26 Fla. L. Weekly Fed. D59aTop of Form

Civil
rights — Employment discrimination — Filipino woman filed suit against former
employer for employment discrimination under Title VII, Florida Civil Rights
Act, and Rehabilitation Act alleging retaliation and interference with rights
under Family and Medical Leave Act — National origin discrimination — Title
VII discrimination claim is time-barred because plaintiff’s EEOC charge was not
filed within 300 days of last complained-of discriminatory act — Claims for
national origin discrimination based on FCRA are untimely because claims were
not filed within 365 days of alleged unlawful employment practice —
Retaliation — Employer is entitled to summary judgment on claim that she
retaliated against plaintiff, in violation of Title VII and FCRA, after
plaintiff reported discriminatory conduct — Plaintiff failed to establish prima
facie case of retaliation by failing to show there was a causal connection
between protected activity of complaining to superior about national origin
discrimination and plaintiff’s termination — While causation sufficient to
raise an inference of retaliation can be shown, at prima facie stage,
through temporal proximity between statutorily-protected activity and adverse
action, approximate eight-month lapse between time when plaintiff complained
about discrimination to her superior and when she was terminated far exceeded
that which can legally establish a causal connection by temporal proximity —
Interference with FMLA leave — Summary judgment is appropriate on claim of
FMLA interference where plaintiff failed to provide employer with notice sufficient
to make employer aware that plaintiff’s absence was due to serious health
condition that could potentially qualify for FMLA leave — Where defendant
employer was only given a vague doctor’s note with references to plaintiff
being sick and needing time off work, without referencing any ailment, much
less specifically indicating that plaintiff was suffering from depression,
notice was insufficient to give employer reason to believe plaintiff was
entitled to FMLA leave and to trigger employer’s FMLA obligations — Claim that
employer retaliated against plaintiff for using her FMLA leave fails because
plaintiff cannot prove she was engaged in statutorily-protected activity where
she did not request FMLA leave, and employer did not have sufficient notice that
plaintiff was suffering from a serious health condition

MARYLINE AVILA, Plaintiff, v.
PAM CHILDERS, in her official capacity As ESCAMBIA COUNTY CLERK OF COURT,
Defendant. U.S. District Court, Northern District of Florida, Pensacola
Division. Case No. 3:15-cv-136/MCR/EMT. September 30, 2016. M. Casey Rodgers,
Chief Judge. Counsel: Marie A. Mattox and W. Gautier Kitchen, Marie A. Mattox,
P.A., Tallahassee, for Plaintiff. Hetal Desai McGuire and Robert J. Sniffen,
Sniffen & Spellman, P.A., Tallahassee, for Defendant.

ORDER

Plaintiff Maryline Avila
(“Avila”) filed this suit against her former employer, Pam Childers
(“Childers”) in her official capacity as Escambia County Clerk of Court, for
employment discrimination under the federal Civil Rights Act (Title VII) 42
U.S.C. § 2000(e), et seq., the Florida Civil Rights Act, (“FCRA”) and
the Rehabilitation Act, 42 U.S.C. § 1981(a).1 Avila also alleges retaliation and
interference with her rights under the Family and Medical Leave Act, (“FMLA”)
29 U.S.C. § 2612.2 Pending before the court is
Defendant’s Motion for Summary Judgment, ECF No. 51. See Fed. R. Civ. P.
56. Also pending is Defendant’s Motion to Strike portions of Avila’s affidavit,
ECF No. 59. Having fully considered the record and the parties’ arguments, the
court finds that Defendant’s Motion for Summary Judgment is due to be granted,
and the Motion to Strike will be denied.

Background3

Avila, a Filipino woman,
received accounting degrees in both the Philippines and Canada and a Master’s
Degree in Business Administration from the University of Phoenix in Reno,
Nevada. In May 2008, she was hired by the Escambia County Clerk of Court as an
Accounting Specialist II. In 2009, Avila was promoted to the position of Tax
Deed Specialist by the Clerk of Court. Brenda Robinson, who is Caucasian, was
Avila’s immediate superior. Avila’s job responsibilities as a Tax Deed Specialist
included auctioning off properties for the County, notifying owners of the
sales, and entering data received from the Tax Collector’s Office into the
computer system. Avila also assisted with duties in other departments when
necessary, including processing passport applications. In 2010, Avila received
a formal reprimand for using her work computer to access social media websites.
She was issued additional reprimands in 2010 and 2011 for failing to key
receipts into the computer system and for making multiple errors on tax
certificates.

