Wanda Y. Dockens v. Dekalb County School System, Dr. Crawford Lewis , 441 F. App'x 704 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10234 SEPTEMBER 28, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:07-cv-01345-CAP
WANDA Y. DOCKENS,
llllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
DEKALB COUNTY SCHOOL SYSTEM,
llllllllllllllllllllllllDefendant-Appellee,
DR. CRAWFORD LEWIS, etc., et al.,
l lllllllllllllllllllllllllllllllllllDefendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 28, 2011)
Before CARNES, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Wanda Dockens appeals pro se the district court’s grant of summary
judgment on her retaliation claim under the Family Medical Leave Act, 29 U.S.C.
§ 2610 et seq, and the decision to decline supplemental jurisdiction over her claim
under Georgia’s Fair Dismissal Act, Ga. Code Ann. § 20-3-940 et seq. Dockens
contends that the district court erred when it found she had failed to present either
direct or circumstantial evidence of retaliation and that it should have retained
supplemental jurisdiction over her state law claim.
I.
Dockens began working for the DeKalb County School System as a media
specialist in 1995 and worked at Southwest DeKalb High School beginning in
August 2000. In January 2005 Dockens was diagnosed with an anxiety disorder.
On October 6, 2005 Dockens and Horace Dunson, an Assistant
Superintendent, had a discussion at the high school that ended with Dunson telling
Dockens to turn in her keys and badge, get her purse, and “get off this campus.”
That led Dockens to believe she had been terminated. On October 10, 2005
Dockens requested medical leave related to her anxiety disorder after learning of
the death of a family member. Two days later Dunson emailed Dockens telling
her she had not been fired, but would instead be reassigned to another school
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within the district. Dockens was reassigned to Miller Grove Middle School later
that month.
The School System requires employees seeking leave under the FMLA to
provide certification from a medical provider that the leave is necessary. When an
employee is able to return to work, she must provide a “Fitness-for-Duty Report.”
The School System sent her a “Family Medical Leave Information Packet1.” The
cover letter of the packet stated that the Fitness-for-Duty Report had to be
completed by a medical provider before Dockens could return to work.
The School System had some concerns about the documents Dockens had
submitted. On January 5, 2006 Dunson emailed several School System employees,
including Dr. Jamie Wilson, then Director of Staff Services, asking that Dockens
be terminated for job abandonment and stating that Dockens had yet to submit the
required documents for FMLA leave. Replying by email the same day, Wilson
said that Dockens had submitted some documents but perhaps not the proper ones,
and that Wilson would review the file again. In a follow up email on January 11,
Wilson noted that the School System was in contact with Dockens’ medical
providers, but that he was concerned her documents might be forged. In that
1
Viewing the facts in the light most favorable to Dockens and construing her pro se brief
liberally, we will assume she presented medical documentation establishing that FMLA leave
was necessary.
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follow up email, Wilson told Dunson: “If we get conformation [sic] that the
documents are forged then we will proceed with termination. In the event the
documents are not forged, we will discuss some other options with you.”
Also on January 11, 2006 a termination letter was sent to Dockens signed by
Wilson. The School System filed with its motion for summary judgment a January
12, 2006 email supposedly sent by Dockens in which she said she had spoken with
“Ms. Davis” and had been told the letter was an error. The School System also
filed a January 17, 2006 letter from Wilson to Dockens apologizing for the
erroneous termination letter. In an affidavit attached to her response to the School
System’s motion for summary judgment, Dockens denied writing the January 12
email or receiving the January 17 letter, but she produced no evidence to indicate
the letter or email were fraudulent.
On January 17, 2006 Dockens’ doctor determined her condition had
worsened and that she was unable to return to work. In February 2006 Dockens
finally provided a doctor’s report to the School System stating that she could
return to work part-time in May 2006. But she never gave any Fitness-for-Duty
Report to the School System, and she never returned to work.
On August 7, 2006 and again on January 3, 2007, Dockens told the School
System by email that she was still ill and unable to return to work. On February
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23, 2007 the School System sent a letter to Dockens stating that she had been
placed on FMLA leave from October 7, 2005 to January 17, 2006 and that she had
been placed on an extended leave of absence for the remainder of the school year
ending June 1, 2006. The letter also noted that she had accepted long-term
disability beginning on May 5, 2006. Five days later, the School System informed
Dockens that if she received clearance from her doctor to return to work, she could
apply for vacant positions.
Dockens, proceeding pro se, filed this lawsuit against the School System
and against Dr. Crawford Lewis in his official capacity as Superintendent of the
School System. After the district court twice ordered Dockens to file amended
complaints—once before a motion to dismiss was filed and once afterwards—the
School System filed another motion to dismiss. Both times she filed an amended
complaint. Thereafter, a magistrate judge issued a report and recommendation,
which the district court adopted, dismissing all her claims except the FMLA
interference2 and retaliation claims and the Georgia state Fair Dismissal Act claim.
Dockens and the School System later filed cross-motions for summary judgment
on those three remaining claims.
2
Because Dockens does not address the FMLA interference claim on appeal, she has
waived that issue and we will not address it. Ivy v. Ford Motor Co., ___ F.3d ___, 2011 WL
2671299, at *2 (11th Cir. July 11, 2011).
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The magistrate judge issued a second report recommending the district court
grant summary judgment to the School System on both FMLA claims, deny
Dockens’ motion for summary judgment, and decline to exercise supplemental
jurisdiction over Dockens’ state law claim. The district court adopted that report
without elaboration.
III.
We review de novo a district court’s grant of summary judgment, viewing
all evidence and drawing all reasonable inferences in favor of the nonmoving
party. Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc).
