                Case: 15-15261    Date Filed: 03/24/2017   Page: 1 of 18


                                                                 [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 15-15261
                               Non-Argument Calendar
                             ________________________

                          D.C. Docket No. 0:14-cv-61556-BB



STACIE FEISE,

                                                     Plaintiff - Appellant,

versus

NORTH BROWARD HOSPITAL DISTRICT,
d.b.a. Broward Health,

                                                     Defendant - Appellee.

                             ________________________

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

                                   (March 24, 2017)

Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

         Plaintiff Stacie Feise appeals the district court’s grant of summary judgment

to Defendant North Broward Hospital District, d/b/a Broward Health (“Broward
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Health”) on her claim that Broward Health unlawfully terminated her in retaliation

for taking leave pursuant to the Family and Medical Leave Act (“FMLA”), 29

U.S.C. § 2615. On appeal, Feise argues that the district court improperly

determined that: (1) her proffered comparators were not sufficiently similar to her,

and (2) she failed to produce circumstantial evidence sufficient to permit a

reasonable jury to find that Broward Health’s proffered reason for terminating her

was pretextual. After careful review, we affirm the district court’s judgment. 1

                                 I.      BACKGROUND

      Feise began working as a registered nurse in the pediatrics department at

Broward Health in 2010 after completing nursing school. During her tenure at

Broward Health, Feise had a series of medical issues that forced her to take time

off. In 2011, Feise missed work for a period of time due to a sinus surgery. In

2012, she took FMLA leave for eight days due to severe asthmatic bronchitis. In

April 2013, she took three weeks of FMLA leave after her asthmatic bronchitis

worsened—nine days of which she spent in the hospital. In August 2013, she was

again hospitalized, taking two weeks of FMLA leave.

      In August 2013, Feise’s supervisor relocated and was replaced by Caren

Bock. On August 28, 2013—amid Feise’s FMLA leave—Bock sent an email to

another Broward Health employee indicating that additional staffing was needed

      1
          Feise’s Motion for Leave to File Reply Brief Out of Time is GRANTED.

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because “Stacy Feise (Night ED RN) is out on DL as she was recently hospitalized

without a date of return and the night staff is overtime x 2 (12’s) at the minimum

each week.” First Bock E-Mail, Doc. 98-2 at 3.2 Bock was aware that Feise was

hospitalized indefinitely with pneumonia, but denied knowing that Feise had taken

FMLA leave specifically. In an e-mail shortly after Feise’s termination, Bock

indicated to a nurse that “[w]e need to watch overtime . . . this is being looked at.”

Second Bock E-Mail, Doc. 98-4 at 1.

      Feise returned to work on September 6. In a meeting with Bock that day,

Feise advised that her doctor wanted to do additional testing, but that she would try

to complete the testing on an outpatient basis so as to avoid missing work. On the

evening of September 16, Feise reported for her fourth consecutive twelve hour

shift, scheduled from 7:00 p.m. to 7:00 a.m., followed by a 7:30 a.m. staff meeting.

Because there was no time to take a break in the middle of her shift, Feise took her

break at the end, after caring for her last patient. In accordance with standard

hospital practice, Feise remained on the clock after 7:00 a.m. as she took her break,

clocking out of her shift only after the break was completed. According to Feise,

while she was on her break she closed her eyes at the nurses’ station but never fell

asleep. Feise further explained that when Bock arrived to conduct the staff

meeting, Bock greeted her, and she immediately looked up and responded.

      2
          Citations to “Doc.” refer to docket entries in the district court record in this case.

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      Bock’s version of events differed. According to Bock, she personally

witnessed Feise sleeping on the morning of September 17. When Bock arrived at

the nurses’ station, she said “good morning” to the employees there. While others

responded, Feise did not. Bock then approached Feise and said, “Good morning,

Stacie.” Feise awoke. After the incident, Bock consulted with human resources,

who informed her that sleeping on the job is a terminable offense. Bock also

requested surveillance footage of the nurses’ station, which according to Bock

showed Feise sleeping intermittently for three minutes and continuously for

another three minutes.