Avila testified that prior to
Robinson’s departure from the Clerk’s Office in 2012, Robinson subjected her to
disparate treatment based on her national origin. More specifically, Avila
testified that Robinson yelled directives at her in the presence of coworkers
and customers, something she did not do with non-Filipino employees. Avila,
however, does not point to any specific comments by Robinson that would
indicate disparate treatment based on her national origin. Avila also testified
that Robinson subjected her work to heightened scrutiny and disciplined her for
errors and policy violations for which no other employee was disciplined. Avila
alleges that in 2012, she complained to Lisa Bernau, Chief Deputy Clerk, that
she felt she was being singled out by Robinson because she was Filipino.

The undisputed facts reflect
that Avila applied for three positions within the Clerk’s Office while working
as the Tax Deed Specialist. First, when Robinson resigned from her position as
Executive Director in 2012, Avila applied for her position. Heather Mahoney, a
white female Operations Supervisor with no disciplinary record, was given the
job instead. Avila then applied for Mahoney’s position. Nick Kelly, a white
male who worked as Avila’s assistant, was promoted to Mahoney’s position. In
September 2012, Kelly resigned from his position as Operations Supervisor, and
Avila applied for the position again. This was the last position Avila applied
for in the Clerk’s Office and it was filled by Mylinda Johnson, a Caucasian
employee, with no disciplinary history, on September 27, 2012. Notably, when
asked in her deposition if there was “anything else that you feel was
discriminatory besides the failure of you to get those positions that we discussed
and then the mistreatment by Ms. Robinson,” Avila responded “[n]o.” (ECF No.
50-4. Page 68).

By the time Defendant Pam
Childers took office as Escambia County Clerk of Court in January 2013, Avila
had accumulated a long disciplinary history from both during and after
Robinson’s time at the Clerk’s Office. For instance, she had received written
reprimands and formal counseling for failing to follow mail and notarization
procedures, leaving work for co-workers to complete, and not turning in her
work on time. A few weeks after Childers took office, Avila met with Susan
Woolf, General Counsel, to tell her about Robinson’s discriminatory conduct and
to request a transfer. Avila wanted to transfer from the department because
Mahoney, who was serving as her supervisor at the time, was friends with
Robinson. Avila testified, however, that she never complained about Mahoney.
The transfer request was denied. In May 2013, Avila was formally suspended for
five days for poor customer service. Along with the suspension, Avila was
warned that subsequent violations could result in additional discipline,
including termination.

In July 2013, Avila took
bereavement and personal leave from July 3, 2013 until July 29, 2013 to attend
her mother’s funeral in the Philippines. During her absence, the Clerk’s Office
discovered numerous errors that Avila made in tax deed files.4 Avila testified that after the
funeral she suffered from severe depression, preventing her from returning to
work. Sometime at the end of July 2013, around the time she was supposed to
return to work, Avila’s daughter called to tell the Clerk’s Office her mother
was sick and that she would not be at work and a doctor’s note would be faxed.
Avila testified that her doctor faxed an excusal to the Clerk’s Office that
read “Please excuse pt. from work from 7-29-13 thru Aug. 2, 2013. May return to
work Aug. 5, 2013.” (ECF No. 50-18).5 The Clerk’s Office, however, was
never told that Avila was suffering from depression.6 On August 2, 2013, Childers issued a
termination letter to Avila, which Childers states was issued because of the
numerous errors found while Avila was out of the office.

Several months after her
termination, Avila filed a charge with the Equal Employment Opportunity
Commission, (“EEOC”) alleging national origin discrimination. Although the
parties disagree on the particular date, they agree the charge was filed
sometime in late January 2014.7 The EEOC then transferred the
complaint to the Florida Commission of Human Relations, (“FCHR”) which issued a
“no cause” determination. On April 9, 2015, Avila filed this complaint.
Childers then filed a Motion for Summary Judgment on all claims.

