           Case: 15-13028   Date Filed: 05/25/2016   Page: 1 of 7


                                                     [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 15-13028
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:14-cv-62059-DMM

VICTOR BRISK,

                                                      Plaintiff-Appellant,

                                  versus


SHORELINE FOUNDATION, INC.,
a Florida profit corporation,
JAMES ROYO,
individually,

                                                      Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (May 25, 2016)

Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Victor Brisk appeals from the district court’s grant of summary judgment in

favor of his former employer, Shoreline Foundation, Inc., and James Royo

(collectively “Shoreline”) in an action brought pursuant to the Family and Medical

Leave Act (“FMLA”), 29 U.S.C. § 2615. On appeal, Brisk argues that the district

court erred by granting summary judgment on his FMLA retaliation claims in

favor of Shoreline because there were genuine issues of material fact with regard to

his retaliation claims. Brisk also argues that the district court erred in granting

summary judgment in favor of Shoreline based on its holding that he did not plead

a FMLA interference claim. 1 We will address each point in turn.

                                                  I.

       We review a grant of summary judgment de novo, viewing the evidence in

the light most favorable to the non-moving party. Wilson v. B/E Aerospace, Inc.,

376 F.3d 1079, 1085 (11th Cir. 2004). Summary judgment is appropriate when

there is no genuine issue of material fact. Fed. R. Civ. P. 56(c)(1). A genuine

factual dispute exists if the jury could return a verdict for the non-moving party.

Wilson, 376 F.3d at 1085.



1
        In Brisk’s complaint, he alleged that Shoreline retaliated against him for seeking
worker’s compensation benefits under Florida’s Workers’ Compensation Law Fla. Stat. §
448.205. The district court declined to exercise jurisdiction over this supplemental state law
claim because no federal claims remained after granting summary judgment in favor of Shoreline
as to the FMLA claim. On appeal, Brisk does not challenge this dismissal. Accordingly, any
issue in that respect is abandoned. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,
1330 (11th Cir. 2004).
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      An employee has the right to be restored to his original position or an

equivalent position following FMLA leave. 29 U.S.C. § 2614(a)(1). The FMLA

creates two types of claims to preserve and enforce the rights it creates:

“interference claims, in which an employee asserts that his employer denied or

otherwise interfered with [his] substantive rights under the Act, and retaliation

claims, in which an employee asserts that his employer discriminated against him

because he engaged in activity protected by the Act.” Strickland v. Water Works &

Sewer Bd. of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001) (citations

omitted).

      To establish a claim of FMLA retaliation, an employee must demonstrate

that his employer intentionally discriminated against him for exercising a right

guaranteed under the FMLA. Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261,

1267 (11th Cir. 2008). “Unlike an interference claim, an employee bringing a

retaliation claim faces the increased burden of showing that his employer’s actions

were motivated by an impermissible retaliatory or discriminatory animus.” Id. at

1267-68 (quotations omitted). Absent direct evidence of retaliatory intent, we

apply the burden-shifting framework articulated in McDonnell Douglas. Id. at

1268. To establish a prima facie case of FMLA retaliation, an employee may

show that (1) he engaged in statutorily protected activity, (2) he suffered an




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adverse decision, and (3) the decision was causally related to the protected activity.

Id.

      Close temporal proximity between an employee’s protected conduct and the

adverse action is generally sufficient to create a genuine issue as to whether there

is a causal connection. Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d

1286, 1298 (11th Cir. 2006). The Supreme Court has indicated that the temporal

proximity between an employer’s knowledge of protected activity and an adverse

action must be very close. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273,

121 S. Ct. 1508, 1511, 149 L. Ed. 2d 509 (2001) (citations and quotations omitted).

In Breeden, the Supreme Court cited cases with approval that held a three to four

month disparity was insufficient to show a causal connection. See id. (citations

omitted). “If there is a substantial delay between the protected expression and the

adverse action in the absence of other evidence tending to show causation, the

complaint of retaliation fails as a matter of law.” See Higdon v. Jackson, 393 F.3d

1211, 1221 (11th Cir. 2004). Moreover, there is no causal connection between a

protected act and an adverse action, where the adverse action was caused by

intervening act of misconduct. See Fleming v. Boeing, 120 F.3d 242, 248 (11th

Cir. 1997).

      If the employee successfully demonstrates a prima facie case of FMLA

retaliation, the burden then shifts to the employer to articulate a legitimate reason


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for the adverse action. See Strickland, 239 F.3d at 1297. An employer’s reason for

an employment decision can be “a good reason, a bad reason, a reason based on

erroneous facts, or . . . no reason at all, as long as its action is not for a

discriminatory reason.” Nix v. WLCY Radio/Rahall Comms., 738 F.2d 1181, 1187

(11th Cir. 1984) (citations omitted).

       Once an employer articulates a legitimate non-discriminatory reason, the

employee then must show that the employer’s proffered reason was pretextual.

Strickland, 239 F.3d at 1297. Pretext is only proven if it is shown both that the

reason was false, and that discrimination or retaliation was the real reason behind

the challenged action. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.

Ct. 2742, 2752, 125 L. Ed. 2d 407 (1993).

       With regard to Brisk’s retaliation claim based on his demotion, the district

court correctly granted summary judgment because Shoreline established that it

had a non-discriminatory reason-- that Brisk had refused to give the company its

own bank account password--for changing Brisk’s job following his return from

FMLA leave. With regard to Brisk’s retaliation claim based on his termination, the

district court correctly granted summary judgment because there was no causal

connection between the protected conduct--Brisk taking FMLA leave--and the

adverse event, termination, when the temporal proximity of four months was

tenuous and there was an intervening cause of poor work performance.


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Accordingly, we affirm the district court’s granting of summary judgment in favor

of Shoreline in this respect.

                                           II.

      A complaint should contain a “short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Pleadings

must be construed “so as to do justice.” Fed. R. Civ. P. 8(e). A complaint need

not specify in detail the precise theory giving rise to recovery, and all that is

required is that the defendant be on notice as to the claim being asserted against

him and the grounds on which it rests. Sams v. United Food & Commercial

Workers Int’l Union, AFL-CIO, CLC, 866 F.2d 1380, 1384 (11th Cir. 1989).

      Although Rule 8’s pleading standard is to be applied liberally, a defendant is

not required to infer all possible claims that could arise out of the facts set forth in

the complaint at the summary judgment stage. Gilmour v. Gates, McDonald &

Co., 382 F.3d 1312, 1315 (11th Cir. 2004). At the summary judgment stage, the

proper procedure for a plaintiff to assert a new claim is to amend the complaint in

accordance with Fed. R. Civ. P. 15(a). Id. A plaintiff may not amend a complaint

through argument in a brief opposing summary judgment. Id. (quotation omitted).

      FMLA’s interference provision makes it “unlawful for any employer to

interfere with, restrain, or deny the exercise of or the attempt to exercise,” any

substantive FMLA right. 29 U.S.C. § 2615(a)(1). An FMLA interference claim


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requires the plaintiff to show that he was entitled to a benefit denied by the

defendant. Strickland, 239 F.3d at 1206-07.

      Because Brisk did not raise an interference claim in his complaint and did

not seek to amend his complaint to add the additional claim, we affirm the district

court’s granting of summary judgment in favor of Shoreline in this respect.

Accordingly, we affirm.

      AFFIRMED.




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