                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                               No. 06-10205                     JULY 3, 2006
                           Non-Argument Calendar              THOMAS K. KAHN
                                                                  CLERK
                         ________________________

                   D. C. Docket No. 01-00785-CV-J-32MCR

EMORY ANTHONY KINSEY,


                                                             Plaintiff-Appellant,

                                     versus

CITY OF JACKSONVILLE,

                                                             Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                                  (July 3, 2006)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     Emory Anthony Kinsey appeals, pro se, the orders of the district court that
dismissed part of Kinsey’s Sixth Amended Complaint, granted summary judgment

in favor of the City of Jacksonville and against Kinsey’s Seventh Amended

Complaint, and denied Kinsey’s motion for reconsideration. Kinsey filed a

complaint that alleged that the City violated the American with Disabilities Act and

the Family Medical Leave Act because the City failed to accommodate Kinsey’s

disability, created a hostile work environment, and retaliated against Kinsey when

he reported these violations. We affirm.

                                I. BACKGROUND

      From 1996 until 2002, Kinsey was employed by the City as a Worker in the

Department of Public Works. Kinsey worked outdoors, laid sandbags, dug around

pipes, and operated saws. Since 1988, Kinsey has suffered from hypertension,

which does not allow him to work for more than 15 minutes in temperatures over

80 degrees.

      In July 2000, Kinsey informed the City that he needed an accommodation

because of his health. On August 2, 2000, the City informed Kinsey that he could

not work until he received a full release from his doctor and his absence would be

considered FMLA leave. Kinsey filed a complaint with the Equal Employment/

Equal Access Office of the City that day. Kinsey was examined by both his

doctor, Kathleen Casey, and the Medical Review Officer of the City, Terry W.



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Kuhlwein. Both doctors stated that overexposure to sun and heat could cause

Kinsey to faint. On October 25, 2000, the City allowed Kinsey to return to work

“as long as the temperature stays at or below 80 degrees Fahrenheit.” Kinsey again

requested that the City accommodate him by assigning him to a climate-controlled

environment.

      On January 26, 2001, Kinsey filed a complaint with the Florida Commission

on Human Relations. In May 2001, Kinsey fainted while working on a dump truck

and was diagnosed with heat exhaustion by Kuhlwein. That summer, Kinsey took

a second leave of absence under the FMLA.

      Throughout July 2001, the City attempted to find another position for

Kinsey. The Personnel Services Manager met with Kinsey on several occasions to

find another position that accommodated Kinsey’s medical condition. The City

offered Kinsey a position as a Worker in the Canning Center, but Kinsey denied

receiving this offer. The City attempted to place Kinsey as an Police Emergency

Communications Officer, but Kinsey failed the qualification examination. On

October 16, 2001, Kinsey returned to the Department of Public Works.

      In a letter dated February 14, 2002, the City advised Kinsey to search for

other employment because it was “the time of year when the average daily

temperature reaches 80 degree[s] Fahrenheit.” Kinsey met again with the



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Personnel Services Manager to find another position. The City also arranged for

Kinsey to attend a one-day computer course. On March 23, 2002, Kinsey filed a

second complaint with the FCHR that alleged discrimination. On July 31, 2002,

Kinsey fainted while operating a dump truck and caused the truck to overturn. He

continued to work for the City that summer.

      On September 12, 2002, Kinsey requested an accommodation and filed a

complaint with the Equal Employment/Equal Access Office that alleged a hostile

work environment and failure to accommodate his disability. During that month,

Kinsey also met with representatives of the City who attempted to find another

position for him. On October 16, Kinsey resigned “because of medical and

emotional reasons.”

      Kinsey filed five complaints in the district that were either amended by

Kinsey or dismissed by the district court for Kinsey’s failure to effect service. In

his Sixth Amended Complaint, Kinsey alleged hostile work environment, failure to

accommodate, and retaliation violations under the ADA and violations of the

FMLA. The City moved to dismiss for failure to state a claim. The district court

dismissed the hostile work environment and failure to accommodate claims

because Kinsey had failed to allege that he was disabled under the ADA. The

district court also dismissed the allegations under the FMLA, but allowed Kinsey



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to amend his complaint regarding the allegations of retaliation under the ADA.

      In his Seventh Amended Complaint, Kinsey alleged that because he filed

complaints with the EEOC and FCHR, the City (1) sent several threatening letters

to him, (2) refused to reassign him, (3) forced him to take FMLA leave, (4) forced

him to drive a dump truck, (5) forced him to sign documents, and (6)

constructively discharged him by “ma[king] it virtually impossible for [him] . . . to

continue on the job.” The City moved for summary judgment.

      The district court granted the motion for summary judgment. The district

court concluded that Kinsey had established a prima facie case based on the alleged

constructive discharge and the threatening letters sent by the City. The district

court also concluded that the City had established legitimate non-retaliatory

reasons for the allegedly adverse actions because Kinsey was unable to perform the

duties of his job due to his medical condition and the City had attempted to find

another position for Kinsey. The district court concluded that Kinsey failed to

establish pretext because Kinsey failed to show that he was eligible for another

available position with the City. After the district court entered summary judgment

and Kinsey filed his notice of appeal, Kinsey moved the district court for

reconsideration, and the district court denied the motion.




