Dr. Nelayda Fonte v. Lee Memorial Health System ( 2021 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13240
Non-Argument Calendar
____________________
DR. NELAYDA FONTE,
an individual,
Plaintiff-Appellant,
versus
LEE MEMORIAL HEALTH SYSTEM,
VENKAT PRASAD,
Dr.,
Defendants-Appellees.
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2 Opinion of the Court 20-13240
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:19-cv-00054-SPC-NPM
____________________
Before JILL PRYOR, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Dr. Nelayda Fonte alleged that her employer, Lee Memorial
Health System, and her supervisor, Dr. Venkat Prasad, fired her in
retaliation for exercising her rights under the Family and Medical
Leave Act (“FMLA”). Lee Memorial Health System maintained
that it fired her because she violated its trauma patient transfer pol-
icy after she had already received a final warning. The district court
dismissed the suit against Prasad for lack of subject matter jurisdic-
tion and granted Lee Memorial Health System summary judg-
ment, concluding that Fonte did not prove that her FMLA leave,
rather than her violation of policy, caused her employer to termi-
nate her. After careful review, we agree and affirm the district
court’s grant of summary judgment to Lee Memorial Health Sys-
tem and dismissal of Prasad.
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20-13240 Opinion of the Court 3
I. BACKGROUND
We write for the parties and recount only the facts necessary
to explain our decision. 1 Fonte worked for Lee Memorial Health
System as a trauma surgeon for over 20 years and held several high-
level positions, including chief of staff. The state of Florida created
Lee Memorial Hospital and Lee Memorial Health System (collec-
tively, “Lee Health”) as a public health care system. Lee Health is
a trauma facility that routinely receives transfers of trauma patients
from other hospitals. Federal and state law require Lee Health to
accept all trauma patient transfers that it has the capacity (i.e., avail-
able beds) and capability (i.e., a trauma department) to treat. Lee
Health had its own internal policy requiring the same.
Fonte was on call the night of March 3, 2018, when a physi-
cian from another hospital called and requested to transfer a
trauma patient to Lee Memorial Hospital and Fonte’s care. She re-
fused the transfer, telling the physician that the surgery was simple
enough that he should be able to do it himself, despite his protes-
tations that he could not. Lee Health’s risk management depart-
ment opened an investigation and, after interviewing Fonte, deter-
mined that she had violated Lee Health’s internal transfer policies.
Lee Health informed the Florida Agency for Health Care
Administration (“AHCA”), which began its own investigation into
1 Because we are reviewing the district court’s order on a motion for summary
judgment, we recount all facts in the light most favorable to Fonte, the non-
moving party. See infra Part II.
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4 Opinion of the Court 20-13240
the potential violation of the federal law, the Emergency Medical
Treatment and Labor Act (“EMTALA”), that requires trauma facil-
ities to accept transfers. AHCA concluded that Lee Health had been
obligated to accept the transfer and that Fonte violated EMTALA
when she refused to do so. AHCA worked with Lee Health to pre-
pare an action plan to ensure that the hospital complied with
EMTALA in the future. The plan included weekly audits of transfer
requests, in-person training for all trauma surgeons, and educa-
tional counseling for Fonte. At the training, Lee Health clarified the
law and its own internal policy, telling Fonte and the other trauma
surgeons that the transferring physician was the one who decided
whether the patient should come to Lee Health; the Lee Health
physician was required to accept the transfer and the transferring
physician’s medical judgment that a transfer was warranted.
Fonte faced other consequences stemming from the March
call. The internal investigation determined that she had committed
gross misconduct: “[c]onduct detrimental to Lee Health[’s] image”
and “conduct which disturbs a patient.” Doc. 38-2 at 23–24. 2 Under
Lee Health’s Corrective Action Process, “[e]mployment is subject
to termination when an employee’s conduct . . . has not improved
after adequate counseling or when the employee commits an of-
fense of gross misconduct which is so serious that progression
through the formal levels of corrective action is not appropriate.”
Id. at 23. Corrective action under this process could take the form
2 “Doc.” numbers refer to district court docket entries.
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of a Final Warning, available in “limited situations where the na-
ture of an employee’s offense may warrant a one-time final warn-
ing instead of termination.” Id. at 22.
In April, Lee Health issued Fonte a Final Warning, her first
disciplinary action in her Lee Health career. The Final Warning
stated, “Should Dr. Fonte persist in these behaviors by repeating
the same or similar offenses her employment will be terminated.”
