               Case: 16-11788        Date Filed: 07/31/2018      Page: 1 of 26


                                                                                  [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 16-11788
                               ________________________

                          D.C. Docket No. 3:14-cv-00031-TCB



EBONIE BATSON,

                                                                   Plaintiff - Appellant,

                                            versus


THE SALVATION ARMY,

                                                                   Defendant - Appellee.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________
                                    (July 31, 2018)

Before ROSENBAUM, JILL PRYOR and RIPPLE, * Circuit Judges.

JILL PRYOR, Circuit Judge:


       *
          Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
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      Ebonie Batson was an employee of The Salvation Army (“TSA”) for more

than a decade. She received promotions and consistently positive performance

reviews. After Batson was diagnosed with Multiple Sclerosis, she requested leave

under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”), and

an accommodation under the Americans with Disabilities Act, 42 U.S.C. § 12101

et seq. (“ADA”). TSA then eliminated her position and required her to apply and

interview for a position she had previously held. During the interview, Batson was

questioned repeatedly about her appointments with doctors and ability to travel.

TSA decided against hiring Batson for her former position, citing her conduct in

the interview and poor job performance.

      Batson filed a complaint against TSA in federal district court, alleging that

the organization had discriminated against her based on her disability when it

denied her a reasonable accommodation in violation of the ADA, retaliated against

her for statutorily protected activities in violation of the ADA and the FMLA, and

interfered with her rights under the FMLA. The district court granted TSA’s

motion for summary judgment on all of Batson’s claims. The district court ruled

that she failed to come forward with evidence of the following: on her

accommodation claim, that TSA had denied her request for a reasonable

accommodation; on her retaliation claim, that TSA’s explanations for eliminating




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her position and refusing to rehire her were pretextual; and on her interference

claim, that TSA had interfered with her rights under the FMLA.

      After careful consideration, and with the benefit of oral argument, we affirm

in part and reverse in part the district court’s grant of summary judgment. We

agree with the district court that Batson failed to establish that TSA discriminated

against her by refusing to accommodate her under the ADA. But we disagree that

Batson failed to offer evidence showing that TSA’s explanations for terminating

her were pretextual and that TSA interfered with her rights under the FMLA.

Batson is thus entitled to a trial on her ADA and FMLA retaliation claims and her

FMLA interference claim.

                               I.      BACKGROUND

A.    Factual Background

      Because Batson’s claims rely upon who knew and did what when, a

chronology of relevant events is necessary. On review of summary judgment, we

set forth the facts in the light most favorable to Batson, the non-moving party. See

Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304, 1307 (11th Cir. 2012). In

2002, Batson began working for TSA at the organization’s territorial headquarters

in Atlanta, Georgia. She was transferred to the Audit Department in 2006 and

promoted to Senior Auditor the following year. At that time, Major Len Eugene




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Broome was the Audit Secretary and head of the Audit Department.1 Frank

Duracher, the Audit Manager, was Batson’s direct supervisor.

          Batson was diagnosed with Multiple Sclerosis in January 2010. She

informed her supervisors and the rest of the Audit Department of her diagnosis

shortly thereafter. Around the same time that Batson was diagnosed, Broome

became ill and could not fully discharge his duties, which led to a restructuring of

the Audit Department. To assist Broome, TSA promoted Duracher to the position

of Assistant Audit Secretary and Batson to the position of Audit Manager.

          Broome passed away in September 2012 and was replaced as the Audit

Secretary by Major Everett Wilson. Following Broome’s death, Wilson and

Duracher discussed whether Batson’s position as the Audit Manager remained

necessary now that Broome’s former position had been filled. Wilson reassigned

some of Batson’s duties to himself and Duracher.

