# Chavous v. City of Saint Petersburg

> District Court, M.D. Florida · December 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10109203

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** December 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10109203

## How later opinions describe it (automated extraction)

- noting that the non-movant cannot rest on “mere allegations” of disputes, “but must ‘set forth’ by affidavit or other evidence ‘specific facts” showing there is a dispute for trial (internal citation and quotation omitted)
- reasoning that an “employer is not liable for failing to reinstate the employee after [he] has taken FMLA leave” if the “employer can show that it refused to reinstate an employee for a reason unrelated to FMLA leave”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

MANUEL CHAVOUS,
Plaintiff,

v. Case No: 8:20-cv-1614-KKM-JSS
CITY OF SAINT PETERSBURG,
Defendant.

ORDER
Plaintiff Manuel Chavous filed a Complaint alleging that the City of Saint
Petersburg suspended and terminated him in violation of federal and Florida employment
law. The City moves for summary judgment, arguing that Chavous has failed to establish
the essential elements of his claims and cannot rebut the City’s neutral reason for his

termination. The Court agrees. The City is thus entitled to summary judgment.
I. BACKGROUND!
The City of Saint Petersburg hired Manuel Chavous as an equipment operator in
the Parks and Recreation Department on April 17, 2017. (Doc. 20 at 1.) The City

1 The Court recounts the undisputed facts as contained in the record. To the extent facts are disputed or
capable of multiple inferences, the Court construes the record in favor of the non-movant, Chavous. See
Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1192-93 (11th Cir. 2004).

informed Chavous of the collective bargaining agreement and the rules and regulations for
City employees. (Doc. 17-4 at 1-2, 157.) The agreement requires an employee seeking
medical leave to “notify his immediate supervisor . . . before the scheduled reporting time.”
(Doc. 17-3 at 55.) Unless the Parks Department waives the requirement, the employee is
required to call in “for each day the employee is unable to work.” (Id. at 56.) The same
procedure applies to requests for annual leave. (Id. at 54 (“Requests for annual leave shall
be made in advance of use.”).) The City’s rules and regulations contain these same

requirements. (Doc. 17-4 at 80, 82.) The City’s rules also explain that “[flailure to make a

proper leave request or call-off or failure to properly report a late arrival” is attendance-
related misconduct. (Id. at 133.)
On November 9, 2017, Chavous injured his hand while unloading grass from a
trailer. (Doc. 20 at 1; Doc. 1 □ 6.) On May 9, 2018, Chavous was injured on the job again,
this time in a car accident. (Doc. 20 at 1; Doc. 1 4 13.) Chavous received workers’

compensation benefits for both injuries under the Florida Workers’ Compensation Act
(FWCA). (Doe. 20 at 1-2.) He is still receiving treatment. (Id.)
Following the first injury, Chavous requested leave paperwork under the Family
Medical Leave Act (FMLA). (Doc. 20 at 1-2; Doc. 17 at 5.) He received the notice of
eligibility forms on April 2, 2018. (Doc. 17 at 6; Doc. 17-6 at 8.) The City’s rules require
employees to submit completed requests for FMLA leave within 15 days of receiving the

notice of eligibility. (Doc. 17-4 at 89.) As permitted under the FMLA, see 29 U.S.C.
§ 2613, the City requires the employee to include a certification from a doctor establishing
that the employee had a qualifying medical condition as part of the FMLA leave request
paperwork. Chavous provided the City an incomplete leave request on July 12, 2018. He
dropped those papers off at his doctor’s office that same day. (Doc. 20 at 5; Doc. 19 at 5.)
His doctor, Dr. Wojnowich, lost the forms and returned the completed certification to the
City on July 27, 2018. (Doc. 19 at 5; Doc. 20 at 7.)
The City placed Chavous on light duty following his first injury. (Doc. 20 at 2.)
While on light duty, Chavous reported to work at 7:00 a.m. (Doc. 17-3 at 122.) On May
3, 2018, the City released Chavous from light duty and directed him to report to work at

6:00 a.m. the following day. (Doc. 17-2 at 2.) Chavous did not arrive until 6:56 a.m. (Id.)
The City’s collecting bargaining agreement explains that a tardy employee may be deemed
absent for the entire day if the employee does not provide notice of tardiness before the
shift begins. (Doc. 17-3 at 110.)
On June 11, 2018, the City issued Chavous an Employee Notice for failing to arrive

on time and suspended him for two days. (Doc. 20 at 2-3.) Chavous filed a grievance,
alleging that he received conflicting instructions from supervisors on when he was to report.
(Id. at 4.) After review and a hearing, the City denied the grievance because it determined

that Chavous had received ample instructions on his return to full duty. (Id. at 3-4.)
Chavous appealed the decision, but the City dismissed his appeal as untimely. (Id. at 4.)
On June 27, 2018, Chavous did not report for work and did not report his absence

in advance, as the City’s rules require. (Doc. 17-2 at 2; Doc. 20 at 4; Doc. 23-1 at 15-16.)
The City issued Chavous a second Employee Notice on July 12, 2018, this time suspending
him for five days. (Doc. 20 at 4-5.) The Notice explained that this failure was Chavous’s
second serious violation within an 18-month period and that any additional violations
could result in termination. (Doc. 17-2 at 19.) That same day, Chavous gave the City
paperwork requesting FMLA leave, but without the required doctor’s certification. (Doc.
20 at 5.) On July 23, 2018, Chavous filed an employee grievance, alleging that he should
have been excused for his June 27, 2018 absence because his doctor told him that he should

not work until July 2, 2018. (Id. at 4-5.) Chavous filed a second grievance on July 23, 2018.
(Id. at 5.)
While those grievances were pending, Chavous failed to report to work on June 29,
July 6, and July 13, 2018. (Doc. 17-2 at 3.) After failing to appear or report his absence on
these three consecutive Fridays, the City issued Chavous a third Employee Notice that
terminated his employment. (Id. at 3, 22.) The Notice described Chavous’s absences as
“egregious” violations of the City’s rules and regulations and that they “demonstrated a
clear pattern of abuse of leave privileges, especially around weekends.” (Id. at 21.)

On July 27, 2018, the day after Chavous’s termination, Dr. Wojnowich—Chavous’s
doctor—faxed completed paperwork to the City requesting FMLA leave. (Doc. 17-5 at 2.)
Dr. Wojnowich estimated that Chavous’s condition could last from one-to-four weeks
from July 12, 2018, but he clarified that the estimated days of incapacity were July 12
through July 26, 2018. (Id. at 6-7.)
The City held a grievance hearing on August 7, 2018, to address the second and
third Employee Notices. (Doc. 20 at 6.) Although the FMLA paperwork was filed late,
the City retroactively approved Chavous’s request for FMLA leave for July 12 through July
26, 2018. (Doc. 17-5 at 4.) The City also reinstated Chavous, rescinding his termination.
(Doc. 17-2 at 3.) Further, relying on the doctor’s report that Chavous was incapacitated
from July 12 through July 26, the City reduced the prior five-day suspension to two days
and granted Chavous backpay. (Id. at 3; Doc. 20 at 6.) The City reasoned a two-day
suspension was still warranted because the City did not receive the FMLA paperwork until
after Chavous took his leave and because Chavous did not follow City procedure for

requesting and taking leave. (Doc. 20 at 6-7.) Chavous admits that the paperwork was
submitted late, but claims the delay is solely attributable to his doctor. (Id. at 7.)
The City decided that Chavous should return to work on August 8, 2018, at 7:00

a.m., the day following the hearing. (Doc. 20 at 7; Doc. 17-3 at 128.) But Chavous did not

return on August 8. Nor did he return the next day. (Doc. 17-2 at 23.) By August 24,

Chavous still had not returned to work or explained his absence, (Doc. 23-1 at 15-17), so
the City sent Chavous a letter explaining that it would hold a disciplinary hearing on
August 27, 2018. (Id.; Doc. 20 at 7-9.) Chavous did not attend the hearing, and the City
terminated him. (Doc. 20 at 9.) In addition to the previous instances, the City asserted that
Chavous had demonstrated a pattern of taking “unscheduled leave,” claiming Chavous did

not come to work on January 5 or 8, March 15 or 16, the entire week of March 19, and the

entire week of April 2. (Doc. 17-2 at 21.)
Chavous admits that the City in fact rescinded his termination, but he denies

receiving notice of that decision. (Doc. 20 at 7.) According to Chavous, no one told him

at the first grievance hearing that he had been reinstated or that he was supposed to report
to work the next day. (Id.) He further claims that he never received the City’s letters that
he had been reinstated and was required to return to work. (Id.) He claims to have received

notice of his reinstatement only “later on,” because the City mailed the documents to his
grandmother’s address, where he does not reside. (Doc. 20 at 7.) That said, Chavous admits
that he received a check for backpay, though he did not know why. (Id.) He also admits
that he received “a whole stack of documents” and that “it’s possible that a letter [asking
him to attend the termination hearing] is in there.” (Doc. 17-1 at 38.)

