Revised November 21, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50375
Summary Calendar
GLENN DOLESE Plaintiff-Appellant,
versus
OFFICE DEPOT, INC., et al. Defendants,
OFFICE DEPOT, INC. Defendant-Appellee
Appeal from the United States District Court
For the Western District of Texas
November 7, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant originally filed suit in state court,
alleging that his termination violated the Americans with
Disabilities Act ("ADA"),1 the Age Discrimination in Employment Act
("ADEA"),2 the Texas Commission on Human Rights Act ("TCHRA"),3 and
1
See 42 U.S.C. § 12101 et seq.
2
See 29 U.S.C. § 621 et seq.
3
See Tex. Labor Code Ann. § 21.001 et seq.
the Texas Workers' Compensation Act ("TWCA").4 After the case was
removed to federal district court, Dolese obtained a partial remand
as to the TWCA claim. He amended his state court complaint to
include a claim under the Family and Medical Leave Act ("FMLA"),5
which was then removed to federal court and consolidated with his
ADA claim (Dolese withdrew his TCHRA and ADEA claims). He seeks
reversal of the district court's denial of his motion for remand.
Dolese also asks us to reverse the dismissal of his FMLA claim and
the grant of summary judgment in Office Depot's favor on the ADA
claims. We refuse to overturn the considered judgment of the
district court.
As the district court recognized, removal was appropriate6 and
federal jurisdiction was manifestly present. The district court
would have had jurisdiction if the case had been originally filed
in district court, as an exercise of supplemental jurisdiction.7
Dolese does not dispute the fact that his TCHRA claims form part of
the same case or controversy as his ADA and ADEA claims; all emerge
out of the circumstances surrounding his termination.8 Moreover,
Dolese failed to move for remand of his FMLA claims at the district
4
See Tex. Labor Code Ann. § 451.001.
5
See 29 U.S.C. § 2601 et seq.
6
See 28 U.S.C. § 1441(a).
7
See 28 U.S.C. § 1367.
8
See 28 U.S.C. § 1367; City of Chicago v. Int'l College of
Surgeons, 522 U.S. 156, 163-66 (1997).
2
court level, depriving us of the power to decide on appeal the
propriety of remand of these claims.9
Moreover, the dismissal of his FMLA claims was appropriate. As
Dolese had not been employed "for at least 12 months by the
employer with respect to whom leave is requested," he was not an
"eligible employee" for purposes of the FMLA.10 Although Office
Depot's policies are more generous in defining employee eligibility
for FMLA protections, they do not create an FMLA cause of action.
The Department of Labor regulation cited by Dolese - i.e., 29
C.F.R. § 825.70011 - is inapposite, as it addresses only the
situation where an employer program exceeds FMLA requirements
regarding "family or medical leave rights" - not eligibility
criteria. Even if this provision is on point, however, lower courts
have uniformly interpreted it as not providing a cause of action
under the FMLA;12 to the extent that the regulation does so, it is
9
See Agrilectric Power Partners, Ltd. v. Energy Gulf States,
Inc., 207 F.3d 301, 304 n.7 (5th Cir. 2000).
10
See 29 U.S.C. § 2611(2); 29 C.F.R. § 825.110(a)(1).
11
The provision stipulates: "An employer must observe any
employment benefit program or plan that provides greater family or
medical leave rights to employees than the rights established by
the FMLA." 29 C.F.R. § 825.700(a).
12
See Covey v. Methodist Hosp. of Dyersburg, Inc., 56 F.
Supp.2d 965, 971-72 (W.D. Tenn. 1999); Hite v. Biomet, Inc., 53 F.
Supp.2d 1013, 1018 (N.D. Ind. 1999); Rich v. Delta Air Lines, Inc.,
921 F. Supp. 767, 773-74 (N.D. Ga. 1996).
3
invalid.13 As the Sixth Circuit has noted, a contractual agreement
to provide enhanced benefits does not provide federal courts with
jurisdiction.14
Finally, summary judgment was appropriate on Dolese's ADA
claims. He was not "disabled" under the meaning of the statute,15
and can not therefore establish the requisite prima facie case.16
In light of the preceding, the district court's judgment is
AFFIRMED.
AFFIRMED.
13
See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988); Rich, 921 F. Supp. at 773-74; see also McGregor v.
Autozone, Inc., 180 F.3d 1305, 1308 (11th Cir. 1999).
14
See Douglas v. E.G. Baldwin & Assocs, Inc., 150 F.3d 604,
608 (6th Cir. 1998).
15
See 42 U.S.C. § 12102(2); Murphy v. United Parcel Serv.,
Inc., 527 U.S. 516, 521-23 (1999); Sutton v. United Air Lines,
Inc., 527 U.S. 471 (1999).
16
See Rizzo v. Children's World Learning Centers, Inc., 84
F.3d 758, 763 (5th Cir. 1996).
4