Charloris Hawkins v. BBVA Compass Bancshares Inc.

Filing

Opinion issued by court as to Appellant Charloris Hawkins. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 14-14480

Date Filed: 06/02/2015

Page: 1 of 21

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14480
Non-Argument Calendar
________________________
D.C. Docket No. 2:12-cv-03922-RDP

CHARLORIS HAWKINS,
Plaintiff-Appellant,
versus
BBVA COMPASS BANCSHARES, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(June 2, 2015)
Before HULL, ROSENBAUM and JULIE CARNES, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Charloris Hawkins appeals the district court’s grant of
summary judgment for Defendant-Appellee BBVA Compass Bancshares, Inc. on

Case: 14-14480

Date Filed: 06/02/2015

Page: 2 of 21

Plaintiff’s claims of sex discrimination and retaliation in violation of Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, and interference and
retaliation in violation of the Family Medical Leave Act (“FMLA”), 29 U.S.C.
§ 2615.
I. Background
Plaintiff Hawkins (“Plaintiff”) was hired by BBVA Compass Bancshares
(“Defendant”) in August 2011 as a Financial Analyst in the Finance Technology
(“TeSS”) group. Denis Arauz, Director of Financial Analysis & Planning, made
the decision to hire Plaintiff and served as Plaintiff’s immediate supervisor
throughout her employment. Arauz reported to Joanna Burleson, Director of TeSS
Finance and Control. During Plaintiff’s employment, Arauz directly supervised
three other Financial Analysts in addition to Plaintiff: Tiera Love, whom Arauz
later promoted to Finance Manager; Remy Bukelis; and Michael Langan. Arauz
and the Financial Analysts were responsible for variance analyses and forecasting
for the TeSS Division, which required coordination within the group and with
executives and managers.
From early on in Plaintiff’s employment, Arauz and Tiera Love perceived
that Plaintiff struggled to accurately, efficiently, and timely complete her job
duties. On December 20, 2011, Arauz issued Plaintiff a verbal warning for
accumulating four unapproved absences within a twelve month period, in violation
2

Case: 14-14480

Date Filed: 06/02/2015

Page: 3 of 21

of Defendant’s attendance policy. The next day, Plaintiff challenged the verbal
warning with Corie Arnold in Human Resources, arguing that she had received
advance approval for one of the absences. During that meeting, Plaintiff also
complained that Arauz used inappropriate language, and as an example, stated that
Arauz once commented in a meeting, “Hey, so and so, where’s my shit?” Plaintiff
also complained that she perceived her discussions with Arauz as “belittling” and
“degrading.”
On January 13, 2012, Plaintiff complained to Human Resources again, this
time to her primary Human Resources contact, Crystal Berryhill. Plaintiff
complained that Arauz used profanity, was “harsh” and “disrespectful” in his
communications, and that “she has asked for help and training, but [] he does not
communicate with her or acknowledge her requests until he reprimands her about
something she has done wrong.” Later in January, Plaintiff, Arauz, and Burleson
met to discuss the issues Plaintiff raised. According to Berryhill, the issues were
resolved, and Plaintiff said that she would reach out to Human Resources again if
necessary.
On April 27, 2012, Arauz issued Plaintiff her annual performance evaluation
for 2011 and his performance expectations for 2012. Though Arauz noted some of
Plaintiff’s deficiencies and areas of needed improvement, he rated Plaintiff’s
overall performance as “Meeting Expectations.” He explained that he was giving
3

