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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14351
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-22187-WJZ
WEN LIU,
Plaintiff-Appellant,
versus
UNIVERSITY OF MIAMI SCHOOL OF MEDICINE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 19, 2017)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Wen Liu, an Asian female of Chinese national origin, appeals pro se the
district court’s grant of summary judgment in favor of her former employer, the
University of Miami School of Medicine (“the University”), on her multiple
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employment and discrimination claims. On appeal, she argues that: (1) the district
court erred by granting summary judgment on her race, sex, and national origin
claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e (“Title VII”), 42
U.S.C. § 1981, and the Florida Civil Rights Act (“FCRA”); her retaliation claim
under Title VII; and several claims under the Family Medical Leave Act
(“FMLA”); and (2) the district court erred in denying her request for an extension
of discovery. After careful review, we affirm.
First, we are unpersuaded by Liu’s claim that the district court erred by
granting summary judgment as to her Title VII, FCRA, and § 1981 discrimination
claims. We review the grant of summary judgment de novo. Rioux v. City of
Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). A party abandons an issue by
failing to raise the issue on appeal. Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 680 (11th Cir. 2014). When an appellant fails to challenge properly on
appeal one of the grounds on which the district court based its judgment, she is
deemed to have abandoned any challenge of that ground, and it follows that the
judgment is due to be affirmed. Id. at 680-83.
Summary judgment is rendered “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). In making this assessment, we must view all
evidence and all factual inferences reasonably drawn from the evidence in the light
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most favorable to the nonmoving party, and must resolve all reasonable doubts
about the facts in favor of the nonmovant. Rioux, 520 F.3d at 1274. In supporting
or opposing summary judgment, a party must support all factual assertions through
evidentiary material. Fed. R. Civ. P. 56(c)(1)(A). “Mere conclusions and
unsupported factual allegations are legally insufficient to create a dispute to defeat
summary judgment.” Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563
(11th Cir. 1989). “An affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the
matters stated.” Fed. R. Civ. P. 56(c)(4). Thus, statements in an affidavit based, in
part, upon information and belief -- instead of only knowledge -- cannot raise a
genuine issue of fact. Pace v. Capobianco, 283 F.3d 1275, 1278 (11th Cir. 2002).
Further, unsworn statements may not be considered in evaluating a summary
judgment motion. Carr v. Tatangelo, 338 F.3d 1259, 1273 n.26 (11th Cir. 2003).
We review subject matter jurisdiction questions de novo. Brown v. Snow,
440 F.3d 1259, 1262 (11th Cir. 2006). Before commencing a lawsuit under Title
VII, a plaintiff must first exhaust administrative remedies. H&R Block E. Enters.,
Inc. v. Morris, 606 F.3d 1285, 1295 (11th Cir. 2010). A plaintiff’s Title VII action
is limited to the scope of the administrative investigation that “can reasonably be
expected to grow out of the charge of discrimination.” Gregory v. Ga. Dep’t of
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Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (quotation omitted). The
failure of a party to check a box marked “retaliation” on the charge form does not
administratively foreclose a party from bringing suit based on that theory, if the
facts alleged in the charge could reasonably have extended to cover a retaliation
charge. Id. The purpose of the exhaustion requirement is “to give the agency the
information it needs to investigate and resolve the dispute between the employee
and the employer.” Brown, 440 F.3d at 1263 (quotations omitted).
A person must file a timely charge of discrimination as a prerequisite to
filing a Title VII suit. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir.
2001). An EEOC charge is timely in a deferral state, like Florida, if filed within
300 days of the last discriminatory act. 42 U.S.C. § 2000e-5(e)(1); see Thomas v.
Fla. Power & Light Co., 764 F.2d 768, 769-70 (11th Cir. 1985). Under the FCRA,
a plaintiff must file formal charges with the EEOC or a state commission within
365 days of the alleged FCRA violation. Fla. Stat. § 760.11(1). The applicable
period for filing an EEOC charge of discrimination begins to run when the
employee receives unequivocal notice of an adverse employment decision.
Stewart v. Booker T. Washington Ins., 232 F.3d 844, 849 (11th Cir. 2000).
“Title VII prohibits employers from discriminating ‘against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.’”
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McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008) (quoting 42 U.S.C.
§ 2000e-2(a)). Claims of race discrimination arising under § 1981 have the same
requirements of proof and use the same analytical framework as Title VII claims.
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 n.14 (11th Cir. 2011).
Since the FCRA is patterned after Title VII, the same is true for FCRA claims.
Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998).
