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                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14013
                      ________________________

                  D.C. Docket No. 2:11-cv-03497-RDP



JANET L. SKOTNICKI,

                                                           Plaintiff-Appellant,

                               versus

BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA, THE,
DR. ROBERT BOURGE,
SUSAN CONRAD,
ALESIA M. JONES,
GARY E. JONES,

                                                        Defendants-Appellees.

                      ________________________

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

                           (December 10, 2015)
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Before ED CARNES, Chief Judge, TJOFLAT and SENTELLE, * Circuit Judges.

PER CURIAM:

      Janet Skotnicki, a former nurse at the University of Alabama at Birmingham

(UAB) Hospital, filed a lawsuit alleging violations of federal and state law related

to the denial of her request for medical leave and the termination of her

employment. The district court granted summary judgment to the defendants on

all of Skotnicki’s claims. This is her appeal.

                                  I.     Background

      Viewed in the light most favorable to Skotnicki, the facts are these. In

November 1998, she began working in UAB’s Coronary Care Unit (CCU) as a

staff nurse. 1 “Staff nurse” is the term UAB typically uses for a registered nurse

(RN) who gives direct bedside care to patients. Skotnicki’s job in the CCU was

not sedentary and required her to have certain physical abilities.

      In 1998, Skotnicki was diagnosed with Autoimmune Cerebellar Ataxia, a

neurological condition that can affect gait and balance. Three years later, in June

2002, she changed her employment status from full-time (36 hours/week) to part-

      *
      Honorable David Bryan Sentelle, United States Circuit Judge for the District of
Columbia Circuit, sitting by designation.
      1
        The CCU was one of several “units” in the Cardiovascular Services Department,
for which defendant Susan Conrad was the Director of Nursing. Conrad testified that she
had approximately fifteen Nurse Managers reporting to her from the various units of that
department and that they supervised approximately 300 additional nurses, the majority of
which were staff nurses like Skotnicki.
                                           2
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time (24 hours/week). 2 Five years after that, in September 2007, she requested and

was granted a one-month period of leave under the Family Medical Leave Act

(FMLA) to seek necessary medical treatment.

      While on leave, Skotnicki had a conversation with her supervisor in the

CCU, Pat Long, concerning her return to work. Long told her that she could return

to one of two positions, both of which were sedentary and did not have the

physical demands of bedside care. The first position was as an “admit nurse” in

the CCU, a position that UAB in late 2007 was willing to create for Skotnicki.

She declined the position and it was never created for, or filled by, anyone.

      The second position — the one Skotnicki elected to take — was as a nurse in

the Interventional Cardiology (IC) office, a temporary position. The position was

available because, at the time Skotnicki returned from leave, IC was short three

nurse practitioners and had decided to cover some of the work with staff nurses

(typically RNs) until the vacant positions could be filled with nurse practitioners.

Skotnicki admits that she chose the IC position over the CCU position with the

knowledge that it was temporary, although she thought at the time that it “could

become permanent.” 3


      2
        The record does not tell us whether the status change was related to her medical
condition.
      3
        In her deposition, Skotnicki stated that she “was told initially that [the IC
position] was temporary — it could be temporary, but it could become permanent. And
                                            3
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      In March 2008, Skotnicki received an employee performance evaluation. It

included an “individual development plan” that Skotnicki herself had written. The

evaluation and the plan were signed by Long and Long’s boss, Susan Conrad. As

part of the plan, Skotnicki wrote that she would “[c]ontinue to work in [IC] or

CCU as [an] admit nurse.” That was the only individual development plan and the

only evaluation that Skotnicki received during her time in the IC office.

