Jessica Graves v. Brandstar Studios, Inc.

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13469

____________________

JESSICA GRAVES,

Plaintiff-Appellant,

versus

BRANDSTAR, INC.,

Defendant,

BRANDSTAR STUDIOS, INC.,

Defendant-Appellee.

____________________

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2 Opinion of the Court 21-13469

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:20-cv-60666-AHS

____________________

Before JILL PRYOR, NEWSOM, and GRANT, Circuit Judges.

NEWSOM, Circuit Judge:

Jessica Graves was dealt a tough hand when, in relatively

quick succession, her father fell ill and she was let go from her po-

sition at Brandstar Studios. Following her termination, Graves

sued Brandstar under the Family and Medical Leave Act and the

Americans with Disabilities Act. The district court granted Brand-

star summary judgment.

Graves presents three arguments on appeal. First, she con-

tends that Brandstar executives interfered with her rights under the

FMLA. Second, she asserts that her termination constituted asso-

ciational discrimination under the ADA. And finally, she claims that

the district court improperly weighed the evidence on summary

judgment rather than construing the facts in her favor.

After careful review, we conclude that the district court

properly granted summary judgment to Brandstar. We affirm.

I

A

From January 11, 2017 to May 30, 2018, Jessica Graves was

an employee of Brandstar Studios—a video-production and

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21-13469 Opinion of the Court 3

content-creation company based in Florida. As a “branded content

producer/writer,” she coordinated onsite shoots, managed editing

sessions, and generally shepherded video content from start to fin-

ish. According to Graves, from early on in her tenure at Brandstar,

her supervisors knew that her father lived in Pennsylvania and was

terminally ill. They also knew that Graves was her father’s primary

caregiver, coordinated medical services for him from afar, and vis-

ited him frequently.

On Wednesday, May 2, 2018, Graves received a call that her

father had been rushed to the hospital to undergo emergency brain

surgery to remove a cancerous tumor. She immediately sent her

supervisors at Brandstar the following email:

Subject: Family Emergency

Hi guys, I’m planning to fly out to see my dad in PA

tomorrow morning. My dad is in ICU. I will not be

available for calls/edits. Thank you in advance for

making any adjustments to my schedule.

Graves flew to Pennsylvania the following day and tended to her

father until Sunday, May 6, 2018, when she returned to Florida. A

few weeks later, Brandstar executives noticed that Graves had

clocked in on Thursday and Friday during her absence. Upon not-

ing this discrepancy, Brandstar’s HR team insisted that Graves cor-

rect her timecard to reflect the leave. It is undisputed, though, that

they didn’t inform her that her father’s medical emergency might

entitle her to benefits under the FMLA.

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4 Opinion of the Court 21-13469

Upon her return to Florida on May 6, Graves sent Brand-

star’s CEO the following email, which she later characterized as a

formal “show pitch . . . for a Military Makeover show”:

Subject: My Dad

Hi Mark, I just got back from PA where my dad was

having emergency brain surgery for a tumor. The ag-

gressive throat cancer that he just finally recovered

from last year has metastasized and formed two tu-

mors in his brain. This recent surgery was only able

to remove one, the other will need to be treated with

radiation and intense chemo and soon.

My dad is a Vietnam Vet who was affected by Agent

Orange: He spent his entire career working in the

probation and parole system, since retiring he has

lived alone in Western PA. He’s the kindest, strongest

and most stubborn man I’ve ever known and he’s my

best friend.

Fortunately, I was able to convince him to let me find

the best oncologists and radiologists in South Florida

for this next and hopefully final round of treatment,

but I will need to move him down here asap. Since

the last treatment resulted in pneumonia which re-

quired a portion of his lung to be removed and feed-

ing tube chest port to be put in. He nearly died twice.

The reason I’m telling you this is because I’m hoping

you can help.

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I have a 2-car garage that I need to convert into a stu-

dio apartment and I know that between

Ryan/Russ/Edwin/Vince they could knock this out

in a few days.

I am hoping you’ll see the benefit in allowing them a

few days to do this within the next couple weeks since

we can also turn this into a local Military Makeover

UFP. There are a few companies I can reach out to

for materials to help, but I am prepared to pay for eve-

rything myself, including labor. All I need from you

is permission to ‘borrow’ the guys.

I’m around if you want to give me a call otherwise we

can discuss Monday. I’m going to be driving him and

his beloved dog down to FL once he’s released from

rehab to begin treatments.

