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Fla. L. Weekly Fed. C1400aTop of Form
Fla. L. Weekly Fed. C1400aTop of Form
Employer-employee
relations — Family and Medical Leave Act — Former employee who was suspended
and subsequently fired from his job approximately a month after returning from
FMLA filed suit against former employer claiming that employer, in taking these
actions, interfered with exercise of plaintiff’s FMLA rights and later retaliated
against plaintiff for asserting those rights — Interference with FMLA rights
— No error in granting summary judgment to employer on interference claim
which was based on employer’s refusal to allow plaintiff to return to work with
certain physical limitations, even though two other employees with different
job functions had been allowed to do so — Plaintiff failed to establish a
prima facie case for interference because he has not shown that he was actually
entitled to reinstatement and, therefore, denied a benefit to which he was
entitled under the FMLA — Because plaintiff likely waived his FMLA right to
reinstatement by taking an additional 30 days of medical leave, because he
failed to submit a fitness-for-duty certification by the end of his FMLA leave,
and because record is devoid of proof challenging employer’s contention that
its fitness-for-duty certification policy was implemented in a uniform fashion,
plaintiff lost the right to be reinstated after failing to comply with this
policy — Retaliation under FMLA — Supervisor’s comments about timing of
plaintiff’s leave and about his abuse and misuse of FMLA do not constitute
direct evidence of retaliation because they do not prove, without requiring an
inference, that employer discriminated against plaintiff based on exercise of
his FMLA rights — Temporal proximity, for purpose of establishing the
causation prong of prima facie case of FMLA retaliation, should be measured
from the last day of an employee’s FMLA leave until the adverse employment act
at issue occurs — Error to grant employer’s motion for summary judgment on
FMLA retaliation claim, where totality of evidence establishes a genuine
dispute of material fact with respect to whether employer’s reasons for
terminating plaintiff were pretextual
relations — Family and Medical Leave Act — Former employee who was suspended
and subsequently fired from his job approximately a month after returning from
FMLA filed suit against former employer claiming that employer, in taking these
actions, interfered with exercise of plaintiff’s FMLA rights and later retaliated
against plaintiff for asserting those rights — Interference with FMLA rights
— No error in granting summary judgment to employer on interference claim
which was based on employer’s refusal to allow plaintiff to return to work with
certain physical limitations, even though two other employees with different
job functions had been allowed to do so — Plaintiff failed to establish a
prima facie case for interference because he has not shown that he was actually
entitled to reinstatement and, therefore, denied a benefit to which he was
entitled under the FMLA — Because plaintiff likely waived his FMLA right to
reinstatement by taking an additional 30 days of medical leave, because he
failed to submit a fitness-for-duty certification by the end of his FMLA leave,
and because record is devoid of proof challenging employer’s contention that
its fitness-for-duty certification policy was implemented in a uniform fashion,
plaintiff lost the right to be reinstated after failing to comply with this
policy — Retaliation under FMLA — Supervisor’s comments about timing of
plaintiff’s leave and about his abuse and misuse of FMLA do not constitute
direct evidence of retaliation because they do not prove, without requiring an
inference, that employer discriminated against plaintiff based on exercise of
his FMLA rights — Temporal proximity, for purpose of establishing the
causation prong of prima facie case of FMLA retaliation, should be measured
from the last day of an employee’s FMLA leave until the adverse employment act
at issue occurs — Error to grant employer’s motion for summary judgment on
FMLA retaliation claim, where totality of evidence establishes a genuine
dispute of material fact with respect to whether employer’s reasons for
terminating plaintiff were pretextual
RODNEY JONES, Plaintiff-Appellant,
v. GULF COAST HEALTH CARE OF DELAWARE, LLC, a Foreign Limited Liability
Corporation dba Accentia Health and Rehabilitation Center of Tampa Bay,
Defendant-Appellee. 11th Circuit. Case No. 16-11142. April 19, 2017. On Appeal
from the District Court for the Middle District of Florida (No.
8:15-cv-00702-SCB-EAJ).
v. GULF COAST HEALTH CARE OF DELAWARE, LLC, a Foreign Limited Liability
Corporation dba Accentia Health and Rehabilitation Center of Tampa Bay,
Defendant-Appellee. 11th Circuit. Case No. 16-11142. April 19, 2017. On Appeal
from the District Court for the Middle District of Florida (No.
8:15-cv-00702-SCB-EAJ).
(Before ROSENBAUM, JULIE CARNES, and
GILMAN,* Circuit Judges.)
GILMAN,* Circuit Judges.)
(GILMAN, Circuit Judge:) Rodney
Jones brought suit against his former employer, Gulf Coast Health Care of
Delaware, LLC, doing business as Accentia Health and Rehabilitation Center of
Tampa Bay (Accentia), under the Family Medical Leave Act (FMLA), 29 U.S.C. §§
2601-2654. Approximately a month after returning from FMLA leave to have
rotator-cuff surgery on his shoulder, Jones was suspended and subsequently
fired from his job as Activities Director. Jones claims that, in taking these
actions, Accentia interfered with the exercise of his FMLA rights and later
retaliated against him for asserting those rights. The district court granted
summary judgment in favor of Accentia on both claims. For the reasons set forth
below, we AFFIRM the judgment of the court with respect to Jones’s
interference claim, but REVERSE the judgment with respect to his
retaliation claim and REMAND the case for further proceedings consistent
with this opinion.
Jones brought suit against his former employer, Gulf Coast Health Care of
Delaware, LLC, doing business as Accentia Health and Rehabilitation Center of
Tampa Bay (Accentia), under the Family Medical Leave Act (FMLA), 29 U.S.C. §§
2601-2654. Approximately a month after returning from FMLA leave to have
rotator-cuff surgery on his shoulder, Jones was suspended and subsequently
fired from his job as Activities Director. Jones claims that, in taking these
actions, Accentia interfered with the exercise of his FMLA rights and later
retaliated against him for asserting those rights. The district court granted
summary judgment in favor of Accentia on both claims. For the reasons set forth
below, we AFFIRM the judgment of the court with respect to Jones’s
interference claim, but REVERSE the judgment with respect to his
retaliation claim and REMAND the case for further proceedings consistent
with this opinion.
I.
BACKGROUND
BACKGROUND
A. Factual background
Jones served as Activities Director
for Accentia, a long-term-care nursing facility, from 2004 until he was fired
in 2015. His duties included keeping up with resident charting and care plans,
providing calendars for programming events, organizing volunteer programs,
planning parties and outings, arranging entertainment activities for the
residents, and generally overseeing his staff to ensure that these various
programs were carried out. Jones’s job involved substantial desk work and
planning, but his duties as Activities Director also included regular physical
tasks such as unloading vehicles, decorating for parties, shopping for supplies,
and traveling around the community for outreach programs. During the last two
years of his employment, Jones also organized and participated in resident
outings, which involved traveling around the community with residents, helping
them get on and off the Accentia bus, and clearing paths for wheelchairs during
these outings. Although Jones had five assistants to help him organize and
execute activities, he preferred to be “hands-on” with planning and was always
physically involved with setting up for volunteer events.
for Accentia, a long-term-care nursing facility, from 2004 until he was fired
in 2015. His duties included keeping up with resident charting and care plans,
providing calendars for programming events, organizing volunteer programs,
planning parties and outings, arranging entertainment activities for the
residents, and generally overseeing his staff to ensure that these various
programs were carried out. Jones’s job involved substantial desk work and
planning, but his duties as Activities Director also included regular physical
tasks such as unloading vehicles, decorating for parties, shopping for supplies,
and traveling around the community for outreach programs. During the last two
years of his employment, Jones also organized and participated in resident
outings, which involved traveling around the community with residents, helping
them get on and off the Accentia bus, and clearing paths for wheelchairs during
these outings. Although Jones had five assistants to help him organize and
execute activities, he preferred to be “hands-on” with planning and was always
physically involved with setting up for volunteer events.
Jones learned in 2014 that he needed
to undergo shoulder surgery in order to repair his torn rotator cuff, and that
he would need to take time off from work to recover from the surgery. Accentia
determined that Jones was eligible for FMLA leave and granted him time off from
September 26, 2014, until December 18, 2014, so that he could undergo the
surgery and fully recover. He was scheduled to return to work on December 19,
2014. But on December 18, 2014, Jones’s doctor reported that Jones would not be
able to return to work and resume physical activity until February 1, 2015. The
report also stated that Jones needed to continue physical therapy on his
shoulder.
to undergo shoulder surgery in order to repair his torn rotator cuff, and that
he would need to take time off from work to recover from the surgery. Accentia
determined that Jones was eligible for FMLA leave and granted him time off from
September 26, 2014, until December 18, 2014, so that he could undergo the
surgery and fully recover. He was scheduled to return to work on December 19,
2014. But on December 18, 2014, Jones’s doctor reported that Jones would not be
able to return to work and resume physical activity until February 1, 2015. The
report also stated that Jones needed to continue physical therapy on his
shoulder.
