Glenn Dolese, Plaintiff-appellant, v. Office Depot, Inc., et al., Defendants,office Depot, Inc., Defendant-appellee, 231 F.3d 202 (5th Cir. 2000)

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US Court of Appeals for the Fifth Circuit - 231 F.3d 202 (5th Cir. 2000)

November 7, 2000Revised November 21, 2000

Appeal from the United States District Court For the Western District of Texas



Plaintiff-Appellant originally filed suit in state court, alleging that his termination violated the Americans with Disabilities Act ("ADA"),1  the Age Discrimination in Employment Act ("ADEA"),2  the Texas Commission on Human Rights Act ("TCHRA"),3  and the Texas Workers' Compensation Act ("TWCA").4  After the case was removed to federal district court, Dolese obtained a partial remand as to the TWCA claim. He amended his state court complaint to include a claim under the Family and Medical Leave Act ("FMLA"),5  which was then removed to federal court and consolidated with his ADA claim (Dolese withdrew his TCHRA and ADEA claims). He seeks reversal of the district court's denial of his motion for remand. Dolese also asks us to reverse the dismissal of his FMLA claim and the grant of summary judgment in Office Depot's favoron the ADA claims. We refuse to overturn the considered judgment of the district court.

As the district court recognized, removal was appropriate6  and federal jurisdiction was manifestly present. The district court would have had jurisdiction if the case had been originally filed in district court, as an exercise of supplemental jurisdiction.7  Dolese does not dispute the fact that his TCHRA claims form part of the same case or controversy as his ADA and ADEA claims; all emerge out of the circumstances surrounding his termination.8  Moreover, Dolese failed to move for remand of his FMLA claims at the district court level, depriving us of the power to decide on appeal the propriety of remand of these claims.9 

Moreover, the dismissal of his FMLA claims was appropriate. As Dolese had not been employed "for at least 12 months by the employer with respect to whom leave is requested," he was not an "eligible employee" for purposes of the FMLA.10  Although Office Depot's policies are more generous in defining employee eligibility for FMLA protections, they do not create an FMLA cause of action. The Department of Labor regulation cited by Dolese - i.e., 29 C.F.R. § 825.70011  - is inapposite, as it addresses only the situation where an employer program exceeds FMLA requirements regarding "family or medical leave rights" - not eligibility criteria. Even if this provision is on point, however, lower courts have uniformly interpreted it as not providing a cause of action under the FMLA;12  to the extent that the regulation does so, it is invalid.13  As the Sixth Circuit has noted, a contractual agreement to provide enhanced benefits does not provide federal courts with jurisdiction.14 

Finally, summary judgment was appropriate on Dolese's ADA claims. He was not "disabled" under the meaning of the statute,15  and can not therefore establish the requisite prima facie case.16  In light of the preceding, the district court's judgment is AFFIRMED.



See 42 U.S.C. § 12101 et seq.


See 29 U.S.C. § 621 et seq.


See Tex. Labor Code Ann. § 21.001 et seq.


See Tex. Labor Code Ann. § 451.001.


See 29 U.S.C. § 2601 et seq.


See 28 U.S.C. § 1441(a).


See 28 U.S.C. § 1367.


See 28 U.S.C. § 1367; City of Chicago v. Int'l College of Surgeons, 522 U.S. 156, 163-66 (1997).


See Agrilectric Power Partners, Ltd. v. Energy Gulf States, Inc., 207 F.3d 301, 304 n.7 (5th Cir. 2000).


See 29 U.S.C. § 2611(2); 29 C.F.R. § 825.110(a) (1).


The provision stipulates: "An employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA." 29 C.F.R. § 825.700(a).


See Covey v. Methodist Hosp. of Dyersburg, Inc., 56 F. Supp. 2d 965, 971-72 (W.D. Tenn. 1999); Hite v. Biomet, Inc., 53 F. Supp. 2d 1013, 1018 (N.D. Ind. 1999); Rich v. Delta Air Lines, Inc., 921 F. Supp. 767, 773-74 (N.D. Ga. 1996).


See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988); Rich, 921 F. Supp. at 773-74; see also McGregor v. Autozone, Inc., 180 F.3d 1305, 1308 (11th Cir. 1999).


See Douglas v. E.G. Baldwin & Assocs, Inc., 150 F.3d 604, 608 (6th Cir. 1998).


See 42 U.S.C. § 12102(2); Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521-23 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).


See Rizzo v. Children's World Learning Centers, Inc., 84 F.3d 758, 763 (5th Cir. 1996).