           Case: 16-11782   Date Filed: 07/07/2017    Page: 1 of 15


                                                           [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 16-11782
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:14-cv-02741-EAK-TBM



LINDSEY SUTHERLAND,

                                                Plaintiff - Appellant,

versus

BOEHRINGER-INGELHEIM PHARMACEUTICALS, INC.,

                                                Defendant - Appellee.

                       ________________________

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

                               (July 7, 2017)

Before TJOFLAT, MARCUS, and JORDAN, Circuit Judges.
              Case: 16-11782      Date Filed: 07/07/2017   Page: 2 of 15


PER CURIAM:

      Lindsey Sutherland, proceeding pro se, appeals the district court’s grant of

summary judgment in favor of Boehringer-Ingelheim Pharmaceuticals, Inc. on her

employment discrimination claims and state law claims for negligent infliction of

emotional distress and negligent hiring, supervision, and retention. Boehringer, in

response, argues that Ms. Sutherland failed to provide evidence demonstrating a

dispute of material fact related to any of her claims. After review of the record and

the parties’ briefs, we affirm.

                                           I

      Because we write for the parties, we assume familiarity with the underlying

record and recite only what is necessary to resolve this appeal.

      Ms. Sutherland, a 34-year-old Caucasian female with two children, was

hired by Boehringer, a pharmaceutical company, as a sales representative in

November of 2007.       Over the course of her employment with the company,

Ms. Sutherland was supervised by several district managers and she was

continuously unhappy with the treatment and supervision that she received.

      In August of 2010, Ms. Sutherland was promoted to a level two sales

representative by her then-supervisor, John Steadman. Around that same time,

however, Ms. Sutherland alleges that she was discriminated against, harassed, and

denied opportunities for advancement based on her gender and familial


                                           2
               Case: 16-11782       Date Filed: 07/07/2017      Page: 3 of 15


responsibilities. Ms. Sutherland says that under Mr. Steadman’s supervision, she

was not given an opportunity to participate in a training program that could have

led to her eligibility for a higher position, denied materials to learn a second

language by two managers, and issued a poor performance review that affected her

salary and commission structure.

       In June of 2013, Scott Wyman began supervising Ms. Sutherland. At some

point after Mr. Wyman took over, Ms. Sutherland informed the company that she

had been diagnosed with mitochondrial disorder (a neuromuscular disease that

impairs her ability to work), which she claims was caused by her work

environment, her supervisors’ inappropriate comments, and Boehringer’s failure to

prevent pervasive harassment against her during her employment. From October

of 2013 to April of 2014, Ms. Sutherland took a short-term disability leave of

absence, and she received full pay and benefits during that time. Ms. Sutherland

returned to work for only a couple of days after her six-month leave of absence

ended, and she has been on long-term disability ever since.1

       In September of 2014, Ms. Sutherland sued Boehringer in Florida state

court, alleging employment discrimination based on her gender under the Florida

Civil Rights Act, see Fla. Stat. § 760.10, and hostile work environment (Count I),

1
  Since Ms. Sutherland’s temporary leave ended, she has received over $3000 in Social Security
disability benefits per month and additional disability benefits from her insurance company. In
addition, her entire family stayed enrolled in Boehringer’s health benefit plan until her formal
termination in August of 2016.
                                               3
                Case: 16-11782       Date Filed: 07/07/2017       Page: 4 of 15


disability discrimination under the FCRA (Count II), retaliation in violation of the

FCRA and Fla. Stat. § 448.102 (Count III), negligent infliction of emotional

distress (Count IV), and negligent hiring, retention, and supervision (Counts V and

VI).   Boehringer removed the case to federal court and moved for summary

judgment on all of her claims. Recognizing that Ms. Sutherland had not supported

her claims by submitting deposition transcripts, requests for admissions,

interrogatory answers, affidavits in opposition to the company’s motion for

summary judgment, or any evidence that met the admissibility requirements under

Federal Rule of Civil Procedure 56(c), the district court entered summary judgment

in favor of Boehringer in March of 2016. 2

       Ms. Sutherland now appeals.

