UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

MINGYI ROWE, Plaintiff - Appellant,

v. UNITED AIRLINES, INC., Defendant - Appellee. No. 14-1317 (D.C. No. 1:13-CV-00055-CMA-BNB) (D. Colo.)

ORDER AND JUDGMENT *

Before MORITZ , PORFILIO , and BALDOCK , Circuit Judges.
Plaintiff Mingyi Rowe appeals the di strict court’s order granting summary judgment in favor of defendant United Airlin es, Inc. (United), her former employer, on her federal claims under the Family and Medical Leav e Act (FMLA), 29 U.S.C. §§ 2601-2654, and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and declining to exer cise supplemental jurisdiction over her

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 16, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - state-law claims under the Illinois Human Rights Act (IHRA), 775 ILCS 5/6-101(A), and her claim of intentional infliction of emotional dist ress. Exercising jurisdiction under 28 U.S.C. § 1291 , we affirm. I. Background The following facts are either undisputed or construed in favor of Rowe as the party opposing United’s motion for summary j udgment. Rowe is an American citizen originally from Taiwan. Although she and her husband live in Colorado, her parents and other relatives live in Taipei. Rowe began working for United as a flight attendant in December 2000 or January 2001, and she was based in Denver from 2007 until her termination on July 11, 2011. Ro we’s husband also is a United flight attendant. United flight attendants can travel for pe rsonal trips at little or no cost. Using a computer to log on to United’s internal flig ht search system, they can search flight times, connections and flight “loads.” A flight load shows th e number of seats already booked for a given flight and the number of seats remaining open— information that assists in gauging the likelihood of obtaining a seat on a flight. Attendants can place themselves on a fli ght “standby” list beginning one week in advance of a flight. Listing does not guarant ee a seat and boarding priority is based on various factors. Also, in February 2011, United flight attendants could use “coupons” to list for a flight, thereby in creasing their boarding priority and the likelihood of getting a seat.- 3 - United also permits its flight attenda nts free personal travel via available “jumpseats,” the small, fold-down seats at the front and back of a plane used by working flight attendants duri ng take-off and landing. In or der to secure a jumpseat, flight attendants must arrive at the airport at least 30 minutes befo re the flight departs to place their names on a list. Available jumpseats ar e then assigned in order of seniority. United has no mechanis m to check for a flight’s ju mpseat availability or to know how many flight attendants with more seniority will also at tempt to secure a jumpseat. However, United also permits its flight attenda nts to purchase tickets for available seats at a discount either on United flights or on other airlines. In October 2010, United granted Ro we and her husband’s bid for vacation leave from March 2 through March 27, 2011. Rowe and her husband spent February 25 through April 1, 2011, in Taipei. Although United had not scheduled Rowe to work from February 24 through Fe bruary 26, it had assigned her to work a standby reserve assignment in Denve r February 27 through March 1. In January and February 2011, Rowe and her husband conducted many searches on United’s internal system for flights from Denve r to Taipei and returning from Taipei to Denver. Although Rowe was scheduled to work standby from February 27 to March 1, every search Rowe or her husband conducted sought information for flights leavi ng either from February 22 to February 25. Neither Rowe nor her husband conducted any searches for a return fli ght from Taipei prior to April 1. The record shows Rowe and her husband conducted the following searches:- 4 -  January 14: Rowe searched for flights departing from Denver to Taipei on February 22 and February 23, and returning from Taipei to Denver on March 31

 January 16: Rowe’s husband searched for flights departing from Denver to Taipei on February 25, 26, and 27; he did not search for returning flights.

