             Case: 12-15504     Date Filed: 07/02/2013   Page: 1 of 15


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-15504
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 4:12-cv-00052-RS-CAS


SHERENA TURNER,

                                                          Plaintiff - Appellant,
                                       versus

FLORIDA PREPAID COLLEGE BOARD,
A Public Body Corporate,

                                                          Defendant - Appellee.
                           ________________________

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

                                   (July 2, 2013)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges:

PER CURIAM:

      Sherena Turner appeals the summary judgment rendered in favor of her

former employer, the Florida Prepaid College Board (FPCB), on her claims of race

discrimination and retaliatory discharge under Title VII of the Civil Rights Act of
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1964 and interference with and retaliation for the exercise of her rights under the

Family and Medical Leave Act (FMLA). 1 After thorough review of the record, we

conclude that summary judgment was proper as to Turner’s Title VII claims but

that genuine issues of fact remain as to her FMLA claims. Therefore, we affirm in

part, vacate in part, and remand for further proceedings.

                                              I.

       We recount the facts in the light most favorable to Turner. See Kingsland v.

City of Miami, 382 F.3d 1220, 1227 (11th Cir. 2004). From March 2008 to

January 2011, Turner worked as a Financial Analyst for the FPCB. During most of

this period, she was the only black employee supervised by William Thompson, a

white male. Thompson and Turner often did not get along, and Turner felt

Thompson treated her worse than the rest of the employees he supervised.

       On November 3, 2010, Turner sent an email to an employee of a vendor

FPCB did business with that Turner does not dispute “took a defensive tone,”

attacked the employee, and was unprofessional. After learning of this email,

Thompson counseled Turner about her behavior. Early the next morning, Turner

emailed Thompson blaming him for her unprofessional email to the vendor and



1
 Although Turner also mentioned “Chapter 760, Florida Statutes” and “42 U.S.C. § 1981a” in
the introduction to her amended complaint, the district court deemed those passing references
insufficient to state independent claims. Because Turner does not challenge that conclusion on
appeal, she has abandoned any claim under those provisions. Carmichael v. Kellogg, Brown, &
Root Servs., Inc., 572 F.3d 1271, 1293 (11th Cir. 2009).
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directing him to stop yelling at her and “be considerate at all times when

approaching” her.

      Later that day, November 4, 2010, Thompson conducted a performance

evaluation for Turner, which he was required to do annually for each employee he

supervised. He noted, among other things, that the quality of Turner’s work had

declined significantly over the preceding year, that she was unwilling to ask for

help, and that she took personally any feedback about problems with her work. In

the evaluation, Thompson placed Turner on a “60-day performance improvement

plan” and wrote that, “[i]f her job performance and attitude [did] not significantly

improve[] within that time and consistently remain at [that] significantly improved

level,” he would “recommend that [her] employment with the [FPCB] be

terminated.” That same day, he met with Turner and a representative from the

FPCB’s Human Resources department, Dorothy Melton, to discuss the evaluation.

Both in writing and in person, he warned Turner that the FPCB “reserve[d] the

right to terminate [her] employment prior to [her] formal re-evaluation in 60 days.”

      On December 15, 2010, prior to the planned January 3 reevaluation date,

Thompson began drafting a report on Turner’s progress that concluded she had

made no improvement. The next morning, Turner requested FMLA leave from

Melton, as directed by her physician. Later that day, Thompson delivered his




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performance review to Melton. 2 Melton informed Thompson that Turner had

requested and would receive FMLA leave from December 20 through January 7.

Thompson told Melton that he had decided to recommend that Turner be fired.

       While she was out on leave, Turner began for the first time to think the

reason Thompson treated her differently was her race. So on January 8, 2011, the

Saturday before she was to return to work, she sent an email to Melton and the

FPCB’s Executive Director, Thomas Wallace. 3 In that email, she said that

Thompson had ben verbally abusive and treated her differently “because of [her]

race . . . and for exercising [her] rights for FMLA time . . . .” The same day, she

sought and was granted additional FMLA leave.