      In February 2009, Skotnicki suffered a fall at her home, which left her

unable to walk without assistance. To assist her, she began using a rollator — a

rolling walker — for balance support. The rollator was the first visible sign of

Skotnicki’s neurological condition. Later that same month, she learned that

defendant Robert Bourge, M.D., who was in charge of IC personnel matters, was

still looking to fill her position with a nurse practitioner. On February 26, she sent

an email to Dr. Vijay Misra that stated in relevant part:

      I learned this week that . . . my job will end when a fourth [nurse
      practitioner] is hired. Hopefully, that will change and I will be made a
      permanent employee, but as much as I would like for that to happen, I
      don’t think I can’t [sic] count on it. Although I am still technically a
      CCU employee[ 4] . . . I am unable to return to work in CCU because


then in February 2009 I was told that it was permanent.” She identified Nurse
Practitioner David Lawson as the individual who told her that the job would be
permanent in February 2009. According to the defendants, either Lawson didn’t say that
or, if he did, it was bad information because the plan to fill Skotnicki’s temporary
position with a nurse practitioner never changed. In any event, Skotnicki acknowledges
that Lawson did not have the authority to make personnel decisions.
        4
          There is some record support for Skotnicki’s assertion — which has come up
again in this lawsuit — that she was “still technically a CCU employee.” Throughout her
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       of my neurological illness. Unless I have another office-type nursing
       job lined up in advance, I would have to file for disability status when
       my job here ends. I do not want to do that if at all possible.

       In the summer and fall of 2009, Skotnicki applied to two other sedentary

jobs at UAB that are relevant to her claims in this lawsuit. The first was a “Patient

Flow Coordinator” position in the then-newly-created “Patient Flow Center.”

Skotnicki first discussed that position with Susan Kuklinski, the person who would

be responsible for the Center’s hiring, in June 2009. Skotnicki forwarded

Kuklinski her resume. In December 2009, however, HR Consultant Sharon Lane

informed Skotnicki that the position required a bachelor’s degree, which is more

education than the associate’s degree Skotnicki had at the time. 5 The second job

she applied for — a “Patient Services Coordinator I” position — required only a



two plus years in the IC office, Skotnicki continued to be listed on the CCU employee
roster and was supervised by CCU’s nurse manager, which at some point changed from
Long to defendant Gary Jones. When asked why Skotnicki was still listed and treated as
a CCU employee after her move to the IC office, Conrad testified: “I had to leave [her]
in [the CCU] cost center so that she could remain an employee and get benefits, because I
didn’t have another position to put her into. There was not a position in the [IC] office . .
. that I could have transferred her to.” Skotnicki’s salary was covered by IC, using funds
that were available as a result of the vacant nurse practitioner position(s).
         5
           Skotnicki asserts that Lane’s email also told her that UAB would waive the
degree requirement if a job applicant was, at the time she applied, enrolled in the
necessary program or agreed to obtain the degree by a certain future date. Skotnicki
offers two record citations in support of the proposition that UAB had that waiver policy,
neither of which are the email from Lane. The first citation is to her own testimony about
what Lane told her. The second is Sharon Conrad’s testimony that UAB generally allows
staff nurses to complete their bachelor’s degrees or other education while they are
employed. Conrad said nothing, however, about whether a staff nurse could be hired into
a position that required a bachelor’s degree without first obtaining the degree.

                                             5
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high school diploma or G.E.D. The defendants put into evidence an affidavit from

Lane stating that Skotnicki was not interviewed or selected for the position

“because her salary expectations exceeded the salary that [the] department was

willing to pay.” 6

       On December 11, 2009, Skotnicki was told that a fourth nurse practitioner

had been hired for the IC position. Because the new hire would need orientation,

however, Skotnicki was asked to continue in the job until Friday, April 2, 2010.

On February 10, 2010, Skotnicki sent an email to defendant Gary Jones, who was

the nurse manager in the CCU and her supervisor at the time. She wrote:

       I have decided to apply for a medical leave of absence to begin
       immediately when my job in the [IC] office ends on April 2. I plan on
       receiving medical treatment for my medical condition during that time
       and hope to be able to find another position at UAB before the leave
       ends so that I can return to work.

