                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             APRIL 27, 2009
                              No. 08-14170                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                 D. C. Docket No. 05-01463-CV-T-27-TBM

KAREN E. KEELER,



                                                           Petitioner-Appellant,

                                   versus

FLORIDA DEPARTMENT OF HEALTH,
Division of Disability Determinations,

                                                         Respondent-Appellee.


                        ________________________

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

                               (April 27, 2009)

Before BIRCH, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
      Karen E. Keeler (“Keeler”) appeals pro se the district court’s grant of

summary judgment in favor of her former employer, the Florida Department of

Health (“Department”), based upon the court’s finding that Keeler failed to

establish a prima facie case of discrimination under the Americans with

Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). After review of the record

and the parties’ briefs, we AFFIRM.

                                   I. BACKGROUND

      Keeler began working at the Department’s Division of Disability

Determinations as a Records Technician in September 2003. R1-32 at 187. She

was directly supervised by Mae Harper, who was supervised by Bonnie Cain. Id.

at 24-25. On 15 September 2004, Keeler told Cain that she wanted to transfer to a

vacant Senior Clerk position. Id. at 24, 26-27. During this conversation, Keeler

began to cry and explained to Cain that her current position was too stressful and

that her unit was “being forced to squeeze in nine hours of work into an eight-hour

day.” Id. at 27-29. Keeler did not at that time disclose to Cain that she suffered

from any disabilities. Id. at 27. Cain told Keeler that she was doing fine in her

current position, but indicated that she would speak to her supervisor, Alan

Shaffren, about transferring Keeler to the open position. Id. at 25, 29, 44-45.

      In a 16 September 2004 follow-up e-mail to Cain, Keeler reiterated her



                                          2
interest in the Senior Clerk position and stated that “[t]he stress and volume

(regardless of it’s [sic] simplicity) of work expected from [her current] position is

more often than not, overwhelming.” Id., Exh. G. The next day, Keeler sent Cain

another e-mail, in which she indicated that she was “capable of maintaining [her]

position for an extended period of time just encase [sic] you have an alternative

position that you would prefer me in as opposed to the senior clerk position.” Id.,

Exh. H. Sometime thereafter, Cain informed Keeler that Shaffren had denied

Keeler’s request for a job transfer because he “[did]n’t like to demote his

employees” and because they believed Keeler was “doing fine” in her position as a

records technician. Id. at 25, 64.

      On Friday, 22 October 2004, Harper and Cain met with Keeler to discuss

Keeler’s work performance. Id. at 105-06. During this meeting, Keeler admitted

that she had been working overtime in order to complete her work assignments. Id.

at 112 & Exh. A. Harper and Cain reminded Keeler that she was not to work

overtime without prior approval and instructed her to adhere to her scheduled work

hours. Id. at 105-06, 112 & Exh. A. Keeler testified at her deposition that she

“broke down” and started crying during the meeting. Id. at 207-08. When she

stated “I can’t believe that this is happening to me,” Cain responded, “Well, that’s

what happens when you stir the pot.” Id. at 208. Later that same day, Cain



                                           3
observed Keeler, who was scheduled to work from 7:30 A.M. to 4:00 P.M., leaving

the building at approximately 4:40 P.M. Id. at 117 & Exh. C. The following

Monday, Cain confronted Keeler about working until 4:40 P.M. after being

specifically directed not to work overtime without prior approval. Keeler denied

that she was working after 4:00 P.M. and told Cain that she was in the restroom

and was making personal telephone calls. See id., Exh. J at 3. Keeler did not

report the extra time she worked on 22 October on her time sheet for the pay period

from 22 October through 4 November. Id.

      On 26 October 2004, Harper issued a memorandum of counseling to Keeler

in which she again advised Keeler that “[w]orking unapproved overtime constitutes

insubordination” and that “violating agency policies and procedures . . . will not be

tolerated.” Id. at Exh. A. The memorandum also noted that Keeler had been given

fourteen cases to input into the computer system on 22 October, but had only

completed seven cases by the end of the day. Id. Keeler was warned that failure to

complete her assigned tasks in a timely manner “constitutes poor performance,

inefficiency and could also be negligence.” Id.