                                                II

       We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the nonmoving party. See Schwarz v.

City of Treasure Island, 544 F.3d 1201, 1211 (11th Cir. 2008).                         Summary

judgment is appropriate when, after adequate time for discovery, the record shows

that there is no genuine issue of material fact and the moving party is entitled to

2
  We note that Ms. Sutherland was represented by counsel in the district court. Although
Ms. Sutherland did not file a separate statement of disputed facts and failed to authenticate
documents that she relied on, the district court reviewed the entire record before granting
Boehringer’s motion for summary judgment, including Ms. Sutherland’s complete deposition
transcript. See D.E. 38 at 4 n.2. The district court also fully considered each of Ms. Sutherland’s
claims, including a hostile work environment claim that was listed in the gender discrimination
count rather than in a separate count in her complaint. See id. at 2 n.1.
                                                4
              Case: 16-11782     Date Filed: 07/07/2017     Page: 5 of 15


judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). A party asserting that a fact is genuinely disputed must

support her assertion by “citing to particular parts of materials in the record,

including depositions, documents, electronically stored information, affidavits or

declarations, stipulations . . . , admissions, interrogatory answers, or other

materials.” Fed. R. Civ. P. 56(c). The substantive law identifies the facts that are

material to a claim, and only disputes over facts that might affect the outcome of

the suit will preclude the entry of summary judgment. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, no genuine issue of fact exists

“unless the non-moving party establishes, through the record presented to the

court, that it is able to prove evidence sufficient for a jury to return a verdict in its

favor.” Cohen v. United Am. Bank of Cent. Fla., 83 F.3d 1347, 1349 (11th Cir.

1996) (citation omitted). Although we generally construe a pro se litigant’s filings

and briefs liberally, “issues not briefed on appeal by a pro se litigant are deemed

abandoned.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

                                          III

      Title VII makes it unlawful for an employer to discriminate against any

individual with respect to employment based on the individual’s race, color,

religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a)(1). The Florida Civil

Rights Act similarly prohibits discrimination on the basis of race, color, religion,


                                           5
             Case: 16-11782     Date Filed: 07/07/2017   Page: 6 of 15


sex, and national origin, but it also covers age, handicap, and marital status. See

Fla. Stat. § 760.10. Because the FCRA was patterned after Title VII, “decisions

construing Title VII are applicable when considering claims under the [FCRA].”

Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998).

      A prima face case under Title VII generally requires an individual “to show

that: (1) she is a member of a protected class; (2) she was subjected to an adverse

employment action; (3) her employer treated similarly situated employees not of

the protected class more favorably; and (4) she was qualified for the job.” Evans v.

Books-A-Million, 762 F.3d 1288, 1297 (11th Cir. 2014).         Once an individual

creates an inference of discrimination by making out a prima facie case, we use the

burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802–03 (1973). The burden therefore shifts to the employer to articulate

a legitimate, non-discriminatory reason for the challenged employment action. See

id. at 802. If the employer meets this burden, the inference of discrimination drops

out of the case, and the plaintiff bears the burden of demonstrating that the

employer’s proffered reasons for its decision were pretextual.       See Vessels v.

Atlanta Indep. Sch. Sys., 408 F.3d 763, 767–68 (11th Cir. 2005).

      Ms. Sutherland first argues that the district court erred in granting summary

judgment because she put forward sufficient evidence to establish a prima facie

case of employment discrimination based on her gender, a hostile work


                                         6
              Case: 16-11782     Date Filed: 07/07/2017   Page: 7 of 15


environment, and her disability. Alternatively, she contends that the district court

erred in granting the company’s summary judgment motion on her other state law

claims. We will briefly discuss each claim, but because we find no genuine

dispute as to any material fact and conclude that Boehringer is entitled to judgment

as a matter of law, we affirm the district court’s grant of summary judgment.

