             Case: 16-12679   Date Filed: 05/31/2017   Page: 1 of 20


                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-12679
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 8:15-cv-00386-JSM-TBM



PAUL DEBENE,

                                                              Plaintiff-Appellant,

                                     versus

BAYCARE HEALTH SYSTEM, INC.,
WAGEWORKS, INC.,
In its official capacity as Administrator of an ERISA plan
maintained by Benefit Concepts, a division of WageWorks, Inc.,
for the benefit of employees of Baycare Health System, Inc.,

                                                          Defendants-Appellees.

                         ________________________

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

                                (May 31, 2017)
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Before ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Paul DeBene appeals the district court’s grant of summary judgment to his

former employer, BayCare Health System, Inc. (“BayCare”), on his claims of

retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and

failure to provide a benefits-election notice under the Consolidated Omnibus

Budget Reconciliation Act of 1985 (“COBRA”). On appeal, DeBene argues that

his claims should survive summary judgment because the record contains genuine

issues of material fact. After careful review of the record and the parties’ briefs,

we affirm the district court’s grant of summary judgment to BayCare.

                                   I. Background

      Construed in the light most favorable to DeBene, the relevant facts are these.

From 2004 to 2014, DeBene worked for BayCare, a community-based health

system in the Tampa Bay area that is composed of a network of fourteen not-for-

profit hospitals and numerous other outpatient facilities and services. DeBene

specifically worked for BayCare Purchasing Partners, a regional group-purchasing

organization within BayCare that was responsible for contracting for the supplies

and services used in BayCare’s operations.         DeBene was a Senior Contract

Manager at the time of his termination. DeBene worked with over 200 BayCare

vendors and had over 280 contracts in his portfolio.


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      For most of the time relevant to this case, DeBene reported to Richard

Frankenfield, the Director of Contracts. Frankenfield, in turn, reported to Judy

Lipscomb. Alan Wilde replaced Lipscomb in June 2014, about three weeks before

DeBene’s termination in early July 2014.

A.    The Protected Activity

      On April 27, 2012, DeBene called BayCare’s Corporate Responsibilty

Compliance Line to report that a former BayCare employee, Jennifer Goggin, had

been sexually harassed by her department manager, John Higgins. Goggin, with

whom DeBene was romantically involved, had recently been terminated by

BayCare for performance issues. BayCare investigated DeBene’s report and, as

part of that investigation, interviewed DeBene. The investigation corroborated the

allegations of inappropriate workplace conduct, and Higgins was terminated.

      Around this time, Frankenfield told Lipscomb that DeBene had been

“bullying” and “badgering” coworkers to protest Goggin’s termination. Goggin

testified that Frankenfield and Higgins were friends who often lunched together.

DeBene believes that, after Higgins’s termination, Frankenfield harbored a grudge

against him. Nevertheless, DeBene testified that his relationship with Frankenfield

was cordial both before and after the sexual-harassment complaint.

B.    DeBene Applies for Regional Contract Manager Position




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      In early 2014, BayCare reinstated the position of Regional Contract

Manager, which DeBene had held for about five years until the position was

eliminated in 2009. DeBene applied for the reinstated position but was not hired.

According to BayCare, DeBene was rejected because he did not have a college

degree, a prerequisite for the position. DeBene believes that BayCare could have

adjusted the job requirements to allow practical experience in lieu of a degree.

      Ultimately, BayCare hired Karrey Pecore, who became DeBene’s direct

supervisor. Frankenfield made the hiring decision with input from Lipscomb.

Lipscomb testified that it was clear to both her and Frankenfield that Pecore, who

had both a bachelor’s and master’s degree in Health Administration, was the best

candidate. Lipscomb explained that Pecore had “national experience in a group

purchasing organization” and an outside perspective that BayCare thought would

be helpful because most of its employees were “ingrown people.”

