Case: 13-11699    Date Filed: 07/01/2014   Page: 1 of 9


                                                         [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-11699
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 8:12-cv-00066-EAK-AEP



BILJANA PIVAC,

                                                               Plaintiff-Appellant,

                                     versus

COMPONENT SERVICES & LOGISTICS, INC.,

                                                              Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                 (July 1, 2014)

Before PRYOR, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

     Biljana Pivac, appearing through counsel, appeals the district court’s grant

of summary judgment to her former employer, Component Services & Logistics,
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Inc. (“CSL”), on her FMLA interference and retaliation claims. She contends that

the court erred by striking a portion of her sworn statement submitted in opposition

to CSL’s motion for summary judgment, and by granting that motion after

concluding that she failed to establish an FMLA-protected “serious health

condition.” We address each of her claims, in turn.

                                           I.

      Pivac first argues that the district court abused its discretion by striking a

portion of her October 2012 sworn statement declaring that she had visited a doctor

three times in 2012 for depression and been treated with anti-anxiety medication.

The court concluded that her statement was both irrelevant and contradictory to her

earlier deposition testimony, in which she stated that she had not visited a doctor

through March 2012.

      We review a district court’s decision to strike an affidavit for abuse of

discretion. Hall v. United Ins. Co. of Amer., 

, 1259 (11th Cir. 2004).

We may affirm the judgment of the district court “on any ground supported by the

record, regardless of whether that ground was relied upon or even considered by

the district court.” Kernel Records Oy v. Mosley, 

, 1309 (11th Cir.

2012), cert. denied, 

(2013).

      “Relevant evidence” is defined broadly under Fed.R.Evid. 401 as evidence

having “any tendency to make a fact more or less probable than it would be


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without the evidence.” Fed.R.Evid. 401(a). But regardless of relevance, not all

evidence must be considered on a motion for summary judgment. For example,

recognizing that parties may try to escape summary judgment by using affidavits to

create issues of fact where none otherwise existed, we have allowed an affidavit to

be disregarded if it “flatly contradict[s]” earlier deposition testimony without

explanation. Tippens v. Celotex Corp., 

, 953 (11th Cir. 1986). But,

that said, “[a] definite distinction must be made between discrepancies which

create transparent shams and discrepancies which create an issue of credibility or

go to the weight of the evidence.” 

26(e)(1)(A), a party is required to supplement or correct

its discovery responses “in a timely manner if the party learns that in some material

respect the disclosure or response is incomplete or incorrect, and if the additional

or corrective information has not otherwise been made known to the other parties

during the discovery process or in writing.” If a party fails to supplement, then that

party may not use any such additional or corrective information “to supply

evidence on a motion, at a hearing, or at a trial, unless the failure was substantially

justified or is harmless.” Fed.R.Civ.P. 37(c)(1).

      Here, it appears that Pivac’s statement was potentially relevant in this case—

specifically, to the question of whether she suffered from an FMLA-protected

“serious health condition.” See Fed.R.Evid. 401(a); 29 U.S.C. § 2612(a)(1)(D).


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Moreover, as she points out, her sworn statement could be read in harmony with

her earlier deposition testimony, if one assumes that her statement refers only to

post-deposition events.

       In any case, however, Pivac’s failure to supplement her initial discovery

disclosures merited exclusion under Rule 37. See Fed.R.Civ.P. 37(c)(1). During

discovery, CSL requested all records related to Pivac’s medical treatment, and any

other documentation that would tend to support her allegations. 1 Yet, there is no

dispute that Pivac did not supplement her initial responses with additional

documentation supporting her later sworn statement. Finally, Pivac has not

offered, and did not offer below, any legitimate reason to justify her omission or

otherwise demonstrate that it was harmless. For these reasons, the court could

have properly stricken Pivac’s sworn statement under Rule 37, so we affirm on that

basis. Kernel Records 

.

                                              II.

       Next, Pivac contends that the district court erred when it granted CSL’s

motion for summary judgment on her FMLA interference and retaliation claims

because a reasonable jury could conclude that she suffered from a “serious health




1       Plaintiff argues on appeal that Interrogatory No. 8—requesting names of providers—was
time-limited and therefore not subject to the supplementation requirement. We need not address
that argument because other requests for the production of documents cannot be read to avoid the
duty to supplement.
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condition.” The court noted that this was a prerequisite to both of Pivac’s FMLA

claims, and because she could not establish as much, her claims were foreclosed.

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

the facts and drawing all reasonable inferences in the light most favorable to the

nonmoving party. Moore ex rel. Moore v. Reese, 

, 1231 (11th Cir.

2011). Summary judgment is appropriate where “the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed.R.Civ.P. 56(a). “Once the moving party has properly

supported its motion for summary judgment, the burden shifts to the nonmoving

party to come forward with specific facts showing that there is a genuine issue for

trial.” Int'l Stamp Art, Inc. v. U.S. Postal Serv., 

, 1274 (11th Cir.