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                          II. STANDARD OF REVIEW

      We review the grant of a motion to dismiss de novo “accepting the

allegations in the complaint as true and construing them in the light most favorable

to the nonmoving party.” Kizzire v. Baptist Health Sys., Inc., 441 F.3d 1306, 1308

(11th Cir. 2006). We review a grant of summary judgment by the district court de

novo and apply the same legal standards as the district court. State Farm Fire &

Cas. Co. v. Steinberg, 393 F.3d 1226, 1229 (11th Cir. 2004) (citing Iraola & CIA,

S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1283 (11th Cir. 2003)). We review

for an abuse of discretion the denial of a motion to reconsider. United States v.

Simms, 385 F.3d 1347, 1356 (11th Cir. 2004).

                                 III. DISCUSSION

      Kinsey presents three arguments. First, Kinsey contends that the district

court erred when it dismissed his alleged claims under the ADA and the FMLA.

Second, Kinsey argues that the district court erred when it granted summary

judgment to the City regarding Kinsey’s claim of retaliation under the ADA.

Third, Kinsey argues that the district court abused its discretion when it denied his

motion for reconsideration. We address each in turn.

        A. The District Court Correctly Dismissed Kinsey’s Alleged Claims
                           Under the ADA and FMLA.

      The district court correctly dismissed Kinsey’s allegations that the City

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failed to accommodate his disability under the ADA and violated the FMLA.

Kinsey alleged that the City violated the ADA, but he failed to allege a “disability”

that “substantially limits one or more of [his] major life activities.” 42 U.S.C. §

12102(2)(A); see Reid v. Heil Co., 206 F.3d 1055, 1061 (11th Cir. 2000). Kinsey

also alleged that the City violated the FMLA, but Kinsey failed to allege that the

City either (1) interfered with his FMLA benefits, or (2) retaliated against him

under the FMLA. See Russell v. N. Broward Hosp., 346 F.3d 1335, 1340 (11th

Cir. 2003). Kinsey failed to state a claim for relief under both the ADA and the

FMLA.

       B. The District Court Did Not Erroneously Grant Summary Judgment
                                   to the City.

      Kinsey argues that the district court erred when it granted summary

judgment to the City and against his claim of retaliation under the ADA. The

district court concluded that although Kinsey established a prima facie case of

retaliation, the City provided legitimate non-retaliatory reasons. Because Kinsey

failed to establish that the reasons of the City were pretextual, the City was entitled

to summary judgment.

      “We assess retaliation claims under the same framework we employ for

retaliation claims arising under Title VII.” Stewart v. Happy Herman’s Cheshire

Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997). “To establish a prima facie

                                           7
case of retaliation, a plaintiff must show: (1) statutorily protected expression; (2)

adverse employment action; and (3) a causal link between the protected expression

and the adverse action.” Id. Kinsey engaged in statutorily protected expression

because he filed complaints with the FCHR or EEOC on August 2, 2000, January

26, 2001, and March 23, 2002. The district court concluded that the City took an

adverse employment action against Kinsey when it required him to take FMLA

leave without pay and constructively discharged Kinsey because these actions

impacted the “term, conditions, or privileges” of Kinsey’s employment. Gupta v.

Fla Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000).

      “Once a prima facie case is established, the burden then shifts to the

defendant employer to come forward with legitimate non-discriminatory reasons

for its actions that negate the inference of retaliation.” Stewart, 117 F.3d at 1287.

“[T]he defendant’s burden of rebuttal is exceedingly light . . . . [T]he defendant

need not persuade the court that its proffered reasons are legitimate; the

defendant’s burden is merely one of production, not proof.” Perryman v. Johnson

Prods. Co., 698 F.2d 1138, 1142 (11th Cir. 1983). The City proffered two

legitimate non-discriminatory reasons for its alleged adverse actions. The City

required Kinsey take unpaid FMLA leave because overexposure to the sun and

heat posed a danger to Kinsey’s health. The City also made several attempts to



                                           8
assign him to another position, but Kinsey did not qualify for other available

positions.

      Kinsey failed to produce any evidence that the legitimate non-retaliatory

reasons presented by the City were pretextual. “The plaintiff must . . . demonstrate

that it will be able to establish at trial that the employer’s proffered

non-discriminatory reasons are a pretextual ruse designed to mask retaliation.”

Stewart, 117 F.3d at 1287. Because Kinsey failed to proffer any evidence to

establish the “weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons,” the district court

correctly granted summary judgment to the City. Combs v. Plantation Patterns,

Meadowcraft, Inc., 106 F.3d 1519, 1538 (11th Cir. 1997), cert. denied, 522 U.S.

1045, 118 S. Ct. 685 (1998).

      C. We Lack Jurisdiction to Consider the Denial of Kinsey’s Motion for
                                Reconsideration.

      We lack jurisdiction to review the denial of Kinsey’s motion for

reconsideration because Kinsey moved for reconsideration after he filed his notice

of appeal. “[T]he appeal from a final judgment draws in question all prior

non-final orders and rulings which produced the judgment. Barfield v. Brierton,

883 F.2d 923, 930–31 (11th Cir. 1989). “We . . . cannot exercise our appellate




                                            9
jurisdiction over” orders that had not yet been entered at the time the notice of

appeal was filed. McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir. 1986).

                                IV. CONCLUSION

      The orders of dismissal and summary judgment are

      AFFIRMED.




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