USCA11 Case: 21-11267 Date Filed: 10/17/2022 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11267
Non-Argument Calendar
____________________
RYAN WALKER,
Plaintiff-Appellant,
versus
UNITED PARCEL SERVICE, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:18-cv-62713-RKA
____________________
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2 Opinion of the Court 21-11267
Before JORDAN, BRASHER, and MARCUS, Circuit Judges.
PER CURIAM:
Ryan Walker appeals the district court’s order granting sum-
mary judgment to United Parcel Service, Inc. (“UPS”) on his inter-
ference and retaliation claims arising under the Family Medical
Leave Act (“FMLA”),
29 U.S.C. § 2601, et seq. On appeal, Walker
argues that: (1) the district court erred when it granted UPS’s mo-
tion for summary judgment on his FMLA interference claim be-
cause he established a prima facie case of FMLA interference; and
(2) the district court erred when it granted UPS’s motion for sum-
mary judgment on his FMLA retaliation claim because he estab-
lished that UPS’s proffered reason for terminating him was pretext,
and there was a close temporal proximity between his request for
FMLA leave and his termination. After careful review, we affirm.
I.
We review a district court’s order granting summary judg-
ment de novo, “viewing all the evidence, and drawing all reasona-
ble inferences, in favor of the non-moving party.” Vessels v. At-
lanta Indep. Sch. Sys.,
408 F.3d 763, 767 (11th Cir. 2005). Summary
judgment is proper if there are no genuine issues of material fact,
and the moving party is entitled to judgment as a matter of law.
Id.
However, a claim or argument that has not been briefed be-
fore us is considered abandoned, and we will not address its merits.
See Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1330 (11th
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21-11267 Opinion of the Court 3
Cir. 2004); see also United States v. Campbell,
26 F.4th 860, 873
(11th Cir. 2022) (en banc) (holding that issues not raised in an initial
brief are deemed forfeited and will not be addressed absent extraor-
dinary circumstances). An appellant also abandons a claim when
he fails to devote a discrete section of his argument to that claim,
like when he makes a passing reference to a district court holding
without advancing any arguments or citing any authority to estab-
lish that the finding was in error. Sapuppo v. Allstate Floridian Ins.
Co.,
739 F.3d 678, 681 (11th Cir. 2014). “To obtain reversal of a
district court judgment that is based on multiple, independent
grounds, an appellant must convince us that every stated ground
for the judgment against him is incorrect.”
Id. at 680. If he “fails
to challenge properly on appeal one of the grounds on which the
district court based its judgment, he is deemed to have abandoned
any challenge of that ground, and it follows that the judgment is
due to be affirmed.”
Id. Further, arguments that are “raised for
the first time in a reply brief are not properly before a reviewing
court.” Herring v. Sec., Dep’t of Corr.,
397 F.3d 1338, 1342 (11th
Cir. 2005) (quotations omitted).
II.
First, we are unpersuaded by Walker’s argument that the
district court erred in granting summary judgment to UPS on his
FMLA interference claim. Under the FMLA, an eligible employee
is entitled to take up to 12 weeks of “leave during any 12-month
period . . . [b]ecause of a serious health condition that makes the
employee unable to perform the functions of the position.” 29
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4 Opinion of the Court 21-
11267
U.S.C. § 2612(a)(1)(D) (emphasis added). A “serious health condi-
tion” means “an illness, injury, impairment, or physical or mental
condition that involves (A) inpatient care in a hospital, hospice, or
residential medical care facility; or (B) continuing treatment by a
health care provider.”
Id. § 2611(11); see also
29 C.F.R.
§ 825.113(a).
The FMLA creates two types of claims -- interference claims
and retaliation claims.
29 U.S.C. § 2615(a)(1)–(2); O’Connor v.
PCA Family Health Plan, Inc.,
200 F.3d 1349, 1352 (11th Cir. 2000).
To establish a prima facie FMLA interference claim, an employee
must show, inter alia, that he was entitled to a benefit under the
FMLA that was denied. See
29 U.S.C. § 2615(a)(1); Drago v. Jenne,
453 F.3d 1301, 1306 (11th Cir. 2006). Whether the employer in-
tended to deny the benefit is irrelevant. Krutzig v. Pulte Home
Corp.,
602 F.3d 1231, 1235 (11th Cir. 2010). For an employer to be
held liable for FMLA interference, the request for leave must have
been the proximate cause of the termination. Schaaf v. Smithkline
Beecham Corp.,
602 F.3d 1236, 1242 (11th Cir. 2010).
“Once an employee gives sufficient notice to [his] employer
that potentially FMLA-qualifying leave is needed, the employer
must then ascertain whether the employee’s absence actually qual-
ifies for FMLA protection.” Cruz v. Publix Super Mkts., Inc.,
428 F.3d 1379, 1383 (11th Cir. 2005). Absent unusual circum-
stances, an employee must also comply with an employer’s “usual
and customary notice and procedural requirements for requesting
leave.”
29 C.F.R. §§ 825.302(d), 825.303(c). An employer may
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21-11267 Opinion of the Court 5
require an employee to support his leave through a certification
issued by his health care provider if the employee is “unable to per-
form one or more of the essential functions of the employee’s po-
sition.”
