                                                         [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                 FILED
                                                       U.S. COURT OF APPEALS
                              No. 08-10678               ELEVENTH CIRCUIT
                                                              OCT 6, 2008
                          Non-Argument Calendar
                                                          THOMAS K. KAHN
                        ________________________
                                                               CLERK

                    D.C. Docket No. 06-60966-CV-DLG

TANGIA MCCORMICK,

                                                      Plaintiff-Appellant-
                                                      Cross-Appellee,

                                   versus

ARCHSTONE-SMITH COMMUNITIES, LCC,
a Florida foreign limited liability company,

                                                      Defendant-Appellee-
                                                      Cross-Appellant.

                        ________________________

                Appeals from the United States District Court
                    for the Southern District of Florida
                       ________________________

                             (October 6, 2008)

Before TJOFLAT, BLACK and COX, Circuit Judges.

PER CURIAM:
      Plaintiff Tangia McCormick was employed as a leasing consultant by

Defendant Archstone-Smith Communities, LLC (“Archstone”“) when she suffered

complications of pregnancy. McCormick took a leave of absence and received short-

term disability payments. When she exhausted her short-term disability benefits,

McCormick was still unable to return to work and began receiving payments pursuant

to the long-term disability policy (“the Policy”) that was a benefit of her employment.

She received ten weeks of payments pursuant to the Policy. When, to substantiate a

request for additional benefits, she provided the administrator of the Policy (not

Archstone) with medical information, the administrator determined that McCormick

was not medically eligible for additional benefits. Also, while she was on leave,

Archstone sold the property where McCormick had worked and terminated

McCormick’s employment.

      McCormick sued Archstone for violations of the Employment Retirement

Income Security Act (“the ERISA claim”) and violations of the Pregnancy

Discrimination Act and the Florida Civil Rights Act (together, “the discrimination

claims”), alleging that Archstone discriminated against her on the basis of her

pregnancy when it denied her continued disability benefits and terminated her

employment.




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         The district court granted summary judgment to Archstone on all counts of the

complaint. McCormick appeals. Archstone cross-appeals, complaining that a finding

in the district court’s order is erroneous and prejudicial to Archstone and must be

corrected.

         We address McCormick’s appeal first. On the ERISA claim, we find no error

in the district court’s finding that Archstone is not a fiduciary for purposes of the

ERISA statute and, therefore, is not a proper defendant to this claim. Thus, we affirm

the summary judgment granted Archstone on Count I of McCormick’s complaint. On

the discrimination claims, we also affirm the summary judgments granted Archstone.

McCormick presented no evidence to rebut Archstone’s nondiscriminatory reason for

terminating her employment. (R.2-81 at 16.) Neither did she present evidence that

it was untrue that termination of her disability benefits was based, as the administrator

explained, on her medical condition. (R.2-81 at 17.) Because we affirm the summary

judgements, we find no abuse of discretion in the district court’s order awarding

costs.

         With regard to Archstone’s cross-appeal, there is an issue of jurisdiction. The

district court granted summary judgment to Archstone. Therefore, as the prevailing

party, Archstone has no standing to appeal the judgment. Agripost, Inc. v. Miami-

Dade County, 195 F.3d 1225, 1230 (11th Cir. 1999). This case does not fall within

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the narrow exception to the rule for prevailing parties who are prejudiced by the

collateral estoppel effects of a court’s order. Id. Archstone’s concern that the district

court’s finding that the Policy is facially discriminatory may harm it in future

litigation is unwarranted. There can be no collateral estoppel effect of that finding

because that determination was not critical to the judgment in this case. As the

district court found, and as we hold above, even if the Policy is facially

discriminatory, McCormick’s claims of discrimination fail. Archstone’s cross-appeal

is dismissed for lack of jurisdiction.

      JUDGMENT AFFIRMED; CROSS-APPEAL DISMISSED.




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