[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-11782

Non-Argument Calendar

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D.C. Docket No. 8:14-cv-02741-EAK-TBM

LINDSEY SUTHERLAND, 

 Plaintiff - Appellant,

versus

BOEHRINGER-INGELHEIM PHARMACEUTICALS, INC., 

 Defendant - Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(July 7, 2017)

Before TJOFLAT, MARCUS, and JORDAN, Circuit Judges.

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PER CURIAM: 

Lindsey Sutherland, proceeding pro se, appeals the district court’s grant of 

summary judgment in favor of Boehringer-Ingelheim Pharmaceuticals, Inc. on her

employment discrimination claims and state law claims for negligent infliction of 

emotional distress and negligent hiring, supervision, and retention. Boehringer, in 

response, argues that Ms. Sutherland failed to provide evidence demonstrating a 

dispute of material fact related to any of her claims. After review of the record and 

the parties’ briefs, we affirm.

I

Because we write for the parties, we assume familiarity with the underlying 

record and recite only what is necessary to resolve this appeal. 

Ms. Sutherland, a 34-year-old Caucasian female with two children, was 

hired by Boehringer, a pharmaceutical company, as a sales representative in 

November of 2007. Over the course of her employment with the company, 

Ms. Sutherland was supervised by several district managers and she was 

continuously unhappy with the treatment and supervision that she received. 

In August of 2010, Ms. Sutherland was promoted to a level two sales 

representative by her then-supervisor, John Steadman. Around that same time, 

however, Ms. Sutherland alleges that she was discriminated against, harassed, and 

denied opportunities for advancement based on her gender and familial 

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responsibilities. Ms. Sutherland says that under Mr. Steadman’s supervision, she 

was not given an opportunity to participate in a training program that could have 

led to her eligibility for a higher position, denied materials to learn a second 

language by two managers, and issued a poor performance review that affected her 

salary and commission structure. 

In June of 2013, Scott Wyman began supervising Ms. Sutherland. At some 

point after Mr. Wyman took over, Ms. Sutherland informed the company that she 

had been diagnosed with mitochondrial disorder (a neuromuscular disease that 

impairs her ability to work), which she claims was caused by her work 

environment, her supervisors’ inappropriate comments, and Boehringer’s failure to 

prevent pervasive harassment against her during her employment. From October 

of 2013 to April of 2014, Ms. Sutherland took a short-term disability leave of 

absence, and she received full pay and benefits during that time. Ms. Sutherland 

returned to work for only a couple of days after her six-month leave of absence 

ended, and she has been on long-term disability ever since.1

In September of 2014, Ms. Sutherland sued Boehringer in Florida state 

court, alleging employment discrimination based on her gender under the Florida 

Civil Rights Act, see Fla. Stat. § 760.10, and hostile work environment (Count I), 

 

1 Since Ms. Sutherland’s temporary leave ended, she has received over $3000 in Social Security 

disability benefits per month and additional disability benefits from her insurance company. In 

addition, her entire family stayed enrolled in Boehringer’s health benefit plan until her formal 

termination in August of 2016. 

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disability discrimination under the FCRA (Count II), retaliation in violation of the 

FCRA and Fla. Stat. § 448.102 (Count III), negligent infliction of emotional 

distress (Count IV), and negligent hiring, retention, and supervision (Counts V and 

VI). Boehringer removed the case to federal court and moved for summary

judgment on all of her claims. Recognizing that Ms. Sutherland had not supported 

her claims by submitting deposition transcripts, requests for admissions, 

interrogatory answers, affidavits in opposition to the company’s motion for 

summary judgment, or any evidence that met the admissibility requirements under 

Federal Rule of Civil Procedure 56(c), the district court entered summary judgment 

in favor of Boehringer in March of 2016.2

 

Ms. Sutherland now appeals.

II

We review a district court’s grant of summary judgment de novo, viewing 

the evidence in the light most favorable to the nonmoving party. See Schwarz v. 

City of Treasure Island, 544 F.3d 1201, 1211 (11th Cir. 2008). Summary 

judgment is appropriate when, after adequate time for discovery, the record shows 

that there is no genuine issue of material fact and the moving party is entitled to 

 

2 We note that Ms. Sutherland was represented by counsel in the district court. Although 

Ms. Sutherland did not file a separate statement of disputed facts and failed to authenticate 

documents that she relied on, the district court reviewed the entire record before granting 

Boehringer’s motion for summary judgment, including Ms. Sutherland’s complete deposition 

transcript. See D.E. 38 at 4 n.2. The district court also fully considered each of Ms. Sutherland’s 

claims, including a hostile work environment claim that was listed in the gender discrimination 

count rather than in a separate count in her complaint. See id. at 2 n.1. 