       Turner returned to work on January 18 and, upon her return, spoke with an

investigator from the State Board of Administration about her allegation that

Thompson had discriminated against her. Later that morning, however, she was



2
  In her briefs, Turner claims she disputes Thompson’s testimony that he orally recommended on
December 16 that she be terminated, suggesting that his recommendation came later, after her
complaint of racial discrimination. Neither before the district nor on appeal, however, has she
pointed to any evidence upon which she bases this asserted dispute. A fact is not disputed for
summary judgment purposes simply if the nonmovant claims the evidence put forward in support
of it is “dubious,” as Turner does. “Once the moving party makes the required showing, the
burden shifts to the non-moving party to rebut that showing by producing affidavits or other
relevant and admissible evidence beyond the pleadings.” Josendis v. Wall to Wall Residence
Repairs, Inc., 662 F.3d 1292, 1314 -15 (11th Cir. 2011).
3
  As the district court noted, Turner’s two January 8 emails were sent to Melton and an address
for a Thomas Williams, but both begin “Hello Mr. Wallace and Ms. Melton.” Thus, the email
addresses appear to be typos, yet neither party has cleared up this confusion on appeal.
Nevertheless, because Turner asserts on appeal that she sent the emails to Wallace and Melton
and Thompson does not dispute that assertion, we assume it to be true.
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called into Melton’s office, where Thompson presented her with a negative

performance evaluation. And, with Wallace’s approval, she was terminated.

      Turner filed suit against the FPCB alleging that Thompson discriminated

against her based upon her race, retaliated against her when she complained,

interfered with the exercise of her FMLA rights, and retaliated against her for

exercising her FMLA rights. The district court rendered summary judgment in the

FPCB’s favor on all four claims. This is Turner’s appeal.

                                         II.

      “We review de novo the district court’s grant of summary judgment,

applying the same legal standards as the district court, and viewing all facts and

reasonable inferences drawn therefrom in the light most favorable to the non-

moving party.” Atheists of Fla., Inc. v. City of Lakeland, Fla., 713 F.3d 577, 589

(11th Cir. 2013) (internal quotation marks and alteration omitted). Summary

judgment is appropriate on a claim when there are no genuine issues of material

fact and the movant is entitled to judgment as a matter of law. Id. “Issues of fact

are genuine only if a reasonable jury, considering the evidence presented, could

find for the nonmoving party.” Id. (internal quotation marks omitted).

                                         III.

                                         A.




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      Title VII makes it unlawful for an employer to discriminate against an

employee based upon her race. 42 U.S.C. § 2000e-2(a)(1). Discrimination can be

proven either directly or, as Turner seeks to do, indirectly using circumstantial

evidence. EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000).

To prove differential treatment using circumstantial evidence, the plaintiff bears

the initial burden of establishing a prima facie case of discrimination. Hall v. Ala.

Ass’n of Sch. Bds., 326 F.3d 1157, 1166 (11th Cir. 2003). To do so, she must show

(1) that she was a member of a protected class (2) who was qualified for her

position but (3) was subject to an adverse employment action and (4) treated less

favorably than a similarly situated employee outside of her protected class. Burke-

Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). Even if a

plaintiff cannot point to a similarly situated comparator employee who was treated

more favorably, however, she may in some cases create a “triable issue concerning

the employer’s discriminatory intent” by showing a “convincing mosaic of

circumstantial evidence that would allow a jury to infer intentional discrimination

by the decisionmaker.” Smith v. Lockeed-Martin Corp., 644 F.3d 1321, 1328 (11th

Cir. 2011) (internal quotation marks omitted).

      Turner has not identified a proper comparator. She points us to a

Management Assistant she argues was treated more favorably, but that individual’s

misconduct was a mere typographical error. Turner, by contrast, concedes she sent


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an accusatory and unprofessional email to an employee at one of FPCB’s vendors.

