Tyra Cowman v. Northland Hearing Centers, Inc, et al

Filing

Opinion issued by court as to Appellant Tyra Cowman. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-11493

Date Filed: 10/07/2015

Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11493
Non-Argument Calendar
________________________
D.C. Docket No. 5:13-cv-01880-CLS

TYRA COWMAN,
Plaintiff-Appellant,
versus
NORTHLAND HEARING CENTERS, INC.,
DR. RAYMOND YOUNT,
Defendants-Appellees,
STARKEY HEARING TECHNOLOGY INC., et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(October 7, 2015)

Case: 15-11493

Date Filed: 10/07/2015

Page: 2 of 7

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Tyra Cowman, represented by counsel, brought this lawsuit on October 9,
2013, against Northland Hearing Centers, Inc. (“Northland”), All American
Hearing, Inc., Starkey Laboratories, Inc., and Starkey Hearing Technology, Inc.
After voluntarily dismissing the latter three defendants from the case, Cowman
filed an amended complaint against Northland and Dr. Raymond Young asserting
claims of interference and retaliation under the Family and Medical Leave Act of
1993, 29 U.S.C. § 2601 et seq. (“FMLA”). 1 By the time Northland and Dr. Young
filed a motion for summary judgment, Cowman’s counsel had withdrawn, so the
District Court appointed an attorney to investigate Cowman’s case and effectively
inform Cowman about the pending motion. After the attorney did so, the court
took the motion for summary judgment under advisement and entered an order
granting it, concluding that Cowman was ineligible for FMLA leave. Cowman,
appearing pro se, now appeals the judgment the court entered pursuant to that
order.
Cowan argues that the District Court erred in finding her ineligible for
FMLA leave. Liberally construing her brief, she also argues that the defendants
1

The amended complaint alleged that Dr. Young was the audiologist employed by
Northland in its Huntsville, Alabama office, who was responsible for “the day-to-day functions”
of Northland’s “North Alabama network of affiliated offices,” and who allegedly “maintained . .
. control over the terms and conditions of Cowman’s employment” in his capacity as her “direct
supervisor.”
2

Case: 15-11493

Date Filed: 10/07/2015

Page: 3 of 7

should be equitably estopped from asserting her ineligibility as an affirmative
defense.
I.
The FMLA provides that an “eligible employee” is entitled to take up to 12
weeks of leave during any 12-month period because of a serious health condition
which renders the employee unable to perform the functions of her job. 29 U.S.C.
§ 2612(a)(1)(D). To protect this right, the FMLA authorizes two types of claims:
“interference claims, in which an employee asserts that his employer denied or
otherwise interfered with his substantive rights under the [FMLA]; and retaliation
claims, in which an employee asserts that his employer discriminated against him
because he engaged in an activity protected by the [FMLA].” Pereda v. Brookdale
Senior Living Cmtys., Inc., 666 F.3d 1269, 1272 (11th Cir. 2012); see also 29
U.S.C. § 2615(a)(1) (prohibiting an employer from interfering with rights provided
by the FMLA); 29 U.S.C. § 2615(a)(2) (prohibiting an employer from discharging
or otherwise discriminating against an employee for engaging in protected
activity).
However, the protections of the FMLA only apply if the plaintiff is an
aggrieved “eligible employee.” See Pereda, 666 F.3d at 1272; 29 U.S.C.
§ 2612(a)(1) (stating that only an “eligible employee” shall be entitled to FMLA
leave); 29 U.S.C. § 2617(a)(1) (providing that an employer who violates § 2615
3

Case: 15-11493

Date Filed: 10/07/2015

Page: 4 of 7

shall be liable in a civil action to any “eligible employee”). The FMLA defines the
term “eligible employee” to exclude “any employee of an employer who is
employed at a worksite at which such employer employs less than 50 employees if
the total number of employees employed by that employer within 75 miles of that
worksite is less than 50.” 29 U.S.C. § 2611(2)(B)(ii). Thus, in order for the
FMLA to apply, the “employer(s) at issue must have at least 50 employees within a
75 mile radius of the worksite.” Morrison v. Magic Carpet Aviation, 383 F.3d
1253, 1254 (11th Cir. 2005).
This “worksite requirement” is both a threshold jurisdictional issue and a
required element of a plaintiff’s claim. See Morrison v. Amway Corp., 323 F.3d
920, 923 (11th Cir. 2003). Whether the worksite requirement is met is determined
as of the date the employee gives notice of the need for leave. 29 C.F.R.
§ 825.110(e). In certain situations, a plaintiff may reach the 50-employee
threshold by aggregating the employees of separate corporate entities. See Magic
Carpet Aviation, 383 F.3d at 1255-58. However, separate entities are generally
only considered as a single “integrated employer” for FMLA purposes if they share
a number of overlapping characteristics, such as: common management;
interrelation between operations; centralized control of labor relations; and a
degree of common ownership or financial control. Id. at 1257; see also 29 C.F.R.
§ 825.104(c).
4