      In her written response, Keeler disclosed that she suffered from Attention

Deficit Hyperactivity Disorder (“ADHD”), a “neurological disability,” and

Obsessive Compulsive Disorder (“OCD”), a “mental disability,” and took daily



                                          4
medication for both disabilities. Id., Exh. D; see also id. at 66.1 She stated that the

recent discussions regarding her work performance were causing “an even greater

amount of stress and pressure . . . which [was] hindering [her] performance even

further,” and explained that she had requested a transfer to avoid the “current

stressful position.” Id. at Exh. D. When asked during her deposition to identify

the major life activities that were significantly impaired by her disabilities, Keeler

stated only that she was unable to “stay organized” and to “keep track of things”

and admitted that she was able to bathe herself, brush her own teeth, and perform

normal personal grooming. Id. at 159-64.

       Keeler further admitted that she did not at any time prior to the counseling

meeting with Cain and Harper disclose to her supervisors that she suffered from

any disabilities. Id. at 27, 44, 162, 209-10. She claimed that Cain nevertheless

should have been aware of her disabilities based on the e-mails she sent to Cain in

which she indicated that her job was “stressful” and that the “stress and volume” of

work was “overwhelming.” Id. at 66-67, 203-04. According to Keeler, these were

“buzz words” that “indicated an underlying problem that should have been

addressed.” Id. Keeler also averred that Cain should have been aware of her

disabilities because Keeler cried when she requested a transfer to a lower position


       1
        The Senior Clerk position was no longer available at the time Keeler submitted her
response. Id. at 157.

                                               5
on 15 September 2004 and because she had a habit of taking copious notes, which,

according to Keeler, was a symptom of her OCD, ADD/ADHD, and anxiety. Id. at

66, 201.

       On 10 December 2004, Keeler received a letter from the director of her

division notifying her that her employment was being terminated. Id., Exh. I. The

letter advised Keeler that her “action in working unauthorized overtime [on 22

October] after being specifically directed earlier in the day not to do so

constitute[d] Poor Performance, Insubordination, Violation of Law of Agency

Rules, and Conduct Unbecoming a Public Employee,” and that her actions in

“falsely stating to Ms. Cain that [she] had performed no work after 4:00 p.m. on

October 22, 2004” and “falsifying [her] time and attendance record constitut[ed]

Violation of Law or Agency Rules and Conduct Unbecoming a Public Employee.”

Id. at 3.

       Keeler filed the instant pro se complaint against the Department on 4 August

2005, alleging “retaliation” and “failure to uphold the laws set forth by the

Americans with Disabilities Act.” R1-1 at 1. She stated that the Department

denied her request for a job transfer in retaliation for her “acknowledging

inadequacies within [her] unit and for saying that [employees in her unit] were

overworked.” Id. at 2. She claimed that the Department terminated her “to let the



                                           6
others in [her] unit knows [sic] what would happen to them if they begin [sic]

‘Stirring the Pot.’” Id. Keeler later clarified during her deposition that her

allegation was that the Department retaliated against her “because [she] told Mrs.

Cain that there was a problem with our workload; that the employees in [her]

unit . . . [were] being forced to work – to put in nine hours of work in an eight-hour

day.” R1-32 at 198-99. She alleged additionally that the Department “violated the

law by denying [her] an accommodation.” R1-1 at 2.

        In March 2006, the Department filed a motion for judgment on the pleadings

under Federal Rule of Civil Procedure 12(c), arguing that Keeler failed to state

either a failure-to-accommodate or retaliation claim under the ADA. The district

court denied the motion, noting that “[i]t [was] difficult to discern from the face of

the Complaint specifically what ADA violations Plaintiff alleges.” R1-18 at 2 n.2.

The court first found that “[Keeler]’s allegations concerning the [Department]’s

knowledge of her disability and her request for an accommodation [were] not

crystal clear” and, with respect to her retaliation claim, that “it [was] unclear

whether ‘Stirring the Pot’ include[d] protected activity under the ADA.” R1-18 at

3-4.2



        2
         The district court found that the Department was entitled to Eleventh Amendment
immunity from claims for monetary damages brought under Title I of the ADA and dismissed
Keeler’s complaint to the extent that it asserted such a claim. Id. at 2-3, 5.

