Paul Jackson v. Midnight Express Power Boats, Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11012
Non-Argument Calendar
____________________
PAUL JACKSON,
Plaintiff-Appellant,
versus
MIDNIGHT EXPRESS POWER BOATS, INC.,
A Foreign Profit Corporation,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-22160-MGC
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2 Opinion of the Court 22-11012
____________________
Before LAGOA , BRASHER , and MARCUS, Circuit Judges.
PER CURIAM:
Paul Andrew Jackson, proceeding
pro se, appeals the district
court’s grant of summary judgment in favor of the defendant, Mid-
night Express Power Boats, Inc. (“Midnight Express”), as to Jack-
son’s claims for: (i) unpaid sick leave; and (ii) retaliation under the
Emergency Paid Sick Leave Act (“EPSLA”) of the Families First
Coronavirus Response Act (“FFCRA”).1 Jackson also argues that
the district court erred in not addressing his claim for violations of
Occupational Safety and Health Administration (“OSHA”) regula-
tions. After thorough review, we affirm.
I.
We review a district court’s summary judgment ruling
de
novo, viewing the facts in the light most favorable to the non-mo-
vant.
Hallums v. Infinity Ins. Co., 945 F.3d 1144, 1148 (11th Cir.
2019). Summary judgment is proper when “there is no genuine
dispute as to any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a). Documents filed
by
pro se litigants are to be liberally construed and must be held to
less stringent standards than documents drafted by attorneys.
Es-
telle v. Gamble, 429 U.S. 97, 106 (1976).
1
See Pub. L. No. 116-127, §§ 5102(a)(2), 5104(1), 134 Stat. 178, 195–97 (2020).
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22-11012 Opinion of the Court 3
II.
First, we are unpersuaded by Jackson’s argument that the
district court erred in granting summary judgment to Midnight Ex-
press on his claim for unpaid sick leave under the Emergency Paid
Sick Leave Act. Congress passed the Families First Coronavirus
Response Act to provide relief to American workers during the
COVID-19 pandemic.
See Families First Coronavirus Response
Act, Pub. L. No. 116-127, 134 Stat. 178 (Mar. 18, 2020). The EPSLA,
which is a part of the FFCRA, required employers to provide paid
sick leave to employees with COVID-19 throughout the fiscal year
ending September 30, 2020.
See FFCRA § 5102.
Under the EPSLA, an employer who failed to provide sick
leave was considered to have failed to pay the minimum wage un-
der the Fair Labor Standards Act (“FLSA”). 29 C.F.R.
§ 826.150(b)(1). The EPSLA requires an employee to provide no-
tice to the employer to qualify for sick leave by providing (1) the
employee’s name, (2) the date(s) the employee is requesting leave,
(3) a qualifying reason for leave, and (4) an oral or written state-
ment that the employee is not able to work due to a qualified rea-
son for leave.
Id. § 826.100. The qualifying reason for leave perti-
nent to this case is when “[t]he Employee is experiencing symp-
toms of COVID-19 and seeking medical diagnosis from a health
care provider.”
Id. § 826.20(a)(iii).
Here, the district court did not err in granting Midnight Ex-
press’s motion for summary judgment as to Jackson’s claim for un-
paid sick leave under the EPSLA. According to Jackson’s version
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4 Opinion of the Court 22-11012
of events, one Friday in May 2020, while he was working for Mid-
night Express, he began experiencing COVID-19 symptoms and
immediately clocked out of work, informing a co-worker that he
needed to leave. He claims that later the same day, he mailed a
letter to Midnight Express’s Human Resources (“HR”) Depart-
ment, noting that he was unable to work because of COVID-19,
and he requested leave. On the following Monday, HR officials
told him that his job had already been terminated.
The record reflects that there is a factual dispute as to
whether Jackson left work because he had COVID-19, a “qualifying
reason for leave” under the Act, or whether he left work because
he had been reprimanded that day. Nevertheless, even when we
view the facts in the light most favorable to Jackson, he is not enti-
tled to relief under the EPSLA because he failed to satisfy its notice
requirements. In both his letter and phone call to Midnight Ex-
press, Jackson said only that he was “requesting time away to re-
cover and seek medical aid,” but he never gave the date or dates
for which leave was requested.