Despite the recommendations of
Jones’s doctor and Jones’s own physical limitations, he still wished to return
to his job as Activities Director at the end of his FMLA leave. Jones
understood his doctor’s report to simply mean that he needed to continue
physical therapy, not that he was prohibited from working entirely. He
therefore asked his supervisor, Donald Daniels, to allow him to return to work
on light duty. Jones wished to perform desk duty and computer work, with his
staff to cover the physical aspects of his job. Daniels, however, refused to
reinstate Jones as Activities Director until Jones could submit an unqualified
fitness-for-duty certification, which Jones’s doctor failed to issue before the
end of the FMLA period.
Jones’s doctor and Jones’s own physical limitations, he still wished to return
to his job as Activities Director at the end of his FMLA leave. Jones
understood his doctor’s report to simply mean that he needed to continue
physical therapy, not that he was prohibited from working entirely. He
therefore asked his supervisor, Donald Daniels, to allow him to return to work
on light duty. Jones wished to perform desk duty and computer work, with his
staff to cover the physical aspects of his job. Daniels, however, refused to
reinstate Jones as Activities Director until Jones could submit an unqualified
fitness-for-duty certification, which Jones’s doctor failed to issue before the
end of the FMLA period.
Jones maintains that, if Daniels had
allowed him to return on light duty, Jones’s doctor would have certified him to
return to work in this capacity. But because Daniels was adamant that Jones
could not return to work on light duty, Jones did not ask his doctor for a
light-duty certification. Jones instead requested additional time off from
Accentia and was granted another 30 days of non-FMLA medical leave in order to
complete his physical therapy. He felt that he was forced by Daniels into
requesting this additional leave.
allowed him to return on light duty, Jones’s doctor would have certified him to
return to work in this capacity. But because Daniels was adamant that Jones
could not return to work on light duty, Jones did not ask his doctor for a
light-duty certification. Jones instead requested additional time off from
Accentia and was granted another 30 days of non-FMLA medical leave in order to
complete his physical therapy. He felt that he was forced by Daniels into
requesting this additional leave.
While on the 30 days of additional
leave, Jones twice visited the Busch Gardens theme park in Tampa Bay, Florida
and went on a trip to St. Martin. Jones spent his time at Busch Gardens walking
around and taking pictures of the park’s Christmas decorations. He sent these
pictures to his staff via text message, hoping to give them ideas for decorating
Accentia’s facilities. Jones also visited his family in St. Martin for three
days. He posted photos from these trips on his Facebook page, including
pictures of himself on the beach, posing by a boat wreck, and in the ocean.
leave, Jones twice visited the Busch Gardens theme park in Tampa Bay, Florida
and went on a trip to St. Martin. Jones spent his time at Busch Gardens walking
around and taking pictures of the park’s Christmas decorations. He sent these
pictures to his staff via text message, hoping to give them ideas for decorating
Accentia’s facilities. Jones also visited his family in St. Martin for three
days. He posted photos from these trips on his Facebook page, including
pictures of himself on the beach, posing by a boat wreck, and in the ocean.
Jones eventually returned to work on
January 19, 2015 as planned, meeting with Daniels at the beginning of the day.
During the meeting, Jones presented Daniels with a fitness-for-duty
certification confirming that Jones could immediately resume his job as
Activities Director. Daniels responded by showing Jones the photos from Jones’s
Facebook page, which depicted the trips that he had taken while on medical
leave.
January 19, 2015 as planned, meeting with Daniels at the beginning of the day.
During the meeting, Jones presented Daniels with a fitness-for-duty
certification confirming that Jones could immediately resume his job as
Activities Director. Daniels responded by showing Jones the photos from Jones’s
Facebook page, which depicted the trips that he had taken while on medical
leave.
When Jones asked Daniels how he had
obtained the photos, Daniels responded that “you can thank your wonderful
staff, they just ratted you out,” but also remarked that “maybe if you’re going
to have a Facebook account, you shouldn’t have it on public.” Daniels then
informed Jones that “corporate” believed, based on these Facebook posts, that
Jones had been well enough to return to work at an earlier point. Jones was
subsequently suspended so that Daniels could investigate his conduct during
medical leave. Although Jones was given an opportunity to respond to these
charges in a letter, he failed to do so. Several days later, Jones’s employment
was terminated.
obtained the photos, Daniels responded that “you can thank your wonderful
staff, they just ratted you out,” but also remarked that “maybe if you’re going
to have a Facebook account, you shouldn’t have it on public.” Daniels then
informed Jones that “corporate” believed, based on these Facebook posts, that
Jones had been well enough to return to work at an earlier point. Jones was
subsequently suspended so that Daniels could investigate his conduct during
medical leave. Although Jones was given an opportunity to respond to these
charges in a letter, he failed to do so. Several days later, Jones’s employment
was terminated.
B. Procedural background
In February 2015, Jones brought suit
against Accentia in Florida state court. Jones alleged that, in suspending and
later terminating him, Accentia interfered with the exercise of his FMLA rights
and retaliated against him for asserting those rights. Accentia removed the
action to the United States District Court for the Middle District of Florida,
and subsequently moved for summary judgment on both of Jones’s claims. In
February 2016, the district court granted Accentia’s motion for summary
judgment, holding that Jones had failed to establish a prima facie case of
either interference or retaliation under the FMLA. This timely appeal followed.
against Accentia in Florida state court. Jones alleged that, in suspending and
later terminating him, Accentia interfered with the exercise of his FMLA rights
and retaliated against him for asserting those rights. Accentia removed the
action to the United States District Court for the Middle District of Florida,
and subsequently moved for summary judgment on both of Jones’s claims. In
February 2016, the district court granted Accentia’s motion for summary
judgment, holding that Jones had failed to establish a prima facie case of
either interference or retaliation under the FMLA. This timely appeal followed.
II.
STANDARD OF REVIEW
STANDARD OF REVIEW
We review de novo the district
court’s grant of summary judgment, “viewing all the evidence, and drawing all
reasonable inferences, in favor of the non-moving party.” Vessels v. Atlanta
Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005) [18 Fla. L. Weekly
Fed. C507a]. Summary judgment is proper only if there is no genuine dispute as
to any material fact and the moving party is entitled to judgment as a matter
of law. Id.; Fed. R. Civ. P. 56(c).
court’s grant of summary judgment, “viewing all the evidence, and drawing all
reasonable inferences, in favor of the non-moving party.” Vessels v. Atlanta
Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005) [18 Fla. L. Weekly
Fed. C507a]. Summary judgment is proper only if there is no genuine dispute as
to any material fact and the moving party is entitled to judgment as a matter
of law. Id.; Fed. R. Civ. P. 56(c).
III.
DISCUSSION
DISCUSSION
A. The FMLA
The FMLA grants eligible employees a
series of entitlements, among them the right to “a total of 12 workweeks of
leave during any 12-month period” for a number of reasons, including “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). To preserve and enforce
these rights, “the FMLA creates two types of claims: interference claims, in
which an employee asserts that his employer denied or otherwise interfered with
his substantive rights under the Act . . . [,] and retaliation claims, in which
an employee asserts that his employer discriminated against him because he
engaged in activity protected by the Act.” Strickland v. Water Works &
Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001)
(internal citations omitted); see also 29 U.S.C. § 2615(a)-(b); 29
C.F.R. § 825.220(c). Jones brought claims against Accentia for both
interference and retaliation in connection with the exercise of his FMLA
rights.
series of entitlements, among them the right to “a total of 12 workweeks of
leave during any 12-month period” for a number of reasons, including “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). To preserve and enforce
these rights, “the FMLA creates two types of claims: interference claims, in
which an employee asserts that his employer denied or otherwise interfered with
his substantive rights under the Act . . . [,] and retaliation claims, in which
an employee asserts that his employer discriminated against him because he
engaged in activity protected by the Act.” Strickland v. Water Works &
Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001)
(internal citations omitted); see also 29 U.S.C. § 2615(a)-(b); 29
C.F.R. § 825.220(c). Jones brought claims against Accentia for both
interference and retaliation in connection with the exercise of his FMLA
rights.
B. Jones’s interference claim
The interference claim is based on
Accentia’s refusal to allow Jones to return to work with certain physical
limitations, even though two other employees with different job functions had
been allowed to do so. Jones had requested on multiple occasions that he be
allowed to resume his job as Activities Director on “light duty,” but he was
denied such a reinstatement. Accentia’s response is two-fold: (1) that Jones
forfeited his FMLA right to reinstatement when he requested and obtained
extended medical leave at the end of his FMLA leave, and (2) that Jones failed
to provide Accentia with a fitness-for-duty certification, which the company
uniformly requires employees to submit before returning from FMLA leave. The
district court granted Accentia’s motion for summary judgment on this issue,
holding that Jones had failed to establish a prima facie case for his FMLA
interference claim.