Discussion

Summary judgment is
appropriate when the evidence, viewed in the light most favorable to the
nonmoving party, “shows that there is no genuine dispute as to any material
fact” and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56 (a); see also Martin, 543 F.3d at 1265. Summary judgment is
not appropriate “if a reasonable fact finder evaluating the evidence could draw
more than one inference from the facts[ ] and if that inference introduces a
genuine issue of material fact.” Jeffery v. Sarasota White Sox, Inc., 64
F.3d 590, 594 (11th Cir. 1995). An issue of fact is “material” if it might
affect the outcome of the case under the governing law, and it is “genuine” if
the record taken as a whole could lead a rational fact finder to find for the
non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th
Cir. 2010) [22 Fla. L. Weekly Fed. C477a] (en banc). The court will not make
credibility determinations or weigh the evidence presented on summary judgment.
Frederick v. Sprint/United Mgm’t Co., 246 F.3d 1305, 1311 (11th Cir.
2001) [14 Fla. L. Weekly Fed. C588a]. Whenever sufficient, competent evidence
is present to support the plaintiff’s version of the disputed facts, the court
will resolve disputes in the plaintiff’s favor. See Pace v. Capobianco,
283 F.3d 1275, 1276 (11th Cir. 2002) [15 Fla. L. Weekly Fed. C316a].

Count III: National Origin
Discrimination

Count III involves a claim of
national origin discrimination, pursuant Title VII and the FCRA. See 42
U.S.C. § 2000(e), et. seq.; Fla. Stat. § 760. Initially the court finds
that Avila’s Title VII national origin discrimination claim is time-barred.8 Because Avila filed her EEOC charge
on January 24, 2014, any discriminatory act she complained of must have
occurred within 300 days, or on or after March 30, 2013 to be timely. See
Brooks v. CSX Transp., Inc., 555 F. App’x 878, 880 (11th Cir. 2014)9 (finding that for a charge to be
timely in a deferral state like Florida, it must be filed within 300 days of
the last discriminatory act); see also E.E.O.C. v. Joe’s Stone Crabs, Inc.,
296 F.3d 1265, 1270 (11th Cir. 2002) [15 Fla. L. Weekly Fed. C775a]. Although
Avila claims discrimination was ongoing until the time of her termination,
nothing in the record supports that claim. As Avila’s testimony reveals, she only
felt discriminated against by Robinson, who left the Clerk’s Office in July
2012. The only other action Avila claims was discriminatory is the failure of
the Clerk’s Office to appoint her to the positions for which she applied. The
last position Avila applied for was filled on September 27, 2012. Thus, her
claim for discrimination under Title VII is untimely.

Discrimination claims under
the FCRA must be filed within 365 days of the alleged unlawful employment
practice. Fla. Stat. § 760.11 (2015); see also Ganpath v. Advance
Stores Co., No. 10-60036-CIV, 2011 WL 6069336, at *6 (S.D. Fla. Dec. 6,
2011). Any discriminatory act under the FCRA must have occurred on or after
January 24, 2013. Thus, the claims for discrimination based on the FCRA are
also untimely.10

Count IV: Retaliation under
Title VII and the FCRA

Avila claims in Count IV of
the Amended Complaint that Childers retaliated against her after she reported
Brenda Robinson’s discriminatory conduct to Lisa Bernau, in violation of Title
VII and the FCRA.11 An employer may not discriminate
against an employee for opposing “any practice made an unlawful employment
practice. . . or because [the employee] made a charge, testified, assisted, or
participated in any manner in an investigation or proceeding” by the EEOC. 42
U.S.C. § 2000e-3. For a prima facie case of retaliation, Avila must show
(1) she engaged in a statutorily protected activity, (2) she suffered an
adverse action, and (3) a causal relation exists between her protected activity
and the adverse action. See Brown v. Ala. Dep’t of Transp., 597 F.3d
1160, 1181 (11th Cir. 2010) [22 Fla. L. Weekly Fed. C556a]. Also, “Title VII
retaliation claims require proof that the desire to retaliate was the but-for
cause of the challenged employment action.” Booth v. Pasco County, Fla.,
757 F.3d 1198, 1207 (11th Cir. 2014) [25 Fla. L. Weekly Fed. C46a] (quoting Univ.
of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013) [24 Fla. L.
Weekly Fed. S366a]). Complaining about discrimination on the basis of national
origin to a superior is considered a protected activity. Brown v. City of
Opelika, 211 F. App’x 862, 864 (11th Cir. 2006). And, of course,
termination is an adverse employment action. Simmons v. Camden Cty. Bd. of
Educ., 757 F.2d 1187, 1189 (11th Cir. 1985). Thus, Avila satisfies the
first two requirements; however, the court finds there was no causal connection
between the protected activity and Avila’s termination.