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judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 

477 U.S. 317, 322 (1986). A party asserting that a fact is genuinely disputed must 

support her assertion by “citing to particular parts of materials in the record, 

including depositions, documents, electronically stored information, affidavits or 

declarations, stipulations . . . , admissions, interrogatory answers, or other 

materials.” Fed. R. Civ. P. 56(c). The substantive law identifies the facts that are 

material to a claim, and only disputes over facts that might affect the outcome of 

the suit will preclude the entry of summary judgment. See Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, no genuine issue of fact exists 

“unless the non-moving party establishes, through the record presented to the 

court, that it is able to prove evidence sufficient for a jury to return a verdict in its 

favor.” Cohen v. United Am. Bank of Cent. Fla., 83 F.3d 1347, 1349 (11th Cir. 

1996) (citation omitted). Although we generally construe a pro se litigant’s filings 

and briefs liberally, “issues not briefed on appeal by a pro se litigant are deemed 

abandoned.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

III

Title VII makes it unlawful for an employer to discriminate against any 

individual with respect to employment based on the individual’s race, color, 

religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a)(1). The Florida Civil 

Rights Act similarly prohibits discrimination on the basis of race, color, religion, 

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sex, and national origin, but it also covers age, handicap, and marital status. See

Fla. Stat. § 760.10. Because the FCRA was patterned after Title VII, “decisions 

construing Title VII are applicable when considering claims under the [FCRA].” 

Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998).

A prima face case under Title VII generally requires an individual “to show 

that: (1) she is a member of a protected class; (2) she was subjected to an adverse 

employment action; (3) her employer treated similarly situated employees not of 

the protected class more favorably; and (4) she was qualified for the job.” Evans v. 

Books-A-Million, 762 F.3d 1288, 1297 (11th Cir. 2014). Once an individual 

creates an inference of discrimination by making out a prima facie case, we use the 

burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 

U.S. 792, 802–03 (1973). The burden therefore shifts to the employer to articulate 

a legitimate, non-discriminatory reason for the challenged employment action. See 

id. at 802. If the employer meets this burden, the inference of discrimination drops 

out of the case, and the plaintiff bears the burden of demonstrating that the 

employer’s proffered reasons for its decision were pretextual. See Vessels v. 

Atlanta Indep. Sch. Sys., 408 F.3d 763, 767–68 (11th Cir. 2005).

Ms. Sutherland first argues that the district court erred in granting summary 

judgment because she put forward sufficient evidence to establish a prima facie

case of employment discrimination based on her gender, a hostile work 

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environment, and her disability. Alternatively, she contends that the district court 

erred in granting the company’s summary judgment motion on her other state law 

claims. We will briefly discuss each claim, but because we find no genuine 

dispute as to any material fact and conclude that Boehringer is entitled to judgment 

as a matter of law, we affirm the district court’s grant of summary judgment.

A

Ms. Sutherland first argues that she established a prima facie case of gender

discrimination (Count I). Although Ms. Sutherland is a member of the class of 

people protected under Title VII and the FCRA, she has not established that she 

suffered an adverse employment action—a prerequisite for any Title VII 

anti-discrimination claim. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 

1238 (11th Cir. 2001). An adverse employment action is “a significant change in 

employment status, such as hiring, firing, failing to promote, reassignment with 

significantly different responsibilities, or a decision causing a significant change in 

benefits.” Id. at 1239 (emphasis in original). Ms. Sutherland claims that she 

suffered three potential adverse employment actions. 

First, she says that she was denied entry into a training program that could 

have led to her eligibility for a promotion. Construing the record in the light most 

favorable to Ms. Sutherland, we accept that she would not have been eligible for 

another promotion without completing the certified training program. The record, 

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however, does not demonstrate that Ms. Sutherland actually applied for the training 

program. Instead, she testified in her deposition that after receiving a promotion to 

level two sales representative, Mr. Steadman included the training program in her 

2011 employee development plan subject to certain conditions like “rais[ing] [her] 

sales, increase[ing] her sales ability and persuasiveness and learn[ing] [her 

products.” See D.E. 31-1 at 69. Given that Ms. Sutherland did not cite evidence 

demonstrating that she was actually denied entry into the training program or that 

she completed the goals Mr. Steadman gave her, we agree with the district court 

that her alleged lack of training was not a sufficient adverse employment action.3

 

Second, Ms. Sutherland says that she asked both Mr. Steadman and 

Mr. Wyman to grant her access to the library in order to learn a second language. 

Ms. Sutherland does not explain why this amounts to an adverse employment 

action other than saying that some of her customers speak Spanish. In addition, the 

record indicates that Ms. Sutherland did not submit the required form to obtain 

access to the library. See D.E. 31-1 at 19. 

