1

The Honorable James E. Gritzner, United States District Judge for the Southern

District of Iowa, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-2906

___________

Relenthis Blakley, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Arkansas.

Schlumberger Technology Corporation, *

*

Appellee. *

___________

Submitted: May 11, 2011

Filed: August 11, 2011

___________

Before MELLOY and SMITH, Circuit Judges, and GRITZNER,1

 District Judge.

___________

SMITH, Circuit Judge.

Relenthis Blakley filed suit against Schlumberger Technology Corporation

("Schlumberger"), alleging that Schlumberger wrongfully denied (or delayed) her

promotion and, subsequently, wrongfully terminated her. She asserted several claims

for various forms of discrimination and retaliation under federal law, in addition to
2

The Honorable Billy Roy Wilson, formerly William R. Wilson, Jr., United

States District Judge for the Eastern District of Arkansas.

3

The second notice was dated "December 28, 2008." (Emphasis added.) The

undisputed record, however, indicates that this was a clerical error. The notice

referenced a conversation that took place "yesterday, Thursday, December 27, 2007."

(Emphasis added.) Moreover, Blakley testified that she received the second notice

about one month after she received the first letter in October 2007.

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state-law tort claims. The district court2

 granted Schlumberger's motion to dismiss

Blakley's gender and disability claims, state-law negligence claims, and other claims

that were duplicative of claims that she had asserted in a previous suit. Upon the

completion of discovery, the court granted Schlumberger's motion for summary

judgment on the remaining claims. Blakley appeals these orders, along with several

of the court's interlocutory orders. We affirm.

I. Background

Blakley, an African American female, began working as a dispatcher at

Schlumberger's facility in Conway, Arkansas, in July 2006. In February 2007,

Schlumberger promoted Blakley to a financial administrative-assistant position. On

October 29, 2007, Blakley sued Schlumberger ("Suit 1"), alleging that her promotion

had been delayed because of her pregnancy, race, and disability. 

Blakley took a leave of absence from September 14, 2007, to October 21, 2007.

She returned to work for three days and took another leave of absence on October 25,

2007 (shortly before filing Suit 1). Her doctor's note excused her from work until

January 2, 2008. On November 7, 2007, and December 28, 2007,3

 Schlumberger

requested that Blakley provide medical certification, as permitted by the Family

Medical Leave Act (FMLA) of 1993, 29 U.S.C. § 2613(a). Neither Blakley nor her

doctors ever provided the certification. On December 21, 2007, Blakley notified

Schlumberger that she intended to take parental leave starting on January 3, 2008.
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During this time, Schlumberger began contracting with a third-party vendor to

outsource some of its operations, including the primary duties that Blakley had

performed as a financial administrative assistant. Because Schlumberger determined

that its other employees could absorb Blakley's remaining duties, it eliminated

Blakley's position and terminated her employment on January 22, 2008.

As a result, Blakley filed a charge of discrimination with the Equal Employment

Opportunity Commission (EEOC), alleging that Schlumberger terminated her because

of her race and in retaliation for her opposition to unlawful employment practices. In

her charge, she checked only the boxes for discrimination based on race and

retaliation.

On November 5, 2008, Blakley commenced the instant action. She asserted

several causes of action, including: (1) race and gender discrimination, in the form of

a hostile work environment, in violation of Title VII; (2) retaliation, in violation of

Title VII; (3) pregnancy discrimination, in violation of the Pregnancy Discrimination

Act; (4) retaliation and interference, in violation of the FMLA; (5) disability

discrimination, in violation of the Americans with Disabilities Act; (6) intentional

infliction of emotional distress, under Arkansas law; and (7) negligent hiring and

retention, under Arkansas law. She alleged that these actions resulted in the denial or

delay of her promotion and in her wrongful termination.

