           Case: 14-13343   Date Filed: 03/23/2015   Page: 1 of 18


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13343
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:13-cv-01797-SCJ



MONIQUE CALDWELL,

                                                            Plaintiff-Appellant,

                                     versus

CLAYTON COUNTY SCHOOL DISTRICT,

                                                           Defendant-Appellee.

                       ________________________

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

                             (March 23, 2015)

Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Monique Caldwell appeals pro se from the district court’s grant of summary

judgment to the Clayton County School District (the “School District”) in her

employment-discrimination suit alleging retaliation in violation of the Family

Medical Leave Act (“FMLA”), 29 U.S.C. § 2615(a). The district court determined

that Caldwell failed to establish a prima facie case of retaliation because she did

not establish a causal connection between her FMLA leave and the School

District’s decision not to renew her assistant-principal contract. Caldwell contends

that she can show causation because she presented evidence that her immediate

supervisor made the non-renewal recommendation based on a retaliatory animus

against employees who took FMLA leave. After careful review of the record and

the parties’ briefs, we affirm.

                                           I.

      Caldwell began working as an assistant principal for the School District

during the 2005-2006 school year. Before that, she was a teacher. She served as

assistant principal at two different schools prior to moving to Thurgood Marshall

Elementary School (“Marshall Elementary”), where she was an assistant principal

from 2007 to 2012. Her lawsuit primarily concerns events occurring during the

2010-2011 and 2011-2012 school years. At all times relevant to this appeal,

Caldwell’s immediate supervisor was Velma Mobley, the principal of Marshall

Elementary.


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      Caldwell began work for the 2011-2012 school year in July 2011. In August

2011, Caldwell requested, and was granted, leave under the FMLA. She was on

FMLA leave from August 11, 2011, to October 28, 2011. Upon returning to work,

she resumed her position as assistant principal.

      When Caldwell returned to work on October 31, 2011, she received a

Professional Development Plan (“PDP”) from Mobley. A PDP was a corrective

plan given to a School District employee when an administrator noticed a

deficiency. The PDP stated that Caldwell needed to complete at least ten “E-

Walks” per week (which involved doing classroom observations and then

submitting data using “E-Walk” software), submit minutes for collaborative

meetings, and attend a time-management course in December.

      Around that same time, Caldwell also learned that she had been placed on a

Performance Enhancement Process (“PEP”) list by Mobley while she was out on

FMLA leave. Placement on the PEP list is an indication that an employee had

ongoing documented deficiencies, and it triggers a monitoring process among the

administrator and human resources about the employee’s progress towards

correcting a deficiency. The purpose of the monitoring process is primarily to

assist the administrator in making a recommendation regarding whether the

employee’s employment contract should be renewed.




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      On March 15, 2012, Caldwell received an unsatisfactory annual performance

review from Mobley. Caldwell was given a “Needs Improvement” rating in five

categories. According to Mobley, Caldwell had failed to fulfill the requirements of

the PDP, which Caldwell disputed. Two weeks later, on March 29, Caldwell again

met with Mobley to discuss her evaluation, at which time Caldwell submitted

documents allegedly showing that she had completed the PDP, including minutes

of collaborative meetings with teachers. Mobley did not accept the minutes.

      After the meeting on March 29, Mobley submitted Caldwell’s unsatisfactory

review with a recommendation not to renew Caldwell’s assistant-principal

contract. The non-renewal recommendation stated that Caldwell failed to schedule

and facilitate collaborative meetings, perform five informal observations weekly,

or review lesson plans. The recommendation also noted that Caldwell was late to

work over twenty times during the 2011-2012 school year. The recommendation

did not mention Caldwell’s FMLA leave.

      Mobley’s non-renewal recommendation was submitted to Greg Curry, a

human-resources director, who then submitted the recommendation along with

relevant documentation to the School District’s legal department. Once the legal

department approved the non-renewal recommendation, it was submitted to the

superintendent for approval. After that, the Clayton County Board of Education




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(“Board”) made the final decision not to renew Caldwell’s assistant principal

contract for the 2012-2013 school year.

       In May 2012, Caldwell received notice of the decision not to renew her

assistant-principal contract.      She was offered a teacher contract at a different

elementary school instead but did not sign it, effectively ending her employment

with the School District.

