Traci Roberts v. Unitrin Specialty Lines Ins, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [09-10350 Dismissed as Frivolous] Judge: PEH , Judge: JES , Judge: CH. Mandate pull date is 01/11/2011; denying as moot motion to dismiss appeal filed by Appellees Trinity Universal Insurance Co, Unitrin Inc, Mr. James Dickey, Unitrin Specialty Lines Insurance Company, Mr. John Mullen, Mr. Dan Maloney, Mr. Lawrence Kufel and Unitrin County Mutual Insurance Company [6534332-3]; denying motion for sanctions filed by Appellant Ms. Traci Roberts [6671170-3]; denying motion for appellate mediation program filed by Appellant Ms. Traci Roberts [6671170-5]; denying motion authorize prep of transcript at government expense filed by Appellant Ms. Traci Roberts [6671170-4]; denying motion to appoint counsel filed by Appellant Ms. Traci Roberts [6671170-2]; denying motion to proceed IFP filed by Appellant Ms. Traci Roberts [6404472-2] [09-10350]

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Traci Roberts v. Unitrin se: 09-10350Ins, et al CaSpecialty Lines Document: 00511329020 Page: 1 Date Filed: 12/21/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-10350 S u m m a r y Calendar December 21, 2010 Lyle W. Cayce Clerk T R A C I ROBERTS, P la in t if f -A p p e lla n t v. U N IT R I N SPECIALTY LINES INSURANCE CO; TRINITY UNIVERSAL I N S U R A N C E COMPANY; UNITRIN INC; JOHN MULLEN; DAN MALONEY; J A M E S DICKEY; LAWRENCE KUFEL; UNITRIN COUNTY MUTUAL I N S U R A N C E CO, D e fe n d a n t s -A p p e lle e s A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 3:06-CV-380 B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* T r a c i Roberts, acting pro se, filed an in forma pauperis (IFP) complaint a g a in s t her former employer, several of its related companies, and several of its e m p lo y e e s , alleging that they discriminated and retaliated against her in v io la t io n of Title VII of the Civil Rights Act, the Americans with Disabilities Act Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Dockets.Justia.com Case: 09-10350 Document: 00511329020 Page: 2 Date Filed: 12/21/2010 No. 09-10350 (A D A ), the Family and Medical Leave Act (FMLA), the Employee Retirement I n c o m e Security Act (ERISA), the Consolidated Omnibus Budget Reconciliation A c t of 1985 (COBRA), and numerous Texas statutes. The district court granted d e fe n d a n t s ' motion for summary judgment, dismissed Roberts's claims, and d e n ie d her request to proceed IFP on appeal, certifying that the appeal was not t a k e n in good faith. She now moves to proceed IFP in this court. We DENY IFP s t a t u s , DISMISS the appeal as frivolous, and DENY all other motions. I . Factual Background R o b e r t s began working for Unitrin on September 8, 2003, as a marketing m a n a g e r ; shortly after she arrived at Unitrin, James Dickey became her s u p e r v is o r . In April or May 2004, Roberts was assigned to correct problems with t h e "Texas Contract Project," which was an ongoing, highly visible project that h a d been rife with problems. Roberts contends that her supervisors blamed her fo r the failure of the project, although she allegedly was not responsible for its c o n t in u e d failures. On April 15, 2004, Cliff Shumway, a sales manager, a lle g e d ly "verbally assaulted" her; she reported the incident to Dan Maloney, v ic e president of human resources, on April 29, 2004. On May 24, 2004, S h u m w a y again allegedly verbally attacked her. On May 29, 2004, Dickey a lle g e d ly transferred 50% of Roberts's job duties to Mike Bascue; Roberts did not s u ffe r any loss of pay as a result. Roberts further alleges that on June 4 and 15, 2004, Roberts injured her b a c k at work. At some point in early June 2004, Dickey removed a project from R o b e r t s , and Roberts heard Shumway say he won a bet that the project would b e removed from her. On June 21, 2004, Roberts sent an email to Maloney c o m p la in in g about the work environment. On June 23, 2004, Dickey, Larry K u fe l, and Shumway made a presentation to management blaming Roberts, and D ic k e y interrogated her and brought her to tears. On July 7, 2004, Dickey is s u e d a disciplinary action notice to Roberts, requiring her to complete seven la r g e projects by July 30, 2004, or be terminated. Roberts worked from home 2 Case: 09-10350 Document: 00511329020 Page: 3 Date Filed: 12/21/2010 No. 09-10350 d u e to pain on July 23, 2004, and never returned to work. She began receiving s h o r t -t e r m disability