Thereafter, the district court partially granted Schlumberger's first motion to

dismiss. The court dismissed Blakley's gender and disability discrimination claims

because she had failed to exhaust her administrative remedies. It dismissed her

negligence-based claims after concluding that it lacked subject-matter jurisdiction

because, under Arkansas state law, the Arkansas Worker's Compensation Commission

had exclusive jurisdiction to litigate claims involving "physical injury." See Ark. Code

Ann. § 11-9-105(a). Finally, it dismissed several claims related to Blakley's denied or

delayed promotion, which were already being litigated in Suit 1.
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The court subsequently entered a final scheduling order, setting January 29,

2010, as the deadline for the completion of discovery. Discovery, however, did not

proceed smoothly. First, Blakley's counsel failed to respond to Schlumberger's

discovery requests, later claiming that he never received them because his assistant

was pregnant and out of the office. Second, Blakley and her counsel failed to appear

for her noticed deposition in Houston, Texas, and failed to notify Schlumberger of

their absence. Schlumberger, however, had appeared for the depositions and made the

necessary arrangements. Again, Blakley's counsel denied any knowledge of the

deposition.

Schlumberger moved for sanctions. The district court, however, denied

Schlumberger's request for sanctions but, on October 15, 2009, ordered Blakley to

respond to Schlumberger's discovery requests and make herself available for a

deposition.

On December 18, 2009—42 days before the end of discovery—Blakley served,

for the first time, 25 interrogatories and 172 requests for production on Schlumberger.

In response, Schlumberger filed a motion for a protective order, objecting to the

requests as "excessive, overly broad, unduly burdensome, cumulative, duplicative and

not reasonably calculated to lead to the discovery of admissible evidence."

The court did not grant Schlumberger's motion, but on January 13, 2010, the

court did send a letter order to Blakley's counsel, directing him to "meet and confer"

with Schlumberger, in an effort to resolve the discovery dispute, before 12:00 p.m. on

January 19, 2010. The court ordered "genuine, bonafide, real, good-faith, efforts to

resolve the discovery dispute."

Blakley's counsel, however, failed to comply with the court's directive, yet

again claiming, after the fact, that he never received Schlumberger's motion for a

protective order—and, thus, did not understand the court's January 13 order. Thus, on
4

The term "CM/ECF" refers to the district court's "case management and

electronic case filing system"; "[p]arties that register with the district court's CM/ECF

system receive notice of court filings via email and are not entitled to service of paper

copies." Am. Boat Co. v. Unknown Sunken Barge, 567 F.3d 348, 349 (8th Cir. 2009).

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January 19, 2010, the court cancelled the trial date, quashed Blakley's discovery

requests, and ordered Blakley "to file a new rifle-shot set of discovery requests" no

later than February 10, 2010. The court clarified that the discovery requests should be

"spare and to the point, only." The court also ordered Blakley's counsel to notify the

court when he received the order, check his fax machine, and check his computer to

ensure that he was receiving all CM/ECF4

 notices. The next day, January 20, 2010, the

court ordered Blakley "to file an Amended and Substituted Complaint in which the

wheat only remains, and the chaff is entirely removed" and to do so no later than

12:00 p.m. on February 5, 2010.

On February 5, 2010, Blakley filed an amended complaint. Rather than paring

down her original complaint, as the court had instructed, she continued to assert all but

one of the claims that she had asserted in her original complaint, including the claims

that the district court had already dismissed. Moreover, she added a new claim under

the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (codified in

scattered sections of 29 and 42 U.S.C.).

Shortly thereafter, Schlumberger filed a motion to dismiss. Schlumberger first

noted that Blakley did not serve her discovery requests on Schlumberger until 5:48

p.m. on February 11—over one day after the court's once-extended deadline.

Moreover, according to Schlumberger, while Blakley had reduced the number of her

requests for production, many still related to the already-dismissed claims or "lack[ed]

reasonable geographical and temporal restrictions." In addition, Schlumberger noted

that Blakley's amended complaint did not comply with the court's amended order.
5

The Honorable J. Leon Holmes, Chief Judge, United States District Court for

the Eastern District of Arkansas, on behalf of Judge Wilson.

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On March 10, 2010, the court denied Schlumberger's motion to dismiss. After

reviewing the aforementioned discovery issues, the court noted that "it would be well

within [its] discretion to dismiss this case with prejudice," but it concluded that it was

"not satisfied that [dismissal] is the proper thing to do right now." In an effort to

resolve the ongoing discovery disputes, the court ordered Schlumberger to identify the

parts of the amended complaint that related to dismissed claims and ordered Blakley

to respond. The court ordered the same process with respect to the discovery requests.

