                Case: 16-10331      Date Filed: 06/15/2017      Page: 1 of 8


                                                                    [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                               No. 16-10331 & 16-10917
                              ________________________

                      D.C. Docket No. 8:14-cv-00913-JDW-EAJ



TIMOTHY R. JUBACK,
an individual,

                                                        Plaintiff - Appellant,

versus

MICHAELS STORES, INC.,

                                                        Defendant - Appellee.

                              ________________________

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

                                      (June 15, 2017)

Before JORDAN and JULIE CARNES, Circuit Judges, and VINSON, * District
Judge.


         *
         The Honorable C. Roger Vinson, United States District Judge for the Northern District
of Florida, sitting by designation.
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PER CURIAM:

       Timothy Juback sued his former employer, Michaels Stores, Inc., claiming

that Michaels terminated him because he filed a workers’ compensation claim.

Mr. Juback asserted claims under the Florida Workers’ Compensation Law, Fla.

Stat. § 440.01, et seq., the Family and Medical Leave Act, 29 U.S.C. § 2601, et

seq., the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and the

Florida Civil Rights Act, Fla. Stat. § 760.10, et seq., as well as under state common

law. Mr. Juback now appeals the district court’s order granting in part Michaels’

motion for summary judgment and order denying his motion for reconsideration.

       Upon review of the parties’ briefs, the record, and with the benefit of oral

argument, we affirm. Because we write for the parties, we assume their familiarity

with the underlying record and recite only what is necessary to resolve this appeal. 1

       We review an order granting summary judgment de novo and apply the same

legal standards as the district court. See Drago v. Jenne, 453 F.3d 1301, 1305

(11th Cir. 2006).     Summary judgment is appropriate when there is no genuine

issue as to any material fact and the moving party is entitled to a judgment as a

matter of law. See id. “In examining the record, we view the evidence in the light




1
 We address only Mr. Juback’s retaliation claim under the Florida Workers’ Compensation Law.
As to all other issues on appeal, we affirm without further discussion.
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most favorable to the non-moving party.” Thomas v. Cooper Lighting, Inc., 506

F.3d 1361, 1363 (11th Cir. 2007).

      Florida law prohibits an employer from retaliating against an employee for

filing or attempting to file a valid workers’ compensation claim, see Fla. Stat.

§ 440.205, and provides a statutory cause of action for employees who claim

unlawful termination. See Smith v. Piezo Tech. & Prof’l Adm’rs, 427 So. 2d 182,

183 (Fla. 1983). To establish a claim under § 440.205, the employee must prove

that (1) he or she engaged in statutorily protected activity, (2) an adverse

employment action occurred, and (3) the adverse action and the protected activity

were causally related. See, e.g., Hornfischer v. Manatee Cty. Sheriff’s Office, 136

So. 3d 703, 706 (Fla. 2d DCA 2014); Andrews v. Direct Mail Exp., Inc., 1 So. 3d

1192, 1193 (Fla. 5th DCA 2009). Once a plaintiff establishes a prima facie case,

the burden shifts to the defendant to present a legitimate reason for its conduct.

See Hornfischer, 136 So. 3d at 706. If the employer does so, the plaintiff then

bears the burden of proving by a preponderance of the evidence that the

defendant’s proffered reason was merely a pretext for the prohibited, retaliatory

decision. See Andrews, 1 So. 3d at 1193–94.

      Mr. Juback first argues that the district court applied the wrong standard by

requiring him to “demonstrate that Michaels did not truly rely on the proffered

non-discriminatory reasons.” See D.E. 99 at 17. Mr. Juback says that he only


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needed to show that his attempt at obtaining workers’ compensation benefits was a

“substantial factor” in Michaels’ termination decision. See Appellant’s Br. at 26.

It appears, however, that the district court, rather than stating the applicable

standard, was intending to explain that attacking the fairness of Michaels’ decision

would be insufficient to show pretext. The district court cited and quoted a portion

of Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354 (11th Cir. 1999),

suggesting as much.

      We agree, nevertheless, that § 440.205 does not require a plaintiff to

ultimately prove that his pursuit of workers’ compensation was the employer’s

only basis for termination. See Hornfischer, 136 So. 3d at 706; Allan v. SWF Gulf

Coast, Inc., 535 So. 2d 638, 639 (Fla. 1st DCA 1988).             The district court

recognized this as well. Although some Florida courts suggest that the plaintiff

must only prove that his pursuit of workers’ compensation was one of its bases for

termination, see Hornfischer, 136 So. 3d at 706, others have suggested that the

plaintiff must show that his filing of a workers’ compensation claim was a

“substantial factor” in the employer’s termination decision. See Ortega v. Eng’g

Sys. Tech., Inc., 30 So. 3d 525, 529–30 (Fla. 3d DCA 2010) (stating that

“[u]ltimately, the plaintiff bears the burden that a violation of the statute occurred

and that such violation was a substantial factor in the employer’s decision . . . .”).