       The next day, Skotnicki sent another email to Jones requesting his fax

number so that she could send the FMLA paperwork for his signature. A few

hours later, Jones replied: “I am unsure about the process for FMLA at this time

since your job is ending. I will consult HR and get back with you.” Skotnicki

wrote back:

       6
         Skotnicki asserts, for the first time in her reply brief, that “[t]he posted job listing
stated a salary range of between $13 and $20/hour and on her application, [she] listed
$16/hour, which was clearly within the range listed.” But her single record citation in
support of that assertion directs us to a letter from UAB about long-term disability
benefits. As far as we can tell, there is no evidence whatsoever that Skotnicki stated that
$16/hour was her salary requirement.
                                                6
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      After this medical leave and the treatment that my physician and I
      plan on me receiving over those 16 weeks, it is possible I may be able
      to return to CCU . . . . Or certainly that there may be another position
      made available to me that I will be able to do upon the completion of
      my medical leave. My current position is ending, but not necessarily
      my employment with UAB so I believe my leave request is due to be
      granted.

      It is undisputed that Skotnicki’s FMLA application was submitted to UAB’s

Leave Office on February 11, 2010, and that she requested leave to begin on April

4, 2010, which was after her last day in the IC position. On February 18, 2010 —

one week after her leave request was submitted — Skotnicki received a

memorandum from Conrad that stated:

      RE:   Final Day of Employment

      As you are aware, you were given non-bedside nursing duties in
      October 2007 to accommodate your medical restrictions that limited
      you from resuming your bedside nursing duties. The accommodation
      was made at that time, because [IC] needed additional assistance. . . .
      You have been repeatedly advised that you could not continue to
      serve in that capacity once the department was adequately staffed with
      [n]urse [p]ractitioners . . . .

      Since you have informed us that your medical condition will not allow
      you to return to your staff RN role in CCU and the [nurse
      practitioners] are nearing the completion of their orientation, I am
      writing to inform you that your last day of work with UAB will be
      Friday, March 26, 2010 (pay date of April 2, 2010.)

      Additionally, you recently informed your CCU Nurse Manager, Gary
      Jones, of your intention to apply for FMLA to begin April 2, 2010.
      Because your employment will have ended by that date, we are unable
      to grant you FMLA unless you secure other employment with UAB
      prior to that time.


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       Skotnicki contacted several higher-ranking individuals at UAB to request a

reconsideration of the decision to deny her leave. By letter dated March 22, 2010,

defendant Alesia Jones, who was UAB’s Chief Human Resources Officer,

reiterated UAB’s position that Skotnicki was “ineligible for a leave of absence”

because she would “not be able to return to either of [her] previous positions,”

which were the bedside position in CCU or the temporary IC position that had

been filled with a nurse practitioner.

       Skotnicki worked her last day at UAB on March 26, 2010.7 She then filed

this lawsuit in federal district court in September 2011, alleging violations of the

FMLA, the Americans with Disabilities Act, the Rehabilitation Act, and state law.

On August 8, 2014, the district court granted summary judgment to the defendants

on all fifteen federal claims and declined to exercise supplemental jurisdiction over

Skotnicki’s state law claim, dismissing it without prejudice.

                                    II.    Discussion

       Skotnicki appeals the district court’s grant of summary judgment to the

defendants on four of her federal claims: (1) a FMLA interference claim; (2) a

FMLA retaliation claim; (3) a Rehabilitation Act disparate treatment claim; and

(4) a Rehabilitation Act failure-to-accommodate claim. She contends that the


       7
         Thereafter, Skotnicki: (1) applied for and received long-term disability benefits;
(2) continued to apply for open positions at UAB and elsewhere; and (3) obtained her
bachelor’s degree (in February 2012).
                                             8
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district court erred by making credibility determinations, ignoring her sworn

testimony, and construing the facts against her at the summary judgment stage.