In Title VII discrimination cases, the plaintiff may prove discrimination
through circumstantial evidence, using the burden-shifting framework established
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). McCann, 526 F.3d at
1373. The plaintiff may establish a prima facie case of discrimination by showing
that (1) she belongs to a protected class; (2) she was qualified to do the job; (3) she
was subjected to an adverse employment action; and (4) her employer treated
similarly situated employees outside her class more favorably. Crawford v.
Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
“[I]f the plaintiff establishes a prima facie case, the burden shifts to the
employer to articulate some legitimate, nondiscriminatory reason for the adverse
employment action.” Id. at 976 (quotation omitted). “To satisfy this intermediate
burden, the employer need only produce admissible evidence which would allow
the trier of fact rationally to conclude that the employment decision had not been
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motivated by discriminatory animus.” Combs v. Plantation Patterns, 106 F.3d
1519, 1528 (11th Cir. 1997) (quotation, bracket and emphasis omitted).
“If the employer does this, the burden shifts back to the plaintiff to show that
the employer’s stated reason was a pretext for discrimination.” Crawford, 529
F.3d at 976. A reason is not a pretext for discrimination unless it is shown both
that the reason was false and that discrimination was the real reason. Brooks v.
Cty. Com’n of Jefferson Cty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006). A
plaintiff’s evidence of a pretext must reveal the weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its actions that a reasonable factfinder could find them
unworthy of credence. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771
(11th Cir. 2005). When the employer has presented evidence of poor performance,
“an employee’s assertions of his own good performance are insufficient to defeat
summary judgment.” Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997).
As for Liu’s Title VII and FCRA claims, the district court correctly found
that Liu failed to exhaust administrative remedies because the EEOC charge was
not timely filed. Uncontested record evidence reveals that Liu received a letter
from David Birnbach, the vice provost for faculty affairs, on October 7, 2011, that
gave written, unequivocal notice that Liu’s employment was terminated effective
12 months from that date. Liu also reported on her EEOC charge form that
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October 7, 2011, the date she was given notice of her termination, was the last date
discrimination took place. Thus, the applicable period for filing an EEOC charge
began to run on October 7, 2011. Stewart, 232 F.3d 844. Since Liu did not file her
EEOC complaint until March 21, 2013, her complaint was filed well beyond the
365-day period for Title VII and the 300-day period for the FCRA, and was
untimely. 42 U.S.C. § 2000e-5(e)(1); Fla. Stat. § 760.11(1); Thomas, 764 F.2d at
769-70. Accordingly, Liu failed to exhaust administrative remedies and summary
judgment was proper as to these two claims. Crawford, 186 F.3d at 1326. 1
Lui’s § 1981 claim, however, does not carry an exhaustion requirement, so
she did not need to exhaust it. But even if Liu was able to make a prima facie case
of discrimination, the University clearly articulated a legitimate, nondiscriminatory
reason for Liu’s change of track and termination -- her poor performance.
Crawford, 529 F.3d at 976. As for Liu’s switch from the tenure track to the
research track, the University provided undisputed evidence that it followed
protocol to determine that Liu was not making sufficient progress to remain on the
tenure track. Specifically, sworn declarations by Dr. Jose Szapocznik, the
chairman of Liu’s department, and Dr. Sheri Keitz, the senior associate dean of
faculty affairs, as well as a faculty manual excerpt, supported that all tenure track
1
Liu also failed to exhaust her Title VII retaliation claim because her EEOC charge was
untimely. Thus, the district court properly granted summary judgment on her Title VII
retaliation claim for the same reason.
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faculty members were subject to an annual review to assess progress toward
tenure, conducted by a committee of faculty members in her department. The
evidence showed that at Liu’s first annual evaluation in November 2009, of 15
faculty members eligible to vote: 0 rated her “scholarly productivity and/or
creative achievement” as outstanding or meeting expectations; 6 rated it as
marginal; 3 rated it as unsatisfactory; 2 abstained from the vote; and 3 were absent.
The faculty committee also voted on her progress toward tenure, with 4 voting that
she had made adequate progress, 5 voting that she had not, 3 abstaining, and 3
absent. The evidence further showed that Liu’s performance declined even more
in her second year as a professor on the tenure track. Specifically, the 15 eligible
faculty members present at Liu’s annual review in August 2010 unanimously voted
that Liu had not made adequate progress toward tenure.