Following his termination, Chavous filed this action, alleging that the City
wrongfully terminated him in violation of the FMLA and FWCA. (Doc. 1.) On October
7, 2021, the City moved for summary judgment on all claims. (Doc. 17.)
Il. LEGAL STANDARD
Summary judgment is appropriate if no genuine dispute of material fact exists and
the moving party is entitled to judgment as a matter of law. See Fed R. Civ. P. 56(a). A
fact is material if it might affect the outcome of the suit under governing law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A moving party is entitled to summary judgment when the nonmoving party “fail[s]
to make a sufficient showing on an essential element of her case with respect to which she
has the burden of proof.” Celotext Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant
always bears the initial burden of informing the district court of the basis for its motion
and identifying those parts of the record that demonstrate an absence of a genuine issue of
material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
When that burden is met, the burden shifts to the nonmovant to demonstrate that
there is a genuine issue of material fact, which precludes summary judgment. Id. The

nonmoving party must “go beyond the pleadings and her own affidavits” and point to
evidence in the record that demonstrates the existence of a genuine issue for trial. Celotex,
477 U.S. at 324. The Court reviews all the record evidence and draws all legitimate

inferences in the nonmoving party’s favor. Cleveland v. Home Shopping Network, Inc.,
369 F.3d 1189, 1192-93 (11th Cir. 2004).
Ill. ANALYSIS
Chavous alleges that the City’s decisions to discipline and terminate him constituted
interference with his rights under the FMLA (Count I), retaliation for exercising his
FMLA rights (Count II), and retaliation under the FWCA (Count IIT). (Doc. 1.) The
City moves for summary judgment on all Counts, asserting that there is no dispute of
material fact and that it is entitled to judgment as a matter of law. (Doc. 17.) Chavous
disagrees, pointing to areas of dispute that he claims preclude summary judgment. (Doc.
19.) Following the City’s reply, (Doc. 21), this motion is ripe for decision.
A. FMLA Interference
In Count I, Chavous alleges that the City interfered with his substantive rights
under the FMLA. Specifically, the Complaint explains that the City interfered or denied
Chavous’s FMLA rights by terminating him and not restoring him to his position
following his FMLA leave. In his response to the motion for summary judgment, Chavous
also asserts interference claims based on the City’s alleged failure to grant him leave and to
adequately provide notice of his rights under the FMLA. The City argues that it is entitled

to summary judgment on all grounds. The City is correct.

i. Chavous Has Not Established a Prima Facie Claim of FMLA
Interference
An employee establishes an FMLA interference claim when the employee
“demonstrate[s] by a preponderance of the evidence that she was entitled to an FMLA
benefit that was denied.” Batson v. Salvation Army, 897 F.3d 1320, 1331 (11th Cir. 2018).
The primary FMLA benefit is an entitlement to 12 weeks of leave for “a serious health
condition that makes the employee unable to perform the functions of the position.” 29
U.S.C. § 2612(a)(1)(D). After taking FMLA leave, an employee is also entitled to be
restored to the same or an equivalent position. See id. § 2614(a)(1). An employer’s motives
for denying an FMLA benefit to which the employee is entitled are usually irrelevant. See
Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1208
(11th Cir. 2001). However, an employer is not liable “if [it] can show that it [acted] for a

reason wholly unrelated to the FMLA leave.” Id. Ifa plaintiff establishes a prima facie case,
the question at summary judgment becomes “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.”
Batson, 897 F.3d at 1331-32.
1. Interference from City’s Failure to Reinstate
The prima facie case for FMLA interference requires a plaintiff to establish that he

was entitled to an FMLA benefit that the employer denied. Id. at 1331.The Complaint

alleges that the City interfered with Chavous’s FMLA rights by its “failure to restore”
Chavous to his previous position after his request for FMLA leave. (Doc. 1 44 29-30.) Of

course, the FMLA provides that an “eligible employee who takes leave” under the FMLA

is “entitled, on return from such leave” to resume the same or an equivalent position as
before the leave. 29 U.S.C. § 2614(a)(1). But the City argues that it is entitled to summary
judgment on this claim because it restored Chavous to his position following his FMLA
leave. Thus, the City argues, Chavous has not shown that he was denied an FMLA benefit

to which he was entitled.
The City fired Chavous on July 26, 2018, for not attending work or properly calling
off on at least 17 days. (Doc. 17-2 at 3, 21.) The next day, the City received FMLA
paperwork requesting leave for some of those days. (Id. at 3.) After review of these
documents, the City decided to reinstate Chavous to his prior position. (Id.) Chavous
admits that he was in fact restored to his position. (Doc. 20 at 7.) Accordingly, Chavous
received the benefit that his Complaint alleges he was entitled to under the FMLA. Thus,
Chavous has not established that, with respect to his first termination, “his employer denied

or otherwise interfered with his substantive rights under the Act.” Strickland, 239 F.3d at
1206.
As to his second termination, Chavous also has not established a prima facie case of
interference. Again, Chavous must “demonstrate by a preponderance of the evidence that

10

[he] was entitled to an FMLA benefit that was denied.” Batson, 897 F.3d at 1331. The
Complaint alleges that the City denied Chavous the FMLA benefit of being returned to
his previous position after taking FMLA leave. (Doc. 1 4 29-30.) As Chavous admits, he
requested FMLA only once, (Doc. 17-1 at 29), through the paperwork submitted on July
27, 2018, (Doc. 17-5 at 2). In those documents, Chavous’s doctor reported that Chavous
would be incapacitated from July 12 through July 26, and thus eligible for FMLA leave
under 29 U.S.C. § 2612(a)(1). Ud. at 6-7.)
Accordingly, on August 7, the City retroactively granted Chavous’s FMLA leave
for July 12 through July 26, 2018. That same day, the City reduced his suspension, restored
Chavous to his prior position, and “directed [him] to report for duty at 7:00 a.m. on August
8, 2018.” (Doc. 17-2 at 23.) The second and final termination came on August 27, 2018,
after Chavous did not return to work.
Chavous’s second termination thus arose when he was not on FMLA leave.’ Section
2614(a) requires an employer restore an employee to a prior position only “on return from

* Chavous “note[s] that the doctor advised that Plaintiff's recovery could take up to four weeks.” (Doc. 19
at 5.) Although true based on the certification, those four weeks referenced by his doctor were in July, not
August, before his reinstatement. It is thus irrelevant to a prima facie showing based on this second
termination.
First, the doctor’s report clarifies that Chavous would be incapacitated from July 12 to July 26. (Doc. 17-5
at 6-7); see 29 U.S.C. § 2612(a)(1)(D) (requiring leave for “a serious health condition that makes the
employee unable to perform the [job]”). The City’s grant of FMLA leave included only July 12 to July 26.
(Doc. 17-5 at 4.). If Chavous needed additional leave, City procedures directed him on how to do it. (Doc.
17-6 at 13 (“The FMLA requires that you notify us as soon as practicable if dates of scheduled leave
change... .”).)
11

such leave,” meaning FMLA leave under § 2612. Consequently, Chavous was not entitled

to be restored to his prior position under the FMLA. See Jones v. Gulf Coast Health Care
of Del., Inc., 854 F.3d 1261, 1268 (11th Cir. 2017) (acknowledging that an employee on
non-FMLA medical leave is not protected from termination by the FMLA). If Chavous

was not entitled to be restored to his position following his second termination, then the
City’s failure to do so cannot be a denial of an FMLA benefit. See § 2614(a)(3) (noting
that “[nJothing in this section shall be construed to entitle any restored employee to...

any right, benefit, or position of employment . . . to which the employee would [not] have
been entitled had the employee not taken the leave”). And Chavous supplies no argument
to the contrary. Chavous asserts in his response that, “by terminating his employment, [the
City] has indisputably interfered with Plaintiffs rights under the FMLA.” (Doc. 19 at 5.)
But that is an unsubstantiated conclusion that does not identify the benefit denied or
establish that Chavous was entitled to it under the FMLA. The plaintiff bears the burden

to establish a prima facie case of interference. Chavous has not done that.