Case: 14-14480

Date Filed: 06/02/2015

Page: 4 of 21

her the benefit of the doubt because she had been employed for less than five
months in 2011. His written comments stated, in part:
When [there are] time constraints, ambiguous details, and potential
problems or conflicts, [Plaintiff] is less effective . . . . It is during this
time that [Plaintiff] needs to determine what is lacking to ensure the
task gets done . . . . [Plaintiff] needs to understand her business area
and ensure that financials are accurately represented . . . . I have seen
the potential, however, it is not consistent . . . . [There have been]
multiple occasions where things were to a point of no return and
communication was stalled . . . . [Plaintiff] should continue to work on
this as it is critical to achieving overall success.
After receiving this evaluation, Plaintiff continued to exhibit performance
issues. On May 10, 2012, Human Resources Executive Director Jan Naccari and
Arauz decided to issue a written warning to Plaintiff because of her
underperformance. The warning was given to Plaintiff over a month later, on June
22, 2012. After Defendant had made the decision to issue this written warning, but
before it had done so, Plaintiff bid on two internal accounting positions. Plaintiff
was told she could continue to bid on the positions and that Arauz would not block
the bids. However, Arauz indicated that if he was asked, he would explain that
Plaintiff had received a written warning.
Plaintiff left work sick on the day she received her written warning, June 22,
due to a reported “pseudoseizure”1 and remained away from work until June 27,
2012. Upon her return, she responded to the written warning by blaming Arauz for
1

A pseudoseizure is a non-epileptic seizure that is psychological in nature, as opposed to
neurologically caused. See http://emedicine.medscape.com/article/1184694-overview.
4

Case: 14-14480

Date Filed: 06/02/2015

Page: 5 of 21

her performance issues because he did not provide her enough guidance and was a
poor communicator. Plaintiff also stated that she believed Arauz was retaliating
against her because she had complained about him to Human Resources. On July
5, 2012, Arauz, Berryhill, Naccari, Human Resources Partner Tameka Eubanks,
and Plaintiff met to discuss the ongoing issues, and it was agreed that Arauz and
Plaintiff would meet in person on a regular basis to address any unresolved issues.
The record indicates that seventeen of these meetings, some of which lasted over
two hours, occurred over the next four weeks. The last meeting took place on
August 3, 2012.
After these seventeen meetings, Arauz concluded that Plaintiff did not
possess the level of skill or experience she had claimed when applying for the job
and that these shortcomings were not solvable given the time-sensitive constraints
of the position. In an August 6 memorandum to Burleson and Dan Howard,
Human Resources Partner and Senior Vice President, who recently had replaced
Naccari as Arauz’s primary Human Resources contact, Arauz stated his belief that
Plaintiff’s employment should be terminated. Alternatively, he stated that he
would “like HR to find her a new home.”
With input from Arauz, Burleson, and Eubanks, Howard placed Plaintiff on
a ninety-day probation for unsatisfactory performance beginning on August 6. The
probation document stated that it was “imperative that [Plaintiff] demonstrate
5

Case: 14-14480

Date Filed: 06/02/2015

Page: 6 of 21

immediate, significant, and sustained improvement” and that “[f]ailure to meet
these standards of performance can result in further disciplinary counseling, up to
and including termination of employment.” The next day, Plaintiff submitted a
written rebuttal alleging that the probation was retaliatory and denying
responsibility for her performance issues.
Immediately after she was placed on probation, Plaintiff was given a
narrowly-tailored software maintenance file assignment, which she agreed could
be completed and submitted no later than August 9. Plaintiff submitted the
assignment on August 9 but left work early that afternoon when she suffered a
seizure. Plaintiff was subsequently approved for non-FMLA medical leave and,
once she had completed the one-year employment period that is required to
become eligible for FMLA leave, she was approved for that leave. The FMLA
leave period was approved for August 15 through September 30, 2012, but
Plaintiff returned to work on September 11. Notably, although Arauz knew that
Plaintiff was suffering from medical problems and was not at work, he did not
become aware that Plaintiff had applied for FMLA leave until August 30, when he
received an email from Human Resources.
After Plaintiff turned in her assignment, Arauz reviewed it and determined
that it contained several of the same types of errors she had been making
throughout her employment. Arauz discussed his conclusions with Howard and
6

