                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            May 29, 2008
                             No. 07-14188                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 06-20766-CV-PAS

LISA BURKE THOMPSON,


                                                           Plaintiff-Appellant,

                                  versus

BAPTIST HOSPITAL OF MIAMI, INC.,
BAPTIST HEALTH SOUTH FLORIDA, INC.,


                                                        Defendants-Appellees.


                       ________________________

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

                              (May 29, 2008)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:
      Plaintiff Lisa Burke Thompson appeals the district court’s grant of summary

judgment in favor of her former employer Baptist Hospital of Miami and Baptist

Health South Florida (hereinafter Baptist Hospital) in her employment

discrimination suit brought pursuant to 42 U.S.C. § 2000e-(2)(a)(1) (“Title VII”)

and the Florida Civil Rights Act, Florida Statute § 760.10 (“FCRA”). After

review, we affirm.

                               I. BACKGROUND

      Thompson, who is African American, was employed by Baptist Hospital in

the Children’s Center, which provides child care for hospital employees. By

January 26, 2005, Thompson had exhausted the twelve weeks of leave available to

her under the Family and Medical Leave Act (“FMLA”). On that date, Thompson

began a medical leave of absence under Baptist Hospital’s non-FMLA leave

policy.

A.    Non-FMLA Leave Policy

      Baptist Hospital provided copies of the non-FMLA leave policy to its

employees, including Thompson. In addition, just a week before she began her

non-FMLA leave of absence, Thompson attended a training session on Baptist

Hospital’s FMLA and non-FMLA leave policies.

      Baptist Hospital’s non-FMLA leave policy provided as follows: (1) an



                                         2
employee on leave seeking to return to work had to complete a “Notice of Intention

to Return from Leave of Absence” before returning to active status; (2) if the

employee was on leave for more than two weeks, notification had to be given five

days prior to the employee’s planned return; and (3) if the employee was absent

due to his or her own health problem, the employee needed to bring a return-to-

work release statement from his or her health care provider to obtain a signed

release to return to work from Baptist Hospital’s Employee Health Service. The

policy also provided as follows: (1) if the leave was for thirty days or less, the

employee will be returned to the employee’s former position; and (2) if the leave

lasted between 31 and 90 days, the hospital will make an effort to return the

employee to the former position or in the same department and classification in

which the employee had worked prior to the leave of absence. If such a position

was not available, the employee could be granted a thirty-day extension of leave in

order to locate another position in the system, but if the employee did not obtain

another position, the employee would be terminated.

      After her non-FMLA leave began, Thompson needed to return to work

within thirty days (i.e., by February 25, 2005) in order to guarantee her former

position at the Children’s Center. Instead, Thompson did not report to Baptists

Hospital’s Employee Health Service with her doctor’s return-to-work release



                                           3
statement until March 7, 2005. Thompson’s doctor cleared her to return to work

on March 7, 2005, but restricted her to light work with lifting of no more than

twenty pounds. Thompson’s former child care position required lifting between

ten and fifty pounds because employees in that position must be able to lift the

children in their care. Thompson also requested a part-time morning schedule.

         When Thompson attempted to return to her child care position, her

supervisor, Daisy Acosta, informed her that she could not be accommodated.

Furthermore, when Thompson did not return to work within the thirty-day period

required under the non-FMLA leave policy to guarantee reinstatement, Acosta

posted the position to be filled. Thompson applied for the posted position.

However, Letty Lederman, a two-year volunteer at the hospital who is white, was

hired.

B.       District Court Proceedings

         Thompson filed this action in district court alleging that she was terminated

based on her race.1 Following discovery, Baptist Hospital moved for summary

judgment. The district court granted summary judgment, concluding that

Thompson had failed to present evidence that a similarly situated employee outside




         1
        Thompson does not bring a hiring claim based on race, only that she was terminated
because of her race.

                                              4
her protected class was treated more favorably, an element of her prima facie case.2

Alternatively, the district court concluded that Thompson failed to present

evidence that Baptist Hospital’s legitimate, nondiscriminatory reason for

terminating her was pretext for discrimination.