          Throughout her tenure with TSA, Batson received “excellent performance

evaluations.” Doc. 58 at 11.2 In her 2009 performance review, Duracher wrote

that Batson was a “wonderful employee” who “always ha[d] a pleasant demeanor”

and was “eager to learn new auditing techniques.” Id. In Batson’s 2011

performance review, Duracher wrote that she was “a pleasure to work with” and


          1
              TSA has a military organizational structure; its upper level employees have military
titles.
          2
              Citations to “Doc. #” refer to the numbered entries on the district court’s docket.
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that she had “grown nicely in her role as [A]udit [M]anager.” Id. at 12. According

to Batson’s 2012 performance review, the last one before her termination, she

“exceed[ed] expectations” in every category. Id. Duracher commented that

Batson was “eager to help anyone in need” and that “she strives for excellence and

sets an example for the entire department.” Id.

      In November 2012, a couple of months after Wilson assumed the position of

Audit Secretary, Batson requested a meeting with Duracher and Wilson to discuss

her need for an accommodation because of her Multiple Sclerosis. A meeting was

scheduled for December 4, 2012, but it had to be rescheduled. The meeting was

rescheduled a number of times between December 2012 and April 2013 but never

took place.

      In January 2013, Batson requested and took her first FMLA leave, which

was approved for a two-week period. Later that month, she requested intermittent

FMLA leave, which was also approved.

      Batson met with Dr. Murray Flagg, the head of the human resources

department for TSA’s southern territory on February 22 to discuss Batson’s

concerns related to her Multiple Sclerosis. In particular, Batson told Flagg that

Duracher had disclosed her medical diagnosis to another employee. She later

complained about Duracher’s disclosure in an official grievance, which led TSA to

reprimand him.


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      Shortly after her meeting with Flagg, in late February, Batson’s physician

completed an ADA Interactive Process Questionnaire on her behalf. Through that

questionnaire, which was submitted to TSA, Batson requested adjustments to her

travel schedule and asked to telecommute occasionally due to her illness. Regina

Davis, the Assistant Human Resources Director, was aware of Batson’s request.

      After Batson submitted the questionnaire, she met with Davis and Rendrick

Nash, another human resources employee, to discuss her FMLA leave and her

supervisors’ failure since November of 2012 to meet with her about her request for

an accommodation. Davis and Nash told Batson that Wilson and Duracher had

denied her accommodation request.

      On March 1, Flagg met with Wilson and Duracher to discuss the grievance

Batson had filed. The same day, Wilson requested to eliminate Batson’s position,

explaining that following Broome’s death, three administrative leads were no

longer necessary “as [Duracher] and I can effectively lead the department.” Doc.

57-14 at 1. At the same time, Wilson requested permission to post a vacant Senior

Auditor position, the position Batson had held before her promotion to Audit

Manager, so that “upon notification that her position . . . is being eliminated, [she]

c[ould] apply for consideration as Senior Auditor.” Id.

      Around the same time, TSA’s Territorial Finance Council (“TFC”) approved

the elimination of Batson’s Audit Manager position. It also determined that she


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could be transferred directly to the Senior Auditor position. Captain Phil Swyers,

who led the TFC, emailed Davis that there was “no need to post the Senior Auditor

position unless Ms. Ebonie Batson does not accept the opportunity to transfer . . .

from her present . . . position.” Doc. 58-10 at 3. Davis responded, however, that

the position had to be posted internally to comply with equal opportunity laws and

the organization’s affirmative action policy. Swyers replied by reiterating that

Davis should follow the TFC’s instruction: “I am writing to confirm that the

original email below . . . is the procedure TFC would like Major Wilson to follow.”

Id. at 1. Davis again insisted that “TFC [was] instructing us to violate the

[affirmative action plan], which is a violation of federal law.” Id. The record is

unclear as to whether such a plan or policy actually existed at TSA and, if so,

whether permitting Batson to fill a Senior Auditor position that she had held

previously without posting the position would violate that policy.

      At the end of March, Batson took approved FMLA leave for several weeks.

Before she left, she overheard Wilson say, “[w]e don’t allow sick people in our

department, everyone has to work.” Doc. 64-1 at 15. When she returned from her

leave, Wilson and Davis informed her that her Audit Manager position had been

eliminated and that she could apply for the Senior Auditor position. Batson was

told that the application process was just a formality and that she would be




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transferred to her previous role; she merely had to apply. The position was posted

internally, and Batson was the only person to apply by the deadline.

