          Case: 13-14476   Date Filed: 12/04/2014   Page: 1 of 21


                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-14476
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:12-cv-00465-MSS-MAP


FABIOLA TORRES-SKAIR,

                                                           Plaintiff-Appellant,

                                 versus

MEDCO HEALTH SOLUTIONS, INC.,

                                                                    Defendant,

MEDCO HEALTH SOLUTIONS OF HIDDEN RIVER, LC,

                                                         Defendant-Appellee.

                      ________________________

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

                           (December 4, 2014)

Before JORDAN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Fabiola Torres-Skair appeals the district court’s grant of summary judgment

in favor of her former employer, Medco Health Solutions of Hidden River, LC

(“Medco”), on her claims of pregnancy discrimination and retaliation under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), 2000e-3(a) and

§ 2000e(k) (“Title VII”), and the Florida Civil Rights Act (“FCRA”), Fla. Stat.

§ 760.10. In the district court, Torres-Skair claimed that Medco took three adverse

employment actions against her because of her pregnancy: giving her a negative

performance evaluation, placing her on administrative leave, and then terminating

her employment. Medco asserted that the decisions were based solely on Torres-

Skair’s violations of work policies. After careful review, we affirm.

                                         I.

A.    Factual Background

      Medco is a third-party manager of prescription benefits for health insurers

that provides prescription drugs by mail and prescription claims-processing

services for insured persons. Torres-Skair began working for Medco as a clinical-

care pharmacist in February 2009 at Medco’s center in Tampa, Florida, mostly

working over the telephone.

      Her primary job duties at Medco included counseling patients about

medications and encouraging patients to sign up for mail-order prescription

services provided by Medco, instead of buying their prescriptions at retail stores.


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With the pharmacists’ knowledge, Medco monitored their telephone calls. Torres-

Skair’s direct supervisor at Medco was Yvette Powrie. Powrie, in turn, reported to

Jennifer Narducci, the director of the group in which Torres-Skair worked.

      Torres-Skair began working from home in early 2010, using a computer,

auto-dialer, and headset provided by Medco. While working at home, she had

equipment trouble that persisted throughout her tenure.

      Beginning in 2010, Medco for the first time instituted production quotas.

Pharmacists in Torres-Skair’s group initially were expected to meet certain weekly

goals for the number of prescriptions they converted from retail to mail order

(“prescriptions per week”) and the rate at which they converted those prescriptions

(“accept rate”). At some point in mid-2010, Medco added more goals relating to

the number of calls pharmacists made (“green lights”) and the percentage of time

they spent logged on but not actively on a call (“idle time”).

      1.      Medco Learns that Torres-Skair is Pregnant

      Torres-Skair found out that she was pregnant sometime in October 2010.

Before this time, management had had some concern about Torres-Skair’s

production.    Without knowledge of Torres-Skair’s pregnancy, Powrie called

Torres-Skair on October 29, 2010, and explained that her job performance was

deficient, specifically with respect to her prescription numbers, and she identified

several areas for improvement.       After this discussion, but during the same


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telephone call, Torres-Skair told Powrie for the first time that she was pregnant.

Powrie passed this information to Narducci two days later.

      Beginning on January 1, 2011, Medco increased the prescriptions-per-week

goal for all pharmacists in Torres-Skair’s group. Then, Narducci directed Powrie

to develop plans to help certain employees, including Torres-Skair, achieve the

new production requirements.

      At about the same time, Torres-Skair informed Medco that she had been

placed on certain medical restrictions by her physician. Powrie thereafter began to

make comments to Torres-Skair regarding her pregnancy and related medical

restrictions. Powrie stated that Torres-Skair was “moody,” “that [her] pregnancy

was affecting [her] effectiveness,” “that the doctor’s notes that [she] was giving

were reducing [her] production” because they meant that Torres-Skair would not

be able to be on the telephone as much as usual, and that she thought that Torres-

Skair was “more moody than usual.” Powrie also told Greg Chavez, Powrie’s

counterpart in Arizona, that Torres-Skair was pregnant.

      2.    The 2010 Annual Performance Evaluation

      Torres-Skair received her 2010 performance evaluation from Powrie on

March 9, 2011. According to Powrie’s evaluation, Torres-Skair was “consistently

below the goals” for prescriptions per week, green lights, and idle time, and her

performance had declined during the year. Powrie further stated that Torres-


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Skair’s “performance d[id] not meet expectations,” that it “require[d]

improvement,” and that “[s]he display[ed] a negative demeanor about the position”

that came through occasionally on her calls. Due to the evaluation, Torres-Skair

did not receive a bonus or stock opportunities with Medco.