Graves also verbally requested to be excused from work-re-

lated travel and staffed only to local shoots as she prepared her

home for her father’s move to Florida. Again, it is undisputed that

no one at Brandstar told Graves that her father’s condition and her

role as his caretaker might entitle her to FMLA benefits.

On May 25, 2018, Graves arrived late to work and was es-

corted into a meeting with her supervisor, a studio manager, and

an HR assistant. During the conversation, they suggested that

Graves transition from her full-time role to a freelance position be-

cause it might better suit her schedule. Graves declined the offer

and asked whether this had to do with her father, to which the

Brandstar executives answered that it didn’t. At that point, they

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decided to let Graves go effective May 30, 2018. Her father moved

to Florida three months later.

Graves’s employment record was mixed. She had a history

of “coming and going”—a practice that rankled her supervisors.

She also often missed editing sessions for her projects without no-

tice. Once, Graves left a junior editor waiting on her for an hour

until her supervisor contacted her to ask if she planned to attend.

And long before her father’s surgery, Graves’s supervisors repeat-

edly reported that her performance was subpar, that her projects

often went incomplete, and that her attitude at work made it diffi-

cult to collaborate.

B

Following her termination, Graves sued Brandstar in federal

court. As relevant here, Graves alleged that Brandstar (1) interfered

with her rights under the Family and Medical Leave Act and (2) en-

gaged in associational discrimination in violation of the Americans

with Disabilities Act. After the district court granted summary

judgment to Brandstar, Graves appealed to this Court. 1

1 We review a district court’s grant of summary judgment de novo, construing

all facts in the light most favorable to the non-moving party—here, Graves.

Munoz v. Selig Enters., Inc., 981 F.3d 1265, 1272 (11th Cir. 2020). Summary

judgment is warranted when there are no genuine disputes of material fact.

Smith v. Owens, 848 F.3d 975, 978 (11th Cir. 2017).

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II

Graves presents three arguments on appeal. She contends

that the district court (1) misapplied the FMLA in rejecting her

claim that Brandstar failed to provide adequate notice of her statu-

tory rights, (2) wrongly rejected her ADA associational-discrimina-

tion claim, and (3) improperly weighed the evidence when consid-

ering Brandstar’s summary-judgment motion. We will consider

each in turn.

A

Graves first contends that the district court incorrectly re-

jected her contention that Brandstar failed to provide her the re-

quired notice of her FMLA rights. The FMLA provides up to 12

weeks of leave for an employee, like Graves, who is responsible for

caring for a family member with significant medical needs. See 29

U.S.C. § 2612(a)(1)(C). To recover on an “interference” claim under

the FMLA, a plaintiff must satisfy three elements. First, she must

show that she was entitled to a benefit under the FMLA. White v.

Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015).

Second, she must show that her employer denied her that benefit.

Id. And finally, she must “demonstrate harm, or prejudice, result-

ing from the employer’s interference with her exercise (or at-

tempted exercise) of an FMLA benefit.” Ramji v. Hosp. Housekeeping

Sys., LLC, 992 F.3d 1233, 1245 (11th Cir. 2021).

As to the first element, it’s undisputed that Graves was eligi-

ble for FMLA benefits because she had worked full-time at Brand-

star for more than 12 months prior to the events giving rise to her

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appeal and was charged with caring for a parent who had a serious

health condition. See 29 C.F.R. § 825.110; see also 29 U.S.C. §

2612(a)(1)(C).

That brings us to the second element—whether Brandstar

denied Graves her benefits under the FMLA. Graves contends that

Brandstar failed to provide her notice of certain statutory rights—

a failure, she says, that amounts to actionable interference with her

FMLA benefits. Under the FMLA and its implementing regula-

tions, there are several kinds of notice that an employer must pro-

vide—at different junctures and in different circumstances. See 29

C.F.R. § 825.300. The two at issue here are “[e]ligibility notice” and

“[r]ights and responsibilities notice.” Id. § 825.300(b)–(c). The for-

mer, as its name implies, “must state whether the employee is eli-

gible for FMLA leave,” id. § 825.300(b)(2), and the latter must “de-

tail[] the specific . . . obligations of the employee and explain[] any

consequences of a failure to meet these obligations,” id.

§ 825.300(c)(1).

Importantly for present purposes, it doesn’t take much to

trigger an employer’s obligation to provide both kinds of notice.

The operative regulation states that an employer must provide an

employee with eligibility and rights-and-responsibilities notice

when either (1) “an employee requests leave” or (2) “the employer

acquires knowledge that an employee’s leave may be for an FMLA-

qualifying reason.” Id. § 825.300(b)(1) (eligibility notice); see id.