Accentia’s refusal to allow Jones to return to work with certain physical
limitations, even though two other employees with different job functions had
been allowed to do so. Jones had requested on multiple occasions that he be
allowed to resume his job as Activities Director on “light duty,” but he was
denied such a reinstatement. Accentia’s response is two-fold: (1) that Jones
forfeited his FMLA right to reinstatement when he requested and obtained
extended medical leave at the end of his FMLA leave, and (2) that Jones failed
to provide Accentia with a fitness-for-duty certification, which the company
uniformly requires employees to submit before returning from FMLA leave. The
district court granted Accentia’s motion for summary judgment on this issue,
holding that Jones had failed to establish a prima facie case for his FMLA
interference claim.
To establish a prima facie case for
interference, Jones needed to “demonstrate by a preponderance of the evidence
that he was entitled to the benefit denied.” See Strickland, 239 F.3d at
1207. He does not, however, “have to allege that his employer intended to deny
the right; the employer’s motives are irrelevant.” Id. at 1208. Indeed,
an employee returning from FMLA leave is entitled “to be restored by the
employer to the position of employment held by the employee when the leave
commenced” or to an equivalent position. 29 U.S.C. § 2614(a)(1). Jones claims
that his substantive right to reinstatement under the FMLA was violated by
Accentia. But Jones failed to show that he was actually entitled to
reinstatement.
interference, Jones needed to “demonstrate by a preponderance of the evidence
that he was entitled to the benefit denied.” See Strickland, 239 F.3d at
1207. He does not, however, “have to allege that his employer intended to deny
the right; the employer’s motives are irrelevant.” Id. at 1208. Indeed,
an employee returning from FMLA leave is entitled “to be restored by the
employer to the position of employment held by the employee when the leave
commenced” or to an equivalent position. 29 U.S.C. § 2614(a)(1). Jones claims
that his substantive right to reinstatement under the FMLA was violated by
Accentia. But Jones failed to show that he was actually entitled to
reinstatement.
As an initial matter, the FMLA
“provides for only 12 weeks of leave” and “does not suggest that the 12 week
entitlement may be extended.” McGregor v. AutoZone, Inc., 180 F.3d 1305,
1308 (11th Cir. 1999). Jones’s FMLA leave began on September 26, 2014, and
ended on December 18, 2014. At the expiration of his FMLA leave, Jones
requested and was given another 30 days of separate medical leave.
Significantly, this additional medical leave was not an extension of
Jones’s FMLA leave.
“provides for only 12 weeks of leave” and “does not suggest that the 12 week
entitlement may be extended.” McGregor v. AutoZone, Inc., 180 F.3d 1305,
1308 (11th Cir. 1999). Jones’s FMLA leave began on September 26, 2014, and
ended on December 18, 2014. At the expiration of his FMLA leave, Jones
requested and was given another 30 days of separate medical leave.
Significantly, this additional medical leave was not an extension of
Jones’s FMLA leave.
Relevant caselaw suggests that an
employer does not interfere with an employee’s right to reinstatement if that
employee is terminated after taking leave in excess of the 12 weeks permitted
by the FMLA. See Armbrust v. SA-ENC Operator Holdings, LLC, No.
2:14-CV-55-FTM-38CM, 2015 WL 3465760, at *5 (M.D. Fla. June 1, 2015) (holding
that an employee did not have a claim for interference when “he was given the
full twelve (12) weeks under the FMLA and his termination occurred after his
FMLA leave expired”); Bender v. City of Clearwater, No.
8:04-CV-1929-T23EAJ, 2006 WL 1046944, at *11 (M.D. Fla. Apr. 19, 2006) (“Where
an employee is absent for more than the protected period of time, the employee
does not have a right to be restored to his prior or similar position.”). Jones
argues that this line of cases is irrelevant because he requested to return to
his job as Activities Director at the end of his FMLA leave, but was instead
forced to request an additional 30 days of medical leave.
employer does not interfere with an employee’s right to reinstatement if that
employee is terminated after taking leave in excess of the 12 weeks permitted
by the FMLA. See Armbrust v. SA-ENC Operator Holdings, LLC, No.
2:14-CV-55-FTM-38CM, 2015 WL 3465760, at *5 (M.D. Fla. June 1, 2015) (holding
that an employee did not have a claim for interference when “he was given the
full twelve (12) weeks under the FMLA and his termination occurred after his
FMLA leave expired”); Bender v. City of Clearwater, No.
8:04-CV-1929-T23EAJ, 2006 WL 1046944, at *11 (M.D. Fla. Apr. 19, 2006) (“Where
an employee is absent for more than the protected period of time, the employee
does not have a right to be restored to his prior or similar position.”). Jones
argues that this line of cases is irrelevant because he requested to return to
his job as Activities Director at the end of his FMLA leave, but was instead
forced to request an additional 30 days of medical leave.
He was not, however, “forced” to
take the additional leave; rather, he requested the 30-day extension because he
was physically unable to resume his job duties at the end of his FMLA leave.
But even assuming that Jones did not waive his right to reinstatement when he
took additional medical leave, he has failed to establish a prima facie case
for interference. In November and December 2014, Jones told his supervisor,
Donald Daniels, that he wanted to return to work on light duty. As part of this
light duty, Jones hoped to perform his desk-duty functions but have his
assistants perform the physical aspects of his job. Daniels, however, refused
to allow Jones to return to work in a diminished capacity, instead requiring
him to submit a full fitness-for-duty certification before returning to work.
take the additional leave; rather, he requested the 30-day extension because he
was physically unable to resume his job duties at the end of his FMLA leave.
But even assuming that Jones did not waive his right to reinstatement when he
took additional medical leave, he has failed to establish a prima facie case
for interference. In November and December 2014, Jones told his supervisor,
Donald Daniels, that he wanted to return to work on light duty. As part of this
light duty, Jones hoped to perform his desk-duty functions but have his
assistants perform the physical aspects of his job. Daniels, however, refused
to allow Jones to return to work in a diminished capacity, instead requiring
him to submit a full fitness-for-duty certification before returning to work.
The FMLA regulations provide that an
employee returning from FMLA leave who cannot perform the essential functions
of his job due to a physical condition need not be reinstated or restored to
another position. 29 C.F.R. § 825.216(c) (“If the employee is unable to perform
an essential function of the position because of a physical or mental
condition, including the continuation of a serious health condition or an
injury or illness also covered by workers’ compensation, the employee has no right
to restoration to another position under the FMLA.”)
employee returning from FMLA leave who cannot perform the essential functions
of his job due to a physical condition need not be reinstated or restored to
another position. 29 C.F.R. § 825.216(c) (“If the employee is unable to perform
an essential function of the position because of a physical or mental
condition, including the continuation of a serious health condition or an
injury or illness also covered by workers’ compensation, the employee has no right
to restoration to another position under the FMLA.”)
In addition, an employer may
lawfully require a fitness-for-duty certification without interfering with the
exercise of an employee’s FMLA rights. See Drago v. Jenne, 453 F.3d
1301, 1306-07 (11th Cir. 2006) [19 Fla. L. Weekly Fed. C699a] (holding that
“the FMLA allows an employer to require that an employee present a Return to
Work Authorization form before he returns from FMLA leave”); 29 C.F.R. §
825.313(d) (“Unless the employee provides either a fitness-for-duty
certification or a new medical certification for a serious health condition at
the time FMLA leave is concluded, the employee may be terminated.”). The FMLA
explicitly provides for such a certification, noting that “the employer may
have a uniformly applied practice or policy that requires each such employee to
receive certification from the health care provider of the employee that the
employee is able to resume work.” 29 U.S.C. § 2614(a)(4).
lawfully require a fitness-for-duty certification without interfering with the
exercise of an employee’s FMLA rights. See Drago v. Jenne, 453 F.3d
1301, 1306-07 (11th Cir. 2006) [19 Fla. L. Weekly Fed. C699a] (holding that
“the FMLA allows an employer to require that an employee present a Return to
Work Authorization form before he returns from FMLA leave”); 29 C.F.R. §
825.313(d) (“Unless the employee provides either a fitness-for-duty
certification or a new medical certification for a serious health condition at
the time FMLA leave is concluded, the employee may be terminated.”). The FMLA
explicitly provides for such a certification, noting that “the employer may
have a uniformly applied practice or policy that requires each such employee to
receive certification from the health care provider of the employee that the
employee is able to resume work.” 29 U.S.C. § 2614(a)(4).
Jones does not dispute the accuracy
or applicability of these FMLA provisions, nor does he dispute the fact that
Accentia required employees returning from FMLA to submit fitness-for-duty
certifications. He instead argues that Daniels interfered with the exercise of
Jones’s FMLA rights by dissuading him from submitting a light-duty
certification, even though he had previously allowed other Accentia employees
to return to work with such certifications. Specifically, Jones points to two
Accentia employees, Kristine O’Leary and Faith Turner, who submitted
fitness-for-duty certifications and were permitted to return to work despite
having physical limitations. Even assuming that the record supports Jones’s
contention that Daniel’s dissuaded him from submitting a light-duty certification,
however, he cannot show that Accentia’s fitness-for-duty certification policy
was violative of the FMLA.
or applicability of these FMLA provisions, nor does he dispute the fact that
Accentia required employees returning from FMLA to submit fitness-for-duty
certifications. He instead argues that Daniels interfered with the exercise of
Jones’s FMLA rights by dissuading him from submitting a light-duty
certification, even though he had previously allowed other Accentia employees
to return to work with such certifications. Specifically, Jones points to two
Accentia employees, Kristine O’Leary and Faith Turner, who submitted
fitness-for-duty certifications and were permitted to return to work despite
having physical limitations. Even assuming that the record supports Jones’s
contention that Daniel’s dissuaded him from submitting a light-duty certification,
however, he cannot show that Accentia’s fitness-for-duty certification policy
was violative of the FMLA.