To establish the requisite
causal connection, Avila must show that Childers was “aware of the protected
conduct, and that the protected activity and the adverse actions were not
wholly unrelated.” Kidd v. Mando Am. Corp., 731 F.3d 1196, 1211 (11th
Cir. 2013) [24 Fla. L. Weekly Fed. C689a] (quoting Shannon v. Bellsouth
Telecomm., Inc., 292 F.3d 712, 716 (11th Cir. 2002) [22 Fla. L. Weekly Fed.
C1411a] (internal quotation marks omitted)). At the prima facie stage,
causation sufficient to raise an inference of retaliation can be shown through
temporal proximity between the statutorily protected activity and the adverse
action. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th
Cir. 2007) [21 Fla. L. Weekly Fed. C168a]. To show causation through temporal
proximity, however, the time between the protected activity and the adverse
action must be, without more, “very close.” Id. (quoting Clark Cty.
Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) [14 Fla. L. Weekly Fed.
S216a]). The Eleventh Circuit held in one decision that “[e]ven a three-month
interval between the protected expression and the employment action . . . [was]
too long” Alabama Dep’t of Transp., 597 F.3d at 1182 (citing Thomas,
506 F.3d at 1364). When there is no other evidence to demonstrate causation,
“if there is substantial delay between the protected expression and the adverse
action, the complaint of retaliation fails as a matter of law.” Hooper v.
Total Sys. Servs., Inc., 799 F. Supp. 2d 1350, 1374 (M.D. Ga. 2011)
(quoting Clark Cty. Sch. Dist., 532 U.S. at 273).

Avila complained about
national origin discrimination to Bernau sometime in 2012 and to Woolf January
2013, but she was not terminated until August 2, 2013.12 There were approximately eight
months between the time when Avila met with Woolf in January 2013 and when she
was terminated — a time period that far exceeds what the law recognizes as
necessary to establish a causal connection by temporal proximity. See e.g.,
Walker v. Sec’y, U.S. Dep’t of Air Force, 518 F. App’x 626, 628 (11th Cir.
2013) (holding a three month interval between the plaintiff’s protected
activity and adverse employment action was insufficient to establish a prima
facie case); Gomez v. Valley Hosp. Servs., LLC, No. 4:11-CV-183 CDL,
2013 WL 3964807, at *4 (M.D. Ga. July 31, 2013) (finding that the timing
between the protected activity and the adverse employment action was greater
than three months, and therefore too great to infer a causal link); Witt v.
Franklin Cty. Bd. of Educ., No. CV-11-S-1031-NW, 2013 WL 832152, at *25
(N.D. Ala. Feb. 28, 2013) (holding that a five to twelve month interval
exceeded that which can legally establish a causal connection).

Despite the significant lapse
in time, Avila argues the court is not precluded from finding causation because
the Clerk’s Office took the first opportunity it had to terminate Avila’s
employment — when she was sick. This argument is without merit. The case law
that Avila points to in an effort to avoid the close temporal proximity
obligation is distinguishable from the facts of this case. In those cases, the
courts indicated that the employers took the “first opportunity” they had to
retaliate after learning of the protected conduct. See e.g., Ford v. GMC,
305 F.3d 545, 554-55 (6th Cir. 2002) (finding causal connection even with a
five-month gap between protected activity and adverse action because plaintiff
was under the control of a different supervisor during the gap); Porter v.
California Dep’t of Corr., 419 F.3d 885, 895 (9th Cir. 2005) (finding there
was a delay between the protected activity and the adverse action because
fellow employee could not retaliate until after he was promoted to a supervisory
position); Dale v. Wynne, 497 F. Supp. 2d 1337, 1345-46 (N.D. Ala. 2007)
(finding that an extended time gap did not defeat the causal connection because
the plaintiff was not subject to adverse treatment until she returned to work
after a leave of absence). Here, by contrast, there were several months between
Avila’s complaints and her termination. Mahoney was Avila’s superior and could
have fired her at any time. Indeed, Avila fails to establish any reason why
Childers could not have terminated her at an earlier time. Therefore, Childers’
Motion for Summary Judgment is due to be granted on Avila’s Title VII and FCRA
retaliation claims.

