                                                               [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-11028         ELEVENTH CIRCUIT
                                                                      OCT 4, 2011
                                        Non-Argument Calendar
                                                                      JOHN LEY
                                      ________________________          CLERK

                                D.C. Docket No. 5:10-cv-00635-CLS

MARTRICIA CHAPMAN,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellant,

                                                versus

U.S. POSTAL SERVICE,
POSTMASTER GENERAL, U.S. POSTAL SERVICE,

llllllllllllllllllllllllllllllllllllllll                           Defendants-Appellees.

                                     ________________________

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

                                           (October 4, 2011)

Before MARCUS, WILSON and BLACK, Circuit Judges.

PER CURIAM:

         Martricia Chapman, a black female, appeals the dismissal of her pro se second

amended complaint, which alleged harassment, discrimination, fraud, and violations
of the Family Medical Leave Act (“FMLA”). The district court dismissed her action

after concluding that she failed to state a claim upon which relief could be granted.

On appeal, she: (1) questions whether the district court erred in reviewing her

exhibits, and in considering the length of abuse, harassment, and intimidation; and

(2) asserts that she presented enough evidence to show that her employer, the United

States Postal Service (“USPS”), violated the law. After thorough review, we affirm.

      We liberally construe pro se briefs and pleadings. Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998). Issues not briefed on appeal by a pro

se litigant are deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.

2008). Issues merely identified but not argued on the merits are deemed waived.

Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).

      We review de novo a district court’s decision to dismiss a complaint for failure

to state a claim under Fed.R.Civ.P. 12(b)(6). Am. United Life Ins. Co. v. Martinez,

480 F.3d 1043, 1056-57 (11th Cir. 2007). The complaint is viewed in the light most

favorable to the plaintiff, and all of the plaintiff’s well-pleaded facts are accepted as

true. Id. at 1057. A district court may properly dismiss a complaint if it rests only on

conclusory allegations, unwarranted factual deductions, or legal conclusions

masquerading as facts. Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th

Cir. 2003).

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      A complaint must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). If a complaint fails to

state a claim upon which relief may be granted, the district must dismiss it.

Fed.R.Civ.P. 12(b)(6). Although the complaint does not need detailed factual

allegations, it must provide the grounds for relief, which “requires more than labels

and conclusions, [or] a formulaic recitation of the elements of a cause of action.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be

enough to raise a right to relief above the speculative level.” Id. at 555. In order to

state a claim, the plaintiff needs to allege enough facts to make the claim “plausible

on its face.” Id. at 570.

      The Supreme Court has held that “the tenet that a court must accept as true all

of the allegations contained in a complaint is inapplicable to legal conclusions.”

Ashcroft v. Iqbal, 556 U.S. __, 129 S.Ct. 1937, 1949 (2009). In considering a motion

to dismiss, a court should eliminate any legal conclusions contained in the complaint,

and then determine whether the factual allegations, which are assumed to be true, give

rise to relief. Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir.

2010). Further, “courts may infer from the factual allegations in the complaint

‘obvious alternative explanation[s],’ which suggest lawful conduct rather than the




                                           3
unlawful conduct the plaintiff would ask the court to infer.” Id. (quoting Iqbal, 556

U.S. at ___, 129 S.Ct. at 1951-52).

       When a viable cause of action includes fraud as an element, the plaintiff “must

state with particularity the circumstances constituting fraud . . . .” Fed.R.Civ.P. 9(b).

The plaintiff must allege: (1) the precise statements, documents, or misrepresentations

made; (2) the time, place, and person responsible for the statement; (3) the content

and manner in which these statements misled the plaintiff; and (4) what the

defendants gained by the alleged fraud. Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194,

1202 (11th Cir. 2001).

       First, we are unpersuaded by Chapman’s FMLA claim.1 Under the FMLA,

eligible employees are entitled to up to 12 workweeks of unpaid leave during any

12-month period for “a serious health condition that makes the employee unable to

perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D).