As an initial matter, O’Leary and
Turner both submitted fitness-for-duty certifications to Accentia before
returning to work, which Jones failed to do. The only documentation that Jones
submitted at the end of his FMLA leave was a report from his doctor stating
that (1) he needed to be excused from work until February 1, 2015, at which
time he could return to full physical activity, and (2) he required continuing
physical therapy. But this report does not constitute a fitness-for-duty
certification because it does not specify that Jones “is able to resume work.” See
29 U.S.C. § 2614(a)(4). By contrast, O’Leary submitted a fitness-for-duty
certification that fully released her for immediate work. Turner was also
cleared to work, although her fitness-for-duty certification indicated that she
required “rests from walking.”
Turner both submitted fitness-for-duty certifications to Accentia before
returning to work, which Jones failed to do. The only documentation that Jones
submitted at the end of his FMLA leave was a report from his doctor stating
that (1) he needed to be excused from work until February 1, 2015, at which
time he could return to full physical activity, and (2) he required continuing
physical therapy. But this report does not constitute a fitness-for-duty
certification because it does not specify that Jones “is able to resume work.” See
29 U.S.C. § 2614(a)(4). By contrast, O’Leary submitted a fitness-for-duty
certification that fully released her for immediate work. Turner was also
cleared to work, although her fitness-for-duty certification indicated that she
required “rests from walking.”
Jones argues that, like Turner, he
wished to submit a fitness-for-duty certification that included certain
physical restrictions. He also contends that, in denying him that option,
Daniels failed to apply Accentia’s fitness-for-duty certification policy in a
uniform fashion, as required by the FMLA. The applicable FMLA regulation
defines a uniform fitness-for-duty certification policy as one that applies to
“all similarly-situated employees (i.e., same occupation, same serious health
condition) who take leave for such condition.” 29 C.F.R. § 825.312(a).
wished to submit a fitness-for-duty certification that included certain
physical restrictions. He also contends that, in denying him that option,
Daniels failed to apply Accentia’s fitness-for-duty certification policy in a
uniform fashion, as required by the FMLA. The applicable FMLA regulation
defines a uniform fitness-for-duty certification policy as one that applies to
“all similarly-situated employees (i.e., same occupation, same serious health
condition) who take leave for such condition.” 29 C.F.R. § 825.312(a).
Whether O’Leary or Turner are proper
comparators under this definition of “uniform” is a key issue in this case.
First, Jones did not have the same occupation as O’Leary, a health
administrator, or Turner, an admissions assistant. Although Jones’s job as
Activities Director involved substantial sedentary work — such as keeping up
with resident care plans, providing program calendars, arranging activities,
and overseeing staff — his job was more physically demanding than those of
either O’Leary or Turner. Jones was regularly required to engage in such
physical activities as unloading vehicles, decorating for parties, shopping for
supplies, and traveling around the community for outreach programs. By
comparison, Turner was responsible for taking calls, reviewing faxes, and
completing paperwork. The only physical aspect of Turner’s job involved
conducting occasional tours of the facility for prospective residents and their
families.
comparators under this definition of “uniform” is a key issue in this case.
First, Jones did not have the same occupation as O’Leary, a health
administrator, or Turner, an admissions assistant. Although Jones’s job as
Activities Director involved substantial sedentary work — such as keeping up
with resident care plans, providing program calendars, arranging activities,
and overseeing staff — his job was more physically demanding than those of
either O’Leary or Turner. Jones was regularly required to engage in such
physical activities as unloading vehicles, decorating for parties, shopping for
supplies, and traveling around the community for outreach programs. By
comparison, Turner was responsible for taking calls, reviewing faxes, and
completing paperwork. The only physical aspect of Turner’s job involved
conducting occasional tours of the facility for prospective residents and their
families.
Jones, who was recovering from
rotator-cuff surgery, also failed to show that he suffered from the same serious
health condition as either O’Leary or Turner, who were both recovering from
foot maladies. O’Leary underwent foot surgery to remove a melanoma and was
fully cleared to return to her job at the end of her FMLA leave. Upon her
return to Accentia, O’Leary wore a “shoe-boot” given to her by her physician
only because her regular shoes did not yet fit. Turner, on the other hand, took
FMLA leave to recover from a broken foot and returned to Accentia wearing a
medical short boot. Her only physical limitation at work involved taking rests
from walking.
rotator-cuff surgery, also failed to show that he suffered from the same serious
health condition as either O’Leary or Turner, who were both recovering from
foot maladies. O’Leary underwent foot surgery to remove a melanoma and was
fully cleared to return to her job at the end of her FMLA leave. Upon her
return to Accentia, O’Leary wore a “shoe-boot” given to her by her physician
only because her regular shoes did not yet fit. Turner, on the other hand, took
FMLA leave to recover from a broken foot and returned to Accentia wearing a
medical short boot. Her only physical limitation at work involved taking rests
from walking.
By contrast, Jones’s health
condition affected his shoulder and was significantly more physically limiting.
The December 2014 report from Jones’s doctor stated that Jones needed
additional physical therapy and should avoid physical activity until February
2015. Jones admits that his doctor did not clear him to resume his usual
responsibilities as Activities Director because his shoulder injury was “too
fresh.” In fact, both Jones’s doctor and his physical therapist were worried
that common workplace activities, such as pushing a wheelchair or lifting
objects, might cause Jones’s shoulder to retear, further prolonging his
recovery.
condition affected his shoulder and was significantly more physically limiting.
The December 2014 report from Jones’s doctor stated that Jones needed
additional physical therapy and should avoid physical activity until February
2015. Jones admits that his doctor did not clear him to resume his usual
responsibilities as Activities Director because his shoulder injury was “too
fresh.” In fact, both Jones’s doctor and his physical therapist were worried
that common workplace activities, such as pushing a wheelchair or lifting
objects, might cause Jones’s shoulder to retear, further prolonging his
recovery.
In sum, Jones has not shown that any
similarly situated Accentia employee was permitted to return from FMLA leave
without submitting the required fitness-for-duty certifications. O’Leary’s
fitness-for-duty certification did not indicate that she had any physical
restrictions. And even if Turner’s fitness-for-duty certification — requiring
that she take periodic rests from walking — can be construed as a light-duty
certification, Jones has failed to show that either O’Leary or Turner are
proper comparators. Neither one had a job as physically demanding as Jones’s,
nor were their injuries as physically limiting. The record therefore does not
support Jones’s claim that Accentia failed to apply its fitness-for-duty
certification policy in a uniform fashion.
similarly situated Accentia employee was permitted to return from FMLA leave
without submitting the required fitness-for-duty certifications. O’Leary’s
fitness-for-duty certification did not indicate that she had any physical
restrictions. And even if Turner’s fitness-for-duty certification — requiring
that she take periodic rests from walking — can be construed as a light-duty
certification, Jones has failed to show that either O’Leary or Turner are
proper comparators. Neither one had a job as physically demanding as Jones’s,
nor were their injuries as physically limiting. The record therefore does not
support Jones’s claim that Accentia failed to apply its fitness-for-duty
certification policy in a uniform fashion.
Because Jones likely waived his FMLA
right to reinstatement by taking an additional 30 days of medical leave,
because he failed to submit a fitness-for-duty certification by the end of his
FMLA leave, and because the record is devoid of proof challenging Accentia’s
contention that its fitness-for-duty certification policy was implemented in a
uniform fashion, Jones lost the right to be reinstated after failing to comply
with this policy. In sum, Jones has not shown that he was denied a benefit to
which he was entitled under the FMLA. The district court therefore did not err
in granting summary judgment to Accentia on Jones’s interference claim.
right to reinstatement by taking an additional 30 days of medical leave,
because he failed to submit a fitness-for-duty certification by the end of his
FMLA leave, and because the record is devoid of proof challenging Accentia’s
contention that its fitness-for-duty certification policy was implemented in a
uniform fashion, Jones lost the right to be reinstated after failing to comply
with this policy. In sum, Jones has not shown that he was denied a benefit to
which he was entitled under the FMLA. The district court therefore did not err
in granting summary judgment to Accentia on Jones’s interference claim.
C. Jones’s retaliation claim
Jones also appeals the district
court’s grant of summary judgment to Accentia on his claim of retaliation under
the FMLA. He maintains that Accentia retaliated against him for taking FMLA
leave when it suspended and then terminated his employment. To succeed on this
claim, Jones must demonstrate that Accentia “intentionally discriminated
against him in the form of an adverse employment action for having exercised an
FMLA right.” See Strickland v. Water Works & Sewer Bd. of City of
Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001). In other words, Jones
must show “that his employer’s actions ‘were motivated by an impermissible
retaliatory or discriminatory animus.’ ” Id. (quoting King v.