Case: 14-14480

Date Filed: 06/02/2015

Page: 7 of 21

told Howard he did not think Plaintiff was capable of improving her performance.
To ensure that Arauz had accurately assessed Plaintiff’s assignment, Howard asked
another financial analyst, Robby Odgers, to perform the same assignment. Howard
provided Odgers with Plaintiff’s work product—without identifying Plaintiff—to
see if he could determine how Plaintiff had reached her results. Odgers confirmed
that Plaintiff’s report was inaccurate, internally inconsistent, and appeared to be
prepared by someone who lacked the necessary analytical skills to complete the
task. Howard thus decided to meet with Plaintiff upon her return from leave to
afford her an opportunity to explain her failure to properly complete the
assignment.
On September 11, Plaintiff was cleared by her physician to return to work on
a reduced schedule for two weeks, with no restrictions thereafter. That day,
Howard and Eubanks met with her about her most recent assignment. No
reference to Plaintiff’s FMLA leave was made during this meeting. After the
meeting, Howard concluded that Plaintiff’s performance issues were not resolvable
and decided to terminate her employment for unsatisfactory performance. On
September 12, Howard and Eubanks met with Plaintiff and notified her of the
termination decision. Two male employees, Chris Valencia and Matthew English,
assumed her duties.

7

Case: 14-14480

Date Filed: 06/02/2015

Page: 8 of 21

Plaintiff then filed a charge of discrimination with the EEOC, alleging she
was discharged because of her gender and that she was subjected to a retaliatory
discharge, in violation of both Title VII and the FMLA. She subsequently filed
this lawsuit in federal court. The district court granted summary judgment to
Defendant on all claims, and Plaintiff filed this timely appeal. After careful
review, we affirm.
II. Standard of Review
We review a district court’s grant of summary judgment de novo, viewing
all evidence in the light most favorable to the nonmoving party. Owen v. I.C. Sys.,
Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). A movant is entitled to summary
judgment if 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). A dispute about a
material fact is “genuine” “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
III. Title VII Disparate Treatment Claim
Title VII provides that it is unlawful for an employer “to discharge any
individual, or otherwise to discriminate against any individual . . . because of such
individual’s . . . sex . . . .” 42 U.S.C. § 2000e-2(a)(1). In evaluating disparate
treatment claims supported by circumstantial evidence, we use the framework of
8

Case: 14-14480

Date Filed: 06/02/2015

Page: 9 of 21

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). Under McDonnell
Douglas, the plaintiff bears the initial burden of establishing a prima facie case,
which generally requires showing: (1) the plaintiff was a member of a protected
class; (2) she was qualified to do the job; (3) she was subjected to an adverse
employment action; and (4) she was treated less favorably than similarly situated
individuals outside her protected class. Holland v. Gee, 677 F.3d 1047, 1055 (11th
Cir. 2012). To prove an adverse employment action, the plaintiff must show “a
serious and material change in the terms, conditions, or privileges of employment.
Moreover, the employee’s subjective view of the significance and adversity of the
employer’s action is not controlling; the employment action must be materially
adverse as viewed by a reasonable person in the circumstances.” Davis v. Town of
Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) (emphasis in original).
If the plaintiff establishes a prima facie case, the employer then has the
burden of production to articulate a legitimate, non-discriminatory reason for its
actions. Wilson, 376 F.3d at 1087. If the employer satisfies its burden, the
presumption of discrimination is rebutted, and the plaintiff must then offer
evidence that the employer’s reason is a pretext for illegal discrimination. Id.
The district court granted summary judgment to Defendant on Plaintiff’s
disparate treatment claim, finding that Plaintiff’s employment termination was the
9