      While Batson’s application was pending, Wilson retired from his position as

Audit Secretary and was replaced by Major Beatrice Boalt, who was tasked with

filling the Senior Auditor position. Before Wilson’s departure, he emailed Boalt,

telling her that TSA was “obligated” to hire Batson because “[s]he never receive[d]

poor ratings and she did the [Senior Auditor] job prior to the position she held.”

Doc. 60 at 19. Wilson expressed his belief that Batson could be transferred

directly to the Senior Auditor position. He testified in his deposition that she was

qualified and that he perceived her to be “bright” and “capable of what she was

doing.” Id. at 17.

      TSA nonetheless required Batson to interview for the Senior Auditor

position. Before the interview, Boalt emailed Colonel Samuel Henry, the head of

the Audit and Financial Department, expressing concern about hiring Batson.

Given that Batson was “the only one who applied” by the deadline, Boalt wrote,

“[i]t appears that we have painted ourselves into a corner . . . [s]o we have to hire

her?” Doc. 54-2 at 1. Boalt revealed that she “had hoped . . . [to] find out if we

could appoint [another candidate] as the Senior Auditor.” Id. at 2. She also

worried about the questions she could ask Batson in the interview, telling Henry, “I

guess for the interview, I need to be coached as to what I can and can’t say.” Id. at


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1. Later she emailed a human resources employee to ask whether “there are any

questions I cannot ask.” Doc. 54-3 at 2. She added, “I assume that if this

candidate is applying then the candidate . . . is well enough to travel at least 75% of

the time.” Id.

      Together Boalt and Duracher interviewed Batson for the Senior Auditor

position. During the interview, Boalt asked Batson a number of questions related

to Batson’s health, including the following:

      •    “Traveling as much as we do, we all have times when we need to
          see a doctor or dentist. Our policy is to take these appointments on
          either Monday morning or Friday. . . . Is there anything that may
          hinder your ability to meet these requirements?”

      • “[A]ll auditors are expected to be [present] during normal business
        hours. If time away from the office is needed for doctor/dentist
        appointments, advance notice should be sent to Frank Duracher
        with a copy to Major Boalt. This is a new policy that was recently
        enacted. Do you foresee any challenges with adhering to this new
        policy?”

      • “The travel schedule of the Senior Auditor position is very
        demanding. . . . Are you able to meet the travel requirements of
        this position?”

Doc. 58-24 at 3-4. Batson testified that as Boalt continued to ask her questions

related to her medical appointments and ability to travel, Duracher repeatedly put

his head down. Batson eventually became frustrated; she told her interviewers that

she knew federal law and believed they were not permitted to ask about her

medical condition.

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      Following the interview, Boalt wrote to Henry that Batson “tried to be

professional but was pretty combative.” Doc. 58-22 at 1. Duracher testified that

during the interview Batson never yelled or raised her voice and that she had

answered the questions completely. He could “understand [Batson’s] confusion on

why she had to go through an interview process.” Doc. 58 at 20. But he agreed

that Batson was “combative and confrontational,” and that “[h]er tone when she

answered questions . . . made [him] feel like she was being antagonistic.” Id. at 20,

21.

      Duracher testified that after the interview he had not yet decided whether to

recommend that Batson be hired for the Senior Auditor position. Boalt, who was

the final decision maker, emailed Henry that she “believe[d] her recommendation

[was] not to hire [Batson],” but she “need[ed] to think through the rationale.” Doc.

54-7 at 1. Batson was not hired for the position, which remained open.

      According to Boalt, “[t]he primary reason for [her] decision was [Batson’s]

performance in the interview.” Doc. 52-3 at 3. She also expressed “concern[]”

about Batson’s “performance issues as Audit Manager as reported by Duracher.”

Id. In particular, she noted three occasions in 2012 when Batson had submitted a

late report. Batson’s employment was terminated.




