Maggie Lamar v. Wells Fargo Bank & Co.

Filing

Opinion issued by court as to Appellant Maggie Lamar. Decision: Affirmed in part, Vacated and Remanded in part. Opinion type: Non-Published. Opinion method: Per Curiam.

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Date Filed: 12/01/2014

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11844
Non-Argument Calendar
________________________
D.C. Docket No. 2:12-cv-04002-AKK
MAGGIE LAMAR,
Plaintiff-Appellant,
versus
WELLS FARGO BANK,
Defendant,
WELLS FARGO BANK & CO.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(December 1, 2014)
Before MARCUS, MARTIN and JULIE CARNES, Circuit Judges.
PER CURIAM:

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Maggie Lamar, an Army reservist who suffered from post-traumatic stress
disorder (“PTSD”), anxiety, and depression, appeals the district court’s grant of
Wells Fargo’s motion for summary judgment as to her claims that it violated 38
U.S.C. § 4311 of the Uniformed Services Employment and Reemployment Rights
Act (“USERRA”) by terminating her because of her military leave (Claim 1); 38
U.S.C. §§ 4312 and 4313 of USERRA by failing to re-employ her and by not
allowing her, as a wounded service member, a recovery period of two years or
more before requiring her to seek re-employment (Claim 2); the Americans with
Disabilities Act (“ADA”) by terminating her because of her disability (Claim 3);
the ADA by failing to accommodate for her disability (Claim 4); and the
Rehabilitation Act by terminating her because of her disabilities and failing to
reinstate her (Claim 5). On appeal, she argues that: (1) the district court used
incorrect summary judgment standards; (2) the district court abused its discretion
in refusing to appoint counsel for her; and (3) the district court erred in holding that
her USERRA re-employment claim was time-barred. After careful review, we
affirm as to the first two claims, and vacate and remand as to the last claim.
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the nonmovant. Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1263-64 (11th Cir. 2010). We review a refusal to
appoint counsel for abuse of discretion, which requires a showing that the district
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court made a clear error of judgment. Bass v. Perrin, 170 F.3d 1312, 1320 (11th
Cir. 1999); Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1302 (11th Cir. 2009).
Claims or issues are abandoned on appeal if a plaintiff does not specifically
and clearly identify them in her brief. Access Now, Inc. v. Sw Airlines Co., 385
F.3d 1324, 1330-31 (11th Cir. 2004). To obtain reversal of a district court decision
that is based on multiple, independent grounds, an appellant must convince us that
every stated ground for the decision against him is incorrect. Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
Summary judgment is proper only when the evidence shows that “no
genuine issue of material fact exists and the moving party is entitled to judgment as
a matter of law.” Alvarez, 610 F.3d at 1264. The movant always bears the initial
burden of informing the district court of the basis for its motion, and identifying
those parts of the record that demonstrate an absence of a genuine issue of material
fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The
movant also may carry its burden by showing the court that there is an absence of
evidence to support the nonmoving party’s case. Celotex v. Catrett, 477 U.S. 317,
325 (1986). When that burden has been met, the burden shifts to the nonmovant to
demonstrate that there is a genuine issue of material fact, which precludes
summary judgment. Clark, 929 F.2d at 608. The nonmovant is required to go
beyond the pleadings and to present competent evidence in the form of affidavits,
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answers to interrogatories, depositions, admissions and the like, designating
specific facts showing a genuine issue for trial. Celotex, 477 U.S. at 324.
First, we find unavailing Lamar’s arguments concerning the summary
judgment standards cited by the district court. For starters, the district court did
not state an improper standard for summary judgment in its decision, and nothing
requires the district court to state every possible summary judgment legal standard
in its statement of the law. Lamar’s argument that the court failed to mention that
it would resolve factual inferences in her favor is also misplaced because the court
did, in fact, state that it “must construe the evidence and all reasonable inferences
arising from it in the light most favorable to the non-moving party.”
As for her claim that the district court applied an incorrect summary
judgment standard that required her to show that a genuine issue of fact existed as
to Wells Fargo’s various “affirmative defenses” relevant to her ADA claims,
Lamar does not properly challenge her ADA claims on appeal. Specifically, she
says that the district court’s grant of summary judgment was improper because it
required her to carry the burden of showing: (1) timeliness as to her ADA
termination and discrimination claims (Claims 3 and 4); (2) that she should not be
estopped from arguing that she was a qualified individual for her ADA-termination
claim (Claim 3); and (3) that she was a qualified individual for her ADA claims
(Claims 3 and 4). Notably, however, she does not challenge the district court’s
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independent and alternative grounds for granting summary judgment on her ADA
claims -- that the accommodations she identified were unreasonable (for her ADAfailure-to-accommodate claim), and that she failed to establish pretext (for her
ADA-termination claim). Accordingly, we decline to review Lamar’s arguments
concerning the allegedly incorrect standard the district court applied in ruling on
her ADA claims because she failed to challenge on appeal the district court’s
independent and alternative grounds for granting summary judgment as to those
claims. See Sapuppo, 739 F.3d at 680 (“When an appellant fails to challenge
properly on appeal one of the grounds on which the district court based its
judgment, he is deemed to have abandoned any challenge of that ground, and it
follows that the judgment is due to be affirmed.”).
We are also unconvinced by Lamar’s claim that the district court abused its
discretion in refusing to appoint counsel for her because it only addressed one of
the factors that indicate “exceptional circumstances” -- namely, the complexity of
the facts and legal issues presented. Appointment of counsel in a civil case is not a
constitutional right. Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990). Thus,
in deciding whether to appoint counsel, the district court has broad discretion and
should appoint counsel only in exceptional circumstances. Bass, 170 F.3d at 1320
(determining that, while “plaintiffs, like any other litigants, undoubtedly would
have been helped by the assistance of a lawyer,” the facts and legal claims in their
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case were “not so unusual that the district court abused its discretion by refusing to
appoint counsel”). The following factors should be considered when determining
whether exceptional circumstances exist: (1) the type and complexity of the case;
(2) whether the indigent is capable of adequately presenting his case; (3) whether
the indigent is in a position to adequately investigate the case; and (4) whether the
evidence will consist in large part of incidents the indigent witnessed herself. See
Fowler, 899 F.2d at 1096 (citing with approval the factors identified in Ulmer v.
Chancellor, 691 F.2d 209, 213 (5th Cir. 1982)).
In this case, the district court did not abuse its discretion by only mentioning
one of the exceptional-circumstances factors -- that the facts of the case were not
so complex as to warrant granting the request for appointment of counsel. Even
though the court did not state explicitly that it had considered each possible factor
in its order, caselaw does not require it to do so. Moreover, Lamar did not show
that the district court’s decision constituted a clear error of judgment, since, as we
see it, her claims were not novel or complex, she was able to file numerous
pleadings before the district court, she had personal knowledge of the facts
underlying the case, and she had experience with employment law. In short,
Lamar did not show that the district court’s decision to deny her request for
counsel constituted a clear error of judgment.