The University also provided undisputed evidence that Szapocznik’s
motivation for advising Liu to switch tracks was that Liu’s past performance
indicated that she would not be successful on the tenure track. Szapocznik said he
encouraged Liu to switch to the research track because he believed this to be in her
best interest based on her past performance. In addition, the evidence showed that
the faculty committee had found that Liu had not made progress in the “three
major areas: research, teaching and service.” The committee considered Liu’s
failure to produce five first-author publications as required, a mediocre teaching
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evaluation, and her failure to join any committees. Of eleven faculty members on
the committee, six voted in favor of allowing Liu to switch to the research track,
four opposed allowing Liu to switch to the research track, and one abstained. The
committee also questioned if Liu would even be able to succeed on the research
track, based on her past performance. On this record, there is no genuine dispute
of fact suggesting that the University’s decision to switch Liu to the research track
had been motivated by discriminatory animus. Combs, 106 F.3d at 1528.
Likewise, the University provided undisputed evidence to support that Liu’s
ultimate termination was motivated by her poor performance on the research track.
The evidence revealed that, at Liu’s first evaluation as a research track member,
the faculty committee found her performance to be inadequate. Specifically, her
annual evaluation form showed that, of the 17 faculty members eligible to vote, all
had voted against reappointment. Further, in an email from Szapocznik to Keitz
concerning Liu’s non-reappointment, Szapocznik wrote that, during the meeting
concerning Liu’s reappointment, committee members made “extremely negative”
comments concerning Liu’s progress regarding research, teaching, and service.
Szapocznik specifically noted that Liu had not been active in establishing her own
program of research, had received funding for only one of five proposals she
submitted, and had produced only six publications with no first authorships.
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Because the University met its burden of establishing a legitimate non-
discriminatory motive, Liu is required to show that the University’s contention,
that Liu’s employment was terminated based on her performance, is a pretext for
discrimination. Crawford, 529 F.3d at 976. Liu has failed to make this showing.
For starters, in response to the University’s statements of facts regarding Liu’s
poor performance, Liu largely either admitted the statements or responded by
stating “without knowledge.” Further, Liu’s allegations in rebuttal do not actually
contradict that she was fired based on her poor performance, much less offer
evidence to support that discrimination the real reason. Brooks, 446 F.3d at 1163.
Liu alleged, for example, that she was the only junior faculty member to be
required to write five first-author publications “within such a short time period,”
which she supported with statements from her sworn affidavit. However, since she
does not explain how she has personal knowledge of the requirements placed upon
other faculty members, her statements appear to be based “upon information and
belief.” Pace, 283 F.3d at 1278; Fed. R. Civ. P. 56(c)(4). Accordingly, these
statements in Liu’s affidavit cannot raise a genuine issue of fact.
Further, the magistrate judge asked Liu at a hearing if, aside from her own
opinions, there was “anything else that you can point me to in the record that
would negate or show that it's pretext, the University’s position, that . . . she was
almost universally reviewed by the faculty as having substandard performance.”
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The only evidence offered by Liu was two letters from faculty members praising
her performance. The University explained that these letters did not contradict that
the voting faculty gave her poor reviews; both letters were written for the purpose
of requesting a grant from the American Cancer Society -- not an internal
evaluation -- and neither was written by a voting faculty member within Liu’s
department. Accordingly, Liu was not able to expose, through genuine disputes of
fact, any “weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions” in the University’s contention that it fired Liu based on her poor
performance as to cause a reasonable factfinder to find the given reason “unworthy
of credence.” Vessels, 408 F.3d at 771.
We also reject Liu’s claim that the district court erred by granting summary
judgment as to her FMLA claims. The FMLA creates a series of substantive rights
designed to allow eligible employees to take up to 12 weeks of unpaid leave per
year for a number of purposes, including “[i]n order to care for the spouse, or a
son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent
has a serious health condition.” 29 U.S.C. § 2612(a)(1)(C). The FMLA allows for
two types of claims: (1) interference claims, in which an employee asserts that an
employer denied or otherwise interfered with her substantive rights under the
FMLA, and (2) retaliation claims, in which an employee asserts that an employer
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discriminated against her because she engaged in activity protected by the FMLA.
O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1352 (11th Cir. 2000).
To establish a prima facie case of FMLA interference, a plaintiff must show
by a preponderance of the evidence that she was denied a benefit to which she was
entitled under the FMLA. Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1235
(11th Cir. 2010). To establish a prima facie case of FMLA retaliation, the plaintiff
must show that (1) she engaged in statutorily protected conduct, (2) she suffered a
materially adverse action, and (3) the adverse action was causally related to the
protected conduct. Id. at 1234. To establish a causal connection, the plaintiff must
show that the decision-maker was aware of her protected conduct at the time of the
adverse action and that the protected activity and adverse action were not wholly
unrelated. Id. FMLA actions generally have a two-year statute of limitations,
unless a plaintiff establishes that a defendant’s violation was willful, in which case,
the action must be brought within three years. 29 U.S.C. § 2617(c).
