            Case: 17-10591      Date Filed: 02/08/2018   Page: 1 of 8


                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 17-10591
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:15-cv-23454-MGC


BALDOMERO GUASCH,

                                                               Plaintiff-Appellant,

                                      versus

CARNIVAL CORPORATION,
a foreign profit corporation,

                                                              Defendant-Appellee.

                        ________________________

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

                                (February 8, 2018)

Before TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Baldomero Guasch, a disabled former employee of Carnival Corporation

(“Carnival”), appeals the district court’s grant of summary judgment in favor of

Carnival in his disability discrimination suit. First, Guasch argues that he made out

a prima facie case of disability discrimination under the Florida Civil Rights Act

(“FCRA”) because his supervisors refused to reduce the downtime in his phone

productivity or grant full leave time when requested because they knew of his

disabled status.1 He also argues that the reason Carnival provided for its

termination decision—that he had continuously violated company policy with

excessive downtime—was merely a pretext for discrimination, because he had

demonstrated excellent phone productivity for 15 years prior to his termination.

Second, Guasch argues that he has legitimate Family and Medical Leave Act

(“FMLA”) claims for interference and retaliation. As to his interference claim,

Guasch argues that Carnival continued to reject his doctor’s paperwork and his

legitimate requests to adjust his downtime numbers for various technical issues,

extending the amount of time that it appeared he had excessive downtime

violations. As to his retaliation claim, Guasch argues that the close proximity in




       1
          Guasch originally brought two claims under the FCRA for disparate treatment and
hostile work environment. However, in its summary judgment order, the district court construed
both of these claims as one FCRA claim. Because Guasch does not challenge this construction
on appeal, any argument regarding the separate, individual claims is abandoned. Pitney Bowes,
Inc. v. Mestre, 701 F.2d 1365, 1375 (11th Cir. 1983).
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time between his leave requests and his termination indicates that Carnival was

retaliating against him for taking leave.


                     I.     THE FLORIDA CIVIL RIGHTS ACT

      We review the grant of a summary judgment motion de novo. Weeks v.

Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment is

appropriate when the evidence, viewed in the light most favorable to the non-

moving party, presents no genuine dispute of any material fact. Fed. R. Civ. P.

56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under Local Rule

56.1 of the Southern District of Florida, a party moving for summary judgment

must also submit a statement of material facts. (S.D. Fla. L.R. 56.1). If the

nonmovant fails to respond, the movant’s statement will be deemed admitted.

(Id.). However, the summary judgment motion itself, even if unopposed, must be

considered on its merits. Trs. of Cent. Pension Fund of Int’l Union of Operating

Engineers and Participating Empl’rs v. Wolf Crane Serv., Inc., 374 F.3d 1035,

1039 (11th Cir. 2004).

      We have held that “an argument that was not raised in the district court

below is left primarily to the discretion of the appellate court” unless “refusal to

consider it would result in a miscarriage of justice.” Ramirez v. Sec’y, U.S. Dep’t

of Transp., 686 F.3d 1239, 1250 (11th Cir. 2012). A miscarriage of justice would

likely result if the record supported the party’s argument. Id.

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      The FCRA makes it unlawful for employers with 15 or more employees to

discriminate against an employee because of such individual’s handicap. See Fla.

Stat. §§ 760.01(b), 760.10(1)(a). Claims under the FCRA are analyzed under the

same framework as claims brought under, in relevant part, the Americans with

Disabilities Act (“ADA”). Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1255

(11th Cir. 2007).

      The ADA prohibits employers from discriminating against “a qualified

individual on the basis of disability in regard to job application procedures, the

hiring, advancement, or discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a).

      We employ the burden-shifting analysis from McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), to analyze ADA claims. See Holly, 492 F.3d at 1255.

Under this framework, the plaintiff must establish a prima facie case of disability

discrimination. Id. at 1255-56. To prove a prima facie employment discrimination

case under the ADA, and the FCRA, the employee may show that (1) he has a

disability, (2) he is a qualified individual for the position in question, and (3) the

employer discriminated against him because of his disability. Holly, 492 F.3d at

1255 (emphasis added). With respect to the latter prong, an employer cannot be

liable under the ADA for firing an employee when it indisputably “had no


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knowledge of the disability.” See Morisky v. Broward Cty., 80 F.3d 445, 448 (11th

Cir. 1996) (internal quotation omitted).

