                                                               [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                No. 09-13683                    APRIL 22, 2010
                            Non-Argument Calendar                 JOHN LEY
                                                                   CLERK
                          ________________________

                   D. C. Docket No. 08-00484-CV-T-33-MSS

ERIC A. BARKER,


                                                                 Plaintiff-Appellant,

                                      versus

R.T.G. FURNITURE CORP.,
d.b.a. Rooms To Go,
                                                               Defendant-Appellee.


                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                                 (April 22, 2010)

Before CARNES, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Plaintiff Eric A. Barker (Barker) appeals the district court’s grant of
summary judgment in favor of Defendant Rooms to Go (RTG) in his suit alleging

interference and retaliation in violation of the Family and Medical Leave Act

(FMLA) of 1993, 29 U.S.C. §§ 2601 - 2654. Barker alleged that RTG, his former

employer, (1) interfered with his attempt to become qualified for intermittent leave

and (2) retaliated against him by transferring and then firing him because of his

need to take leave under the FMLA for depression and anxiety.

      We review a district court’s grant of summary judgment de novo. Thomas v.

Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). Summary judgment

is appropriate when the evidence, viewed in the light most favorable to the

nonmoving party, presents no genuine issue of material fact and compels judgment

as a matter of law. Id. “There is no genuine issue of material fact if the

nonmoving party fails to make a showing sufficient to establish the existence of an

element essential to that party’s case and on which the party will bear the burden of

proof at trial.” Jones v. Gerwens, 874 F.2d 1534, 1538 (11th Cir. 1989). “Genuine

disputes are those in which the evidence is such that a reasonable jury could return

a verdict for the non-movant.” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739,

742 (11th Cir. 1996) (internal quotation marks omitted).

      Under the FMLA, eligible employees are entitled to up to 12 workweeks of

unpaid leave during any 12-month period for “a serious health condition that



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makes the employee unable to perform the functions of the position of such

employee.” 29 U.S.C. § 2612(a)(1)(D). According to federal regulations, “an

employee is unable to perform the functions of the position where the health care

provider finds that the employee is unable to work at all or is unable to perform

any one of the essential functions of the employee’s position.” 29 C.F.R.

§ 825.123(a) (2009) (internal quotation marks omitted). A “serious health

condition” denotes “an illness, injury, impairment, or physical or mental condition

that involves – (A) inpatient care in a hospital . . . or (B) continuing treatment by a

health care provider.” 29 U.S.C. § 2611(11). A serious health condition involving

continuing treatment by a health care provider includes “chronic conditions,”

which are defined as “[a]ny period of incapacity or treatment for such incapacity

due to a chronic serious health condition” that:

      (1) Requires periodic visits (defined as at least twice a year) for
      treatment by a health care provider, or by a nurse under direct
      supervision of a health care provider;
      (2) Continues over an extended period of time (including recurring
      episodes of a single underlying condition); and
      (3) May cause episodic rather than a continuing period of incapacity
      (e.g., asthma, diabetes, epilepsy, etc.).

29 C.F.R. § 825.115(c). “[I]ncapacity means inability to work . . . or perform other

regular daily activities due to the serious health condition, treatment therefore, or

recovery therefrom.” Id. § 825.113(b). The FMLA prohibits employers from



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interfering with any rights guaranteed under the Act. 29 U.S.C. § 2615(a).

      We have recognized that “§ 2615(a) creates two types of claims: 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.” Hurlbert v. St. Mary’s Health Care

Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006) (internal quotation marks omitted).

“Interference and retaliation claims both require the employee to establish a serious

health condition.” Russell v. N. Broward Hosp., 346 F.3d 1335, 1340 (11th Cir.

2003). To establish an interference claim, an employee must demonstrate by a

preponderance of the evidence that he was denied a benefit to which he was

entitled under the FMLA. Hurlbert 439 F.3d at 1286. “The employee need not

allege that his employer intended to deny the benefit – the employer’s motives are

irrelevant.” Id. (internal quotation marks omitted). “When evaluating a claim of

retaliation under the FMLA, in the absence of direct evidence of discrimination on

the part of the employer, we apply the burden-shifting framework established by

the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973).” Brungart v. BellSouth Telecomm., Inc., 231 F.3d

791, 798 (11th Cir. 2000). To establish a prima facie retaliation claim, an



                                          4
employee must demonstrate that: (1) he engaged in statutorily protected activity;

(2) he suffered an adverse employment decision; and (3) the adverse decision and

the protected activity share a causal connection. Hurlbert, 439 F.3d at 1297. “If

the plaintiff makes out a prima facie case, the burden then shifts to the defendant to

articulate a legitimate reason for the adverse action. Id. “If the defendant does so,

the plaintiff must then show that the defendant’s proffered reason for the adverse

action is pretextual.” Id. “To show pretext, a plaintiff must come forward with

evidence, including the previously produced evidence establishing the prima facie

case, sufficient to permit a reasonable factfinder to conclude that the reasons given

by the employer were not the real reasons for the adverse employment decision.”

Id. (internal quotation marks omitted).

      Barker’s interference and retaliation claims both fail because he has failed to

introduce sufficient evidence to create a genuine issue of material fact as to

whether he suffered from a serious health condition. It is undisputed that Barker

visited Dr. Parekh, and that Dr. Parekh prescribed medication to treat Barker’s

anxiety. But beyond that, the only additional evidence produced by Barker

purporting to establish a serious health condition is his own testimony that, on a

few occasions, his anxiety caused him to take short breaks from his work. There

is, however, no evidence of any incapacity on Barker’s part. At most, Barker’s



                                           5
testimony demonstrates that on a few occasions he had to take brief breaks at work.

Barker describes his worst episode as requiring him to take a one hour break;

however, he attributes that episode to needing a change in medication and does not

claim recurring episodes from that cause. Moreover, Barker never alleges that he

was unable to complete his work. Instead, he alleges that he always performed his

job well. Barker does not introduce any medical testimony demonstrating any

incapacity, and in fact, Dr. Parekh testifies that he did not believe that Barker was

incapacitated and did not advise him to stop working. In the absence of evidence

of any inability to work or perform the functions of his job, Barker has not

introduced sufficient evidence to create a genuine issue of material fact as to

whether he suffers from a serious health condition.

      Both retaliation and interference claims require a plaintiff to establish a

serious health condition. Russell, 346 F.3d at 1340. Because there is no genuine

issue of material fact as to whether Barker suffered from a serious health condition,

the district court did not err in granting RTG summary judgment on Barker’s

interference and retaliation claims under the FMLA. Accordingly, we affirm grant

of summary judgment in favor of RTG.

      AFFIRMED.




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