See also Hubbard v. City of Boca Raton, 839 So. 2d 747, 748 (Fla. 4th DCA 2003)


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(reversing the trial court’s grant of an employer’s motion for summary judgment

because the employer failed to conclusively demonstrate that the plaintiff’s

workers’ compensation claims “were not a substantial factor” in the company’s

termination decision); Allan, 535 So. 2d at 639 (approving of jury instruction that

required the jury to determine whether the desire to retaliate was a substantial

factor in the employer’s decision to terminate the plaintiff).

      Based on the record before us, and assuming that Mr. Juback established a

prima facie case of retaliatory discharge, he failed to provide sufficient evidence to

allow a jury to find that the reasons articulated by Michaels for terminating him

were pretextual.    The evidence shows that Michaels came to its decision to

terminate Mr. Juback after a series of disciplinary actions resulting from his pattern

of “questionable judgment calls” and violations of company policies.

Specifically, Michaels decided to terminate Mr. Juback after determining the

extent of his involvement in selling nutritional supplements for Zija International

and recruiting Michaels employees for that endeavor, and learning that Mr. Juback

had established his own consulting firm and attempted to establish a business

relationship with one of Michaels’ third-party vendors for that venture.

      Mr. Juback argues that the reasons for his termination were discovered

before his injury, and because Michaels decided to terminate him only after he

filed his workers’ compensation claim, there is evidence that Michaels’ proffered


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reasons are pretextual. Mr. Juback is correct that Michaels did not terminate him

before his injury even though it had contemplated his termination because of

concerns about his performance. Before Mr. Juback’s injury, Michaels was

concerned about his management skills, use of company funds, and failure to

follow company policies. This resulted in Michaels issuing its first Final Written

Warning to Mr. Juback. Not long after, Michaels decided to issue a second Final

Written Warning because it was troubled by Mr. Juback’s preoccupation with

marketing Zija products while at work and the complaints it was receiving about

the pressure other employees were feeling to purchase Zija products from

Mr. Juback. So, when Mr. Juback suffered his injury in September of 2013, he

already had two strikes against him.

      Mr. Juback fails to recognize that it was the additional information Michaels

obtained after his injury, in conjunction with the prior concerns, that prompted his

termination. While discussing his second Final Written Warning, Mr. Juback’s

direct supervisor found out that Mr. Juback had recruited “10+ [Michaels]

associates” as customers or distributors for Zija. And, a short time after Michaels

informed Mr. Juback that his job was in jeopardy, he reached out to a third-party

vendor to solicit business for his personal venture and seek job opportunities.

Michaels received notice of the meeting between Mr. Juback and the vendor




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through an unsolicited call from the vendor, who reached out because he felt

“uncomfortable” and thought there could be a “conflict of interest.”

      Mr. Juback’s efforts to show pretext are unpersuasive. Mr. Juback contests

the sources Michaels relied upon for finding that his Zija marketing was affecting

other employees and his performance, and suggests that Michaels’ prior knowledge

of his involvement with Zija calls into doubt this basis for his termination. As for

the establishment of his company and efforts to create a business relationship with

one of Michaels’ vendors, he denies that he prompted the vendor for business and

does not recall asking for a job. He also suggests that other employees similarly

had side jobs but were not terminated and that his supervisor investigated him in an

unusual way.

      All of Mr. Juback’s arguments essentially question whether Michaels’

rationales for terminating him were fair rather than pretextual. Mr. Juback has not

sufficiently contested the validity of Michaels’ evidence of his policy violations,

and we are not in the position to second-guess a company’s personnel choices. See

E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176 (11th Cir. 2000). See also

Damon, 196 F.3d at 1361 (“We are not in the business of adjudging whether

employment decisions are prudent or fair. Instead, our sole concern is whether

unlawful discriminatory animus motivates a challenged employment decision.”).

Michaels had a good-faith basis to rely on its employees and a third-party vendor


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to question Mr. Juback’s dedication to his job, cf. E.E.O.C., 221 F.3d at 1176, and

to terminate Mr. Juback after issuing multiple formal warnings. See Elrod v.

Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (“The inquiry . . . is

limited to whether [the supervisors] believed that Elrod was guilty of harassment,

and if so, whether this belief was the reason behind Elrod’s discharge.”).

       Overall, Mr. Juback has not offered a sufficient evidentiary basis to create a

jury issue on pretext. As a result, we affirm the district court’s grant of Michaels’

summary judgment motion and denial of Mr. Juback’s motion for reconsideration. 2

       AFFIRMED.




2
 Mr. Juback has not briefed any claim of error with respect to the bill of costs in No. 16-10917,
so we deem any challenges to the bill of costs abandoned.
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