USCA11 Case: 22-10466 Date Filed: 09/26/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10466
Non-Argument Calendar
____________________
LAURIE MCCORMICK,
Plaintiff-Appellant,
versus
SOUTHEAST PERSONNEL LEASING, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-01617-SDM-AAS
____________________
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2 Opinion of the Court 22-10466
Before WILSON, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Laurie McCormick appeals from the dis-
trict court’s grant of summary judgment against her on her retalia-
tion and failure to accommodate claims under the Americans with
Disabilities Act (ADA),
42 U.S.C. §§ 12112(a), 12203(a), and her re-
taliation and interference claims under the Family Medical Leave
Act (FMLA),
29 U.S.C. § 2615(a), against Defendant-Appellee
Southeast Personnel Leasing, Inc. (SPLI). First, McCormick argues
that the district court erred in failing to review the record in her
favor. Second, she argues that the district court erred by conclud-
ing that she failed to establish a prima facie case of FMLA or ADA
retaliation. Third, she asserts that the district court erred by con-
cluding that she did not present a “convincing mosaic” of circum-
stantial evidence for her retaliation claims. Finally, she argues that
the district court erred by concluding that she did not present a
prima facie case of FMLA interference or ADA failure to accom-
modate.
After careful review, we affirm. For ease of reference, we
will address each point in turn.
I.
McCormick was employed with SPLI for two years as a pay-
roll technician when she was terminated for allegedly poor perfor-
mance and unprofessionalism. She alleges that her termination
constituted FMLA and ADA retaliation, FMLA interference, and
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22-10466 Opinion of the Court 3
ADA failure to accommodate because she had requested FMLA
forms to take leave for a disabling knee injury. The district court
granted SPLI’s motion for summary judgment, finding that the rec-
ord conclusively demonstrates that SPLI terminated McCormick
for reasons unrelated to her FMLA and ADA rights.
II.
McCormick first argues that the district court failed to view
the evidence in her favor. We review a district court’s grant of
summary judgment de novo. Krutzig v. Pulte Home Corp.,
602
F.3d 1231, 1234 (11th Cir. 2010). Summary judgment is appropriate
where, viewing the movant’s evidence and all factual inferences
arising from it in the light most favorable to the nonmoving party,
there is no genuine issue of any material fact.
Id. A court should
give credence to the evidence supporting the movant that is uncon-
tradicted and unimpeached, at least to the extent that the evidence
comes from disinterested witnesses. Reeves v. Sanderson Plumb-
ing Prods.,
530 U.S. 133, 151 (2000). Unrebutted evidence from the
defendant can be a basis for summary judgment. See Martin v. Fin.
Asset Mgmt. Sys.,
959 F.3d 1048, 1054–58 (11th Cir. 2020).
Here, the court referenced uncontested SPLI factual asser-
tions in the record. McCormick contends that this contravenes the
court’s obligation to draw all inferences in the light most favorable
to the nonmoving party. However, McCormick failed to raise a
factual dispute and as such the court accurately relied on the record
as a whole. Further, relying on uncontradicted or undisputed
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4 Opinion of the Court 22-10466
evidence in the record is not a credibility evaluation, and therefore
it does not circumvent the standards for summary judgment.
Therefore, the district court did not fail to apply the correct stand-
ard with respect to any of the summary judgment-related points
McCormick raises.
III.
Second, McCormick argues that the district court erred in
finding that she failed to establish the prima facie elements of
FMLA and ADA retaliation.1 A prima facie case of retaliation un-
der the FMLA or ADA requires a showing that (1) the employee
engaged in statutorily protected conduct, (2) the employee suffered
an adverse employment action, and (3) there is a causal connection
between the two. Todd v. Fayette Cnty. Sch. Dist.,
998 F.3d 1203,
1219 (11th Cir. 2021). However, when an employer contemplates
an action before an employee engages in protected activity, tem-
poral proximity between the protected activity and the subsequent
adverse action does not suffice to show causation. Drago v. Jenne,
1 Under the McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973),
framework applicable to ADA and FMLA retaliation cases, a plaintiff must es-
tablish a prima facie case of retaliation to survive summary judgment. Todd
v. Fayette Cnty. Sch. Dist.,
998 F.3d 1203, 1219 (11th Cir. 2021). If the plaintiff
does so, the employer has the burden to offer a legitimate nondiscriminatory
reason for its employment decision.
Id. If the employer carries that burden,
then the plaintiff must show that the proffered nondiscriminatory reasons are
pretextual.
Id.