       Over the next several days, Torres-Skair filed anonymous complaints with

Medco’s Ethics Hotline’s toll-free number about Powrie and Chavez, claiming that

they had retaliated against her for expressing concerns about the job.1 She also

complained that Powrie told Chavez that Plaintiff was pregnant and hormonal.

Medco investigated the complaint and did not find any retaliation.

       3.     Torres-Skair is Placed on Administrative Leave and then Discharged

       Acting on a request from another Medco manager, who interacted with

Torres-Skair’s group, Medco began investigating Torres-Skair’s sales calls in May

2011 to determine if she was “refaxing” prescription requests. Refaxing occurred

when a pharmacist faxed a request for a customer’s prescription to the customer’s

physician after that same request had already been faxed, which resulted in a

pharmacist receiving additional credit for the same prescription. According to

Torres-Skair, this was common practice and condoned by Powrie, among others.

       Another Medco manager, Brian Schumm—who also did not supervise

Torres-Skair—conducted the research and reviewed Torres-Skair’s sales calls for a

       1
        Torres-Skair had expressed negative sentiments about the job to Chavez during a focus-
group meeting in February 2011.
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one-week period in May 2011.          From his research, Schumm observed the

following relevant issues in Torres-Skair’s calls: (1) Torres-Skair disconnected a

call with a customer; (2) she refaxed prescription requests instead of obtaining

verbal orders from physicians; (3) she remained on the line for an excessive period

of time without leaving a voicemail; and (4) she did not appear to be answering

many of the calls that were being routed to her.

      On May 18, 2011, Torres-Skair notified Powrie that she was contacting

Medco’s third-party handler of claims under the Family and Medical Leave Act

(“FMLA”), in anticipation of taking FMLA maternity leave.

      Two days later, on May 20, 2011, Powrie, Narducci (Powrie’s supervisor),

and Jennifer Bannon (a human resources manager), conducted a conference call

with Torres-Skair regarding Schumm’s report of her sales calls. During the call,

Torres-Skair was placed on administrative leave pending further investigation.

Afterwards, Torres-Skair called the Ethics Hotline and stated her belief that

Narducci, Bannon, and Powrie were “building a case” to provide management

reason to terminate her in order to deprive her of maternity-leave benefits. After

the conference call, Powrie learned that Torres-Skair had intended to start her

FMLA leave that same day.

      After conducting additional research based on Schumm’s report, Narducci

ultimately obtained approval to terminate Torres-Skair’s employment for hanging


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up on a customer, avoiding calls, and failing to follow standard operating

procedure with respect to refaxing. Narducci specifically found that Torres-Skair

had violated “Work Rule 11,” which listed “[h]anging up on a customer—or

otherwise inappropriately terminating a call” as a serious infraction which could

lead to termination without prior warning or other disciplinary action. On May 31,

2011, Bannon notified Torres-Skair in writing that her employment with Medco

was being terminated for “issues concerning [her] performance including but not

limited to the disconnecting of a member on May 7, 2011.”

B.    Procedural History

      Torres-Skair filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”) in July 2011. She received her notice of right

to sue in December 2011, and timely filed the instant action in the United States

District Court for the Middle District of Florida.        The district court granted

summary judgment to Medco, concluding that Torres-Skair had failed to establish

a prima facie claim of pregnancy discrimination. The court further concluded that,

even if Torres-Skair had established a prima facie claim with respect to the

administrative leave and termination decisions, she had not shown that Medco’s

reasons for the adverse actions were pretextual. Finally, the court concluded that

Torres-Skair had not shown that she was retaliated against for statutorily protected

conduct. This appeal followed.


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                                         II.

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

evidence in the light most favorable to the non-movant. Owen v. I.C. Sys., Inc.,

629 F.3d 1263, 1270 (11th Cir. 2011). A movant is entitled to summary judgment

if “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). 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 (1986).

                                        III.

      On appeal, Torres-Skair argues that (1) she established a prima facie case of

pregnancy discrimination by showing that she was treated differently than valid

comparators and that Medco violated its own policy in terminating her; (2) she

satisfied her burden of establishing pretext; and (3) she presented sufficient

circumstantial evidence of retaliation to defeat summary judgment. We address

each argument in turn.

