             Case: 12-11951   Date Filed: 09/30/2013   Page: 1 of 19


                                                                       [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                        __________________________

                               No. 12-11951
                        __________________________

                     D.C. Docket No. 1:10-cv-01718-WCO

MARLENE DAWKINS,

                                                              Plaintiff-Appellant,

                                     versus

FULTON COUNTY GOVERNMENT, State of Georgia,
VIJAY NAIR,
STEPHANIE YEARBY,
ANDREW STOKES,
LOUIS D’SOUZA, each in their official and individual capacities,

                                                           Defendants-Appellees.

                        __________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       __________________________
                             (September 30, 2013)
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Before WILSON and COX, Circuit Judges, and VOORHEES, * District Judge.

PER CURIAM:

       Marlene Dawkins challenges on appeal the district court’s order granting

summary judgment for the Defendants Fulton County, Andrew Stokes, Vijay Nair,

Stephanie Yearby, and Louis D’Souza (collectively “Defendants”) on her Family

Medical Leave Act (“FMLA”) retaliation claim.                   Dawkins claims that the

Defendants demoted her from a ninety-day temporary assignment in retaliation for

leaving work to care for an ailing uncle. While Dawkins admits that this absence

was not covered under the FMLA, she nevertheless contends that the Defendants

are equitably estopped under federal common law from disputing her FMLA

eligibility because her manager approved her FMLA leave. Because Dawkins fails

to establish a prima facie case of federal common law equitable estoppel, we

affirm the district court’s order without deciding whether federal common law

equitable estoppel applies to the FMLA.

                    I. FACTS AND PROCEDURAL HISTORY

       Fulton County employed Marlene Dawkins as a Building Maintenance

Manager. On September 26, 2007, Fulton County temporarily reassigned Dawkins



       *
        Honorable Richard L. Voorhees, United States District Judge for the Western District of
North Carolina, sitting by designation.

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to the position of Building Mechanic Manager for ninety days. A temporary ten

percent salary increase accompanied the new position.        Two weeks after the

reassignment, on October 18, 2007, Dawkins learned that her uncle was terminally

ill and sent Andrew Stokes, her manager, an email requesting emergency leave

with the subject line “FMLA.”       Stephanie Yearby, Fulton County’s Deputy

Director of General Services, and Barnett Jones, the Fulton County Personnel

Director, were copied on the email. The email reads:

      “I am requesting emergency leave from October 19, 2007 to
      November 2, 2007, to assist my dad, Kenneth Dawkins, while he
      deals with issues surrounding his terminally ill brother. Additionally I
      am requesting for a[n] FMLA package to be sent to: [Florida
      address].” (Dkt. 94-24.)

      Two hours later, Stokes replied “Approved.” (Dkt. 65-17 at 1.) Neither

Yearby nor Jones was copied on Stokes’s response. The parties dispute whether

Stokes was approving Dawkins’s request for emergency leave or whether Stokes

meant that Dawkins’s leave was covered by the FMLA. In the district court,

Dawkins did not testify that she understood Stokes’s response to be an FMLA

eligibility determination or that she relied on his email when deciding to leave

work. Yearby testified that if she had read Dawkins’s email when she received it,

she would not have understood it as a request for FMLA leave. After reading the

email during her deposition, she said Dawkins was “requesting a packet, but no,


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not requesting FMLA leave. She was requesting emergency leave.” (Dkt. 83-3 at

51.) The request was not an FMLA request, Yearby said, because Fulton County

can only approve leave as FMLA leave after receiving “paperwork that [an

employee] would take to a doctor.” (Id. at 50.)

      Under Fulton County’s FMLA policy, an employee must complete an

application and obtain written certification from a health care provider before

FMLA leave can be approved. According to the policy, FMLA leave may be

granted for: (1) the birth of a child; (2) the placement of a child for adoption or

foster care; (3) to care for a spouse, child, or parent with a serious health condition;

and (4) to care for an employee’s own serious health condition.             Care for a

terminally ill uncle is not covered.