Second, even accepting Chavous’s argument that he was on FMLA leave through the end of the four-week
period, that only gets him to August 9. He did not request additional FMLA leave. And Chavous did not
return to work before his termination on August 27. Thus, he was not on FMLA leave on August 27 when
he was terminated and was not entitled to be restored to any position at that time. Cf Graham v. State
Farm Mut. Ins. Co., 193 F.3d 1274, 1283-84 (11th Cir. 1999) (explaining that the employer “had ample
reason to classify plaintiffs August absences as ‘without leave’ since” the absences extended beyond the
period mentioned in plaintiffs excuse note).
12

2. Interference from City’s Failure to Grant Leave
In response to the City’s motion for summary judgment, Chavous argues that the
City interfered with his FMLA rights by denying him leave when he was entitled to it.
(Doc. 19 at 2.) This interference argument appears nowhere in the Complaint. (Doc. 1
44 29-30.) The Complaint alleges interference due to the City’s decision to terminate
Chavous from his position, (id. 4 29), and its “failure to restore” Chavous “to his previous
position or an equivalent position,” (id. § 30). But there is nothing within this Count that
would put the City on notice that Chavous was improperly denied FMLA leave. See
Simmons v. Indian Rivers Mental Health Ctr., 652 F. App’x 809, 819-20 (11th Cir. 2016)
(affirming district court decision to “limit[] the scope of [plaintiffs] FMLA interference
claim to the factual averments of the Complaint’).
Even if it was proper to consider such an argument here, Chavous has not properly
made it. See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 260 (1st Cir. 1999)
(“A party who aspires to oppose a summary judgment motion must spell out his arguments
squarely and distinctly, or else forever hold his peace.”). For example, Chavous’s response

says that it “should also be noted that the doctor advised that Plaintiffs recovery could take

up to four weeks.” (Doc. 19 at 5.) Perhaps Chavous means to suggest that the City
improperly denied him the full FMLA leave he requested. But Chavous does not say so.
This oblique reference does not suffice to establish a prima facie claim of interference.

13

Higgins, 194 F.3d at 260 (“The district court is free to disregard arguments that are not
adequately developed ....”). At summary judgment, “the onus is upon the parties to
formulate arguments.” Resol. Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995).
3. Interference from City’s Failure to Provide Notice
Chavous makes one final attempt to state an interference claim. Chavous’s response
argues that the City denied him an FMLA benefit because it did not make him aware of
his FMLA rights once it was on notice that he might be eligible. (Doc. 19 at 4-5.)
According to Chavous, Department of Labor regulations required the City to inform him
of his FMLA rights as soon as it learned of his injury. See 29 C.F.R. § 825.300(b)(1).
This argument fails because Chavous did not mention it until his response to the

motion for summary judgment. Even under the “liberal pleading standard for civil
complaints,” plaintiffs may not “raise new claims at the summary judgment stage.” Gilmour

v. Gates, McDonald & Co., 382 F.3d 1312, 1314 (11th Cir. 2004) (per curiam). Nowhere

in the Complaint does Chavous allege that the City provided him with inadequate notice
of his eligibility for FMLA leave. See White v. Beltram Edge Tool Supply, Inc., 789 F.3d
1188, 1199-1200 (11th Cir. 2015) (affirming district court’s refusal to consider employer-
notice claim when not presented in a complaint alleging FMLA interference). Nor does
the Complaint mention 29 C.F.R. § 825.300(b)(1) or allege that the City violated it.

14

Whatever the merits of that contention, a plaintiff may not assert new legal theories in a

response to forestall summary judgment. See Simmons, 652 F. App’x at 820 (“An FMLA
plaintiff cannot raise a new claim at trial [that was not in the complaint.]”); Dowler v.
GEICO Gen. Ins. Co.,___ F. Supp. 3d ___, 2021 WL 3563018, at *6 (M.D. Fla. Aug.
12, 2021) (Covington, J.) (disregarding FMLA interference theories that were absent from
the complaint and advanced in response to summary judgment).
In his response to the City’s motion, Chavous asserts a new legal theory based on a
regulation he had not previously raised and then observes that the City “has failed to
provide any evidence” on the claim it did not know about. (Doc. 19 at 5.) Such a tactic is
procedurally improper and substantively unfair because there was no “basis for [the City]
to have understood from the complaint that [Chavous] was alleging an employer-notice
cause of action—i.e., that it failed to give notice to its employees.” White, 789 F.3d at
1200. If Chavous wished to present this claim, he should have moved to amend the
Complaint under Rule 15; he cannot “amend [his] complaint through argument in a brief

opposing summary judgment.” Gilmour, 382 F.3d at 1315.
Furthermore, even if Chavous’s argument was properly presented and argued, it still
falls flat. To prevail, Chavous “must show harm from the alleged interference with [his]
rights.” Munoz v. Selig Enters., Inc., 981 F.3d 1265, 1274-75 (11th Cir. 2020) (citation

15

omitted). He must also show the employer’s acts amounted to more than “technical
infractions.” Id. (quotation omitted). Chavous has not done that and cannot on this record.
First, it is undisputed that Chavous reviewed the City’s rules and regulations for
employees as part of his orientation. (Doc. 17-4 at 2.) An entire section of these rules is
dedicated to explaining an employee’s FMLA rights and the procedures for invoking them.
(Id. at 11, 86-92.) Second, Chavous requested FMLA leave paperwork and received a

notice of his eligibility for FMLA leave on April 2, 2018. (Doc. 17-6 at 8.) Accordingly,

even “if the [City] committed certain technical infractions” under the regulation, Munoz,
981 F.3d at 1275 (quotation omitted), Chavous knew of his FMLA rights before his first
and second termination, before the bulk of his unscheduled absences, and even before the
second injury on May 9, 2018, (Doc. 1 4 13).
In addition, Chavous ultimately requested FMLA leave and the City approved it.
Given his prior knowledge of his FMLA rights and successful invocation of them, Chavous
fails to show that he was damaged by the City’s alleged violation of the regulation. See
Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1284 (11th Cir. 1999) (per curiam)
(denying FMLA claim because the employee received all the leave she requested and thus
has “not demonstrated that she suffered any damages as a result of [her employer's]
action”). Stated otherwise, “[Chavous] has not shown [he] was harmed by [the City’s]
failure to notify [him] of [his] right to FMLA leave.” Munoz, 981 F.3d at 1275.

16

Accordingly, even if properly presented, Chavous fails to establish a prima facie case of
interference due to the City’s supposed failure to provide him notice.
4. Conclusion
All told, Chavous has not established a prima facie case of FMLA interference. His
newly advanced claims for denial of leave and lack of notice are foreclosed because they

were not advanced in the Complaint. The core claim for failure to reinstate following
FMLA leave fails because Chavous was restored following his first termination and he has

not established that he was entitled to reinstatement at the time of his second termination.
Accordingly, Chavous has not established that the City denied him an FMLA benefit to
which he was entitled. See Celotext Corp., 477 U.S. at 323 (reasoning that, when the

nonmoving party “fail[s] to make a sufficient showing on an essential element of her case,”
the moving party is entitled to summary judgment). The City is entitled to summary
judgment on Count I.
ii. The City Terminated Chavous for a Reason Wholly Unrelated to
His Request for FMLA Leave
Alternatively, even if Chavous had established a prima facie case of FMLA
interference, the City is entitled to summary judgment if it acted for a reason “wholly
unrelated” to his request for FMLA leave. Strickland, 239 F.3d at 1208. Unlike retaliation
claims, there is no burden shifting or formal pretext analysis. See Herren v. La Petite Acad.,
Inc., 820 F. App’x 900, 906 (11th Cir. 2020) (per curiam) (distinguishing between FMLA

