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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-14201
Non-Argument Calendar
________________________
D.C. Docket No. 2:19-cv-00263-RDP
JAYME DAVIDSON,
Plaintiff-Appellant,
versus
CHSPSC LLC,
d.b.a. Grandview Medical Center,
Defendant,
AFFINITY HOSPITAL LLC,
d.b.a. Grandview Medical Center,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(June 22, 2021)
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Before JORDAN, GRANT, and BLACK, Circuit Judges.
PER CURIAM:
Jayme Davidson appeals the district court’s grant of summary judgment in
favor of her former employer, Affinity Hospital LLC, d/b/a/ Grandview Medical
Center (Grandview), on her claims for discrimination and retaliation under the
Americans with Disabilities Act (ADA),
42 U.S.C. § 12101, et seq., as amended by
the ADA Amendments Act of 2008, and for retaliation under the Family and
Medical Leave Act (FMLA),
29 U.S.C. § 2615.
Grandview, which operates an acute care hospital in Birmingham, Alabama,
terminated Davidson from her employment as a social worker on October 30,
2017, following a series of disciplinary actions. Davidson, who has partial hearing
loss and had suffered from a C. difficile (C. diff) infection and ankle injury, filed
suit in federal court, alleging her discipline and termination were the result of
disability-based discrimination and retaliation for her requests for workplace
accommodations and use of FMLA leave. In granting summary judgment in favor
of Grandview, the court determined Davidson had established a prima facie case of
FMLA retaliation based on two disciplinary actions, but she failed to demonstrate
Grandview’s reasons for the discipline or termination were pretextual. The court
also determined Davidson had established a prima facie case of ADA
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discrimination and retaliation based on her termination, but it again found she
failed to show Grandview’s reasons for her termination were pretextual.
On appeal, Davidson argues she established a genuine issue of material fact
as to pretext with respect to both her ADA and FMLA claims. She also argues she
established a prima facie case of FMLA retaliation based on an additional
disciplinary action and her termination. After review,1 we affirm.
I. BACKGROUND
The facts of this case are set forth accurately and in detail in the district
court’s opinion. We provide the following background to the extent it is of
particular relevance to our analysis.
A. Davidson’s Role
Davidson began working as a social worker for Grandview’s predecessor in
1997, and in 2007, Grandview promoted her to lead social worker. During the
relevant time period of 2015 to 2017, Davidson’s primary responsibilities were
case management and discharge planning for patients on the hospital’s cardiology
1
We review a district court’s grant of summary judgment de novo, “construing all facts
and drawing all reasonable inferences in favor of the nonmoving party.” Jefferson v. Sewon Am.,
Inc.,
891 F.3d 911, 919 (11th Cir. 2018) (quotation marks omitted). Summary judgment is
appropriate when the record evidence shows “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine
dispute of material fact exists when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
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floor. Davidson reported to Cindy Watson during this timeframe, until Watson left
Grandview in August of 2017 and was replaced by Kim Colvert.
B. Hearing Loss and FMLA Leave for C. diff Infection
In 2015, Davidson had 35% hearing loss in both ears and asked Grandview
to purchase hearing aids for her. Grandview denied her request and subsequent
appeal. In early 2017, Davidson purchased hearing aids for herself and told
Watson they were working.
In August of 2016, Grandview learned Davidson had tested positive for C.
diff. On four occasions from September of 2016 to January of 2017, Davidson
requested and received FMLA leave in relation to her C. diff infection. Davidson
stated in her declaration that Watson told her she should return to work as soon as
possible because the hospital was short staffed, and, while she was on leave,
repeatedly told her she should look for another job. Davidson returned to work on
January 13, 2017. Upon her return to work, Davidson requested that she not be
required to enter the room of a patient infected with C. diff and submitted a note
from her doctor recommending that she avoid interacting with patients infected
with C. diff. On February 15, 2017, Grandview’s human resources (HR) director,
Jeri Wink, told Davidson she would not be required to enter the room of a patient
infected with C. diff until her doctor “no longer feels this is an issue” or unless her
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declining to enter the rooms of infected patients became too burdensome for
Grandview.