                                             7
      On 16 November 2007, the district court issued a case management and

scheduling order, which set a discovery cut-off date of 5 January 2008. R1-27 at 2.

The order also established a deadline for filing motions to amend pleadings that

was ten days after the discovery cut-off date and made clear that any such motions

would be disfavored. Id. On 18 January 2008, Keeler filed a “Motion for an

Extension of Time Within Which to File a Motion to Seek Leave from the Court to

Amend Plaintiff’s Complaint,” in which she indicated that she needed additional

time “to correctly and more specifically address which laws are applicable to [her]

[c]omplaint” and requested that the court extend until 22 January 2008 the deadline

for filing a motion to amend. R1-29 at 1-2. The district court denied her motion as

moot, noting that she never filed a motion to amend her complaint, nor did she

attach a copy of the proposed amended complaint to her extension motion. R1-30.

       On 15 February 2008, Keeler moved the court to reconsider its ruling,

arguing that she had submitted the extension motion within the time-frame for

filing motions to amend and that she correctly waited for the court to grant her an

extension of time before submitting either a motion to amend or an amended

complaint. R1-33 at 1-3, 5. That same day, Keeler also filed a motion to amend

her complaint, in which she alleged that the Department had violated the First

Amendment; 42 U.S.C. § 1983; Section 504 of the Rehabilitation Act, 29 U.S.C.



                                          8
§ 794; the Fair Labor Standards Act; and Titles I, II, and IV of the ADA. R1-34 at

1-3. Attached to the motion was Keeler’s amended complaint, which referred to

these statutes. Id., Amended Complaint. The district court denied both motions,

finding first that although its order disposing of the Department’s motion for

judgment on the pleadings put Keeler on notice as early as January 2007 that her

complaint was not well-pleaded, Keeler offered no explanation for her delay in

seeking leave to amend. R1-39 at 1, 3. It further found that Keeler’s amended

complaint included “new, distinct claims” and would therefore unfairly prejudice

the Department and “invariably delay a resolution of the case.” Id. at 3. On this

point, the court noted that the case had been pending for over two years, discovery

was closed, a trial date was set, and the Department’s motion for summary

judgment, which the Department had filed on 15 February 2008, was pending. Id.

at 3-4; see R1-31. Permitting Keeler to add new claims at this late stage of the

litigation would, it found, undermine “the critically important concept of finality.”

R1-39 at 4 (quotation marks and citation omitted). Finally, the court noted that

Keeler’s amended complaint failed to state claims upon which relief could be

granted and would not survive a motion to dismiss in any event. Id.

      In its motion for summary judgment, the Department argued that Keeler

could not establish a prima facie case of disability discrimination because she



                                           9
failed to show: (1) that she was disabled; (2) that she could perform her job with or

without reasonable accommodations; or (3) that the Department treated similarly

situated persons without disabilities more favorably. R1-31 at 14-17. The

Department argued further that, even if Keeler could satisfy the elements of a

prima facie case of discrimination, it had legitimate, nondiscriminatory reasons for

dismissing her, namely, her misconduct and poor performance, and she had failed

to show that those reasons were pretextual. Id. at 17-18. With respect to Keeler’s

allegations of retaliation, the Department argued that Keeler failed to state a claim

because she did not allege that she had engaged in activity protected by the ADA,

such as filing of an EEOC charge or opposing workplace discrimination. Id. at 19-

20. Rather, Keeler simply complained that there was too much work and not

enough time to accomplish that work. Id. at 20.

      Keeler responded that in characterizing her suit as an employment

discrimination case under Title I of the ADA, the Department had ignored “the

other part of the complaint, which was retaliation not for ADA but for speaking out

about overtime work.” R1-41 at 1, 11. Keeler stated that the Department’s

arguments regarding the ADA were designed to distract the court from “the real

issues,” which were retaliation under the First Amendment and the FLSA, and

“failure to consider an accommodation.” Id. at 19. With respect to the latter,



                                          10
Keeler argued that the Department should have been aware that her request for a

transfer was a request for an ADA accommodation. Id. at 12-13. Keeler

subsequently supplemented her response with a notarized affidavit in which she

stated, inter alia, that the Department’s retaliation against her began soon after the