Finally, the court ordered Blakley's counsel to pay Schlumberger $1,500 in sanctions

"to partially defray the fees and expenses resulting from [Blakley's] counsel's slow

walking, and [his] failure to follow the Court's directions."

After the parties addressed the discovery issues, the district court5

 issued an

order on May 6, 2010. The court dismissed Blakley's Ledbetter Act claim and stated

that Schlumberger did not have to respond to Blakley's discovery requests relating to

the dismissed claims. The court also limited the temporal and geographical scope of

Blakley's discovery requests. Finally, the court ordered that discovery would end "45

days from the date of this Order" and provided that "[n]o extensions will be granted."

Notwithstanding the court's order, on June 21, 2010, Blakley filed a motion to

extend the time to complete discovery until September 30, 2010. In the motion,

Blakley asserted that Schlumberger had responded to some of her discovery requests

and promised to provide the remainder after a protective order was signed. Blakley

also explained that she intended to depose two Schlumberger employees and requested

that discovery be extended until September 30, 2010. The court denied Blakley's

motion for "lack of good cause," noting that "discovery ended on June 20, 2010."
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On July 2, 2010, Schlumberger filed a motion for summary judgment on all of

Blakley's remaining claims. On July 13, 2010, despite discovery's closure, Blakley

filed a motion to compel discovery responses. Two days later, she filed a motion for

an extension of time to respond to Schlumberger's motion for summary judgment. 

On July 20, 2010, the court responded to Blakley's two motions. The court

denied her motion to compel because "[d]iscovery ended on June 20, 2010," and

"[Blakley] failed to bring any continuing discovery disputes to my attention until after

this date, and has not shown good cause for the delay." The court, however, granted

Blakley's motion for an extension of time to respond to the motion for summary

judgment, ordering her to respond no later than 12:00 p.m. on July 27, 2010.

Blakley, however, never responded to Schlumberger's motion for summary

judgment. Instead, on July 21, she requested another extension. Blakley's counsel

stated that he needed additional time because of his responsibilities in other cases in

other parts of the country. The district court denied Blakley's motion.

The district court granted Schlumberger's motion for summary judgment on

July 28, 2010. Rather than simply granting the motion as unopposed, the court ruled

on the merits of each of Blakley's still-pending claims. 

First, the court dismissed her hostile work environment claim because Blakley

had failed to put forward any evidence showing that the allegedly harassing behavior

was motivated by her race, and she failed to show that the alleged harassment was

severe enough to affect a term, condition, or privilege of her employment. 

Second, the court dismissed Blakley's Title VII retaliation claim because she

failed to present evidence showing a causal connection between her EEOC charge or

Suit 1 and her termination. In addition, Blakley had failed to show that Schlumberger's
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proffered reason for terminating her—that it eliminated her position after outsourcing

her job duties—was a pretext for retaliation.

Third, the court dismissed Blakley's FMLA interference and retaliation claims.

The court concluded that Blakley could not establish a prima facie claim of

interference because she failed to provide medical certification to Schlumberger and,

thus, could not show that she was entitled to FMLA benefits. Alternatively, the court

held that Schlumberger had provided a legitimate reason for terminating Blakley,

independent of her FMLA leave. Similarly, the court concluded that Blakley could not

establish a retaliation claim because she failed to submit medical certification and

could not show that her termination was caused by her taking medical leave. Blakley

then filed her notice of appeal.

On September 2, 2010, Schlumberger filed a bill of costs totaling $2,428.17.

Blakley did not respond or object. On October 2, 2010, the district court awarded

costs in the amount of $928.17.

II. Discussion

On appeal, Blakley challenges four of the district court's interlocutory orders.

She also contends that the court erred by awarding costs to Schlumberger. Finally, she

asserts that the court erroneously dismissed some of her claims and erroneously

granted summary judgment to Schlumberger on her remaining claims.

A. Interlocutory Orders

Blakley first challenges four of the district court's interlocutory orders.