C.    BayCare’s Policies on Conflicts of Interest and Secondary Employment

      BayCare maintains policies regarding conflicts of interest and obtaining

secondary employment. Its policies instruct employees that they have a duty of

loyalty to BayCare, which it defines as “an allegiance to the mission of BayCare

and no personal interest when considering the business affairs of the corporation

and the best interests of the corporation.” Employees were permitted to obtain




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secondary employment so long as the employment did not represent a conflict of

interest.

       These policies embrace liberal disclosure of any potential conflicts. The

secondary employment policy directs employees to notify their supervisor if they

wish to seek secondary employment so that the proposed secondary employment

can be reviewed for actual or potential conflicts. The conflicts-of-interest policy

likewise states that employees are required to fully disclose any private, business,

or professional relationship where a potential or actual conflict of interest exists.

The policy identifies specific types of activities which should be disclosed as

potential conflicts, including, among other “Outside Interests & Activities,”

“[h]aving a compensation arrangement . . . with any entity or individual with

which BayCare transacts business.”

       To ensure compliance with the conflicts-of-interest policy, employees are

required to complete an annual disclosure statement in which they detail existing

or potential conflicts and affirm that they have read, understood, and agree to

comply with the conflicts-of-interest policy. Disclosed conflicts are reviewed by a

Conflict of Interest Determination Committee. The policy warns that “[f]ailure to

disclose any conflict or seek approval may result in termination.”

D.     Facts Leading to DeBene’s Termination




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      During his employment with BayCare, DeBene also worked part-time as a

“data mapper” for Deman Data Solution, LLC (“DDS”), and Primrose Solutions,

LLC (“Primrose”). DDS and Primrose are both software development firms that

provided software programs to BayCare to analyze its purchasing and inventory of

hospital supplies and to provide pricing benchmarks.         Baycare used DDS’s

software from around 2003 until November 2012, when Baycare entered into a

contract with Primrose. While working for Primrose, DeBene at times worked on

BayCare’s data.

      In June 2014, DeBene disclosed to BayCare for the first time that he had

been working part-time for DDS and Primrose. DeBene made that disclosure after

learning that DDS and Primrose were in litigation and that BayCare employees had

been subpoenaed to testify in that case. DeBene wanted to avoid having that

information surprise BayCare during the litigation. On June 26, 2014, he amended

his annual conflict disclosure form, which had disclosed no conflicts, to disclose

his employment with Primrose.

      A few days later, on June 30, 2014, DeBene met with Frankenfield to

discuss the matter. DeBene explained that he did not believe his work for Primrose

needed to be disclosed because he was an independent contractor and he was not

working in a consultant capacity. Thereafter, Frankenfield met with Wilde, who

had recently taken over for Lipscomb, and James Bacon, the Director of Team


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Resources, to discuss the matter. After an additional meeting between DeBene,

Wilde, Frankenfield, and Bacon on July 2, 2015, BayCare decided to terminate

DeBene’s employment.

      The next day, July 3, 2015, Wilde, Frankenfield, and Pecore met with

DeBene to let him know that he was being terminated. Frankenfield did all of the

talking. According to Frankenfield, DeBene’s decision to have and not disclose

secondary employment with BayCare’s suppliers demonstrated poor judgment that

negatively impacted his credibility, violated BayCare’s policies, and betrayed

BayCare’s key values of trust and loyalty.

E.    Post-Termination Facts Regarding COBRA Notice

      DeBene has a pacemaker in his chest and so was concerned about

maintaining his health-insurance coverage following his termination. He states,

however, that he did not timely receive his COBRA election notice from BayCare

so as to continue with his coverage from BayCare. So, on August 25, 2014,

DeBene called BayCare.        He reached Angela Williams, the Senior Benefits

Specialist at BayCare, who misinformed him that he was ineligible for COBRA

benefits because he had been terminated for gross misconduct. At her deposition,

Williams explained that she misread the coding of DeBene’s termination, MSCND

GN, which actually meant misconduct general. (Gross misconduct was coded as

MSCND GR.)


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      Thereafter, DeBene contacted both BayCare’s plan administrator and the

Department of Labor about the fact that he had not received a COBRA notice. The

plan administrator again sent the COBRA election package and extended

DeBene’s election period.

