                                                        [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                         FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                             SEPT 28, 2010
                                  No. 09-15649                JOHN LEY
                              Non-Argument Calendar             CLERK
                            ________________________

                     D. C. Docket No. 08-00927-CV-T-26-MSS

KAMARA CRAWFORD,
OLIVER CRAWFORD, SR.,


                                                        Plaintiffs-Appellants,

                                       versus

CITY OF TAMPA,
as a governmental entity,
PAM IORIO,
in her official and individual capacities,
CYNTHIA MILLER,
Department of Growth Management and
Development Services,
THOMAS SNELLING,
Deputy Director, GMDS,
JOHN BARRIOS,
Manager, GMDS, et al.,


                                                       Defendants-Appellees.
                            ________________________

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

                                (September 28, 2010)

Before DUBINA, Chief Judge, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Kamara Crawford appeals pro se from the district court’s dismissal of

several of her employment-based claims under federal and state law and from the

district court’s subsequent summary judgment ruling in favor of the City of Tampa

(“City”) on her race discrimination and wrongful termination claims. For the

reasons set forth below, we conclude that Crawford properly pled a claim for relief

under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2617, and the

district court therefore erred in dismissing that claim pursuant to Fed. R. Civ. P.

12(b)(6). We find no error, however, regarding the disposition of Crawford’s

remaining claims and affirm in all other respects.

                                 I. BACKGROUND

      The City of Tampa employed Crawford from February 1995 through May

24, 2007. Immediately before the City terminated her employment, Crawford

began an extended absence from her job, one she claims was necessitated by her



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medical condition. The City denied her applications for both prospective and

retroactive leave and eventually terminated her employment.

      Crawford filed suit against the City and numerous individuals employed by

the City, alleging racial discrimination, wrongful termination, and improper

disclosure of her private medical information. Crawford's husband joined in the

lawsuit, raising a state law claim for loss of consortium. Responding to the

defendants’ motion to dismiss Crawford’s seven-count Third Amended Complaint,

the district court dismissed all counts against the individual defendants based on

qualified immunity, and dismissed several of Crawford’s claims against the City,

including her FMLA claim. The district court granted summary judgment on each

of Crawford’s remaining claims against the City.

                          II. STANDARD OF REVIEW

      We review de novo a district court’s grant of a motion to dismiss under Fed.

R. Civ. P. 12(b)(6) and accept the complaint’s allegations as true, construing them

in the light most favorable to the plaintiff. Hill v. White, 321 F.3d 1334, 1335

(11th Cir. 2003). We review de novo a district court’s grant of summary judgment.

Fanin v. U.S. Dep’t of Veterans Affairs, 572 F.3d 868, 871 (11th Cir. 2009).

                                 III. DISCUSSION

      In granting the motion to dismiss Crawford’s FMLA claim, the district court



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noted that Crawford failed to “allege ever giving notice that she was invoking the

FMLA, that she has unused FMLA leave available to her or that she provided the

notice required to access that leave.” [R. 53 at 5.] The district court further

observed that Crawford’s claims were rooted in terms of racial discrimination, a

motivation inapposite to the rights protected under the FMLA. See Hurlbert v. St.

Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006) (explaining

the interference and retaliation claims recognized under 29 U.S.C. § 2615);

Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1208 (11th

Cir. 2001) (holding that an FMLA plaintiff “does not have to allege that his

employer intended to deny the right; the employer’s motives are irrelevant”).

      We have noted that, in stating a claim for interference under the FMLA, “an

employee need only demonstrate by a preponderance of the evidence that he was

entitled to the benefit denied.” Strickland, 239 F.3d at 1206–07. Furthermore,

“[t]he Code of Federal Regulations makes clear that an employee taking

unforeseeable leave need not expressly assert rights under the FMLA or even

mention the FMLA, but may only state that leave is needed.” Id. at 1209 (internal

quotation marks omitted). “Once an employee taking unforeseeable leave informs

his employer that potentially FMLA-qualifying leave is needed, the regulations

place on the employer the burden of ascertaining whether the employee’s absence



                                           4
actually qualifies for FMLA protection.” Id.

      The language from our decision in Strickland indicates that the district court

imposed too high a pleading obligation in this case. Here, the complaint alleges

that Crawford was eligible for benefits under the FMLA [R. 49 at 6–7, ¶¶ 38–39.]

and requested leave for medical reasons. [R. 49 at 9, ¶¶ 45–47.] Crawford need

not have specifically invoked the FMLA to preserve her statutory rights, and a

failure to so allege does not warrant dismissal.

      We agree with the district court, however, that Crawford’s race

discrimination claims fall short because she failed to identify appropriate

comparators whose treatment would indicate race-based disparity. See Maniccia v.

Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (“We require that the quantity and

quality of the comparator’s misconduct be nearly identical to prevent courts from

second-guessing employers’ reasonable decisions and confusing apples with

oranges.”). Likewise, we agree that no private right of action exists under the

Health Insurance Portability and Accountability Act. See Acara v. Banks, 470 F.3d

569, 572 (5th Cir. 2006). We additionally find no facts in the complaint to support

Crawford’s claims of gender and age discrimination.

      We conclude that Crawford’s claim of wrongful termination also lacking in

facts sufficient to support a prima facie case of discrimination. We additionally



                                           5
reject Crawford’s contention that the district court afforded her insufficient time to

conduct discovery and inadequate notice of its consideration of the motion for

summary judgment, as the record reveals that the district court afforded her ample

opportunity and notice.

       We note finally that the City has defended against the loss of consortium

claims raised here by emphasizing that, under Florida law, all loss of consortium

claims are derivative. See ACandS, Inc. v. Redd, 703 So. 2d 492, 493–94 (Fla.

Dist. Ct. App. 1997). As the City therefore admits, the loss of consortium claim

exists alongside only viable claims—it must survive so long as Crawford has

claims pending against the City.1

                                     IV. CONCLUSION

       We commend the district court’s efforts to decide this case on its legal

merits instead of technical pleading deficiencies. The district court’s familiarity

with the essential racial discrimination claims of the complaint make its oversight

of the sufficiently pled FMLA claim understandable. Nevertheless, that claim, and

its arguably derivative loss of consortium claim, should not have been dismissed at


1
  We express no opinion about the availability of a loss of consortium claim for a violation of a
spouse’s federal statutory rights under Florida law, as the parties have not briefed the issue. The
district court considered the question and concluded that it was “beneficial to permit the
consortium claim to proceed to resolution on the merits.” [R. 61 at 5.] We see no harm in
temporarily abstaining from addressing the state law question on the possibility that the merits
resolution will moot the issue.

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the pleadings stage. The district court correctly disposed of the remaining claims

in this case.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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