Id. § 826.100. Because Jackson
failed to satisfy the EPSLA’s notice requirements, he was not enti-
tled to paid sick leave under the Act, regardless of whether he had
COVID-19. We, therefore, affirm the district court’s grant of sum-
mary judgment to Midnight Express on Jackson’s claim for unpaid
sick leave.
III.
We also are unconvinced by Jackson’s argument that the dis-
trict court erred in granting summary judgment to Midnight
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22-11012 Opinion of the Court 5
Express on his claim of retaliation under the EPSLA. Under the
EPSLA, an employer who discharges, disciplines, or discriminates
against an employee for seeking to exercise his rights thereunder is
considered to have violated § 15(a)(3) of the FLSA.
See 29 C.F.R.
§ 826.150(b)(2). To establish a
prima facie case of retaliation under
the FLSA, the plaintiff may demonstrate that: (1) he engaged in a
protected activity under the Act; (2) he subsequently suffered an
adverse action by the employer; and (3) there was a causal connec-
tion between the employee’s activity and the adverse action.
Wolf
v. Coca-Cola Co., 200 F.3d 1337, 1342–43 (11th Cir. 2000). The
plaintiff has the burden of proving causation by demonstrating that
“the adverse action would not have been taken but for the assertion
of FLSA rights,” where the adverse action must occur after the as-
sertion of FLSA rights.
Id. (quotations omitted).
Here, there is no genuine dispute of fact concerning whether
Jackson established a prima facie case of retaliation under the
FLSA. For starters, as we’ve explained, Jackson did not qualify for
paid leave under the EPSLA, since he did not comply with the no-
tice requirements. Accordingly, it’s not clear that Jackson engaged
in protected activity for purposes of a retaliation claim.
Id.
But even if Jackson had engaged in protected activity, he has
provided no evidence of causation that Midnight Express termi-
nated his employment because of his exercise of rights under the
EPSLA. Rather, the company informed him that he had been taken
off the payroll because it believed he had quit his job, which oc-
curred
before it was even aware that Jackson allegedly had COVID-
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6 Opinion of the Court 22-11012
19. Indeed, taking the evidence in a light most favorable to Jackson,
it showed that he put a letter in the mail seeking sick leave under
the EPSLA the evening after he left work and, notably, after his
employment was terminated. Further, even if Jackson was sick, he
said he notified a co-worker that he was feeling ill but did not men-
tion COVID-19 or its symptoms. Thus, Jackson has not offered any
evidence to suggest that Midnight Express fired him after it discov-
ered he intended to exercise his rights under the EPSLA.
Id. We,
therefore, affirm the district court’s grant of summary judgment to
Midnight Express on Jackson’s retaliation claim.
IV.
Finally, we find no merit to Jackson’s argument that the dis-
trict court erred by not addressing his OSHA violation allegations.
“A plaintiff may not amend [his] complaint through argument in a
brief opposing summary judgment.”
Gilmour v. Gates, McDonald
& Co., 382 F.3d 1312, 1315 (11th Cir. 2004). “At the summary judg-
ment stage, the proper procedure for plaintiffs to assert a new claim
is to amend the complaint in accordance with Fed. R. Civ. P. 15(a).”
Id. “[A]n issue not raised in the district court and raised for the first
time in an appeal will not be considered by this [C]ourt.”
Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)
(quotations omitted).
Here, because Jackson did not raise an OSHA claim until he
opposed Midnight Express’s motion for summary judgment, and
because he did so without amending his complaint, it was not
properly before the district court.
Gilmour, 382 F.3d at 1315. As a
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22-11012 Opinion of the Court 7
result, the district court did not err in declining to address it. Fur-
ther, to the extent he is raising additional OSHA allegations now
for the first time on appeal, we will not consider that claim either.
Access Now, 385 F.3d at 1331.
AFFIRMED.
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