                                          A

      Ms. Sutherland first argues that she established a prima facie case of gender

discrimination (Count I). Although Ms. Sutherland is a member of the class of

people protected under Title VII and the FCRA, she has not established that she

suffered an adverse employment action—a prerequisite for any Title VII

anti-discrimination claim. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232,

1238 (11th Cir. 2001). An adverse employment action is “a significant change in

employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits.” Id. at 1239 (emphasis in original). Ms. Sutherland claims that she

suffered three potential adverse employment actions.

      First, she says that she was denied entry into a training program that could

have led to her eligibility for a promotion. Construing the record in the light most

favorable to Ms. Sutherland, we accept that she would not have been eligible for

another promotion without completing the certified training program. The record,


                                          7
               Case: 16-11782       Date Filed: 07/07/2017      Page: 8 of 15


however, does not demonstrate that Ms. Sutherland actually applied for the training

program. Instead, she testified in her deposition that after receiving a promotion to

level two sales representative, Mr. Steadman included the training program in her

2011 employee development plan subject to certain conditions like “rais[ing] [her]

sales, increase[ing] her sales ability and persuasiveness and learn[ing] [her

products.” See D.E. 31-1 at 69. Given that Ms. Sutherland did not cite evidence

demonstrating that she was actually denied entry into the training program or that

she completed the goals Mr. Steadman gave her, we agree with the district court

that her alleged lack of training was not a sufficient adverse employment action.3

       Second, Ms. Sutherland says that she asked both Mr. Steadman and

Mr. Wyman to grant her access to the library in order to learn a second language.

Ms. Sutherland does not explain why this amounts to an adverse employment

action other than saying that some of her customers speak Spanish. In addition, the

record indicates that Ms. Sutherland did not submit the required form to obtain

access to the library. See D.E. 31-1 at 19.

       Third, Ms. Sutherland claims that a negative performance review affected

her pay in 2012. But, as the district court pointed out, Ms. Sutherland did not cite

any record evidence to corroborate her claim that she received a low raise that year

3
  Furthermore, Ms. Sutherland has not shown that entry into the training program was offered to
individuals outside of her protected class. Instead, she claims that a woman with lower sales
than her (and that did not have children at the time) was treated more favorably and that a man
with lower sales than her was given a “pass” and received a better yearly evaluation.
                                              8
             Case: 16-11782     Date Filed: 07/07/2017   Page: 9 of 15


and admitted she did not fully understand her commission structure. See D.E. 31-1

at 4, 37–38. Accordingly, the district court did not err in granting summary

judgment as to Count I.

                                         B

      In addition to her claim for gender discrimination under the FCRA,

Ms. Sutherland alleged in Count I that Boehringer created a hostile work

environment that interfered with her emotional and physical well-being. In order

to establish a hostile work environment claim, Ms. Sutherland was required to put

forth evidence showing: (1) that she belongs to a protected group; (2) that she was

subjected to unwelcome harassment; (3) that the harassment was based on a

protected characteristic; (4) that the harassment was “sufficiently severe or

pervasive” to alter the terms and conditions of employment and create a

discriminatorily abusive working environment; and (5) that her employer was

responsible under either a theory of vicarious or of direct liability. See Miller v.

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

      A hostile work environment claim generally turns on whether the

harassment is “severe or pervasive,” and this element has an objective and

subjective component. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.

1999) (en banc). In order to determine whether the alleged harassment objectively

altered the terms or conditions of an individual’s employment, we consider four


                                         9
             Case: 16-11782    Date Filed: 07/07/2017   Page: 10 of 15


factors: “(1) the frequency of the conduct; (2) the severity of the conduct; (3)

whether the conduct is physically threatening or humiliating, or a mere offensive

utterance; and (4) whether the conduct unreasonably interferes with the employee’s

job performance.” Id.

      Viewing the record in the light most favorable to Ms. Sutherland, we agree

with the district court that she was a member of a protected group and that she put

forth evidence showing that her supervisors made unwelcome comments regarding

protected characteristics like her gender and familial responsibilities. For example,

Ms. Sutherland testified in her deposition that Mr. Steadman often told her to “pay

attention to [her] kids that were home” and to consider “all of the things that [she]

could do being a stay at home mom.” D.E. 31-1 at 19–20.