                                              II.

       Caldwell, through counsel, filed this lawsuit in May 2013 in the United

States District Court for the Northern District of Georgia, alleging that the School

District had retaliated against her for exercising her rights under the FMLA. The

School District moved for summary judgment, arguing that Caldwell’s non-

renewal was unrelated to her FMLA leave and was based solely on her

documented performance issues and her failure to arrive to work on time

consistently.     The School District asserted that the length of time between

Caldwell’s FMLA leave and her non-renewal was too long to show that they were

related, that Caldwell never completed the PDP, that no members of the Board

knew of Caldwell’s FMLA leave, and that Caldwell could not prevail under a

“cat’s paw” 1 theory of liability because she had not shown that Mobley had a



       1
          The cat’s paw theory “provides that causation may be established if the plaintiff shows
that the decisionmaker followed the biased recommendation without independently investigating
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retaliatory animus and that the School District followed Mobley’s recommendation

without conducting an independent review.

       In support of its motion for summary judgment, the School District

submitted excerpts from Caldwell’s, Mobley’s, and Curry’s depositions, affidavits

from School District employees and Board members, and documents detailing

Caldwell’s performance and the School District’s decision not to renew her

contract. Notably, the School District produced evidence that Mobley had given

Caldwell a PDP in March 2011, which provided that Caldwell needed to plan

collaborative meetings with special-education teachers, submit minutes of those

meetings, and report to work in a timely manner. In addition, in her annual

evaluation for the 2010-2011 year, Mobley gave Caldwell a “Needs Improvement”

rating in four categories.

       Mobley testified that Caldwell had problems with time management,

cafeteria discipline, and collaborative meetings with teachers. She further testified

that she submitted the paperwork for Caldwell’s second PDP in August 2011, but

she was unable to meet with Caldwell at that time because Caldwell was out on

FMLA leave. She discussed the PDP with Caldwell when she returned in October

2011. After Caldwell returned from FMLA leave, Mobley noticed that Caldwell




the complaint against the employee.” Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th
Cir. 1999).
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was still arriving to work late and had not started the collaborative meetings. In

January or February 2012, Mobley gave Curry a list of employees whose contracts

she may recommend not renewing, but she had not made a decision at that time.

When she met with Caldwell on March 15, Mobley still had not made a final

decision and wanted to give Caldwell time to submit documentation. However,

she did not accept Caldwell’s minutes of the collaborative meetings because

several of them were not signed by the teachers in the special-education team.

Mobley made the final recommendation decision in March because her

recommendation was due by April.

      Other evidence established that teachers and assistant principals were

typically reviewed on three occasions throughout a school year. For the 2011-2012

school year, a “pre-conference” meeting was to be held by August 26, 2011, a

“mid-year” conference was to be held by December 9, 2011, and then an “annual”

evaluation was to be held by March 16, 2012. Mobley acknowledged that she did

not follow this general timeline with respect to Caldwell but testified that there was

no timeline of evaluation conferences for employees who took leave during the

school year.

      Members of the Board testified that they did not recall discussing Caldwell’s

FMLA leave when deciding not to renew her contract and that they typically asked

questions about non-renewal recommendations. Curry testified that he discussed


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the PEP list with Mobley in January or February 2012. The chief human-resources

officer for the School District, Doug Hendrix, testified that a School District policy

required the termination of any employee with more than fourteen unexcused

tardies.

       Caldwell responded in opposition, contending genuine issues of material fact

existed regarding whether Mobley was motivated to retaliate against Caldwell for

taking FMLA leave. She asserted that several pieces of evidence demonstrated a

causal connection between her FMLA leave and her demotion, as well as the

pretextual nature of the School District’s explanation for the demotion.           As

evidence of causation and pretext, she noted the following: (1) Mobley placed her

on the PEP list, even though Caldwell could not have received a second PDP since

she was on FMLA leave at the time; (2) Mobley could not have been concerned

about Caldwell’s performance in the E-Walk program because it was a new

program; and (3) Mobley said that Caldwell’s 2011-2012 PDP was a continuation

of her 2010-2011 PDP, but Mobley did not note this on the pre-conference form

she created in August 2011.