Preferred Tech. Grp., 166 F.3d 887, 891 (7th Cir. 1999)). Jones claims on
appeal that he can prove Accentia’s retaliatory intent using both direct and
circumstantial evidence.
court’s grant of summary judgment to Accentia on his claim of retaliation under
the FMLA. He maintains that Accentia retaliated against him for taking FMLA
leave when it suspended and then terminated his employment. To succeed on this
claim, Jones must demonstrate that Accentia “intentionally discriminated
against him in the form of an adverse employment action for having exercised an
FMLA right.” See Strickland v. Water Works & Sewer Bd. of City of
Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001). In other words, Jones
must show “that his employer’s actions ‘were motivated by an impermissible
retaliatory or discriminatory animus.’ ” Id. (quoting King v.
Preferred Tech. Grp., 166 F.3d 887, 891 (7th Cir. 1999)). Jones claims on
appeal that he can prove Accentia’s retaliatory intent using both direct and
circumstantial evidence.
Direct evidence “reflects ‘a discriminatory
or retaliatory attitude correlating to the discrimination or retaliation
complained of by the employee.’ ” Wilson v. B/E Aerospace, Inc., 376
F.3d 1079, 1086 (11th Cir. 2004) [17 Fla. L. Weekly Fed. C715a] (quoting Damon
v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999)
(internal quotation marks omitted). If believed, direct evidence “proves [the]
existence of [a] fact without inference or presumption.” Id. (quoting Burrell
v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997))
For that reason, “ ‘only the most blatant remarks, whose intent could mean
nothing other than to discriminate on the basis of’ some impermissible factor
constitute direct evidence of discrimination.” Id. (quoting Rojas v.
Florida, 285 F.3d 1339, 1342 n. 2 (11th Cir. 2002) [15 Fla. L. Weekly Fed.
C389a]). Jones puts forth two statements as direct evidence of retaliation: (1)
Daniels’s comment that “corporate” would not like the timing of Jones’s FMLA
leave during the “survey window,” and (2) Daniels’s remark that Jones was being
suspended because corporate believed that he had abused and misused his FMLA
leave.
or retaliatory attitude correlating to the discrimination or retaliation
complained of by the employee.’ ” Wilson v. B/E Aerospace, Inc., 376
F.3d 1079, 1086 (11th Cir. 2004) [17 Fla. L. Weekly Fed. C715a] (quoting Damon
v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999)
(internal quotation marks omitted). If believed, direct evidence “proves [the]
existence of [a] fact without inference or presumption.” Id. (quoting Burrell
v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997))
For that reason, “ ‘only the most blatant remarks, whose intent could mean
nothing other than to discriminate on the basis of’ some impermissible factor
constitute direct evidence of discrimination.” Id. (quoting Rojas v.
Florida, 285 F.3d 1339, 1342 n. 2 (11th Cir. 2002) [15 Fla. L. Weekly Fed.
C389a]). Jones puts forth two statements as direct evidence of retaliation: (1)
Daniels’s comment that “corporate” would not like the timing of Jones’s FMLA
leave during the “survey window,” and (2) Daniels’s remark that Jones was being
suspended because corporate believed that he had abused and misused his FMLA
leave.
Neither of these comments
constitutes direct evidence of retaliation because they do not prove, without
requiring an inference, that Accentia discriminated against Jones based on the
exercise of his FMLA rights. A comment about the timing of Jones’s leave is not
a “blatant remark” that proves discrimination, and a comment about the abuse
and misuse of FMLA leave does not establish Accentia’s consideration
of impermissible factors. These comments might suggest but do not prove
Accentia’s discriminatory motive, so Daniels’s statements are better considered
as circumstantial evidence of retaliation. See id.
constitutes direct evidence of retaliation because they do not prove, without
requiring an inference, that Accentia discriminated against Jones based on the
exercise of his FMLA rights. A comment about the timing of Jones’s leave is not
a “blatant remark” that proves discrimination, and a comment about the abuse
and misuse of FMLA leave does not establish Accentia’s consideration
of impermissible factors. These comments might suggest but do not prove
Accentia’s discriminatory motive, so Daniels’s statements are better considered
as circumstantial evidence of retaliation. See id.
Because Jones has put forth no
direct evidence of retaliation, we must employ the burden-shifting framework
established by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), to analyze his retaliation claim. See Schaaf v.
Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010) [22 Fla. L.
Weekly Fed. C1687a]. “Under the McDonnell Douglas framework, the
plaintiff must first establish a prima facie case by demonstrating (1) [he]
engaged in statutorily protected activity, (2) [he] suffered an adverse
employment decision, and (3) the decision was causally related to the protected
activity.” Id. The burden shifts back to Accentia if Jones can establish
a prima facie case, requiring Accentia to “articulate a legitimate,
nondiscriminatory reason” for his termination. See id. Finally, if
Accentia meets this burden, then Jones must show that the supposedly legitimate
reason was in fact a pretext designed to mask illegal discrimination. See
id. at 1244.
direct evidence of retaliation, we must employ the burden-shifting framework
established by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), to analyze his retaliation claim. See Schaaf v.
Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010) [22 Fla. L.
Weekly Fed. C1687a]. “Under the McDonnell Douglas framework, the
plaintiff must first establish a prima facie case by demonstrating (1) [he]
engaged in statutorily protected activity, (2) [he] suffered an adverse
employment decision, and (3) the decision was causally related to the protected
activity.” Id. The burden shifts back to Accentia if Jones can establish
a prima facie case, requiring Accentia to “articulate a legitimate,
nondiscriminatory reason” for his termination. See id. Finally, if
Accentia meets this burden, then Jones must show that the supposedly legitimate
reason was in fact a pretext designed to mask illegal discrimination. See
id. at 1244.
The district court held that Jones
had failed to establish a prima facie case of retaliation under the McDonnell
Douglas framework. Accentia does not dispute the court’s finding that Jones
met the first two prongs of the framework’s prima facie test. That is, it
agrees that Jones engaged in a protected activity by taking FMLA leave and that
he suffered an adverse employment action when he was terminated. The issue on
appeal therefore centers around the court’s conclusion that Jones failed to
establish causation, the third prong of the McDonnell Douglas prima facie
test. “To establish a causal connection, a plaintiff must show that the
relevant decisionmaker 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 Telecomms., Inc., 292 F.3d
712, 716 (11th Cir. 2002) [22 Fla. L. Weekly Fed. C1411a]). “Generally, a
plaintiff can show the two events are not wholly unrelated if the plaintiff
shows that the decision maker was aware of the protected conduct at the time of
the adverse employment action.” Krutzig v. Pulte Home Corp., 602 F.3d
1231, 1234 (11th Cir. 2010) [22 Fla. L. Weekly Fed. C1416a].
had failed to establish a prima facie case of retaliation under the McDonnell
Douglas framework. Accentia does not dispute the court’s finding that Jones
met the first two prongs of the framework’s prima facie test. That is, it
agrees that Jones engaged in a protected activity by taking FMLA leave and that
he suffered an adverse employment action when he was terminated. The issue on
appeal therefore centers around the court’s conclusion that Jones failed to
establish causation, the third prong of the McDonnell Douglas prima facie
test. “To establish a causal connection, a plaintiff must show that the
relevant decisionmaker 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 Telecomms., Inc., 292 F.3d
712, 716 (11th Cir. 2002) [22 Fla. L. Weekly Fed. C1411a]). “Generally, a
plaintiff can show the two events are not wholly unrelated if the plaintiff
shows that the decision maker was aware of the protected conduct at the time of
the adverse employment action.” Krutzig v. Pulte Home Corp., 602 F.3d
1231, 1234 (11th Cir. 2010) [22 Fla. L. Weekly Fed. C1416a].
Jones points to the timing between
his return from FMLA leave and his termination to prove causation. “Close
temporal proximity between protected conduct and an adverse employment action
is generally ‘sufficient circumstantial evidence to create a genuine issue of
material fact of a causal connection.’ ” Hurlbert v. St. Mary’s Health Care
Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006) [19 Fla. L. Weekly Fed.
C299b] (quoting Brungart v. BellSouth Telecomms., Inc., 231 F.3d
791, 799 (11th Cir. 2000)). But “temporal proximity, without more, must be
‘very close’ ” in order to satisfy the causation requirement. Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) [21 Fla. L.
Weekly Fed. C168a] (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S.
268, 273, (2001) [14 Fla. L. Weekly Fed. S216a]) (holding that “[a] three to
four month disparity” between the statutorily protected conduct and the adverse
employment action is too long to establish temporal proximity).
his return from FMLA leave and his termination to prove causation. “Close
temporal proximity between protected conduct and an adverse employment action
is generally ‘sufficient circumstantial evidence to create a genuine issue of
material fact of a causal connection.’ ” Hurlbert v. St. Mary’s Health Care
Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006) [19 Fla. L. Weekly Fed.