      Four days after Dawkins’s email, on October 22, 2007, Fulton County

rescinded Dawkins’s temporary reassignment due to her absence.                Dawkins

returned to work on November 5, 2007, and was reinstated to her original position

as Building Maintenance Manager. She did not question this decision or complain

about Fulton County rescinding her reassignment.          Almost five months later,

Dawkins filled an EEOC complaint on an unrelated issue. During the course of the

EEOC investigation, she also complained about being removed from the temporary

assignment. The investigator recommended that Fulton County pay Dawkins in


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full for the wages she would have made in addition to her normal salary if the

temporary assignment had not been rescinded. Fulton County then paid Dawkins

$827.90. 1

      As a result of these events, and others not relevant on appeal, Dawkins filed

a complaint against the Defendants alleging constitutional violations, Title VII

retaliation, FMLA retaliation, and intentional infliction of emotional distress.

Specifically, Dawkins contended that Fulton County rescinded her ninety-day

temporary promotion in retaliation for leaving work to care for her ailing uncle.

Dawkins voluntarily dismissed one of the constitutional claims and the intentional

infliction of emotional distress claim. The Defendants then moved for summary

judgment on all claims, and Dawkins moved for partial summary judgment on her

FMLA retaliation claim. In response to the Defendants’ summary judgment brief,

Dawkins argued for the first time that “[d]efendants should be estopped from

denying that Ms. Dawkins’[s] leave was FMLA qualifying where, one, there is no

evidence that Stokes’[s] approval was not valid and two, where they never gave

Ms. Dawkins any notice that her leave had not been counted as FMLA.” (Dkt. 73-




      1
          Although Dawkins does not dispute that she has already received compensatory
damages, at oral argument Dawkins contended that under the FMLA she should also receive
statutory damages in the amount of $827.90 plus interest. This is apparently the amount in
controversy in this case.
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1 at 23.) This quotation represents the entirety of Dawkins’s estoppel argument in

the district court.

         The district court referred the summary judgment motion to a magistrate

judge.       The magistrate judge issued a report and recommendation that

recommended granting the Defendants’ summary judgment motion on all claims.

On the FMLA retaliation claim, the magistrate judge reasoned that Dawkins’s

absence did not qualify as FMLA leave. The magistrate judge recognized that the

Eleventh Circuit has never applied equitable estoppel to expand FMLA coverage to

unqualified absences, and that in any event the elements of estoppel were not met

in this case because Stokes was not aware of the true facts regarding Dawkins’s

FMLA eligibility when he sent the email saying she was “approved.”2 Dawkins

objected to the magistrate judge’s determination that Stokes was not aware of the

true facts regarding her FMLA eligibility.             Dawkins did not challenge the

magistrate judge’s conclusion that equitable estoppel had never been applied to the

FMLA in the Eleventh Circuit. With some modifications not relevant to the

FMLA claim, the district court adopted the report and recommendation and




         2
         As discussed infra, one element of federal common law equitable estoppel is that “the
party to be estopped was aware of the true facts.” See Busby v. JRHBW Realty, Inc., 513 F.3d
1314, 1326 (11th Cir. 2008).
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granted the Defendants’ summary judgment motion on all claims.            Dawkins

appeals.

                              II. ISSUE ON APPEAL

      Dawkins contends that the district court erred in granting the Defendants

summary judgment on her FMLA retaliation claim because the Defendants should

be equitably estopped from denying her FMLA eligibility.

