USCA11 Case: 21-11218 Date Filed: 05/04/2022 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11218
Non-Argument Calendar
____________________
NICOLE RAMOS,
Plaintiff-Appellant,
versus
DELPHI BEHAVIORAL HEALTH GROUP, LLC,
a Florida Limited Liability Company,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cv-62039-JEM
____________________
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2 Opinion of the Court 21-11218
Before JORDAN, NEWSOM, and BLACK, Circuit Judges.
PER CURIAM:
Nicole Ramos appeals following the district court’s entry of
summary judgment in favor of her former employer, Delphi Be-
havioral Health Group (Delphi), in her lawsuit alleging interfer-
ence and retaliation under the Family and Medical Leave Act
(FMLA),
29 U.S.C. §§ 2615(a)(1), 2617(a). She also challenges the
district court’s denial of her motion to strike certain materials sub-
mitted by Delphi before summary judgment was entered. We ad-
dress each argument in turn. After review, 1 we affirm.
I. MOTION TO STRIKE
Ramos asserts the district court erred by finding she did not
have standing to challenge whether a June 25 phone call between
Stanley Laguerre, Isabelle Garcia, and Jackie Ayers was illegally rec-
orded. She also contends the district court erred by finding certain
text messages between Ramos and Laguerre were not derived
from the illegally recorded call because Delphi would not have
known about the text messages without the June 25 recorded call.
1We review a district court’s ruling on a motion to strike for an abuse of dis-
cretion. Evans v. Books-A-Million,
762 F.3d 1288, 1295 (11th Cir. 2014). We
review de novo the entry of summary judgment, “construing all facts and
drawing all reasonable inferences in favor of the nonmoving party.” Jones v.
UPS Ground Freight,
683 F.3d 1283, 1291-92 (11th Cir. 2012).
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21-11218 Opinion of the Court 3
Under the Federal Wiretap Act, it is unlawful for a person to
intentionally intercept any wire, oral, or electronic communica-
tion.
18 U.S.C. § 2511(1)(a). The contents of intercepted commu-
nications, or any evidence subsequently derived, cannot be pre-
sented in any proceeding in any court.
Id. § 2515. However, it is
lawful for an individual to intercept a communication if he is a
party to it. Id. § 2511(2)(d). Section 2518 sets forth how to apply
for authorization to intercept communications and allows an “ag-
grieved person” to move to suppress the contents of an intercepted
communication if it was unlawfully intercepted. See id. § 2518(1),
(10)(a). An aggrieved person is an individual who was a party to
the intercepted communication or against whom the interception
was directed. Id. § 2510(11).
The Florida Wiretap Act closely follows the Federal Wiretap
Act and similarly proscribes intentionally intercepting any wire,
oral, or electronic communication and excludes the use of such in-
terceptions and evidence derived from those interceptions in court.
Fla. Stat. §§ 934.03(1)(a), 934.06. One key difference between the
federal and Florida acts is that, under Florida law, the prior consent
of all parties is required for the recording to be legal.
Id.
§ 934.03(2)(d). Like the federal law, § 934.09 sets forth how to apply
for authorization to intercept communications and allows an “ag-
grieved person” to move to suppress the contents of an intercepted
communication if it was unlawfully intercepted. See id. § 934.09(1),
(10)(a). An aggrieved person is an individual who was a party to
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4 Opinion of the Court 21-11218
the intercepted communication or against whom the interception
was directed. Id. § 934.02(9).
The parties did not cite, and research did not uncover, a civil
case applying the “aggrieved person” standard under
Fla. Stat.
§ 934.09 or
18 U.S.C. § 2518. In In re Cobo, the Florida Supreme
Court held that a grand jury witness was an “aggrieved person,” as
defined by the Florida Wiretap Act and, therefore, could suppress
an illegally intercepted communication “involving him or which
could or might tend to involve him with any offense other than
those specifically authorized under the wiretap statute by”
Fla. Stat.
§ 934.07.
287 So. 2d 43, 46-47 (Fla. 1973). However, the court did
not explain why the witness was an aggrieved person or his rela-
tionship to the communication.
Id. at 46-48. Further, police ob-
tained the wiretap in question in the context of a criminal investi-
gation, and the court justified the witness’s standing by noting that
Fla. Stat. § 934.07 was an exception to the constitutional right to
privacy and was only authorized when investigating the statutorily
enumerated offenses.