Specifically, she contends that the court abused its discretion by (1) "shutting down

discovery" and disallowing discovery beyond June 21, 2010; (2) ordering her to file

pared-down discovery requests; (3) imposing sanctions on her attorney; and (4)

denying her second motion to extend the time to respond to Schlumberger's motion

for summary judgment.
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Blakley's arguments are meritless. We review each decision challenged by

Blakley for abuse of discretion. Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 720

(8th Cir. 2010) (sanctions); Marksmeier v. Davie, 622 F.3d 896, 903 (8th Cir. 2010)

(discovery rulings and the denial of a motion for an extension of time). Having

carefully reviewed the record, as detailed above, we conclude that the district court did

not abuse its discretion. Indeed, the record shows that the district court repeatedly

attempted to accommodate Blakley, despite her attorney's repeated failures to comply

with court orders and court-imposed deadlines.

B. Award of Costs

Blakley also argues that the court erred by awarding costs to Schlumberger

pursuant to Federal Rule of Civil Procedure 54(d). First, she contends that the district

court could not grant costs because Schlumberger never filed a motion for costs; it

only entered a bill of costs. Second, she maintains that the court lacked jurisdiction to

grant costs when it did so because Schlumberger filed its bill of costs on September

2, 2010, and Rule 54(d)(2)(B)(i) requires the motion to be filed no later than 14 days

after the entry of judgment. Third, she asserts that the court could not grant costs after

she filed her notice of appeal. Finally, she argues that the award was not justified

because her suit was not "totally unfounded, frivolous, or otherwise unreasonable,"

citing Hughes v. Rowe, 449 U.S. 5, 14–15 (1980).

We review for abuse of discretion the district court's award of costs to the

prevailing party under Rule 54(d). Little Rock Cardiology Clinic P.A. v. Baptist

Health, 591 F.3d 591, 601 (8th Cir. 2011). A district court has "broad discretion" over

such awards and abuses that discretion by "rest[ing] its conclusion on clearly

erroneous factual findings or erroneous legal conclusions." Id. (quotation and citations

omitted). Blakley has essentially argued only that the court made a series of legal

errors in awarding costs to Schlumberger. She has not challenged the court's

underlying factual findings.
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As an initial matter, we may lack jurisdiction to review Blakley's challenge to

the court's award of costs."When determining whether an appeal from a particular

district court action is properly taken, we construe the notice of appeal liberally and

permit review where the intent of the appeal is obvious and the adverse party incurs

no prejudice." Parkhill v. Minn. Mut. Life Ins. Co., 286 F.3d 1051, 1058 (8th Cir.

2002). However, we have previously held that we lacked jurisdiction to review an

award of costs when the appellant, as here, "did not amend [her] notice of appeal to

include the postjudgment costs award or file a separate notice of appeal from the costs

award." Cleaver v. Kemna, 122 F. App'x 863, 865 (8th Cir. 2004) (unpublished per

curiam); accord Shannon v. Koehler, 616 F.3d 855, 865 n.7 (8th Cir. 2010) (declining

to consider an issue not mentioned in the notice of appeal). 

Regardless, Blakley's arguments are unpersuasive. Schlumberger sought, and

the district court awarded, only costs—not attorney's fees. In its order awarding costs,

the court cited 28 U.S.C. § 1920 and awarded Schlumberger costs only "for court

reporter transcription fees related to three depositions," which are a type of "costs"

permitted by § 1920(2). The authorities cited by Blakley only govern awards of

"attorney's fees" and are thus inapplicable. See Fed. R. Civ. P. 54(d)(2) (describing the

necessary procedure for awarding "Attorney's Fees"); Hughes, 449 U.S. at 14

(vacating an award of "attorney's fees entered against petitioner"). Blakley has not

cited any authority stating that Schlumberger was required to file a motion, in addition

to a bill of costs, in order to seek costs. Indeed, the federal rules are silent on the

matter, see Fed. R. Civ. P. 54(d)(1), and the federal statute enumerating taxable costs

only requires the filing of a bill of costs, see 28 U.S.C. § 1920. Moreover, Blakley has

cited no authority prohibiting a district court from granting costs after a party has filed

a notice of appeal. Cf. Lorenz v. Valley Forge Ins. Co., 23 F.3d 1259, 1260–61 (7th

Cir. 1994) (holding that, because "costs are appealable separately from the merits," a

court still has the power to award costs when an appeal on the merits is pending).

Thus, on these facts, Blakley has not shown that the district court abused its discretion

by awarding costs to Schlumberger.
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C. Dismissal of Claims

Finally, Blakley contends that the district court erred by dismissing each of the

claims in her complaint. She specifically challenges three orders: (1) the order

partially granting Schlumberger's motion to dismiss, (2) the discovery order

dismissing Blakley's Ledbetter Act claim, and (3) the order granting Schlumberger's

motion for summary judgment on Blakley's remaining claims.