Case: 14-14480

Date Filed: 06/02/2015

Page: 10 of 21

only adverse action it could consider, and that even if any of Defendant’s pretermination decisions were adverse for Title VII purposes, Plaintiff presented no
comparator evidence necessary to establish a prima facie case. Regarding
Plaintiff’s termination, the district court found that Defendant met its burden of
articulating a non-discriminatory reason for terminating Plaintiff’s employment,
which Plaintiff failed to show was pretextual. For the following reasons, we
affirm.
A. Failure to Transfer
Plaintiff argues that Defendant’s refusal to transfer her away from the
supervision of Denis Arauz was an adverse employment action. We disagree. We
have held that transferring an employee to a different position can be adverse if it
involves a reduction in pay, prestige, or responsibility. Doe v. DeKalb Cnty. Sch.
Dist., 145 F.3d 1441, 1448–49 (11th Cir. 1998); Hinson v. Clinch Cnty., Ga. Bd. of
Educ., 231 F.3d 821, 829 (11th Cir. 2000). But, “it is important not to make a
federal case out of a transfer that is de minimis, causing no objective harm and
reflecting a mere chip-on-the-shoulder complaint.” Doe, 245 F.3d at 1453 & n.21.
Here, not even a de minimis transfer is at issue because Plaintiff alleges that it was
Defendant’s failure to transfer her that was the adverse action. Yet, she obviously
suffered no reduction in pay, prestige, or responsibility by remaining in the same
position for which she had been hired: the position of a Financial Analyst. Nor
10

Case: 14-14480

Date Filed: 06/02/2015

Page: 11 of 21

has she alleged that she would have gained additional pay, prestige, or
responsibility in one of the two positions on which she bid. See Davis, 245 F.3d at
1239 (a plaintiff must show “a serious and material change in the terms,
conditions, or privileges of employment”); Hinson, 231 F.3d at 829 (“transfer to a
different position can be ‘adverse’ if it involves a reduction in pay, prestige or
responsibility”).
Importantly, Plaintiff does not claim that Defendant failed to promote her.
She alleges only that Defendant denied her request to be transferred into a different
position. The district court stated that “the failure to allow such a transfer does not
constitute a serious and material change because there is no change.” The district
court was correct. We do note, however that requiring an employee to remain in
her present position could constitute an adverse action in Title VII failure to
promote claims. See Carter v. Three Springs Residential Treatment, 132 F.3d 635,
642 (11th Cir. 1998) (stating prima facie elements for a Title VII failure to promote
claim, including that a plaintiff must show she was “qualified for and applied for
the promotion” and was rejected) (emphasis added). But there is no failure to
promote claim at issue here, and Defendant’s failure to grant Plaintiff’s request for
a transfer is not adverse for Title VII purposes.

11

Case: 14-14480

Date Filed: 06/02/2015

Page: 12 of 21

B. Termination of Employment
Plaintiff also contends that she was fired because of her gender. Regarding
this claim, the district court assumed that Plaintiff had established a prima facie
case. Defendant’s articulated reason for terminating Plaintiff—her ongoing
performance issues culminating in the poorly-performed task she submitted while
on probation—was a legitimate, non-discriminatory reason. Wilson, 376 F.3d at
1087. There was ample evidence in the record to support the legitimacy of this
reason. Both Arauz and Plaintiff’s coworker, Tiara Love, attested that Plaintiff
struggled with the requirement that she accurately, efficiently, and timely complete
her job assignments. Further, after Plaintiff submitted her final assignment, Arauz
reviewed it and determined that it contained several errors of the same type she had
been committing throughout her employment. To confirm Arauz’s assessment,
another analyst reviewed Plaintiff’s assignment and agreed that Plaintiff’s report
was inaccurate, internally inconsistent, and appeared to be prepared by someone
who lacked the necessary analytical skills to do the work. Moreover, the fact that
Arauz hired Plaintiff only a year before her discharge undermines the notion that
any of his actions toward her were gender-motivated. See Williams v. Vitro Servs.
Corp., 144 F.3d 1438, 1443 (11th Cir. 1998) (noting that where same person who
hires plaintiff, with knowledge of her protected status, then takes adverse action