C. Disciplinary Actions and Ankle Injury
In 2017, for the first time in her career, Davidson was the subject of formal
disciplinary actions at Grandview, though she had received counseling in response
to complaints in the past. The first disciplinary action occurred on February 14,
2017. Two patients had complained to Gretchen Cassavoy, a nurse and the
assistant director on the cardiac floor, about Davidson’s failure to properly assist
them in relation to their home health care choices and discharge planning, and the
second patient had also complained that Davidson was condescending. In addition,
a doctor complained of Davidson’s lack of responsiveness and dismissive
behavior. As a result of these complaints, Watson met with Davidson and issued
her a documented verbal warning.
Regarding the patient complaints, Cassavoy’s email to Watson referred to
“Jamie,” which is not how Davidson spells her first name, but is the spelling used
by Davidson’s coworker, Jamie Callis. Watson testified she could not be sure
whether the email referred to Davidson or Callis, but stated Davidson would have
told her if the complaints referred to Callis. Though Watson signed the
disciplinary action form, she testified she had not seen the underlying complaints
and only agreed to do so because she feared she would otherwise be fired.
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On March 1, 2017, Davidson injured her ankle at work. After being seen by
a doctor and surgeon, she returned to work on March 13, 2017, wearing a walking
boot for her injury.
Davidson’s second disciplinary action occurred on March 15, 2017. A
doctor complained that on March 8, 2017, Davidson failed to communicate with
him and a patient’s family regarding the patient’s discharge plan. Watson issued
Davidson a written warning for substandard work based on the doctor’s complaint.
On May 8, 2017, Davidson had ankle surgery. Later that month, she filed a
workers’ compensation lawsuit against Grandview based on her ankle injury and
C. diff infection. Davidson then requested FMLA leave for the period of March 1,
2017, to June 23, 2017. Davidson had exhausted her FMLA leave as of May 30,
2017, so her request was only partially granted. Davidson therefore took a
combination of FMLA and personal leave until June 19, 2017. Davidson then
returned to work, but she had frequent doctor’s appointments due to her ankle
injury and related physical therapy. Upon her return to work, Davidson was
counseled not to discuss her lawsuit or medical conditions with her coworkers,
who had complained such discussions made them uncomfortable.
Davidson’s third disciplinary action occurred on July 24, 2017. A nurse and
nurse practitioner separately complained to Watson that Davidson had provided
substandard discharge planning to patients, in one instance delaying a patient’s
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discharge by nine days. Watson issued Davidson another written warning for
substandard work based on these two complaints. Under Grandview’s progressive
disciplinary policy, this was a final warning, and Davidson was on notice that the
next disciplinary action against her could result in her termination.
Several days after the third disciplinary action, Davidson failed to return to
work after a doctor’s appointment. Watson expressed her frustration in an email to
Colvert, stating she was “so tired of this crap” and was “screaming out loud” and
“so over this.”
D. Additional Leave, Return to Work, and Termination
Davidson had a second ankle surgery on August 24, 2017, and she took
personal leave from this date until October 23, 2017. While Davidson was on
personal leave, Grandview hired two social workers, who were set to complete
their orientation period around the time of Davidson’s return. On October 13,
2017, Davidson received a letter from Grandview signed by Wink. The letter
stated, in relevant part, that Davidson had exhausted her FMLA leave and had been
placed on personal leave, and that Grandview could not guarantee she would be
returned to her original position, or any position, upon her return from personal
leave. Wink testified at deposition that this portion of the letter was standardized
text issued to any employee who had exhausted her FMLA leave.
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Several days later, Colvert emailed Wink about moving Davidson to another
floor upon her return. Colvert stated that if Davidson was transferred, it would be
apparent whether she was “performing her job as she should be,” and she asked
whether Grandview would then “go through the disciplinary steps.” In a separate
email with the subject line “email,” Wink wrote: “Let’s discuss in person. Certain
things don’t need to be mentioned in email (everything is discoverable) and we
have to be careful how certain comments can be interpreted.”
Davidson returned to work on October 24, 2017, without any restrictions
regarding her ankle. She was transferred from cardiology on the seventh floor to
the medical/surgery unit on the ninth floor. The transfer did not result in any
change to her job duties, pay, or benefits.