§ 825.300(c)(1) (stating that rights-and-responsibilities notice “shall

be provided to the employee each time the eligibility notice is

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21-13469 Opinion of the Court 9

provided”). Accordingly, if the employer learns from any source—

whether from the employee or otherwise—that the employee’s

leave might be for family or medical reasons, it is obligated to pro-

vide both types of notice.

Graves contends that she sought FMLA-qualifying leave on

two occasions that triggered Brandstar’s notice obligations: (1) her

May 2 email requesting leave for a short trip to care for her father

while he underwent emergency surgery; and (2) her May 6 email

and subsequent verbal communications requesting to be excused

from work-related travel. We consider each in turn.

1

In the May 2 email, Graves told Brandstar executives that she

intended to fly to Pennsylvania for her father’s emergency brain

surgery the next day and would “not be available for calls/edits”

while she was with him. We agree with Graves that her email was

sufficient to trigger Brandstar’s obligation to provide her eligibility

and rights-and-responsibilities notice under the FMLA because

Brandstar “acquire[d] knowledge that [her] leave may be for an

FMLA-qualifying reason.” Id. § 825.300(b)(1). It is undisputed that

Brandstar failed to provide Graves the required notice following the

May 2 email.

Brandstar’s failure to notify Graves of her FMLA rights may

well have interfered with her exercise of the corresponding benefits

within the meaning of the second prong of the interference analy-

sis. See supra at 7. But that failure alone isn’t enough to survive

summary judgment. To recover on her interference claim, Graves

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must also—prong three—show that Brandstar’s failure caused her

harm. See Ramji, 992 F.3d at 1245; accord, e.g., Munoz v. Selig Enters.,

Inc., 981 F.3d 1265, 1274–75 (11th Cir. 2020) (citing Graham v. State

Farm Mut. Ins., 193 F.3d 1274, 1284 (11th Cir. 1999) (per curiam)

(“Even if the defendants have committed certain technical infrac-

tions under the FMLA, [a] plaintiff may not recover in the absence

of damages.”)). Under our precedent, an employee doesn’t suffer

harm from an employer’s technical non-compliance with the

FMLA’s notice requirements when she receives all her requested

time off and is paid for her absences. Munoz, 981 F.3d at 1275.

The parties agree that Brandstar provided Graves the leave

she requested in her May 2 email and that she received full pay for

those days. In fact, Graves accidentally clocked in on her two days

of requested leave, and Brandstar HR executives circled back weeks

later to ensure that she corrected her timecard to reflect her re-

quested leave. Thus, Graves can’t demonstrate that she was

harmed by Brandstar’s technical failure to notify her of her FMLA

rights. As a result, we must reject her interference claim arising out

of the May 2 request for leave.

2

Graves separately contends that her May 6 email—in which

she asked for ongoing flexibility to prepare her home for her fa-

ther’s move to Florida—triggered Brandstar’s obligation to provide

her eligibility and right-and-responsibilities notice, which it failed

to do. We disagree for a fundamental reason: Graves didn’t request

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leave either in her May 6 email or in her subsequent communica-

tions with Brandstar.

The Family and Medical Leave Act requires, at the very least,

that an employee actually seek leave—of some sort—to trigger an

employer’s obligation to give eligibility and rights-and-responsibil-

ities notice. As already explained, the operative notice regulation

requires either that an employee specifically “request[] FMLA leave”

or that the employer “acquire[] knowledge that an employee’s leave

may be for an FMLA-qualifying reason.” 29 C.F.R. § 825.300(b)(1)

(emphasis added). That regulation, as we have said, sets a low bar,

but in either triggering instance, the employee must ask for time

off—i.e., leave—in order to prompt the employer’s notice obliga-

tions. See, e.g., Ramji, 992 F.3d at 1243–44 (holding that an employer

was obligated to give an employee notice of her rights under the

FMLA when she had clearly asked for sick leave to recuperate her

injured knee).