      BayCare maintains that a COBRA election notice was timely sent to DeBene

on July 23, 2014, even if he did not receive it. During the relevant time, BayCare

contracted with Benefit Concepts to, among other things, provide initial COBRA

election notices to qualifying former employees of BayCare. BayCare exports its

benefits data files directly to Benefit Concepts for all loss-of-coverage events,

including termination of employment.          Once Benefit Concepts receives the

information from BayCare, it is loaded into Benefit Concepts’s system, and an

election notice is generated and printed. A fulfillment clerk places the letter in an

envelope and delivers it to the post office to be sent via first-class mail to the last

known address of the participant.

      Evidence produced at summary judgment reflected that DeBene was coded

into BayCare’s database as COBRA eligible on July 3, 2014, that this information

was transferred to Benefit Concepts, and that a COBRA election notice dated July

23, 2014, was generated and printed for DeBene. Further, BayCare also provided

evidence showing that other recipients of notices mailed on the same day as

DeBene’s were able to successfully elect coverage and that no other former


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employee reflected on the report of letters sent on that date had reported not

receiving his or her notice.

                                    II. Discussion

         We review a district court’s grant of summary judgment de novo, viewing

the evidence and drawing all reasonable inferences in favor of the non-moving

party.    Crawford v. Carroll, 529 F.3d 961, 964 (11th Cir. 2008).        Summary

judgment is appropriate only “if the movant shows that there is no genuine dispute

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

Fed. R. Civ. P. 56(a). A dispute about a material fact is “genuine” “if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A.       Title VII Retaliation Claims

         Title VII prohibits employers from retaliating against employees for

engaging in activity protected by Title VII, such as opposing practices made

unlawful by Title VII or participating in a Title VII investigation. See 42 U.S.C.

§ 2000e–3(a). Both parties agree that the burden-shifting framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to DeBene’s

retaliation claims based on circumstantial evidence.

         Under this framework, a plaintiff must first make out a prima facie case of

retaliation, which consists of the following elements: (1) he engaged in a protected


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activity; (2) he suffered a materially adverse action; and (3) there was a causal

connection between the protected activity and the adverse action. Thomas v.

Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). “The burden of

causation can be met by showing close temporal proximity between the statutorily

protected activity and the adverse employment action.” Id. at 1364. “But mere

temporal proximity, without more, must be very close.” Id. (internal quotation

marks omitted).

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

employer to articulate a legitimate, nondiscriminatory reason for the adverse

employment action. Crawford, 529 F.3d at 976. After the employer has met its

burden, the plaintiff then has the opportunity to show that the employer’s proffered

explanation is simply a pretext for retaliation. Id. “The inquiry into pretext

requires the court to determine, in view of all the evidence, whether the plaintiff

has cast sufficient doubt on the defendant’s proffered nondiscriminatory reasons to

permit a reasonable factfinder to conclude that the employer’s proffered legitimate

reasons were not what actually motivated its conduct.” Id. (internal quotation

marks omitted). Thus, the pretext inquiry focuses on the employer’s beliefs and

whether the employer provided an honest explanation for its actions. See Alvarez

v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010).           The




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employee’s beliefs, whether about his own qualifications or the wisdom of the

employer’s decision, are largely irrelevant to the inquiry. See id.

      1.     Retaliatory Failure to Promote

      DeBene claims that BayCare failed to promote him in retaliation for

participating in an investigation into sexual harassment by a supervisor who was

friends with Frankenfield. BayCare responds that DeBene was not promoted for

the simple reason that he did not meet the job requirements because he did not

have a college degree. BayCare also produced evidence showing that it viewed

Pecore, the person who was hired, as the best qualified candidate. Even assuming

without deciding that DeBene could make out a prima facie case, DeBene’s

evidence is insufficient to establish pretext.

