Emory Anthony Kinsey v. City of Jacksonville, (11th Cir. 2006)

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILEDU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 3, 2006

N o . 06-10205

THOMAS K. KAHN

N o n - A r g u m e n t Calendar

CLERK

D . C. Docket No. 01-00785-CV-J-32MCR

E M O R Y ANTHONY KINSEY,

Plaintiff-Appellant,

versus

CITY OF JACKSONVILLE,

Defendant-Appellee.

A p p e al from the United States District Court

fo r the Middle District of Florida

(July 3, 2006)

B efo re BLACK, BARKETT and PRYOR, Circuit Judges.

P E R CURIAM:

E m o r y Anthony Kinsey appeals, pro se, the orders of the district court that

d ism issed part of Kinsey's Sixth Amended Complaint, granted summary judgment in favor of the City of Jacksonville and against Kinsey's Seventh Amended C o m p lain t, and denied Kinsey's motion for reconsideration. Kinsey filed a co m p lain t that alleged that the City violated the American with Disabilities Act and th e Family Medical Leave Act because the City failed to accommodate Kinsey's d is ab ility , created a hostile work environment, and retaliated against Kinsey when h e reported these violations. We affirm.

I. BACKGROUND F ro m 1996 until 2002, Kinsey was employed by the City as a Worker in the D ep artm en t of Public Works. Kinsey worked outdoors, laid sandbags, dug around p ip es, and operated saws. Since 1988, Kinsey has suffered from hypertension, w h ic h does not allow him to work for more than 15 minutes in temperatures over 8 0 degrees.

In July 2000, Kinsey informed the City that he needed an accommodation b ecau se of his health. On August 2, 2000, the City informed Kinsey that he could n o t work until he received a full release from his doctor and his absence would be co n sid ered FMLA leave. Kinsey filed a complaint with the Equal Employment/ E q u al Access Office of the City that day. Kinsey was examined by both his d o cto r, Kathleen Casey, and the Medical Review Officer of the City, Terry W. K u h lw ein . Both doctors stated that overexposure to sun and heat could cause K in s e y 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 r eq u e ste d that the City accommodate him by assigning him to a climate-controlled e n v ir o n m e n t.

On January 26, 2001, Kinsey filed a complaint with the Florida Commission o n Human Relations. In May 2001, Kinsey fainted while working on a dump truck an d 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 K in sey. The Personnel Services Manager met with Kinsey on several occasions to fin d another position that accommodated Kinsey's medical condition. The City o f f er ed Kinsey a position as a Worker in the Canning Center, but Kinsey denied r ec eiv in g this offer. The City attempted to place Kinsey as an Police Emergency C o m m u n icatio n s Officer, but Kinsey failed the qualification examination. On O cto b er 16, 2001, Kinsey returned to the Department of Public Works.

In a letter dated February 14, 2002, the City advised Kinsey to search for o th er employment because it was "the time of year when the average daily tem p eratu re reaches 80 degree[s] Fahrenheit." Kinsey met again with the P erso n n el Services Manager to find another position. The City also arranged for K in sey to attend a one-day computer course. On March 23, 2002, Kinsey filed a seco n d complaint with the FCHR that alleged discrimination. On July 31, 2002, K in sey fainted while operating a dump truck and caused the truck to overturn. He co n tin u ed to work for the City that summer.

On September 12, 2002, Kinsey requested an accommodation and filed a co m p lain t with the Equal Employment/Equal Access Office that alleged a hostile w o rk environment and failure to accommodate his disability. During that month, K in s e y also met with representatives of the City who attempted to find another p o sitio n for him. On October 16, Kinsey resigned "because of medical and e m o tio n a l reasons." Kinsey filed five complaints in the district that were either amended by K in s e y or dismissed by the district court for Kinsey's failure to effect service. In h is Sixth Amended Complaint, Kinsey alleged hostile work environment, failure to acco m m o d ate, and retaliation violations under the ADA and violations of the F M L A . The City moved to dismiss for failure to state a claim. The district court d ism issed the hostile work environment and failure to accommodate claims b ecau se Kinsey had failed to allege that he was disabled under the ADA. The d is tr ic t court also dismissed the allegations under the FMLA, but allowed Kinsey to amend his complaint regarding the allegations of retaliation under the ADA.

In his Seventh Amended Complaint, Kinsey alleged that because he filed c o m p la in ts 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 h im to drive a dump truck, (5) forced him to sign documents, and (6) co n stru ctiv ely discharged him by "ma[king] it virtually impossible for [him] . . . to co n tin u e on the job." The City moved for summary judgment.