Third, Ms. Sutherland claims that a negative performance review affected 

her pay in 2012. But, as the district court pointed out, Ms. Sutherland did not cite 

any record evidence to corroborate her claim that she received a low raise that year 

 

3 Furthermore, Ms. Sutherland has not shown that entry into the training program was offered to 

individuals outside of her protected class. Instead, she claims that a woman with lower sales 

than her (and that did not have children at the time) was treated more favorably and that a man 

with lower sales than her was given a “pass” and received a better yearly evaluation. 

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and admitted she did not fully understand her commission structure. See D.E. 31-1 

at 4, 37–38. Accordingly, the district court did not err in granting summary 

judgment as to Count I.

B

In addition to her claim for gender discrimination under the FCRA, 

Ms. Sutherland alleged in Count I that Boehringer created a hostile work 

environment that interfered with her emotional and physical well-being. In order 

to establish a hostile work environment claim, Ms. Sutherland was required to put 

forth evidence showing: (1) that she belongs to a protected group; (2) that she was 

subjected to unwelcome harassment; (3) that the harassment was based on a 

protected characteristic; (4) that the harassment was “sufficiently severe or 

pervasive” to alter the terms and conditions of employment and create a 

discriminatorily abusive working environment; and (5) that her employer was 

responsible under either a theory of vicarious or of direct liability. See Miller v. 

Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). 

A hostile work environment claim generally turns on whether the 

harassment is “severe or pervasive,” and this element has an objective and 

subjective component. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 

1999) (en banc). In order to determine whether the alleged harassment objectively 

altered the terms or conditions of an individual’s employment, we consider four 

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factors: “(1) the frequency of the conduct; (2) the severity of the conduct; (3) 

whether the conduct is physically threatening or humiliating, or a mere offensive 

utterance; and (4) whether the conduct unreasonably interferes with the employee’s 

job performance.” Id. 

Viewing the record in the light most favorable to Ms. Sutherland, we agree 

with the district court that she was a member of a protected group and that she put 

forth evidence showing that her supervisors made unwelcome comments regarding 

protected characteristics like her gender and familial responsibilities. For example,

Ms. Sutherland testified in her deposition that Mr. Steadman often told her to “pay 

attention to [her] kids that were home” and to consider “all of the things that [she] 

could do being a stay at home mom.” D.E. 31-1 at 19–20. 

With regard to the fourth requirement, however, Ms. Sutherland did not 

provide evidence demonstrating that the harassing comments were sufficiently 

“severe or pervasive.” Ms. Sutherland says generally that several managers 

“t[ook] their shots at [her] when they could,” Br. of Appellant at 16, without citing 

any evidence in the record. As to frequency, Ms. Sutherland testified that the 

comments occurred on field rides with Mr. Steadman (which took place 

approximately every six weeks), but the record does not specify how many times 

Mr. Steadman made inappropriate comments during the field rides. Compare

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 60 (1986) (finding that employee’s 

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testimony that manager made regular sexual advances toward her in front of other 

employees, forced unwelcome sexual encounters between 40 and 50 times, 

followed her into the restroom, and forcibly raped her on several occasions was 

sufficiently severe to support a hostile work environment claim). The record also 

does not include allegations or evidence showing that she was physically 

threatened or publicly humiliated, and Ms. Steadman has not provided evidence 

showing that she was unable to perform her job responsibilities. We therefore 

agree with the district court that the record does not support Ms. Sutherland’s 

hostile work environment claim. 

On appeal, Ms. Sutherland also apparently re-characterizes her retaliation 

claim (Count III) as a retaliatory hostile work environment claim. Because she did 

not raise that argument in the district court, we decline to consider it now. See 

Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). In 

addition, she makes only a few passing references to retaliation and has therefore 

abandoned that issue here. See Timson, 518 F.3d at 874. Cf. Access Now, 385 

F.3d at 1330 (explaining that the rules of appellate procedure require an appellant’s 

brief to “contain, under appropriate headings and in the order indicated . . . a 

statement of the issues presented for review”).4

 

 

4 In her initial brief, Ms. Sutherland makes a couple of isolated remarks that she was retaliated 

against for reporting her supervisors’ behavior to human resources, but does not cite evidence in 

the record or lay out reasons for denying summary judgment on that claim. Even if she had 

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We conclude that summary judgment was properly granted in favor of 

Boehringer on Counts I and III.

C

Ms. Sutherland also argues that the district court erred in granting summary 

judgment on her disability discrimination claim (Count II). 

“[D]isability-discrimination claims under the FCRA are analyzed using the same 

framework as [American with Disabilities Act] claims.” Holly v. Clairson Indus., 

L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007). The ADA prohibits covered 

employers from discriminating against a qualified individual on the basis of a 

disability. 42 U.S.C. § 12112(a). To establish a prima facie case of disability 

discrimination under the ADA, an employee must allege that (1) she is disabled; 

that (2) she is a qualified individual; and that (3) she was subjected to unlawful 

discrimination because of her disability. See Holly, 492 F.3d at 1255–56. 