 February 4: Rowe’s husband searched for flights departing from Denver to Taipei on February 24, and returning from Taipei to Denver on April 2;

 February 19: Rowe’s husband searched for flights departing from Denver to Taipei on February 23 and 24 and retu rning from Taipei to Denver on April 2 and April 24;

 February 22: Rowe searched for fli ghts departing from Denver to Taipei on February 23 and 24, and returning from Taipei to Denver on April 1

 February 23: Rowe searched for flight s departing from Denver for Taipei on February 24. She did not search for any returning flights. February 23: Rowe’s husband searched for flights departing from Denver to Taipei on February 24. He did not search for any returning flights. Although Rowe searched as late as February 22 for flights departing on February 23 and as late as 1:00 p.m. on February 23 for flights departing on February 24, she testified that it wasn’t until she receiv ed a call from her parents on the evening of February 23 advising that he r uncle in Taipei had been taken to the hospital and was close to d eath, that she and her hus band decided to leave for Taiwan. On February 23, the Rowes listed for United flights on February 24 and February 25, using the 6-7 coupons they had between them, incr easing their chances of getting seats on the flights. The Rowes had enough coupons to list them both on the three flights they took to reach Taipei (Denver to Sea ttle, Seattle to Tokyo, and Tokyo to Taipei). Rowe did not list for any flights returning from Taipei to Denver.- 5 - The Rowes arrived in Taipei on Februa ry 25 at approximately 11 p.m. local time. In order to return to Denver in time for her work assignment on February 27, Rowe would have had to leave Taipei less than 12 hours later, on United’s 10:20 a.m. flight on February 26. 1
Rowe did not return to Denver fo r her three-day shift beginning on February 27. She developed a migraine shortly before arrival in Taipei on February 25. The migraine continued inte rmittently until February 28, and Rowe knew by 12:45 a.m. on February 26 that she would not return for her February 27 shift. On February 27, sh e called-in sick under pre- approved FMLA leave. Rowe remained on FMLA leave until she removed he rself from it on Ma rch 1, the end of her scheduled work assignment. It is uncontroverted that Rowe never se arched for United fli ghts leaving Taipei for Denver on February 26, never purchased a regular price or discount ticket for the 10:20 a.m. flight on February 26, never listed for a se at on the flight, and never checked the flight load on the 10:20 a.m. flight to determ ine the availability of any

seats. It is also uncontroverted that Rowe began suffering migrai nes in 2003 and was unable to work during a migraine episode. United had approved Rowe’s intermittent use of FMLA leave for absences due to migraines in 2003 and from 2005 through

1 The record shows that Taiwan is 15 hours ahead of Denver during standard time, so Rowe would have jumped b ack 15 hours during the return flight. See 3 Aplt. App. at 439.- 6 - 2011, and she took FMLA leave for migrai nes on 78 occasions while she was based in Denver between 2007 and 2011. Prior to her use of FMLA leave for her three-day shift scheduled for February 27 through March 1, 2011, however, Dodge had never questioned Rowe about her attendance. In fact, she had received two commendations for perfect attendance from United. Upon Rowe’s return to Denver, her immediate supervisor, Mark Dodge, requested that she meet w ith him on April 5. During the meeting, Dodge questioned Rowe about her trip to Taiw an and her plan to return for her three-day assignment. Rowe told Dodge she intende d to “jumpseat” back to De nver on the 10:20 a.m. flight from Taipei on February 26 or purchase a re gular seat on that flight. In her written report of the meeting, Rowe confirmed that she had no “back-up pl an” to return to Denver if no jumpseat was availa ble and the flight was full. Dodge briefly met with Rowe again on April 21 and Dodge’s supervisor, Dean Whittaker, met with Rowe on May 31. Whittaker did not be lieve Rowe’s claim that when she left Denver for Taiwan on Febr uary 24, she intended to leave Taiwan within 12 hours after arriving there, in or der to return to Denver for her three-day shift on February 27. Whittake r terminated Rowe’s employm ent on July 11, 2011, on the basis of dishonesty, becau se she “falsely claimed illn ess as the reason for [her] absence from work on February 27, 28 and March 1, 2011,” and because she had not boarded the February 26 flight out of Taipei or listed to travel on that flight.- 7 - Rowe brought this action alleging viol ations of the FMLA and the ADA, state law claims under the IHRA, and a state la w claim for intentional infliction of emotional distress. United moved for summar y judgment on all of Rowe’s claims. In its motion, United did not dispute that Rowe experienced a migraine episode beginning on February 25, but asserted she was terminated because Whittaker believed she neither planned nor intended to return to Denver for her February 27 shift when she left Denver for Taipei on February 24. Id. at 93. The district court granted summary judgment for United on all of Rowe’s claims. In rejecting Rowe’s claim that United retaliated and/or discriminated against her for taking FMLA leave, the court foun d United had established through material, uncontroverted facts that it discharged Rowe for a legitimate, nondiscriminatory