Id. at 27. When Dr. Venkat Prasad, the hospital’s Chief Medical Of-
ficer, gave Fonte a written copy of the Final Warning, he told her
that she had to accept all transfers into Lee Health’s trauma service,
even if she disagreed with the transferring physician’s medical judg-
ment, or else she would be “immediately terminated.” Id. at 4–5.
But on November 12, Fonte refused another transfer of a
trauma patient. The transferring physician wanted to send the five-
year-old patient to Lee Health—the closest trauma facility—to sta-
bilize him before transferring him again to a pediatric facility that
was significantly farther away. Fonte told the transferring physician
that Lee Health lacked pediatric services and could not treat the
child. Fonte persuaded the transferring physician to transfer the
child directly to the pediatric facility, even though the other physi-
cian was concerned that the child was not stable enough to make
it there. Tragically, the child died of his injuries before any transfer
took place.
Lee Health learned of Fonte’s refusal the next day and began
investigating the incident. The risk management department
reached out to Fonte on November 15 to schedule an interview.
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That evening, Fonte asked a fellow surgeon to recommend
“headhunters”—recruiters who find surgeons temporary assign-
ments. Doc. 38-5 at 40, 88. With the risk management meeting
looming, she thought that “it would probably be a good idea to
know what else is out there.” Id. at 40. At the investigatory inter-
view on November 16, Fonte told risk management that she was
right to refuse the patient transfer because the pediatric facility was
the most appropriate facility for the patient.
On November 18, Fonte sought medical care for anxiety
that she experienced as high blood pressure, chest pressure, and
shortness of breath. She spent the night in the hospital’s intensive
care unit. She notified Lee Health and requested leave under the
FMLA.3 Lee Health granted her leave, and Fonte’s colleagues were
supportive of her taking the time off to recover. She sought psychi-
atric help and was diagnosed with post-traumatic stress disorder,
anxiety, and depression related to a sexual assault that she had suf-
fered at medical school.
The investigation continued while she recovered. Lee
Health concluded that it had had the capacity and capability to treat
the young patient. Thus, Fonte should have accepted the transfer,
and her refusal to do so “constituted a clear violation of Lee
3 The record is unclear as to the exact date Fonte requested FMLA leave. Her
briefs in the district court said November 18; in her deposition, she said No-
vember 20. Like the district court, we use the earlier date because it is more
favorable to her case.
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20-13240 Opinion of the Court 7
Health’s policies and a repeat offense of the very conduct addressed
by her one-time Final Warning,” which had warned her that she
would be terminated if she again refused a transfer like she had
done in March. Doc. 38-2 at 6. On November 19, Prasad and other
administrators held a conference call to discuss the transfer refusal.
A month later, they held another call where they discussed termi-
nating Fonte’s employment.
In late December, Fonte’s personal physician cleared her to
return to work in January but stipulated that, for two months, she
should work shorter shifts. On January 4, Fonte notified Lee Health
and requested the accommodation. An hour later, Lee Health
asked her to meet with Prasad the morning she returned to work.
At that meeting, Prasad thanked Fonte for her years of service and
handed her a letter terminating her employment. The termination
letter stated that she was terminated for “no cause” and provided
her with 13 weeks of severance pay. Doc. 38-5 at 96.
Fonte filed this suit against Lee Health and Prasad, alleging
that they had interfered with her FMLA rights and had terminated
her in retaliation for exercising her FMLA rights. The district court
dismissed Prasad as a defendant, determining that the suit could
not proceed against him because, as a public official, he could not
be held individually liable under the FMLA. Lee Health moved for
summary judgment, which the district court granted because
Fonte failed to argue her interference claim and failed to make out
a prima facie case of retaliation. Fonte now appeals.
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8 Opinion of the Court 20-13240
II. STANDARD OF REVIEW
We review de novo a district court’s order granting a mo-
tion for summary judgment, viewing the facts and all reasonable
inferences drawn therefrom in favor of the nonmoving party. Jones
v. UPS Ground Freight, 683 F.3d 1283, 1291–92 (11th Cir. 2012).