To be “eligible,” an employee must have worked for the employer for at least 12

months and 1,250 hours. Id. § 2611(2)(A). To protect the availability of these rights,


       1
          We note, as an initial matter, that Chapman’s brief actually makes no argument that the
district court improperly dismissed any of her claims. She does not discuss the order, except to
say that the court found her claims indecipherable, and she cites no legal reasons as to why her
complaint stated a claim. Nevertheless, even assuming that Chapman’s statements are sufficient
to preserve appellate review of the final dismissal order, we must affirm since Chapman failed to
comply with Rule 8 or state a claim under Rule 12(b)(6) for all of her claims, and failed to allege
sufficient facts to establish subject matter jurisdiction for an FTCA claim, as discussed below.

                                                 4
the FMLA prohibits employers from interfering with, restraining, or denying “the

exercise of or the attempt to exercise” any rights guaranteed under the Act. Id. §

2615(a)(1). We have recognized “that § 2615(a) creates two types of claims:

interference claims, in which an employee asserts that [her] employer denied or

otherwise interfered with [her] substantive rights under the Act, and retaliation

claims, in which an employee asserts that [her] employer discriminated against [her]

because [she] engaged in activity protected by the Act.” Hulbert v. St. Mary’s Health

Care System, Inc., 439 F.3d 1286, 1293 (11th Cir. 2006) (quotation omitted). To

state a claim for interference, an employee must allege that she was denied a benefit

to which she was entitled under the FMLA. See id. “To establish a prima facie case

of retaliation, the plaintiff must show that: (1) [she] engaged in statutorily protected

activity; (2) [she] experienced an adverse employment action; and (3) there is a causal

connection between the protected activity and the adverse action.” Id. at 1297.

      Here, Chapman’s second amended complaint did not show that she was entitled

to FMLA relief because: (1) she did not show that she was entitled to a benefit under

the FMLA, as is required for a claim of interference; and (2) she did not allege an

adverse employment action, as is required for a claim of retaliation. See id. at 1293,

1297. She therefore has failed to state a claim under the FMLA.




                                           5
      We also reject Chapman’s discrimination claim. Title VII of the Civil Rights

Act of 1964 establishes that it is an “unlawful employment practice” to discriminate

against an employee on the basis of “race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e-2(a). It also prohibits retaliating against an employee because she has

“opposed . . . an unlawful employment practice.” Id. § 2000e-3(a). Title VII

coverage extends to federal employees under certain circumstances. See id. §

2000e-16.

      Among other requirements, in order to establish a discrimination or retaliation

claim, a plaintiff must allege that she suffered an adverse employment action.

Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). A claim for disparate

treatment also requires an adverse employment action. Maniccia v. Brown, 171 F.3d

1364, 1368 (1999). Except for retaliation claims, in order to establish an adverse

employment action, a plaintiff must allege that she suffered “a serious and material

change in the terms, conditions, or privileges of employment.” Crawford, 529 F.3d

at 970-71 (citation and emphasis omitted). With regard to a retaliation claim, a

plaintiff must show that “a reasonable employee would have found the challenged

action materially adverse, which . . . means it well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.” Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotations omitted). We have

                                           6
held that a message from a supervisor that the plaintiff’s “job was in jeopardy” was

not enough to establish a retaliation claim. Howard v. Walgreen Co., 605 F.3d 1239,

1245 (11th Cir. 2010). A plaintiff may also make a claim for harassment that rises

to the level of actionable discrimination, which requires, among other elements, a

showing that she has been subject to unwelcome harassment. Miller v. Kenworth of

Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).

