          Case: 17-14298    Date Filed: 09/04/2018   Page: 1 of 29


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-14298
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:15-cv-01686-RWS



ROSANA JONES,

                                                            Plaintiff-Appellant,

                                  versus

AARON’S INC.,

                                                          Defendant-Appellee.

                       ________________________

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

                           (September 4, 2018)

Before MARCUS, ROSENBAUM and HULL, Circuit Judges.

PER CURIAM:
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      Plaintiff Rosana Jones appeals the district court’s grant of summary

judgment to Defendant Aaron’s, Inc., Jones’s former employer. Jones’s complaint

alleged that Aaron’s (1) terminated her because of her disability and in retaliation

for exercising her rights under the Americans with Disabilities Act (“ADA”) and

(2) interfered with her rights under the Family Medical Leave Act (“FMLA”) and

retaliated against her for exercising those rights.

      After carefully reviewing the briefs and relevant parts of the record, we

affirm the judgment in favor of Aaron’s as to Jones’s ADA discrimination and

retaliation claims, but vacate and remand as to her FMLA retaliation and

interference claims.

                         I. FACTUAL BACKGROUND
      We recount the facts in the light most favorable to Jones.

A.    Jones’s Employment History
      On March 19, 2012, Aaron’s hired Jones as a Customer Service

Representative (“CSR”) at its Conyers, Georgia location. As a CSR, Jones’s duties

were largely devoted to in-store and telephone sales. She was also responsible for

new customer growth, direct marketing, and customer payment processing. Jones

helped maintain the appearance of the store’s display showroom, which typically

involved cleaning and organizing Aaron’s display showroom. The CSR position

required strong interpersonal and organizational skills. CSRs were also required to


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be able to lift up to 50 pounds. Jones typically worked 40 hours per week and was

paid by the hour, in addition to earning commissions on her sales.

       Jones excelled as a salesperson. She was the top salesperson in her store and

was ranked in the top 25 salespersons in her regional division.

B.     Jones’s FMLA Leave and Return to Work
       In June 2013, Jones suffered an injury to her back while off work.

Subsequently, she was diagnosed with “quadratus lumborum myofascial pain,”

complaining of pain that radiated from her lower back to her right knee. This pain

restricted Jones’s ability to stand for longer than 20 minutes and to lift objects

weighing more than 10 pounds.

       Jones took FMLA leave from June 2, 2013, until June 17, 2013. Her request

for FMLA leave stated she had “lumbar radiculopathy” and “lumbar sprain.”

       When Jones returned to work on June 18, 2013, Jones’s direct manager,

David Piper, scheduled Jones to work roughly 32 hours per week, and not the 40

hours per week Jones had previously worked. 1

       At the end of the two weeks of working at this reduced schedule, Jones

complained to her regional manager, Tom Stacks, who restored her schedule to 40

hours per week. In 2013, Aaron’s did not pay Jones for the roughly 16 hours cut

       1
        More specifically, it appears that Jones actually worked 33.75 hours for the week ending
June 22, 2013, and that she worked 29.75 for the week ending June 29, 2013, for a total of 63.5
hours for those two weeks. That is 16.5 hours less than her prior 40-hour work week or a total of
80 hours.
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from her schedule. Aaron’s eventually paid Jones for these in June 2016, 15

months after she filed this lawsuit.

      After her FMLA leave, Jones continued to experience back pain, received

monthly injections in her back, and went to physical therapy.

      Jones notified her direct manager Piper of her doctor’s medical restrictions.

Piper adhered to Jones’s medical work restrictions and placed her on light duty,

allowing her to perform work while sitting at a computer.

C.    Jones’s New Direct Manager
      In October 2013, Chris Cooper became Jones’s new direct manager over

Jones and the store. Within a week, Jones began to bristle at Cooper’s

management style and found him arrogant, dismissive, and picky. Jones was upset

by several of Cooper’s management decisions, such as taking away employees’

smoke breaks, giving Jones’s customers to other CSRs, and changing Jones’s work

schedule.

      Jones’s biggest concern with Cooper was he did not honor her medical work

restrictions. According to Jones, Cooper once made her move a desktop computer

that was heavier than her restrictions allowed. Cooper also made demeaning

comments to Jones about her physical limitations. Cooper questioned Jones as to

why she could not work, at one point telling Jones that she “really [did] have a lot

of issues.” During a meeting with other employees present, Cooper stated that


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Jones “couldn’t do anything.” Cooper also disparaged Jones in front of her

customers, telling one customer to whom Jones was speaking that Jones “needed a

wheelchair” and “was handicapped.”

D.     Jones Complains About Cooper
       In October, Jones complained to Cooper. In mid-October 2013, Jones

communicated her complaints about Cooper’s leadership to Sandy Scott-Dyer, a

human resources associate, and to Todd Smith, the regional manager. Most of the

complaints related to Cooper’s management decisions and style. Jones also

complained that Cooper was not adhering to her medical restrictions.

