Terrance K. Daugherty v. Mikart, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
.U .S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-13016
DECEMBER 19, 2006
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00384-CV-JOF-1
TERRANCE K. DAUGHERTY,
Plaintiff-Appellant,
versus
MIKART, INC.,
Defendant-Appellee.
______________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 19, 2006)
Before BIRCH, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Terrance Daugherty filed an action against his former employer, Mikart, Inc.
(“Mikart”), pursuant to the Family and Medical Leave Act (“FMLA”), 29 U.S.C.
§ 2615(a)(1), alleging retaliation for his use of medical leave. Daugherty appeals
the district court’s order granting Mikart’s motion for summary judgment on his
FMLA retaliation claim.
We review a district court order granting summary judgment de novo,
viewing all the facts and reasonable inferences in the light most favorable to the
non-moving party. Imaging Bus. Mach. L.L.C. v. BancTec, Inc., 459 F.3d 1186,
1189 (11th Cir. 2006). Summary judgment is only appropriate when the moving
party has demonstrated that there is no genuine issue as to any material fact.
Brooks v. County Comm’n, 446 F.3d 1160, 1162 (11th Cir. 2006). There must be
enough evidence supporting the opposing party’s position that a jury could
reasonably find for that party. Id. A mere “scintilla” of evidence is insufficient.
Id. In the context of summary judgment, the court must look at the record as a
whole, reviewing all of the evidence in the record. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 2110 (2000). We may affirm the
district court’s judgment “on any ground that finds support in the record.” Lucas
v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001).
Where a plaintiff alleges an FMLA retaliation claim without direct evidence
of the employer’s discriminatory intent, we apply the burden shifting framework
established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817 (1973). Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d
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1286, 1297 (11th Cir. 2006). “To establish a prima facie case of retaliation, the
plaintiff must show that: (1) he engaged in statutorily protected activity; (2) he
experienced an adverse employment action; and (3) there is a causal connection
between the protected activity and the adverse action.” Id. “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.” Id. at 1298.
If the plaintiff makes out a prima facie case, then the burden shifts to the
defendant to put forth a legitimate, non-retaliatory, reason for the challenged
action. Id. at 1297. If the defendant puts forth such a reason, the plaintiff must
show that he will be able to demonstrate at trial that the defendant’s stated reason
for the action is pretextual. Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117
F.3d 1278, 1287 (11th Cir. 1997). Pretext is only proven if “it is shown both that
the reason was false, and that discrimination was the real reason behind the
challenged action.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515, 113 S.
Ct. 2742, 2752 (1993). “This evidence must reveal such weaknesses,
implausibilities, inconsistencies, incoherencies or contradictions in the employer’s
proffered legitimate reasons for its actions that a reasonable factfinder could find
them unworthy of credence.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763,
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771 (11th Cir. 2005) (quotation marks omitted). The passage of a short amount of
time between the plaintiff’s request for leave and his termination may not be
sufficient, by itself, to establish pretext. See Hurlbert, 439 F.3d at 1298 (holding
that the passage of less than two weeks between the plaintiff’s request for leave
and his termination was “probably insufficient to establish pretext by itself”). In
addition, an employer may fire an employee based upon erroneous facts, as long as
it is not for a discriminatory reason. See Abel v. Dubberly, 210 F.3d 1334, 1339
n.5 (11th Cir. 2000).
Upon review of the record and consideration of the parties’ briefs, we find
no reversible error. We do not need to decide whether the district court properly
determined that Daugherty did not make out a prima facie case because we find
that Daugherty failed to show that Mikart’s stated reason for terminating him was
pretextual. See Lucas, 257 F.3d at 1256; see also Cuddeback v. Fla. Bd. of Educ.,
381 F.3d 1230, 1236 (11th Cir. 2004) (affirming the grant of summary judgment
despite the district court basing summary judgment upon its mistaken finding that
the plaintiff failed to make out her prima facie case because this Court could
determine, based on the record, that the plaintiff failed to show pretext).
Daugherty claims that Mikart’s stated reason for terminating his employment –
submitting a fraudulent medical certification – was pretextual because: (1) the
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doctor subsequently verified his signature on the medical certification; (2) Mikart
did not raise the issue of the false form until after a dispute arose regarding
Daugherty wearing a mask and continuing to work in the lab; and (3) Mikart’s
Siegfried expressed hostility towards Daugherty because she did not believe he
was really suffering from a medical condition.
Daugherty did not show that Mikart’s stated reason was pretextual. While
the close temporal proximity between Mikart’s termination of Daugherty’s
employment and his application for FMLA leave is evidence of pretext, it may be
insufficient to show pretext by itself. As we noted in Hurlbert, a span of less than
two weeks is not enough. See Hurlbert, 439 F.3d at 1298. This is particularly true
where, as here, the employer has a history of granting FMLA leave without
penalizing its employees, including Daugherty. Therefore, Daugherty needed to
present other evidence supporting his claim that Mikart’s stated reason for
terminating him was pretextual.
The doctor’s verification that it is his signature on the medical certification
does not help Daugherty because Mikart was not questioning whether the signature
was actually the doctor’s, but was questioning whether the doctor had actually
signed the particular form that Daugherty had provided to Mikart or if a copy of
the doctor’s signature had been falsely put on that form. The lines on the form did
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not match up and gave an appearance of having been altered. The first two pages
of the submitted form were original, but the last page, the page that contained the
doctor’s signature, was a copy.
In addition, Mikart’s termination of Daugherty’s employment only after he
returned to work on April 15 and requested more FMLA leave does not undercut
Mikart’s stated reason for the termination. The date that Daugherty returned to
work, April 15, was also the first opportunity that Mikart’s Siegfried had to
question Daugherty about the allegedly falsified document. Therefore, Mikart’s
termination of Daugherty’s employment on April 16, 2003, does not show that
Mikart’s reason for terminating Daugherty was pretextual because Mikart officials
wished to speak with Daugherty and give him a chance to explain the appearance
of the form before terminating him. Furthermore, evidence showed that Mikart
officials attempted to meet with Daugherty prior to his return to work, but
Daugherty failed to show at the scheduled meeting.
There is some evidence that Siegfried displayed hostility towards Daugherty
when he returned to work. However, even if such hostility were present, it does
not indicate that Mikart’s stated reason for terminating Daugherty was pretextual
because the hostility occurred after Daugherty submitted the medical certification
form and Mikart questioned its authenticity. Siegfried’s hostility, therefore, could
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have been caused by her belief that Daugherty had submitted a falsified form. In
any event, Siegfried’s hostility, even when combined with the temporal proximity
between Daugherty’s leave request and firing, is insufficient to allow a reasonable
trier of fact to find that Mikart’s basis for firing him was pretextual.
Therefore, Daugherty failed to show that Mikart’s stated reason for
terminating his employment was pretext because he did not show either that the
reason given was false, or that discrimination was the real reason. See Hicks, 509
U.S. at 515, 113 S. Ct. at 2752. Accordingly, we affirm the district court’s grant of
Mikart’s motion for summary judgment.
AFFIRMED.
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