Id. at 47-48.
The plaintiff bears the burden of establishing the constitu-
tional requirements of standing: (1) that she suffered an “injury in
fact”; (2) that there is a causal connection between the injury and
the conduct cited; and (3) it is likely that the injury will be redressed
by a favorable decision. Elend v. Basham,
471 F.3d 1199, 1206 (11th
Cir. 2006) (quotation marks omitted). Even if a plaintiff meets
these constitutional requirements, she may lack standing under
several prudential principles, including that she cannot assert the
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21-11218 Opinion of the Court 5
legal interests of third parties. Gladstone Realtors v. Vill. of Bell-
wood,
441 U.S. 91, 100 (1979). However, a party may have “third-
party standing” if she establishes that: (1) she suffered an injury in
fact; (2) she has a close relation to the third party; and (3) there is
some hindrance to the third party’s ability to protect his own inter-
ests. Harris v. Evans,
20 F.3d 1118, 1122 (11th Cir. 1994) (citing
Powers v. Ohio,
499 U.S. 400, 409-12 (1991)).
It is unclear whether the “aggrieved person” requirement
under the Florida and federal wiretap statutes applies to civil cases.
See Fla. Stat. 934.09;
18 U.S.C. § 2518. The parties have not cited,
and research has not uncovered, a case applying this standard in the
civil context. Additionally, the Florida Supreme Court in Cobo did
not address third-party standing and its holding was limited to an
“aggrieved person” in the context of a criminal investigation. See
287 So. 2d at 44-48. Regardless, Ramos did not establish she had
third-party standing to argue Delphi violated Laguerre’s rights in
the June 25 phone call because she failed to allege both a sufficiently
close relationship with Laguerre and a hindrance preventing him
from asserting his legal rights. See Gladstone Realtors,
441 U.S. at
100; Harris,
20 F.3d at 1122.
Moreover, the district court did not clearly err in finding
Delphi did not rely on the June 25 recorded phone call in its motion
for summary judgment, because it only used text messages derived
from a separate, unrecorded call between Laguerre, Garcia, and
Ayers on June 27. See United States v. Delancy,
502 F.3d 1297, 1309
(11th Cir. 2017) (stating when determining whether evidence is
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6 Opinion of the Court 21-11218
excludable as “fruit of the poisonous tree” in the criminal context,
we look to whether the subsequent evidence came about by the
exploitation of the initial illegality or, instead, by means sufficiently
distinguishable to be purged of the primary taint); Wexler v. An-
derson,
452 F.3d 1226, 1230 (11th Cir. 2006) (reviewing for clear
error the district court’s findings of fact). This finding was not
clearly erroneous because Laguerre admitted to sending the rele-
vant text messages after the unrecorded June 27 phone call, Garcia
testified that Laguerre only mentioned his text messages with Ra-
mos during the June 27 call, and the transcript of the recorded June
25 call shows that Ayers and Garcia referenced only unrelated text
messages between Laguerre and Elaine McDonald, not the text
messages involving Ramos. As a result, we are not left with the
definite and firm conviction the district court made a mistake. See
Morrissette-Brown v. Mobile Infirmary Med. Ctr.,
506 F.3d 1317,
1319 (11th Cir. 2007) (stating a factual finding is only clearly erro-
neous when this Court is “left with the definite and firm conviction
that a mistake has been committed”). Accordingly, we affirm the
district court’s denial of Ramos’s motion to strike.
II. FMLA INTERFERENCE
Ramos contends the district court erred by finding she did
not show that Delphi denied her a benefit under the FMLA or the
grounds it gave for her termination were not related to her FMLA
leave.
Under the FMLA, eligible employees are entitled to 12 work
weeks of unpaid leave during any 12-month period for “a serious
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21-11218 Opinion of the Court 7
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). This leave may be taken intermittently.
Id.
§ 2612(b)(1). An employee must be reinstated to the position she
held before she took FMLA leave. Id. § 2614(a).
The FMLA creates two types of claims—interference and re-
taliation. Id. § 2615(a)(1)-(2); O’Connor v. PCA Fam. Health Plan,
Inc.,
200 F.3d 1349, 1352 (11th Cir. 2000). To establish an employer
interfered with her FMLA rights, an employee need only show by
a preponderance of the evidence that she was entitled to a benefit
that was denied by her employer. Krutzig v. Pulte Home Corp.,
602 F.3d 1231, 1235 (11th Cir. 2010). A plaintiff is not denied a ben-
efit under the FMLA when she receives all the leave she requests.