A.    Pregnancy Discrimination

      Title VII and the FCRA prohibit certain employers from discriminating

“against any individual with respect to [her] compensation, terms, conditions, or

privileges of employment, because of such individual’s . . . sex.” 42 U.S.C.


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§ 2000e-2(a)(1); Fla. Stat. § 760.10(1)(a). The term “because of sex” includes

“because of or on the basis of pregnancy, childbirth, or related medical

conditions.” 42 U.S.C. § 2000e(k). See also Delva v. Continental Grp., Inc., 137

So. 3d 371, 375-76 (Fla. 2014) (holding that the FCRA prohibits pregnancy

discrimination).

      “Under Title VII, a plaintiff may prevail on a claim by showing that her

pregnancy ‘was a motivating factor’ for an employment decision.” Holland v.

Gee, 677 F.3d 1047, 1055 (11th Cir. 2012) (citing 42 U.S.C. § 2000e-2(m)). To

prove the claim, a plaintiff may rely on direct or circumstantial evidence. Id.

Direct evidence is evidence which, if believed, would prove the existence of a fact

in issue without inference or presumption.        Id.     Circumstantial evidence, by

contrast, requires an inferential leap to establish discriminatory motive.

      “[O]nly the most blatant remarks whose intent could be nothing other than to

discriminate on the basis of some impermissible factor constitute direct evidence of

discrimination.” Id. (quotation marks omitted). No evidence presented by Torres-

Skair meets this rigorous standard. She has pointed to comments made by Powrie,

such as that Torres-Skair was “moody,” “hormonal,” and that her pregnancy and

medical restrictions were affecting her production, which certainly are probative of

Powrie’s state of mind.        But a factfinder still must infer that whatever

discriminatory animus these comments evidence actually motivated Powrie’s


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negative performance review of Torres-Skair, her placement on administrative

leave, or her termination—a fact that precludes the comments from constituting

direct evidence of discrimination. 2 See Damon v. Fleming Supermarkets of Fla.,

Inc., 196 F.3d 1354, 1358-59 (11th Cir. 1999). In this respect, Torres-Skair’s

reliance on Holland is misplaced. In Holland, this Court found direct evidence of

discrimination where the decision maker explicitly testified that part of his

reasoning for transferring the plaintiff was her pregnancy. 677 F.3d at 1058.

Clearly, if believed, the testimony in Holland proved that the plaintiff’s pregnancy

was a motivating factor for the transfer decision. No similar comment is part of

the record before us.

       Because no direct evidence of discrimination on the basis of pregnancy

exists on this record, we apply the burden-shifting framework of McDonnell

Douglas for claims based on circumstantial evidence. McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973); Holland, 677 F.3d at 1055. The

plaintiff bears the initial burden of presenting a prima facie case of discrimination.

McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1817.

       2
          Nor does the record reflect that Powrie exercised any real influence on the decision to
place Torres-Skair on administrative leave or to terminate her employment. Although Powrie
was involved during this process, unrefuted testimony shows that Narducci placed Torres-Skair
on administrative leave and made the recommendation to terminate her employment based on a
report prepared at the request of another supervisor who did not supervisor Powrie or Torres-
Skair. Powrie’s effect on these decisions is too indirect and remote to be actionable. See, e.g.,
Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331-32 (11th Cir. 1999) (stating that a party
with no power to discharge may be liable for discrimination where the party is “actual cause” of
the decision to terminate the employee).
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      To establish a prima facie case of pregnancy discrimination, a plaintiff may

show that she was (1) pregnant; (2) qualified to do the job; (3) subjected to an

adverse employment action; and (4) treated differently than similarly situated non-

pregnant employees, in that employment or disciplinary policies were differently

applied to her. See DuChateau v. Camp, Dresser & McKee, Inc., 713 F.3d 1298,

1302 (11th Cir. 2013); Holland, 677 F.3d at 1055.          In determining whether

employees are similarly situated, we have explained that a “comparator must be

nearly identical to the plaintiff to prevent courts from second-guessing a reasonable

decision by the employer.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091

(11th Cir. 2004). Nevertheless, “[a] plaintiff alleging pregnancy discrimination

need not identify specific non-pregnant individuals treated differently from her, if

the employer violated its own policy in terminating her.” Armindo v. Padlocker,

Inc., 209 F.3d 1319, 1321 (11th Cir. 2000). If a prima facie case is established, the

burden shifts to the defendant to come forward with a legitimate, non-

discriminatory reason for the employment decision. Chapman v. AI Transp., 229

F.3d 1012, 1024 (11th Cir. 2000) (en banc).