her 15 September meeting with Cain and culminated in her dismissal on 9

December. Id. at 6, 8. According to Keeler, Cain’s comment, “‘Well that’s what

happens when you stir the pot,’” related to her “speaking out about uncompensated

overtime work.” Id. at 6-7.3

       The district court granted the Department’s motion for summary judgment

after finding that Keeler had failed to meet her burden of establishing either a

prima facie case of disability discrimination or a prima facie case of retaliation

under Title I of the ADA. R1-54. With respect to her failure-to-accommodate

claim, the court found that Keeler did not show that: (1) she had a “disability” as

defined by the ADA; (2) the Department was aware of her alleged disability when

it denied her request for a transfer; or (3) her request for a transfer was a request

for a reasonable accommodation. Id. at 10-17. With respect to her retaliation


       3
         Attached to Keeler’s affidavit were unauthenticated letters from physicians,
unauthenticated typewritten notes, and a job description for the records technician position. R1-
47, Keeler Aff., Exhs. A, B, C, D, E, F, G. The district court denied the Department’s motion to
strike Keeler’s affidavit and supporting documents, but indicated that it would not consider the
unauthenticated documents, hearsay evidence, and improper argument in ruling on the summary
judgment motion. See R1-53.

                                               11
claim, the court found that Keeler failed to show that she engaged in any activity

that was protected by the ADA. Id. at 17-19.4 This appeal followed.

                                           II. DISCUSSION

       On appeal, Keeler argues that the district court erred in granting summary

judgment in favor of the Department and that it abused its discretion in denying her

motion for an extension of time, her motion to reconsider, and her motion to

amend the complaint.

A.     Department’s Motion for Summary Judgment

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

the evidence in the light most favorable to the party opposing the motion.” Kelley

v. Hicks, 400 F.3d 1282, 1284 (11th Cir. 2005) (per curiam). A party is entitled to

summary judgment if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, show that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a

matter of law. See Fed. R. Civ. P. 56(c).

       The ADA, as amended, provides that “[n]o covered entity shall discriminate


       4
         Keeler filed several post-judgment motions, insisting that summary judgment was
improper and seeking to introduce additional evidence. R1-56; R1-57; R1-58; R1-59. While
Keeler indicates in her brief that she seeks review of the district court’s denial of these motions,
she offers no argument in support of these challenges. Accordingly, they are deemed waived.
See United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir. 2006) (issues on which party
provides no argument or legal support are deemed waived).

                                                 12
against a qualified individual on the basis of disability in regard to . . . employee

compensation, job training, and other terms, conditions, and privileges of

employment.”5 42 U.S.C. § 12112(a) (2009). In order to establish a prima facie

case of employment discrimination under the ADA, a plaintiff must show that: (1)

she has a disability; (2) she is a qualified individual; and (3) the employer

discriminated against her because of her disability. See Greenberg v. BellSouth

Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (interpreting

prior version of Act).

       A “disability” is defined by the ADA as “a physical or mental impairment

that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1).

The Equal Employment Opportunity Commission (“EEOC”) has further defined

“major life activities” as “functions such as caring for oneself, performing manual

tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”

Greenberg, 498 F.3d at 1264 (quoting 29 C.F.R. § 1630.2(i)). For purposes of the

third element, an employer unlawfully discriminates against an employee because

of her disability by “not making reasonable accommodations to the [employee’s]

known physical or mental limitations” if the employee is otherwise qualified to


       5
         Recent amendments to the Americans with Disabilities Act, 42 U.S.C. § 12112 et seq.
(“ADA”) became effective on 1 January 2009. See 29 U.S.C. § 705, Effective and Applicability
Provisions (providing that amendments pursuant to Pub. L. 110-325, § 8, Sept. 25, 2008, 122
Stat. 3559 became effective on 1 January 2009).

                                             13
perform her job and the accommodation would not impose an undue hardship on

the operation of the business. 42 U.S.C. § 12112(b)(5)(A) (emphasis added); see

also Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1262 (11th Cir. 2007).