       Caldwell also claimed that she could show causation and pretext because

Mobley contemporaneously retaliated against two other teachers for taking FMLA

leave, Mobley failed to comply with state regulations and created false documents

indicating that she had complied with them, and Mobley lied about the timing of


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her decision to recommend non-renewal and misled Caldwell about when she

would make a final decision.

      The district court granted summary judgment to the School District after

concluding that Caldwell had failed to produce any evidence of a causal link

between her non-renewal and her FMLA leave. Specifically, the court determined,

no evidence in the record showed that any members of the Board—the final

decisionmakers—knew of Caldwell’s FMLA leave at the time that they made the

decision not to renew her assistant-principal contract.

      In reaching this conclusion, the court acknowledged Caldwell’s allegations

and evidence regarding an impermissibly retaliatory motive by Mobley, but found

that they did not affect the causation analysis because it was undisputed that the

Board, not Mobley, made the actual decision not to renew Caldwell’s contract.

While the circumstances presented an opportunity to argue a cat’s paw theory of

liability, the court explained, Caldwell had “fail[ed] to make any cat’s paw theory

argument in support of her retaliation claim.” Therefore, the court concluded, it

did not need to address whether the School District could be held causally liable

for Mobley’s allegedly retaliatory recommendation.          Accordingly, the court

entered judgment in favor of the School District. Caldwell timely filed a pro se

notice of appeal from the judgment.




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                                        III.

      Summary judgment is appropriate “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). 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. Martin v. Brevard Cnty. Pub. Schs.,

543 F.3d 1261, 1265 (11th Cir. 2008). 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, 106 S. Ct.

2505, 2510 (1986).

                                        IV.

      Under the FMLA, an eligible employee is entitled to take up to twelve

weeks of leave for a serious health condition that makes the employee unable to

perform the functions of her job. 29 U.S.C. § 2612(a)(1). The FMLA prohibits

employers from interfering with, restraining, or denying “the exercise of or the

attempt to exercise” any rights guaranteed under the Act. Id. § 2615(a)(1).

      We have recognized two types of FMLA claims: interference claims and

retaliation claims. Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286,

1293 (11th Cir. 2006). Interference claims are those “in which an employee asserts

that [her] employer denied or otherwise interfered with [her] substantive rights


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under the Act.”         Strickland v. Water Works & Sewer Bd. of the City of

Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001). Retaliation claims are those

“in which an employee asserts that [her] employer discriminated against [her]

because [she] engaged in activity protected by the Act.” Id. Caldwell presents

only a retaliation claim in this case.

      To prove a retaliation claim under the FMLA, the plaintiff must show that

her employer intentionally discriminated against her for having exercised an

FMLA right. Martin, 543 F.3d at 1267. In order words, the plaintiff must show

that her “employer’s actions were motivated by an impermissible retaliatory or

discriminatory animus.” Id. at 1267-68 (quoting Strickland, 239 F.3d at 1207

(internal quotation marks omitted)).

      Where, as here, the plaintiff presents no direct evidence of retaliatory intent,

we analyze the circumstantial evidence presented under the burden-shifting

framework of McDonnell Douglas.2 Id. at 1268; Hurlbert, 439 F.3d at 1297.

Under that approach, the plaintiff must first establish a prima facie case of

retaliation. This requires a showing that (1) she engaged in activity protected by

the FMLA, (2) she suffered an adverse employment decision, and (3) the adverse

decision was causally related to the protected activity. Id. It is undisputed that

Caldwell engaged in protected activity and suffered an adverse employment


      2
          McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
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decision in the form of the non-renewal decision. Therefore, only the element of

causal connection is at issue.

      If the plaintiff establishes a prima facie case of retaliation, the employer

must articulate a legitimate, non-discriminatory reason for the adverse employment

action. Martin, 543 F.3d at 1268. Once the employer makes this proffer, the

plaintiff must demonstrate that the employer’s reason was actually a pretext for

discrimination. Id. Evidence used to establish a prima facie case may also be used

to establish pretext. See, e.g., Combs v. Plantation Patterns, 106 F.3d 1519, 1528

(11th Cir. 1997).

      We have held that to demonstrate a causal connection a plaintiff needs to

demonstrate only that the protected activity and adverse action were not

completely unrelated. Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004).