On October 25, 2017, Davidson met with Michael Dean, the director of the
Short Stay Unit on the ninth floor, and other staff members. Davidson testified she
did not mention her lawsuit during this meeting, but instead asked if she could
have a chair because she had been “made to come back to work before [her] foot
was healed” and “needed to sit down.”
On October 26, 2017, Rick Smith, a patient’s son, complained about
Davidson to Jennifer Perrigin, a charge nurse on the ninth floor. Smith told
Perrigin that Davidson was more focused on her own medical issues and problems
with Grandview than she was on his mother’s situation. He asked Perrigin if there
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was anyone else he could talk to because he did not want to deal with Davidson
anymore. Perrigin reported the complaint to Michael Dean, director of the Short
Stay Unit on the ninth floor. She also told Dean that Davidson had made
comments to her and other staff members about her workers’ compensation lawsuit
and medical issues.
That same day, Dean spoke to Smith, who informed him Davidson was not
concerned about his mother, had spent 25 of 30 minutes in his mother’s room
complaining in detail of her own medical problems, and had not listened to
anything he had said regarding his mother’s situation. Dean sent his summary of
Smith’s complaint to Colvert, who was by then Davidson’s supervisor, and also to
Callis and Julie Soekoro, Grandview’s chief financial officer. Colvert also
forwarded the complaint to Wink and Soekoro. Soekoro stated Davidson’s
conduct warranted disciplinary action, was highly inappropriate and
unprofessional, and would be addressed through the appropriate HR process. In a
follow-up email on October 26, 2017, Dean reported Davidson was discussing her
lawsuit against Grandview with staff and had discussed this issue with him
personally. Later that day, when Soekoro asked for details, he added Davidson had
also informed his team she would not go into the room of any patient who had C.
diff. After receiving Dean’s complaint about Davidson’s discussion of her lawsuit
and her medical issues, Soekoro emailed Wink, Colvert, and Callis, stating: “Write
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up #2 today. Michael Dean and his charge nurse apparently heard far more than
was appropriate or solicited.”
The following morning, Davidson emailed Callis and told her she wanted to
discuss the situation with Smith or have him present because she did not want to
get “railroaded again.” Davidson then called Smith personally and emailed Callis,
Colvert, and Wink to report he had “no complaints” regarding her discharge
planning. Dean, however, reported to Soekoro and others that Smith had come to
his office that morning and told him Davidson was irrational and that he wanted
his mother to be discharged as soon as possible. That same day, Soekoro met with
Wink and Drew Mason, Grandview’s chief executive officer, and the decision was
made to terminate Davidson’s employment.
Three days later, on October 30, 2017, Wink and Colvert met with Davidson
and informed her of the termination decision. According to the disciplinary action
form, the termination was based upon: (1) Smith’s complaints about Davidson; and
(2) the fact Davidson discussed her lawsuit and medical issues with other
employees.
II. DISCUSSION
A. ADA Discrimination and Retaliation
Under the ADA, employers are prohibited from discriminating against
qualified employees based on disability “in regard to . . . discharge of
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employees . . . and other terms, conditions, and privileges of employment.”
42
U.S.C. § 12112(a). The ADA also makes it unlawful for an employer to retaliate
against employees who have “made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under [the ADA].”
Id.
§ 12203(a). To establish a prima facie case of ADA discrimination, a plaintiff
must show that she: (1) was disabled; (2) was a qualified individual; and (3) was
discriminated against because of her disability. Holly v. Clairson Indus., L.L.C.,
492 F.3d 1247, 1255-56 (11th Cir. 2007). To establish a prima facie case of ADA
retaliation, an employee must show: (1) she engaged in statutorily protected
conduct; (2) she suffered an adverse employment action; and (3) a causal
connection exists between the conduct and the adverse action. Batson v. Salvation
Army,
897 F.3d 1320, 1329 (11th Cir. 2018).
Where direct evidence of an employer’s intent is lacking, we analyze ADA
discrimination and retaliation claims under the burden-shifting framework set forth
in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Holly,
492 F.3d
at 1255; Batson, 897 F.3d at 1328-29; see also Earl v. Mervyns, Inc.,
207 F.3d
1361, 1365 (11th Cir. 2000) (noting “[t]he burden-shifting analysis of Title VII
employment discrimination claims is applicable to ADA claims”). Under this
framework, once a plaintiff meets her prima facie burden, the defendant must
present a legitimate, nondiscriminatory reason for its adverse actions. Cleveland v.