      DeBene’s claim hinges on Frankenfield’s alleged retaliatory animus, but no

evidence exists in the record that Frankenfield developed the job requirements for

the position or that he attempted to influence any BayCare employee who did. So

the fact that he was not considered for the position appears to have no connection

to any alleged retaliatory animus.

      Moreover, DeBene’s contention that he was more qualified and had more

experience than Pecore is a nonstarter. It is well established that, “[i]n the context

of a promotion, a plaintiff cannot prove pretext by simply arguing or even by

showing that he was better qualified than the [person] who received the position he


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coveted.” Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1349

(11th Cir. 2007) (internal quotation marks omitted). Rather, the disparities in

qualifications must be “of such weight and significance that no reasonable person,

in the exercise of impartial judgment, could have chosen the candidate selected

over the plaintiff.” Id. (internal quotation marks omitted). Here, DeBene has

fallen far short of making that showing. Accordingly, the district court properly

granted summary judgment on this claim.

       2.     Retaliatory Termination

       Next, DeBene claims that his termination was in retaliation for his

participation in the sexual-harassment investigation against another supervisor.

BayCare responds that DeBene was terminated because he violated BayCare’s

policies with respect to secondary employment, conflicts of interest, and trust and

loyalty, by failing to disclose for years that he had been working for BayCare’s

software vendors. Again, even assuming without deciding that DeBene met his

prima facie case regarding his termination, he has not established that BayCare’s

proffered reasons for his termination are pretextual. 1




       1
           An additional question arises about the extent to which Frankenfield’s alleged
retaliatory animus can be imputed to BayCare under the “cat’s paw” theory, since it is
undisputed that Wilde, the ultimate decision maker, was not aware of DeBene’s protected
activity at the time of the termination decision. In any case, we need not resolve that question
because summary judgment was appropriate even assuming that Frankenfield was the relevant
decision maker.
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      DeBene first argues that BayCare’s proffered reasons are pretextual because

no actual or even potential conflict of interest arose. He states that the work he

was doing for DDS and Primrose was simply cleaning up data and that this work in

no way was adverse to BayCare’s interests.

      But DeBene’s opinion that his secondary employment did not create a

conflict of interest is immaterial because the pretext inquiry centers on BayCare’s

beliefs. See Alvarez, 610 F.3d at 1266. And DeBene offers no reason to doubt that

BayCare did not honestly believe that DeBene had violated BayCare’s policies on

conflicts of interest and secondary employment by failing to disclose for years that

he had been working for BayCare’s software vendors. In fact, DeBene does not

appear to dispute that this secondary employment should have been disclosed

under the terms of the policies. Nor could he, as the conflicts-of-interest policy

specifically lists, among other examples of potential conflicts, “[h]aving a

compensation arrangement . . . with any entity or individual with which BayCare

transacts business.” Whether an actual conflict existed or not is largely irrelevant.

DeBene cannot prevail simply by quarreling with the wisdom of BayCare’s reasons

or with its application of its own rules. See Nix v. WLCY Radio/Rahall Commc’ns,

738 F.2d 1181, 1187 (11th Cir. 1984) (“Title VII does not take away an employer’s

right to interpret its rules as it chooses, and to make determinations as it sees fit

under those rules.”).


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      DeBene’s suggestion that it was pretextual for BayCare not to submit his

belatedly disclosed conflict to the Conflict of Interest Committee is off the mark.

The conflicts-of-interest policy indicates that the committee reviewed potential

conflicts that employees listed on annual disclosure statements, but DeBene failed

to disclose any potential conflicts for the committee to review until just before his

termination. And the policy states that the “[f]ailure to disclose any conflict or

seek approval may result in termination.” Nothing in the policy suggests that

BayCare would review a conflict that an employee repeatedly failed to disclose.

Thus, BayCare’s actions were consistent with its policies and are not suggestive of

pretext.   See Morrison v. Booth, 763 F.2d 1366, 1374 (11th Cir. 1985) (not

following established procedures can show pretext).