benefits on July 26, 2004, and thereafter her ability to c h e c k voicemail and emails was cut off, her telephone extension was deleted, and h e r direct reports were transferred. In January 2005, Unitrin notified Roberts t h a t her short-term leave would expire on January 21, 2005, and that she was r e q u ir e d to return to work by January 24, 2005, or she would be terminated. Roberts did not return to work and produced a doctor's note to the effect that she w a s unable to return to work. Unitrin contends that she was terminated on J a n u a r y 31, 2005 for failure to comply with its return to work policy following a period of short-term disability. II. Standard of Review R o b e r t s 's motion to proceed IFP on appeal is construed as a challenge to t h e district court's certification decision. Baugh v. Taylor, 117 F.3d 197, 202 (5th C ir . 1997). Thus, her request "must be directed solely to the trial court's reasons fo r the certification decision." Id. This court's inquiry into whether the appeal is taken in good faith "is limited to whether the appeal involves legal points a r g u a b le on their merits (and therefore not frivolous)." Howard v. King, 707 F .2 d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted). T h is court reviews the grant of summary judgment de novo. Dillon v. R o g e r s , 596 F.3d 260, 266 (5th Cir. 2010). Under the version of Rule 56 in effect a t the time of the district court's judgment, summary judgment is appropriate " if the pleadings, the discovery and disclosure materials on file, and any a ffid a v it s show that there is no genuine issue as to any material fact and that t h e movant is entitled to a judgment as a matter of law." FED. R. CIV. P. 5 6 (c ) ( 2 ) .1 1 Effective December 1, 2010, Rule 56 was amended. 3 Case: 09-10350 Document: 00511329020 Page: 4 Date Filed: 12/21/2010 No. 09-10350 I I I . Discussion A. T it le VII Claims 1 . Time Bar and Continuing Violations Doctrine R o b e r t s first claims that the district court erred in determining that c o n d u c t that occurred prior to June 18, 2004, was time barred because it o c c u r r e d greater than 300 days from the date that Roberts filed her complaint w i t h the EEOC. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2 0 0 2 ); see also Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998). She a lle g e s that that conduct is not time barred based on the continuing violations d o c tr in e . The continuing violations doctrine is an equitable doctrine that extends t h e limitations period on otherwise time-barred claims when the unlawful e m p lo y m e n t practice in question "manifests itself over time, rather than as a s e r ie s of discrete acts." Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2 0 0 4 ). This court has noted that: t h e core idea [of the continuing violation theory] is that equitable c o n s id e r a t io n s may very well require that the filing periods not b e g in to run until facts supportive of a Title VII charge or civil r ig h t s action are or should be apparent to a reasonably prudent p e r s o n similarly situated. The focus is on what event, in fairness a n d logic, should have alerted the average lay person to act to p r o t e c t his rights. G la s s v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1560-61 (5th Cir. 1985) (internal c it a t io n and quotation omitted). T h e parties dispute here whether Roberts raised that argument in the d is t r ic t court. Regardless of whether it was properly raised in the district court, t h e continuing violations doctrine is not applicable here because Roberts a c k n o w le d g e d that she was aware of her Title VII rights on July 26, 2004, when s h e signed a document entitled "Decision Not to File or to Drop Issues" after b e in g interviewed by an EEOC investigator. Thus, defendants' alleged 4 Case: 09-10350 Document: 00511329020 Page: 5 Date Filed: 12/21/2010 No. 09-10350 discriminatory practices did not manifest themselves over time, and the continuing violations theory is therefore not relevant here. See Pegram, 361 F .3 d at 279. Roberts's remaining Title VII discrimination claims are without merit because she has failed to set forth a prima face case of discrimination with respect to all conduct other than her termination, and with respect to her termination, she has failed to show that defendants' reason for her discharge, her failure to return to work after her short-term leave expired, was a pretext. 