      With regard to the fourth requirement, however, Ms. Sutherland did not

provide evidence demonstrating that the harassing comments were sufficiently

“severe or pervasive.”    Ms. Sutherland says generally that several managers

“t[ook] their shots at [her] when they could,” Br. of Appellant at 16, without citing

any evidence in the record. As to frequency, Ms. Sutherland testified that the

comments occurred on field rides with Mr. Steadman (which took place

approximately every six weeks), but the record does not specify how many times

Mr. Steadman made inappropriate comments during the field rides. Compare

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 60 (1986) (finding that employee’s


                                         10
               Case: 16-11782       Date Filed: 07/07/2017      Page: 11 of 15


testimony that manager made regular sexual advances toward her in front of other

employees, forced unwelcome sexual encounters between 40 and 50 times,

followed her into the restroom, and forcibly raped her on several occasions was

sufficiently severe to support a hostile work environment claim). The record also

does not include allegations or evidence showing that she was physically

threatened or publicly humiliated, and Ms. Steadman has not provided evidence

showing that she was unable to perform her job responsibilities. We therefore

agree with the district court that the record does not support Ms. Sutherland’s

hostile work environment claim.

       On appeal, Ms. Sutherland also apparently re-characterizes her retaliation

claim (Count III) as a retaliatory hostile work environment claim. Because she did

not raise that argument in the district court, we decline to consider it now. See

Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). In

addition, she makes only a few passing references to retaliation and has therefore

abandoned that issue here. See Timson, 518 F.3d at 874. Cf. Access Now, 385

F.3d at 1330 (explaining that the rules of appellate procedure require an appellant’s

brief to “contain, under appropriate headings and in the order indicated . . . a

statement of the issues presented for review”). 4


4
  In her initial brief, Ms. Sutherland makes a couple of isolated remarks that she was retaliated
against for reporting her supervisors’ behavior to human resources, but does not cite evidence in
the record or lay out reasons for denying summary judgment on that claim. Even if she had
                                               11
               Case: 16-11782       Date Filed: 07/07/2017       Page: 12 of 15


       We conclude that summary judgment was properly granted in favor of

Boehringer on Counts I and III.

                                               C

       Ms. Sutherland also argues that the district court erred in granting summary

judgment       on      her      disability      discrimination       claim       (Count       II).

“[D]isability-discrimination claims under the FCRA are analyzed using the same

framework as [American with Disabilities Act] claims.” Holly v. Clairson Indus.,

L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007).                 The ADA prohibits covered

employers from discriminating against a qualified individual on the basis of a

disability. 42 U.S.C. § 12112(a). To establish a prima facie case of disability

discrimination under the ADA, an employee must allege that (1) she is disabled;

that (2) she is a qualified individual; and that (3) she was subjected to unlawful

discrimination because of her disability. See Holly, 492 F.3d at 1255–56.

       As the district court pointed out, Ms. Sutherland only offered her own

self-serving testimony and a single unauthenticated physician’s report to establish

that she is disabled. Although Ms. Sutherland referenced certain medical records

in her deposition testimony, she did not provide them at the summary judgment

stage. Because Ms. Sutherland bore the burden of alleging a disability and she did




properly briefed the retaliation issue, it fails for the same reasons as her gender discrimination
claim because she did not suffer an adverse employment action in this case.
                                               12
               Case: 16-11782        Date Filed: 07/07/2017       Page: 13 of 15


not provide sufficient evidence to infer that she was disabled, the district court did

not err in granting summary judgment on Count II. Moreover, Ms. Sutherland

testified that she is no longer able to perform any work. That admission, if true,

would mean that she is not a qualified individual for an ADA claim. See Holly,

492 F.3d at 1256 (explaining that a qualified individual is “someone with a

disability who, ‘with or without reasonable accommodation, can perform the

essential functions of the employment position’”) (citation omitted). 5

                                                IV

       Ms. Sutherland’s final arguments relate to her state law tort claims for

negligent infliction of emotional distress (Count IV) and negligent hiring,

retention, and supervision (Counts V and VI).