      DeBene next contends that he has shown pretext because he was treated less

favorably than Melissa Monreal, another employee who violated the same work

rule based on the same type of work for Primrose. Monreal was demoted and

informed that she could no longer work as a manager, but she was not fired, like

DeBene, and she was provided the opportunity to find a non-management position

within the company within forty-five days.

      DeBene is correct that differential treatment based on a violation of the same

work rule can show pretext when an employee outside the protected class was not

similarly treated. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,


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1363 (11th Cir. 1999). But in order to show pretext, the plaintiff must demonstrate

that the comparators are similarly situated in all relevant respects. Knight v.

Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003). We require

that the quantity and quality of the comparator’s misconduct be nearly identical to

prevent courts from second-guessing employers’ reasonable decisions. Burke-

Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 & n.2 (11th Cir. 2006).

      Here, DeBene has not established that Monreal was similarly situated for

purposes of showing pretext. The record shows that Monreal worked for Primrose

for a matter of months, was not aware of BayCare’s vendor relationship with

Primrose when she began working there, and never completed an annual disclosure

form in which she knowingly failed to disclose her secondary employment with

Primrose.   By contrast, DeBene for years held secondary employment with

BayCare’s software vendors, first with DDS and later with Primrose, and

repeatedly and knowingly failed to disclose those potential conflicts. Thus, the

quantity and quality of Monreal’s misconduct is not sufficiently similar to

DeBene’s to be comparable.

      In addition, DeBene and Monreal were disciplined by different supervisors,

which further distinguishes their situations. See Jones v. Gerwens, 874 F.2d 1534,

1541 (11th Cir. 1989) (“[D]isciplinary measures undertaken by different

supervisors may not be comparable for purposes of Title VII analysis.”). Indeed,


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DeBene recognizes that “Monreal’s supervisor was the one who gave her the

protection that was denied to Paul DeBene.”

      DeBene claims that the differential treatment by different supervisors is

evidence of pretext because Frankenfield was motivated by retaliatory animus,

while Monreal’s supervisor was not. But the evidence of Frankenfield’s retaliatory

animus is weak to non-existent. DeBene speculates that Frankenfield had it out for

DeBene ever since the sexual-harassment complaint because Frankenfield was

friends with the fired supervisor. In support, he points to Frankenfield’s comment

to Lipscomb that DeBene had “bullied” and “badgered” coworkers to protest

Goggin’s termination. Even assuming that the comment, entirely unrelated to the

termination decision, could be construed as circumstantial evidence of retaliatory

animus, it is not sufficient on its own to establish pretext. See Scott v. Suncoast

Beverage Sales, Ltd., 295 F.3d 1223, 1229 (11th Cir. 2002). Further, DeBene does

not explain, besides sheer speculation, how Frankenfield’s “shaky ethics” make it

more likely that DeBene was fired for retaliatory reasons. We agree with the

district court that these “arguments are simply too speculative to suggest that

retaliation was the real reason behind Frankenfield’s actions.” Indeed, DeBene

testified that his relationship with Frankenfield was cordial both before and after

the sexual-harassment complaint.




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      In sum, we conclude that DeBene has not shown that BayCare’s reasons for

its employment decisions were pretextual, and we affirm the district court’s entry

of summary judgment on his Title VII retaliation claims.

B.    COBRA Notification

      DeBene claims that BayCare violated COBRA by failing to provide notice

of his right to continue healthcare coverage following his termination. BayCare

responds that its actions were sufficient to comply with its obligations under

COBRA even if DeBene did not timely receive his notice.

      COBRA provides that employers must allow former employees the

opportunity to continue healthcare coverage under the employer’s plan if a

qualifying event occurs. See 29 U.S.C. § 1161. Termination for reasons other than

an employee’s gross misconduct is a qualifying event. Id. § 1163(2). Under

COBRA, an employer—through its healthcare administrator—must notify an

employee of his right to continue his healthcare coverage after the termination of

his employment. Id. §§ 1163(2), 1166. The employer must notify its healthcare

administrator of the employee’s termination within 30 days, id. § 1166(a)(2), and

the administrator then must notify the employee of his continuation right within 14

days, id. § 1166(a)(4)(A), (c).   If an employer fails to provide a terminated

employee notice of his COBRA rights, the employee may file a civil action to

enforce his rights. 29 U.S.C. § 1132(a).