         If a plaintiff makes out a prima facie case, and the defendant establishes a

legitimate, nondiscriminatory reason for its allegedly discriminatory action, the

plaintiff must show that such a reason is merely a pretext for its true discriminatory

purpose. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-08 (1993). To prove

that the legitimate, nondiscriminatory reason is a pretext, the plaintiff must show

that the reason is both false and that the underlying discriminatory reason is

impermissible. See id. at 515-16.

         The district court properly granted summary judgment to Carnival on

Guasch’s FCRA claim because he presented no evidence to establish that his

supervisors knew of his disabling condition. Moreover, even if Guasch established

a prima facie case to support his FCRA claim, he failed to show that Carnival’s

legitimate and nondiscriminatory reason for firing him—that he had continuously

violated the company phone productivity policy—was a pretext for discrimination,

because this justification was both a permissible reason to fire him, and it was not

false.

                      II.   FAMILY AND MEDICAL LEAVE ACT

         The FMLA grants employees periods of leave for certain family or health-

related events. 29 U.S.C. § 2612(a)(1). The statute creates two types of claims:


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(1) interference claims, in which an employee asserts that his employer denied or

otherwise interfered with his substantive rights under the FMLA, and

(2) retaliation claims, in which an employee asserts that his employer

discriminated against him because he engaged in activity protected by the FMLA.

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

1206 (11th Cir. 2001).

      To establish that an employer interfered with the employee’s FMLA rights,

an employee need only show by a preponderance of the evidence that he was

entitled to a benefit that was denied by his employer. Id. at 1206-07. The

employer’s motives in such a claim are irrelevant. Id. at 1208.

      To establish a retaliation claim under the FMLA, an employee must

demonstrate that his employer intentionally discriminated against him for

exercising a right guaranteed under the FMLA. Strickland, 239 F.3d at 1207.

“Unlike an interference claim, an employee bringing a retaliation claim faces the

increased burden of showing that his employer’s actions were motivated by an

impermissible retaliatory or discriminatory animus.” Martin v. Brevard Cnty. Pub.

Sch., 543 F.3d 1261, 1267-68 (11th Cir. 2008) (quotations omitted). In the absence

of direct evidence of retaliatory intent, we apply the burden-shifting framework

articulated in McDonnell Douglas. Id. at 1268. To establish a prima facie case of

FMLA retaliation, an employee may show that (1) he engaged in statutorily


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protected activity; (2) he suffered an adverse action; and (3) the decision was

causally related to the protected activity. Id.

      Proximity in time between the protected activity and the materially adverse

action does not, by itself, establish the causal connection required by the third

element of the prima facie case, but it can buttress other evidence in the case, and

indicate whether the decision-maker had notice of the protected activity.

Strickland, 239 F.3d at 1207 n.10. The Supreme Court has indicated that the

temporal proximity between an employer’s knowledge of protected activity and an

adverse action must be very close. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268,

273 (2001) (citations and quotations omitted). In Breeden, the Supreme Court

cited cases with approval that held a three- to four-month disparity was insufficient

to show a causal connection. See id. (citations omitted).

      If the employee successfully demonstrates a prima facie case of FMLA

retaliation, the burden then shifts to the employer to articulate a legitimate reason

for the adverse action. Martin, 543 F.3d at 1268. Once an employer articulates a

legitimate non-discriminatory reason, the employee then must show that the

employer’s proffered reason was pretextual. Id.

      The district court properly granted summary judgment to Carnival on

Guasch’s FMLA claims because neither a retaliation or interference claim would

survive. As to his interference claim, Guasch was not denied an entitled benefit,


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and as to his retaliation claim, he failed to show a causal connection between his

leave requests and the adverse action. Indeed, as set forth in Carnival’s Statement

of Undisputed Facts, Guasch, in his deposition, acknowledged that he had no

knowledge that Borrera, Perez, or White (his supervisors) were aware of his

disability. 2 [Statement of Undisputed Facts, Doc. 23 at 10 ¶33 (citing Plaintiff's

Dep., Vol. I at 181:3-11, 187:8-10, 211:3-21)]. Additionally, Guasch failed to

establish pretext in his retaliation claim because no evidence showed that

Carnival’s reason for firing him was false or impermissibly based on his requests

for FMLA leave.

       AFFIRMED.




2
       On appeal, in his Reply brief [page 5], Guasch cites another page of his own deposition
[page 21] to support his bald assertion that the supervisors did have knowledge of his disability.
However, the page he cites merely refers to the occasion when his supervisors became aware of
the hospitalization of Guasch’s partner—not anything about Guasch’s medical condition.
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