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Nevertheless, we find merit in Lamar’s claim that the district court erred by
holding on summary judgment that her USERRA re-employment claim was timebarred. The USERRA prohibits employers from discriminating against employees
on the basis of military service. 38 U.S.C. § 4311. The USERRA also provides
service members the right of re-employment in their previous civilian positions at
the conclusion of their military service. Id. § 4312(a). Unlike § 4311, § 4312 does
not require an employee to show any discriminatory animus. Coffman v. Chugach
Support Services, Inc., 411 F.3d 1231, 1235 (11th Cir. 2005). Under § 4312, the
employee must timely notify the employer of his intention to return to work, and
submit a written application for re-employment. 38 U.S.C. § 4312(a)(1), (3).
Pertinent to the present case, an employee whose active military duty lasted more
than 180 days must submit an application for re-employment with his employer no
later than 90 days after his completion of active duty.

Id. § 4312(e)(1)(D).

However, an exception to the 90-day deadline provides that:
(A) A person who is hospitalized for, or convalescing from, an illness or
injury incurred in, or aggravated during, the performance of service in the
uniformed services shall, at the end of the period that is necessary for the
person to recover from such illness or injury, report to the person’s employer
. . . or submit an application for reemployment with such employer . . . .
Except as provided in subparagraph (B), such period of recovery may not
exceed two years.
(B) Such two-year period shall be extended by the minimum time required
to accommodate the circumstances beyond such person’s control which
make reporting within the period specified in subparagraph (A) impossible
or unreasonable.
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Id. § 4312(e)(2). Further, an accompanying regulation explains that:
If the employee is hospitalized for, or convalescing from, an illness or injury
incurred in, or aggravated during, the performance of service, he or she must
report to or submit an application for reemployment to the employer at the
end of the period necessary for recovering from the illness or injury. This
period may not exceed two years from the date of the completion of service,
except that it must be extended by the minimum time necessary to
accommodate circumstances beyond the employee’s control that make
reporting within the period impossible or unreasonable. This period for
recuperation and recovery extends the time period for reporting to or
submitting an application for reemployment to the employer, and is not
applicable following reemployment.
20 C.F.R § 1002.116.
Here, the district court erred by concluding that Lamar did not timely report
to work under § 4312(e)(2)(A), without considering the exception contained in §
4312(e)(2)(B) -- which provides that a service member shall be re-employed after
the two-year deadline for reporting back to work or reapplying, if reporting back or
reapplying was “impossible or unreasonable” due to circumstances beyond that
person’s control. As the record reveals, Lamar claimed in her response to Wells
Fargo’s motion for summary judgment that it was “impossible or unreasonable” to
report or reapply to work within the required timeframe; accordingly, the district
court should have considered the exception in § 4312(e)(2)(B). It is true that
Lamar showed some confusion about the applicable deadline when she said that
she was unable to report within 90 days -- the deadline applicable to service
members not suffering from an illness or injury -- and that she “did not have to
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reinstate herself” within 2 years because she was terminated before she could do
so. Nevertheless, because pro se filings are to be construed liberally, we conclude
that Lamar fairly presented the issue of whether the exception in § 4312(e)(2)(B)
applied to her case.
The district court also erred by granting summary judgment on the USERRA
re-employment claim because Lamar showed a genuine issue of fact about whether
it was “impossible or unreasonable” for her to report to work or reapply within the
two-year timeframe. See Clark, 929 F.2d at 608. In her response to Wells Fargo’s
summary judgment motion, Lamar argued that she suffered from depression
beginning in August 2010, which indefinitely precluded her from reporting to
work. In support of her argument, she submitted as evidence the Wells Fargo
FMLA “Certification of Health Care Provider Team Member” form from a doctor,
indicating that, as of August 2010, she could not return to work. The form further
showed that her return-to-work date was “undetermined” based on her conditions.
This evidence established a genuine issue for trial as to whether it was “impossible
or unreasonable” for her to report to work or reapply within the two-year
timeframe. In addition, Wells Fargo acknowledged that Lamar was not able to
return to work within two years of her return from service. Therefore, we vacate
and remand the district court’s grant of summary judgment as to the USERRA reemployment claim (Claim 2) for further proceedings.
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AFFIRMED IN PART, VACATED AND REMANDED IN PART.

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