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      Providing notification of COBRA rights is important because employees are

not expected to know instinctively of their right to continue their healthcare

coverage. Cummings v. Washington Mut., 650 F.3d 1386, 1391 (11th Cir. 2011).

Notice must be provided in accordance with the regulations prescribed by the

Secretary.    29 U.S.C. § 1166(a).       Pursuant to those regulations, the plan

administrator “shall use measures reasonably calculated to ensure actual receipt of

the material by plan participants.” 29 C.F.R. § 2520.104b-1(b)(1). The regulations

specify that sending notice by first-class mail is sufficient to meet this requirement.

See id. The plan administrator must notify plan participants of, among other

information, the amount that each beneficiary will be required to pay for

continuation coverage. 29 C.F.R. § 2590.606–4(b)(4)(xi).

       We have not directly addressed what an employer must do to satisfy its

notification obligations under COBRA, though we have indicated what is not

sufficient.   In Scott, we affirmed the grant of summary judgment against an

employer on an employee’s claim that he never received any COBRA information.

See 295 F.3d at 1230–31. The employer had argued that it satisfied its good-faith

obligation to comply with the statute by providing its plan administrator with the

necessary information and instructing the administrator to send the COBRA notice

to Scott. Id. at 1230. We noted without disapproval that other courts had held that

an employer satisfied the statute by sending a notice “in a good faith manner


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reasonably calculated to reach the plaintiff,” but we found that this language could

not be stretched to apply in a situation were “there is no evidence that any notice

was ever sent by that third party.” Id. at 1231. Thus, we concluded that “[s]imply

hiring an agent and then instructing the agent to send notice is not sufficient to

satisfy the statute, where there is no evidence that the agent sent out a notice to the

plaintiff, nor any evidence that the principal took the necessary steps to ensure that

the agent would, in all cases, make such notification.” Id. (emphasis added).

      Here, both parties agree that the critical issue is whether there is a genuine

issue of material fact as to whether a COBRA notice was mailed to DeBene. On

this record, we agree with the district court that BayCare provided sufficient

undisputed evidence to show that it mailed DeBene a COBRA letter. BayCare

produced evidence of its and Benefit Concepts’s routine procedures regarding the

preparation and mailing of COBRA election notices and how they were followed

with respect to DeBene’s COBRA notification. BayCare also provided a copy of

DeBene’s July 23, 2014, COBRA letter, which included his premium amount and

enrollment form, and a report from Benefit Concepts showing that the letter was

sent on that date. In addition, BayCare also provided evidence showing that other

recipients of notices mailed on the same day as DeBene’s were able to successfully

elect coverage and that no other former employee reflected on the report of letters

sent on that date had reported not receiving his or her notice. In light of this


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undisputed evidence, we conclude that BayCare has met its obligations under

COBRA. See 29 C.F.R. § 2520.104b-1(b)(1); cf. Scott, 295 F.3d at 1230–31.

      DeBene’s arguments to the contrary are unavailing. The fact that BayCare’s

Benefits Administrator told DeBene that he was COBRA ineligible because he was

terminated for gross misconduct does not create a question of material fact

because, as the district court stated, “[H]er mistaken belief has no bearing on

whether or not the COBRA notice was sent.” Nor is there any evidence that

someone at BayCare directed Benefit Concepts not to send DeBene a COBRA

letter or that the coding of his termination had been changed in order to reflect that

he was eligible, after he called. In fact, the only evidence in the record on this

point indicates that DeBene was coded in BayCare’s benefits system as COBRA

eligible on July 3, 2014, and that this information was transferred to Benefit

Concepts on July 22, 2014.

      For these reasons, we affirm the district court’s grant of summary judgment

to BayCare on DeBene’s COBRA claim.

      AFFIRMED.




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