                         III. STANDARD OF REVIEW

      We review a district court’s grant or denial of summary judgment de novo

viewing all evidence in the light most favorable to the non-moving party. Dolphin

LLC v. WCI Communities, Inc., 715 F.3d 1243, 1247 (11th Cir. 2013). “All

reasonable inferences arising from the undisputed facts should be made in favor of

the nonmovant, but an inference based on speculation and conjecture is not

reasonable.” Avenue CLO Fund, LTD v. Bank of Am., NA, 723 F.3d 1287, 1294

(11th Cir. 2013). The moving party bears the burden of establishing the absence of

a genuine issue of material fact and that it is entitled to judgment as a matter of

law. Id. Once the moving party meets this burden, the non-moving party bears the

burden of presenting evidence on each essential element of its claim, such that a

reasonable jury could rule in its favor. Id. To meet this burden, the nonmoving

party must “go beyond the pleadings and . . . designate specific facts showing that


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there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106

S. Ct. 2548, 2553 (1986) (citations omitted).

                                IV. DISCUSSION

      Dawkins contends that the Defendants retaliated against her in violation of

the FMLA by rescinding her ninety-day temporary promotion because she took

leave to care for her ailing uncle. “To prove FMLA retaliation, [Dawkins] must

show that [her] employer intentionally discriminated against [her] for exercising an

FMLA right.” Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1267 (11th Cir.

2008). Recognizing that the FMLA does not cover her absence, Dawkins does not

contend on appeal that she “exercise[ed] an FMLA right.” Rather, she argues her

FMLA retaliation claim is meritorious, despite being outside the statute’s

protection, because the Defendants are equitably estopped from denying her

eligibility for FMLA leave. While we have never decided that equitable estoppel

can extend FMLA coverage to otherwise uncovered absences from work, the

elements of federal common law equitable estoppel in this circuit are: “(1) the

party to be estopped misrepresented material facts; (2) the party to be estopped was

aware of the true facts; (3) the party to be estopped intended that the

misrepresentation be acted on or had reason to believe the party asserting the

estoppel would rely on it; (4) the party asserting the estoppel did not know, nor


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should it have known, the true facts; and (5) the party asserting the estoppel

reasonably and detrimentally relied on the misrepresentation.” Busby v. JRHBW

Realty, Inc., 513 F.3d 1314, 1326 (11th Cir. 2008).

      Dawkins does not explain why we should create a federal common law

equitable estoppel to extend FMLA coverage.             Furthermore, Dawkins only

contends on appeal that she meets the second, “awareness of true facts,” element of

equitable estoppel and has never addressed the other four elements. After careful

review of the record, and with the benefit of oral argument, we conclude that

Dawkins does not meet the “reasonable and detrimental reliance” element.

Because Dawkins does not meet at least this element, we do not discuss the

remaining four elements in this opinion and need not decide at this time whether

equitable estoppel should apply to the FMLA.

A.   The district court correctly granted summary judgment since Dawkins
does not contend that she reasonably and detrimentally relied on any
misrepresentation.

      Under federal common law, a party asserting estoppel must show reasonable

and detrimental reliance on a misrepresentation. Dawkins did not contend in the

district court, and does not contend on appeal, that she relied on any

misrepresentation.




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      To show detrimental reliance, the plaintiff must generally show that the

defendant’s actions caused her to change her position for the worse. Heckler v.

Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 61, 104 S. Ct. 2218,

2224 (1984). While detrimental reliance can still exist when a misrepresentation

causes the plaintiff to refrain from taking mitigating action, the plaintiff must still

assert a causal link and show damages from the misrepresentation. Nat’l Cos.

Health Ben. Plan v. St. Joseph’s Hosp. of Atlanta, Inc., 929 F.2d 1558, 1574 (11th

Cir. 1991), abrogated on other grounds by Geissal v. Moore Med. Corp., 524 U.S.

74, 118 S. Ct. 1869 (1998). Additionally, a plaintiff cannot reasonably rely on the

misrepresentation of an agent if the plaintiff knows the agent is unauthorized.

Heckler, 467 U.S. at 64–65, 104 S. Ct. at 2226. In Heckler, the Supreme Court

held that a Medicare participant could not reasonably rely on an intermediary’s

reimbursement advice when the participant knew or should have known that the

intermediary lacked authority to make policy determinations. Id.