1. Order Partially Granting Schlumberger's Motion to Dismiss

Blakley first argues that the district court erred in partially granting

Schlumberger's motion to dismiss. She contends that the dismissal standard under

Federal Rule of Civil Procedure 12(b) does not permit the court to conclude that (1)

Blakley failed to administratively exhaust her administrative remedies on her gender

and disability claims, (2) her negligence claims could only be tried before the

Arkansas Worker's Compensation Commission, and (3) her duplicative claims should

only be tried in Suit 1. Instead, she maintains that the court could dismiss a claim

"only if it is clear that no relief can be granted under any set of facts that could be

proved consistent with the allegations." Reeve v. Oliver, 41 F.3d 381, 383 (8th Cir.

1994) (quotation and citations ommited).

We review the district court's grant of a motion to dismiss de novo. Trooien v.

Mansour, 608 F.3d 1020, 1026 (8th Cir. 2010). "To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to 'state a claim to

relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The district court did not err in dismissing Blakley's claims for gender and

disability discrimination. In doing so, the district court relied on Blakley's 2008 EEOC

charge, a document which was not included in or attached to Blakley's complaint. In

addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b), "the court

generally must ignore materials outside the pleadings, but it may consider some
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materials that are part of the public record." Porous Media Corp. v. Pall Corp., 186

F.3d 1077, 1079 (8th Cir. 1999) (quotation and citation omitted). We have previously

held that an EEOC charge is a part of the public record and may be considered on a

motion to dismiss. Faibisch v. Univ. of Minn., 304 F.3d 797, 802–03 (8th Cir. 2002).

Accordingly, the district court did not err by considering Blakley's 2008 EEOC charge

in ruling on Schlumberger's motion to dismiss. Furthermore, Blakley does not

challenge the district court's conclusion that she failed to exhaust her administrative

remedies by failing to check the boxes for "sex" and "disability" discrimination. As

a result, she has waived any challenge on this basis. See United States v. Frausto, 636

F.3d 992, 997 (8th Cir. 2011) (finding that the appellant waived an issue by failing to

make any supporting arguments on appeal). Therefore, we affirm the district court's

dismissal of Blakley's gender and disability claims.

Likewise, the district court did not err in dismissing Blakley's state-law,

negligence-based claims. Contrary to Blakley's assertion, Federal Rule of Civil

Procedure 12(b)(1) allows a district court to dismiss a claim for "lack of subjectmatter jurisdiction." See also, e.g., Hastings v. Wilson, 516 F.3d 1055, 1058–60 (8th

Cir. 2008) (reviewing and affirming the district court's dismissal of a claim under Rule

12(b)(1), on a motion to dismiss, for lack of subject matter jurisdiction). Therefore,

the court properly addressed this issue in ruling on Schlumberger's motion to dismiss.

Moreover, Blakley has not actually challenged the district court's conclusion that it

lacked subject-matter jurisdiction based on the exclusivity of Arkansas law, and, as

a result, she has waived any argument to this effect on appeal. See Frausto, 636 F.3d

at 997 (finding that the appellant waived an issue by failing to make any supporting

arguments on appeal). Accordingly, we affirm the district court's dismissal of

Blakley's negligence-based claims.

Finally, the district court properly dismissed Blakley's duplicative claims in its

ruling on the motion to dismiss. Blakley has likely waived this argument by failing to

provide any legal support for her assertion that the court could not dismiss her claims
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as duplicative in ruling on a motion to dismiss. See Milligan v. City of Red Oak, Iowa,

230 F.3d 355, 360 (8th Cir. 2000) (concluding that an appellant waived an issue by

failing to "support his assertion with any argument or legal authority"). Even if she has

not waived the issue, we agree with the Seventh Circuit that a plaintiff "should not be"

allowed "to litigate the same issue at the same time in more than one federal court."