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Home Shopping Network, Inc.,
369 F.3d 1189, 1193 (11th Cir. 2004). The
employee must then demonstrate that the employer’s proffered reason was
pretextual. See
id. To establish pretext, a plaintiff must show the employer’s
proffered reason was false and the real reason was discrimination. See St. Mary’s
Honor Ctr. v. Hicks,
509 U.S. 502, 515 (1993).
A plaintiff can show pretext by demonstrating “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in [the
employer’s] proffered legitimate reasons for its action that a reasonable factfinder
could find them unworthy of credence.” Springer v. Convergys Customer Mgmt.
Grp. Inc.,
509 F.3d 1344, 1348 (11th Cir. 2007) (quotation marks omitted).
“Provided that the proffered reason is one that might motivate a reasonable
employer, an employee must meet that reason head on and rebut it, and the
employee cannot succeed by simply quarreling with the wisdom of that reason.”
Chapman v. AI Transp.,
229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). The
pretext inquiry “centers on an employer’s beliefs,” and the question is whether the
employer is dissatisfied with an employee for “non-discriminatory reasons, even if
mistakenly or unfairly so,” or instead merely used those reasons as cover for
discrimination. Alvarez v. Royal Atl. Devs., Inc.,
610 F.3d 1253, 1266 (11th Cir.
2010); see also E.E.O.C. v. Total Sys. Servs., Inc.,
221 F.3d 1171, 1176-77 (11th
Cir. 2000) (providing an employer is entitled to rely on a good faith belief an
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employee has committed professional misconduct and stating pretext cannot be
demonstrated by showing the employer was mistaken).
On the other hand, “the McDonnell Douglas framework is not, and was
never intended to be the sine qua non for a plaintiff to survive summary judgment
in an employment discrimination case.” Smith v. Lockheed-Martin Corp.,
644
F.3d 1321, 1328 (11th Cir. 2011). A plaintiff will also survive summary judgment
if she presents “a convincing mosaic of circumstantial evidence that would allow a
jury to infer intentional discrimination by the decisionmaker.”
Id. (quotation
marks omitted). Such a convincing mosaic may consist of “evidence that
demonstrates, among other things, (1) suspicious timing, ambiguous statements,
and other bits and pieces from which an inference of discriminatory intent might be
drawn, (2) systemically better treatment of similarly situated employees, and
(3) that the employer’s justification is pretextual.” Lewis v. City of Union City,
Ga.,
934 F.3d 1169, 1185 (11th Cir. 2019) (quotation marks and ellipsis omitted).
Here, we assume without deciding that Davidson established a prima facie
case of discrimination and retaliation under the ADA based upon her termination
from Grandview. 2 We further conclude Grandview proffered legitimate,
2
The district court determined the only adverse employment action for the purposes of
Davidson’s ADA claims was her termination because her Equal Employment Opportunity
Commission charge was timely only as to her termination. Davidson does not challenge this
finding on appeal, and she has therefore abandoned any ADA claim based on the pretermination
disciplinary actions. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681 (11th Cir.
2014).
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nondiscriminatory reasons for terminating Davidson: (1) Smith’s October 2017
complaints about Davidson, and (2) Davidson’s discussion of her lawsuit and
medical issues with hospital staff. We therefore turn to the question of whether
there is sufficient evidence in the record from which a reasonable jury could find
Grandview’s reasons for Davidson’s termination were pretextual.