C299b] (quoting Brungart v. BellSouth Telecomms., Inc., 231 F.3d
791, 799 (11th Cir. 2000)). But “temporal proximity, without more, must be
‘very close’ ” in order to satisfy the causation requirement. Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) [21 Fla. L.
Weekly Fed. C168a] (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S.
268, 273, (2001) [14 Fla. L. Weekly Fed. S216a]) (holding that “[a] three to
four month disparity” between the statutorily protected conduct and the adverse
employment action is too long to establish temporal proximity).
Although Jones and Accentia agree on
these general principles, they disagree with respect to how temporal proximity
should be measured. Accentia argues, and the district court agreed, that
temporal proximity should be calculated from the date that Jones began his
FMLA leave (September 26, 2014) until the date that he was terminated (January
23, 2015). Because nearly four months passed between these two events, the
court concluded that this temporal gap was too long to establish a prima facie
case of a causal connection. Jones, on the other hand, argues that the relevant
time period is between the date that his FMLA leave ended (December 18,
2014) and the dates of his suspension and termination (January 19, 2015 and
January 23, 2015, respectively). This one-month period, he asserts, is
sufficiently close to raise an inference of a causal connection. See Higdon
v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) [18 Fla. L. Weekly Fed.
C136a] (holding that “a period as much as one month between the protected
expression and the adverse action is not too protracted” to establish causation).
these general principles, they disagree with respect to how temporal proximity
should be measured. Accentia argues, and the district court agreed, that
temporal proximity should be calculated from the date that Jones began his
FMLA leave (September 26, 2014) until the date that he was terminated (January
23, 2015). Because nearly four months passed between these two events, the
court concluded that this temporal gap was too long to establish a prima facie
case of a causal connection. Jones, on the other hand, argues that the relevant
time period is between the date that his FMLA leave ended (December 18,
2014) and the dates of his suspension and termination (January 19, 2015 and
January 23, 2015, respectively). This one-month period, he asserts, is
sufficiently close to raise an inference of a causal connection. See Higdon
v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) [18 Fla. L. Weekly Fed.
C136a] (holding that “a period as much as one month between the protected
expression and the adverse action is not too protracted” to establish causation).
Our circuit has yet to address this
issue in a published decision. Unpublished opinions go both ways. See
Penaloza v. Target Corp., 549 F. App’x 844, 848 (11th Cir. 2013) (measuring
temporal proximity, for purposes of an FMLA retaliation claim, as “the time
period between [the plaintiff’s] request for leave and her termination”). But
see Diamond v. Hospice of Florida Keys, Inc., No. 15-15716, 2017 WL 382310,
at *7 (11th Cir. Jan. 27, 2017) (holding that the plaintiff, who took FMLA
leave for about 13 days between March 21 and April 21, 2014 established an
inference of causation for purposes of an FMLA retaliation claim when “two
weeks after April 21, on May 5, she was fired”); see also Lamar v. Pilgrim’s
Pride Corp., No. 3:13-CV-1101-J-34JBT, 2015 WL 5440342, at *11 (M.D. Fla.
Sept. 15, 2015), appeal dismissed, No. 15-14598 (11th Cir. Mar. 31,
2016) (holding that the plaintiff, who took FMLA leave from April 12 to 15,
2013, and again on May 2, 2013, established a causal connection for the purpose
of a prima facie FMLA retaliation case when his employer “terminated [him] less
than two weeks after his last day of approved FMLA leave”).
issue in a published decision. Unpublished opinions go both ways. See
Penaloza v. Target Corp., 549 F. App’x 844, 848 (11th Cir. 2013) (measuring
temporal proximity, for purposes of an FMLA retaliation claim, as “the time
period between [the plaintiff’s] request for leave and her termination”). But
see Diamond v. Hospice of Florida Keys, Inc., No. 15-15716, 2017 WL 382310,
at *7 (11th Cir. Jan. 27, 2017) (holding that the plaintiff, who took FMLA
leave for about 13 days between March 21 and April 21, 2014 established an
inference of causation for purposes of an FMLA retaliation claim when “two
weeks after April 21, on May 5, she was fired”); see also Lamar v. Pilgrim’s
Pride Corp., No. 3:13-CV-1101-J-34JBT, 2015 WL 5440342, at *11 (M.D. Fla.
Sept. 15, 2015), appeal dismissed, No. 15-14598 (11th Cir. Mar. 31,
2016) (holding that the plaintiff, who took FMLA leave from April 12 to 15,
2013, and again on May 2, 2013, established a causal connection for the purpose
of a prima facie FMLA retaliation case when his employer “terminated [him] less
than two weeks after his last day of approved FMLA leave”).
The time is therefore ripe to
clarify the law on this issue. We now hold that temporal proximity, for the
purpose of establishing the causation prong of a prima facie case of FMLA
retaliation, should be measured from the last day of an employee’s FMLA leave
until the adverse employment action at issue occurs. We have previously
indicated that, in the context of an FMLA interference claim, temporal
proximity is measured in this way. See Evans v. Books-A-Million, 762
F.3d 1288, 1297 n.6 (11th Cir. 2014) [25 Fla. L. Weekly Fed. C263a] (noting
that, because a decision to reassign the plaintiff was made almost immediately
upon her return from leave, “[a] reasonable fact finder could conclude that
[the plaintiff’s] reassignment constituted an unlawful act of interference with
her FMLA right to be reinstated to her former position”).
clarify the law on this issue. We now hold that temporal proximity, for the
purpose of establishing the causation prong of a prima facie case of FMLA
retaliation, should be measured from the last day of an employee’s FMLA leave
until the adverse employment action at issue occurs. We have previously
indicated that, in the context of an FMLA interference claim, temporal
proximity is measured in this way. See Evans v. Books-A-Million, 762
F.3d 1288, 1297 n.6 (11th Cir. 2014) [25 Fla. L. Weekly Fed. C263a] (noting
that, because a decision to reassign the plaintiff was made almost immediately
upon her return from leave, “[a] reasonable fact finder could conclude that
[the plaintiff’s] reassignment constituted an unlawful act of interference with
her FMLA right to be reinstated to her former position”).
Policy considerations also support
the conclusion that temporal proximity, for the purpose of establishing the
causation prong of a prima facie case of FMLA retaliation, should be measured
from the last day of an employee’s FMLA leave. To hold otherwise would
undermine the remedial purposes of the FMLA. In other words, measuring temporal
proximity from the date that an employee first began FMLA leave would
disadvantage those employees, such as Jones, who need to take the full 12 weeks
of FMLA leave at one time. Because “[a] three to four month disparity between
the statutorily protected expression and the adverse employment action” is
considered too remote to create in inference of causation, see Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) [21 Fla. L.
Weekly Fed. C168a], these employees would never be able to establish a prima
facie case for FMLA retaliation based on temporal proximity. This outcome is
unacceptable and contradictory to our caselaw, which establishes that the
causation prong of the McDonnell Douglas prima facie test is to be
interpreted broadly and “is satisfied if a plaintiff shows that the protected
activity and adverse action were ‘not wholly unrelated.’ ” See Krutzig v.
Pulte Home Corp., 602 F.3d 1231, 1234 (11th Cir. 2010) [22 Fla. L. Weekly
Fed. C1416a] (quoting Brungart v. BellSouth Telecomms., Inc., 231 F.3d
791, 799 (11th Cir. 2000)).
the conclusion that temporal proximity, for the purpose of establishing the
causation prong of a prima facie case of FMLA retaliation, should be measured
from the last day of an employee’s FMLA leave. To hold otherwise would
undermine the remedial purposes of the FMLA. In other words, measuring temporal
proximity from the date that an employee first began FMLA leave would
disadvantage those employees, such as Jones, who need to take the full 12 weeks
of FMLA leave at one time. Because “[a] three to four month disparity between
the statutorily protected expression and the adverse employment action” is
considered too remote to create in inference of causation, see Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) [21 Fla. L.
Weekly Fed. C168a], these employees would never be able to establish a prima
facie case for FMLA retaliation based on temporal proximity. This outcome is
unacceptable and contradictory to our caselaw, which establishes that the
causation prong of the McDonnell Douglas prima facie test is to be
interpreted broadly and “is satisfied if a plaintiff shows that the protected
activity and adverse action were ‘not wholly unrelated.’ ” See Krutzig v.
Pulte Home Corp., 602 F.3d 1231, 1234 (11th Cir. 2010) [22 Fla. L. Weekly
Fed. C1416a] (quoting Brungart v. BellSouth Telecomms., Inc., 231 F.3d
791, 799 (11th Cir. 2000)).
Finally, we often look outside our
circuit for guidance in crafting new precedent. But neither party has cited,
and our research does not reveal, any consensus in this area of the law. Few of
our sister circuits have even addressed the precise point from which temporal
proximity, for the purpose of establishing the causation prong of a prima facie
case of FMLA retaliation, should be measured. Moreover, those appellate courts
that have directly addressed this issue have reached differing conclusions. See,
e.g., Judge v. Landscape Forms, Inc., 592 F. App’x 403, 410 (6th
Cir. 2014) (“[W]e have measured temporal proximity from the date FMLA leave
expired, not just when the employee first requested it, for the purposes of
measuring temporal proximity.”); Amsel v. Texas Water Dev. Bd., 464 F.