17

retaliation and interference claims). Instead, the City bears the burden of establishing a
lack of causal connection. Id. Accordingly, the question 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.” Batson, 897 F.3d at 1331-32.
The City argues that it disciplined and fired Chavous for a reason wholly unrelated

to his request for FMLA leave or his decision to take FMLA leave. (Doc. 17 at 3-5.)
Specifically, the City claims it fired Chavous for his repeated disregard for the City’s
“proper policies in calling off from work.” (Doc. 21 at 3.) The Court agrees.
Concerning the first, second, and third Employee Notices, the evidence shows that
the City had ample reason to fire Chavous that was not related to his requests for FMLA
leave. Chavous did not arrive for work on January 5 and 8, March 15 and 16, the week of
March 19, the week of April 2, May 4, June 27, June 29, July 6, or July 13. (Doc. 17-2 at
21.) The City provides evidence that Chavous did not follow the proper procedures for

reporting his absences in advance. (Doc. 23-1 at 13, 15-16, 40.) And Chavous identifies

no evidence to the contrary. See, e.g., Lujan v. Dets. of Wildlife, 504 U.S. 555, 561 (1992)
(noting that the non-movant cannot rest on “mere allegations” of disputes, “but must ‘set
forth’ by affidavit or other evidence ‘specific facts” showing there is a dispute for trial
(internal citation and quotation omitted)); Leige v. Capitol Chevrolet, Inc., 895 F. Supp.

18

289, 291 (M.D. Ala. 1995) (explaining that the non-movant bears a “burden” of “set[ □□□□□
forth specific facts showing that there is a genuine issue for trial”).
Chavous’s behavior broke the City’s rules on absences and on reporting absences in
advance, both of which Chavous knew about when accepting employment with the City.
(Doc. 17-4 at 1-2.) As part of his new employee orientation materials, Chavous
acknowledged that “[i]t is the employee’s responsibility to communicate absences, late
arrivals, or schedule changes in a timely manner,” and that he should “report absences or
tardiness prior to [his] scheduled shift.” (Doc. 17-2 at 12.) As Chavous was also aware, a
“[fJailure to make a proper leave request or call-off” is itself attendance-related misconduct.
(Doc. 17-4 at 133.) So, even if Chavous had a valid excuse for missing work, such as a
doctor’s appointment, the City was still entitled to discipline Chavous for not properly
reporting his absences. See Montgomery v. Ion Media Mgmt. Co., No. 8:10-cv-429, 2011
WL 1791294, at *9 (M.D. Fla. May 10, 2011) (Covington, J.) (concluding that the
employer was entitled to summary judgment because the employee was terminated for her
absenteeism, not her requests for FMLA leave).
Under the City’s progressive discipline program, Chavous’s repeated rule infractions
led to increased discipline. (Doc. 20 at 3.) The City first suspended Chavous for two days.
(Id. at 2-3.) When Chavous again missed work on June 27 without prior explanation, the
City suspended him for five days. (Doc. 20 at 5.) Chavous then did not arrive for work or

19

call in his absence on June 29, July 6, or July 13. (Doc. 17-2 at 3.) Construing Chavous’s
absences as a “clear pattern of abuse of leave privileges,” the City fired him. (Id. at 21.)
Firing an employee because—despite multiple notices—he fails to comply with the
procedures for notifying superiors of his absences is a reason wholly apart from requests for
FMLA leave.
Moreover, the City did not know that Chavous intended to seek FMLA leave until
the day after the first termination. (Doc. 17-2 at 3; Doc. 17-5 at 2.) True, Chavous
requested FMLA paperwork and received it on April 2, 2018. (Doc. 17 at 5-6.) But the
City required employees to submit completed FMLA leave requests within 15 days of

receiving the notice of eligibility. (Doc. 17-4 at 89.) The paperwork Chavous received on
April 2 explained that Chavous needed to return the completed form by April 16, 2018.
(Doc. 17-6 at 9.) Chavous did not do that. As the FMLA allows, the City required
employees requesting leave to support their request with “a certification issued by [a
doctor].” 29 U.S.C. § 2613(a); (Doc. 17-4 at 89). In turn, the employee is required by
statute to provide the completed certification to the employer “in a timely manner.”
§ 2613(a). Chavous submitted FMLA documents on July 12, but he did not include the
essential doctor’s certification. (Doc. 20 at 5, 6-7.)
Accordingly, when the City terminated Chavous on July 26, it did not know that
he intended to seek FMLA leave for an injury that occurred on May 9, 2018. And, since

20

the FMLA ordinarily requires employees give an employer “not less than 30 days’ notice”
before commencing FMLA leave, 29 U.S.C. § 2612(e)(1), the City could not have guessed
that Chavous would request leave for days he had already missed. Cf. Pereda v. Brookdale
Senior Living Communities, 666 F.3d 1269, 1274 (11th Cir. 2012) (observing that “the
FMLA requires notice in advance of future leave” to protect employers and “provide them
with sufficient notice of extended absences”). Considering this timeline, the City was not

aware that Chavous would request FMLA leave and, thus, must have fired Chavous for
another reason. See Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1236 (11th Cir. 2010)
(reasoning that “the unrebutted evidence that the decision maker was not aware, at the

time of the decision to terminate [the employee] of her request to commence FMLA leave
establishes as a matter of law that [the employee’s] termination was for reasons other than
her requested leave”).
That other reason is evident from the record. Chavous repeatedly disregarded the
City’s requirement that he provide advance notice of his absences. As Chavous’s foreman
Alfreddie Jones explained, Chavous was “not responding to the phone calls, not reporting
like he’s supposed to report.” (Doc. 23-1 at 15.) Although Chavous “knew the rules and
regulations of the city” and knew Jones’s phone number, Jones testified that Chavous did

not call him to report his absences. (Id. at 16.) Chavous’s repeated unexplained absences

gave the City ample reason to suspend and terminate him.

21

So too, the final termination was for a reason wholly separate from Chavous’s

request for FMLA leave. At or following the first hearing, the City granted Chavous
FMLA leave for July 12 through July 26. (Doc. 17-6 at 47.) The City determined that
Chavous should return to work the next day, August 8, 2018. Chavous did not return to
work for the next 21 days. (Doc. 17-2 at 3-4.) Chavous did not contact the City to provide

an explanation. (Doc. 23-1 at 13.) So, the City sent a notice of a disciplinary hearing via
certified mail. (Doc. 17-3 at 129-130; Doc. 17-6 at 55-57.) After Chavous did not appear

or explain his absence at the hearing on August 27, 2018, the City fired him again. As with
the first, second, and third Employee Notices, the reason evident from the record is that
the City fired Chavous for failing to arrive for work and failing to follow City procedures
for reporting absences. As Chavous’s foreman explained, “[Chavous] was terminated for

not following the city rules and regulations.” (Doc. 23-1 at 13.) This reason is wholly
unrelated to Chavous’s request for FMLA leave, entitling the City to summary judgment.
See Krutzig, 602 F.3d at 1236 (reasoning that an “employer is not liable for failing to

reinstate the employee after [he] has taken FMLA leave” if the “employer can show that it
refused to reinstate an employee for a reason unrelated to FMLA leave”).
Chavous disagrees. He begins by arguing that the City’s decision to discipline and
fire him was “ultimately related to [Chavous] missing work.” (Doc. 19 at 1.) If he missed
work for medical reasons related to his work injuries, Chavous reasons, then he was entitled

22

to FMLA leave for those absences. And, Chavous concludes, if the City fired him for
absences when he could have requested FMLA leave, then the City discharged him for a

reason that is related to FMLA leave. Not so.
An employer does not violate the FMLA by firing an employee who is eligible for
FMLA leave. After all, “the right to commence FMLA leave is not absolute.” Krutzig, 602
F.3d at 1236. Instead, “if a dismissal would have occurred regardless of the request for
FMLA leave, an employee may be dismissed,” even if it “prevent[s him] from exercising
[his] right to leave or reinstatement.” Id. Accordingly, the mere fact that Chavous was
eligible for FMLA leave is not determinative. See Montgomery, 2011 WL 1791294, at *11
(explaining that an employee is not “insulated from termination” just become he has raised
“the possibility of [his] need for FMLA leave” or even by “formally request[ing] such
leave”); accord Gamba v. City of Sunrise, 157 F. App’x 112, 113 (11th Cir. 2005).
So too, Chavous’s chain of inferences does not render the City’s reason for

terminating him related to the FMLA leave request. The City asserts and provides
evidence that it fired Chavous for his failure to report to work and his failure to follow the
City’s procedures that required him to report his absences in advance. (Doc. 23-1 at 13,
15-16.) Chavous’s repeated rule infractions provide a reason for termination that is distinct
from his request for FMLA leave.