We conclude Davidson has failed to carry her burden in demonstrating the
reasons for her termination were a pretext for unlawful discrimination or
retaliation. Regarding Smith’s complaints, Davidson argues it was not uncommon
for people to ask about her injury because of the boot she wore, and that social
workers would often follow up in response to patient complaints about discharge
plans. As to her discussion of her lawsuit and medical issues with staff, Davidson
asserts that she did not specifically mention her lawsuit but instead asked for a
chair during a meeting because she was made to return to work before her foot had
healed. These arguments, however, essentially quarrel with the wisdom of
Grandview’s business decision and fail to show Grandview lacked a good faith
belief Davidson had committed the misconduct that formed the basis for her
termination. See Chapman,
229 F.3d at 1030; Alvarez,
610 F.3d at 1266.
Davidson also contends there is a genuine issue of material fact as to pretext
because there is evidence in the record showing Grandview had a plan in place to
terminate her. As evidence of this plan, Davidson points to: (1) the October 13,
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2017, letter in which Grandview stated it could not guarantee her reemployment;
(2) her transfer to the ninth floor; and (3) the fact Grandview hired two new social
workers during her absence. This evidence, however, fails to reveal a
discriminatory plan to terminate Davidson that renders Grandview’s proffered
reasons for her termination “unworthy of credence.” See Springer,
509 F.3d at
1348 (quotation marks omitted). The portion of the October 13, 2017, letter that
Davidson relies on was standardized text issued to any employee who had
exhausted her FMLA leave, not a message directed to Davidson because of her
disabilities. As to the transfer, even assuming the ninth floor was a more
challenging work environment, Davidson was released to work without any
restrictions on the use of her ankle, and the October 2017 emails between Colvert
and Wink do not reveal any discriminatory animus. The fact Grandview filled
staffing needs by hiring additional social workers likewise does not suggest a
predetermined plan to eliminate Davidson because of her disabilities or indicate
Grandview’s proffered reasons for terminating Davidson were false.3
3
Davidson also argues that a case manager, Teresa Blocker, asked her to violate federal
privacy law by looking up Blocker’s personal medical record. Davidson submitted in her
declaration that she believed she was being set up to violate the law so that Grandview would
have cause to terminate her, and Blocker “later confirmed this was true.” This evidence does not
bolster Davidson’s argument, however, as there is nothing in Davidson’s declaration to indicate
how Blocker “confirmed” the setup or whether any decisionmaker with respect to Davidson’s
termination had been involved.
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Other pieces of evidence on which Davidson relies similarly fail to
demonstrate pretext. For instance, Davidson contends the first disciplinary action
against her may have been intended for Jamie Callis because of how the name
“Jamie” was spelled on Cassavoy’s underlying complaint, and that Dean “had
issues” with her because she had made unspecified complaints about him in the
past. But these arguments offer only speculation as to whether Grandview did not
honestly believe Davidson engaged in the underlying misconduct and are
insufficient to create a triable issue of fact as to pretext. Cordoba v. Dillard’s, Inc.,
419 F.3d 1169, 1181 (11th Cir. 2005) (stating speculation does not create a
genuine issue of fact for trial); Mayfield v. Patterson Pump Co.,
101 F.3d 1371,
1376 (11th Cir. 1996) (explaining plaintiff must provide significant probative
evidence on the issue of pretext). We are also not persuaded that the mere
mention, in one of Dean’s October 26, 2017, emails, that Davidson had requested
an accommodation for her C. diff shows that her termination was linked to her
infection or any other disability, as opposed to the misconduct complained of by
Smith and Dean.
As further evidence of pretext, Davidson argues the record is replete with
evidence that Watson, Colvert, and other colleagues expressed frustration with her
use of leave due to her disabilities. Davidson mainly discusses stray remarks that
Watson made, such as Watson’s comment that Davidson should look for another
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job while she was on leave for C. diff, and the email in which she stated she was
“screaming out loud” after Davidson failed to return to work after her doctor’s
appointment. But Watson was not a decisionmaker with respect to Davidson’s
termination. Indeed, Watson no longer worked at Grandview when the termination
decision was made by Soekoro, Wink, and Mason. On the record before us,
without other probative evidence of pretext, remarks by Watson and other non-
decisionmakers do not create a genuine issue of material fact as to pretext. See
Rojas v. Fla.,
285 F.3d 1339, 1343 (11th Cir. 2002) (stating that although stray
remarks that are not directly related to an employment decision may contribute to a
circumstantial showing of discriminatory intent, they must be read in conjunction
with the entire record and considered with other evidence).