Count V: FMLA Interference
and Retaliation

Count V alleges interference
and retaliation, in violation of the Family and Medical Leave Act. The FMLA
“grants an eligible employee the right to take up to 12 workweeks of unpaid
leave annually for any one or more of several reasons, including because of a
serious health condition that makes the employee unable to perform the functions
of the position of such employee.” Hurley v. Kent of Naples, Inc., 746
F.3d 1161, 1166 (11th Cir. 2014) [24 Fla. L. Weekly Fed. C1125a] (internal
marks omitted). If an employer interferes with, restrains, or denies the
exercise, or attempted exercise, of FMLA rights, the employee may bring a
private civil action for damages or equitable relief. See Hurlbert v. St.
Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006) [19
Fla. L. Weekly Fed. C299b] (citing 29 U.S.C. §§ 2615(a)(1) & 2617(a)). The
Eleventh Circuit has explained that § 2615(a) includes two types of FMLA
claims: (1) “interference claims, in which an employee asserts that his
employer denied or otherwise interfered with his substantive rights under the
Act,” and (2) “retaliation claims, in which an employee asserts that his
employer discriminated against him because he engaged in activity protected by
the Act.” Id. (internal marks omitted).

An interference claim
requires “proof by a preponderance of the evidence that [the employee] was
entitled to the benefit denied.” Id. (internal marks omitted); see
also Jarvela v. Crete Carrier Corp., 754 F.3d 1283, 1289 (11th Cir. 2014)
[25 Fla. L. Weekly Fed. C859a]. “[T]he employer’s motives are irrelevant” to an
interference claim. Martin, 543 F.3d at 1267 (internal marks omitted).
Before taking leave, an employee requesting FMLA leave is required to give
notice to the employer. If the reason for the leave is unforeseen, notice must
be given as soon as is practicable. 29 C.F.R. § 825.302(a). Employees are
authorized by the FMLA to use a “spokesperson” to give notice, and the notice
is valid if it is “sufficient to make the employer aware that the employee
needs FMLA-qualifying leave” and gives the employer “the anticipated time and
duration of the leave.” 29 C.F.R § 825.303(a); § 825.302(c). An employee is not
required to “expressly assert rights under the FMLA or even mention the FMLA.” Id.
However, the employee must provide the employer with notice sufficient to
“make the employer aware that [the] absence is due to a potentially
FMLAqualifying reason.” Gay v. Gilman Paper Co., 125 F.3d 1432, 1436
(11th Cir. 1997). Without sufficient notice, the employer is under no
obligation to comply with the requirements of the FMLA. See Andrews v. CSX Transp.,
Inc., 737 F. Supp. 2d 1342, 1351 (M.D. Fla. 2010). The regulations provide
that calling in “sick” without providing more information is not sufficient
notice to trigger an employer’s FMLA obligations. 29 C.F.R. § 825.303.

The Eleventh Circuit has held
that summary judgment is appropriate when a plaintiff does not notify the
defendant of any condition that could potentially qualify for FMLA leave. Cruz
v. Publix Super Markets Inc., 428 F.3d 1379, 1384 (11th Cir. 2005) [18 Fla.
L. Weekly Fed. C1077a]. In Cruz, the plaintiff “provided no information
to Publix managers to make them aware of her daughter’s alleged serious health
condition.” 13 The Cruz court stated that
the plaintiff “withheld critical information regarding the reason for her
request” and granted summary judgment. Id. Other courts in this circuit
have found that simply referencing being sick, and providing a vague doctor’s
note is not sufficient notice to an employer that leave may be potentially FMLA
qualifying. Andrews, 737 F. Supp. 2d at 1351; Lowery v. Strength,
356 F. App’x 332, 334 (11th Cir. 2009); Hoopingarner v. Corinthian Colleges,
Inc., No. 8:11-CV-397-T30TGW, 2012 WL 1551274, at *5 (M.D. Fla. Apr. 30,
2012).