As the district court pointed out, Ms. Sutherland only offered her own 

self-serving testimony and a single unauthenticated physician’s report to establish 

that she is disabled. Although Ms. Sutherland referenced certain medical records 

in her deposition testimony, she did not provide them at the summary judgment 

stage. Because Ms. Sutherland bore the burden of alleging a disability and she did 

 

properly briefed the retaliation issue, it fails for the same reasons as her gender discrimination 

claim because she did not suffer an adverse employment action in this case.

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not provide sufficient evidence to infer that she was disabled, the district court did 

not err in granting summary judgment on Count II. Moreover, Ms. Sutherland 

testified that she is no longer able to perform any work. That admission, if true, 

would mean that she is not a qualified individual for an ADA claim. See Holly, 

492 F.3d at 1256 (explaining that a qualified individual is “someone with a 

disability who, ‘with or without reasonable accommodation, can perform the 

essential functions of the employment position’”) (citation omitted).5

IV

Ms. Sutherland’s final arguments relate to her state law tort claims for 

negligent infliction of emotional distress (Count IV) and negligent hiring, 

retention, and supervision (Counts V and VI).

Florida law generally requires a plaintiff to show that emotional distress

claims flow from physical injuries sustained in an impact. See Bodine v. Fed. 

Kemper Life Assur. Co., 912 F.2d 1373, 1376 (11th Cir. 1990); Florida Dep’t of 

Corr. v. Abril, 969 So. 2d 201, 206 (Fla. 2007). Ms. Sutherland asserts that she 

established a prima facie case of negligent infliction of emotional distress because 

her supervisors’ conduct over several years created a work environment “so hostile 

that it degraded [her] neuro-muscular disease” to the point where any stimuli could 

 

5 We recognize that the ADA uses the same burden-shifting framework as Title VII employment 

discrimination claims, but we decline to conduct the remainder of that analysis because we agree 

with the district court that Ms. Sutherland did not establish a prima facie case of disability here.

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result in hospitalization or a comatose state. See Br. of Appellant at 18. 

Ms. Sutherland apparently tries to invoke a narrow exception to the impact rule by 

arguing that the psychological trauma that she experienced resulted in physical 

injuries. In order to qualify for this (rare) exception, Ms. Sutherland was required 

to show that (1) she suffered a physical injury; (2) her injury was caused by a

psychological trauma; (3) she was “involved in some way in the event causing [a]

negligent injury to another;” and (4) she had a close personal relationship to the 

directly injured person. See Watters v. Walgreen Co., 967 So. 2d 930, 932 (Fla. 1st 

DCA 2007). Here, Ms. Sutherland only offered her own conclusions about her 

experiences and resulting injuries, but has made no allegation that she witnessed 

someone that is close to her suffer a direct injury. We agree with the district court 

that her allegations of physical injury based on her supervisors’ comments is too 

tenuous to serve as an impact and that she has not met the exception in this case.

As for Ms. Sutherland’s claims of negligent hiring, supervision, and 

retention, the only argument she advances is that others had complained about two 

of her supervisors and that Boehringer decided to retain both managers despite 

those complaints. Like her filings in the district court, Ms. Sutherland’s appellate 

briefs do not cite to specific portions of the record that can be used to support 

genuine issues of fact related to the elements of her claims for negligent hiring, 

supervision, or retention. See, e.g., Malicki v. Doe, 814 So. 2d 347, 362 (Fla. 

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2002) (setting out the requirements for a prima facie case of negligent hiring 

including an employer’s duty to investigate an employee, to consider reasons 

stemming from an investigation as to why the employee may not be suited for a 

particular position, and the employer’s subsequent decision to hire the employee 

regardless of those reasons). We conclude that the district court properly granted

summary judgment on Counts IV, V, and VI.

IV

Ms. Sutherland failed to offer evidence to establish a prima facie case for 

each of her employment discrimination claims. Moreover, she has not shown that 

a disputed fact exists related to the essential elements of her state law tort claims. 

We therefore affirm the district court’s grant of summary judgment in favor of 

Boehringer.

6

AFFIRMED.

 

6 We decline to consider Ms. Sutherland’s new evidence and new argument that the district court 

judge should be recused because she did not file a motion to supplement the record or to recuse 

the district court judge below. See Ross v. Kemp, 785 F.2d 1467, 1474–75 (11th Cir. 1986)

(highlighting that “[w]e have refused to supplement the record when a party has filed [new] 

material without requesting leave of this court or has appended material to an appellate brief 

without filing a motion to supplement”). Cf. 28 U.S.C. § 144 (setting out the requirements for 

recusal including that a party should “file[] a timely and sufficient affidavit that the judge before 

whom the matter is pending has a personal bias or prejudice either against him or in favor of any 

adverse party”). 

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