Because “[t]he quantity and quality of the comparator’s misconduct” is not “nearly

identical,” Turner has not presented evidence of a similarly situated employee who

was treated more favorably. Stone & Webster Constr., Inc. v. U.S. Dept. of Labor,

684 F.3d 1127, 1135 (11th Cir. 2012).

      Nor has Turner presented evidence that would permit her to circumvent the

usual prima facie showing. Just as the district court did, we accept for summary

judgment purposes Turner’s testimony that Thompson singled her out and treated

her poorly. But “Title VII is neither a general civility code nor a statute making

actionable the ordinary tribulations of the working place.” Cotton v. Cracker

Barrel Old Country Store, Inc., 434 F.3d 1227, 1234 (11th Cir. 2006) (internal

quotation marks and alteration omitted). Unless something links the actions to the

employee’s race, that a decisionmaker singles an employee out does not permit a

jury to infer intentional discrimination based on race.

      Here, the only link between Turner’s race and Thompson’s actions is her

statement in an affidavit that Thompson did not treat white employees as harshly.

But we have never suggested that a plaintiff’s generalized averment that her

employer treated her differently than employees of a different race can, alone,

create a “convincing mosaic of circumstantial evidence” from which a jury could

find intentional discrimination based on race. Smith, 644 F.3d at 1328 (internal


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quotation marks omitted). To so hold would do away with the usual requirement

that a plaintiff identify a comparator. In Smith, the plaintiff presented evidence

that the paperwork in an investigation into racist emails explicitly identified

employees by race. Id. at 1336-37, 1341, 1345-46. And in that case, the plaintiff

was fired along with all other employees that paperwork identified as white, while

no black employees under investigation were terminated. 1338-44. By contrast,

Turner concedes she never even suspected Thompson’s treatment of her was based

upon race until after Thompson recommended on December 16 that she be fired.

Thus, no reasonable jury could find the circumstantial evidence convincingly

suggests that race motivated Thompson’s 4 actions.

                                               B.

       Turner has also failed to make out a prima facie case that she was terminated

in retaliation for complaining that Thompson had discriminated against her based

on her race. Title VII’s anti-retaliation provision “makes it unlawful for an

employer to discriminate against an employee ‘because he has opposed any

practice made an unlawful employment practice by this subchapter, or because he

has made a charge, testified, assisted, or participated in any manner in an

4
  The evidence indicates that the FPCB’s Executive Director, Thomas Wallace, not Thompson,
actually fired Turner. The FPCB suggests, albeit obliquely, that the termination cannot have
been the result of intentional discrimination because Turner makes no allegation that Wallace
had improper motives. Nonetheless, throughout its briefs before this court and in its motion for
summary judgment, the FPCB treated Thompson as the relevant decisionmaker and never
asserted Turner’s claims fail because he was not. Thus, we treat any argument to that end
forfeited. E.g., Battle v. Bd. of Regents for Ga., 468 F.3d 755, 763 n.8 (11th Cir. 2006).
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investigation, proceeding, or hearing under this subchapter.’” Alvarez v. Royal Atl.

Developers, Inc., 610 F.3d 1253, 1268 (11th Cir. 2010) (quoting 42 U.S.C. §

2000e–3(a)). “To establish a prima facie case of retaliation, the plaintiff must

show that (1) she engaged in statutorily protected activity; (2) she suffered a

materially adverse employment action; and (3) there was a causal link between the

two.” Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir. 2012).