Avila was employed full-time
by the Clerk’s Office for over five years, making her eligible for FMLA leave.
Avila also suffered from severe depression. Depression is recognized as a potentially
serious health condition under the FMLA, and a reasonable jury could find
that Avila’s depression qualifies. See, e.g., Cooper v. Olin Corp.,
Winchester Div., 246 F.3d 1083, 1090 (8th Cir. 2001) (emphasis added); Norman
v. S. Guar. Ins. Co., 191 F. Supp. 2d 1321, 1329 (M.D. Ala. 2002). As a
result, the analysis below will assume Avila suffered from a “serious health
condition” and that she was eligible for leave under the FMLA.

Regarding the notice
requirement, Avila testified that she had her daughter call the Clerk’s Office
to notify Avila’s supervisor that her mother would not be at work and that a
doctor’s note would be forthcoming. However, Avila does not present any
evidence that she or her daughter informed anyone at the Clerk’s Office that
Avila was suffering from depression. Avila testified that a note was sent to
the Clerk’s Office by her doctor. However, the note did not reference any
ailment, much less specifically indicate that Avila was suffering from
depression. Like in the Andrews case, the Clerk’s Office in this case
was only given a vague doctor’s note with references to Avila being sick and
needing time off work. Andrews, 737 F. Supp. 2d at 1351. This is
insufficient notice under the FMLA.

Avila also argues that
summary judgment is not appropriate because Childers did not inquire of Avila
or her doctor about Avila’s condition. However, an employer’s responsibility
for further inquiry arises only after the employee provides a reason to believe
the employee is entitled to FMLA leave. 29 C.F.R. § 825.303; Cruz, 428
F.3d at 1385. The FMLA does not require “employers to engage in intrusive
inquiries to determine whether the FMLA applies.” Andrews, 737 F. Supp.
2d at 1351 (quoting Manuel v. Westlake Polymers Corp., 66 F.3d 758, 763
(5th Cir. 1995)). “Requiring employers to determine whether leave is covered by
the FMLA every time an employee was absent because of sickness would impose ‘a
substantial and largely wasted investigative burden on employers.’ ” Andrews,
737 F. Supp. 2d at 1351 (quoting Phillips v. Quebecor World RAI, Inc.,
450 F.3d 308, 311 (7th Cir. 2006). Avila’s doctor’s note and Childers’
knowledge that she was sick did not give Childers a reason to believe Avila was
entitled to FMLA leave. Thus, Childers had no duty to make further inquiry into
Avila’s condition.

Avila also argues she was
entitled to reinstatement following her sick leave. The FMLA provides employees
with a right to reinstatement on return from FMLA leave. 29 U.S.C. §
2612(a)(1)(D). This right, however, is not absolute. Martin, 543 F.3d at
1267. An employer can deny reinstatement “if it can demonstrate that it would
have discharged the employee had [she] not been on FMLA leave.” Id. (quoting
Strickland v. Water Works and Sewer Bd. of Birmingham, 239 F.3d 1199,
1206-07 (11th Cir. 2001)). The Eleventh Circuit has held that “[i]f the
evidence shows that a decision maker was unaware of an employee’s request to
take FMLA leave at the time of the decision to terminate the employee, the
employer is entitled to summary judgment.” Rudy v. Walter Coke, Inc.,
613 F. App’x 828, 830 (11th Cir. 2015) (citing, Krutzig v. Pulte Home Corp.,
602 F.3d 1231, 1236 (11th Cir. 2010) [22 Fla. L. Weekly Fed. C1416a]).
Here, at most, Childers would have known only that Avila was sick, which, as
described above, was insufficient to put Childers on notice that Avila
qualified for FMLA leave. Accordingly, Childers is entitled to summary judgment
as to Avila’s claim of FMLA interference.