      Two days after the incident, Bock called Feise and instructed her to meet

with Bock and human resources the next day, noting that she saw Feise sleeping

prior to the 7:30 a.m. meeting. At the meeting, Feise met with Bock, Human

Resources (HR) Specialist Maxine Trotter, and Regional HR Director Eileen

O’Brien. Feise explained that while her eyes may have been closed, she had not

been sleeping. Feise was told there would be further investigation. Bock—

consulting with Trotter —ultimately made the final decision to fire Feise. Feise

was summoned to another meeting with Bock and Trotter three days later, where

Feise was shown a video of the sleeping incident and was told that she was being

terminated. Trotter was aware that Feise had taken FMLA leave.




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      Feise subsequently contacted Broward Health’s employee advocacy

department, where she explained that she believed she had been fired for taking

FMLA leave. Feise’s employee advocate, Faith-Simone Hunte, investigated the

incident, interviewing a number of witnesses. Her interviews yielded varying

versions of the incident. Two employees told Hunte that they did not see Feise

sleeping prior to the staff meeting, with one adding that Feise “was responsive and

participating before and during the meeting.” Bock and one other employee told

Hunte that they saw Feise sleeping, and another employee noted that while it was

possible Feise dozed off, she did not think Feise was sleeping. From her

investigation, Hunte concluded that she could not determine whether Feise was

sleeping. Consequently, Hunte spoke with Bock and O’Brien, recommending that

Feise be reinstated. They declined to reinstate Feise.

      Broward Health’s Employee Handbook noted that “[Broward Health] does

not allow sleeping during meal periods or rest breaks.” The manual does not

specify the punishment for sleeping during a meal period or rest break.

Nonetheless, Trotter testified that she had been involved in five or six other

terminations for sleeping on the job, and Hunte noted that she was aware of one

other case where an employee was terminated for sleeping on the job. Trotter

further testified that, in accordance with her experience, she informed Bock that

sleeping on the job was a terminable offense prior to Feise’s termination. Feise has


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not presented any counter evidence suggesting that sleeping on the job was not

historically a terminable offense.

      Feise had never been written up or disciplined prior to her termination.

Feise also uniformly received positive performance reviews. From 2010 to 2013,

her performance appraisals indicated that she consistently met or exceeded

expectations. Feise’s final performance appraisal prior to her termination

effusively praised her work, noting that she “display[ed] a calm, compassionate,

confident manner when interacting with patients and families,” “interact[ed] well

with physicians,” and had “expanded her clinical skills.” Indeed, in June 2013,

three months before her termination, Feise received a promotion to the Pediatrics

Emergency Department.

      Feise filed suit against Broward Health, alleging that she was fired in

retaliation for taking FMLA leave. Before the district court, Feise identified

several putative comparators who she alleged engaged in similar misconduct but

were not terminated by Broward Health. Two are relevant for this appeal. First,

Feise identified a Senior Medical Technologist who was caught sleeping in a

chemistry lab but was only suspended for two days. That employee provided a

doctor’s note indicating that she was prescribed medication to help her sleep at

night and that she accidentally took the medication in the morning prior to falling

asleep at work.


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      Second, Feise identified a comparator who engaged in misconduct that, in

her view, was more severe than sleeping on the job. The employee, a medical

technician, repeatedly abandoned a child patient who was supposed to be under

close observation because he had threatened self harm. The medical technician

had numerous previous corrective actions, for offenses including unprofessional

behavior, failure to communicate when taking a break, using a personal cell phone

at work, having his head down at a desk, mislabeling a specimen, leaving the work

area for an extended period of time, and threatening violence. Nonetheless, Bock

did not terminate him, instead referring him to an employee assistance program

and recommending that he review hospital policies and undergo re-education.

      The district court granted summary judgment to Broward Health on the

ground that Feise failed to present evidence sufficient to show that Broward

Health’s stated reason for firing her—sleeping on the job—was pretextual. Feise

now appeals.

                        II.     STANDARD OF REVIEW

      “This court reviews a district court’s grant of summary judgement de novo,

applying the same legal standards used by the district court.” Galvez v. Bruce, 552

F.3d 1238, 1241 (11th Cir. 2008). We view the facts in the light most favorable to

the nonmoving party. See id. We must also draw “all reasonable inferences in

favor of the party opposing summary judgment.” Whatley v. CNA Ins. Cos., 189


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F.3d 1310, 1313 (11th Cir. 1999). Summary judgment is appropriate when 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). Mere speculation is insufficient to

create a genuine issue of material fact. See Cordoba v. Dillard’s Inc., 419 F.3d

1169, 1181 (11th Cir. 2005).