Case: 15-11493

Date Filed: 10/07/2015

Page: 5 of 7

In this case, the district court did not err by granting summary judgment on
Cowman’s FMLA claims based on its finding that she was not an “eligible
employee” within the meaning of 29 U.S.C. § 2611(2)(B)(ii). Taking the evidence
in the light most favorable to Cowman, the uncontroverted evidence established
that her employer, Northland, employed fewer than 50 individuals within 75 miles
of her worksite. Regardless of whether Cowman’s primary worksite was in
Decatur or Gadsden, Northland’s business records, clearly showed that it employed
fewer than 50 individuals within 75 miles of either location. Throughout this
litigation, Cowman failed to present any evidence demonstrating that Northland
actually employed 50 or more employees within 75 miles of either of her
worksites.
Although a plaintiff may, in certain situations, aggregate the employees of
separate corporate entities to reach the 50-employee threshold, Cowman
abandoned this argument—that Northland and Starkey Laboratories, Inc. should be
considered as a single integrated employer—by failing to raise it in her initial brief.
See Access Now, Inc. v. Southwest Airlines, Co., 385 F.3d 1324, 1330 (11th Cir.
2004). Regardless, however, this argument fails on the merits, as she voluntarily
dismissed Starkey Laboratories from the lawsuit, and, at any rate, undisputed
evidence showed that Northland and Starkey Laboratories combined still employed
fewer than 50 individuals within 75 miles of her worksites.
5

Case: 15-11493

Date Filed: 10/07/2015

Page: 6 of 7

In sum, the record demonstrates that there was no genuine dispute as to
Cowman’s inability to meet the worksite requirement and therefore eligibility for
FMLA benefits.
II.
We have not determined whether the doctrine of equitable estoppel applies
as a matter of federal common law in the FMLA context. See Dawkins v. Fulton
Cty. Gov’t, 733 F.3d 1084, 1089 (11th Cir. 2013) (declining to decide whether
equitable estoppel applies to the FMLA). However, we have found it unnecessary
to decide whether equitable estoppel doctrine applies in that context where—even
assuming that it does—the plaintiff fails to establish an essential element of her
equitable estoppel claim. Id. at 1089-91 (affirming summary judgment on
plaintiff’s FMLA case based on her failure to establish an essential element of her
equitable estoppel claim, without deciding whether federal common law equitable
estoppel applies to the FMLA).
A party seeking to invoke the doctrine of equitable estoppel must establish
that:
(1) the party to be estopped misrepresented material facts; (2) the
party to be estopped was aware of the true facts; (3) the party to be
estopped intended that the misrepresentation be acted on or had reason
to believe that the party asserting the estoppel would rely on it; (4) the
party asserting the doctrine did not know, nor should it have known,
the true facts; and (5) the party asserting the estoppel reasonably and
detrimentally relied on the misrepresentation.
6

Case: 15-11493

Date Filed: 10/07/2015

Page: 7 of 7

Id. at 1089. To demonstrate detrimental reliance, a plaintiff must show that the
defendant’s actions caused her to change her position for the worse. Id.
Assuming that federal common law equitable estoppel applies to FMLA
claims, Cowman’s estoppel argument fails, as she did not establish an essential
element of an equitable estoppel claim—that she reasonably and detrimentally
relied on Northland’s misrepresentation that she was eligible for FMLA leave.
See Dawkins, 733 F.3d at 1089-91. Indeed, Cowman’s medical condition
necessitated emergency surgery on September 25, 2012, nearly two weeks before
her originally scheduled leave date of October 11. There is no indication that this
emergency surgery was contingent upon Northland’s representation that she was
entitled to FMLA leave, or that she changed her position for the worse in light of
Northland’s representation. See id.
AFFIRMED.

7