12

Case: 14-14480

Date Filed: 06/02/2015

Page: 13 of 21

against her shortly thereafter, an inference may be drawn that the action was not
motivated by discriminatory animus).
Plaintiff failed to present evidence that Defendant’s stated reason was a
pretext for illegal gender discrimination. To show pretext, the plaintiff must cast
sufficient doubt on the defendant’s proffered non-discriminatory reasons to allow a
reasonable factfinder to determine that the proffered “legitimate reasons were not
what actually motivated its conduct.” Silvera v. Orange Cnty. Sch. Bd., 244 F.3d
1253, 1258 (11th Cir. 2001) (internal quotations omitted). This requires the
plaintiff to demonstrate “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could find them unworthy of credence.”
Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (quotation
omitted).
Plaintiff has failed to present sufficient evidence of pretext to survive
summary judgment. Evidence relating to discriminatory comments, though it can
contribute to a circumstantial case for pretext, must be read in conjunction with the
entire record and considered with the other evidence in the case. See Rojas v.
Florida, 285 F.3d 1339, 1342–43 (11th Cir. 2002). The only facts she cites to
show pretext are: (1) on five to six occasions, Plaintiff heard Arauz refer to two
female coworkers as “bitches” and once he called Plaintiff a “bitch” behind her
13

Case: 14-14480

Date Filed: 06/02/2015

Page: 14 of 21

back, and (2) Arauz once told Plaintiff she had “mommy brain.” Though the
district court did not address these comments, the evidence suggests that these
were merely isolated comments unrelated to Plaintiff’s termination, particularly
when considered together with the evidence of Plaintiff’s poor performance. See
id. at 1343 (“Because [the employer’s] alleged comment was . . . an isolated
comment, unrelated to the decision to fire [the plaintiff], it, alone, is insufficient to
establish a material fact on pretext.”).
While the evidence to which Plaintiff points includes inappropriate and
offensive gender-based remarks that we do not condone, under the totality of the
circumstances, it alone is not enough to raise a material issue of fact as to pretext.
In order to show that Defendant’s proffered reasons for taking adverse employment
action were pretextual, Plaintiff must address the employer’s proffered legitimate
reason “head on and rebut it.” Chapman v. Al Trans., 229 F.3d 1012, 1030 (11th
Cir. 2000) (en banc). In order to do so, Plaintiff “must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could find them unworthy of credence.” McCann v. Tillman, 526 F.3d
1370, 1375 (11th Cir. 2008). Plaintiff made no such showing.
Instead, the evidence amply supports the district court’s findings that
Defendant’s concerns about Plaintiff’s job performance were legitimate. For
14

Case: 14-14480

Date Filed: 06/02/2015

Page: 15 of 21

example, Arauz was not the only employee at BBVA who recognized Plaintiff’s
inability to perform her employment tasks. Tiera Love stated that Plaintiff
approached her “for guidance and instruction on how to perform her job” on a
daily basis and that Plaintiff’s “questions related to basic financial analysis
concepts and procedures that an individual with her professed level of education
and experience already should have possessed.” Love further stated that Plaintiff’s
inability to work independently “began to negatively impact [Love’s] ability to
perform [her] own job, as [she] was undertaking the tasks of both [] jobs just to
ensure they were completed in a timely and satisfactory manner.”
In sum, Plaintiff presented no evidence that Defendant’s legitimate,
nondiscriminatory reason for terminating her employment was a mere pretext for
gender discrimination. To the contrary, the record shows that Plaintiff consistently
was unable to perform her job-related duties.
IV. Title VII Retaliation Claim
Title VII prohibits employers from retaliating against an employee because
she has opposed acts made unlawful by Title VII. 42 U.S.C. § 2000e-3(a). Absent
direct evidence, when analyzing claims for retaliation, we employ the McDonnell
Douglas analytical framework. Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir.
2009). “Under this framework, a plaintiff alleging retaliation must first establish a
prima facie case by showing that: (1) [s]he engaged in a statutorily protected
15