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B.    Procedural History

      Batson filed an Intake Questionnaire with the Equal Employment

Opportunity Commission (“EEOC”), marking boxes for disability and retaliation

as the bases for her employment discrimination claims. With the assistance of an

EEOC investigator, she also filed a “Charge of Discrimination,” which stated that

she had requested a reasonable accommodation, her request had been denied, and

she believed she was “discriminated against due to [her] disability.” Doc. 64-3 at

13. The Charge identified June 4, 2013, the day she was terminated, as the latest

date on which discrimination had taken place.

      Batson later filed a lawsuit in federal district court alleging claims under the

ADA and the FMLA. TSA moved for summary judgment on all of Batson’s

claims, and the magistrate judge recommended granting summary judgment on

every issue. Over Batson’s objections, the district court adopted the magistrate

judge’s recommendation and granted summary judgment in favor of TSA. Batson

timely appealed.

                        II.    STANDARD OF REVIEW

      We review the district court’s grant of summary judgment de novo, applying

the same legal standards as the district court. Hurlbert v. St. Mary’s Health Care

Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006). Summary judgment is

appropriate only “if the movant shows that there is no genuine dispute as to any


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material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The court must draw all reasonable inferences in favor of the non-

moving party. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1326 (11th Cir.

1998).

                               III.   DISCUSSION

      Batson’s claims arise under the ADA and the FMLA. She contends that in

light of her disability TSA (1) denied her a reasonable accommodation in violation

of the ADA, (2) retaliated against her for engaging in statutorily protected activity

in violation of the ADA and the FMLA, and (3) interfered with her substantive

rights in violation of the FMLA. We consider in turn whether the district court

erred in granting summary judgment on each of these claims.

A.    ADA Failure to Accommodate Claim

      We first consider Batson’s claim that TSA failed to offer her a reasonable

accommodation for her disability, in violation of the ADA. The ADA prohibits

employers from discriminating against “a qualified individual on the basis of

disability in regard to job application procedures, the hiring, advancement, or

discharge of employees, employee compensation, job training, and other terms,

conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To establish a

prima facie case of employment discrimination under the ADA, a plaintiff must

show that at the time of the adverse employment action, she (1) had a disability, (2)


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was a qualified individual, and (3) was subjected to unlawful discrimination

because of her disability. Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255-56

(11th Cir. 2007).

      One way a plaintiff may establish the third prong is by showing that her

employer failed to provide her with a reasonable accommodation for her disability.

Id. at 1262. The ADA requires an employer to accommodate an employee with a

known disability unless the accommodation would result in undue hardship to the

employer. Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). The

parties’ dispute centers on whether Batson established the third prong. Like the

district court, we conclude that Batson advanced no evidence establishing that TSA

failed to accommodate her disability.

      Viewing the evidence in Batson’s favor, she asked TSA, through an ADA

questionnaire completed by her physician, to adjust her travel schedule and allow

her to telecommute occasionally. Davis and Nash informed her that her

supervisors had denied her request for these accommodations. About a week after

Batson learned that her request had been denied, she took FMLA leave. When she

returned from leave after six weeks, she was told that her position had been

eliminated, and she was terminated shortly afterward. The problem for Batson is

that she has offered no evidence that before her FMLA leave and her termination

she needed either of the accommodations she previously had requested generally.


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The record reflects that before Batson’s meeting with Davis and Nash, she received

all of the time off and adjustments to her schedule that she had requested.

      We agree with Batson that the record establishes TSA’s intent to deny her

accommodation, but without evidence of a specific instance in which she needed

an accommodation and was denied one, she cannot establish a failure to

accommodate. Batson concedes that she was never denied a specific

accommodation she requested, but she argues that because of the timing of her

FMLA leave and subsequent termination, TSA had no opportunity to deny any

specific individual requests. Batson offers no authority, however, supporting that

in the absence of a specific request and denial, an employee may establish a

discrimination claim based on the employer’s intent to withhold an

accommodation. The district court found, and Batson does not dispute, that she

“was never actually denied any request for accommodation.” Doc. 74 at 30.

Absent such a denial, there can be no failure to accommodate under the ADA.