2006) (quotations and citation omitted). No genuine issue of material fact exists if

a party has failed to make a showing sufficient to establish an essential element on

which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett,

, 323, 

, 2552, 

(1986).

      Under the FMLA, eligible employees are entitled to up to 12 workweeks of

unpaid leave during any 12-month period for “a serious health condition that

makes the employee unable to perform the functions of the position of such

employee.” 29 U.S.C. § 2612(a)(1)(D). We have recognized that the FMLA

creates two types of claims: (1) interference claims, in which an employee asserts


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that her employer denied or otherwise interfered with her substantive rights under

the Act; and (2) retaliation claims, in which an employee asserts that her employer

discriminated against her because she engaged in activity protected by the Act.

Hurlbert v. St. Mary’s Health Care Sys., Inc., 

, 1293 (11th Cir.

2006) (quotations and citation omitted); see also 29 U.S.C. § 1615(a)(1), (2).

Importantly, while we have set forth the prima facie elements of FMLA

interference and retaliation claims, see, e.g., Pereda v. Brookdale Senior Living

Communities, Inc., 

, 1273-75 (11th Cir. 2012), “[i]nterference and

retaliation claims both require the employee to establish a ‘serious health

condition,’” Russell v. N. Broward Hosp., 

, 1340 (11th Cir. 2003).

      The FMLA defines a “serious health condition” as an illness, injury,

impairment, or physical or mental condition that involves either “inpatient care in a

hospital, hospice, or residential medical care facility,” or “continuing treatment by

a health care provider.” 29 U.S.C. § 2611(11). There is no allegation that Pivac

received any inpatient care. Turning then to the second criterion, the FMLA does

not define “continuing treatment by a health care provider,” but the Department of

Labor has filled the gap with a regulation enumerating several qualifying

touchstones, two of which are relevant here. See 29 C.F.R. § 825.115. First,

continuing treatment may include “[i]ncapacity and treatment,” meaning that the

employee both suffered a period of incapacity of “more than three consecutive”


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days, and received either of the following: (i) in-person treatment two or more

times, within 30 days of the first day of incapacity, unless extenuating

circumstances existed; or (ii) in-person treatment at least once, which resulted in a

regimen of continuing treatment under the supervision of a health care provider.

29 C.F.R. § 825.115(a)(1)-(3). Second, continuing treatment also includes

“[c]hronic conditions,” which are defined as those that: (i) require periodic visits

(defined as at least twice a year) by or under the supervision of a health care

provider; (ii) continue over an extended period of time; and (iii) may cause

episodic rather than a continuing period of incapacity (e.g., asthma, diabetes,

epilepsy, etc.). 29 C.F.R. § 825.115(c).

      In this instance, Pivac’s interference and retaliation claims both fail because,

as the district court correctly concluded, she failed to introduce sufficient evidence

to create a genuine issue of material fact as to whether she suffered from a “serious

health condition.” The operative phrase here is “continuing treatment,” and the

evidence does not show that Pivac received any such treatment under either of the

pertinent regulatory provisions. Starting with § 825.115(a), although there is no

dispute that Pivac suffered a qualifying incapacity during her October 2011 leave

of absence, she did not further show that her incapacity was accompanied by the

requisite treatment. See 29 C.F.R. § 825.115(a)(1)-(3). The record shows that

Pivac made a lone doctor visit in October 2011, complaining of anxiety and


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depression; that she was not prescribed any further treatment as a result of the visit;

and finally, that following discussion with her doctor, she returned to work less

than two weeks later without restriction. Thus, unable to show that she received

treatment “two or more times,” or that her doctor visit resulted in a “regimen of

continuing treatment,” Pivac failed to demonstrate “[i]ncapacity and treatment”

under § 825.115(a).

       Next, Pivac likewise failed to show that she suffered from a qualifying

“chronic condition” under § 825.115(c). There is no indication in the record that

her alleged condition “[r]equire[d] periodic visits,” or that it “[c]ontinue[d] over an

extended period of time.” 29 C.F.R. § 825.115(c)(1)-(2). Rather, the record shows

only that she sought out treatment for her purported anxiety and depression on a

single, isolated visit for an ailment that lasted less than two weeks. On that

evidence, Pivac failed to show that her purported condition was chronic under

§ 825.115(c). 2

       Finally, although both CSL and Pivac address the prima facie elements of

FMLA interference and retaliation claims on appeal, the district court correctly

found it unnecessary to address those elements in detail because Pivac’s claims



       2
                We conclude that even if Pivac’s sworn statement were considered, her
unsupported allegation would still not allow her to survive summary judgment. See Ellis v.
England, 

, 1326 (11th Cir. 2005) (“[M]ere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.”).
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failed at the outset. In sum, the evidence did not show that Pivac suffered from an

FMLA-protected “serious health condition.” Therefore, we affirm.

      AFFIRMED.




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