      In this case, Dawkins never asserts that she relied on any misrepresentation,

much less that her reliance was both reasonable and detrimental. In contrast, the

evidence in the record suggests Dawkins did not rely on any misrepresentation.

Although Dawkins worked in Fulton County, Georgia, she asked Fulton County to

send the FMLA eligibility paperwork to her uncle’s address in Florida. (Dkt. 94-


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24.) This means that Dawkins had already decided that she would leave work and

go to Florida before she had even requested paperwork to determine whether her

leave was covered under the FMLA. Consequently, Dawkins did not rely on any

misrepresentation. Rather, she had already planned to leave work regardless of her

FMLA eligibility and before receiving Stokes’s reply email. See Dobrowski v. Jay

Dee Contractors, Inc., 571 F.3d 551, 557–58 (6th Cir. 2009) (holding that a

plaintiff did not rely on the defendant’s misrepresentation when he had already

planned to take leave and scheduled a surgery before the defendant incorrectly told

him the leave was covered under the FMLA).

      Furthermore, even assuming for the sake of argument that Stokes did

misrepresent Dawkins’s FMLA eligibility and that Dawkins relied on his

misrepresentation, the evidence in the record suggests Dawkins’s reliance would

have been unreasonable. Dawkins had previously taken FMLA leave. (Dkt. 94-34

at 31.)   In her email to Stokes, Dawkins specifically requested an “FMLA

package” in addition to emergency leave. (Dkt. 94-24.) Dawkins testified in her

deposition that she knew Fulton County’s protocol required her to complete a

packet of paperwork with her doctor for FMLA leave.           (Dkt. 94-34 at 30.)

Dawkins was correct. Fulton County’s policy requires completion of the FMLA

paperwork and a doctor’s certification before FMLA determinations can be made.


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(Dkt. 87-1 at 23.) Because Dawkins was familiar with Fulton County’s FMLA

policy, any reliance on Stokes’s alleged email approval would have been

unreasonable.     By her own admission, Dawkins knew that completion of the

paperwork and the doctor’s certification were necessary for an FMLA leave

eligibility determination.

       We may affirm the district court’s decision “on any ground supported by the

record.” Kernel Records Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012).

Accordingly, the district court correctly granted Fulton County’s summary

judgment motion because Dawkins failed to provide evidence of an essential

element of her equitable estoppel claim.

       As to the individual defendants, the district court correctly held in

accordance with our prior decision in Wascura v. Carver, 169 F.3d 683 (11th Cir.

1999), that public officials sued in an individual capacity were not employers

subject to individual liability under the FMLA. 3

B.     Because the district court’s summary judgment order is correct, we
need not decide whether federal common law equitable estoppel is applicable
to the FMLA.




       3
         Dawkins’s brief on appeal does not challenge the district court’s decision that the
individual defendants were not employers subject to liability under the FMLA. Nevertheless,
Dawkins made them parties to this appeal.
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      The relief Dawkins requests would require this court to create a new federal

common law equitable estoppel applicable to the FMLA. The times when we

should create new federal common law are “few and restricted.” O’Melveny &

Myers v. FDIC, 512 U.S. 79, 87, 114 S. Ct. 2048, 2055 (1994). Resolution of this

issue in this case would require us to answer questions that have not been briefed

by the parties and are not necessary to the resolution of this case. “Deciding real

issues presented by real parties in real time focuses judicial decision making in

ways that making speculative pronouncements about hypothetical questions

cannot.” McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1315 (11th Cir. 1998)

(Carnes, J. concurring). This issue is more appropriately addressed at a later time.

See Martin, 543 F.3d at 1266 (declining to consider whether equitable estoppel

applied to the FMLA when the estoppel elements were not met); Brungart v.