      Here, Chapman failed to state a claim under Title VII, as she did not

sufficiently allege an adverse employment action for discrimination, disparate

treatment, or retaliation purposes. See Crawford, 529 F.3d at 970; Maniccia, 171

F.3d at 1368. As for her discrimination and disparate treatment claims, she alleged

within the exhibits to the second amended complaint that she received a letter of

warning and had an investigative interview, but did not allege that any of these

actions resulted in a serious and material change in the terms, conditions, or

privileges of employment. Crawford, 529 F.3d at 970. As for her retaliation claim,

her allegations are only conclusory and speculative, since they do not contain enough

facts to show that a reasonable employee would be dissuaded from engaging in

protected activities. Twombly, 550 U.S. at 555; White, 548 U.S. at 60. And with

regard to her claim for harassment, her general allegations of harassment were no

more than labels or conclusions, and her only specific claim -- that she had to attend

                                          7
an investigative interview -- did not go beyond a speculative level, as she did not

show how one interview equated to unwelcome harassment. Twombly, 550 U.S at

555; Miller, 227 F.3d at 1275. Therefore, Chapman failed to state a claim for relief

under Title VII.

      Next, we find no merit in her Americans with Disabilities Act (“ADA”) claim.

The ADA prohibits employers from discriminating against persons with disabilities.

42 U.S.C. § 12101. In order to establish a claim under the ADA, a plaintiff must

allege a disability. See Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th

Cir. 2007). The ADA defines “disability” as: (1) a physical or mental impairment that

substantially limits one or more of the major life activities of the individual; (2) a

record of such impairment; or (3) being regarded as having an impairment. 42 U.S.C.

§ 12102(1).

      Chapman also failed to establish a claim under the ADA because she did not

sufficiently allege a disability. Within the second amended complaint and attached

exhibits, the only statements regarding disability were that a physical or mental

disability was a factor of discrimination, and that she received the warning letter, in

part, due to a disability. She did not specify whether she had a physical or a mental

disability, what the disability was, or how it impaired a major life activity. See 42

U.S.C. § 12102(1)(A). She also did not provide any record of an impairment within

                                          8
her second amended complaint, or allege that her supervisors believed that she had

an impairment. See id. § 12102(1)(B)-(C). Therefore, Chapman also failed to state

a claim for relief under the ADA.

      Finally, we are unpersuaded by her Federal Tort Claims Act (“FTCA”) claim.

Under the FTCA, the federal government has waived its immunity regarding

negligent or wrongful actions committed by its employees within the scope of their

official duties. 28 U.S.C. § 1346(b)(1). Plaintiffs may file a claim under the Act

where “the United States, if a private person, would be liable to the claimant in

accordance with the law of the place where the act of omission occurred.” Id. Under

the FTCA, “[a] tort claim against the United States shall be forever barred unless it

is presented in writing to the appropriate Federal agency within two years after such

claim accrues . . . .” Id. § 2401(b). We have held that the exhaustion requirements

are jurisdictional, and that the failure to adequately allege exhaustion in the complaint

is grounds for dismissal for lack of subject matter jurisdiction. Dalrymple v. United

States, 460 F.3d 1318, 1324-26 (11th Cir. 2006).

      In this case, assuming that the FTCA -- which has only waived the

government’s immunity for negligent and wrongful actions committed by its

employees -- is the proper vehicle for Chapman to sue the federal government for

fraud, she provided no information concerning exhaustion under this statute. 28

                                           9
U.S.C. §§ 1346(b)(1), 2401(b). Because she made no allegations and provided no

documentation that she presented the fraud allegations to the USPS as required by the

statute, she failed to establish that the district court had jurisdiction to hear a claim

under the FTCA. See Dalrymple, 460 F.3d at 1324-26. To the extent she was

attempting to file the claim under a different provision, her claim still fails because

the second amended complaint did not allege the specific omissions, statements, or

misrepresentations made; the place of the omissions and misrepresentations; or what

the Defendants gained from the omissions and misrepresentations. See Ziemba, 256

F.3d at 1202. Therefore, she did not sufficiently allege a claim of fraud under

Fed.R.Civ.P. 9.

      Accordingly, we affirm.

      AFFIRMED.




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