29 C.F.R. § 825.305(a). The medical certification must in-
clude, in relevant part:
(1) The name, address, telephone number, and fax
number of the health care provider and type of med-
ical practice/specialization;
(2) The approximate date on which the serious health
condition commenced, and its probable duration;
(3) A statement or description of appropriate medical
facts regarding the patient’s health condition for
which FMLA leave is requested. The medical facts
must be sufficient to support the need for leave. Such
medical facts may include information on symptoms,
diagnosis, hospitalization, doctor visits, whether
medication has been prescribed, any referrals for eval-
uation or treatment (physical therapy, for example),
or any other regimen of continuing treatment;
(4) If the employee is the patient, information suffi-
cient to establish that the employee cannot perform
the essential functions of the employee’s job as well
as the nature of any other work restrictions, and the
likely duration of such inability . . . .
Id. § 825.306(a). If the employee does not provide a complete and
sufficient certification or any certification, the “employer may deny
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6 Opinion of the Court 21-11267
the taking of FMLA leave, in accordance with § 825.313.” Id. §
825.305(c), (d). The employee bears the responsibility to furnish a
complete and sufficient certification, or to provide his healthcare
provider with the necessary authorization so that his health care
provider can “release a complete and sufficient certification to the
employer to support the employee’s FMLA request.” Id.
§ 825.305(d). Importantly, if “the employee never produces the
certification, the leave is not FMLA leave.” Id. § 825.313(b).
On appeal, Walker is not entitled to relief as to his FMLA
interference claim because he has not sufficiently challenged each
of the district court’s independent grounds for granting summary
judgment on this claim. The district court concluded that sum-
mary judgment was warranted because: (1) Walker did not submit
the required certification documentation to UPS or its third-party
benefits administrator (Aetna Life Insurance Company); and (2)
even if he had submitted the appropriate FMLA certifications, he
still failed to show prejudice. In determining that Walker had not
submitted proper FMLA documentation, the district court ex-
plained that the one-page document he offered from Holy Cross
Orthopedic Institute “did not list a date of onset, did not include
any information about the nature of his illness, and noted only that
Walker could not perform heavy lifting, carrying, pushing, [or]
pulling until December 6, 2016,” which was insufficient. It also ex-
plained that the submissions from physician assistant Jamie Rubin
and Dr. Alan Gregg failed to state “(1) that Walker could not work;
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21-11267 Opinion of the Court 7
(2) the date on which Walker became incapacitated; or (3) the date
on which Walker could return to work,” and were thus insufficient.
Notably, Walker’s initial brief does not address these defi-
ciencies raised by the district court, nor does it otherwise properly
challenge the court’s finding that his documentation failed to sat-
isfy the FMLA’s certification requirements. Accordingly, we affirm
the dismissal of his FLMA interference claim on that ground, with-
out reaching the remaining arguments made by the parties as to
this claim. See Sapuppo, 739 F.3d at 681.
III.
We also are unconvinced by Walker’s argument that the dis-
trict court erred when it granted summary judgment to UPS on his
FMLA retaliation claim. Absent direct evidence of the defendant’s
intent, courts evaluate FMLA retaliation claims under the McDon-
nell Douglas1 burden-shifting framework. Schaaf,
602 F.3d at 1243.
To establish a prima facie case of FMLA retaliation, the plaintiff
must show that: (1) he engaged in statutorily protected conduct;
(2) he suffered a materially adverse action; and (3) the adverse ac-
tion was causally related to the protected conduct.
Id.
When an employee requests time off or provides notice to
his employer of his need to take time off for a serious health condi-
tion, he engages in statutorily protected activity under the FMLA.
Cruz,
428 F.3d at 1383–84. If an employee cannot show he has a
1 McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
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8 Opinion of the Court 21-11267
“serious health condition,” his action of requesting time off for that
condition is not an FMLA-protected activity. See Cash v. Smith,
231 F.3d 1301, 1307 (11th Cir. 2000) (holding that, when an em-
ployee did not provide her employer with certification that her
medical condition met the statutory standard, the medical leave
she took for that condition “was not under the auspices of the
FMLA”).
Once the plaintiff establishes a prima facie case of retaliation,
the burden shifts to the defendant to articulate a legitimate, non-
retaliatory reason for the adverse action. Bryant v. Jones,
575 F.3d
1281, 1308 (11th Cir. 2009). If the employer proffers legitimate,
non-retaliatory reasons for a materially adverse action, the burden
shifts back to the employee to demonstrate, by a preponderance of
the evidence, that the employer’s reasons are pretextual. Furcron
v. Mail Centers Plus, LLC,
843 F.3d 1295, 1310–11 (11th Cir. 2016).
Here, the district court did not err when it granted summary
judgment to UPS on Walker’s FMLA retaliation claim. Among
other things, the district court found as a matter of law that Walker
did not establish that he engaged in statutorily protected activity --
the first prima facie element of FMLA retaliation -- because he did
not establish that he had a “serious health condition.” See Cash,
231 F.3d at 1307. On appeal, however, Walker has not challenged
the district court’s determination that he had not engaged in an
FMLA-protected activity, so he has abandoned the issue before us.
Access Now, Inc.,
385 F.3d at 1330. Accordingly, we affirm on that
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21-11267 Opinion of the Court 9
basis and need not consider arguments concerning UPS’s proffered
reason for firing him or whether it was pretext. 2
AFFIRMED. 3
2 To the extent Walker seeks to challenge the district court’s denial of his mo-
tion for summary judgment on his “employer-notice” claim, he fails to address
the district court’s finding that he had not plead an employer-notice claim in
his complaint, rendering the claim untimely when he later raised it in his sum-
mary judgment filings. Accordingly, Walker has abandoned any challenge to
the district court’s denial of his motion for summary judgment as to that claim.
See Access Now, Inc.,
385 F.3d at 1330.
3 Finally, Appellant Ryan Walker’s counsel’s motion to withdraw is
GRANTED. The motion to stay the proceedings is DENIED AS MOOT.