Summary judgment is appropriate when a movant shows that
there is “no genuine dispute as to any material fact,” such that “the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “Once the movant adequately supports its motion, the bur-
den shifts to the nonmoving party to show that specific facts exist
that raise a genuine issue for trial.” Dietz v. Smithkline Beecham
Corp., 598 F.3d 812, 815 (11th Cir. 2010). If the nonmovant’s evi-
dence is “not significantly probative,” summary judgment is appro-
priate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50
(1986). A genuine dispute of a material fact exists only when “the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id. at 248. “The mere existence of a scintilla
of evidence in support of the [nonmovant’s] position will be insuf-
ficient; there must be evidence on which the jury could reasonably
find for the [nonmovant].” Id. at 252.
We review dismissals for lack of subject matter jurisdiction
de novo. Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 891 (11th
Cir. 2013).
III. DISCUSSION
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20-13240 Opinion of the Court 9
The FMLA allows an eligible employee to take up to 12
work weeks of unpaid leave annually to recover from “a serious
health condition that makes the employee unable to perform the
functions” of her position. 29 U.S.C. § 2612(a)(1)(D); Hurlbert v. St.
Mary’s Health Care Sys., 439 F.3d 1286, 1293 (11th Cir. 2006). The
Act creates a private right of action for two types of claims: “inter-
ference claims, in which an employee asserts that his employer de-
nied 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 ac-
tivity protected by the Act.” Strickland v. Water Works & Sewer
Bd., 239 F.3d 1199, 1206 (11th Cir. 2001) (citing 29 U.S.C. § 2615(a)).
Here, we address only Fonte’s retaliation claim. 4 She argues
that the district court erred in granting Lee Health summary judg-
ment on retaliation. She asserts that the district court should have
analyzed her retaliation claim as a mixed-motive claim but instead
analyzed it as a single-motive claim. She also argues that the court
4 The district court briefly addressed Fonte’s interference claim, even though
it concluded that she failed to argue it in her summary judgment briefing. We
agree with the district court’s assessment that the claim was abandoned at
summary judgment. But even if Fonte did not abandon her interference claim
before the district court, she has abandoned it on appeal. In her appellate brief-
ing, she makes passing references to her interference claim but fails to set out
specific arguments supporting it or explaining how the district court erred.
Because these references are “mere background” to her main arguments, she
has abandoned her interference claim. See Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 682 (11th Cir. 2014) (internal quotation marks omitted).
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10 Opinion of the Court 20-13240
erroneously dismissed her claim against Prasad in his individual ca-
pacity. We address these arguments in turn.
A. The Single-Motive Framework Applies.
Fonte contends that the district court erroneously applied a
single-motive framework to her retaliation claim instead of a
mixed-motive framework. We agree with the district court that the
single-motive framework applies for two reasons. First, we have
never held that a plaintiff can bring a mixed-motive claim in an
FMLA retaliation case. Second, Fonte did not plead, prove, or ar-
gue that Lee Health had mixed motives for terminating her. We
start by explaining the difference between the mixed-motive and
single-motive frameworks and then discuss why the mixed-motive
framework does not apply here.
We analyze FMLA retaliation claims based on circumstan-
tial evidence using the framework established in McDonnell Doug-
las Corp. v. Green, 411 U.S. 792 (1973), a Title VII employment
discrimination case. Strickland, 239 F.3d at 1207. So, we look to Ti-
tle VII jurisprudence for direction on the appropriate FMLA analy-
sis. There are two different legal theories available to a plaintiff in
a Title VII case: the single-motive theory and the mixed-motive
theory. See Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1235
(11th Cir. 2016).
A plaintiff who asserts a single-motive discrimination claim
can survive a motion for summary judgment by showing that ille-
gal bias was the only reason for the adverse employment action.
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See 42 U.S.C. § 2000e-2(a); see Quigg, 814 F.3d at 1235. In review-
ing single-motive claims, courts often use the McDonnell Douglas
framework. See, e.g., Chapman v. AI Transp., 229 F.3d 1012, 1024
(11th Cir. 2000). Under the McDonnell Douglas burden-shifting
framework, “the plaintiff must first create an inference of discrimi-
nation through [her] prima facie case.” Vessels v. Atlanta Indep.
Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). “Once the plaintiff has
made out the elements of the prima facie case, the burden shifts to
the employer to articulate a non-discriminatory basis for its em-
ployment action.” Id. If the employer meets this burden, the plain-
tiff has the opportunity to show that the employer’s reasons were
pretextual. Id. at 768.