       Thompson filed this appeal.3

                                      II. DISCUSSION

       Where, as here, a plaintiff relies on circumstantial evidence of

discrimination, we evaluate whether summary judgment is appropriate using the

now familiar McDonnell Douglas framework.4 Combs v. Plantation Patterns, 106

F.3d 1519, 1527 (11th Cir. 1997). Under McDonnell Douglas, the plaintiff must

first establish a prima facie case. E.E.O.C. v. Joe’s Stone Crabs, 296 F.3d 1265,

1272 (11th Cir. 2002). If the plaintiff makes out a prima facie case, the burden

shifts to the employer to articulate a legitimate, nondiscriminatory reason for its

actions and then to the plaintiff to present evidence that the employer’s reason is

       2
         Thompson’s action also initially claimed that she was subjected to a racially hostile
work environment and denied promotions based on her race. The district court granted summary
judgment on these claims, concluding that they were time barred because Thompson had not
timely filed her charge with the Equal Employment Opportunity Commission. On appeal,
Thompson does not contest the district court’s conclusion that her other claims were time-barred
and we do not address her time-barred claims further.
       3
         We review a grant of summary judgment de novo, applying the same legal standards as
the district court and viewing all evidence and drawing all reasonable inferences in favor of the
non-moving party. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005).
       4
           McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).

                                                5
pretext for discrimination. Id. at 1272-73.

A.    Prima Facie Case

      To establish a prima facie case of discriminatory discharge, the plaintiff

must show that: (1) she is a member of a protected class; (2) she was discharged;

(3) she was qualified for the position from which she was discharged; and (4) her

employer treated a similarly situated employee outside her protected class more

favorably or filled her former position with someone outside her protected class.

Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003). Here, the only

contested element of the prima facie case is the fourth element.

      Thompson points to Christina Noboa, an Hispanic worker in the Children’s

Center, as a similarly situated employee. Noboa had injured her foot and was

instructed by her doctor to stay off of it. Noboa sought an accommodation from

Baptist Hospital, which temporarily assigned her to work at the front desk assisting

the main secretary in her duties.

      We agree with the district court that Noboa is not “similarly situated” to

Thompson. Thompson was on FMLA leave for twelve weeks and then on non-

FMLA leave for over thirty days. Thompson was terminated after she did not

return to work within that thirty days. The non-FMLA leave policy expressly

provides that an employee is not guaranteed a return to their former position if the



                                          6
non-FMLA leave is over thirty days. More importantly, there is no evidence that

Noboa was placed in the temporary secretarial position after being on non-FMLA

leave for more than thirty days. Indeed, there is no evidence that Noboa was even

on non-FMLA leave prior to being placed in the secretarial position. Under the

circumstances, Noboa is not a similarly situated employee.

      Nonetheless, Thompson did establish the fourth element by showing that her

position was ultimately filled by an applicant who is not African American. Thus,

Thompson met her prima facie case. See Maynard, 342 F.3d at 1289 (stating that a

discriminatory discharge plaintiff may satisfy the fourth prong of the prima facie

case by showing either that she was treated less favorably than a similarly situated

person outside her protected class or that her former position was filled by

someone outside her protected class).

B.    Legitimate Non-discriminatory Reason and Pretext

      If the plaintiff presents evidence of a prima facie case, a rebuttable

presumption arises that the employer unlawfully discriminated against her and the

burden shifts to the employer to articulate a legitimate, nondiscriminatory reason.

Joe’s Stone Crabs, Inc., 296 F.3d at 1272. If the employer meets this burden of

production, thereby rebutting the presumption of discrimination, the plaintiff must

show that the proffered reason is in fact pretext for discrimination. Id. at 1272-73.



                                          7
      Thompson does not dispute that Baptist Hospital articulated legitimate

nondiscriminatory reasons for discharging her. Specifically, Baptist Hospital

presented evidence that it discharged Thompson because Thompson did not return

to work within the thirty days required by its non-FMLA leave policy to guarantee

her former job and that, when she did return to work, it could not accommodate her

work restrictions of light duty work with lifting of no more than twenty pounds or

her request for a part-time morning schedule.