Case: 14-14480

Date Filed: 06/02/2015

Page: 16 of 21

activity; (2) [s]he suffered an adverse employment action; and (3) [s]he established
a causal link between the protected activity and the adverse action.” Id. at 1307–
08. Title VII retaliation claims require that the “protected activity was a but-for
cause of the alleged adverse action by the employer.” Univ. of Tex. Sw. Med. Ctr.
v. Nassar, 570 U.S. ___, ___, 133 S. Ct. 2517, 2534 (2013).
Once a plaintiff establishes a prima facie case of retaliation, the burden of
production shifts to the defendant to rebut the presumption by articulating a
legitimate, non-discriminatory reason for the adverse employment action. Bryant,
575 F.3d at 1308. If the defendant carries this burden, the plaintiff must
demonstrate that the defendant’s proffered reason was merely a pretext to mask
discriminatory actions. Id. Finally, “Title VII’s anti-retaliation provisions do not
allow employees who are already on thin ice to insulate themselves against
termination or discipline by preemptively making a discrimination complaint.”
Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1270 (11th Cir. 2010).
Plaintiff argues that the district court erred in finding that she failed to show
a causal connection between her complaints about her differential treatment and
the discipline she faced. We address only the causation element of Plaintiff’s
prima facie retaliation claim because her termination was clearly an adverse action
and the district court assumed, without deciding, that Plaintiff had engaged in
protected conduct by submitting the August 7 memo in which she contested the
16

Case: 14-14480

Date Filed: 06/02/2015

Page: 17 of 21

decision to place her on probation and claimed that she was being subjected to
“retaliation” and a “hostile work environment.”
The district court did not err in concluding that Plaintiff failed to show that
her protected conduct was a “but-for” cause of her termination. Univ. of Tex. Sw.
Med. Ctr., 570 U.S. at ___, 133 S. Ct. at 2534. As discussed in Part III, supra, the
record shows that Plaintiff was terminated because of her ongoing performance
issues culminating in the poorly-performed assignment she submitted after she was
placed on probation.
The undisputed facts demonstrate that Plaintiff was placed on probation on
August 6 and was warned that failure to immediately improve “can result in further
disciplinary counseling, up to and including termination of employment.” The
next day, she submitted her written rebuttal to the probation document and
complained of a “hostile work environment” and “retaliation.” Yet just two days
later, Plaintiff submitted a project containing errors of the same type she had been
committing throughout her eleven months of employment. Plaintiff’s termination
on September 12 was based on her ongoing performance problems, culminating in
this poorly-performed task submitted during her probationary period. Moreover,
Plaintiff cannot insulate herself against termination by making a discrimination
complaint in response to being placed on probation for the same inadequate work
that ultimately led to her discharge. Alvarez, 610 F.3d at 1270.
17

Case: 14-14480

Date Filed: 06/02/2015

Page: 18 of 21

In sum, Plaintiff has failed to prove the but-for causation necessary to
support her claim of retaliation. And even if Plaintiff did establish a prima facie
case, her retaliation claim fails for the same reason her disparate treatment claim
fails: her failure to provide evidence that Defendant’s stated reasons for its actions
were a mere pretext for illegal discrimination.
V. FMLA Interference and Retaliation Claims
The FMLA provides that “an eligible employee shall be entitled to a total of
12 workweeks of leave during any 12-month period . . . [b]ecause of 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). An employee has the
right to be restored to her original position or an equivalent position following
FMLA leave. 29 U.S.C. § 2614(a)(1). The FMLA creates two types of claims to
preserve and enforce the rights it creates: “interference claims, in which an
employee asserts that [her] employer denied or otherwise interfered with [her]
substantive rights under the Act, and retaliation claims, in which an employee
asserts that [her] employer discriminated against [her] because [s]he engaged in
activity protected by the Act.” Strickland v. Water Works & Sewer Bd. of
Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001) (internal citations omitted).
An FMLA interference claim requires the plaintiff to show that she was
entitled to a benefit denied by her employer. Id at 1206–07. However, “the right
18