23

iii. Chavous Has Not Established Causation or Pretext
Chavous attempts to avoid this result by arguing that the City’s stated reason for his

termination was pretextual. (Doc. 19 at 10.) Unlike retaliation claims, there is no pretext
analysis for interference claims. See Martin v. Brevard Cnty. Pub. Schs., 543 F.3d 1261,
1267-68 (11th Cir. 2008) (distinguishing FMLA interference and retaliation claims). So,
the Court construes Chavous’s arguments as attempts to advance evidence of causation to
rebut the City’s affirmative defense that its reason for terminating Chavous was wholly
unrelated to FMLA leave requests. See Batson, 897 F.3d at 1331-32 (treating evidence of

pretext as support for causation). Chavous makes three arguments. Not one provides
evidence from which a reasonable jury could infer that the City’s reason for the final

termination was related to Chavous’s request for FMLA leave.
First, Chavous asserts that the close temporal proximity between his request for
FMLA leave and his termination is sufficient evidence of pretext (or causation) to prevent
summary judgment. He is wrong. As recounted above, the City has provided “numerous
documented instances” showing that Chavous did not comply with the City’s policies for

requesting and taking leave. Gamba, 157 F. App’x at 113. “Where the employer produces
significant evidence of an employee’s poor performance”—as the City has here—‘it is not
enough that the request for leave and the termination are closely related in time.” Id.
(affirming summary judgment for the employer because the employee “produced virtually

24

no evidence” except the temporal relationship between the leave request and termination).
“Tn light of the ample legitimate reasons for the termination decision proffered by the City,
the truth of which was never effectively challenged,” temporal proximity is not sufficient
“evidence from which a reasonable jury could find any causal connection.” Wascura v. City
of S. Miami, 257 F.3d 1238, 1247 (11th Cir. 2001).
Second, Chavous asserts that the City has “failed to provide record evidence that it

ever actually made [Chavous] aware of his reinstatement” and that failure supports a
finding of pretext. (Doc. 19 at 11.) Of course, the correct inquiry is whether it suggests
causation such as to negate the City’s assertion that its reason for firing Chavous was wholly
unrelated to his requests for FMLA leave. It does not.
Even if the City did not tell Chavous of his reinstatement at the hearing, undisputed
evidence shows that the City made the decision to reinstate him on August 7, the day of
the hearing. (Doc. 20 at 6-7; Doc. 17-2 at 3; Doc. 17-3 at 128-129.) The evidence also
shows that City officials believed Chavous had been reinstated on August 7 and expected
his return to work on August 8. (Doc. 17-3 at 128.) So too, evidence shows the City tried

to inform Chavous of the reinstatement and the August 27 hearing by sending notices via
certified mail. (Id. at 129-130; Doc. 17-6 at 55-57.) These envelopes were addressed to
“Mr. Manuel D. Chavous.” (Doc. 17-6 at 55-77.) In his deposition, Chavous says these

25

notices were sent to his grandmother’s house, where he did not reside.* (Doc. 17-1 at 37.)
But Chavous admits that he eventually received these notices. (Id.) He says that the City
“sent a lot of stuff in the mail,” and that it is “possible that a letter like that’s in there.” (Id.
at 38.)
All told, these disputations on the form and timing of notice do not provide evidence
from which a reasonable jury could infer a causal connection between the City’s decision

to terminate Chavous and his request for FMLA leave. At most, a jury could infer that the
City made a mistake, or that it unreasonably expected Chavous to receive mail more quickly
than he did. But this Court is not “a super-personnel department that reexamines an
entity's business decisions,” not even those that are “medieval,” “high-handed,” or
“mistaken.” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc)
(quotation omitted). Instead, an “employer may fire an employee for . . . a reason based on

erroneous facts, or for no reason at all, so long as its action is not for a discriminatory
reason.” Nix v. WLCY Radio/Rahall Commce’ns., 738 F.2d 1181, 1187 (11th Cir. 1984).
That said, there is nothing “medieval” or “high-handed” about terminating an employee

> Chavous claims that the City mailed the letters and notices to his grandmother’s house, where he did not
reside. (Doc. 17-1 at 37.) Chavous does not argue that he usually received his mail elsewhere or that the
City picked this address at random. The City rules required Chavous to promptly notify the City of any
change in address. (Doc. 17-4 at 133.) Of course, it would not be evidence of pretext if Chavous did not
check his mail between August 9 and August 27, 2018.
26

for repeated absences and violations of the City’s policy. And even a misguided notion of
the efficiency of the mail system by the City hardly constitutes causation here.
Finally, Chavous argues that the City’s decision to reduce his suspension and

reinstate him following his request for FMLA leave is evidence of pretext. (Doc. 19 at 2.)
Whether styled as an argument for pretext or for causation, it is unpersuasive. Chavous
does not provide further explanation of how a reasonable jury could infer from the City’s
decisions to grant Chavous’s request for FMLA leave on August 7 that its decision to

terminate him on August 27 was related to his request for FMLA leave. This Court
“declines to fill in the gaps on [his] behalf.” Moore v. GPS Hosp. Partners IV, LLC, 383
F, Supp. 3d 1293, 1312 ($.D. Ala. 2019); see Drago v. Jenne, 453 F.3d 1301, 1308 n.4
(11th Cir. 2006) (reasoning that “anger” at an employee’s decision to commence leave
“without telling anyone” in advance did not show a causal connection to a later demotion).
Even if Chavous had stated a prima facie case of interference, the City is entitled to

summary judgment because it has provided evidence that it terminated Chavous for a

reason wholly unrelated to his request for FMLA leave. And even drawing all reasonable
inferences in his favor, Chavous has not put forward any evidence of causation from which

a reasonable jury could find the opposite. Cf Wascura, 257 F.3d at 1248 (noting that the
plaintiff had “failed to adduce sufficient evidence from which a reasonable jury could find
that the reasons proffered by the City for her termination were pretextual”). Instead, “the

27

evidence shows that [Chavous] was [fired] because of [his tardiness, absences, and failure

to request leave]; [he] was not [fired] because (i.e. for the reason that) [he] took FMLA
leave.” Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010). The
City is entitled to summary judgment on Count I.
B. FMLA Retaliation
A claim for FMLA retaliation is evaluated under the McDonnell Douglas burden-
shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under
that framework, the plaintiff must establish a prima facie case for retaliation. If the plaintiff
does so, the burden shifts to the employer to provide a legitimate reason for the

termination. If the employer provides such a reason, the burden shifts back to the employee
to show that the asserted rationale is pretextual. See Martin, 543 F.3d at 1268.
In Count I, Chavous alleges that the City, “shortly after [his] return from his

suspension, terminated him from his position in violation for him exercising his rights
under the [FMLA].” (Doc. 1 § 33.) Count II further asserts that the termination was “not
based on reasonable grounds and was not in good faith.” (Id. 4 34.)
i. Chavous Has Not Established a Prima Facie Case of FMLA
Retaliation
To establish a prima facie case of FMLA retaliation, the employee must show that
(1) he engaged in FMLA protected conduct, (2) he suffered an adverse employment action,
and (3) there is a causal link between the protected conduct and the adverse employment

28

action. See Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 798 (11th Cir. 2000).
Unlike an interference claim, a retaliation claim places an “increased burden” on a plaintiff
to show “that his employer’s actions ‘were motivated by an impermissible retaliatory or
discriminatory animus.” Strickland, 239 F.3d at 1207 (quoting King v. Preferred Tech.
Grp., 166 F.3d 887, 891 (7th Cir. 1999)). A plaintiffs ultimate burden is to “demonstrate
that his employer intentionally discriminated against him.” Id.
The City does not dispute the first two elements of the prima facie case. Chavous
engaged in statutorily protected conduct when he requested FMLA leave and he suffered

an adverse employment action when the City terminated him. The dispute is whether
Chavous “came forth with sufficient evidence to create a genuine issue of fact that [his]
application for FMLA leave caused [his termination].” Brungart, 231 F.3d at 798.
To establish causation, “a plaintiff need only show ‘that the protected activity and
the adverse action were not wholly unrelated.” Clover v. Total Sys. Servs., Inc., 176 F.3d
1346, 1354 (11th Cir. 1999) (quotation omitted). Usually, “close temporal proximity
between the employee’s protected conduct and the adverse employment action is sufficient
circumstantial evidence to create a genuine issue of material fact.” Brungart, 231 F.3d at
799. But “temporal proximity, without more, must be ‘very close” to establish causation.
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). For causation

purposes, the relevant period is “the last day of an employee’s FMLA leave until the adverse