       Scott-Dyer and Smith forwarded Jones’s concerns about her medical

restrictions to Cooper, who was unaware of Jones’s restrictions and agreed to begin

following them. After Jones complained, Cooper never again forced Jones to lift

items that weighed too much or to perform activities that caused her to bend,

stretch, or otherwise exacerbate her back. 2 As to her other concerns, Scott-Dyer

and Smith explained to Jones that Cooper’s management decisions were

appropriate, consistent with company policy, and within his discretion. They

indicated Cooper ran the store and Jones needed to comply with his requests.


       2
          We recognize that Jones also claims that Cooper tasked Jones with dusting off the tops
of tall shelves (forcing her to stretch and reach too far) and filing documents in cabinets that
were low to the ground (forcing her to bend) on three different occasions. But Jones’s medical
restrictions did not address her ability (or inability) to stretch or bend.
         Regardless, once Jones complained to Scott-Dyer and Smith, Cooper adhered to her
medical restrictions and did not ask her to perform tasks that involved her stretching or bending.
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      After Cooper began adhering to Jones’s restrictions, Jones began to feel like

Cooper was being overly restrictive, as he would not allow Jones to perform any

non-sales tasks besides answering phones. This bothered Jones, especially when

business was slow, because she would get bored. On several occasions, Jones

asked Cooper if she could vacuum, dust, or clean the store’s windows, but Cooper

would not let her.

      Notably, Jones also told Smith that Cooper was “a young, cocky, black male

with something to prove.” Smith felt that Jones’s comments were unacceptable

and racist. Smith told Jones that she was entitled to her opinion but that she must

treat Cooper with respect and cooperate with him as her manager. Smith reported

Jones’s comments to Scott-Dyer.

E.    Jones’s Complaint on October 25, 2013
      On October 25, Jones was scheduled to get off work earlier than usual (at

6:00 p.m. instead of 7:00 p.m.). Jones asked Cooper if she also could have a 30-

minute break for lunch. Cooper told Jones that, instead of taking a lunch break,

she could go ahead and leave an hour even earlier than scheduled (at 5:00 p.m.).

      Cooper’s comment upset Jones, who then called Scott-Dyer to complain.

Scott-Dyer advised Jones “not to be confrontational” with Cooper and that she and

Jones were going to have to meet. Ultimately, that meeting was scheduled for

October 30, 2013.


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F.    Jones Leaves Work Early on October 28, 2013
      In the meantime, Jones continued to have issues with Cooper. On

October 28, 2013, Jones clocked into work around 10 a.m. Almost immediately,

Jones asked Cooper if she could take a break to take her medicine with a snack.

Cooper responded that he did not know and needed to check the company’s

handbook, which Jones understood to mean no.

      Jones admits that: (1) she could have taken the medication before arriving to

work; (2) prior to October 28, she always took her medicine before arriving at

work and had never requested permission to do so at work; and (3) she took

Cooper’s response as an insult. Jones asked Cooper if she should clock out or go

home. Cooper responded “I don’t care what you do, it’s an at-will state.” Jones

left the store just after her 8-hour shift had begun and did not return for the

remainder of the day. Cooper issued a written counseling form to Jones

disciplining her for her behavior.

G.    Meeting on October 30, 2013
      On October 30, 2013, Scott-Dyer and Smith met with Jones and discussed

her complaints about Cooper. During the meeting, Scott-Dyer asked Jones why

she left work on the morning of October 28. Jones responded that she was “tired”

of Cooper. Jones explained her conversation with Cooper.




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       Scott-Dyer asked Jones if there was any reason why Jones could not have

taken her medicine before coming to work or during her lunch break, to which

Jones responded there was not. Given that Cooper had recently taken issue with

his employees’ breaks being too frequent and lasting too long, Scott-Dyer and

Smith felt that Jones was purposefully trying to provoke Cooper by requesting the

break at the start of her shift.

       Scott-Dyer and Smith told Jones that her behavior was unacceptable and that

she could not walk out on her shift simply because she disagreed with her

manager’s response to her break request. Scott-Dyer and Smith encouraged Jones

to comply with Cooper’s operational and management decisions.

       Jones told Scott-Dyer and Smith that she did not respect Cooper as a

manager and was not sure if she could cooperate with Cooper’s leadership. Smith

left the meeting believing that Jones was not going to be able to cooperate with

Cooper or behave appropriately. Still, Scott-Dyer and Smith decided that they

would wait and see whether Jones could get along with Cooper.

H.     Exchange on October 31, 2013
       The next day, on October 31, 2013, Jones called Smith to complain again

about Cooper. This time, Jones complained that Cooper refused to help her sell a

camera to a customer, stating that the camera was stolen because it had no price tag




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on it and then leaving the store. Smith told Jones that he would talk to Cooper.