BellSouth Telecomms., Inc., 231 F.3d 791, 797 n.4 (11th Cir. 2000) (same);

McDonald’s Corp., 147 F.3d at 1315 (Carnes, J. concurring) (noting that dicta is

less reliable and declining to join dicta in an issue of first impression).

                                 V. CONCLUSION

      Dawkins failed to provide evidence or even assert that she relied on any

misrepresentation. Assuming for the sake of argument that federal common law

equitable estoppel applies to the FMLA, Dawkins has not asserted a prima facie


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case of estoppel.   Thus, the district court correctly granted the Defendants’

summary judgment motion and we affirm.

     AFFIRMED.




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WILSON, Circuit Judge, dissenting:

        I dissent for two reasons.

        First, the majority, “[a]ssuming for the sake of argument that federal

common law equitable estoppel applies to the FMLA,” affirms summary judgment

because Dawkins fails to demonstrate that she reasonably and detrimentally relied

upon the representation provided to her that she was entitled to take FMLA leave.

I disagree. Dawkins produced sufficient evidence of reasonable and detrimental

reliance to survive summary judgment. The record reflects that on October 18,

2007, Dawkins sent an e-mail to Andrew Stokes, her supervisor, with the subject

line “FMLA.” In the e-mail, Dawkins requested time off so that she could help her

father take care of her ill uncle. She copied Stephanie Yearby and Barnett Jones,

the General Services Human Resources Director. The e-mail read:

        I am requesting emergency leave from October 19, 2007 to November
        2[,] 2007, to assist my dad, Kenneth Dawkins, while he deals with
        issues surrounding his terminally ill brother. Additionally, I am
        requesting an FMLA package to be sent to:

        [Dawkins’s temporary address].

        Two hours after receiving the request, Stokes responded in a one-word e-

mail:

        “Approved.”



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      Dawkins took her leave and subsequently lost her reassignment to a higher

paying position. Viewing this evidence in the light most favorable to Dawkins,

there is a genuine issue of fact as to whether she reasonably and detrimentally

relied upon her employer’s misrepresentation about her entitlement to take FMLA

leave. Any disagreement about the inferences that should be drawn from the facts

should be resolved by the ultimate fact-finder. And any reasonable doubts about

the facts at the summary judgment stage should be resolved in favor of Dawkins,

the non-movant. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir.),

reh’g denied, 193 F.3d 525 (1999).

      Secondly, rather than determining whether equitable estoppel is viable in the

FMLA context and clarifying its elements before applying them, the majority

determines that Dawkins has not satisfied the hypothetical elements of a

hypothetical claim. Were it clear that Dawkins had failed to meet an essential

element of the claim, the majority’s attempt to avoid making new law would be

appropriate. Because this case turns on a genuine dispute of fact about one of the

essential elements of Dawkins’s estoppel claim, however, this case cannot be

resolved without clarifying the law in this circuit.

      All of the other circuits to address the issue have concluded that the

equitable estoppel doctrine applies in FMLA employment discrimination cases


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when its elements are met. Those circuits include the Second, Fifth, Sixth and

Eighth. See Dobrowski v. Jay Dee Contractors, Inc., 571 F.3d 551, 554 (6th Cir.

2009) (“Our circuit recognizes that in certain circumstances equitable estoppel

applies to employer statements regarding an employee’s FMLA eligibility . . . .”);

see also Murphy v. Fed Ex Nat’l LTL, Inc., 618 F.3d 893, 899–901 (8th Cir. 2010)