29

employment action at issue occurs.” Jones, 854 F.3d at 1272. “Temporal proximity alone,
however, is not sufficient to establish a causal connection when there is unrebutted evidence
that the decision maker was not aware of the protected activity.” Krutzig, 602 F.3d at 1235.
The City argues that Chavous has failed to present sufficient evidence of causation.
The City is correct. As explained above, the City did not know at the time of Chavous’s
first termination on July 26, 2018, that he would file completed paperwork requesting
FMLA leave. The City did not receive the doctor’s certification until the following day.
Chavous offers no evidence that the City was otherwise aware he would file compliant
paperwork. Accordingly, Chavous fails to show causation as to his first termination.
As to the second termination, Chavous presents some evidence of temporal
proximity. The City approved Chavous’s request for FMLA leave and retroactively granted
him leave from July 12 through July 26. The City then fired Chavous about a month later,

on August 27, 2018. The Eleventh Circuit has found a period of approximately a month
sufficient to suggest causation as part of a prima facie case. See Higdon v. Jackson, 393
F.3d 1211, 1220 (11th Cir. 2004) (explaining a period of one month is not “too protracted”
to establish a prima facie case of causation through a temporal proximity for purposes of

an ADA retaliation claim).
Even though there is about a month between the end of Chavous’s FMLA leave on
July 26 and his August 27 termination, that connection is not sufficient evidence of

30

causation here. See Cotton v. Cracker Barre! Old Country Store, Inc., 434 F.3d 1227, 1232
(11th Cir. 2006). Temporal proximity alone is insufficient to show causation when “an
employer contemplates a given action” before the exercise of FMLA rights. Id. For
example, in Cotton, the Eleventh Circuit held that a two-month gap between a complaint
of sexual harassment and an allegedly retaliatory decrease in hours was insufficient evidence

to show causation because the employer had informed her before her complaint that her
hours would decrease after Christmas. [d. at 1229-30, 1232. Similarly, in Drago, the court
held that the employee could not establish causation through temporal proximity alone
because “the record evidence was overwhelming that [the employer] contemplated
demoting” the employee before he engaged in protected activity. Drago, 453 F.3d at 1308.
Same here.
The undisputed evidence shows that Chavous did not arrive for his scheduled shifts

on numerous occasions, beginning in January 2018 long before his FMLA leave and

continuing through August 2018 well past it. There is also abundant evidence that Chavous
did not follow the City’s call-off procedures before he missed work on these days. (Doc.
23-1 at 13, 15-16.) Chavous has not pointed to record evidence to the contrary.
And the City’s rationale for disciplining Chavous remained consistent: his refusal

to arrive for work when he was scheduled to do so and his failure to follow City procedures
to request time off. Chavous’s foreman raised this issue in his April 10, 2018 performance

31

review, noting that Chavous used “more unscheduled leave than [was] acceptable” and that
he needed to improve within the next evaluation cycle. (Doc. 23-1 at 40-41.) The City
issued Chavous an Employee Notice on May 4, 2018, after he “disregarded his job duties
when he failed to follow his supervisor’s directive to report to work at 6:00 a.m.” (Doc. 17-
2. at 17.) The Notice explained that Chavous was “expected to report for duty at his assigned
[work times]” and that “any additional violations” would “result in progressive discipline,
up to and including termination.” (Id.) Chavous signed the document, acknowledging his

receipt of these expectations. (Id. at 18.)
On July 12, 2018, the second Employee Notice again stated this rationale as the
basis for Chavous’s suspension. The Notice cited Chavous for being “[a]bsent without

permission or leave.” (Id. at 19.) It explained that “Chavous failed to report for his
scheduled 7:00 a.m. shift and also failed to report his absence per Department policy.” (Id.)
The City again warned Chavous that “any additional violations” would result in discipline,
including termination. (Id.) Though signed “under duress,” Chavous again acknowledged
his receipt of these expectations. (Id. at 20.)
On July 13, the City denied Chavous’s grievance against the first Employee Notice,
explaining that Chavous’s “refusal to report as instructed multiple times is clearly
‘disregarding job duties” under the City’s rules. (Doc. 17-3 at 123-24.) The City then

32

repeated the instruction that Chavous was “required to report to work as instructed or
follow the department’s call-in procedures.” (Id. at 124.)
The third Employee Notice issued on July 26, 2018, is similar. It cites to numerous

instances of “unscheduled leave.” (Doc. 17-2 at 21.) The Notice explained that Chavous
had continued to take unscheduled leave “[d]espite numerous counseling sessions and the

receipt of [two Employee Notices].” (Id. at 22.)
On August 27, 2018, the fourth Employee Notice—and the second termination—

repeats the same theme. It cites Chavous for being “absent from duty... without proper
authorization.” (Doc. 17-2 at 23.) On that same day, the City mailed Chavous a letter

saying that “[a]s he did not call-in, nor attend [the second hearing,]” he was terminated.
(Doc. 17-3 at 130.)
All told, the evidence demonstrates that the City considered disciplining and
actually disciplined Chavous for his failure to report to work and report his absences long
before the City received his completed FMLA paperwork on July 27, and even before
Chavous’s incomplete FMLA documents were filed on July 12. See Clark Cnty. Sch. Dist.

v. Breeden, 532 U.S. 269, 272 (2001) (per curiam) (holding that an employer’s decision to
“proceed[] along lines previously contemplated, though not yet definitively determined, is

no evidence whatever of causality”). The final termination on August 27 was simply a
culmination of the reason articulated for Chavous’s discipline from the start. Accordingly,

33

Chavous’s evidence of temporal proximity “does not suffice to show causation.” Drago, 453
F.3d at 1308 (holding temporal proximity was insufficient when employer had considered
demoting the employee for performance-related reasons at least five months before his
FMLA leave); accord Aponte v. Brown & Brown of Fla., Inc., 806 F. App’x 824, 832 (11th
Cir. 2020) (same); see also Breeden, 532 U.S. at 272 (reasoning that a one-month gap was
“immaterial” because the employer was contemplating the transfer before it learned of the
protected activity). Thus, Chavous has not established a prima facie case of FMLA
retaliation. The City is entitled to summary judgment on Count II.

ii. The City Asserts a Legitimate Reason for Termination
Even if Chavous had established a prima facie case, the City would have the

opportunity to provide a legitimate, non-discriminatory reason for its actions. See
Alexander v. Fulton Cnty., 207 F.3d 1303, 1335 (11th Cir. 2000). The City has such a

reason ready in hand. As explained at length above, the City asserts that it terminated
Chavous for his failure to follow the City’s protocols for notifying his superiors in advance
that he would not be at work for his scheduled shifts. (Doc. 21 at 3.) On its face, this is not

a reason that “intentionally discriminated against [Chavous] for exercising an FMLA
right.” Martin, 543 F.3d at 1267.

34

iii. Chavous Has Not Demonstrated Pretext
Since the City has supplied a neutral reason for the termination, the burden shifts
back to Chavous to “show that the employer’s proffered reason was pretextual.” Id. at 1268.
To do so, Chavous must present evidence “sufficient to permit a reasonable factfinder to
conclude that the reasons given by the employer were not the real reasons.” Hurlbert v. St.
Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006). This evidence should
demonstrate “such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions” in the proffered reasons “that a reasonable factfinder could find them
unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.
1997). Ultimately, to “avoid summary judgment,” a plaintiff “must introduce significantly
probative evidence” of pretext. Clark, 990 F.2d at 1228 (citation omitted).
The City asserted that it fired Chavous for not “follow[ing] the City’s proper policies
in calling off from work.” (Doc. 21 at 3.) To show that a reason is pretextual, Chavous
“must meet that reason head on and rebut it.” Chapman, 229 F.3d at 1030 (reasoning that

an employee cannot “succeed by simply quarreling with the wisdom of that reason”).
Though Chavous asserts four theories or signs of pretext, not one is sufficient for a
reasonable factfinder to find that the City’s proffered reason was a mere mask for
intentional retaliation for an exercise of Chavous’s FMLA rights.