To do that, “the plaintiff must generally show that the decision maker was aware of

the protected conduct at the time of the adverse employment action.” Brungart v.

BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000). Close temporal

proximity between the protected conduct and the adverse action generally is

sufficient to establish a causal connection.      See Hurlbert, 439 F.3d at 1298.

However, temporal proximity alone is insufficient when unrebutted evidence

indicates that the decisionmaker did not know about the employee’s protected

conduct when the adverse action occurred. Id.; Brungart, 231 F.3d at 799 (“A


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decision maker cannot have been motivated to retaliate by something unknown to

him.”).

      In this case, it is undisputed that the Board of Education made the final

decision not to renew Caldwell’s assistant-principal contract. We have found no

record evidence suggesting that the members of the Board had any knowledge of

Caldwell’s FMLA leave at the time that they made the non-renewal decision, and

Caldwell does not argue that they did. Nor is there a close temporal proximity

between Caldwell’s leave ending in October 2011 and the non-renewal decision in

May 2012. Thus, without more, Caldwell has not shown a causal connection

between her FMLA leave and the Board’s decision not to renew her assistant-

principal contract. See Hurlbert, 439 F.3d at 1298; Brungart, 231 F.3d at 799.

      Caldwell contends that she presented sufficient circumstantial evidence to

create a genuine issue of material fact as to whether Mobley was motivated by a

discriminatory animus. And the School District, she asserts, may be held liable for

following the biased recommendation of a subordinate.

      We have held that causation may be established when a decisionmaker

followed   a    biased recommendation from a             non-decisionmaker   without

independently investigating the complaint. Stimpson v. City of Tuscaloosa, 186

F.3d 1328, 1332 (11th Cir. 1999). “In such a case, the recommender is using the

decisionmaker as a mere conduit, or ‘cat's paw’ to give effect to the


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recommender’s discriminatory animus.”               Id.   But where the “decisionmaker

conducts his own evaluation and makes an independent decision, his decision is

free of the taint of a biased subordinate employee.”                 Pennington v. City of

Huntsville, 261 F.3d 1262, 1270 (11th Cir. 2001).

       The district court, however, found that Caldwell did not present a cat’s paw

argument during summary judgment, so it declined to address the argument. It is

well settled that we will not consider on appeal an issue or argument not fairly

presented to the district court, unless our refusal to do so will result in a

miscarriage of justice. Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 598-

99 (11th Cir. 1995) (en banc); see also Access Now, Inc. v. Sw. Airlines Co., 385

F.3d 1324, 1331 (11th Cir. 2004) (issues raised for the first time on appeal will not

be considered). The parties, not the district court, bear the burden of formulating

arguments based on the evidence. Resolution Trust Corp., 43 F.3d at 599. Under

the circumstances in this case, we are constrained to agree with the district court

that Caldwell did not fairly present a cat’s paw argument to the district court for

resolution.3 See Access Now, Inc., 385 F.3d at 1331-32.


       3
          In her counseled filings in opposing summary judgment, Caldwell did not develop any
argument with respect to this theory of liability or present evidence tending to show that
Mobley’s alleged bias could be imputed to the Board. Caldwell’s only reference to such a theory
of causation appears in her response to the School District’s statement of material facts, where
Caldwell references the Supreme Court’s decision in Staub v. Proctor Hospital, 562 U.S. 411,
131 S. Ct. 1186 (2011), several times for the proposition that an employer may be held liable for
the discriminatory animus of a non-decisionmaker employee who influenced the ultimate
employment decision. In Staub, the Supreme Court ruled that a plaintiff may assert a cat’s paw
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       In any case, even assuming that the School District could be held liable for

Mobley’s recommendation, Caldwell has not presented sufficient evidence by

which a reasonable jury could conclude that the non-renewal recommendation was

causally related to her FMLA leave or that the School District’s non-discriminatory

reasons for Mobley’s non-renewal recommendation were pretext for retaliatory

animus.4

       Here, the School District stated that its non-renewal decision was based on

Caldwell’s performance deficiencies and her failure to arrive to work on time

consistently, which are legitimate, non-discriminatory reasons. Thus, the burden

shifted back to Caldwell to prove that these reasons were pretextual. Martin, 543

F.3d at 1268. In other words, Caldwell had to produce or identify evidence

“sufficient to permit a reasonable factfinder to conclude that the reasons given by

the employer were not the real reasons for the adverse employment decision.”