Graham v. State Farm Mut. Ins. Co.,
193 F.3d 1274, 1275 (11th Cir.
1999). Moreover, where an employer did not deny leave time, the
plaintiff cannot establish an FMLA interference claim, even where
she was terminated and prevented from the continued use of such
leave. Munoz v. Selig Enters., Inc.,
981 F.3d 1265, 1275 (11th Cir.
2020).
Even if a plaintiff establishes her FMLA rights were inter-
fered with, those rights are not absolute. Krutzig,
602 F.3d at 1236.
Therefore, while the employer’s motives are irrelevant, it can de-
fend against an interference claim based on an employee’s termi-
nation by showing it fired her for reasons unrelated to FMLA leave.
Batson v. Salvation Army,
897 F.3d 1320, 1331 (11th Cir. 2018). Alt-
hough the employer has the burden of establishing this affirmative
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8 Opinion of the Court 21-11218
defense at trial, the analysis at the summary judge stage is “whether
the evidence, viewed in the light most favorable to the non-moving
party, establishes as a matter of law that the employer would have
terminated the employee regardless of her request for or use of
FMLA leave.”
Id. at 1331 & n.6.
The district court did not err in entering summary judgment
in favor of Delphi on Ramos’s FMLA interference claim because,
by admitting it reinstated her after her FMLA leave and granted all
her future leave requests, she failed to show it had denied her a
benefit under the FMLA. See Krutzig,
602 F.3d at 1235. Thus, she
failed to establish an FMLA interference claim, even though she
was terminated and prevented from the continued use of FMLA
leave. See Munoz, 981 F.3d at 1275.
Delphi also demonstrated it fired Ramos for reasons wholly
unrelated to her FMLA leave. See Batson, 897 F.3d at 1331. The
undisputed evidence showed Delphi cited unprofessional behavior
in Ramos’s termination letter and at her termination meeting. Del-
phi fired two other employees as a result of the same investigation
and for similar misconduct. Although Ramos claims Delphi did not
raise her drug use as a ground for dismissal until this suit, she ad-
mits Delphi has always cited as grounds for termination her inap-
propriate relationship with a subordinate and lying about it during
a formal investigation. Delphi also did not cite known drug use by
Laguerre and McDonald in their termination letters. While Mi-
chael Borkowski testified Ramos’s drug use factored into his deci-
sion to fire her, he stated the primary basis for her termination was
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21-11218 Opinion of the Court 9
her inappropriate relationship with a subordinate and lying about
it during a formal investigation. Ramos also admits to this inappro-
priate relationship, that she lied during the formal investigation,
and that she used drugs. Last, she conceded her job was vital to the
company and it was reasonable to advertise it while she was on
FMLA leave in case she could not return. Given these undisputed
facts, a reasonable jury could not conclude Delphi fired her for us-
ing FMLA leave. Batson, 897 F.3d at 1331 & n.6. Accordingly, we
affirm the grant of summary judgment in this respect.
III. FMLA RETALIATION
Ramos asserts the district court erred by finding she did not
establish a causal link between her FMLA leave and her termina-
tion or raise a genuine dispute on whether Delphi’s legitimate, non-
discriminatory grounds for her firing were pretextual.
To establish an FMLA retaliation claim, an employee must
show her employer intentionally discriminated against her for ex-
ercising a right guaranteed under the FMLA. Strickland v. Water
Works and Sewer Bd. of City of Birmingham,
239 F.3d 1199,
1207 (11th Cir. 2001). Unlike an interference claim, an employee
bringing a retaliation claim faces the increased burden of showing
her employer’s actions “were motivated by an impermissible retal-
iatory or discriminatory animus.”
Id. (quotations omitted).
Without direct evidence of retaliatory intent, an employee
may proffer circumstantial evidence through the application of a
three-step, burden-shifting framework set forth in McDonnell
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10 Opinion of the Court 21-11218
Douglas Corp. v. Green,
411 U.S. 792 (1973).
Id. First, the em-
ployee must establish a prima facie case of FMLA retaliation by
showing: (1) she engaged in a statutorily protected activity; (2) she
suffered a materially adverse decision; and (3) the decision was
causally related to the protected activity.