We review de novo a grant of summary judgment, applying the same legal

standards that governed the district court’s decision. McCabe v. Sharrett, 12 F.3d

1558, 1560 (11th Cir. 1994). We may affirm on any ground supported by the

record, “regardless of whether the district court relied on that ground.” Id.

                                  A.     FMLA Claims

       Among the substantive rights granted by the FMLA to eligible employees 8 is

the right to “12 workweeks 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 of such employee.” 29 U.S.C. § 2612(a)(1)(D). The FMLA creates

two types of claims: “interference claims, in which an employee asserts that [her]

employer denied or otherwise interfered with [her] substantive rights under the

Act, see id. § 2615(a)(1), and retaliation claims, in which an employee asserts that

[her] employer discriminated against [her] because [s]he engaged in activity

protected by the Act, see id. § 2615(a)(1) & (2).” Strickland v. Water Works &

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



       8
          An “eligible employee” is an “an employee who has been employed (i) for at
least 12 months by the employer with respect to whom leave is requested . . . ; and (ii) for
at least 1,250 hours of service with such employer during the previous 12-month period.”
29 U.S.C. § 2611(2)(A).
                                             9
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       The district court never got around to addressing Skotnicki’s allegations of

retaliation and interference because it granted summary judgment on the ground

that the requested leave “fell outside her term of employment” and the decision to

terminate her “had been announced before [she] engaged in any protected

activity.” In essence, the court concluded that Skotnicki could not state a claim

under the FMLA because she had no right to commence leave after her last day of

employment, at which point she was no longer covered by the FMLA. On appeal,

Skotnicki doesn’t challenge the court’s (correct) conclusion that the FMLA does

not create a “right” to commence leave after an employee’s last day of

employment. Instead, she argues that the court erroneously conflated the

“termination” of the temporary IC position with the termination of her employment

at UAB (and, more specifically, her allegedly “permanent” position in the CCU),

when in fact those were two separate events. Which is to say that she thinks her

status as a CCU employee, instead of as a temporary IC employee, is the status

upon which her FMLA leave request should have been evaluated, and thus the

decision to deny it was “interference” with her right to take the leave and the

decision to terminate her was “retaliation” for having requested it. 9


       9
         It is not clear to us that Skotnicki made this argument in the court below. If she
did, it was not articulated well enough for the court to pick up on it; in an otherwise
thorough order, it goes unmentioned. We could reject it on that basis alone. See Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1326–27 (11th Cir. 2004) (declining to
address the merits of a claim where the appellants “raised an entirely new theory on
                                             10
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       The problem with that argument is two-fold: there is no evidence to support

it, and there is plenty of evidence to contradict it. Skotnicki relies most heavily —

indeed, almost exclusively — on the March 2008 individual development plan

stating, in her handwriting, that she would “[c]ontinue to work in [IC] or CCU as

[an] admit nurse.” But regardless of what Skotnicki’s or even UAB’s “plan” was

in March 2008, there is nothing in the facts or the law to suggest that such a plan

imposed any constraints on the employment decisions made by UAB in late 2009

and early 2010. 10

       While UAB does not direct us to any clear-cut evidence that the end of

Skotnicki’s temporary IC position and the end of her UAB employment were one

and the same, it is undisputed that Skotnicki: (1) voluntarily took the IC position

with the knowledge it was temporary; (2) repeatedly communicated that she was

not capable of returning to her bedside care position in CCU; and (3) repeatedly

expressed her understanding that, when the IC position ended, she would need to

find another job within the UAB system or file for disability benefits. In a



appeal — one never presented to or considered by the trial court”). Giving Skotnicki
every benefit of the doubt, however, we will go ahead and address the argument.
        10
           Skotnicki also points to the fact that she was at all times “listed” on the CCU
employee roster, but she does not explain — and we cannot discern — how that fact is
significant. There is no organizational chart that shows how the parts of UAB Hospital
fit together, or any explanation of the HR-related implications of being “listed” on any
given roster. Indeed, the record is devoid of anything that would indicate that Skotnicki’s
status as a CCU employee, instead of as an IC employee, is the status upon which her
FMLA leave request should have been evaluated.
                                            11
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February 2009 email to Dr. Misra, for example, Skotnicki stated in no uncertain

terms that she was “unable to return to work in [the] CCU” and “[u]nless [she had]

another office-type nursing job lined up in advance, [she] would have to file for

disability status when [her] job [in IC] end[ed].”