The district court granted the motion for summary judgment. The district c o u r t concluded that Kinsey had established a prima facie case based on the alleged c o n s tr u c tiv e discharge and the threatening letters sent by the City. The district c o u r t also concluded that the City had established legitimate non-retaliatory reaso n s for the allegedly adverse actions because Kinsey was unable to perform the d u ties of his job due to his medical condition and the City had attempted to find an o th er position for Kinsey. The district court concluded that Kinsey failed to e sta b lis h pretext because Kinsey failed to show that he was eligible for another av ailab le position with the City. After the district court entered summary judgment an d Kinsey filed his notice of appeal, Kinsey moved the district court for reco n sid eratio n , and the district court denied the motion. II. STANDARD OF REVIEW W e review the grant of a motion to dismiss de novo "accepting the alleg atio n s 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 (1 1 th Cir. 2006). We review a grant of summary judgment by the district court de n o v o and apply the same legal standards as the district court. State Farm Fire & C as. 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 fo r an abuse of discretion the denial of a motion to reconsider. United States v. S im m s , 385 F.3d 1347, 1356 (11th Cir. 2004).

III. DISCUSSION K in s e y presents three arguments. First, Kinsey contends that the district co u rt 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 ju d g m en t 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 m o tio n for reconsideration. We address each in turn.

A. The District Court Correctly Dismissed Kinsey's Alleged Claims U n d er the ADA and FMLA.

T h e district court correctly dismissed Kinsey's allegations that the City 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" th at "substantially limits one or more of [his] major life activities." 42U.S.C. § 1 2 1 0 2 ( 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 C ity either (1) interfered with his FMLA benefits, or (2) retaliated against him u n d er the FMLA. See Russell v. N. Broward Hosp., 346 F.3d 1335, 1340 (11th C ir. 2003). Kinsey failed to state a claim for relief under both the ADA and the FM LA.

B. The District Court Did Not Erroneously Grant Summary Judgment to the City.

K in s e y argues that the district court erred when it granted summary ju d g m en t to the City and against his claim of retaliation under the ADA. The d istrict court concluded that although Kinsey established a prima facie case of r eta lia tio n , the City provided legitimate non-retaliatory reasons. Because Kinsey f aile d to establish that the reasons of the City were pretextual, the City was entitled to summary judgment.

"W e assess retaliation claims under the same framework we employ for r eta lia tio n claims arising under Title VII." Stewart v. Happy Herman's Cheshire B rid g e, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997). "To establish a prima facie case of retaliation, a plaintiff must show: (1) statutorily protected expression; (2) ad v erse employment action; and (3) a causal link between the protected expression an d the adverse action." Id. Kinsey engaged in statutorily protected expression b e c au s e he filed complaints with the FCHR or EEOC on August 2, 2000, January 2 6 , 2001, and March 23, 2002. The district court concluded that the City took an ad v erse employment action against Kinsey when it required him to take FMLA leav e without pay and constructively discharged Kinsey because these actions im p acted the "term, conditions, or privileges" of Kinsey's employment. Gupta v. F la Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000).

"Once a prima facie case is established, the burden then shifts to the d efen d an t employer to come forward with legitimate non-discriminatory reasons fo r 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 n eed not persuade the court that its proffered reasons are legitimate; the d efen d an t's burden is merely one of production, not proof." Perryman v. Johnson P ro d s. Co., 698 F.2d 1138, 1142 (11th Cir. 1983). The City proffered two leg itim ate non-discriminatory reasons for its alleged adverse actions. The City req u ired Kinsey take unpaid FMLA leave because overexposure to the sun and h eat posed a danger to Kinsey's health. The City also made several attempts to assig n him to another position, but Kinsey did not qualify for other available p o s itio n s .

Kinsey failed to produce any evidence that the legitimate non-retaliatory reaso n s presented by the City were pretextual. "The plaintiff must . . . demonstrate th a t it will be able to establish at trial that the employer's proffered n o n - d is cr im in a to r y reasons are a pretextual ruse designed to mask retaliation." Stewart, 117 F.3d at 1287. Because Kinsey failed to proffer any evidence to estab lish the "weaknesses, implausibilities, inconsistencies, incoherencies, or c o n tr ad ic tio n s in the employer's proffered legitimate reasons," the district court co rrectly granted summary judgment to the City. Combs v. Plantation Patterns, M ead o w craft, Inc., 106 F.3d 1519, 1538 (11th Cir. 1997), cert. denied, 522 U.S.

1 0 4 5 , 118 S. Ct. 685 (1998).

C. We Lack Jurisdiction to Consider the Denial of Kinsey's Motion for R e c o n s id er a tio n .

W e lack jurisdiction to review the denial of Kinsey's motion for r ec o n s id e r atio n because Kinsey moved for reconsideration after he filed his notice o f appeal. "[T]he appeal from a final judgment draws in question all prior n o n -fin al orders and rulings which produced the judgment. Barfield v. Brierton, 8 8 3 F.2d 923, 930­31 (11th Cir. 1989). "We . . . cannot exercise our appellate ju risd ictio n over" orders that had not yet been entered at the time the notice of ap p eal was filed. McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir. 1986).

IV. CONCLUSION T h e orders of dismissal and summary judgment are A F F IR M E D .

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