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22-10466 Opinion of the Court 5
453 F.3d 1301, 1308 (11th Cir. 2006); see also Whatley v. Metro.
Atlanta Rapid Transit Auth.,
632 F.2d 1325, 1329 (5th Cir. 1980) 2
(concluding that even though the plaintiff engaged in protected ex-
pression in close temporal proximity to the adverse action, there
was no causal connection because the evidence demonstrated that
the dismissal was actually caused by “a culmination of problems
growing out of appellant's manner of handling his job, his lack of
cooperation within his office, his mismanagement of his staff, his
refusal to comply with the terms of his job description, and his re-
fusal to follow instructions from his supervisor”).
Here, McCormick failed to show that the undisputed tem-
poral proximity establishes causation. SPLI’s unrebutted testi-
mony shows that although McCormick’s supervisors fired her on
Friday, May 31, 2019, the same day she requested FMLA paper-
work, McCormick’s supervisors decided to fire her on Tuesday,
May 28, 2019. Further, unrebutted testimony from McCormick’s
supervisors established that they did not need approval from SPLI’s
human resources department, and the human resources director
was not involved in decisions to fire employees. Thus, without
further evidence of a causal connection, McCormick failed to es-
tablish a prima facie case of retaliation. See Drago,
453 F.3d at 1308.
IV.
2 We are bound by decisions of the former Fifth Circuit handed down before
October 1, 1981. Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
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6 Opinion of the Court 22-10466
Third, McCormick argues that the district court erred in
finding that she failed to present a “convincing mosaic” of evi-
dence. Despite a claim failing under the burden-shifting frame-
work set forth in McDonnell Douglas, a plaintiff may survive sum-
mary judgment if she presents circumstantial evidence that creates
a triable issue concerning the employer’s discriminatory intent by
introducing evidence sufficient to show, when viewed in the light
most favorable to the plaintiff, a “convincing mosaic” of circum-
stantial evidence that would allow a jury to infer intentional dis-
crimination by the decisionmaker. Smith v. Lockheed-Martin
Corp.,
644 F.3d 1321, 1328 (11th Cir. 2011). A plaintiff may estab-
lish a “convincing mosaic” by pointing to evidence that demon-
strates, among other things, (1) suspicious timing, ambiguous
statements, or other information from which discriminatory intent
may be inferred; (2) superior treatment of similarly situated work-
ers; and (3) pretext. Jenkins v. Nell,
26 F.4th 1243, 1250 (11th Cir.
2022).
In civil cases, we generally will not review issues not raised
in the district court. Burch v. P.J. Cheese, Inc.,
861 F.3d 1338, 1352
(11th Cir. 2017). We can, however, notice plain error if the issue is
a pure question of law and refusal to consider it would result in a
miscarriage of justice.
Id.
Here, McCormick did not raise a “convincing mosaic” argu-
ment before the district court, so we decline to consider her argu-
ment in this respect. See Burch, 861 F.3d at 1352. Even if we did
consider it, we conclude that the circumstantial evidence
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22-10466 Opinion of the Court 7
McCormick points to does not establish a “convincing mosaic” of
retaliation.
V.
Finally, McCormick argues that the district court erred in
finding that she failed to establish a prime facie claim for her FMLA
interference claim and the ADA failure to accommodate claim. To
succeed on an FMLA interference claim, a plaintiff must show that
(1) she was entitled to a benefit under the FMLA and (2) that her
employer denied her that benefit. White v. Beltram Edge Tool
Supply, Inc.,
789 F.3d 1188, 1191 (11th Cir. 2015). If a dismissal
would have occurred regardless of a request for FMLA leave, an
employee may be dismissed notwithstanding that her termination
would prevent her from exercising her right to leave or reinstate-
ment. Krutzig,
602 F.3d at 1236.
Under the ADA, an employer may not discriminate against
a qualified individual with a disability because of her disability.
Holly v. Clairson Indus., L.L.C.,
492 F.3d 1247, 1262 (11th Cir.
2007). Discrimination includes failing to make reasonable accom-
modations.
Id. The duty to provide a reasonable accommodation
is not triggered unless a specific demand for an accommodation has
been made. Gaston v. Bellingrath Gardens & Home, Inc.,
167 F.3d
1361, 1363 (11th Cir. 1999) (per curiam).
Here, the record shows that McCormick failed to establish
elements of both claims. First, as to her FMLA interference claim,
she was not denied the FMLA paperwork she requested, and
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8 Opinion of the Court 22-10466
unrebutted evidence established that SPLI would have fired her re-
gardless of her request for FMLA paperwork. See White, 789 F.3d
at 1191; Krutzig,
602 F.3d at 1236. Second, as to her ADA failure to
accommodate claim, she failed to proffer any evidence that her re-
quest for FMLA paperwork established either a demand for an ac-
commodation or that she was seeking an accommodation. See
Gaston,
167 F.3d at 1363.
We affirm the district court’s grant of summary judgment
on behalf of SPLI.
AFFIRMED.
