[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10205 JULY 3, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 01-00785-CV-J-32MCR
EMORY ANTHONY KINSEY,
Plaintiff-Appellant,
versus
CITY OF JACKSONVILLE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 3, 2006)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Emory Anthony Kinsey appeals, pro se, the orders of the district court that
dismissed part of Kinsey’s Sixth Amended Complaint, granted summary judgment
in favor of the City of Jacksonville and against Kinsey’s Seventh Amended
Complaint, and denied Kinsey’s motion for reconsideration. Kinsey filed a
complaint that alleged that the City violated the American with Disabilities Act and
the Family Medical Leave Act because the City failed to accommodate Kinsey’s
disability, created a hostile work environment, and retaliated against Kinsey when
he reported these violations. We affirm.
I. BACKGROUND
From 1996 until 2002, Kinsey was employed by the City as a Worker in the
Department of Public Works. Kinsey worked outdoors, laid sandbags, dug around
pipes, and operated saws. Since 1988, Kinsey has suffered from hypertension,
which does not allow him to work for more than 15 minutes in temperatures over
80 degrees.
In July 2000, Kinsey informed the City that he needed an accommodation
because of his health. On August 2, 2000, the City informed Kinsey that he could
not work until he received a full release from his doctor and his absence would be
considered FMLA leave. Kinsey filed a complaint with the Equal Employment/
Equal Access Office of the City that day. Kinsey was examined by both his
doctor, Kathleen Casey, and the Medical Review Officer of the City, Terry W.
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Kuhlwein. Both doctors stated that overexposure to sun and heat could cause
Kinsey to faint. On October 25, 2000, the City allowed Kinsey to return to work
“as long as the temperature stays at or below 80 degrees Fahrenheit.” Kinsey again
requested that the City accommodate him by assigning him to a climate-controlled
environment.
On January 26, 2001, Kinsey filed a complaint with the Florida Commission
on Human Relations. In May 2001, Kinsey fainted while working on a dump truck
and was diagnosed with heat exhaustion by Kuhlwein. That summer, Kinsey took
a second leave of absence under the FMLA.
Throughout July 2001, the City attempted to find another position for
Kinsey. The Personnel Services Manager met with Kinsey on several occasions to
find another position that accommodated Kinsey’s medical condition. The City
offered Kinsey a position as a Worker in the Canning Center, but Kinsey denied
receiving this offer. The City attempted to place Kinsey as an Police Emergency
Communications Officer, but Kinsey failed the qualification examination. On
October 16, 2001, Kinsey returned to the Department of Public Works.
In a letter dated February 14, 2002, the City advised Kinsey to search for
other employment because it was “the time of year when the average daily
temperature reaches 80 degree[s] Fahrenheit.” Kinsey met again with the
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Personnel Services Manager to find another position. The City also arranged for
Kinsey to attend a one-day computer course. On March 23, 2002, Kinsey filed a
second complaint with the FCHR that alleged discrimination. On July 31, 2002,
Kinsey fainted while operating a dump truck and caused the truck to overturn. He
continued to work for the City that summer.
On September 12, 2002, Kinsey requested an accommodation and filed a
complaint with the Equal Employment/Equal Access Office that alleged a hostile
work environment and failure to accommodate his disability. During that month,
Kinsey also met with representatives of the City who attempted to find another
position for him. On October 16, Kinsey resigned “because of medical and
emotional reasons.”
Kinsey filed five complaints in the district that were either amended by
Kinsey or dismissed by the district court for Kinsey’s failure to effect service. In
his Sixth Amended Complaint, Kinsey alleged hostile work environment, failure to
accommodate, and retaliation violations under the ADA and violations of the
FMLA. The City moved to dismiss for failure to state a claim. The district court
dismissed the hostile work environment and failure to accommodate claims
because Kinsey had failed to allege that he was disabled under the ADA. The
district court also dismissed the allegations under the FMLA, but allowed Kinsey
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to amend his complaint regarding the allegations of retaliation under the ADA.
In his Seventh Amended Complaint, Kinsey alleged that because he filed
complaints with the EEOC and FCHR, the City (1) sent several threatening letters
to him, (2) refused to reassign him, (3) forced him to take FMLA leave, (4) forced
him to drive a dump truck, (5) forced him to sign documents, and (6)
constructively discharged him by “ma[king] it virtually impossible for [him] . . . to
continue on the job.” The City moved for summary judgment.
The district court granted the motion for summary judgment. The district
court concluded that Kinsey had established a prima facie case based on the alleged
constructive discharge and the threatening letters sent by the City. The district
court also concluded that the City had established legitimate non-retaliatory
reasons for the allegedly adverse actions because Kinsey was unable to perform the
duties of his job due to his medical condition and the City had attempted to find
another position for Kinsey. The district court concluded that Kinsey failed to
establish pretext because Kinsey failed to show that he was eligible for another
available position with the City. After the district court entered summary judgment
and Kinsey filed his notice of appeal, Kinsey moved the district court for
reconsideration, and the district court denied the motion.