Chapman v. AI Transport, 229 F.3d 1012, 1025 (11th Cir. 2000) (en banc)

(quoting Combs, 106 F.3d at 1528). She has not done so.




claim under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”)
by showing that (1) a supervisor performed an act motivated by animus that was intended to
cause an adverse employment action, and that (2) the act was the proximate cause of the ultimate
adverse employment action. 562 U.S. at ___, 131 S. Ct. at 1194.
        4
          We may affirm the district court’s grant of summary judgment on any adequate ground
supported by the record. Feliciano v. City of Miami Beach, 707 F.3d 1244, 1251-52 (11th Cir.
2013); see Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1236 (11th Cir. 2004) (considering
the issue of pretext for the first time on appeal).
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      First, Caldwell admitted in her deposition that she did not perform the

minimum number of E-Walks required by the PDP during some weeks, and she

presented no evidence to rebut Mobley’s assertion in the non-renewal

recommendation that she was late to work over twenty times during the 2011-2012

school year. She also admitted this fact in her response to the School District’s

statement of material facts. Thus, undisputed evidence establishes that Caldwell

did not fully complete the second PDP and did not report to work on time

consistently.

      Second, there is no close temporal proximity between Caldwell’s FMLA

leave, which ended in October 2011, and Mobley’s submission of her

recommendation in March 2012. See Wascura v. City of S. Miami, 257 F.3d 1238,

1248 (11th Cir. 2001) (holding that a “three and one-half month temporal

proximity is insufficient to create a jury issue on causation”). Although Caldwell

was given a PDP and placed on the PEP list while out on FMLA leave, Caldwell

does not argue that these actions in themselves were adverse employment

decisions. Nor would the close proximity of these actions to her FMLA leave

alone establish pretext. See Hurlbert, 439 F.3d at 1298.

      Third, the timing of Caldwell’s second PDP and placement on the PEP list

does not appear suspicious in light of undisputed evidence of Caldwell’s

documented performance deficiencies before she took FMLA leave, as evidenced


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by the March 2011 PDP and the annual evaluation for the 2010-2011 school year,

in which Caldwell received a “Needs Improvement” rating in four categories. The

fact that these performance deficiencies were identified at the end of the 2010-

2011 school year is consistent with Mobley’s testimony that the PDP carried over

into the 2011-2012 school year, even if it was not identified on the pre-conference

form as it should have been.           In addition, the reasons Mobley gave for

recommending Caldwell’s non-renewal were consistent with the deficiencies that

had been identified before Caldwell took FMLA leave. Cf. id. at 1298 (“We have

recognized that an employer’s failure to articulate clearly and consistently the

reason for an employee’s discharge may serve as evidence of pretext.”).           In

particular, both the March 2011 PDP and Mobley’s non-renewal recommendation

identify Caldwell’s deficiencies in facilitating collaborative meetings with teachers

and in reporting to work on time.

      Fourth, while “an employer’s deviation from its own standard procedures

may serve as evidence of pretext,” id. at 1299, the minor discrepancies Caldwell

has identified regarding the documentation concerning her performance

evaluations and the timing of the non-renewal recommendation are insufficient to

show a genuine dispute about a “material” fact concerning pretext. See Anderson,

477 U.S. at 248, 106 S. Ct. at 2510.




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      Finally, Caldwell points to evidence that two other teachers at Marshall

Elementary claimed that Mobley had retaliated against them for taking FMLA

leave around the same time. However, while this evidence may be probative of

Mobley’s discriminatory intent generally, it does not show that Mobley retaliated

against Caldwell for taking FMLA leave. And, without more, on this record, the

evidence would not permit a reasonable jury to find that the School District’s

reasons for Caldwell’s non-renewal “were not the real reasons for the adverse

employment decision.” Chapman, 229 F.3d at 1024 (quoting Combs, 106 F.3d at

1528).

                                         V.

      In sum, Caldwell failed to create a genuine issue of material fact with

respect to whether the School District’s reasons for her termination were actually

pretext for discrimination. Accordingly, and for the reasons explained above, we

affirm the district court’s grant of summary judgment to the School District.

      AFFIRMED.




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