Finally, Avila claims
Childers retaliated against her for using her FMLA leave, but this claim fails
for the same reason — Avila did not request FMLA leave, and Childers did not
have sufficient notice that Avila was suffering from a serious health
condition. A claim of retaliation under the FMLA is separate from an
interference claim. Strickland, 239 F.3d at 1206. However, an employee
who brings an FMLA retaliation claim faces a burden beyond that associated with
an interference claim. Id. To succeed on a FMLA retaliation claim, Avila
must establish that Childers “intentionally ‘discriminated against [her]
because [she] engaged in activity protected by the Act.’ ” Foshee v.
Ascension Health-IS, Inc., No. 09-16499, 384 F. Appx. 890, 891, 2010 WL
2511384, at *1 (11th Cir. June 23, 2010) (quoting Strickland, 239 F.3d
at 1206). Without requesting FMLA leave or providing sufficient notice to
Childers, Avila cannot prove she was engaged in a statutorily protected
activity, and Childers is entitled to summary judgment on Avila’s FMLA
retaliation claim.

Conclusion:

For the foregoing reasons,
Defendant’s Motion for Summary Judgment, ECF No. 51, is GRANTED and Defendant’s
Motion to Strike, ECF No. 59, is DENIED as moot. The Clerk of Court is directed
to enter final summary judgment in favor of Defendant and against Plaintiff.

__________________

1Counts
I and II allege disability discrimination pursuant to Fla. Stat. Chapter 760,
the Florida Civil Rights Act, and the Rehabilitation Act (29 U.S.C. § 794).
However, in her Response to the Motion for Summary Judgment, Avila represents
that she is no longer pursing claims of disability discrimination. Accordingly,
Defendant’s motion will be granted on these claims. See Fed. R. Civ. P.
56(e)(3).

2Plaintiff
also cites to 29 U.S.C. § 2624, which does not exist.

3For
the limited purposes of this summary judgment proceeding, the court views “the
evidence and all reasonable inferences drawn from it in the light most
favorable to the nonmoving party.” Martin v. Brevard Cty. Pub. Sch., 543
F.3d 1261, 1265 (11th Cir. 2008) [21 Fla. L. Weekly Fed. C1132a] (internal
marks omitted).

4Although
Avila disputes that she made these errors. The dispute, however, is not
material to the court’s ruling.

5The
parties dispute what information was received from Avila’s doctor. The Clerk’s
Office claims they only received a lab report, while Avila testified the
doctor’s note was faxed, as stated above. Because neither a lab report nor the
doctor’s note provided to the Clerk’s Office was sufficient notice under the
FMLA, this dispute does not preclude summary judgment.

6Avila
testified that the Clerk’s Office knew she was sick, but she has not presented
any evidence to support her claims that the Clerk’s Office knew she was
suffering from depression, specifically.

7Avila
stated the charge was filed on January 24, 2014, and Childers stated the charge
was filed on January 27, 2014. The court must view the evidence in the light
most favorable to Plaintiff, so the analysis below will presume she filed on
January 24, 2014.

8Childers
also claims that Avila did not properly request an administrative hearing,
pursuant to Fla. Stat. § 760.11. The court finds it unnecessary to reach that
issue because Avila did not timely file her complaint with the EEOC.

9While
unpublished opinions are not considered binding, they may be considered persuasive.
See 11th Cir. R. 36-2; see also United States v. Futrell, 209
F.3d 1286, 1289 (11th Cir. 2000).

10
Both Childers and Avila thoroughly briefed the Count III claim on the merits,
but the court sees no reason to discuss the merits here, given its timeliness
ruling.

11Because
these statutes have the same standards of proof and use the same analytical
framework, the analysis for the Title VII claims applies to the FCRA claims as
well. See e.g., Bryant v. Jones, 575 F.3d 1281, 1296, n.20 (11th Cir. 2009)
[22 Fla. L. Weekly Fed. C1a] (discrimination claims, including hostile work
environment claims, under Title VII and § 1981 are subject to the same
standards of proof and analyzed under the same framework); Goldsmith v.
Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2008) [21 Fla. L.
Weekly Fed. C316a] (retaliation claims); Alvarez v. Royal Atlantic
Developers, Inc., 610 F.3d 1253, 1271 (11th Cir. 2010) [22 Fla. L. Weekly
Fed. C1080a] (noting that “the FCRA is modeled after Title VII, and claims
brought under it are analyzed under the same framework”).

12The
record is not clear as to exactly when Avila met with Bernau, but it is
undisputed that it was prior to her meeting with Woolf.

13The
FMLA allows an employee to take FMLA leave to care for a spouse, son, daughter,
or parent suffering from a serious illness. 29 U.S.C. § 2612(a)(1)(C).