Id. Close temporal prox-
imity between an employee’s protected conduct and the adverse
action is generally sufficient to create a genuine issue as to whether
there is a causal connection. Hurlbert v. St. Mary’s Health Care
Sys., Inc.,
439 F.3d 1286, 1298 (11th Cir. 2006). However, temporal
proximity, standing alone, cannot establish the causation element
of a prima facie case. Strickland, 239 F.3d at 1207 n.10. Further,
intervening acts or misconduct can sever the causal connection be-
tween a protected act and an adverse action. See Wascura v. City
of S. Mia.,
257 F.3d 1238, 1248 (11th Cir. 2001); Fleming v. Boeing
Co.,
120 F.3d 242, 248 (11th Cir. 1997).
Second, if the employee successfully makes out a prima facie
case of FMLA retaliation, the burden shifts to the employer to ar-
ticulate a legitimate, non-discriminatory reason for the adverse ac-
tion. McDonnell Douglas,
411 U.S. at 802-803. Third, once an em-
ployer articulates a legitimate, non-discriminatory reason, the em-
ployee must show the employer’s proffered reason was pretextual.
Id. at 804. The employee must show the reason was actually false
and that discrimination or retaliation was the real reason behind
the challenged action. Matamoros v. Broward Sheriff’s Off.,
2 F.4th
1329, 1337 (11th Cir. 2021). One way to satisfy this burden is by
showing “such weaknesses, implausibilities, inconsistencies,
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21-11218 Opinion of the Court 11
incoherencies, or contradictions in the employer’s proffered legiti-
mate reasons for its action that a reasonable factfinder could find
them unworthy of credence.”
Id. (quotation marks omitted). At
the summary judgment stage, we must ask “whether the evidence,
viewed in the light most favorable to the non-moving party, estab-
lishes as a matter of law that the employer would have terminated
the employee regardless of her request for or use of FMLA leave.”
Batson, 897 F.3d at 1331.
The district court did not err in entering summary judgment
in favor of Delphi on Ramos’s retaliation claim because she failed
to establish a prima facie case of retaliation. Ramos failed to estab-
lish the causation element of her prima facie retaliation claim by
pointing only to Borkowski’s knowledge of her leave and the tem-
poral proximity between her leave and termination. See Hurlbert,
439 F.3d at 1298. The discovery of her misconduct was an inter-
vening factor that severed the causal link between her FMLA leave
and her termination. See Wascura, 257 F.3d at 1248; Fleming,
120
F.3d at 1298. Ramos also admitted to the misconduct cited by Del-
phi—that she had an inappropriate relationship with her subordi-
nate, lied during a formal investigation, and used drugs. Im-
portantly, Delphi fired two other employees as a result of the same
investigation and for similar misconduct.
Moreover, even if Ramos had presented a prima facie case
of FMLA retaliation, she failed to raise a genuine dispute about
whether Delphi’s legitimate, non-discriminatory reasons were
false, because she admitted they were true. See Matamoros, 2 F.4th
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12 Opinion of the Court 21-11218
at 1337; Batson, 897 F.3d at 1331. Even without this admission, the
evidence she presented did not show pretext. While she argues
Delphi’s failure to cite her drug use in her termination letter or at
her termination meeting demonstrates pretext, Delphi similarly
did not cite known drug use by Laguerre and McDonald in their
termination letters. Even if Ramos thinks Delphi should have cited
her drug use, Delphi can cite any reason that is not unlawful. Jef-
ferson v. Sewon Am., Inc.,
891 F.3d 911, 924 (11th Cir. 2018) (stat-
ing an employer “may fire an employee for a good reason, a bad
reason, a reason based on erroneous fact, or for no reason at all,”
as long as it is not an unlawful reason). Further, Ramos concedes
her position at Delphi was vital and it was reasonable for it to ad-
vertise her position to prepare for the possibility that she would not
return from FMLA leave. Finally, though Borkowski’s draft email
showed he was concerned about Ramos’s ability to continue to
perform in her position, it sought to undergo an “interactive pro-
cess” with her, which was meant to identify and overcome her lim-
itations, consistent with federal laws protecting those with disabil-
ities.
42 U.S.C. § 12116;
29 C.F.R. § 1630.2(o)(3). Accordingly, we
affirm in this respect as well.
AFFIRMED.