      Skotnicki’s own deposition testimony contradicts her position on appeal.

When asked whether she was given “notice” of her “final day of employment”

after a fourth nurse practitioner was hired for IC, she responded, “Yes. April the

2nd.” While she would no doubt urge us to read “final day of employment” as

meaning “final day in the IC office,” such a reading strains credibility, especially

in light of the other record evidence. Nothing in Skotnicki’s sworn testimony or

anything else in the record amounts to more than “a mere scintilla of evidence”

that she had not already been terminated when she requested FMLA leave to begin

after her last day of employment. See Walker v. Darby, 911 F.2d 1573, 1577

(11th Cir. 1990) (“A mere scintilla of evidence supporting the [nonmoving] party’s

position will not suffice; there must be enough of a showing that the jury could

reasonably find for that party.”) (quotation marks omitted).

      There is another reason Skotnicki’s FMLA claims fail. The right to

commence FMLA leave is not absolute, and “an employee can be dismissed,

preventing her from exercising her right to commence FMLA leave, without

thereby violating the FMLA, if the employee would have been dismissed


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regardless of any request for FMLA leave.” Krutzig v. Pulte Home Corp., 602

F.3d 1231, 1236 (11th Cir. 2010). So even if UAB made the decision to terminate

Skotnicki’s employment, or informed her of that decision, after she requested

FMLA leave, the decision would not amount to a violation of the FMLA provided

that UAB’s reason was unrelated to the leave request. UAB has consistently

stated, and the record consistently reflects, that it terminated Skotnicki because the

temporary IC position was no longer available and Skotnicki had informed the

hospital that she could not return to bedside care duties in the CCU.

      In sum, the FMLA does not give a terminated employee the right to

commence medical leave after her last day of employment, when she is no longer

covered by the Act. Even construing the facts and all reasonable inferences in

Skotnicki’s favor, as we must, the record is clear that she requested leave to

commence after her last day of employment. As a result, there was no right with

which the defendants could have interfered and there was no “protected activity”

that could serve as the basis for a retaliation claim. We will affirm the district

court’s grant of summary judgment to the defendants on both of Skotnicki’s

FMLA claims.

                          B.     Rehabilitation Act Claims

      The Rehabilitation Act prohibits any program or activity receiving federal

funds from discriminating against otherwise qualified individuals with a disability.


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See Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); see also 29 U.S.C.

§ 794(d). To establish a prima facie claim of failure to accommodate under the

Rehabilitation Act, Skotnicki must show that: (1) she was disabled; (2) she was a

qualified individual; and (3) she was discriminated against by way of the

defendant’s failure to provide a reasonable accommodation. Lucas v. W.W.

Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001).

      UAB does not dispute that Skotnicki was disabled and that she was a

qualified individual. The question is whether UAB discriminated against her by

failing to provide a reasonable accommodation. Skotnicki bears the burden of

identifying an accommodation and establishing that it was reasonable. Id. She

points to four accommodations that she requested and that UAB failed to provide.

But none of them are reasonable.

      The first accommodation Skotnicki requested was medical leave. Although

granting medical leave is one way an employer may accommodate an employee

with a disability, see Jackson v. Veterans Admin., 22 F.3d 277, 279 (11th Cir.

1994), the accommodation is not required unless it is a reasonable one. A medical

leave period that commences after an employee’s last day of employment is not a

reasonable accommodation.