                               III.   DISCUSSION

      “When a plaintiff asserts a claim of retaliation under the FMLA, in the

absence of direct evidence of the employer’s intent, we apply the same burden-

shifting framework established by the Supreme Court in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), for evaluating Title VII discrimination claims.”

Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199,

1207 (11th Cir. 2001) (parallel citations omitted). To prove a retaliation claim, an

employee “must allege that: (1) [s]he engaged in a statutorily protected activity; (2)

[s]he suffered an adverse employment decision; and (3) the decision was causally

related to the protected activity.” Id. “Only after the plaintiff makes this prima

facie case of discriminatory retaliation does the burden shift to the defendant to

rebut the presumption of retaliation by producing legitimate reasons for the adverse

employment action.” Drago v. Jenne, 453 F.3d 1301, 1307 (11th Cir. 2006). “If

the defendant does so, the plaintiff must then show that the defendant’s proffered




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reason for the adverse action is pretextual.” Hurlbert v. St. Mary's Health Care

Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006).

      In establishing pretext, “[i]f a plaintiff fails to show the existence of a

similarly situated employee, summary judgment is appropriate where no other

evidence of discrimination is present.” Holifield v. Reno, 115 F.3d 1555, 1562

(11th Cir. 1997). Consequently, absent direct evidence of retaliation, a plaintiff

may demonstrate pretext either by identifying a similarly situated comparator who

was treated less harshly or by presenting circumstantial evidence sufficient for a

reasonable jury to find that the employer’s proffered reason for terminating the

plaintiff was mere pretext for discrimination.

      The district court determined that although Feise made out a prima facie

case of retaliation, Broward Health produced a legitimate reason for Feise’s

termination—sleeping on the job. The district court then found that Feise failed to

adduce enough evidence to show that Broward Health’s putative reason for firing

her was pretextual. Feise raises two points of error on appeal. First, she argues

that the district court erred in conducting its comparator analysis, improperly

focusing on minute differences between Feise and her proffered comparators.

Second, Feise argues that she adduced enough circumstantial evidence to permit a

reasonable jury to find that Broward Health’s reason for firing her was pretextual.

In response, Broward Health disputes Feise’s points of error and also argues that


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the district court erred in initially concluding that Feise made out a prima facie

retaliation case.

       For purposes of this appeal, we assume that Feise has made out a prima facie

retaliation case. It is undisputed that Broward Health produced a legitimate reason

for Feise’s termination, sleeping on the job. The question, then, is whether Feise

has put forward sufficient evidence indicating that Broward Health’s putative

reason was mere pretext for its true intention to fire Feise for having taken FMLA

leave. We conclude that she has not.

A.     Comparator Analysis

       Feise argues that the district court overstated the differences between her and

her proffered comparators in concluding that the comparators were not similarly

situated to her. We disagree. “A comparator is an employee similarly situated to

the plaintiff in all relevant respects.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269,

1280 (11th Cir. 2008) (alterations and internal quotation marks omitted). “The

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

prevent courts from second-guessing employers’ reasonable decisions and

confusing apples with oranges.” Id. (alterations and internal quotation marks

omitted). “Misconduct merely ‘similar’ to the misconduct of the disciplined

plaintiff is insufficient.” Id.




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       The district court properly found that Feise was not “nearly identical” to the

comparators she identified. First, Feise does not argue that she is similarly situated

to the medical technician who abandoned his post supervising an at-risk child.

Instead, Feise asserts that the medical technician is an appropriate comparator

because he was not fired even though his misconduct was objectively more serious

than Feise’s. But this is precisely the kind of analysis in which we are not

permitted to engage. “On-the-ground determinations of the severity of different

types of workplace misconduct and how best to deal with them are exactly the sort

of judgments about which we defer to employers.” Flowers v. Troup Cty., Ga.,

Sch. Dist., 803 F.3d 1327, 1341 (11th Cir. 2015). We have repeatedly noted that

“[f]ederal courts ‘do not sit as a super-personnel department that reexamines an

entity’s business decisions.’” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th

Cir. 2000). Consequently, the appropriate question is not whether the technician’s

“alleged violations were worse than [Feise’s],” but instead whether the technician’s

violations “were sufficiently similar” to Feise’s. Flowers, 803 F.3d at 1341.

