                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                        FILED
                          ________________________
                                                                .U .S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                 No. 06-13016
                                                                   DECEMBER 19, 2006
                             Non-Argument Calendar
                                                                    THOMAS K. KAHN
                           ________________________                     CLERK

                      D. C. Docket No. 05-00384-CV-JOF-1

TERRANCE K. DAUGHERTY,


                                                                Plaintiff-Appellant,

      versus

MIKART, INC.,

                                                               Defendant-Appellee.
                            ______________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________
                              (December 19, 2006)

Before BIRCH, BARKETT and HULL, Circuit Judges.

PER CURIAM:

      Terrance Daugherty filed an action against his former employer, Mikart, Inc.

(“Mikart”), pursuant to the Family and Medical Leave Act (“FMLA”), 29 U.S.C.

§ 2615(a)(1), alleging retaliation for his use of medical leave. Daugherty appeals
the district court’s order granting Mikart’s motion for summary judgment on his

FMLA retaliation claim.

      We review a district court order granting summary judgment de novo,

viewing all the facts and reasonable inferences in the light most favorable to the

non-moving party. Imaging Bus. Mach. L.L.C. v. BancTec, Inc., 459 F.3d 1186,

1189 (11th Cir. 2006). Summary judgment is only appropriate when the moving

party has demonstrated that there is no genuine issue as to any material fact.

Brooks v. County Comm’n, 446 F.3d 1160, 1162 (11th Cir. 2006). There must be

enough evidence supporting the opposing party’s position that a jury could

reasonably find for that party. Id. A mere “scintilla” of evidence is insufficient.

Id. In the context of summary judgment, the court must look at the record as a

whole, reviewing all of the evidence in the record. Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 2110 (2000). We may affirm the

district court’s judgment “on any ground that finds support in the record.” Lucas

v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001).

      Where a plaintiff alleges an FMLA retaliation claim without direct evidence

of the employer’s discriminatory intent, 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 (1973). Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d



                                           2
1286, 1297 (11th Cir. 2006). “To establish a prima facie case of retaliation, the

plaintiff must show that: (1) he engaged in statutorily protected activity; (2) he

experienced an adverse employment action; and (3) there is a causal connection

between the protected activity and the adverse action.” Id. “Close temporal

proximity between protected conduct and an adverse employment action is

generally sufficient circumstantial evidence to create a genuine issue of material

fact of a causal connection.” Id. at 1298.

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

defendant to put forth a legitimate, non-retaliatory, reason for the challenged

action. Id. at 1297. If the defendant puts forth such a reason, the plaintiff must

show that he will be able to demonstrate at trial that the defendant’s stated reason

for the action is pretextual. Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117

F.3d 1278, 1287 (11th Cir. 1997). Pretext is only proven if “it is shown both that

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

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

Ct. 2742, 2752 (1993). “This evidence must reveal such weaknesses,

implausibilities, inconsistencies, incoherencies or contradictions in the employer’s

proffered legitimate reasons for its actions that a reasonable factfinder could find

them unworthy of credence.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763,



                                             3
771 (11th Cir. 2005) (quotation marks omitted). The passage of a short amount of

time between the plaintiff’s request for leave and his termination may not be

sufficient, by itself, to establish pretext. See Hurlbert, 439 F.3d at 1298 (holding

that the passage of less than two weeks between the plaintiff’s request for leave

and his termination was “probably insufficient to establish pretext by itself”). In

addition, an employer may fire an employee based upon erroneous facts, as long as

it is not for a discriminatory reason. See Abel v. Dubberly, 210 F.3d 1334, 1339

n.5 (11th Cir. 2000).

      Upon review of the record and consideration of the parties’ briefs, we find

no reversible error. We do not need to decide whether the district court properly

determined that Daugherty did not make out a prima facie case because we find

that Daugherty failed to show that Mikart’s stated reason for terminating him was

pretextual. See Lucas, 257 F.3d at 1256; see also Cuddeback v. Fla. Bd. of Educ.,

381 F.3d 1230, 1236 (11th Cir. 2004) (affirming the grant of summary judgment

despite the district court basing summary judgment upon its mistaken finding that

the plaintiff failed to make out her prima facie case because this Court could

determine, based on the record, that the plaintiff failed to show pretext).

Daugherty claims that Mikart’s stated reason for terminating his employment –

submitting a fraudulent medical certification – was pretextual because: (1) the



                                           4
doctor subsequently verified his signature on the medical certification; (2) Mikart

did not raise the issue of the false form until after a dispute arose regarding

Daugherty wearing a mask and continuing to work in the lab; and (3) Mikart’s

Siegfried expressed hostility towards Daugherty because she did not believe he

was really suffering from a medical condition.

      Daugherty did not show that Mikart’s stated reason was pretextual. While

the close temporal proximity between Mikart’s termination of Daugherty’s

employment and his application for FMLA leave is evidence of pretext, it may be

insufficient to show pretext by itself. As we noted in Hurlbert, a span of less than

two weeks is not enough. See Hurlbert, 439 F.3d at 1298. This is particularly true

where, as here, the employer has a history of granting FMLA leave without

penalizing its employees, including Daugherty. Therefore, Daugherty needed to

present other evidence supporting his claim that Mikart’s stated reason for

terminating him was pretextual.

      The doctor’s verification that it is his signature on the medical certification

does not help Daugherty because Mikart was not questioning whether the signature

was actually the doctor’s, but was questioning whether the doctor had actually

signed the particular form that Daugherty had provided to Mikart or if a copy of

the doctor’s signature had been falsely put on that form. The lines on the form did



                                           5
not match up and gave an appearance of having been altered. The first two pages

of the submitted form were original, but the last page, the page that contained the

doctor’s signature, was a copy.

      In addition, Mikart’s termination of Daugherty’s employment only after he

returned to work on April 15 and requested more FMLA leave does not undercut

Mikart’s stated reason for the termination. The date that Daugherty returned to

work, April 15, was also the first opportunity that Mikart’s Siegfried had to

question Daugherty about the allegedly falsified document. Therefore, Mikart’s

termination of Daugherty’s employment on April 16, 2003, does not show that

Mikart’s reason for terminating Daugherty was pretextual because Mikart officials

wished to speak with Daugherty and give him a chance to explain the appearance

of the form before terminating him. Furthermore, evidence showed that Mikart

officials attempted to meet with Daugherty prior to his return to work, but

Daugherty failed to show at the scheduled meeting.

      There is some evidence that Siegfried displayed hostility towards Daugherty

when he returned to work. However, even if such hostility were present, it does

not indicate that Mikart’s stated reason for terminating Daugherty was pretextual

because the hostility occurred after Daugherty submitted the medical certification

form and Mikart questioned its authenticity. Siegfried’s hostility, therefore, could



                                          6
have been caused by her belief that Daugherty had submitted a falsified form. In

any event, Siegfried’s hostility, even when combined with the temporal proximity

between Daugherty’s leave request and firing, is insufficient to allow a reasonable

trier of fact to find that Mikart’s basis for firing him was pretextual.

      Therefore, Daugherty failed to show that Mikart’s stated reason for

terminating his employment was pretext because he did not show either that the

reason given was false, or that discrimination was the real reason. See Hicks, 509

U.S. at 515, 113 S. Ct. at 2752. Accordingly, we affirm the district court’s grant of

Mikart’s motion for summary judgment.

      AFFIRMED.




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