      The district court concluded that Turner could not show her termination was

causally related to any statutorily protected activity. We agree. Turner admits she

never told anyone that she believed Thompson was treating her differently based

upon her race until January 8. That was after Thompson had recommended on

December 16 that she be terminated. Thus, her complaint cannot have triggered

the termination. Although Turner claims on appeal that she told Melton and others

she felt harassed throughout her employment, she does not even argue those

complaints could have put the FPCB on notice that she believed Thompson’s

actions were related to her race. See Coutu v. Martin Cnty. Bd. of Cnty. Com’rs,

47 F.3d 1068, 1075 (11th Cir. 1995) (holding that employee’s charge he was

treated unfairly, without some allegation treatment was based on race, “did not

constitute statutorily protected activity” because “[u]nfair treatment” alone “is not

an unlawful employment practice under Title VII”). Indeed, as noted above, she

only came to suspect Thompson’s treatment of her had anything to do with race


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after the termination decision was already made. Thus, because Turner cannot

establish causality between any protected conduct and her termination, summary

judgment was proper as to her Title VII retaliation claim.

                                         C.

      Turner also argues summary judgment was improper on her claim that the

FPCB interfered with her rights under the FMLA by terminating her when she

returned from leave. After careful consideration, we agree. “To prove FMLA

interference, an employee must demonstrate that [s]he was denied a benefit to

which [s]he was entitled under the FMLA,” such as “the right following FMLA

leave ‘to be restored by the employer to the position of employment held by the

employee when the leave commenced’ or to an equivalent position.” Martin v.

Brevard Cnty. Pub. Schs., 543 F.3d 1261, 1267 (11th Cir. 2008) (quoting 29

U.S.C. § 2614(a)(1)(A)). “[T]he employer’s motives are irrelevant” to an

interference claim. Strickland v. Water Works & Sewer Bd. of Birmingham, 239

F.3d 1199, 1208 (11th Cir. 2001). But if the employer shows it would have

terminated the employee had she not been on leave, then refusal to restore her to

her prior position will not support an FMLA interference claim. Id.

      The district court rendered summary judgment on Turner’s FMLA

interference claim finding that she “had no pending leave requests when she was

terminated.” But, as Turner points out on appeal, she did not claim the FPCB


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prevented her from taking leave to which she was entitled, but rather that the FPCB

failed to restore her to her job as the FMLA requires. 5 Despite this, we may affirm

the grant of summary judgment on any basis supported by the record. Wilchombe

v. TeeVee Toons, Inc., 555 F.3d 949, 960 (11th Cir. 2009). The FPCB urges us to

hold that the evidence shows it would have terminated Turner even had she not

taken leave due to the performance deficiencies identified in the November 4

performance evaluation and December 16 progress report. But Turner disputes

that her performance was deficient in the ways outlined in those documents. And

for purposes of summary judgment, we must assume Turner’s version of the facts

is true. Kingsland, 382 F.3d at 1227. Further, as we more fully explain below, we

cannot agree that the evidence unequivocally demonstrates Thompson had decided

to fire Turner before learning that she intended to take FMLA leave. Therefore,

genuine issues of fact about whether the FPCB failed to restore Turner to her prior

position as required under the FMLA, or instead would have fired her even had she

not taken leave, preclude summary judgment on her interference claim.

                                                 D.

       Finally, we agree with Turner that a genuine issue of material fact exists as

to whether she was fired in retaliation for taking FMLA leave. “To prove FMLA
5
  The district court may have misconstrued Turner’s theory of interference because Turner’s
discussion of it in her brief in opposition to summary judgment was so slight, including no
citations and never referencing the restoration right. Nonetheless, because the FPCB does not
argue Turner forfeited the theory in the district court and instead argues the merits of her claim,
we likewise address the merits.
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retaliation, an employee must show that [her] employer intentionally discriminated

against [her] for exercising an FMLA right.” Martin, 543 F.3d at 1267. Where, as

here, there is no direct evidence of discriminatory intent, we evaluate a claim of

retaliatory discharge under the FMLA using the same burden-shifting approach

employed in Title VII cases. Id. First, an employee must make out a prima facie

case of FMLA retaliation by showing she engaged in activity the FMLA protects

and suffered an adverse employment action causally related to that activity. Id.