      Once the defendant articulates such a legitimate, non-discriminatory reason,

the plaintiff then must show that the defendant’s reason was pretextual. Id. To

establish pretext, a plaintiff must create a genuine issue of material fact that the

reasons given by the employer were not the real reasons for the adverse


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employment decision, but were pretexts for discrimination.         Id. at 1024-24.

Alternatively, the plaintiff may survive summary judgment by presenting sufficient

circumstantial evidence to       raise a reasonable     inference of intentional

discrimination. Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1320

(11th Cir. 2012).

      The district court here found that Torres-Skair had satisfied the first three

requirements of her prima facie case but that she had failed to show a valid

comparator for purposes of assessing whether she was treated differently. We now

turn to the three adverse employment actions asserted by Torres-Skair: the negative

performance evaluation in 2010, her placement on administrative leave, and her

eventual termination. The district court and the parties addressed the latter two

actions together, and we will do so as well.

      1.     Negative Performance Evaluation

      Torres-Skair contends that four other non-pregnant pharmacists received

more favorable evaluations in 2010 despite having similar production numbers.

She relies on a ranking sheet of pharmacists for average prescriptions per week

over the year, which shows that one other pharmacist, Katrina Stokes, actually

performed worse on this criterion (36 per week) than Torres-Skair (39 per week).

The chart states, “Needs improvement = less than 38rxs/week.” Torres-Skair was

the only pharmacist who received the “NI” rank for “needs improvement.”


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      Here, Torres-Skair did not present sufficient evidence that would allow a

reasonable jury to find that her pregnancy was a motivating factor in Powrie’s

negative evaluation. First, the single statistic on which Torres-Skair seeks to

compare herself to Stokes (and the other pharmacists) does not take into account

the other criteria on which the pharmacists were evaluated, such as green lights,

idle time, and other similar factors. The ranking sheet that Torres-Skair relies on

covers only the prescription numbers and was not otherwise analyzed through

testimony. See, e.g., Wilson, 376 F.3d at 1089 (“Statistics without any analytical

foundation are virtually meaningless.”) (citation and quotation marks omitted). As

a result, the court cannot ascertain whether Stokes was similarly situated to Torres-

Skair for purposes of her 2010 performance evaluation. Nor does the evidence

allow for a meaningful comparison to the other non-pregnant pharmacists.

Therefore, the district court properly found that Torres-Skair failed to show that

similarly situated employees outside of her protected class were treated differently.

See id. at 1091.

      Furthermore, Torres-Skair’s supervisors initially identified Torres-Skair’s

deficient job performance well before learning that she was pregnant.

Significantly, on April 15, 2010, Narducci sent an email to Powrie expressing

concern about Torres-Skair’s low prescription numbers. On September 29, 2010,

Powrie sent an email to Torres-Skair asking her to explain why her statistics were


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low the previous Friday. Then, on October 29, 2010, Powrie called Torres-Skair

and, after discussing her job performance, explained to her that if Torres-Skair did

not improve her performance, she might have to return to work at the call center

instead of working from home, or she might be placed on a performance-

improvement plan. Following this discussion and fifty minutes into the telephone

call, Torres-Skair advised Powrie for the first time that she was pregnant. Powrie

informed Narducci of Torres-Skair’s pregnancy on November 1, 2010.

      In addition, a review of Torres-Skair’s quarterly prescription production

corroborates Torres-Skair’s supervisors’ impressions that Torres-Skair’s work had,

in fact, decreased. In the first quarter of 2010, Torres-Skair had 572 quarterly

prescriptions; she had 519 in the second, 486 in the third, and 459 in the last—a

decrease of 5% each quarter for a total decrease of 20% from the first quarter to the

last, and Torres-Skair did not inform Defendant of her pregnancy until well into

the last quarter of the year.

      While we are troubled by the comments that Torres-Skair attributes to

Powrie and acknowledge that the evidence shows that Powrie thought Torres-

Skair’s job performance had been negatively affected by her pregnancy after

learning of it, those facts alone do not create a material dispute of fact that

Powrie’s negative evaluation was motivated by unlawful discrimination. “Under

the PDA, the employer must ignore an employee’s pregnancy and treat her as well


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as it would have if she were not pregnant.” Spivey v. Beverly Enterprises, Inc., 196

F.3d 1309, 1313-14 (11th Cir. 1999) (internal quotation marks omitted). In other

words, deficient job performance remains a non-discriminatory basis on which

employers may make employment decisions, so long as performance standards are

applied equally. 3

       For these reasons, the district court properly concluded that Torres-Skair did

not establish a prima facie claim based on the negative performance evaluation.