2. Absence of Evidence That Reason for Termination Was Pretextual Title VII prohibits discrimination in employment decisions on the basis of " r a c e , color, religion, sex or national origin." 42 U.S.C. 2000e-2(a)(1). Absent d ir e c t proof of discrimination, a plaintiff may assemble proof via circumstantial e v id e n c e using the framework set forth in McDonnell Douglas Corp. v. Green, 4 1 1 U.S. 792 (1973). "First, the plaintiff must establish a prima facie case of d is c r im in a t io n . Second, the employer must respond with a legitimate, n o n d is c r im in a t o r y reason for its decision. This burden on the employer is only o n e of production, not persuasion, involving no credibility assessments." Russell v . McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000) (internal quotation m a r k s and citations omitted). If the employer meets its burden of production, t h e plaintiff must then offer evidence to create a genuine issue of material fact a s to whether the nondiscriminatory reason is a pretext or is only one of the r e a s o n s for the employer's conduct and the plaintiff's protected characteristic is a n o t h e r motivating factor. Burrell v. Dr Pepper/Seven Up Bottling Group, Inc., 4 8 2 F.3d 408, 412 (5th Cir. 2007). A reason is pretextual if it is false, "unworthy o f credence," or otherwise unpersuasive. Reeves v. Sanderson Plumbing Prods., I n c ., 530 U.S. 133, 147 (2000). To establish a prima facie case of discrimination, a plaintiff must show t h a t she is a member of a protected class; is qualified for the job; suffered an 5 Case: 09-10350 Document: 00511329020 Page: 6 Date Filed: 12/21/2010 No. 09-10350 a d v e r s e employment action by the employer; and was either replaced by s o m e o n e outside her protected group or received less favorable treatment than a similarly situated individual outside the protected group. McCoy v. City of S h r e v e p o r t, 492 F.3d 551, 556 (5th Cir. 2007). With respect to conduct other than her termination, Roberts has failed to show that she suffered an adverse employment action because none of the postJune 18, 2004 conduct constituted an "ultimate employment decision," which includes hiring, granting leave, discharging, promoting, or compensating. See Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 878 (5th Cir. 1999); see also Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 532 n.2 (5th Cir. 2003) (noting that "removal of employee's name from letterhead, ostracism by coworkers, and loss of some job duties" are not ultimate employment decisions). With respect to her termination, assuming for the sake of argument that Roberts has set forth a prima facie case of sex discrimination,2 Roberts has not shown that Unitrin's reason for her termination was a pretext. Specifically, the record reflects that Unitrin's policy was to terminate any employee who did not return to work after his or her qualified leave had expired and that it consistently enforced that policy. The record also reflects that Roberts was terminated because she failed to return to work after her shortterm disability leave expired and that Roberts admitted that she was unable to return to work after her leave expired. Roberts has set forth no evidence that Unitrin's reason for her termination was false, unworthy of credence, or o t h e r w i s e unpersuasive, see Reeves, 530 U.S. at 147, or that her sex was a motivating factor in her termination. See Burrell, 482 F.3d at 412.3 Unitrin argues that Roberts was not replaced with someone outside the protected class. Because we conclude that Roberts failed to establish that Unitrin's proffered reason for discharging her was pretextual, we need not reach this issue. Roberts cites a remote-in-time statement by Dickey that he liked to have men in managerial positions as support for her claim of sex discrimination. However, because Roberts 3 2 6 Case: 09-10350 Document: 00511329020 Page: 7 Date Filed: 12/21/2010 No. 09-10350 3. Constructive Discharge and Retaliation Roberts's constructive discharge claim is without merit because she was terminated; she did not resign. See Brown v. Bunge Corp. 207 F.3d 776, 782 (5th Cir. 2000) ("When an employee resigns, he may satisfy the discharge requirement by proving constructive discharge."). Roberts's Title VII retaliation claims also fail. To establish a prima facie c a s e of retaliation, "a plaintiff must show that (1) she participated in a Title VII p r o t e c t e d activity, (2) she suffered an adverse employment action by her e m p lo y e r , and (3) there is a causal connection between the protected activity and t h e adverse action." Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 331 (5th C ir . 2009). With respect to the third element, the plaintiff must demonstrate t h a t the defendant knew about her protected activity. See Manning v. Chevron C h e m . Co., 332 F.3d 874, 884 (5th Cir. 2003). The causation element may be p r o v e d by temporal proximity between the protected activity and the adverse e m p lo y m e n t action when they occur "very close" in time. Washburn v. Harvey, 5 0 4 F.3d 505, 511 (5th Cir. 2007) (internal quotation and citation omitted). An adverse employment action is one that "a reasonable employee would h a v e found . . . [to be] materially adverse, which in this context means it well m ig h t have dissuaded a reasonable worker from making or supporting a charge o f discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2 0 0 6 ) (quotation marks omitted). A Title VII retaliation case is also subject to t h e burden-shifting framework set forth in McDonnell Douglas. LeMaire v. L o u is ia n a , 480 F.3d 383, 38889 (5th Cir. 2007). The only adverse employment action that Roberts has identified is her t e r m in a t io n ; the transfer of some of her job duties to Bascue is not an adverse e m p lo y m e n t action under these circumstances, particularly in light of the fact was ultimately terminated by the human resources department for failing to return to work, rather than by Dickey for her performance deficiencies, we need not address whether this alleged statement provides evidence of Dickey's discriminatory intent. 7 Case: 09-10350 Document: 00511329020 Page: 8 Date Filed: 12/21/2010 No. 09-10350 t h a t Roberts acknowledges that she was overworked prior to the transfer. Cf. S te w a r t, 586 F.3d at 33233 (evaluating whether allegedly retaliatory acts were " a d v e r s e " in light of surrounding facts and noting that "`the significance of any g iv e n act of retaliation will often depend upon the particular circumstances'") (c it in g and quoting White, 548 U.S. at 69, 71). Assuming for the sake of a r g u m e n t that she engaged in protected activity (1) when she reported S h u m w a y 's assault to Maloney on April 29, 2004; (2) when she reported S h u m w a y 's assault to Maloney on June 21, 2004, (3) when she reported her back in ju r y to Dickey on June 23, 2004, and (4) when she reported to Dickey r e g a r d in g Shumway's bet about her, she has failed to establish a causal c o n n e c t io n between the protected activities and her termination. The record r e v e a ls that Roberts was terminated on January 31, 2005. Thus, she was t e r m in a t e d approximately nine months after she alleges that she first c o m p la in e d about Shumway and approximately eight months after she alleges t h a t she next complained about Shumway, complained to Dickey regarding her b a c k injury, and complained about Shumway's bet. The several-month spans b e tw e e n the alleged protected activities and her termination negate any a r g u m e n t that a causal connection existed between the activities and the t e r m in a t io n . See Washburn, 504 F.3d at 511. 4. Hostile Work Environment R o b e r t s 's claims that she was subjected to a hostile work environment w h e n Dickey allegedly stated that the marketing department would be better off w it h o u t females; when Dickey hired Bascue to replace her; when Shumway v e r b a lly attacked her twice and acted violent toward other females; when Dickey a n d Shumway referred to her as "poor Traci"; when Dickey, Shumway, and Kufel b la m e d her for the problems with the Texas Contract Project; and when Dickey g a v e her "physically demanding workloads" and threatened to fire her are w it h o u t merit. 8 Case: 09-10350 Document: 00511329020 Page: 9 Date Filed: 12/21/2010 No. 09-10350 T o prevail on a hostile work environment claim, Roberts must establish t h a t : "(1) [she] belongs to a protected class; (2) was subjected to unwelcome s e x u a l harassment; (3) the harassment was based on [her] sex; (4) the h a r a s s m e n t affected a term, condition, or privilege of [her] employment; and (5) t h e employer knew or should have known of the harassment and failed to take r e m e d ia l action." Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 523 (5 t h Cir. 2003). To affect a term, condition, or privilege of employment, the h a r a s s in g conduct "`must be sufficiently severe or pervasive to alter the c o n d itio n s of [the victim's] employment and create an abusive working e n v i r o n m e n t . '" Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 67 (1986) (in t e r n a l quotation marks omitted). At the very least, Roberts has failed to establish that any harassment was b a s e d on her sex. See Mota, 261 F.3d at 523. She has established nothing more t h a n "simple teasing, offhand comments, and isolated incidents" that do not rise t o the level of actionable harassment. Faragher v. City of Boca Raton, 524 U.S. 7 7 5 , 788 (1998) (internal quotation marks omitted).4 B . ADA Claims R o b e r t s has not shouldered her burden with respect to her ADA claims. To establish a prima facie case of discrimination under the ADA, a plaintiff must e s t a b lis h the following: (1) she suffers from a disability; (2) she is qualified for t h e job despite the disability; (3) she was subjected to an adverse employment a c t i o n due to the disability; and (4) she was treated less favorably than nond is a b le d employees. McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279-80 ( 5 t h Cir. 2000). However, even assuming that one has a disability, to be a q u a lifie d individual with a disability, the plaintiff must be "an individual with a disability who, with or without reasonable accommodation, can perform the The Supreme Court in Faragher appended the important caveat "unless extremely serious" to this list of non-actionable conduct. 524 U.S. at 788. The conduct of which Roberts complains is not, under our precedent, "extremely serious." 4 9 Case: 09-10350 Document: 00511329020 Page: 10 Date Filed: 12/21/2010 No. 09-10350 e s s e n t ia l functions of the employment position that such individual holds or d e s ir e s ." 42 U.S.C. 12111(8). Under the ADA, a covered employer must p rov id e "reasonable accommodations to the known physical or mental limitations o f an otherwise qualified individual with a disability who is an applicant or e m p lo y e e , unless [the employer] can demonstrate that the accommodation would im p o s e an undue hardship." 42 U.S.C. 12112(b)(5)(A). The record in the instant case reflects that Roberts has not established t h a t she is a qualified individual with a disability because she has not shown t h a t she can perform the essential functions of her job with or without r e a s o n a b le accommodations. On January 10, 2005, her doctor stated that she w a s "unable to function at work," and "when she can return to work is unknown - certainly not for another 4 to 6 weeks probably." Moreover, on January 20, 2 0 0 5 , Roberts conceded that she could not return to work. Roberts has produced n o evidence showing that she was able to perform the essential functions of her j o b as marketing manager with or without reasonable accommodations; thus, e v e n if she had a disability, she has not shown that she is a qualified individual w it h a disability. See, e.g., Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 7 5 9 (5th Cir. 1996) (noting that the ability to appear for work is an essential e le m e n t of any job and that a "reasonable accommodation" does not require an e m p lo y e r to wait an indefinite period of time for the employee's medical c o n d itio n to improve). Roberts's ADA retaliation claim is likewise without merit. To make a p r im a facie case of retaliation under the ADA, Roberts must demonstrate that: (1 ) she engaged in protected activity, (2) an adverse employment action occurred, a n d (3) a causal link exists between the protected activity and the adverse e m p lo y m e n t action. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5 t h Cir. 2007). Even if Roberts has satisfied the first and second elements of her prima fa c ie case of ADA retaliation, her claim fails because the record establishes that 10 Case: 09-10350 Document: 00511329020 Page: 11 Date Filed: 12/21/2010 No. 09-10350 R o b e r t s was terminated for her failure to return to work after her leave expired. Thus, she cannot show a causal connection between her participation in a p r o t e c t e d activity and her termination. Id. C . FMLA Claims R o b e r t s alleged that her FMLA rights were violated because she was d e n ie d FMLA leave after she was eligible for and requested it. The FMLA e n tit le s eligible employees to 12 workweeks of leave in any 12-month period for v a r io u s qualifying events, including a "serious health condition that makes the e m p lo y e e unable to perform the functions" of her position. 