             Case: 14-12703    Date Filed: 06/02/2015   Page: 1 of 6


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-12703
                           Non-Argument Calendar
                         ________________________

                      D.C. Docket No. 2:12-cv-00696-JEO

ED RUDY,

                                                              Plaintiff-Appellant,

                                     versus

WALTER COKE, INC.,
WALTER ENERGY, INC.,

                                                           Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                         ________________________

                                 (June 2, 2015)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Ed Rudy, a former Walter Coke, Inc. (“Walter Coke”) employee, appeals the

district court’s grant of summary judgment in favor of Walter Coke on his claims

of interference and retaliation under the Family Medical Leave Act (“FMLA”),
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filed pursuant to 29 U.S.C. § 2615(a).        Rudy argues that: (1) the district court

erred in determining that the general manager decided to terminate him before he

requested medical leave, rather than after; (2) his direct supervisor’s discriminatory

animus could be imputed to the general manager; and (3) Walter Coke should have

been precluded from arguing that it had a legitimate, non-discriminatory reason for

firing him. After thorough review, we affirm.

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

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

party.    Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir. 2008).            Summary

judgment is appropriate when the moving party shows that (1) there is no genuine

dispute as to any material fact, and (2) the movant is entitled to judgment as a

matter of law. Fed.R.Civ.P. 56(a). Once the moving party submits a properly

supported motion for summary judgment, the non-moving party must “set forth

specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986) (quotation omitted). To show that there is a

genuine issue for trial, the non-moving party must present sufficient favorable

evidence for a jury to return a verdict in the non-moving party’s favor. Id. at 249.

         Under the FMLA, eligible employees are entitled to take unpaid leave

“[b]ecause of a serious health condition that makes the employee unable to

perform the functions of [his] position.” 29 U.S.C. § 2612(a)(1)(D). A serious


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health condition is an illness, injury, impairment, or physical condition requiring

inpatient care at a hospital or continuing treatment by a health care provider. Id. §

2611(11). To establish a prima facie case of FMLA interference, a plaintiff must

show by a preponderance of the evidence that he was denied a benefit to which he

was entitled under the FMLA, such as taking leave. Krutzig v. Pulte Home Corp.,

602 F.3d 1231, 1235 (11th Cir. 2010). Whether the employer intended to deny the

benefit is irrelevant. Id. However, for an employer to be held liable for FMLA

interference, the request for leave must have been the proximate cause of the

termination. Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1242 (11th Cir.

2010). If the evidence shows that a decisionmaker was unaware of an employee’s

request to take FMLA leave at the time of the decision to terminate the employee,

the employer is entitled to summary judgment. Krutzig, 602 F.3d at 1236.

      To state a claim for FMLA retaliation, the plaintiff must show that the

defendant intentionally discriminated against him because he engaged in statutorily

protected activity. Schaaf, 602 F.3d at 1243. Absent direct evidence of the

defendant’s intent, courts evaluate FMLA retaliation claims under the burden-

shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Id. Under this framework, the plaintiff must first establish a prima facie

case of FMLA retaliation. Id. If the plaintiff is able to present a prima facie case,

the burden shifts to the defendant to articulate a legitimate, non-discriminatory


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reason for the adverse action. Id. Once the defendant presents a legitimate, non-

discriminatory reason, the burden shifts back to the plaintiff to show that the

defendant’s purported reason was simply a pretext for discrimination. Id. at 1244.

      To establish a prima facie case of FMLA retaliation, the plaintiff must show

that (1) he engaged in statutorily protected conduct, (2) he suffered a materially

adverse action, and (3) the adverse action was causally related to the protected

conduct. Id. at 1243. The plaintiff may satisfy the causal connection element by

showing that the protected activity and adverse action were “not wholly unrelated.”

Krutzig, 602 F.3d at 1234 (quotation omitted).       Generally, an employee can

establish that these events were not wholly unrelated by showing that the

decisionmaker was aware of the protected conduct at the time of the adverse

action. Id. Temporal proximity alone does not establish a causal connection when

there is unrebutted evidence that the decisionmaker was not aware of the protected

activity. Id. at 1235. Furthermore, other supervisors’ knowledge that the plaintiff

engaged in protected conduct may not be imputed to the decisionmaker in FMLA

retaliation claims. Id.

      In other employment discrimination contexts, discriminatory animus may be

imputed to a neutral decisionmaker under a “cat’s paw” theory if (1) a supervisor

performed an act motivated by animus that was intended to cause an adverse

employment action, and (2) the act was a proximate cause of the adverse


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employment action. See Staub v. Proctor Hosp., 562 U.S. 411, ___, 131 S.Ct.

1186, 1194 (2011). A plaintiff may establish causation under this theory if the

decisionmaker either followed another supervisor’s biased recommendation

without independently investigating the complaint against the plaintiff or

conducted an independent investigation but relied on facts provided by the biased

supervisor. 131 S.Ct. at 1193; Stimpson v. City of Tuscaloosa, 186 F.3d 1328,

1332 (11th Cir. 1999).    We have not yet determined whether plaintiffs may

proceed under a “cat’s paw” theory in the FMLA context.

      In this case, the district court properly granted summary judgment in favor

of Walter Coke because Rudy did not present evidence suggesting a causal link

between his termination and his request for medical leave. On the one hand, the

record shows that Rudy learned that he needed surgery and told his supervisor

about the surgery before he was terminated. However, there is nothing in the

record -- other than Rudy’s unsupported speculation -- to suggest that either the

general manager or the company vice president (the decisionmakers involved in

Rudy’s termination) knew that he needed surgery or had requested leave at the

time Rudy was fired. Because Rudy did not demonstrate that his request for leave

was related to his termination, he also failed to make out a prima facie case of

FMLA retaliation.     Moreover, we need not decide whether a supervisor’s

discriminatory animus may be imputed to a neutral decisionmaker in the FMLA


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context because the undisputed evidence shows that the supervisor was uninvolved

with the termination process beyond reporting the complaint, and the general

manager conducted an independent investigation into the complaint.           Because

Rudy failed to establish a prima facie case under the FMLA, we find it unnecessary

to determine whether collateral estoppel would preclude Walter Coke from

asserting that it had a legitimate, non-discriminatory reason for firing Rudy.

      AFFIRMED.




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