An examination of the May 6 email reveals that Graves didn’t

ask for leave—of any sort—to care for her ailing father. To the con-

trary, her message unambiguously discussed ongoing and future

work with Brandstar, which included developing a show around

her father’s transition to Florida. So, if anything, Graves’s father’s

medical needs, in her view, presented new opportunities for work,

not reasons for leave. True, Graves asked to be staffed on local pro-

jects to assist with her father’s transition to Florida. But at most,

those amounted to requests for accommodations to allow her to

continue to work, not a request for leave. Her rejection of

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12 Opinion of the Court 21-13469

Brandstar’s offer to move from full-time to freelance also evidences

her desire to continue working. Put simply, all signs point to the

fact that Graves intended to keep working full-time at Brandstar,

not that she wanted leave. 2

Moreover, not only did Graves fail to “request leave” in the

May 6 email, but there’s also no indication that Brandstar “ac-

quire[d] knowledge” on its own that she wanted “leave . . . for an

FMLA-qualifying reason.” 29 C.F.R. § 825.300(b). Therefore,

Graves’s email didn’t trigger Brandstar’s obligation to notify her of

her eligibility and rights and responsibilities under the FMLA. We

conclude that the district court didn’t err in granting summary

judgment to Brandstar on Graves’s FMLA claim.

2 In the final sentence of her email, Graves mentioned that she had planned to

“driv[e] [her father] and his beloved dog down to FL once he[ was] released

from rehab to begin treatments.” Even if we were to assume that sentence

implied a request for leave and that Graves’s proposal constituted “care”

within the meaning of the FMLA, see 29 U.S.C. § 2612(a)(1)(C), her claim

would fail on the same ground that precludes her FMLA claim related to the

May 2 email: Graves can’t show harm resulting from any technical non-com-

pliance with the FMLA’s notice regulation because her father didn’t move to

Florida until three months after she was let go. See supra at 7.

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B

Graves next contends that the district court erred in granting

summary judgment to Brandstar on her associational-discrimina-

tion claim.

Under the ADA, an employer is prohibited from discriminat-

ing against an employee who is “associated” with someone who

has significant medical needs for whom the employee may need to

provide care. 42 U.S.C. § 12112(b)(4). We evaluate a claim of asso-

ciational discrimination under the ADA using the burden shifting-

framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802–04 (1973). See Wascura v. City of S. Miami, 257 F.3d 1238,

1242 (11th Cir. 2001).

In the absence of direct evidence of discrimination, the em-

ployee bears the initial burden to show a prima facie case of dis-

crimination. Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1226

(11th Cir. 1999). Once the employee has done so, the employer

need only produce evidence of a legitimate, nondiscriminatory rea-

son for its decision. Wascura, 257 F.3d at 1242. The burden then

shifts back to the employee to show sufficient evidence to create a

genuine issue of material fact that the employer’s stated reason is

pretextual. Id. at 1243. If the employee can’t carry that burden,

then the employer is entitled to summary judgment. Id.

We will assume arguendo that Graves has made out a prima

facie case and move to the second and third prongs of the McDon-

nell Douglas analysis. On the second prong, Brandstar proffers am-

ple evidence that Graves was fired because of her haphazard

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14 Opinion of the Court 21-13469

attendance, poor communication, incomplete work, and difficult

work demeanor.

By contrast, Graves offers little to no argument—in either

her initial or reply brief—to carry her burden on the third prong.

What we said in Wascura applies here foursquare: Graves “has

failed to adduce sufficient evidence from which a reasonable jury

could find that [Brandstar’s] proffered, non-discriminatory reasons

for her termination were pretextual.” 257 F.3d at 1243. The only

evidence she marshals is the “temporal proximity” between her fa-

ther’s acute onset decline and her termination—which, as we’ve

previously held, isn’t enough to show pretext. Gogel v. Kia Motors

Mfg. of Georgia, Inc., 967 F.3d 1121, 1138 n.15 (11th Cir. 2020) (en

banc) (“While close temporal proximity between the protected

conduct and the adverse employment action can establish pretext

when coupled with other evidence, temporal proximity alone is in-

sufficient.”). Thus, the district court properly granted summary

judgment to Brandstar on Graves’s ADA claim.

C

Lastly, Graves contends that the district court improperly

weighed the evidence rather than viewing it in the light most favor-

able to her when deciding Brandstar’s summary-judgment motion.

Our review here is de novo, Munoz, 981 F.3d at 1272, and “we may

affirm the district court’s judgment on any ground that finds sup-

port in the record,” Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151,

1154 (11th Cir. 2012) (quotation marks omitted). Having con-

cluded that the record supports the district court’s grant of

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21-13469 Opinion of the Court 15

summary judgment to Brandstar on both the FMLA and ADA

claims, we needn’t separately address this issue.

III

For the foregoing reasons, we affirm the district court’s de-

cision granting summary judgment for Brandstar.

AFFIRMED.