reason – i.e ., because it believed she lied when sh e claimed she intended to return to Denver for her three-day shift. The court concluded United’s belie f was supported by the timing of Rowe’s travel to Taipei shortly before her sc heduled three-day shift, her request for FMLA leave from February 27 th rough March 1, and the record of Rowe and her husband’s computer searches for flights to and from Taipei beginning in January 2011. The court also concluded Rowe failed to show United’s reason was pretextual. Id. at 171. Further, the court gr anted summary judgment on Rowe’s FMLA interference claim based on its conclu sion that she would have been fired for dishonesty regardless of her request for FMLA leave.- 8 - For the same reasons it gr anted summary judgment on Rowe’s FMLA claims, the district court rejected Rowe’s ADA cl aim that United discriminated against her because of her disability. The court also noted that because United had always granted Rowe’s requests for FMLA leave fo r her migraine episode s, it had always provided reasonable accommodation for her inability to work when she had a migraine. Id. at 175-76. The district court d eclined to exercise supplemental jurisdiction over Rowe’s stat e-law claims and dismissed them without prejudice. Id. at 176-77. This appeal followed. II. Discussion Rowe argues the district court erre d in granting summary judgment for United because the court failed to construe th e evidence in her favor or recognize the existence of disputed questions of fact. We review a grant of summary judgme nt de novo by examining the record and drawing all reasonable inferences from that r ecord in the light mo st favorable to the non-moving party. Palladium Music, Inc. v. EatSleepMusic, Inc. , 398 F.3d 1193, 1196 (10th Cir. 2005). “Summary judgment is appropriate only if ‘the movant shows that there is no genuine issue as to any mate rial fact and the mova nt is entitled to judgment as a matter of law.’” Tolan v. Cotton , 134 S. Ct. 1861, 1866 (2014) (per curiam) (quoting Fed. R. Civ. P. 56(a)). The burden is on the party moving for su mmary judgment to show the absence of a genuine issue of material fact and an entitlement to j udgment as a matter of law.- 9 - “[B]ut a party opposing summary judgment ‘must do more than simply show that there is some metaphysical doubt as to the material facts.’” Palladium , 398 F.3d at 1196 (quoting Matsushita Elec. Indus. Co . v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986)). “‘The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient ; there must be evidence on which the jury could reasonably find for the plaintiff.’” Panis v. Mission Hills Bank, N.A. , 60 F.3d 1486, 1490 (10th Cir. 1995) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986)). And “conclusory allega tions will not suffice to es tablish an issue of fact.” McVay v. W. Plains Serv. Corp. , 823 F.2d 1395, 1398 (10th Cir. 1987). In an employment case, it is not our position to judge whether an employer’s “proffered reasons were wise, fair[,] or correct, but whet her [it] honestly believed those reasons and acted in good faith upon those beliefs.” Rivera v. City & Cnty. of
Denver , 365 F.3d 912, 924-25 (10th Cir. 2004) (internal quotation marks omitted). “In determining whether the proffered re ason for a decision was pretextual, we examine the facts as th ey appear to the person making the decision.” Watts v. City of
Norman , 270 F.3d 1288, 1295 (10t h Cir. 2001) (internal quotation marks omitted). An employer’s good-faith belief “would not be pretextual even if the belief was later found to be erroneous.” Tran v. Trs. of State Colls. in Colo. , 355 F.3d 1263, 1268-69 (10th Cir. 2004) (int ernal quotation marks omitted). Ne vertheless, “[p]retext can be shown by such weaknesses, im plausibilities, inconsistenc ies, incoherencies, or contradictions in the employer’s proffered legitimate reasons fo r its action that a- 10 - reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for th e asserted non-discriminatory reasons.” Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 ( 10th Cir. 1997) (int ernal quotation marks omitted). Rowe asserts five arguments on appeal. First, she contends the district court failed to construe the evid ence in her favor. In support, Rowe argues (1) the evidence supports an inference that Dodge lied when he said that he confronted Rowe with the record of her flight searches at the April 5 meeting, b ecause the Weblist Log was not requested or printed until the end of June , and Dodge then requested confirmation from another United official that he had inte rpreted it correctly; and (2) Dodge failed to follow-up to determine whether the 10: 20 flight from Taipei flew “full” on February 26, which another United o fficial had asked him to check on. But whether the record supports an inference that Dodge lied about or misstated the date he obtained the Weblist Log is not a genui ne issue of material fact, as Rowe does not dispute the information cont ained in the log or that it was available to the decision-maker, Whittaker, by the e nd of June, before he terminated her employment. Nor has Rowe shown that wh ether the 10:20 flight from Taipei flew “full” on February 26 had any significance or was “material” to Whittaker, who was not the United official who asked Do dge to obtain that information. Second, Rowe argues that United’s ad mission in its summary judgment motion that a migraine prevented her from retu rning to Denver for her standby assignment- 11 - created a disputed question of fact as to whether United believed Rowe did not intend to return for work when she left Denve r before that shift. But the undisputed evidence shows that Whittaker discharged Rowe because he did not believe her claim that she planned to return to Denver for her February 27 shift when she left for Taipei on February 24. Whitaker’s conclusion is substantiated by am ple information—(1) the 10:20 a.m. flight Rowe said she intende d to take out of Ta ipei on February 26 would have required her to leave Taipei less than 12 hours afte r she arrived; (2) Rowe and her husband perform ed multiple computer search es for flights to and from Taipei for several weeks prio r to their departure and up until the day they left, but neither she nor her husband ever searched fo r flights that would have returned Rowe to Denver for her three-day shift; (3) Rowe never sought to pla ce herself on a flight “standby” list for the 10:20 a.m. flight or any flight that would have returned her to Denver for her shift; (4) Rowe made no e ffort to “list” herself on the 10:20 a.m. flight or obtain boarding priority; and (5) Rowe never sought to use “coupons” to list for that flight to increase he r likelihood of ge tting a seat. Third, Rowe contends th at her evidence showing Unite d’s errors or dishonesty in conducting its investigation of her conduct created a disput ed question of fact as to whether United truly believed that she had been dishones t in February 2011. As indicated above, however, the issue is whether the decision-maker, Whittaker, honestly believed she did not plan to re turn for her three-day shift. Rowe’s allegations of dishonesty concern Dodge, not Whittake r. She has presented no- 12 - evidence upon which a rational jury could c onclude that Whittaker did not honestly believe that she lied when she told him that she planned to return to Denver for her February 27 shift when she le ft for Taipei on February 24. Fourth, Rowe makes a conclusory argument that summary judgment was precluded on her ADA claim because her exte nsive use of FMLA leave while based in Denver created a disputed issue as to whether United officials were aware of her disability, i.e. , her migraines. But the district court granted summary judgment in favor of United on her ADA claim becaus e United had always accommodated her need for FMLA leave, not b ecause her migraines were not a disability. Because Rowe does not challenge the district court’s reasoni ng, we need not consider that argument.
See Reedy v. Werholtz , 660 F.3d 1270, 1275 (10th Ci r. 2011) (holding that where “[t]he argument section of [a ppellant’s] opening brief does not challenge the [district] court’s reasoning on [a] point, . . . [w]e therefore do not address the matter”). Finally, Rowe argues the district c ourt improperly dismissed her state-law claim for intentional infliction of emotional distress. But because the court properly granted summary judgment in favor of Un ited on Rowe’s federa l claims, the court did not abuse its discretion by declining to exercise supplemen tal jurisdiction over her state-law claims. Koch v. City of Del City , 660 F.3d 1228, 1248 (10th Cir. 2011) (citing 28 U.S.C. § 1367(c)(3)).- 13 - Because the district court properly gr anted summary judgment to United on all of Rowe’s claims, we affirm. Entered for the Court
Nancy L. Moritz Circuit Judge