Davidson argues that in addition to demonstrating sufficient evidence of
pretext under the McDonnell Douglas burden-shifting framework, she has also
presented a “convincing mosaic” of circumstantial evidence that would allow a
jury to infer intentional discrimination by Grandview. See Smith,
644 F.3d at
1328. Her “convincing mosaic” arguments, however, are the same as her pretext
arguments, and they similarly fail to provide sufficient circumstantial evidence of
discrimination or retaliation under the ADA.
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B. FMLA Retaliation
We next turn to Davidson’s FMLA retaliation claim. Under the FMLA, an
eligible employee is entitled to 12 workweeks of leave during any 12-month period
because of, inter alia, a serious health condition that makes the employee unable to
perform the functions of her position.
29 U.S.C. § 2612(a)(1)(D). “[T]he FMLA
protects the substantive rights it creates by prohibiting an employer from retaliating
against its employee for engaging in activities protected under the Act.” Batson,
897 F.3d at 1328 (citing
29 U.S.C. § 2615(a)(1)-(2)). To establish a prima facie
case of retaliation under the FMLA, an employee must demonstrate that: (1) she
engaged in statutorily protected activity; (2) she suffered an adverse employment
action; and (3) there is a causal connection between the protected activity and the
adverse action. Schaaf v. Smithkline Beecham Corp.,
602 F.3d 1236, 1243 (11th
Cir. 2010).
Unless there is direct evidence of the employer’s retaliatory intent in an
FMLA retaliation case, we employ the burden-shifting framework established in
McDonnell Douglas.
Id. If the employee carriers her initial burden in establishing
a prima facie case of FMLA retaliation, the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its action.
Id. The burden
then shifts back to the employee to show the employer’s proffered reasons were a
pretext for discrimination.
Id. at 1244.
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Though the district court found Davidson had established a prima facie case
of FMLA retaliation based on the March 15, 2017, and July 24, 2017, disciplinary
actions, Davidson contends the district court erred in: (1) failing to consider the
February 14, 2017, disciplinary action as another basis for her FMLA claim, and
(2) failing to find a causal connection between her termination and her FMLA
leave. She also argues the court erred in failing to find that Grandview’s proffered
reasons for its adverse actions—both the disciplinary actions and her termination—
were pretextual.
We need not address Davidson’s arguments regarding her prima facie case
because we conclude Grandview proffered legitimate, nonretaliatory reasons for
Davidson’s disciplinary actions and termination, and Davidson failed to show
those reasons were pretextual. As an initial mater, even assuming arguendo that
Davidson had established a prima facie case of FMLA retaliation based on her
termination, her pretext arguments with respect to termination fail for the reasons
discussed above.
As to discipline, Grandview presented legitimate, non-retaliatory reasons for
all three disciplinary actions: documented patient and staff complaints primarily
concerning Davidson’s failure to provide adequate discharge planning. Davidson
has failed to identify any inconsistencies or implausibilities regarding these
proffered reasons. Although Davidson again argues Watson and others were
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frustrated with her taking leave, she has not produced evidence to suggest Watson
did not in good faith base the disciplinary actions on the unsolicited complaints
regarding Davidson’s misconduct. See Alvarez,
610 F.3d at 1266. Davidson
argues it is unclear whether the complaint underlying the first disciplinary action
was about her or Jamie Callis, but this argument is speculative, as discussed above.
She also contends her conduct did not warrant the second disciplinary action
because she had provided the doctor with the information he required in the
patient’s chart, and that her conduct did not warrant the third disciplinary action
because delays in a patient’s discharge were not uncommon. These arguments are
without merit, as they merely quarrel with the wisdom of Grandview’s actions.
See Chapman,
229 F.3d at 1030. Finally, though the disciplinary actions were
close in time to Davidson’s use of FMLA leave, this temporal proximity, without
more, is insufficient evidence of pretext. See Gogel v. Kia Motors Mfg. of Ga.,
Inc.,
967 F.3d 1121, 1138 n.15 (11th Cir. 2020) (en banc).
III. CONCLUSION
For the reasons above, we affirm the district court’s decision granting
summary judgment in favor of Grandview.
AFFIRMED.
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