Alternatively, a plaintiff can assert a mixed-motive discrimi-
nation claim and survive summary judgment by showing that, alt-
hough an employer was motivated by more than one reason to
take a particular action, a discriminatory reason was “a motivating
factor” for the defendant’s adverse employment action. Quigg, 814
F.3d at 1239 (internal quotation marks omitted); see 42 U.S.C.
§ 2000e-2(m). In Quigg, we held that the McDonnell Douglas
framework was “inappropriate for evaluating mixed-motive
claims” at summary judgment. Quigg, 814 F.3d at 1237. McDonnell
Douglas requires a plaintiff to prove that the “true reason” for an
adverse action was discriminatory “by showing the employer’s
purported legitimate reasons never motivated” its employment de-
cision. Id. at 1237–38 (internal quotation marks omitted). Thus, we
reasoned that McDonnell Douglas was incongruent with
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12 Opinion of the Court 20-13240
mixed-motive claims, which allege that an employer was moti-
vated by both non-discriminatory and discriminatory reasons. Id.
at 1238. Though available for Title VII discrimination claims, the
mixed-motive framework does not apply to Title VII retaliation
claims. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360
(2013). We have never held that it applies to FMLA retaliation
claims and decline to do so today.
Even if the mixed-motive framework were appropriate in
the context of an FMLA retaliation claim, Fonte’s claim would fail
because she did not allege a mixed-motive claim before the district
court. She did not plead in her complaint that Lee Health had
mixed motives in terminating her. She did use the phrase “motivat-
ing factor” in passing in her summary judgment briefing, Doc. 44
at 17, 18, 31, but this mere mention was insufficient. To withstand
summary judgment, she needed to submit “evidence sufficient to
convince a jury” that she was terminated for both legitimate and
illegitimate reasons, with the illegitimate reason being a motivat-
ing factor in the termination decision. See Quigg, 814 F.3d at 1239
(internal quotation marks omitted). She only alluded to that possi-
bility, stating that “there could have been a number of factors—
including the FMLA—that led to her termination.” Doc. 44 at 16.
But she did not elaborate on these factors or use them to support a
legal argument.
Instead, her summary judgment brief almost exclusively ar-
gued that Lee Health’s given reasons for terminating her were pre-
textual and illegitimate. Pretext is not relevant to a mixed-motive
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claim. Quigg, 814 F.3d at 1240. Her focus on pretext comported
with the third step of McDonnell Douglas and indicated that she
was advancing a single-motive claim. We agree with the district
court that, under the circumstances of this case, Fonte did not raise
a mixed-motive claim. Thus, the district court correctly analyzed
her claim under the single-motive McDonnell Douglas framework.
On appeal, Fonte argues that the district court should have
applied the mixed-motive framework because Lee Health offered
a legitimate, non-discriminatory reason for terminating her. There-
fore, she needed only to point to “some evidence from which the
factfinder may infer that the protected activity played some part in
the termination decision.” Appellant’s Br. at 20. Not so. If this were
true, every retaliation claim would become a mixed-motive claim
because the employer must always offer a non-retaliatory reason
for its adverse actions. A single-motive claim does not become a
mixed-motive claim simply because an employer satisfies its bur-
den of proof.
We proceed to apply a single-motive framework to Fonte’s
retaliation claim.
B. Fonte’s Retaliation Claim Fails Under the Single-Motive
Framework.
Fonte has not made out a prima facie case of retaliation un-
der McDonnell Douglas, failing to prove that taking FMLA leave
caused Lee Health to terminate her employment. To succeed on
her claim, she was required to demonstrate that Lee Health “inten-
tionally discriminated against [her] in the form of an adverse
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14 Opinion of the Court 20-13240
employment action for having exercised an FMLA right.” Jones v.
Gulf Coast Health Care of Del., LLC, 854 F.3d 1261, 1270 (11th Cir.
2017) (internal quotation marks omitted). Because she presents
only circumstantial evidence, we analyze her claim under the
McDonnell Douglas framework, which first requires the employee
to establish a prima facie case by showing that: (1) she engaged in
statutorily protected activity, (2) she experienced an adverse em-
ployment decision, and (3) the decision was causally related to the
protected activity. Id. at 1271; Hurlbert, 439 F.3d at 1297.