B.    FMLA and ADA Retaliation Claims

      Batson argues that TSA retaliated against her in violation of the FMLA and

the ADA by refusing to rehire her for her previous position. Because the FMLA

and ADA retaliation claims require similar legal analysis and depend upon the

same set of facts, we address them together.




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       1.      Administrative Exhaustion of ADA Retaliation Claim

       Before reaching the substance of Batson’s claims, we must determine

whether Batson exhausted her administrative remedies such that she could raise her

ADA retaliation claim in federal court.3 The district court decided that Batson

failed to exhaust her administrative remedies on her ADA retaliation claim because

the Charge of Discrimination she filed with the EEOC included allegations only

about TSA’s failure to provide a reasonable accommodation under the ADA. We

disagree.

       An employee making a discrimination claim under the ADA must first

exhaust her administrative remedies by filing a Charge of Discrimination with the

EEOC. Maynard v. Pneumatic Prods. Corp., 256 F.3d 1259, 1262 (11th Cir.

2001). The purpose of this requirement is to allow the EEOC the “first opportunity

to investigate the alleged discriminatory practices [and] perform its role in

obtaining voluntary compliance and promoting conciliation efforts.” Gregory v.

Ga. Dept. of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004) (internal quotation

marks omitted) (explaining exhaustion in the Title VII context). With this purpose

in mind, “[t]his Court . . . has noted that judicial claims are allowed if they amplify,


       3
          Whether Batson exhausted her administrative remedies impacts only her ADA
retaliation claim. There is no dispute that Batson exhausted her remedies on her denial of
accommodation claim, which we addressed above. The FMLA has no exhaustion requirement.
See 29 C.F.R. § 825.400 (2017) (“The employee has the choice of . . . [f]iling . . . a complaint
with the Secretary of Labor, or . . . [f]iling a private lawsuit.”).

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clarify, or more clearly focus the allegations in the EEOC complaint, but has

cautioned that allegations of new acts of discrimination are inappropriate.” Id. at

1279-80 (internal quotation marks omitted).

       At the same time, though, we have been “extremely reluctant to allow

procedural technicalities to bar claims brought under [discrimination statutes].” Id.

at 1280 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460-61 (5th Cir.

1970)).4 To that end, we have noted that “the scope of an EEOC complaint should

not be strictly interpreted.” Id. (quoting Sanchez, 431 F.2d at 465). In Gregory,

for example, we held that although the plaintiff had not checked the retaliation box

on the document she filed with the EEOC, “the exhaustion requirement was

nonetheless satisfied” because the EEOC’s “investigation . . . would have

reasonably uncovered any evidence of retaliation.” Id. at 1278. To determine

whether a plaintiff has exhausted her administrative remedies, then, the “proper

inquiry” is whether the “[plaintiff’s] complaint [is] like or related to, or grew out

of, the allegations contained in [the] EEOC charge.” Id. at 1280.

       Batson exhausted her administrative remedies because she included in the

Charge facts supporting her ADA accommodation claim that are “like or related

to” the ADA retaliation claim she alleged in federal district court. Id. In the

       4
        Decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981, are binding on this Court. See Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc).

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Charge, Batson stated that she believed she suffered discrimination because of her

disability, that she had requested an accommodation in February 2013, and that her

request was denied. The Charge also listed Batson’s termination date as the last

day on which discrimination had taken place.

       Even though Batson did not mark the retaliation box on the form, as in

Gregory the information included in the Charge was sufficiently “related to”

Batson’s retaliation claim to satisfy the exhaustion requirement. Batson argues

that her ADA failure to accommodate claim is inextricably linked to her ADA

retaliation claim, because her accommodation request was the basis for TSA’s

retaliation against her, and her termination, mentioned in the Charge, was the

specific form the retaliation took. Given this link, an EEOC investigation of

Batson’s failure to accommodate claim would have “at least in some fashion”

uncovered Batson’s retaliation claim. Id. We thus conclude that Batson’s Charge,

“prepared without the assistance of counsel, and under the liberal EEOC charge

strictures,” was sufficient to exhaust Batson’s remedies with respect to her ADA

retaliation claim. 5 Id.