Because Feise does not argue that the technician’s actions were “nearly identical”

to hers, the technician is not an appropriate comparator. 3


       3
          Feise notes that in Flowers, we engaged in a discussion of the relative severity of the
plaintiff’s and the putative comparators’ alleged misconduct. But there, we used differences in
the severity of the misconduct to explain why the individuals the plaintiff identified were not
suitable comparators, even if their misconduct was similar in kind to the plaintiff’s. Flowers,
803 F.3d at 1340-41.

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      Second, with regard to the putative comparator who was sleeping on the job,

the district court properly concluded that two key facts distinguished her situation

from Feise’s: (1) the putative comparator was a Senior Medical Technologist in

the Laboratory Department, not a nurse, and (2) unlike Feise, who never admitted

to sleeping, the technologist provided documentation from her doctor indicating

that she had been prescribed medicine to assist her in sleeping at night, and that she

had accidentally taken the medicine prior to her shift, causing her to fall asleep.

Feise argues that these were improper considerations, but we cannot agree.

      While differences in official duties “are not, in and of themselves,

dispositive as to whether the two individuals may be compared for purposes of

evaluating a [retaliation] claim,” misconduct that “might be tolerated or treated

with progressive discipline” in one position need not “be similarly accepted” in

other positions. Rioux, 520 F.3d at 1281. Here, the district court reasonably

concluded that there are significant differences between a nurse falling asleep in a

public area and a technologist falling asleep in a chemistry lab. Nurses—unlike

technologists—have a responsibility to respond with immediacy to patient needs.

Moreover, a nurse sleeping in a public area could undermine the public’s

confidence in the hospital, which has an interest in putting forth a professional

image. We find that the difference in responsibilities between Feise and the

technologist—combined with the fact that the technologist, unlike Feise, provided


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a medically documented reason for her misconduct 4—render the technologist an

unsuitable comparator.

B.     Other Evidence of Pretext

       Nor has Feise adduced other circumstantial evidence sufficient for a

reasonable jury to find that Broward Health’s proffered reason for terminating her

was pretextual. To show pretext in the absence of a comparator, a plaintiff must

adduce evidence not only that the employer’s proffered reason is false, but also

that unlawful retaliation was the employer’s true motive. See St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 514-15 (1993). To do so, Feise could have shown

either “that [Broward Health’s] proffered reason is unworthy of credence or . . .

that [retaliation] more than likely motivated [Broward Health] to fire [her].” Elrod

v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991). Here, the

evidence in the record would not permit a reasonable jury to find that Broward

Health’s reason for terminating Feise—sleeping on the job—was unworthy of

credence, or that retaliation more likely than not motivated Broward Health to

terminate her.

       Initially, Feise argues that the district court failed to consider evidence

suggesting that she did not actually fall asleep on the day in question, asserting that

       4
         Feise argues that the technologist is a suitable comparator because Feise too suffered
from medical issues prior to her termination. But there is no evidence in the record suggesting
that Feise informed anyone at Broward Health that her medical issues were the reason she was
sleeping on the day in question. To the contrary, she denied having been asleep.

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the court improperly focused on whether Bock genuinely believed Feise was

sleeping and whether Bock terminated Feise for that reason. According to Feise,

our decision in Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir.

1987), indicates that where an employer claims to have terminated an employee

based on direct knowledge of misconduct, the operative question with regard to

pretext is whether the misconduct actually occurred. We disagree.

      In Sparks, an employer claimed that it terminated the plaintiff because the

plaintiff violated an unwritten company policy requiring employees to inform the

employer if they are going to be absent from work. 830 F.2d at 1563-64. All

parties agreed that during a phone call initiated by the employer for a separate

purpose, the plaintiff had informed the employer she would be absent on the day in

question. Id. The defendant nonetheless asserted that the unwritten rule required

employees to initiate the communication in which they inform the employer of

their absence. Though we noted that the plaintiff could prove pretext by “showing

. . . that she did not violate the work rule,” the question in Sparks was not whether

the employee engaged in the specific misconduct, but whether the work rule in

question actually existed. Id. In that case, evidence that the employee did not

violate the work rule because the specific rule in question was invented ex post




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facto by the employer was relevant to whether the employer’s proffered reason for

termination was worthy of credence.5

       Here, there is no dispute that Broward Health had a rule prohibiting sleeping

on the job. Feise merely quibbles that she did not violate the rule because she was

not sleeping, not because no such rule exists. This case therefore fits comfortably

in the line of cases indicating that “[t]he inquiry into pretext centers on the

employer’s beliefs, not the employee’s beliefs and, to be blunt about it, not on

reality as it exists outside of the decision maker’s head.” Alvarez v. Royal Atl.

Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010). Indeed, an employer can

hardly be said to have discriminated or retaliated against an employee if it

terminated the employee based on a good faith belief that she violated a rule, even

if the purported violation never actually occurred.

       Feise argues in the alternative that the district court improperly ignored facts

suggesting that Broward Health’s proffered reason for terminating her was a ruse,

including: that Feise was terminated 11 days after returning from FMLA leave;

that she had not been disciplined prior to the incident in question; that she had only

closed her eyes for three minutes; and that Bock, at her deposition, could not

       5
         Feise suggests that the focus ought to shift to whether the employee actually engaged in
the putative misconduct where the employer relies on personal knowledge of underlying
conduct. We disagree. An employer who, based on personal knowledge of a violation,
terminates an employee because of the violation alone has not discriminated or retaliated against
the employee, even if the employer ultimately was mistaken in its personal belief that the
employee committed the violation.

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identify another employee who had been fired for sleeping on the job. But with the

exception of temporal proximity, consideration of each of these facts would

convert the court into a “super-personnel committee,” Chapman, 229 F.3d at 1030,

that impermissibly decides for employers what conduct is sufficient to warrant

termination. And temporal proximity alone generally is insufficient to establish

pretext. Hurlburt, 439 F.3d at 1298. Absent evidence of discrimination or

retaliation, our employment discrimination statutes do not interfere with an

employer’s ability to manage its personnel, “[n]o matter how medieval a firm’s

practices, no matter how high-handed its decisional process, no matter how

mistaken the firm’s managers.” Elrod, 939 F.2d at 1470. Thus it matters not that

Feise’s termination might have been unexpected or unfair; FMLA simply does not

afford relief in the absence of evidence of retaliation.

      Two other issues are worthy of discussion. First, Feise contends that a

purported contradiction in Bock’s testimony calls Bock’s credibility into question

such that a jury would be permitted to find all of her testimony unworthy of

credence. In Feise’s view, “the record demonstrated that Bock did have

knowledge that Feise had taken FMLA leave, yet Bock’s declaration in support of

Broward Health’s motion for summary judgment stated that she had no knowledge

that Feise had ever requested, taken, or been approved for FMLA leave at any

time.” Appellant’s Br. at 22-23. This is a factual non-starter. Feise points to no


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evidence on the record—and we are unable to locate any—indicating that Bock

knew Feise had taken FMLA leave specifically. The purported contradiction is

non-existent.

      Second, the record contains two e-mails from Bock concerning employee

overtime that Feise argues constitute evidence that retaliation motivated her

termination. The first email, from Bock to another employee while Feise was on

FMLA leave, explains that there is a need for additional staffing because “Feise

(Night ED RN) is out on DL as she was recently hospitalized without a date of

return and the night staff is overtime x 2 (12’s) at the minimum each week.” First

Bock E-Mail, Doc. 98-2 at 3. The second email, sent by Bock to a nurse shortly

after Feise’s termination, notes that “[w]e need to watch overtime . . . this is being

looked at.” Second Bock E-Mail, Doc. 98-4 at 1. Even taken together, these e-

mails do not suggest retaliation. The first e-mail merely reflects that the hospital

had to take steps to provide additional staffing in Feise’s absence—a fact likely to

be present whenever an employee takes FMLA leave. And the second e-mail is

nothing more than a general expression that excessive overtime is a concern, with

no reference to Feise or FMLA leave. The evidence in the record does not permit

the inferential leap required to conclude that Bock’s generalized concern about

overtime led her to terminate Feise.




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      Because Feise is unable to point to a suitable comparator and has failed to

produce other evidence that would allow a reasonable jury to find that Broward

Health’s proffered reason for terminating her was pretextual, the district court did

not err in granting summary judgment for Broward Health.

                           IV.     CONCLUSION

      For the foregoing reasons, we affirm the judgment of the district court.

      AFFIRMED.




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