Both parties agree that Fonte satisfies the first two elements
of the prima facie case. She engaged in statutorily protected activity
by requesting and taking FMLA leave, and she experienced an ad-
verse employment action when Lee Health terminated her em-
ployment. The parties dispute whether she satisfied the third ele-
ment, showing that there was a causal connection between her
FMLA leave and her termination, however. We hold that Fonte
failed to show a causal connection. Lee Health contemplated ter-
minating her before she requested FMLA leave, so even the closest
temporal proximity is insufficient to prove causation.
To establish causation, an employee must show that the de-
cisionmaker was aware of the protected conduct, and that “the pro-
tected activity and the adverse actions were not wholly unrelated.”
Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712, 716 (11th
Cir. 2002) (internal quotation marks omitted). Generally, “[c]lose
temporal proximity between protected conduct and an adverse
employment action” is sufficient to show causation. Hurlbert,
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439 F.3d at 1298. But an exception applies when the employer con-
templates taking the adverse employment action before the em-
ployee engages in protected activity. Drago v. Jenne, 453 F.3d 1301,
1308 (11th Cir. 2006). In that situation, temporal proximity be-
tween the adverse action and the protected activity is insufficient
to show causation. Id.Fonte argues that the close temporal proximity between her
exercising her FMLA rights and her termination is sufficient to es-
tablish causation. We disagree. Mere temporal proximity is insuffi-
cient to demonstrate causation because the undisputed evidence in
this case shows that Lee Health contemplated terminating Fonte
before she took FMLA leave. Because Fonte does not offer any ad-
ditional evidence of causation, we conclude that she failed to make
out a prima facie case of FMLA retaliation.
Fonte first refused a transfer from an outside facility in
March, several months before she requested leave. Lee Health’s in-
vestigation determined that “the appropriate discipline for Dr.
Fonte’s gross misconduct was either a final written warning or ter-
mination.” Doc. 38-2 at 4. Lee Health decided not to terminate her
in March because of her “years of service” and its belief that she
“would correct her behavior and not commit a similar violation in
the future.” Id. To this end, it provided her with group training and
individual counseling to help her avoid running afoul of its transfer
policy a second time. Both Prasad and the Final Warning, issued in
April warned her that she would be terminated if she did. Thus, the
undisputed evidence shows that Lee Health contemplated
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16 Opinion of the Court 20-13240
terminating Fonte’s employment in March and April, well before
she requested FMLA leave in November.
When Fonte refused another transfer in November, she vi-
olated the terms of the Final Warning by committing the same
gross misconduct she had been counseled to avoid. She was subject
to termination then—the Final Warning was a “one-time only
lesser discipline.” Id. at 6. Fonte already knew that Lee Health had
come close to firing her because of the March call. When Lee
Health scheduled an interview with Fonte to investigate the No-
vember call, she texted a friend to ask about potentially finding
other employment with “headhunters” because “[she]’d be dumb
not to be concerned” about her job. Doc. 38-5 at 40.
Fonte requested FMLA leave on November 18, knowing
that she was on thin ice. On November 19, Prasad and other Lee
Health administrators held a conference call to discuss the investi-
gation into her transfer refusal. At another conference call in De-
cember, the same administrators discussed Fonte’s “termination
based on her actions while she was on a final warning.” Doc. 44-7
at 4. In early January, Fonte returned to work, starting her day with
a meeting with Prasad. There, Prasad terminated her employment.
Fonte was fired the day after her FMLA leave ended, before she
had a chance to resume working.
For causation purposes we measure temporal proximity
“from the last day of an employee’s FMLA leave until the adverse
employment action at issue occurs.” Gulf Coast, 854 F.3d at 1272.
Measuring the scant hours between the last day of her FMLA leave
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and her termination shows us “very close” temporal proximity
that, usually, is sufficient on its own to establish causation. Thomas
v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). But
Fonte’s case falls under an exception to this rule. Given the undis-
puted evidence that her termination was under way before she in-
voked her right to FMLA leave, under our precedent the close tem-
poral proximity between the end of her leave and her termination
“does not suffice to show causation.” Drago, 453 F.3d at 1308. Lee
Health contemplated terminating Fonte in March because of her
first refusal. It was in the process of investigating her November
refusal when she requested FMLA leave. That investigation led to
her termination.
In terminating Fonte, Lee Health “proceed[ed] along lines
previously contemplated, though not yet definitively determined.”
See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001).