       Florida law generally requires a plaintiff to show that emotional distress

claims flow from physical injuries sustained in an impact. See Bodine v. Fed.

Kemper Life Assur. Co., 912 F.2d 1373, 1376 (11th Cir. 1990); Florida Dep’t of

Corr. v. Abril, 969 So. 2d 201, 206 (Fla. 2007). Ms. Sutherland asserts that she

established a prima facie case of negligent infliction of emotional distress because

her supervisors’ conduct over several years created a work environment “so hostile

that it degraded [her] neuro-muscular disease” to the point where any stimuli could


5
 We recognize that the ADA uses the same burden-shifting framework as Title VII employment
discrimination claims, but we decline to conduct the remainder of that analysis because we agree
with the district court that Ms. Sutherland did not establish a prima facie case of disability here.
                                                13
             Case: 16-11782    Date Filed: 07/07/2017   Page: 14 of 15


result in hospitalization or a comatose state.       See Br. of Appellant at 18.

Ms. Sutherland apparently tries to invoke a narrow exception to the impact rule by

arguing that the psychological trauma that she experienced resulted in physical

injuries. In order to qualify for this (rare) exception, Ms. Sutherland was required

to show that (1) she suffered a physical injury; (2) her injury was caused by a

psychological trauma; (3) she was “involved in some way in the event causing [a]

negligent injury to another;” and (4) she had a close personal relationship to the

directly injured person. See Watters v. Walgreen Co., 967 So. 2d 930, 932 (Fla. 1st

DCA 2007). Here, Ms. Sutherland only offered her own conclusions about her

experiences and resulting injuries, but has made no allegation that she witnessed

someone that is close to her suffer a direct injury. We agree with the district court

that her allegations of physical injury based on her supervisors’ comments is too

tenuous to serve as an impact and that she has not met the exception in this case.

      As for Ms. Sutherland’s claims of negligent hiring, supervision, and

retention, the only argument she advances is that others had complained about two

of her supervisors and that Boehringer decided to retain both managers despite

those complaints. Like her filings in the district court, Ms. Sutherland’s appellate

briefs do not cite to specific portions of the record that can be used to support

genuine issues of fact related to the elements of her claims for negligent hiring,

supervision, or retention. See, e.g., Malicki v. Doe, 814 So. 2d 347, 362 (Fla.


                                         14
               Case: 16-11782        Date Filed: 07/07/2017        Page: 15 of 15


2002) (setting out the requirements for a prima facie case of negligent hiring

including an employer’s duty to investigate an employee, to consider reasons

stemming from an investigation as to why the employee may not be suited for a

particular position, and the employer’s subsequent decision to hire the employee

regardless of those reasons). We conclude that the district court properly granted

summary judgment on Counts IV, V, and VI.

                                                IV

       Ms. Sutherland failed to offer evidence to establish a prima facie case for

each of her employment discrimination claims. Moreover, she has not shown that

a disputed fact exists related to the essential elements of her state law tort claims.

We therefore affirm the district court’s grant of summary judgment in favor of

Boehringer.6

       AFFIRMED.




6
  We decline to consider Ms. Sutherland’s new evidence and new argument that the district court
judge should be recused because she did not file a motion to supplement the record or to recuse
the district court judge below. See Ross v. Kemp, 785 F.2d 1467, 1474–75 (11th Cir. 1986)
(highlighting that “[w]e have refused to supplement the record when a party has filed [new]
material without requesting leave of this court or has appended material to an appellate brief
without filing a motion to supplement”). Cf. 28 U.S.C. § 144 (setting out the requirements for
recusal including that a party should “file[] a timely and sufficient affidavit that the judge before
whom the matter is pending has a personal bias or prejudice either against him or in favor of any
adverse party”).
                                                 15