35

First, Chavous asserts that the City’s decision to reduce his suspension from five
days to two days, as well as to rescind the initial termination, “would allow a reasonable

jury to infer that the reasons for the discipline were mere pretext for unlawful retaliation.”
(Doc. 19 at 2.) The City counters that it “reduced the suspension, reinstated employment,
and offered backpay because [Chavous] finally offered a reason to the City for his
absences.” (Doc. 21 at 3.) As the City explained at the time, it kept two days of suspension
because Chavous requested leave only after he took it. (Doc. 20 at 6-7.) Thus, the City
advances that its behavior confirms it asserted rationale, rather than rebutting it. (Doc. 21

at 3); see Kirkland v. City of Tallahassee, 856 F. App’x 219, 224 (11th Cir. 2021)
(dismissing plaintiffs suggestion of pretext when “he failed to introduce any evidence that

was inconsistent” with the employer’s asserted reason, and instead tended to support it).
The Court agrees with the City. See Schaaf, 602 F.3d at 1244 (reasoning that employer’s
decision to fire plaintiff after first proposing reinstatement was not a sign of pretext because
plaintiffs poor performance motivated both decisions).
Second, Chavous points to the discipline itself as evidence of pretext. Chavous

argues that the City’s decision to discipline him for days when he did not report to work

was “tantamount” to the City doubting that Chavous was “taking leave for medical
reasons.” (Doc. 19 at 10-11.) But Chavous points to no evidence to support this argument
for pretext. It cannot be that the City’s decision to discipline Chavous is probative evidence

36

that its asserted reason for disciplining him was pretextual. Instead, the City’s discipline
tends to support its legitimate “frustration that [Chavous] failed to communicate [his
upcoming absences].” Drago, 453 F.3d at 1308 n.4. (finding an employer’s anger over the
employee’s unscheduled leave “not relevant” evidence for connecting the employee’s
protected activity and his demotion). This is a legitimate reason that this allegation of

pretext does not address or rebut. See Chapman, 229 F.3d at 1030 (requiring that the
employee meet the employer’s reasons “head on” and “rebut” them).
Chavous attempts to liken his allegation of pretext to that in Jones. See Jones v. Gulf
Coast Health Care of Del., LLC, 854 F.3d 1261 (11th Cir. 2017). The citation is

inapposite. In Jones, the plaintiff identified evidence that the employer’s reasons for his

termination were “inconsistent, contradictory, and implausible.” Id. at 1275. Specifically,
the plaintiff showed that the employer’s asserted reasons changed after the termination; the
employer’s description of his behavior contradicted its asserted reasons; and the employer
did not have a written rule embodying the policy he supposedly violated. Id. The record
here is precisely the opposite. The City’s description of Chavous’s conduct and its asserted
rationale has remained consistent since the very first Employee Notice: Chavous violated
the City’s written policy* on attendance and reporting absences in advance.

‘For example, the City’s collective bargaining agreement explains that an employee is “AWOL” “whenever
an employee fails to call his Department” and “fails to report for work” within four hours of the start of his
scheduled shift. (Doc. 17-3 at 94.)
37

Third, Chavous argues “there is reason to doubt [the City’s] ultimate reason” for the

termination because the City “has failed to provide evidence that it ever actually made
[Chavous] aware of his reinstatement.” (Doc. 19 at 11.) The Court addressed this

argument above and found it unconvincing. The Court will not repeat the full discussion
here. It suffices to say that, even if the City did not tell him of his reinstatement at the
hearing, evidence shows that City officials believed Chavous had been reinstated on August
7 and expected his return to work on August 8. (Doc. 17-3 at 128.) So too, evidence shows
the City tried to inform Chavous of the reinstatement and the August 27 hearing. (Id. at
129-130; Doc. 17-6 at 55-77.) And Chavous admits that he eventually received these

notices. (Doc. 17-1 at 37.) In the light of the City’s belief that it had informed Chavous at
the August 7 hearing and its repeated attempts to contact Chavous by mail, Chavous, at

most, raises an inference that the City made a mistake about what Chavous knew. An
“employer may fire an employee for . . . a reason based on erroneous facts, or for no reason

at all, so long as its action is not for a discriminatory reason.” Nix, 738 F.2d at 1187 (citation
omitted); see also Chapman, 229 F.3d at 1030 (a federal court is not “a super-personnel
department that reexamines an entity’s business decisions” (quotation omitted)). Instead,
the “inquiry is limited to whether the employer gave an honest explanation of its behavior.”
Chapman, 229 F.3d at 1030 (quotation omitted).

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Finally, Chavous points to the temporal proximity between his FMLA leave and
the City’s employment actions against him as evidence of pretext. (Doc. 19 at 10.)
However, Chavous has not properly developed this argument. He states it once—in a one-

sentence heading in his response to the motion for summary judgment. Although “the onus

is upon the parties to formulate arguments,” Resol. Tr. Corp., 43 F.3d at 599, Chavous
does not support his argument with citations to the record or further analysis. See Higgins,
194 F.3d at 260 (reasoning that courts may disregard arguments that are “not adequately
developed”). Instead, Chavous cites two cases, Hurlbert and Jones, for the proposition that
temporal proximity is evidence of pretext. (Doc. 19 at 10.) But Chavous tactfully omits an

important caveat from his quotations. Both cases emphasize that, while temporal proximity

may be evidence of pretext, it is “probably insufficient to establish pretext by itself.”
Hurlbert, 439 F.3d at 1298; Jones, 854 F.3d at 1276. Unlike in Hurlbert and Jones,
Chavous’s evidence of temporal proximity “stand|s] alone.” Hurlbert, 439 F.3d at 1298.
These cases, then, provide no support for Chavous’s argument. And Chavous has not
argued that temporal proximity alone is sufficient to establish pretext, nor has he pointed
to any caselaw holding the same.°
Even if this argument was properly presented, it is not compelling. “As discussed,
temporal proximity alone is insufficient to create a genuine dispute of material fact about

° If mere temporal proximity was enough to establish causation and to rebut the employer’s asserted
rationale, then it would collapse the McDonnell Douglas analysis into the prima facie case.
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FMLA retaliation” because the evidence shows that City had contemplated disciplining or

terminating Chavous for his failure to abide City rules long before his FMLA leave. Pecora

v. ADP, LLC, 232 F. Supp. 3d 1213, 1224-25 (M.D. Fla. 2017) (Whittemore, J.) Further,
approximately a month separates the end of Chavous’s FMLA leave and his final

termination. That is a period that is as long or longer than the gaps that the Eleventh
Circuit in Hurlbert and Jones said were “probably insufficient to establish pretext by itself.”
Hurlbert, 439 F.3d at 1298 (two weeks); Jones, 854 F.3d at 1276 (one month).
In sum, these allegations of pretext—considered alone or jointly—fail to address
and rebut the City’s reason for disciplining and terminating Chavous. So too, Chavous has
failed to “produce sufficient evidence for a factfinder to conclude that [the City’s] reason

was a pretext,” Chapman, 229 F.3d at 1031, or that the City “intentionally” retaliated

against him, Strickland, 239 F.3d at 1207. “[T]o avoid summary judgment [the plaintiff]
must introduce significantly probative evidence” of mere pretext. See Clark, 990 F.2d at
1228. Chavous has not done that. Therefore, even assuming that Chavous had stated a

prima facie case of FMLA retaliation, the City is entitled to summary judgment on Count
II because Chavous has not rebutted the City’s asserted non-retaliatory reason.
C. FWCA Retaliation
Florida law provides that no “employer shall discharge, threaten to discharge,
intimidate, or coerce any employee by reason of such employee’s valid claim for