Summary judgment is appropriate if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
Employees have a private right of action against employers who “interfere
with, restrain, or deny the exercise of or the attempt to exercise” any FMLA rights.
Id. § 2615(a)(1); Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286,
1293 (11th Cir. 2006). Section 2615(a) “creates [a] retaliation claim[], in which
an employee asserts that his employer discriminated against him because he
engaged in activity protected by the Act.’” Id. (quoting Strickland v. Water Works
and Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1206 (11th Cir.2001)).
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“To prove FMLA retaliation, an employee must show that [her] employer
intentionally discriminated against [her] for exercising an FMLA right” by
showing that her “employer’s actions were motivated by an impermissible
retaliatory or discriminatory animus.” Martin v. Brevard Cnty. Pub. Sch., 543
F.3d 1261, 1267–68 (11th Cir. 2008) (citations omitted). Proof can be by either
direct or circumstantial evidence. See Dixon v. Hallmark Cos., Inc., 627 F.3d 849,
854 (11th Cir. 2010); Lee v. Russell Cnty. Bd of Educ., 684 F.2d 769, 773–774
(11th Cir. 1982).
Direct evidence of discrimination “reflects a discriminatory or retaliatory
attitude correlating to the discrimination or retaliation complained of by the
employee.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)
(quoting Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th
Cir. 1999)). It “proves the existence of a fact without inference or presumption.”
Wilson, 376 F.3d at 1086 (quoting Burrell v. Bd of Trs. Of Ga. Military Coll., 125
F.3d 1390, 1393 (11th Cir. 1997). “Only the most blatant remarks, whose intent
could mean nothing other than to discriminate on the basis of some impermissible
factor constitute direct evidence of discrimination.” Dixon, 627 F.3d at 854
(quoting Wilson, 376 F.3d at 1086). “If the alleged statement suggests, but does
not prove, a discriminatory motive, then it is considered circumstantial evidence.”
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Akouri v. Fla. Dep’t of Transp., 408 F.3d 1338, 1347 (11th Cir. 2005) (citing
Wilson, 376 F.3d at 1086).
The evidence Dockens points to does not rise to this level. She argues that
the series of emails between Dunson and Wilson from January 6, 2006 and
January 11, 2006 and the January 11, 2006 termination letter are direct evidence of
retaliation. But nothing in the emails or the letter states that Dockens was fired for
taking FMLA leave. While the emails discuss terminating Dockens for missing
work while not on approved leave or for forging medical documents, that is not
direct evidence of retaliation. The termination letter is not either, because it does
not refer to Dockens’ FMLA leave at all. See Wilson, 376 F.3d at 1087 (listing
examples of direct evidence in discrimination cases). Even if Dockens were
terminated on January 11, 2005, that alone would not be direct evidence but
instead only circumstantial evidence. See, e.g., Hurlbert, 439 F.3d at 1297–98.
When there is no direct evidence of retaliatory intent, we apply the burden-
shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817 (1973). Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243
(11th Cir. 2010). Under that framework, to establish a prima facie case of
retaliation, a plaintiff must show that “(1) she engaged in statutorily protected
conduct, (2) she suffered an adverse employment decision, and (3) the decision
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was causally related to the protected activity.” Id.
Once the plaintiff establishes a prima facie case the burden shifts to the
defendant to “articulate a legitimate, nondiscriminatory reason” for the
employment decision. Id. This is a burden of production only and not a burden of
persuasion. See Wilson, 376 F.3d at 1087 (citing Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254–255, 101 S. Ct. 1089, 1094 (1981)).
If the defendant satisfies its burden of production, the burden shifts back to
the plaintiff to present evidence that the articulated reasons were merely pretext.
Schaff, 602 F.3d at 1244. This evidence must be “sufficient to permit a reasonable
factfinder to conclude that the reasons given by the employer were not the real
reasons for the adverse employment decision.” Id. The plaintiff must persuade
“the court that a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer’s proferred explanation is unworthy of
credence.” Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir.
2005) (quotation omitted). Even assuming Dockens can establish a prima facie
case for retaliation, she has still failed to rebut the legitimate, non-discriminatory
reasons articulated by the School System.
First, the School System produced unrebutted evidence that the January 11
termination letter was a mistake. Second, the School System produced unrebutted
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evidence that the reason Dockens was not allowed to return to work was that she
was still medically unable to work when her FMLA leave ended. It is also
undisputed that Dockens never provided the School System with the required
Fitness-for-Duty Report. Those are legitimate, non-discriminatory reasons for the
School System’s actions. Other than bare assertions, Dockens produced no
evidence that those reasons are pretextual. Dockens, therefore, does not “meet the
reason head on and rebut it,” Chapman, 229 F.3d at 1030, and the School System
was properly granted summary judgment.
IV.
In addition to granting summary judgment against Dockens on her FMLA
claims, the court declined to exercise supplemental jurisdiction over her Georgia
Fair Dismissal Act claim. Dockens urges us to reverse that decision. We review a
district court’s decision not to exercise supplemental jurisdiction only for an abuse
of discretion. Utopia Provider Sys., Inc. v. Pro-Med Clinical Sys., L.L.C., 596
F.3d 1313, 1328 (11th Cir. 2010). A district court may decline supplemental
jurisdiction if “the district court has dismissed all claims over which it had original
jurisdiction.” 28 U.S.C. § 1367(c)(3). Once the district court properly granted
summary judgment for the School System on the FMLA claims, no federal claims
remained. It was not abuse of discretion for the court to decline supplemental
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jurisdiction over the state law claim.
AFFIRMED.
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