App’x 395, 401-02 (5th Cir. 2012) (measuring temporal proximity, for the
purpose of establishing the causation prong of a prima facie case of FMLA
retaliation, from an employee’s return from FMLA leave). But see Sisk v.
Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012) (holding that “this
court looks to the date an employer knew of an employee’s use (or planned use)
of FMLA leave, not the date it ended” for the purpose of determining prima
facie causation in an FMLA retaliation case). These conflicting decisions
primarily reinforce the need for clarification on this issue.
circuit for guidance in crafting new precedent. But neither party has cited,
and our research does not reveal, any consensus in this area of the law. Few of
our sister circuits have even addressed the precise point from which temporal
proximity, for the purpose of establishing the causation prong of a prima facie
case of FMLA retaliation, should be measured. Moreover, those appellate courts
that have directly addressed this issue have reached differing conclusions. See,
e.g., Judge v. Landscape Forms, Inc., 592 F. App’x 403, 410 (6th
Cir. 2014) (“[W]e have measured temporal proximity from the date FMLA leave
expired, not just when the employee first requested it, for the purposes of
measuring temporal proximity.”); Amsel v. Texas Water Dev. Bd., 464 F.
App’x 395, 401-02 (5th Cir. 2012) (measuring temporal proximity, for the
purpose of establishing the causation prong of a prima facie case of FMLA
retaliation, from an employee’s return from FMLA leave). But see Sisk v.
Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012) (holding that “this
court looks to the date an employer knew of an employee’s use (or planned use)
of FMLA leave, not the date it ended” for the purpose of determining prima
facie causation in an FMLA retaliation case). These conflicting decisions
primarily reinforce the need for clarification on this issue.
Despite the lack of consensus, we
believe that both the caselaw within our circuit and fundamental policy
concerns favor the proposition that temporal proximity, for the purpose of
establishing the causation prong of a prima facie case of FMLA retaliation,
should be measured from the last day of an employee’s FMLA leave. Based on this
understanding of temporal proximity, Jones has met his burden of raising a
genuine dispute as to whether his taking of FMLA leave and his termination were
casually related.
believe that both the caselaw within our circuit and fundamental policy
concerns favor the proposition that temporal proximity, for the purpose of
establishing the causation prong of a prima facie case of FMLA retaliation,
should be measured from the last day of an employee’s FMLA leave. Based on this
understanding of temporal proximity, Jones has met his burden of raising a
genuine dispute as to whether his taking of FMLA leave and his termination were
casually related.
Additional evidence, moreover,
corroborates our conclusion. Jones submits that Daniels’s statements — the
same ones that Jones put forth as direct evidence of retaliation — also
establish a prima facie causal link between his taking of FMLA leave and his
termination. We agree in part. Daniels’s comment that Jones was being suspended
for abusing and misusing FMLA leave is not evidence of retaliation if Daniels
can establish a good-faith basis for believing that Jones indeed abused such
leave. But Daniels’s alleged comment that “corporate was not going to like the
fact that [Jones] was taking FMLA leave during the ‘survey window’ ”
corroborates Jones’s claim that his FMLA leave and his termination were not
“wholly unrelated.” See Krutzig, 602 F.3d at 1234; see also Diamond
v. Hospice of Florida Keys, Inc., No. 15-15716, 2017 WL 382310, at *7 (11th
Cir. Jan. 27, 2017) (holding that the causation prong for the purpose of a
prima facie FMLA retaliation claim was satisfied when the plaintiff was fired
less than two weeks after her last day of FMLA leave and the “evidence of
temporal proximity [was] strongly corroborated” by her supervisor’s negative
comments regarding her FMLA leave). Jones has therefore raised a genuine
dispute of material fact with respect to the causation prong of a prima facie
case for FMLA retaliation.
corroborates our conclusion. Jones submits that Daniels’s statements — the
same ones that Jones put forth as direct evidence of retaliation — also
establish a prima facie causal link between his taking of FMLA leave and his
termination. We agree in part. Daniels’s comment that Jones was being suspended
for abusing and misusing FMLA leave is not evidence of retaliation if Daniels
can establish a good-faith basis for believing that Jones indeed abused such
leave. But Daniels’s alleged comment that “corporate was not going to like the
fact that [Jones] was taking FMLA leave during the ‘survey window’ ”
corroborates Jones’s claim that his FMLA leave and his termination were not
“wholly unrelated.” See Krutzig, 602 F.3d at 1234; see also Diamond
v. Hospice of Florida Keys, Inc., No. 15-15716, 2017 WL 382310, at *7 (11th
Cir. Jan. 27, 2017) (holding that the causation prong for the purpose of a
prima facie FMLA retaliation claim was satisfied when the plaintiff was fired
less than two weeks after her last day of FMLA leave and the “evidence of
temporal proximity [was] strongly corroborated” by her supervisor’s negative
comments regarding her FMLA leave). Jones has therefore raised a genuine
dispute of material fact with respect to the causation prong of a prima facie
case for FMLA retaliation.
Because the district court held that
Jones had not established a prima facie case of retaliation, it did not
complete the analysis under the burden-shifting McDonnell Douglas framework.
The court, in other words, did not address Accentia’s alleged legitimate,
nondiscriminatory reasons for firing Jones nor did it determine whether those
reasons were pretextual. Although a remand to the district court for the
consideration of these issues would normally be appropriate, such a remand is
not necessary where the record is “sufficiently developed for us to decide” the
issue. See Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1236 n. 5
(11th Cir. 2004) [17 Fla. L. Weekly Fed. C947b]. And because the record in this
case so clearly demonstrates that there is a genuine dispute of material fact
as to whether Accentia’s proffered reasons for Jones’s termination were
pretextual, “a remand here would be a waste of time and judicial resources.” See
id. We therefore move forward with the remaining steps of the McDonnell
Douglas analysis.
Jones had not established a prima facie case of retaliation, it did not
complete the analysis under the burden-shifting McDonnell Douglas framework.
The court, in other words, did not address Accentia’s alleged legitimate,
nondiscriminatory reasons for firing Jones nor did it determine whether those
reasons were pretextual. Although a remand to the district court for the
consideration of these issues would normally be appropriate, such a remand is
not necessary where the record is “sufficiently developed for us to decide” the
issue. See Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1236 n. 5
(11th Cir. 2004) [17 Fla. L. Weekly Fed. C947b]. And because the record in this
case so clearly demonstrates that there is a genuine dispute of material fact
as to whether Accentia’s proffered reasons for Jones’s termination were
pretextual, “a remand here would be a waste of time and judicial resources.” See
id. We therefore move forward with the remaining steps of the McDonnell
Douglas analysis.
Accentia has met its burden to
produce legitimate, nondiscriminatory reasons for Jones’s termination. See
Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc)
(“[T]he employer’s burden is merely one of production; it need not persuade the
court that it was actually motivated by the proffered reasons. It is sufficient
if the defendant’s evidence raises a genuine issue of fact as to whether it
discriminated against the plaintiff.” (quoting Combs v. Plantation Patterns,
106 F.3d 1519, 1528 (11th Cir. 1997)). Accentia contends that Jones was fired
because he (1) posted photos from his outings in violation of the company’s
social-media policies, and (2) displayed poor judgment as a supervisor in
posting these photos, even if this activity did not violate the company’s
social-media policies. Jones argues, however, that these proffered reasons are
pretextual, and that he was really fired in retaliation for the exercise of his
FMLA rights. Specifically, Jones argues that there is no evidence that he
violated Accentia’s leave policies or its social-media policies. He further
argues that Accentia’s proffered reasons for his termination are inconsistent
and implausible.
produce legitimate, nondiscriminatory reasons for Jones’s termination. See
Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc)
(“[T]he employer’s burden is merely one of production; it need not persuade the
court that it was actually motivated by the proffered reasons. It is sufficient
if the defendant’s evidence raises a genuine issue of fact as to whether it
discriminated against the plaintiff.” (quoting Combs v. Plantation Patterns,
106 F.3d 1519, 1528 (11th Cir. 1997)). Accentia contends that Jones was fired
because he (1) posted photos from his outings in violation of the company’s
social-media policies, and (2) displayed poor judgment as a supervisor in
posting these photos, even if this activity did not violate the company’s
social-media policies. Jones argues, however, that these proffered reasons are
pretextual, and that he was really fired in retaliation for the exercise of his
FMLA rights. Specifically, Jones argues that there is no evidence that he
violated Accentia’s leave policies or its social-media policies. He further
argues that Accentia’s proffered reasons for his termination are inconsistent
and implausible.