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compensation or attempt to claim compensation under the Workers’ Compensation Law.”
§ 440.205, Fla. Stat. This section “creates a cause of action for employees who are subject
to retaliatory treatment... for attempting to claim workers’ compensation.” Bifulco v.
Patient Bus. & Fin. Servs., Inc., 39 So. 3d 1255, 1257 (Fla. 2010).
An identical analysis applies for FMLA and FWCA retaliation claims. See, e.g.,
Gillman v. Okaloosa Cnty. Fla., 58 F. Supp. 3d 1305, 1312 (N.D. Fla. 2014) (Rodgers,
CJ.). The McDonnell Douglas framework applies in both contexts. See Wood v. Calhoun
Cnty. Fla., 626 F. App’x 954, 955 (11th Cir. 2015) (per curiam) (applying Eleventh Circuit
caselaw addressing federal employment discrimination to a FWCA retaliation claim);
Andrews v. Direct Mail Express, Inc., 1 So. 3d 1192, 1193 (Fla. 5th DCA 2009).
Accordingly, if a plaintiff states a prima facie case of retaliation, the burden shifts to the
employer to present a legitimate, non-discriminatory reason. If the employer does so, “the
plaintiff must then demonstrate that the reason given was a pretext.” Wood, 626 F. App’x
at 955.
In Count III, Chavous alleges that the City “wrongfully discharge[d]” him for
seeking “compensation under [the] Florida Workers’ Compensation Law.” (Doc. 1 94 37—
42.) The City argues it is entitled to summary judgment on this Count because Chavous
has not established a prima facie case and cannot rebut its non-retaliatory reason. The City

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is correct. Because the analysis is largely identical to the FMLA retaliation claim, the Court
discusses this claim only briefly.
i. Chavous Has Not Established a Prima Facie Case of FWCA
Retaliation
To state a prima facie case, a plaintiff must establish that (1) he engaged in protected
activity, (2) was subject to an adverse employment action, and (3) that there is “a causal
link between the protected activity and the adverse employment action.” Salus v. Island
Hosp. Fla. Mgmt., Inc., 289 So. 3d 926, 929-30 (Fla. 4th DCA 2020) (quoting Koren v.
Sch. Bd. of Miami-Dade Cnty., 97 So. 3d 215, 219 (Fla. 2012)).
Chavous easily establishes the first two elements. Following his two injuries,
Chavous applied for and received workers’ compensation. (Doc. 1 44 6, 10, 13, 16.) After
those protected acts, the City terminated him. As with the FMLA retaliation claim, the
dispute arises over causation. Because Chavous fails to establish that essential element, the
City is entitled to summary judgment on Count III.
A “plaintiff must prove causation by showing the protected activity and the adverse

action are not completely unrelated.” Ortega v. Eng’g Sys. Tech., Inc., 30 So. 3d 525, 529
(Fla. 3d DCA 2010). “But mere temporal proximity, without more, must be ‘very close.”
Thomas, 506 F.3d at 1364 (quoting Breeden, 532 U.S. at 273.) “A three to four month
disparity... is not enough.” Id. (citation omitted).

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Chavous relies on temporal proximity to establish causation and argues that the
period was exceedingly close because he “continued to receive treatment for his work

injuries throughout his employment.” (Doc. 19 at 7.) Chavous is mistaken.
The relevant period is from when Chavous filed for benefits and the time of his

termination. See Billups v. Emerald Coast Utils. Auth., 714 F. App’x 929, 937 (11th Cir.
2017) (measuring proximity from when plaintiff filed for FWCA benefits); Andrews, 1 So.
3d at 1194 (same); Pericich v. Climatrol, Inc., 523 So. 2d 684, 685-86 (Fla. 3d DCA 1988)
(same); Fichmuller v. Sarasota Cnty. Gov't, No. 8:20-cv-47, 2021 WL 75120, at *6 (M.D.
Fla. Jan. 8, 2021) (Covington, J.) (same).
Applying this standard, Chavous failed to establish causation through temporal
proximity. First, Chavous did not provide the precise day he initially requested workers’

compensation benefits for each injury in his Complaint. Nor has he presented evidence of
the relevant days in response to the motion for summary judgment. This alone is likely
“fatal to his claim.” McGuire v. United Postal Serv., Inc., 763 F. App’x 890, 899 (11th Cir.
2019). For example, in McGuire, the Eleventh Circuit affirmed summary judgment for the
employer on a FWCA retaliation claim because the employee relied on temporal proximity
for causation and failed to plead the days he applied for and received workers’ compensation
benefits. Id. (rejecting a continuing benefits theory).

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Second, even if failing to identify the days was not fatal, the timeline is not
sufficiently compelling to establish causation. Chavous requested worker’s compensation
following his injuries on November 9, 2017, and May 9, 2018. (Doc. 1 44 6, 10, 13, 16.)
Chavous was not terminated until August 27, 2018. (Doc. 20 at 9.) Taking every inference

in his favor, it is perhaps possible that Chavous waited a few weeks after the second injury
to request benefits. But even so, that would still put at least three months between his initial

request and his termination. “A three to four month disparity” is not enough to establish

causation. Thomas, 506 F.3d at 1364.
Finally, even if the gap was smaller, temporal proximity is insufficient to establish

causation in this case. See supra section III.B. In short, the final termination on August
27, 2018, was a culmination of the reasons articulated for Chavous’s discipline from the

very first Employee Notice: his refusal to arrive for work when he was scheduled to do so
and his failure to follow City procedures to request time off. (Doc. 21 at 3.) Accordingly,
Chavous’s evidence of temporal proximity “does not suffice to show causation.” Drago, 453
F.3d at 1308 (holding temporal proximity was insufficient when employer had considered
demoting the employee for performance-related reasons at least five months before his
FMLA leave). Chavous has not established a prima facie case of FWCA retaliation.

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ii. The City Proffers a Legitimate, Non-retaliatory Reason
Even if Chavous had established a prima facie case, the City has proffered a non-
retaliatory reason. The City asserts that it terminated Chavous for his failure to follow the
City’s protocols for notifying his superiors that he would not be at work for his scheduled
shifts. (Doc. 21 at 3.)
iii. Chavous Fails to Demonstrate that the City’s Reason is Pretextual
Since the City offers a non-retaliatory reason for its decision to terminate Chavous,
the burden shifts to him to prove by a preponderance of the evidence that the proffered
reason was “merely a pretext for the prohibited, retaliatory decision.” Juback v. Michaels
Stores, Inc., 696 F. App’x 959, 960 (11th Cir. 2017). A plaintiff “may succeed in this either
directly by persuading the court that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s proffered explanation is unworthy
of credence.” Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981) (citing
McDonnell Douglas, 411 U.S. at 804-05).
Chavous cannot carry that burden. Chavous has not explicitly argued pretext as to
Count III. And this Court “declines to fill in the gaps on [his] behalf.” Moore, 383 F.
Supp. 3d at 1312; Higgins, 194 F.3d at 260 (“The district court is free to disregard
arguments that are not adequately developed . . . .”) Of course, Chavous may have intended

to apply his pretext arguments from Counts | and II. If so, they would be as unavailing

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here as they were there. See Kirkland, 856 F. App’x at 224 (considering the pretext analysis
for FMLA and FWCA retaliation claims together). After full consideration, this Court
concludes that Chavous’s allegations of pretext, even if properly considered for Count III,
fail to supply sufficient evidence from which a reasonable jury could infer pretext.
Accordingly, the City is entitled to summary judgment on Count III.
IV. CONCLUSION
Drawing all permissible inferences in his favor, Chavous does not establish a prima
facie case of FMLA interference, FMLA retaliation, or FWCA retaliation. Chavous also
fails to provide sufficient evidence from which a reasonable jury could infer that the City’s
asserted reason for terminating him was related to his exercise of FMLA rights or was

pretext for retaliation on a prohibited basis. In the absence of a genuine dispute of material
fact, the City has provided ample evidence and argument that it is entitled to summary
judgment. Because there is not “sufficient evidence upon which a reasonable juror could
find for the non-moving party,” Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir.
2003), the Court grants summary judgment on Counts I, II, and III.
Accordingly, the following is ORDERED:
1. The City’s Motion for Summary Judgment is GRANTED. (Doc. 17.)

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2. The Clerk is directed to ENTER judgment in the City’s favor on all three
Counts, to TERMINATE any pending motions and deadlines, and to
CLOSE this case.
ORDERED in Tampa, Florida, on December 20, 2021.

Fa □ imball Mizelle
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10109203. Public record. Not legal advice.