29 U.S.C. 2612(a)(1)(D). An employee is "eligible" for FMLA leave if the employee has b e e n employed "(i) for at least 12 months by the employer . . . and (ii) for at least 1 ,2 5 0 hours of service with such employer during the previous 12-month period." 2 9 U.S.C. 2611(2)(A). The record reveals that when Roberts first took leave on July 26, 2004, she h a d only been employed by Unitrin for 11 months; thus, she was not eligible for F M L A leave. See id. When Roberts allegedly requested FMLA leave in D e c e m b e r 2004, she was eligible for FMLA leave, see id., but she had already b e e n on leave for greater than 12 weeks, or for approximately 20 weeks. Thus, s h e was not entitled to additional FMLA leave at that point. Cf. Ragsdale v. W o lv e r in e World Wide, 535 U.S. 81, 96 (2000). R o b e r t s 's FMLA retaliation claim likewise fails. Retaliation claims under t h e FMLA are analyzed using the McDonnell Douglas burden-shifting fr a m e w o r k . See Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 768 (5th C ir . 2001). To make a prima facie case of retaliation under the FMLA, the p la in t iff must show that: "(1) she was protected under the FMLA; (2) she s u ffe r e d an adverse employment decision; and either (3a) that she was treated le s s favorably than an employee who had not required leave under the FMLA; o r (3b) the adverse decision was made because she took FMLA leave." Id. (c it a t io n omitted). Once the plaintiff makes a prima facie showing, the burden 11 Case: 09-10350 Document: 00511329020 Page: 12 Date Filed: 12/21/2010 No. 09-10350 s h ift s to the defendant "to articulate a legitimate nondiscriminatory or n o n r e t a lia t o r y reason for the employment action." Id. If the defendant makes s u c h a showing, the plaintiff "must show by a preponderance of the evidence t h a t [the defendant's] reason is a pretext for retaliation." Id. R o b e r t s 's FMLA retaliation claims are without merit because, as shown a b o v e , at the very least, she has failed to show that she was entitled to FMLA le a v e . See id. Thus, she has failed to establish a prima facie case for FMLA r e t a lia tio n . See id. D. ERISA,5 HIPAA,6 and COBRA 7 Claims R o b e r t s claims that her ERISA, HIPAA, and COBRA rights were violated b e c a u s e Unitrin retaliated against her by cancelling her COBRA benefits after U n itr in "was served with" her EEOC charge. "To establish a prima facie case of discrimination under ERISA, a plaintiff m u s t establish that his employer [discriminated against him] in retaliation for e x e r c is in g an ERISA right or to prevent attainment of benefits to which he w o u ld have become entitled under an employee benefit plan." Holtzclaw v. DSC C o m m c 'n s Corp., 255 F.3d 254, 260 (5th Cir. 2001). "An essential element of a [2 9 U.S.C. 1140] claim is proof of [the] defendant's specific discriminatory in t e n t ." Hines v. Mass. Mut. Life Ins. Co., 43 F.3d 207, 209 (5th Cir. 1995). Roberts cannot prevail on this claim because she has failed to establish t h a t defendants acted with specific discriminatory intent. When her benefits w e r e cancelled in June and July 2005, she was no longer employed at Unitrin, a n d her benefits were promptly reinstated. Moreover, Roberts has not shown a n y causal connection between defendants' alleged receipt of her EEOC charge 5 29 U.S.C. 1001 et seq. Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936. 7 6 Pub. L. No. 99-272, 100 Stat. 82. 12 Case: 09-10350 Document: 00511329020 Page: 13 Date Filed: 12/21/2010 No. 09-10350 a n d the cancellation of her benefits because she has failed to show that the p e r s o n who cancelled her benefits had knowledge of her EEOC charge. See M e d in a v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001) (holding that a p la in t iff can establish a causal link by showing that "the employer's decision . . . w a s based in part on knowledge of the employee's protected activity") (internal q u o t a t io n marks and citation omitted). Roberts's HIPAA claims are without merit because HIPAA does not p r o v id e her with a private cause of action. Acara v. Banks, 470 F.3d 569, 572 (5 t h Cir. 2006).8 E. M o t io n to Reconsider and Motion for Sanctions A review of the record establishes that the district court did not abuse its d is c r e t io n by denying Roberts's motion for reconsideration, which attached c o p ie s of "newly discovered" evidence or evidence that she inadvertently failed t o attach to her opposition to defendants' motion