Crowley Cutlery Co. v. United States, 849 F.2d 273, 279 (7th Cir. 1988) (affirming

a district court's dismissal on this basis). Further, dismissal of duplicative claims

comports with our long-standing "general principle" of "avoid[ing] duplicative

litigation." Brewer v. Swinson, 837 F.2d 802, 804 (8th Cir. 1988) (citing Colo. River

Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). Thus, the

district court did not err by dismissing Blakley's duplicative claims.

2. Discovery Order Dismissing Ledbetter Act Claim

Blakley also contends that the court erred in dismissing her claim under the

Ledbetter Act in its May 6, 2010 discovery order. She asserts, without any supporting

citation, that the district court "should have allowed the Appellant's claims under the

Lilly Ledbetter Act to proceed, since this was a law in its infancy, not available to the

Appellant when the Charge of Discrimination with the EEOC was filed."

Although the district court "dismissed" her Ledbetter Act claim, Blakley's

argument may be viewed more appropriately as a challenge to the court's denial of

leave to amend her complaint to add a new claim. We review such denials for abuse

of discretion. Wintermute v. Kan. Banking Sur. Co., 630 F.3d 1063, 1067 (8th Cir.

2011). Blakley was permitted to file an amended complaint only by the court's January

20, 2010 order, which directed her to limit the scope of her complaint—not expand

it. She never sought leave to add an entirely new claim. Under Federal Rule of Civil

Procedure 15(a)(2), Blakley could only add this claim with Schlumberger's written

consent or the court's leave. She obtained neither. Moreover, adding a new claim

would have required additional discovery by the parties and added further delays to

the proceedings. Under the circumstances, the district court did not abuse its discretion
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by refusing to permit this new claim. See Popp Telecom v. Am. Sharecom, Inc., 210

F.3d 928, 943 (8th Cir. 2000) ("Where an amendment would likely result in the

burdens of additional discovery and delay to the proceedings, a court usually does not

abuse its discretion in denying leave to amend."). Accordingly, we affirm the district

court's dismissal of this claim, which Blakley attempted to add without permission

from Schlumberger or leave from the court.

3. Order Granting Schlumberger's Motion for Summary Judgment

Finally, Blakley challenges the district court's grant of Schlumberger's motion

for summary judgment. First, she argues that Schlumberger's motion did not address

all of her remaining causes of action. Second, she contends that Schlumberger failed

to meet its burden on her Title VII hostile work environment claim because a genuine

issue of material fact existed on whether the "constant threat of [her] termination

. . . was severe and pervasive" enough to affect a term, condition, or privilege of her

employment. Finally, she asserts that the court erred in granting summary judgment

on her FMLA claim because the court "relied on [a] fraudulent document."

Specifically, she maintains that the court should not have relied on Schlumberger's

request for FMLA certification, which was dated "December 28, 2008, one year after

[Blakley] was terminated."

We review the district court's grant of summary judgment de novo. Hayek v.

City of St. Paul, 488 F.3d 1049, 1054 (8th Cir. 2007). "Summary judgment is proper

if, after viewing the evidence and drawing all reasonable inferences in the light most

favorable to the nonmovant, no genuine issues of material fact exist and the movant

is entitled to judgment as a matter of law." Id.

Initially, although Blakley asserts that Schlumberger (and, by extension, the

district court) did not address all of her remaining claims on summary judgment, she

has not identified which claims were not addressed. Moreover, she has not attempted

to explain why those claims were still pending (and not, for example, dismissed by the
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court's February 12, 2009 order). As a result, she has waived any argument that some

of her claims were not dismissed on summary judgment. See Meyers v. Starke, 420

F.3d 738, 743 (8th Cir. 2005) ("To be reviewable, an issue must be presented in the

brief with some specificity. Failure to do so can result in waiver.").

a. Hostile Work Environment

The district court did not err in granting summary judgment to Schlumberger

on Blakley's Title VII claim for race discrimination, in the form of a hostile work

environment. 

To establish a claim of hostile work environment, a plaintiff must show

(1) he or she belonged to a protected group; (2) he or she was subjected

to unwelcome harassment; (3) the harassment was based upon race; (4)

the harassment affected a term, condition, or privilege of his or her

employment; and (5) the employer knew or should have known of the

harassment and failed to take proper remedial action.

Green v. Franklin Nat'l Bank of Minneapolis, 459 F.3d 903, 910 (8th Cir. 2006)

(quotation, alterations, and citation omitted). 