Thus, the temporal proximity between her return from leave and
her termination is “no evidence whatever of causality.” See id.; see
also Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1270 (11th Cir.
2010) (“[A]nti-retaliation provisions do not allow employees who
are already on thin ice to insulate themselves against termination
or discipline by preemptively making a discrimination com-
plaint.”). Because Lee Health considered terminating her in
March—before she engaged in protected activity—even the very
close temporal proximity between her FMLA leave and her termi-
nation is insufficient to show causation. See Drago, 453 F.3d at
1308.
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18 Opinion of the Court 20-13240
Fonte offered no other evidence that she was terminated be-
cause she exercised her FMLA rights. In her deposition, Fonte con-
ceded that no one told her that she was being terminated because
of her FMLA leave, or even mentioned the leave in relation to her
termination. Rather, according to Fonte, no one at Lee Health said
anything negative about her FMLA leave request—not the office
manager, not the trauma director, and not Prasad. Nor did anyone
try to talk her out of taking FMLA leave. Fonte presented no evi-
dence showing that Lee Health administrators discussed her FMLA
leave at either conference call. And she presented no evidence that
contradicted Prasad’s sworn statement that her FMLA leave “was
not a factor in the decision” to terminate her employment. Doc.
38-2 at 6. Instead, the evidence supports Lee Health’s contention
that it terminated Fonte because she twice violated its internal
transfer policy. Fonte has not met her burden of raising a genuine
issue of material fact as to whether her taking of FMLA leave and
her termination are causally related. See Gulf Coast, 854 F.3d at
1271. 5
5 Fonte also argues that the district court should have evaluated her retaliation
claim under the “convincing mosaic” framework set out in Smith v. Lockheed-
Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). Although we have used
this framework in Title VII discrimination cases, see, e.g., Chapter 7 Trustee
v. Gate Gourmet, 683 F.3d 1249, 1254–56 (11th Cir. 2012), we have not yet
applied it in the FMLA retaliation context. Under the convincing-mosaic
framework, “[a] triable issue of fact exists if the record, viewed in a light most
favorable to the plaintiff, presents a convincing mosaic of circumstantial evi-
dence that would allow a jury to infer intentional discrimination by the
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Because we hold that she has not established a prima facie
case of retaliation, we do not proceed to the next steps of the bur-
den-shifting McDonnell Douglas framework. We affirm the judg-
ment in favor of Lee Health.
C. The Suit Against Prasad Was Properly Dismissed.
Fonte argues that the district court erred when it dismissed
her suit against Prasad in his individual capacity as her employer.
She acknowledges that dismissal is the result required under our
precedent in Wascura v. Carver, 169 F.3d 683 (11th Cir. 1999), but
urges us to overrule that case. As a panel we cannot do so.
Lee Health, organized under Florida state law, is a public
agency; Prasad, an executive in charge of the public agency, is a
public official. The parties agree on those facts. They also agree that
Wascura applies here. In Wascura, we applied our reasoning from
a Fair Labor Standards Act case to the FMLA context and held that
“a public official sued in his individual capacity is not an ‘employer’
subject to individual liability” under the FMLA. Wascura, 169 F.3d
at 686. Fonte cites our sister circuits’ decisions that reach the oppo-
site result, but our prior panel precedent rule prevents us from
decisionmaker.” Smith, 644 F.3d at 1328 (footnote and internal quotation
marks omitted). An inference of discriminatory intent—in this context, retali-
atory intent—includes an inference of causation. Because Fonte has failed to
raise an inference of causation, she could not present a convincing mosaic of
circumstantial evidence, even if this path were open to her.
USCA11 Case: 20-13240 Date Filed: 11/18/2021 Page: 20 of 20
20 Opinion of the Court 20-13240
overruling Wascura. United States v. Steele, 147 F.3d 1316, 1317–
18 (11th Cir. 1998) (en banc). “We are bound to follow a prior panel
or en banc holding, except where that holding has been overruled
or undermined to the point of abrogation by a subsequent en banc
or Supreme Court decision.” Chambers v. Thompson, 150 F.3d
1324, 1326 (11th Cir. 1998). Fonte’s claim against Prasad was
squarely within Wascura’s holding; thus, we conclude that the dis-
trict court properly dismissed him as a defendant for lack of subject
matter jurisdiction.
IV. CONCLUSION
For the foregoing reasons, we affirm.
AFFIRMED.