       5
        Because the Charge itself was sufficient to exhaust Batson’s administrative remedies as
to her ADA retaliation claim, we need not address whether the Intake Questionnaire she
submitted to the EEOC, which clearly identified retaliation as one of her claims, should also be
considered.
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      2.     Merits of Retaliation Claims

      In addition to prohibiting discrimination “because of an individual’s

disability,” which we discussed above, the ADA also includes “an express

antiretaliation provision.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,

357 (2013) (alterations adopted) (internal quotation marks omitted). The ADA’s

antiretaliation provision prohibits “discriminat[ing] against any individual because

such individual has opposed any act or practice made unlawful [by the Act] or . . .

made a charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a).

      The FMLA provides eligible employees the right to 12 weeks of “leave

during any 12-month period . . . [b]ecause of a serious health condition that makes

the employee unable to perform the functions of the position.” 29 U.S.C.

§ 2612(a)(1)(D). The Act further establishes the employee’s right to be restored to

the position she held when her leave commenced, or an equivalent position. Id.

§ 2614(a)(1)(A)-(B); Martin v. Brevard Cty. Pub. Sch., 543 F.3d 1261, 1267 (11th

Cir. 2008). Like the ADA, the FMLA protects the substantive rights it creates by

prohibiting an employer from retaliating against its employee for engaging in

activities protected under the Act. 29 U.S.C. § 2615(a)(1)-(2); Strickland v. Water

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




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      Where, as here, an employee alleges retaliation under the FMLA or the

ADA without direct evidence of the employer’s intent, we apply the burden

shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). See Martin, 543 F.3d at 1268 (FMLA); Standard, 161 F.3d at 1331

(ADA). To establish a prima facie case of retaliation under either act, an employee

must demonstrate (1) that she engaged in statutorily protected conduct, (2) that she

suffered an adverse employment action, and (3) that a causal connection exists

between the two. Hurlbert, 439 F.3d at 1297; Standard, 161 F.3d at 1328. Once

the employee has established a prima facie case, the burden shifts to the employer

to articulate a nondiscriminatory reason for the adverse action. Hurlbert, 439 F.3d

at 1297; Standard, 161 F.3d at 1331. If the employer does so, the burden shifts

back to the employee to demonstrate that the “employer’s proffered reason was

pretextual by presenting evidence 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.” Martin, 543 F.3d at 1268 (internal quotation

marks omitted).

      TSA does not challenge the district court’s determination that Batson

established a prima facie case of retaliation under the FMLA and the ADA. There

is also no dispute that TSA offered a nondiscriminatory explanation for failing to

hire Batson for the Senior Auditor position. Our task, therefore, is to determine


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whether Batson successfully rebutted TSA’s reasoning such that a reasonable juror

could find that its explanation was pretextual.

      Boalt, the decisionmaker, offered two reasons for rejecting Batson for the

Senior Auditor position. First, she identified as “the primary reason” for her

decision that Batson performed poorly in the interview. Doc. 52-3 at 3. Her

second reason was concern about Batson’s “recent performance issues” as the

Audit Manager, “as reported by Duracher.” Id. Batson offered ample evidence

suggesting these explanations were pretextual, which we summarize below.

      The first reason is called into question by the fact that before Batson’s

interview Boalt indicated that she did not want to hire Batson. Boalt wrote in an

email to Henry that “[i]t appears we have painted ourselves into a corner” because

“Ebonie [was] the only one who applied by 10:00 a.m. on Friday morning,” the

application deadline. Doc. 54-2 at 1. Boalt recalled that she had “hoped to meet

with [Henry] and find out if we could appoint [another candidate],” asking Henry,

“[s]o we have to hire her?” Id. at 1-2. Based on this email, a reasonable jury could

disbelieve Boalt’s explanation that the primary reason she chose not to hire Batson

was Batson’s interview performance, which had not yet occurred when the email

was sent.

