[DO NOT PUBLISH]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
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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
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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
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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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