       2.     Administrative Leave and Discharge

       Regarding valid comparators for her claims based on administrative leave

and termination, Torres-Skair points out that Abigail Capito, who had similar

average prescription numbers (40 per week) as Torres-Skair, was put on a

“performance focus plan” (“PFP”), while Torres-Skair was not. Torres-Skair also

contends that she need not show a comparator because Medco violated its own

policies by firing her without first giving her a PFP.

       The record shows that Medco’s policies provide for a progressive

disciplinary system to address deficient job performance.                 First, pharmacists

receive coaching. If no improvement is shown, Medco will institute a PFP for the

pharmacist. After a pharmacist fails to meet the components of a PFP, Medco will
       3
           Nonetheless, unlawful discrimination may be shown where an employer fails to
accommodate pregnant employees in the same way that employees with temporary disabilities
are accommodated, see Spivey, 196 F.3d at 1312-13, or disallows pregnant employees to take
sick leave for pregnancy-related conditions where such relief is available to other non-pregnant
employees, see Byrd v. Lakeshore Hosp., 30 F.3d 1380, 1382-83 (11th Cir. 1994).
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implement a final written PFP, which may result in further disciplinary action or,

eventually, termination. In this case, Torres-Skair’s supervisors agreed in February

2011 that a PFP was necessary to address her performance issues. Powrie in fact

drafted such a plan and submitted it to Narducci for her review. However, Medco

never implemented the PFP for Torres-Skair.

      Nevertheless, we disagree that Medco’s failure to implement a PFP for

Torres-Skair before she was terminated shows that the company treated her

differently than a similarly situated pharmacist or violated its own policies.

Notably, Torres-Skair has not shown that the only way in which an employee may

be fired is after being placed on a PFP or related plans. Medco’s stated reason for

Torres-Skair’s discharge was a violation of Work Rule 11, among other issues not

directly related to deficient production. Work Rule 11 specifically provides that

hanging up on a customer or otherwise inappropriately terminating a call is a

“serious infraction which could lead to discharge without prior warning or other

disciplinary action.” The director of pharmacy practice at Medco testified that this

rule was “zero tolerance.” Torres-Skair has not pointed to any evidence in the

record where Medco used a PFP to address a violation of a Work Rule.

      In view of the foregoing, the fact that Torres-Skair was not placed on a PFP

does not indicate either (1) that she was treated differently than Capito, because

there is no evidence that Medco believed that Capito also had hung up on a


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customer; or (2) that Medco violated its own policies. Consequently, the district

court did not err in finding that Torres-Skair had failed to establish a prima facie

claim based on her placement on administrative leave and subsequent termination.

      In any case, even assuming that Torres-Skair established a prima facie case

of pregnancy discrimination, she failed to show that the legitimate, non-

discriminatory reasons proffered by Medco were pretextual. Medco offers three

such reasons: (1) Torres-Skair hung up on a customer; (2) she refaxed prescription

requests; and (3) she avoided calls. Medco claims that these reasons are not

independent because each contributed in some way to the decision to terminate

Torres-Skair.

      We might be more inclined to disturb the district court’s ruling if Medco

relied on refaxing alone. Torres-Skair presented evidence that other pharmacists

engaged in refaxing, that Powrie told pharmacists how to refax, and that refaxing

generally, at least under certain circumstances, was an accepted practice that would

generate an additional prescription credit.

      As it stands, however, Medco provided multiple, intertwined, non-

discriminatory reasons for its administrative leave and termination decisions.

Torres-Skair has not rebutted Medco’s other reasons, particularly Medco’s belief

that she inappropriately terminated a call with a customer. Torres-Skair argues that

Medco’s invocation of Work Rule 11 was pretextual because Medco also had in


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place a Workplace Harassment Policy, which prohibited employees or customers

from engaging in “name calling, slurs, or derogatory remarks,” and “verbal abuse

or ridicule based on some personal group characteristic.”        If Work Rule 11

required her to stay on the phone while the customer referred to her as a “dot

head,” she asserts, then it violated the harassment policy.