      Boalt also expressed concern about Batson’s health before the interview,

further suggesting that she was worried about hiring Batson for reasons unrelated


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to Batson’s interview performance. In her email to Henry, Boalt wrote, “I guess

for the interview, I need to be coached as to what I can say and can’t say.” Id. In

another email to a human resources employee sent the following day, Boalt asked

whether “there [were] any questions [she could not] ask” Batson during the

interview, noting her “assum[ption] that if this candidate is applying then [she] . . .

is well enough to travel at least 75% of the time.” Doc. 54-3 at 2. A jury

reasonably could infer from Boalt’s concern about whether Batson was “well

enough” that Batson’s disability or her need for FMLA leave caused Boalt to reject

her.

       During Batson’s interview, at which Boalt and Duracher were present, Boalt

repeatedly asked Batson questions about her health and its impact on her ability to

meet the demands of the job. Boalt asked Batson whether she would be able to

give advance notice when she had a doctor’s appointment and whether she could

meet the position’s “very demanding” travel requirements. Doc. 58-24 at 4.

Batson replied that she could “stick with [her] schedule,” as she had “for the past

seven years with minor requests here and there.” Doc. 64-2 at 4. After Boalt

asked a third question related to Batson’s medical condition, Batson said that she

understood federal law and believed she could not be questioned about her illness.

Boalt’s multiple questions about Batson’s doctor’s appointments and ability to

travel—particularly in combination with Boalt’s prior emails—could support a


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finding that Boalt was concerned about Batson’s disability and her need for FMLA

leave, not her interview performance.

      Further, although Duracher to some extent corroborated Boalt’s testimony

that Batson was combative during the interview, there is conflicting evidence about

Batson’s interview performance. Batson testified that she was “not loud or

argumentative”; rather, she “was quiet and hurt because she felt like she was being

interrogated about [her] medical condition.” Id. She observed that every time

Boalt questioned her related to her health, Duracher put his head down. Duracher

testified that Batson never raised her voice or yelled and that she answered the

questions satisfactorily. He also testified that he understood Batson’s confusion

and frustration in having to interview for a position she had previously held. A

reasonable jury could infer from these contrasting descriptions of the interview that

Boalt’s asserted failure to hire Batson based on her interview performance was

pretextual.

      There was also evidence specifically undermining Boalt’s second

explanation, that she decided not to hire Batson because of performance issues,

including missing deadlines for turning in reports. Boalt—who had no experience

supervising Batson—maintained that Batson’s performance issues were “reported

by Duracher,” yet Duracher testified that Batson’s performance evaluations

historically were excellent and that she had received the highest level ranking the


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majority of the time. Doc. 52-3 at 3. Indeed, in Batson’s last review before her

employment was terminated, Duracher wrote that she “strives for excellence and

sets an example for the entire department.” Doc. 58 at 12. And although Duracher

acknowledged that Batson had missed three deadlines in 2012 while she was the

Audit Manager, those issues had not concerned him enough to give her a verbal

warning. He did not recall Batson missing any deadlines as a Senior Auditor, but

added that even if she had, “we all miss deadlines from time to time.” Id. at 27.

Wilson, who was Duracher’s supervisor and had signed Batson’s performance

reviews, also thought highly of Batson’s job performance. Wilson testified that

Batson was “bright” and “capable.” Doc. 60 at 17. Before he retired, Wilson

emailed Boalt, telling her that Batson should be hired for the Senior Auditor

position because “[s]he never receive[d] poor ratings and she did the job prior to

the position she held.” Id. at 19. Batson’s supervisors’ positive views of her

performance and her historically “excellent” reviews support that Boalt’s concerns

about Batson’s performance were pretextual. Cf. Kragor, 702 F.3d at 1309-11

(holding that summary judgment on employee’s age discrimination claim was

inappropriate where employer had testified she was “exceptional” and that “she

had done nothing wrong” after firing her for violating a company policy).