      To establish pretext, the plaintiff must present evidence that “the proffered

reason was not the true reason for the employment decision . . . either . . . by

persuading the court that a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer’s proffered explanation [was]

unworthy of credence.” Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276,

1289 (11th Cir. 2005) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 256, 101 S. Ct. 1089, 1095 (1981)). The plaintiff’s pretext 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, 771 (11th Cir. 2005).

      Here, Thompson presented no evidence that she in fact complied with the



                                           8
non-FMLA leave policy. Although Thompson claims she was able and willing to

return to work within the thirty-day period, she did not bring her doctor’s return-to-

work statement to Employee Health Services or give her supervisor five-days

notice of an intent to return within the thirty-day period. In fact, Thompson’s

doctor did not clear her to return to work until March 7, 2005, after the thirty-day

period (and her right to guaranteed reinstatement) had expired.

        In addition, Thompson presented no evidence that Baptist Hospital could

have reinstated her to her child care position despite her lifting restriction. In fact,

Thompson does not dispute that employees at the Children’s Center needed to be

able to lift more than twenty pounds in order to care for the children. Furthermore,

Baptist Hospital presented evidence that it had discharged a non-African American

employee at the Children’s Center, Janet Crespo, who remained on extended

medical leave and then sought to return to work with a lifting restriction. Like

Thompson, Crespo was told that Baptist Hospital could not accommodate her

lifting restriction and her child care position was posted. It is also undisputed that

a part-time morning position was not available when Thompson sought to return to

work.

        Thompson points to the fact that her supervisor, Acosta, inquired with the

human resources department about posting Thompson’s position once the thirty-



                                            9
day period had run. Thompson contends that this conduct was inconsistent with

the non-FMLA leave policy’s commitment to make efforts to reinstate an

employee to his or her position if he or she returns to work between 31 and 90

days. However, Acosta explained that she made the inquiry to human resources

about posting the position after the thirty days expired because she had been

experiencing difficulties pulling employees from one classroom to another and

needed to fill the position to maintain the Children’s Center child-to-staff ratios.

Thompson has presented no evidence that this explanation is false, and, in fact,

there is ample evidence that employees at the Children’s Center were being pulled

from one classroom to another to maintain child-to-staff ratios and that this

practice caused problems.

      We recognize that Thompson also claims that her supervisor, Acosta,

sometimes showed favoritism to employees that were in her circle of friends.

However, there was no evidence Acosta showed favoritism in applying the non-

FMLA leave policy or that Acosta’s favoritism worked to the detriment of only

Thompson’s protected class. See Howard v. BP Oil Co., Inc., 32 F.3d 520, 526-27

(11th Cir. 1994) (explaining that nepotism that is not limited to the plaintiff’s

protected class is not actionable as disparate treatment discrimination under Title

VII); Platner v. Cash & Thomas Contractors, Inc., 908 F.2d 902, 905 (11th Cir.



                                           10
1990) (same).

       Thompson also relies on the evidence that Christina Noboa was given

secretarial work after she injured her foot. For the same reasons this evidence does

not support Thompson’s prima facie case, it also does not support an inference of

pretext. See Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir.

2001) (concluding that plaintiff’s comparator evidence did not support a showing

of pretext because the comparator was not “similarly situated”).

       Thompson failed to present evidence that Baptist Hospital’s reasons for

discharging her were false or that Baptist Hospital’s actions were motivated by

Thompson’s race. Accordingly, the district court properly granted summary

judgment to Baptist Hospital on Thompson’s discriminatory termination claims.5

       AFFIRMED.




       5
        The FCRA, which is patterned after Title VII, are analyzed using the same framework as
Title VII claims and Title VII precedent. Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385,
1387 (11th Cir. 1998). Thus, Thompson’s FCRA claim fails for the same reasons as her Title
VII claim.

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