The burden then shifts to the employer “to articulate a legitimate reason for the

adverse action.” Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286,

1297 (11th Cir. 2006). “If the employer does so, the employee must then show

that the employer’s proffered reason was pretextual by presenting 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.”

Martin, 543 F.3d at 1268 (internal quotation marks omitted). To do so, “[t]he

employee may rely on evidence that [s]he already produced to establish [her]

prima facie case.” Id.

      The district court concluded Turner could not make out a prima facie case

because she could not show a causal connection between her FMLA leave and

termination. That conclusion was based upon the court’s finding that Thompson

had already recommended Turner’s termination before he learned that she was


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taking FMLA leave. The timing, however, is ambiguous. Thompson averred that

he “told Ms. Melton that [he] recommended the termination” and that “Ms. Melton

indicated that because Turner submitted a request for leave that day, the

termination would not take place until Ms. Turner returned to work . . . .” This

shows Thompson learned of Turner’s request and recommended her termination in

the same meeting. But an inference is necessary to decide what happened first,

which we must necessarily make in Turner’s favor. See Gowski, 682 F.3d at 1310-

11. And while the progress report Thompson completed prior to learning of

Turner’s leave request indicates he was displeased with her progress, it nowhere

mentions that she should be terminated. We conclude based on the record before

us that a reasonable jury could infer Thompson had not decided to recommend that

Turner be terminated until after he was told she was approved to take FMLA leave.

      The FPCB responds that, even if Turner has made out a prima facie case of

FMLA retaliation, Turner was terminated for the substantial performance

deficiencies and deteriorating working relationships Thompson outlined in the

November 4 performance review and December 16 progress report. But Turner

has raised a genuine question as to whether those reasons were pretextual. First

and foremost, Turner testified in her deposition that none of the performance

deficiencies Thompson identified, save the inappropriate email, actually existed.

And, construing the facts in Turner’s favor, the temporal proximity was as close as


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could be — within mere minutes. Nothing in the memorandum Thompson

delivered to Melton on December 16 indicated that he recommended her

termination then, rather than at the completion of the planned 60-day reevaluation

period. So the evidence reasonably could be read to indicate he decided on the

spot to seek her termination upon learning that she had invoked her right to take

FMLA leave that extended through her probationary period. In so doing, he cut

short the time he had given Turner to improve and short-circuited the performance

improvement plan he had previously outlined and explained to her.

      Martin counsels that such evidence is adequate to create a jury issue over

whether the employer’s proffered reason for Turner’s termination was pretextual.

There, just as here, an employee of several years received a poor performance

evaluation and was placed on an improvement plan. Martin, 543 F.3d at 1264.

Just as Turner did, Martin took FMLA leave prior to completing his improvement

plan and, just as in Turner’s case, the employer decided to fire Martin after he

requested and was approved for leave but before he completed the improvement

plan. Id. at 1264-65, 1268. Moreover, in this case, Thompson terminated the

improvement plan early, on the same day he learned Turner would take FMLA

leave. Thus, the “temporal proximity between [her] leave and termination” is at

least as probative of pretext as in Martin. Id. at 1268. Therefore, just as in that

case, although the FPCB’s “explanation may ultimately prove true, a genuine


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dispute of material fact nonetheless remains” regarding whether Thompson was

terminated in retaliation for exercising her FMLA rights. Id.

                                         IV.

      No reasonable jury could find Turner was discriminated against on the basis

of her race or retaliated against for engaging in any conduct protected under Title

VII. But, based upon the evidence produced thus far, we conclude a jury could

find the FPCB interfered with Turner’s right to restoration under the FMLA and

retaliated against her for seeking to exercise her right to FMLA leave. Thus, for

the foregoing reasons, we affirm the summary judgment rendered in the FCPB’s

favor on Turner’s Title VII discrimination and retaliation claims, but vacate the

district court’s judgment on Turner’s FMLA interference and retaliation claims and

remand for further proceedings consistent with this opinion.

      AFFIRMED in part, VACATED and REMANDED in part.




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