      Lastly, undermining both of Boalt’s explanations, following the interview,

Boalt sent Henry an email stating that Batson had been “pretty combative” and that


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Boalt was inclined to recommend against hiring her, but “need[ed] to think through

the rationale.” Doc. 54-7 at 1. The district court interpreted this statement to mean

that Boalt simply needed to give more thought to the decision, but it could also be

interpreted to mean that Boalt decided not to hire Batson because of her illness but

recognized the need to come up with an alternative justification. Particularly in

light of Boalt’s expression of concern about hiring Batson prior to the interview,

we disagree with the district court’s view that this statement necessarily is

inconsistent with a discriminatory motive.

      Viewing all of this evidence in Batson’s favor—including, among other

things, Boalt’s statements before the interview that she felt “corner[ed]” into hiring

Batson, her questions about whether Batson was “well enough” to travel, her

concern expressed in the interview questions about Batson’s doctor’s

appointments, and Duracher’s contrary testimony about Batson’s interview and job

performance—a reasonable jury could infer that Boalt decided against hiring

Batson because of Batson’s illness, not because of her interview or job

performance, and that Boalt’s explanations to the contrary were pretextual. To be

sure, Batson has not proven that TSA’s reasons were pretextual, nor must she at

this stage. At summary judgment, Batson need only “cast sufficient doubt” such

that a jury could infer that TSA’s “proffered legitimate reasons were not what

actually motivated its conduct.” Combs v. Plantation Patterns, 106 F.3d 1519,


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1538 (11th Cir. 1997) (internal quotation marks omitted). Batson has carried that

burden here, and thus her FMLA and ADA retaliation claims should proceed to

trial.

C.       FMLA Interference Claim

         Batson also claims that TSA violated the FMLA by interfering with her

substantive rights under the Act, specifically, her right to be restored to the same or

an equivalent position following her use of FMLA leave. See 29 U.S.C.

§ 2614(a)(1)(A)-(B); Martin, 543 F.3d at 1267. Unlike with an FMLA retaliation

claim, to succeed on an FMLA interference claim an employee need only

demonstrate by a preponderance of the evidence that she was entitled to an FMLA

benefit that was denied. Strickland, 239 F.3d at 1206-07. In general, “the

employer’s motives are irrelevant” to an interference claim. Id. at 1208. Where

the claim is based on an employee’s termination, however, as Batson’s claim is

here, an employer may affirmatively defend against the claim by establishing that

it would have terminated the employee regardless of her request for or use of

FMLA leave. Martin, 543 F.3d at 1267 (citing 29 U.S.C. 2614(a)(3)).

         At summary judgment, then, the analyses for an FMLA interference claim

based on an employee’s termination and an FMLA retaliation claim are essentially

the same: we ask whether the evidence, viewed in the light most favorable to the




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non-moving party, establishes as a matter of law that the employer would have

terminated the employee regardless of her request for or use of FMLA leave. 6

Because Batson raises evidence from which a reasonable jury could conclude that

TSA’s proffered explanations for terminating Batson were pretextual, she likewise

raises a genuine dispute of material fact as to whether she would have been

terminated regardless of her request for FMLA leave.

                                   IV.    CONCLUSION

       The district court correctly determined that Batson’s ADA failure to

accommodate claim fails as a matter of law, and we affirm the district court’s order

granting summary judgment to TSA on that claim. The district court erred,

however, in determining that Batson failed to present evidence sufficient to avoid

summary judgment on her FMLA and ADA retaliation claims and on her FMLA

interference claim. Accordingly, we reverse the district court’s order granting

summary judgment to TSA on Batson’s ADA and FMLA retaliation claims and on

her FMLA interference claim, and the case is remanded for further proceedings

consistent with this opinion.

       AFFIRMED IN PART; REVERSED AND REMANDED IN PART.


       6
         Although the analyses for an FMLA retaliation claim and an FMLA interference claim
merge at the summary judgment stage, at trial, it remains the employer’s burden to establish its
affirmative defense by showing that it did not interfere with its employee’s substantive rights
under the FMLA by terminating the employee. See Parris v. Miami Herald Pub. Co., 216 F.3d
1298, 1301 n.1 (11th Cir. 2000) (“At trial, the [employer] must prove that its decision [to
terminate the employee] was unrelated to [the employee’s] FMLA-protected sick leave.”).
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