(holding that the doctrine is available to prevent a company from challenging an

employee’s right to bring a claim under the FMLA and noting that all the doctrine

requires is that the “employee reasonably believed, based on the totality of the

circumstances, that the employer’s approval was for FMLA leave”); Minard v. ITC

Deltacom Commc’ns, Inc., 447 F.3d 352, 359 (5th Cir. 2006) (holding that if the

employee reasonably relies on a representation by the employer and acts to her

detriment, an employer who, “without intent to deceive makes a definite but

erroneous representation” to the employee that the requested leave is FMLA

eligible, and who has reason to believe that the employee would rely on that

representation, may be estopped from arguing that the leave was not eligible); Duty

v. Nortan-Alcoa Proppants, 293 F.3d 481, 493–94 (8th Cir. 2002) (affirming the

district court’s decision to equitably estop an employer from contesting an

employee’s FMLA eligibility); Kosakow v. New Rochelle Radiology Assocs., P.C.,

274 F.3d 706, 726 (2d Cir. 2001) (affirming the district court’s application of


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equitable estoppel to “an employer who remains silent when its employee

announces that she plans to take medical leave,” because the silence “mislead[s]

that employee into believing that she is protected by the FMLA”). 1 Consistent

with these circuits, we should take this opportunity to both recognize that equitable

estoppel applies in FMLA cases and clarify its elements.2




       1
          The First, Seventh, Ninth, and Tenth Circuits have considered but ultimately refused to
apply the doctrine because its elements were not satisfied. See Peters v. Gilead Scis., Inc., 533
F.3d 594, 598–99 (7th Cir. 2008) (noting that Seventh Circuit caselaw “suggested equitable
estoppel might, in an appropriate case,” be available (internal quotation marks omitted)); Bass v.
Potter, 522 F.3d 1098, 1106 (10th Cir. 2008); Plumley v. S. Container, Inc., 303 F.3d 364, 374
(1st Cir. 2002); Marchisheck v. San Mateo County, 199 F.3d 1068, 1076–77 (9th Cir. 1999).
        2
          Beyond the fundamental issue of whether equitable estoppel is available, we must also
determine whether “awareness of true facts by the party to be estopped” is an element of the
claim in the FMLA context. Outside of the FMLA context, this court recognized a five-element
equitable estoppel claim. See Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1326 (11th Cir.
2008) (including awareness of the true facts by the party to be estopped as an element). In
Martin v. Brevard County Public Schools, without announcing whether equitable estoppel was
applicable to FMLA claims, this court assumed that the five elements recognized in Busby would
be necessary to make out the claim. 543 F.3d 1261, 1266 (11th Cir. 2008). Other circuits that
have recognized equitable estoppel in FMLA cases eliminate at least one element from Busby.
See, e.g., Dobrowski, 571 F.3d at 556 (“The two versions of the estoppel rule contain a manifest
difference. The Supreme Court’s version of the rule does not require the party asserting the
estoppel to show that the other party was aware of the ‘true facts’ or that the other party intended
for the statement to be relied upon . . . . The better approach is to follow the requirements for
equitable estoppel endorsed by the Supreme Court in Heckler [v. Community Health Services of
Crawford County, Inc., 467 U.S. 51, 59, 104 S. Ct. 2218, 2223 (1984)].”).
        Even if it is assumed that the element is necessary, the district court failed to consider
whether Stokes reasonably should have known that Dawkins was ineligible for FMLA leave by
“constructive knowledge.” See Meyers v. Fid. & Cas. Co. of N.Y., 759 F.2d 1542, 1548 n.9 (11th
Cir. 1985) (stating that “[t]he person against whom the estoppel is to apply must have actual or
constructive knowledge of the facts” (emphasis added) (quoting Choat v. Rome Indus., Inc., 462
F. Supp. 728, 730 (N.D. Ga. 1978))); see also Trane Co. v. Whitehurst-Lassen Constr. Co., 881
F.2d 996, 1005 (11th Cir. 1989) (“A party asserting an estoppel theory must have neither
knowledge of, nor a reasonable means or opportunity of obtaining knowledge of, the facts in
dispute.”). The Fifth Circuit has described it as “more than apprehension that something might
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       I would reverse the summary judgment and remand for further proceedings.




be wrong but less than actual knowledge.” Luckett v. Delta Airlines, Inc., 171 F.3d 295, 299–
300 (5th Cir. 1999) (internal quotation marks omitted).
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