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II. STANDARD OF REVIEW
We review the grant of a motion to dismiss de novo “accepting the
allegations in the complaint as true and construing them in the light most favorable
to the nonmoving party.” Kizzire v. Baptist Health Sys., Inc., 441 F.3d 1306, 1308
(11th Cir. 2006). We review a grant of summary judgment by the district court de
novo and apply the same legal standards as the district court. State Farm Fire &
Cas. Co. v. Steinberg, 393 F.3d 1226, 1229 (11th Cir. 2004) (citing Iraola & CIA,
S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1283 (11th Cir. 2003)). We review
for an abuse of discretion the denial of a motion to reconsider. United States v.
Simms, 385 F.3d 1347, 1356 (11th Cir. 2004).
III. DISCUSSION
Kinsey presents three arguments. First, Kinsey contends that the district
court erred when it dismissed his alleged claims under the ADA and the FMLA.
Second, Kinsey argues that the district court erred when it granted summary
judgment to the City regarding Kinsey’s claim of retaliation under the ADA.
Third, Kinsey argues that the district court abused its discretion when it denied his
motion for reconsideration. We address each in turn.
A. The District Court Correctly Dismissed Kinsey’s Alleged Claims
Under the ADA and FMLA.
The district court correctly dismissed Kinsey’s allegations that the City
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failed to accommodate his disability under the ADA and violated the FMLA.
Kinsey alleged that the City violated the ADA, but he failed to allege a “disability”
that “substantially limits one or more of [his] major life activities.” 42 U.S.C. §
12102(2)(A); see Reid v. Heil Co., 206 F.3d 1055, 1061 (11th Cir. 2000). Kinsey
also alleged that the City violated the FMLA, but Kinsey failed to allege that the
City either (1) interfered with his FMLA benefits, or (2) retaliated against him
under the FMLA. See Russell v. N. Broward Hosp., 346 F.3d 1335, 1340 (11th
Cir. 2003). Kinsey failed to state a claim for relief under both the ADA and the
FMLA.
B. The District Court Did Not Erroneously Grant Summary Judgment
to the City.
Kinsey argues that the district court erred when it granted summary
judgment to the City and against his claim of retaliation under the ADA. The
district court concluded that although Kinsey established a prima facie case of
retaliation, the City provided legitimate non-retaliatory reasons. Because Kinsey
failed to establish that the reasons of the City were pretextual, the City was entitled
to summary judgment.
“We assess retaliation claims under the same framework we employ for
retaliation claims arising under Title VII.” Stewart v. Happy Herman’s Cheshire
Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997). “To establish a prima facie
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case of retaliation, a plaintiff must show: (1) statutorily protected expression; (2)
adverse employment action; and (3) a causal link between the protected expression
and the adverse action.” Id. Kinsey engaged in statutorily protected expression
because he filed complaints with the FCHR or EEOC on August 2, 2000, January
26, 2001, and March 23, 2002. The district court concluded that the City took an
adverse employment action against Kinsey when it required him to take FMLA
leave without pay and constructively discharged Kinsey because these actions
impacted the “term, conditions, or privileges” of Kinsey’s employment. Gupta v.
Fla Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000).
“Once a prima facie case is established, the burden then shifts to the
defendant employer to come forward with legitimate non-discriminatory reasons
for its actions that negate the inference of retaliation.” Stewart, 117 F.3d at 1287.
“[T]he defendant’s burden of rebuttal is exceedingly light . . . . [T]he defendant
need not persuade the court that its proffered reasons are legitimate; the
defendant’s burden is merely one of production, not proof.” Perryman v. Johnson
Prods. Co., 698 F.2d 1138, 1142 (11th Cir. 1983). The City proffered two
legitimate non-discriminatory reasons for its alleged adverse actions. The City
required Kinsey take unpaid FMLA leave because overexposure to the sun and
heat posed a danger to Kinsey’s health. The City also made several attempts to
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assign him to another position, but Kinsey did not qualify for other available
positions.
Kinsey failed to produce any evidence that the legitimate non-retaliatory
reasons presented by the City were pretextual. “The plaintiff must . . . demonstrate
that it will be able to establish at trial that the employer’s proffered
non-discriminatory reasons are a pretextual ruse designed to mask retaliation.”
Stewart, 117 F.3d at 1287. Because Kinsey failed to proffer any evidence to
establish the “weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons,” the district court
correctly granted summary judgment to the City. Combs v. Plantation Patterns,
Meadowcraft, Inc., 106 F.3d 1519, 1538 (11th Cir. 1997), cert. denied, 522 U.S.
1045, 118 S. Ct. 685 (1998).
C. We Lack Jurisdiction to Consider the Denial of Kinsey’s Motion for
Reconsideration.
We lack jurisdiction to review the denial of Kinsey’s motion for
reconsideration because Kinsey moved for reconsideration after he filed his notice
of appeal. “[T]he appeal from a final judgment draws in question all prior
non-final orders and rulings which produced the judgment. Barfield v. Brierton,
883 F.2d 923, 930–31 (11th Cir. 1989). “We . . . cannot exercise our appellate
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jurisdiction over” orders that had not yet been entered at the time the notice of
appeal was filed. McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir. 1986).
IV. CONCLUSION
The orders of dismissal and summary judgment are
AFFIRMED.
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