To show pretext, Jones must “come
forward with evidence, including the previously produced evidence establishing
the prima facie case, sufficient to permit a reasonable factfinder to conclude
that the reasons given by the employer were not the real reasons for the
adverse employment decision.” Chapman, 229 F.3d at 1024 (quoting Combs,
106 F.3d at 1528). But Jones cannot show that Accentia’s proffered reasons for
terminating him were pretextual simply by “quarreling with the wisdom” of those
reasons. See Brooks v. Cty. Comm’n of Jefferson Cty., 446 F.3d 1160,
1163 (11th Cir. 2006) [19 Fla. L. Weekly Fed. C461a] (quoting Chapman,
229 F.3d at 1030). He may, however, establish pretext by demonstrating “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.” See Combs, 106 F.3d at
1538 (quoting Sheridan v. E.I. DuPont De Nemours & Co., 100 F.3d
1061, 1072 (3d Cir. 1996) (en banc)).
forward with evidence, including the previously produced evidence establishing
the prima facie case, sufficient to permit a reasonable factfinder to conclude
that the reasons given by the employer were not the real reasons for the
adverse employment decision.” Chapman, 229 F.3d at 1024 (quoting Combs,
106 F.3d at 1528). But Jones cannot show that Accentia’s proffered reasons for
terminating him were pretextual simply by “quarreling with the wisdom” of those
reasons. See Brooks v. Cty. Comm’n of Jefferson Cty., 446 F.3d 1160,
1163 (11th Cir. 2006) [19 Fla. L. Weekly Fed. C461a] (quoting Chapman,
229 F.3d at 1030). He may, however, establish pretext by demonstrating “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.” See Combs, 106 F.3d at
1538 (quoting Sheridan v. E.I. DuPont De Nemours & Co., 100 F.3d
1061, 1072 (3d Cir. 1996) (en banc)).
Jones has put forth sufficient
evidence to create a genuine dispute of material fact as to whether Accentia’s
reasons for terminating him were inconsistent and therefore pretextual. The
formal letter sent to Jones from Accentia, terminating his employment, stated
only that “As you have declined to provide any additional information, the
decision has been made to terminate your employment effective immediately based
on the information available.” According to Jones, the only explanation
provided to him at the time that he was suspended and then terminated was that
he was being fired for abusing and misusing FMLA leave by engaging in
activities, posted on his Facebook page, that demonstrated his ability to have
earlier returned to work.
evidence to create a genuine dispute of material fact as to whether Accentia’s
reasons for terminating him were inconsistent and therefore pretextual. The
formal letter sent to Jones from Accentia, terminating his employment, stated
only that “As you have declined to provide any additional information, the
decision has been made to terminate your employment effective immediately based
on the information available.” According to Jones, the only explanation
provided to him at the time that he was suspended and then terminated was that
he was being fired for abusing and misusing FMLA leave by engaging in
activities, posted on his Facebook page, that demonstrated his ability to have
earlier returned to work.
Jones was not told when he was
fired, however, that he had violated Accentia’s social-media policy or that his
posts on Facebook indicated poor managerial judgment. And, during his
deposition testimony, Daniels cited a myriad of additional reasons that
purportedly influenced his decision to terminate Jones, including Daniels’s view
that Jones unnecessarily prolonged his recovery and went on vacation when he
should have been recuperating from his surgery.
fired, however, that he had violated Accentia’s social-media policy or that his
posts on Facebook indicated poor managerial judgment. And, during his
deposition testimony, Daniels cited a myriad of additional reasons that
purportedly influenced his decision to terminate Jones, including Daniels’s view
that Jones unnecessarily prolonged his recovery and went on vacation when he
should have been recuperating from his surgery.
Daniels could point to no company
policy requiring Accentia employees to remain at home or refrain from traveling
while on medical leave. Instead, Daniels maintained that Jones violated the
“spirit” of medical leave — to rehabilitate and recover. Daniels also remarked
that the posted photos indicated that Jones did not receive therapy for a week
and that he was exceeding his medical restrictions. But a letter from Jones’s
physical therapist stated that Jones was a model patient who never missed a
therapy session. Daniels also acknowledged that, before terminating Jones, he
was aware that Jones had never missed any therapy sessions. The evidence
supporting Daniel’s claim that Jones abused medical leave by going on vacation
is therefore murky at best. In fact, a jury could reasonably conclude that
Daniel’s explanations are inconsistent, contradictory, and implausible.
policy requiring Accentia employees to remain at home or refrain from traveling
while on medical leave. Instead, Daniels maintained that Jones violated the
“spirit” of medical leave — to rehabilitate and recover. Daniels also remarked
that the posted photos indicated that Jones did not receive therapy for a week
and that he was exceeding his medical restrictions. But a letter from Jones’s
physical therapist stated that Jones was a model patient who never missed a
therapy session. Daniels also acknowledged that, before terminating Jones, he
was aware that Jones had never missed any therapy sessions. The evidence
supporting Daniel’s claim that Jones abused medical leave by going on vacation
is therefore murky at best. In fact, a jury could reasonably conclude that
Daniel’s explanations are inconsistent, contradictory, and implausible.
On appeal, Accentia also argues that
Jones was terminated for posting photos on Facebook that violated the company’s
social-media policy, which states that employees can be terminated if their
social-media posts have an adverse effect on coworkers. Daniels claimed that
these posts had an adverse effect on Accentia employees because the photos were
anonymously reported and because he heard gossip regarding the photos
circulating throughout the workplace. Accentia maintains that these photos
therefore created a morale issue among employees.
Jones was terminated for posting photos on Facebook that violated the company’s
social-media policy, which states that employees can be terminated if their
social-media posts have an adverse effect on coworkers. Daniels claimed that
these posts had an adverse effect on Accentia employees because the photos were
anonymously reported and because he heard gossip regarding the photos
circulating throughout the workplace. Accentia maintains that these photos
therefore created a morale issue among employees.
But Jones was not informed during
his suspension meeting or in his termination letter that he had violated
Accentia’s social-media policy. In addition, Daniels conducted no further
investigation regarding the anonymous complaint, and neither he nor any other
Accentia official could identify any employee who was adversely affected by
Jones’s Facebook posts. Finally, there is evidence that the purpose of
Accentia’s social-media policy, as discussed during managerial training, is to
prevent employees from posting harmful or negative comments about the company’s
staff or facilities. Jones’s Facebook posts were clearly far afield from this
area of concern.
his suspension meeting or in his termination letter that he had violated
Accentia’s social-media policy. In addition, Daniels conducted no further
investigation regarding the anonymous complaint, and neither he nor any other
Accentia official could identify any employee who was adversely affected by
Jones’s Facebook posts. Finally, there is evidence that the purpose of
Accentia’s social-media policy, as discussed during managerial training, is to
prevent employees from posting harmful or negative comments about the company’s
staff or facilities. Jones’s Facebook posts were clearly far afield from this
area of concern.
In sum, the record indicates a
number of inconsistencies and contradictions with respect to Accentia’s
proffered reasons for terminating Jones. “We have recognized that an employer’s
failure to articulate clearly and consistently the reason for an employee’s
discharge may serve as evidence of pretext.” Hurlbert v. St. Mary’s Health
Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006) [19 Fla. L.
Weekly Fed. C299b]. These inconsistencies should also be considered in
conjunction with Daniel’s comment to Jones that corporate would not like the
timing of his FMLA leave, as well as the temporal proximity between his return
to work and his termination. See id. (noting that close temporal
proximity to an employee’s protected FMLA activity and his termination “is
evidence of pretext, though probably insufficient to establish pretext by itself”).
When viewed in the light most favorable to Jones, the totality of the evidence
establishes that there is a genuine dispute of material fact with respect to
whether Accentia’s reasons for terminating Jones were pretextual. The district
court therefore erred in granting Accentia’s motion for summary judgment on
Jones’s FMLA retaliation claim.
number of inconsistencies and contradictions with respect to Accentia’s
proffered reasons for terminating Jones. “We have recognized that an employer’s
failure to articulate clearly and consistently the reason for an employee’s
discharge may serve as evidence of pretext.” Hurlbert v. St. Mary’s Health
Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006) [19 Fla. L.
Weekly Fed. C299b]. These inconsistencies should also be considered in
conjunction with Daniel’s comment to Jones that corporate would not like the
timing of his FMLA leave, as well as the temporal proximity between his return
to work and his termination. See id. (noting that close temporal
proximity to an employee’s protected FMLA activity and his termination “is
evidence of pretext, though probably insufficient to establish pretext by itself”).
When viewed in the light most favorable to Jones, the totality of the evidence
establishes that there is a genuine dispute of material fact with respect to
whether Accentia’s reasons for terminating Jones were pretextual. The district
court therefore erred in granting Accentia’s motion for summary judgment on
Jones’s FMLA retaliation claim.
IV.
CONCLUSION
CONCLUSION
For all of the reasons set forth
above, we AFFIRM the judgment of the court with respect to Jones’s
interference claim, but REVERSE the judgment with respect to his
retaliation claim and REMAND the case for further proceedings consistent
with this opinion.
above, we AFFIRM the judgment of the court with respect to Jones’s
interference claim, but REVERSE the judgment with respect to his
retaliation claim and REMAND the case for further proceedings consistent
with this opinion.
__________________
*Honorable Ronald Lee Gilman, United
States Circuit Judge for the Sixth Circuit, sitting by designation.
States Circuit Judge for the Sixth Circuit, sitting by designation.
* * *