      Although Torres-Skair attempts to frame the harassment policy and Work

Rule 11 as directly in conflict, she has not presented any evidence supporting that

contention. Unrebutted testimony established that hanging up on a patient was

never appropriate, and Medco policy listed hanging up on a patient as a ground for

termination, potentially without prior warning. Nowhere in the harassment policy

does it authorize an employee to terminate a call when she believes she is the

subject of harassment. Rather, the policy provides that an employee who believes

she has been the victim of harassment should report the incident to her supervisor

or someone in management, which will trigger an investigation. Nor has Torres-

Skair presented a similar instance in which Medco retained a non-pregnant

employee who terminated a call because of a derogatory remark.

      Torres-Skair’s own conviction that she did not inappropriately hang up on

the customer in violation of Medco rules is insufficient to show pretext. She has

presented no evidence that Medco did not honestly and in good faith believe that

she violated a rule. See Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997)


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(“The inquiry into pretext centers upon the employer’s beliefs, and not the

employee’s own perceptions of his performance.”).

       Finally, Torres-Skair contends that the temporal proximity of her request for

FMLA leave and the administrative leave and termination decisions shows that

Medco’s reasons were pretextual. However, the report that served as the basis for

her termination was requested by a manager who was not Torres-Skair’s supervisor

and prepared by Schumm, another manager who also was not Torres-Skair’s

supervisor, and there is no evidence indicating that either had knowledge of

Torres-Skair’s request for FMLA leave or even her pregnancy when those actions

were taken. 4 Yet the only evidence in the record indicates that the conference call

and subsequent termination were predicated upon the findings of the report written

by Schumm. Nor is there evidence that Narducci or Bannon, the relevant decision

makers, had knowledge of Torres-Skair’s request for FMLA leave before the

conference call during which Torres-Skair was placed on administrative leave.

       For these reasons, Torres-Skair has not presented sufficient circumstantial

evidence by which a jury could reasonably infer that Medco’s non-discriminatory

reasons were pretextual or that Medco otherwise was motivated to discriminate

against her on the basis of her pregnancy.
       4
           To the extent that Torres-Skair argues that Medco violated the FMLA, she did not raise
such a claim before the district court and we decline to consider her arguments with respect to
any purported violations of the FMLA on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385
F.3d 1324, 1331 (11th Cir. 2004) (holding that issues not raised in the district court and raised
for the first time on appeal will not be considered).
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B.    Retaliation

      Torres-Skair also argues that she sufficiently established a retaliation claim.

Torres-Skair’s apparent theory of retaliation in this case is as follows: (a) she

complained about Powrie’s pregnancy comments; (b) because of the complaint,

Powrie received “coaching” from management on “addressing employee concerns,

sharing employee information, and sensitivity around health related topics”; (c) in

retaliation, Powrie failed to intercede on Torres-Skair’s behalf during the May 20

conference call by corroborating that Torres-Skair was having computer issues;

and (d) as a result, Torres-Skair was placed on administrative leave and

subsequently terminated.

      Title VII prohibits employers from retaliating against an employee because

she has opposed acts made unlawful by that law. 42 U.S.C. § 2000e-3(a). In order

to establish a prima facie case of retaliation, the plaintiff may show that (1) she

engaged in statutorily protected expression; (2) she suffered a materially adverse

action; and (3) a causal link existed between the events. Dixon v. The Hallmark

Cos., 627 F.3d 849, 856 (11th Cir. 2010). While this action was pending in the

district court, the Supreme Court clarified the standard for causation in retaliation

cases: the plaintiff must show that the adverse action would not have occurred but-

for the protected activity. Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133

S. Ct. 2517 (2013).


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      The district court correctly concluded that Torres-Skair failed to establish a

prima facie case of retaliation through circumstantial evidence. Even assuming

that Torres-Skair engaged in statutorily protected conduct, she has not presented

sufficient evidence from which a reasonable jury could find a causal connection

between her complaints and the adverse actions.            For the reasons we have

elaborated above, it is nothing more than mere speculation to suggest that, if

Powrie had spoken up, Torres-Skair would not have been placed on administrative

leave or discharged.     Any purported causal connection between the protected

conduct and the adverse actions is far too indirect and attenuated to be actionable.

Similarly, Torres-Skair has not shown that her complaint after she was placed on

administrative leave was the cause of her termination. Consequently, based on the

totality of the evidence before us, the district court did not err in finding that

Torres-Skair failed to state a prima facie claim of retaliation.

                                          IV.

      In short, we affirm the district court’s grant of summary judgment in favor

of Medco on all counts of the complaint.

      AFFIRMED.




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