      In this case, Keeler failed to show that the Department knew of her alleged

impairments when it denied her request for a transfer. Keeler testified in her

deposition that “nobody knew” of her disabilities when she asked Cain to be

transferred to the Senior Clerk position and she admitted that she did not disclose

her disabilities to her supervisors until after that position had been filled. R1-31 at

27, 154-55, 157. Nonetheless, Keeler asserts that the Department should have

known of her limitations because she took lots of notes, cried while speaking to

Cain about the transfer, and advised Cain that her position as a records technician

was stressful and overwhelming. This behavior was not, however, sufficient to put

the Department on notice that Keeler was disabled because it in no way suggested

that Keeler was substantially limited in any major life activity.

      Because the Department did not have sufficient knowledge of Keeler’s

mental impairments, the district court correctly concluded that the Department

could not be liable for any failure to accommodate. See, e.g., Cordoba v. Dillard’s,

Inc., 419 F.3d 1169, 1186 (11th Cir. 2005) (holding that, in discriminatory

discharge case, employer could not have fired employee “because of” a disability



                                           14
that she knew nothing about).6

B.     Denial of Motion for Extension of Time, Motion for Reconsideration, and
       Motion to Amend

       Keeler argues that she filed her motion for an extension within the time

prescribed for filing a motion for leave to amend, that she was complying with

local court rules by waiting for the court’s ruling on her extension motion before

filing a motion for leave to amend, and that the amended complaint would not have

unfairly prejudiced the Department because it concerned the same facts as the

original complaint. Keeler further contends that in ruling on her motion for an

extension, motion to reconsider, and motion to amend, the district court “never

addressed the other issue raised in the complaint, which was retaliation under the

FLSA and First Amendment.” Appellant’s Brief at 9. According to Keeler, her

complaint stated a claim for retaliation in violation of the First Amendment and the

FLSA because she alleged that she was terminated for speaking out about the

inadequacies of her unit and for reporting that employees were forced to work

uncompensated overtime in order to keep up with their heavy workloads. She

asserts that it was necessary for her to amend her complaint once “it became



       6
         Keeler does not challenge the district court’s finding that she failed to establish a prima
facie case of retaliation under the ADA and thus has abandoned this issue on appeal. See Davis
v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 972 (11th Cir. 2008) (“[A]n argument not
included in the appellant’s opening brief is deemed abandoned.”).

                                                 15
apparent [that] the only violations of the law that would be considered by the

District Court would be [ADA violations].” Id. at 10. We first address whether the

district court erred in denying Keeler’s motion to amend and related motions and

then whether the district court erred in construing her complaint as alleging claims

arising only under Title I of the ADA.

      We review for abuse of discretion a district court’s denial of a motion for

extension of time. See Young v. City of Palm Bay, Fla., 358 F.3d 859, 863 (11th

Cir. 2004). We also review for abuse of discretion a district court’s denial of a

motion to amend the pleadings. See Campbell v. Emory Clinic, 166 F.3d 1157,

1160-61 (11th Cir. 1999). Under this standard, “[t]he district court has a range of

options,” and we will not disturb the district court’s decision unless it constitutes a

clear error in judgment. Young, 358 F.3d at 863.

      A party may amend her complaint after a responsive pleading is served only

by leave of court or by written consent of the adverse party. See Fed. R. Civ. P.

15(a)(2). Where a party’s motion to amend is filed after the deadline for such

motions, as delineated in the court’s scheduling order, the party must show good

cause why leave to amend the complaint should be granted. Fed. R. Civ. P. 16(b).

A court does not abuse its discretion in denying a motion to amend when the

amendment would prejudice the defendant, follows undue delays, or is futile. See



                                           16
Maynard v. Board of Regents, 342 F.3d 1281, 1286-87 (11th Cir. 2003) (district

court did not abuse discretion in denying plaintiff’s motion for leave to amend,

filed on last day of extended discovery period, because amendment “would have

produced more attempts at discovery, delayed disposition of the case, and likely

prejudiced” the defendant, and there was no good reason why plaintiff could not

have filed motion earlier).

      Keeler filed her motion for an extension of time to amend her complaint

after the close of discovery and filed her motion to amend over a month after the

deadline for such motions had passed. Although Keeler thus was required to show

good cause as to why the amendments should be permitted, she offered no

explanation in any of her motions as to why she failed to propose her amendments

within the time limits prescribed by the court in its scheduling order. As in

Maynard, Keeler’s proposed amended complaint, which purported to add new

claims, would have resulted in additional discovery and delayed disposition of the

case. Accordingly, we cannot say that the district court abused its discretion in

denying Keeler’s motion for an extension of time, motion to reconsider, or motion

to amend the complaint.