      The remaining three of Skotnicki’s accommodation requests were essentially

requests for reassignment. We have said that reassignment to a vacant position is a


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reasonable accommodation. Lucas, 257 F.3d at 1256. Any duty to reassign does

not, however, require the employer to bump another employee from a position, to

create a new position, to promote the disabled employee, or to assign the disabled

employee to a position for which he is not qualified. Id. at 1256–57; Terrell v.

USAir, 132 F.3d 621, 625–26 (11th Cir. 1998).

      Skotnicki’s first reassignment request — that she be put into the CCU as an

“admit nurse” — was not reasonable because it would have required UAB to create

a new position. See Terrell, 132 F.3d at 626. The fact that UAB had offered, two

years earlier, to create an admit nurse position in CCU for Skotnicki — an offer

she declined — does not change anything. Lucas, 257 F.3d at 1257 n.3 (“Good

deeds ought not be punished, and an employer who goes beyond the demands of

the law to help a disabled employee incurs no legal obligation to continue doing

so.”); see also Terrell, 132 F.3d at 626 n.6 (“An employer that bends over

backwards to accommodate a disabled worker . . . must not be punished for its

generosity by being deemed to have conceded the reasonableness of so far-

reaching an accommodation.”) (quotation marks omitted).

      The second reassignment request — to the “Patient Flow Coordinator”

position — was not reasonable because that position required a bachelor’s degree




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and Skotnicki did not have one when she applied for the position. 11 See Lucas,

257 F.3d at 1259 (“The law in this area is crystal clear: an otherwise qualified

person is one who is able to meet all of the [job’s] requirements in spite of his

handicap.”) (quotation marks omitted) (alteration in original).

       The third and final accommodation request — reassignment to the open

“Patient Services Coordinator I” position — presents a question that the district

court did not address in its order granting summary judgment to the defendants.

Sharon Lane’s affidavit states that Skotnicki was not selected for the job “because

her salary expectations exceeded the salary that this department was willing to

pay.” Skotnicki offered no response or rebuttal to that reason in the district court

or in her main brief to this Court. Instead, she waited until her reply brief to assert

that “[t]he posted job listing stated a salary range of between $13 and $20/hour and

on her application, [she] listed $16/hour.” And the only record citation she offered

in support of that assertion — which directed us to a letter from UAB discussing

long-term disability benefits — offered no such support. Even if we were willing

to entertain a critical factual assertion raised for the first time in a reply brief,

which we are not, our law is clear that “[u]nsupported assertions in a brief cannot

       11
         There is no evidence to support Skotnicki’s assertion that UAB had a policy of
hiring candidates without the required degree if they agreed to complete it while in the
job. Although Sharon Conrad acknowledged that UAB generally allows staff nurses to
complete bachelor’s degrees or other education while employed, she was not asked and
did not say whether a staff nurse could be hired into a position that required a bachelor’s
degree without first obtaining the degree.
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substitute for evidence in the record.” ACLU v. Barnes, 168 F.3d 423, 436 (11th

Cir. 1999).

      Finally, Skotnicki contends that UAB’s failure to hire her to the “Patient

Services Coordinator I” position was not only a failure to accommodate, but also

an instance of “disparate treatment.” According to Skotnicki, “the resume and

application of the [non-disabled] person hired were not consistent as to the

person’s educational background, such that . . . the inference drawn is that UAB

hired a person who falsified a claim to a [b]achelor’s degree . . . and discriminated

against [Skotnicki] because of her disability.” But aside from a stray reference in

its response brief to “another candidate . . . believed to be the best candidate,”

UAB has relied exclusively on Skotnicki’s alleged “salary expectation” as its non-

discriminatory reason for excluding her from consideration. And Skotnicki has not

offered any evidence to rebut that reason. See Chapman v. AI Transp., 229 F.3d

1012, 1037 (11th Cir. 2000) (“In order to avoid summary judgment, a plaintiff

must produce sufficient evidence for a reasonable factfinder to conclude that each

of the employer’s proffered nondiscriminatory reasons is pretextual.”) (emphasis

added).

      AFFIRMED.




                                          17