for summary judgment, because s h e failed to demonstrate that "(1) the facts discovered are of such a nature that t h e y would probably change the outcome; (2) the facts alleged are actually newly d is c o v e r e d and could not have been discovered earlier by proper diligence; and (3 ) the facts are not merely cumulative or impeaching." See Infusion Res., Inc. v . Minimed, Inc., 351 F.3d 688, 69697 (5th Cir. 2003). Roberts's complaint that the district court improperly sanctioned her b e c a u s e she was punished for a mistake "that had no ill intent" regarding the in c o r r e c t date stamp on one of her filings in the district court is without merit. A district court's sua sponte imposition of sanctions is reviewed for an a b u s e of discretion. Goldin v. Bartholow, 166 F.3d 710, 722 (5th Cir. 1999). "Generally, an abuse of discretion only occurs where no reasonable person could While 42 U.S.C. 1320d-5 has been amended since our decision in Acara, that amendment added only authorization for state attorneys general to sue for violations of HIPAA. See American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 13410, 123 Stat. 115, 27176. Our holding in Acara that no private right of action exists under the statute is, if anything, strengthened by this amendment. 8 13 Case: 09-10350 Document: 00511329020 Page: 14 Date Filed: 12/21/2010 No. 09-10350 t a k e the view adopted by the trial court." Friends for Am. Free Enter. Ass'n v. W a l-M a r t Stores, Inc., 284 F.3d 575, 578 (5th Cir. 2002) (internal quotation m a r k s and citations omitted). The district court sanctioned Roberts after hearing live testimony that one of Roberts's filings in the district court was date stamped June 13, 2008 (a filing deadline imposed by the district court), but that that document was not found in the court's drop box until June 17, 2008. Roberts explained that the date stamp did not correspond with the date that the filing was placed in the drop box because after date stamping the document on June 13, 2008, Roberts's sister discovered that Roberts had not signed the pleading; her sister therefore did not drop the pleading in the drop box until June 17, 2008, after Roberts signed it. Based on this testimony, the district court did not abuse its discretion in sanctioning Roberts. F. Other Motions R o b e r t s has failed to present any argument in support of her claims that t h e district court erred in denying her motion for a continuance of the summary ju d g m e n t hearing, her motion requesting pretrial discovery management, and t h e agreed motion to continue and to modify the scheduling order; she has t h e r e fo r e failed to adequately brief these arguments. Yohey v. Collins, 985 F.2d 2 2 2 , 224-25 (5th Cir. 1993). With respect to Roberts's motion to compel discovery, she has failed to s h o w that the district court, which denied her discovery motion because d e fe n d a n t s had not been properly served with the discovery, abused its d is c r e t io n . See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 817 (5th Cir. 2 0 0 4 ) ("We review a district court's discovery rulings, including the denial of a m o t io n to compel, for abuse of discretion. We will affirm such decisions unless t h e y are arbitrary or clearly unreasonable." (internal quotation marks and fo o t n o t e omitted)). Likewise, with respect to Roberts's motion to modify the 14 Case: 09-10350 Document: 00511329020 Page: 15 Date Filed: 12/21/2010 No. 09-10350 s c h e d u lin g order, she has failed to show that good cause existed for modifying t h a t order; accordingly, the district court did not abuse its discretion in denying t h a t motion. See S & W Enters., L.L.C. v. SouthTrust Bank of Ala., 315 F.3d 5 3 3 , 535-36 (5th Cir. 2003). IV. Conclusion R o b e r t s 's appeal does not involve legal points that are arguable on the m e r it s , see Howard, 707 F.2d at 220, and her IFP motion is therefore denied. See Baugh, 117 F.3d at 197. Because the resolution of Roberts's challenge to the d is t r ic t court's certification order requires resolution of the merits of her appeal, t h e appeal is dismissed as frivolous. See id.; see also 5TH CIR. R. 42.2. Roberts's m o t io n s for appointment of counsel, for a stay of the sanctions order, for free t r a n s c r ip t s , and for referral to the appellate mediation program are denied. Defendants' motion to dismiss is denied as moot. M O T I O N S DENIED; APPEAL DISMISSED. 15

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