In this case, the district court addressed -- and rejected -- the merits of Lui’s
FMLA retaliation and interference claims based on the University’s denial of her
March 2011 request for an extension of her special review to take leave. On
appeal, however, Liu raises no claims based on the March 2011 request, even when
liberally construed, and never challenges the finding that she filed her claim after
the standard two-year statute of limitations for FMLA claims nor argues that her
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claims were subject to the three-year statute of limitations imposed for willful
violations. Thus, she has abandoned these claims. Sapuppo, 739 F.3d at 680.
As for her claim -- raised in the district court and in this Court -- that the
University retaliated against her for taking FMLA leave in October 2012, she has
failed to make a prima facie showing of retaliation on this basis. As the record
shows, she failed to show that her employer’s adverse action -- terminating her
employment -- was causally related to her protected FMLA leave. Krutzig, 602
F.3d at 1234. Liu was given written notice of her termination on October 7, 2011,
and she did not submit a formal request for FMLA leave until September 2012.
But Liu presented no evidence that the University, at the time it issued notice of
her termination, was aware of the leave request she would make nearly a year later.
Because she has not shown a causal relationship, the district court did not err in
granting summary judgment on this claim.
Finally, we find no merit to Liu’s argument that the district court erred by
denying her request for an extension of time to take affidavits and depositions,
which included a list of 49 witnesses. We review a district court’s discovery
rulings for abuse of discretion. Josendis v. Wall to Wall Residence Repairs, Inc.,
662 F.3d 1292, 1306 (11th Cir. 2011). A discovery ruling will not be overturned
unless it resulted in substantial harm to the appellant’s case. Id. at 1307. Even
with a pro se litigant, the denial of a motion for extended discovery will not be
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disturbed unless the party shows, beyond conclusory assertions, how the court’s
ruling resulted in substantial harm to her case. See Harrison v. Culliver, 746 F.3d
1288, 1296-97 (11th Cir. 2014) (holding that a denial of a pro se state prisoner’s
motion for discovery was not an abuse of discretion, in prisoner’s § 1983 action).
Under Fed. R. Civ. P. 16(b), the district court must issue a scheduling order
that limits the time to complete discovery. Fed. R. Civ. P. 16(b)(3)(A). The
schedule set forth by the court “may be modified only for good cause and with the
judge’s consent.” Id. 16(b)(4). While a court has the authority to grant an
extension to the discovery deadline for good cause, the court is under no obligation
to do so and it is generally not an abuse of discretion to hold parties to the clear
terms of a scheduling order. Josendis, 662 F.3d at 1307. Further, the court has
broad discretion to compel or deny discovery under Fed. R. Civ. P. 26. Id. at 1306.
Here, Liu cannot show that the district court abused its discretion. The
district court’s scheduling order clearly provided that April 3, 2015 was the
deadline to complete discovery, and holding Liu to the terms of the order was well
within the court’s discretion. Josendis, 662 F.3d at 1307. Once a scheduling order
is set, a district court may amend the order, but is under no obligation to do so. See
Fed. R. Civ. P. 16(b)(4); Josendis, 662 F.3d at 1307. Further, when granting Liu’s
first motion to extend time to respond to the motion for summary judgment, the
court advised Liu that “no further extensions will be given without good cause.”
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The fact the Liu had obtained counsel only several days prior to the
discovery deadline could have prompted the court to offer an extension; however,
finding that the act of obtaining new counsel does not warrant “extending the
deadlines that have been known and imposed since June 9, 2014” was within the
court’s discretion. Moreover, the court noted that, although Liu had proceeded pro
se for part of the discovery period, she had been represented by counsel for over a
year and half during the case. The court also noted that Liu had already conducted
significant discovery and that she “chose to conduct the discovery that she served
and Plaintiff’s and/or her counsel’s decision not to pursue certain other avenues of
discovery does not warrant any modification of the deadlines which were known
both to Plaintiff and her counsel.” Accordingly, the district court did not abuse its
discretion in declining Liu’s motion.
Nor did Liu make a sufficient showing to the district court to demonstrate
how denying her additional discovery would substantially harm her case.
Harrison, 756 F.3d at 1296-97. In her motion for an extension, she did not identify
any evidence that she hoped to obtain during additional discovery, much less
explain how such evidence was crucial to her case. This further demonstrates that
the court did not abuse its discretion in denying the request. See Josendis, 662
F.3d at 1306.
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AFFIRMED. 2
2
Nevertheless, we DENY Appellee’s motion under Fed. R. App. P. 38 for damages and costs
against the Appellant.
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