      Although the district court properly denied Keeler leave to amend the

complaint, it erred in construing the complaint as asserting only violations of the



                                          17
ADA. It is well-settled that “[p]ro se pleadings are held to a less stringent standard

than pleadings drafted by attorneys and will, therefore, be liberally construed.”

Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). While we have little

difficulty finding that Keeler’s complaint failed to state a claim under the First

Amendment,7 it is less clear whether her complaint adequately stated a claim

within the purview of the FLSA’s anti-retaliation provision. The FLSA, which

addresses, inter alia, minimum wages, maximum hours, and overtime pay, makes it

unlawful for an employer to “discriminate against any employee because such

employee has filed any complaint or instituted or caused to be instituted any

proceeding under or related to this chapter.” 29 U.S.C. § 215(a)(3). Informal

complaints are sufficient to trigger this anti-retaliation provision. See E.E.O.C. v.

White, 881 F.2d 1006, 1011 (11th Cir. 1989) (holding that “unofficial complaints


       7
         In order to establish a claim of retaliation under the First Amendment, an employee first
must show that her speech was protected by the First Amendment. See Anderson v. Burke
County, Ga., 239 F.3d 1216, 1219 (11th Cir. 2001) (per curiam). Constitutional protection
attaches to a public employee’s speech only where the employee is speaking “as a citizen on a
matter of public concern.” Battle v. Board of Regents for Georgia, 468 F.3d 755, 760 (11th Cir.
2006) (per curiam) (quotation marks and citation omitted); see also Vila v. Padron, 484 F.3d
1334, 1339 (11th Cir. 2007) (“The threshold question is whether [the employee] spoke as a
citizen on a matter of public concern.”). If the employee is not speaking as a citizen on a matter
of public concern, “[she] has no First Amendment cause of action based on . . . her employer’s
reaction to the speech.” Battle, 468 F.3d at 760 (quotation marks and citation omitted). When
Keeler reported to management that records technicians in her unit were working
uncompensated overtime, she was speaking in her capacity as an employee on a matter of
personal interest, and not as a citizen on a matter of public concern. Cf. Anderson, 239 F.3d at
1220. Because Keeler’s speech did not “relate to the political, social or other interest of the
community,” id., the First Amendment was not implicated, and her retaliation claim necessarily
fails. See Vila, 484 F.3d at 1339.

                                                18
expressed by [employees] to their employer about unequal pay constitute[d] an

assertion of rights protected under the [FLSA].”).

       Although Keeler’s complaint cited the ADA as the statutory basis for her

lawsuit, she alleged that she suffered retaliation for reporting uncompensated

overtime to Department management. While this type of speech is not entitled to

First Amendment protection, it does trigger the FLSA’s anti-retaliation provision.

See White, 881 F.2d at 1011 (noting that the anti-retaliation provision of the FLSA

is “giv[en] a broad construction”). Because Keeler’s complaint, liberally

construed, may have stated a claim under the FLSA,8 the district court erred in

treating her complaint as alleging only failure-to-accommodate and retaliation

claims under the ADA and in confining its summary judgment analysis to those

claims.

                                        III. CONCLUSION

       Keeler appeals the district court’s grant of summary judgment in favor of the

Department. Because Keeler failed to show good cause as to why the court should

modify its scheduling order to permit amendment of her complaint, the district

court did not abuse its discretion in denying Keeler’s motion to amend the



       8
        In denying Keeler’s motion to amend, the district court noted that the proposed claims,
which included an FLSA claim, were futile and would not have survived a motion to dismiss.
The reasoning underlying this conclusion is not clear, however. See R1-39 at 4.

                                               19
pleadings. Although we AFFIRM the district court’s grant of summary judgment

with respect to Keeler’s failure-to-accommodate claim, we VACATE its judgment

and remand the case for further proceedings because Keeler’s complaint, liberally

construed, also stated a claim for retaliation under the FLSA.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




                                         20
