Dictionary 1145 (7th
ed. 1999)). A defendant qualifies as a “prevailing party” under Rule 54(d) when the
district court dismisses the plaintiff’s federal claims and declines to exercise
supplemental jurisdiction over the plaintiff’s remaining state law claims. Jefferson
v. Jefferson Cty. Pub. Sch. Sys., 360 F.3d 583, 591 (6th Cir. 2004). Judgment was
rendered in favor of Kanabec County and Thompson has failed to provide any
persuasive authority to overcome the presumption that costs are allowed as a matter
of course to a prevailing party. See Janis v. Biesheuvel, 428 F.3d 795, 801 (8th Cir.
2005) (explaining the losing party bears the burden of overcoming the presumption
that the prevailing party is entitled to costs, meaning that the losing party must
“suggest a rationale under which the district court’s actions constitute an abuse of
discretion.”). The district court did not err in taxing costs in favor of Kanabec
County, nor did it abuse its discretion in the amount it taxed.

III.   Conclusion

       For the foregoing reasons, we affirm.
                       ______________________________




                                        -14-