Here, the district court concluded that Blakley had failed to demonstrate the

existence of a genuine issue of material fact on both the third and fourth elements of

her prima facie claim. On appeal, she has not challenged the district court's finding

that she presented no evidence that her alleged harassment was based upon her race.

As a result, she has waived any such argument. See Frausto, 636 F.3d at 997 (finding

that the appellant waived an issue by failing to make any supporting arguments on

appeal). Thus, even if the threats of termination rose to a level sufficient to affect a

"term, condition, or privilege" of Blakley's employment, Blakley still could not

establish her prima facie claim of a hostile work environment based on her race.

Accordingly, we affirm the district court's grant of summary judgment on this claim.
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b. FMLA

An employee can bring two types of FMLA claims: interference and retaliation.

Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006). In an interference

claim, "the employee alleges that an employer denied or interfered with [her]

substantive rights under the FMLA." Id. (citing 29 U.S.C. § 2615(a)(1)). In a

retaliation claim, "the employee alleges that the employer discriminated against [her]

for exercising [her] FMLA rights." Id. (citing 29 U.S.C. § 2615(a)(2)).

i. Interference

The FMLA prohibits an employer "from interfering with, restraining, or

denying an employee's exercise of or attempted exercised of any right contained in the

FMLA." Id. To sustain an interference claim, the plaintiff must show that she was

entitled to the benefit which the employer denied. Id. "An employee can prevail under

an interference theory if [s]he was denied substantive rights under the FMLA for a

reason connected with [her] FMLA leave." Id. However, "an employer who 'interferes

with an employee's FMLA rights will not be liable if the employer can prove it would

have made the same decision had the employee not exercised the employee's FMLA

rights.'" Estrada v. Cypress Semiconductor (Minn.) Inc., 616 F.3d 866, 871 (8th Cir.

2010) (quoting Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 977 (8th

Cir. 2005)). Stated another way, "where an employer's reason for dismissal is

insufficiently related to FMLA leave, the reason will not support the employee's

recovery." Stallings, 447 F.3d at 1051.

Blakley cannot show that the district court erred in granting summary judgment

to Schlumberger on her FMLA interference claim. Blakley's argument about the

allegedly "fraudulent" document—which Schlumberger used to show that Blakley

failed to provide medical certification—only relates to whether Blakley exercised any

FMLA rights. Even if Blakley could create a factual dispute on this issue, she has not

challenged the court's alternative conclusion that Schlumberger terminated Blakley

for a reason unrelated to her FMLA leave. As a result, she has waived any argument
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on this basis, Frausto, 636 F.3d at 997 (finding that the appellant waived an issue by

failing to make any supporting arguments on appeal), and her FMLA interference

claim fails as a matter of law, Estrada, 616 F.3d at 871.

ii. Retaliation

We analyze Blakley's FMLA retaliation claim using the familiar McDonnell

Douglas burden-shifting framework. Wierman v. Casey's Gen. Stores, 638 F.3d 984,

999 (8th Cir. 2011). "To establish a prima facie claim, [Blakley] must show that: 1)

she engaged in protected conduct; 2) she suffered a materially adverse employment

action; and 3) the materially adverse action was causally linked to the protected

conduct." Id. If the plaintiff satisfies her prima facie showing, the employer "must

articulate a legitimate, non-retaliatory reason for its action." Id. If the employer does

so, the burden shifts back to the plaintiff to "identify evidence sufficient to create a

genuine issue of material fact whether [the employer's] proffered explanation is

merely a pretext for unlawful retaliation." Id. "The ultimate question of proof—the

burden of which remains on the employee throughout the inquiry—is whether the

employer's conduct was motivated by retaliatory intent." Id.

Much like her interference claim, Blakley cannot show that the district court

erred in granting summary judgment to Schlumberger on her retaliation claim. Again,

her argument about the "fraudulent document" only relates to whether she engaged in

conduct protected by the FMLA. She has not challenged the district court's alternative

conclusion that she failed to produce sufficient evidence to establish causation, the

third element of her prima facie case. As a result, she has waived any argument on this

basis, Frausto, 636 F.3d at 997 (finding that the appellant waived an issue by failing

to make any supporting arguments on appeal), and her FMLA retaliation claim fails

as a matter of law, Weirman, 638 F.3d at 999.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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