Case: 14-14480

Date Filed: 06/02/2015

Page: 19 of 21

to commence FMLA leave is not absolute, and [] an employee can be dismissed,
preventing her from exercising her right to commence FMLA leave, without
thereby violating the FMLA, if the employee would have been dismissed
regardless of any request for FMLA leave.” Krutzig v. Pulte Home Corp., 602
F.3d 1231, 1236 (11th Cir. 2010). Similarly, “an employer can deny reinstatement
if it can demonstrate that it would have discharged the employee had [s]he not
been on FMLA leave.” Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1267
(11th Cir. 2008) (quotations omitted).
To establish an FMLA retaliation claim, an employee must demonstrate that
her employer intentionally discriminated against her for exercising a right
guaranteed under the FMLA. Id. “Unlike an interference claim, an employee
bringing a retaliation claim faces the increased burden of showing that [her]
employer’s actions were motivated by an impermissible retaliatory or
discriminatory animus.” Id. at 1267–68 (quotations omitted). Absent direct
evidence of retaliatory intent, we apply the burden-shifting framework of
McDonnell Douglas. Id. at 1268. To establish a prima facie case of retaliation
under the FMLA, an employee must show that: (1) she engaged in activity
protected by the FMLA; (2) she suffered an adverse employment decision; and
(3) the decision was causally related to the protected activity. Id.

19

Case: 14-14480

Date Filed: 06/02/2015

Page: 20 of 21

Close temporal proximity between an employee’s protected conduct and the
adverse employment action is generally sufficient to create a genuine issue as to
whether there is a causal connection. Hurlbert v. St. Mary’s Health Care Sys., Inc.,
439 F.3d 1286, 1298 (11th Cir. 2006). If the employee successfully demonstrates a
prima facie case of FMLA retaliation, the burden then shifts to the employer to
articulate a legitimate reason for the adverse action. Id. at 1297. Once an
employer does so, the employee then must show that the employer’s proffered
reason was pretextual. Id.
Plaintiff argues that the district court did not properly analyze her FMLA
interference claim. As to her FMLA retaliation claim, she contends that Defendant
retaliated against her because she continued to take FMLA leave, noting that the
decision to terminate her was made just after she informed Defendant that she was
only released to work half-days because of her medical condition.
The district court properly granted summary judgment on Plaintiff’s FMLA
claims. Assuming that Plaintiff established a prima facie case of FMLA retaliation
based on the close temporal proximity between her requested leave and the final
termination decision, the burden of production shifted to Defendant. It presented a
legitimate reason for her termination—her inability and repeated failure to perform
her job duties—that Plaintiff failed to show was pretextual.

20

Case: 14-14480

Date Filed: 06/02/2015

Page: 21 of 21

Finally, the district court did not err in determining that Plaintiff’s FMLA
interference claim was essentially the same as her FMLA retaliation claim.
Although Plaintiff may have been trying to argue that by firing her, Defendant
“denied” her FMLA leave to which she was entitled (working only half-days), her
interference claim is largely a clone of her FMLA retaliation claim. In any event,
Plaintiff also failed to establish an interference claim because it is undisputed that
Defendant would have terminated her regardless of any FMLA leave she took or
requested. See Krutzig, 602 F.3d at 1236; Martin, 543 F.3d at 1267. Human
Resources Partner Dan Howard did not make the final termination decision until
after Plaintiff returned from leave, but the decision was based on the independent
analysis of Plaintiff’s latest work product and Howard’s conclusion, after meeting
with Plaintiff, that her performance issues were not resolvable.
VI. Conclusion
Upon review of the record and consideration of the briefs, we therefore
AFFIRM.

21