Jones then left for lunch.

      After returning from lunch, Jones approached Cooper and asked if she could

take a day off for a doctor’s appointment. Cooper asked for her to bring in a

doctor’s note. Jones then asked Cooper if they could speak alone. Cooper

declined, telling Jones that he would not talk to her unless he had a witness present.

Jones responded by saying “Chris, just be a man. Tell me what your problem is

with me.” Cooper became upset by this comment, yelled at Jones, and walked into

his office to call Scott-Dyer and Smith.

      Cooper explained to Scott-Dyer and Smith that Jones had yelled at him to

“be a man” in front of other store employees. Scott-Dyer advised Cooper to send

Jones home for the rest of the day, which he did. Before leaving, Jones asked

Cooper if she was fired. Cooper told Jones that he would let her know if she could

come in the next day.

      After conversing with Cooper, Smith realized that Jones was not going to

cooperate with Cooper and that Jones continued to be a disruption in the store.

Smith then spoke to Scott-Dyer and recommended terminating Jones for

insubordination. Scott-Dyer agreed.




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I.     Jones’s Termination on November 1, 2013
       By the next morning, Scott-Dyer had drafted a memorandum stating that

Jones was being fired for “inappropriate conduct/behavior.” Scott-Dyer then

called Cooper and directed him to terminate Jones when she came in. Scott-Dyer

also emailed Cooper a copy of the termination memorandum.

       That same morning, Jones called Cooper and asked if she could come into

work, and Cooper responded that she could. 3

       Later that morning, Jones arrived at the store and began her typical CSR

duties. At one point, Jones began speaking with a customer whom she asked about

buying sports tickets from him. While Jones and the customer were talking,

Cooper approached and asked whether their conversation was work related. Jones

told Cooper that their conversation was not work related, and the customer told

Cooper to mind his own business.

       After her conversation with the customer ended, Jones called Scott-Dyer to

complain about Cooper’s comments concerning the sports tickets. Jones asked

Scott-Dyer whether Jones “need[ed] to call the EEOC” in order to change

Cooper’s behavior. After telling Jones not to worry, Scott-Dyer said she would


       3
        Before Jones arrived at work, Jones’s husband went to the store to speak to Cooper.
Jones’s husband asked Cooper why he was “messing with [Jones]” and told Cooper that he was
negatively affecting Jones’s family. Jones’s husband also informed Cooper that Jones was
thinking about quitting and that Cooper should “not let that happen.” Cooper disagreed with
Jones’s husband’s assessment of the situation, but otherwise did not argue with Jones’s husband.
Jones’s husband then left the store.
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speak with Smith to get it “squared away.” Jones returned to work and finished

her shift around 8:00 p.m.

      Before Jones left to go home, Cooper approached her and said that he

needed to meet with her. Cooper and Jones went into a back office within the

store, where Cooper told Jones that she was fired. Jones then left the store.

J.    Procedural History
      On April 22, 2014, Jones filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”). On February 12, 2015, the

EEOC issued Jones a right-to-sue letter.

      On May 12, 2015, Jones filed this lawsuit. Jones’s complaint advanced

these five claims: (1) an ADA discrimination claim, alleging that Aaron’s fired her

because of her disability; (2) an ADA retaliation claim, alleging that Aaron’s fired

her because she complained about Cooper’s failure to adhere to her medical

restrictions; (3) an FMLA retaliation claim, alleging that Aaron’s cut her hours

those two weeks in June 2013 because she took FMLA leave; (4) an FMLA

interference claim, alleging that Aaron’s violated her FMLA rights when it failed

to restore her to the same position after she returned from FMLA leave; and (5) a

civil rights claim based on Aaron’s “reckless indifference” to her federally-

protected rights against disability discrimination.




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       On August 10, 2016, Aaron’s filed a motion for summary judgment on

Jones’s claims. 4 Jones filed several exhibits, including the declarations of two

former coworkers—David Piper and Savannah Carter. On October 24, 2016,

Aaron’s moved to exclude the declarations of Piper and Carter alleging that Jones

failed to provide timely disclosures of the witnesses.

       On January 31, 2017, the magistrate judge issued a report (“the report”)

recommending (1) that Aaron’s motion for summary judgment be granted; (2) that

Jones’s motion for partial summary judgment be denied; and (3) that the

declarations of Piper and Carter be excluded. After a hearing on the report, the

district court (1) adopted the report, (2) granted Aaron’s motion for summary

judgment on all of Jones’s claims, (3) denied Jones’s motion for partial summary

judgment as moot, and (4) excluded the declarations of Piper and Carter.5

       Jones appealed the district court’s granting of summary judgment to

Aaron’s.6




       4
        That same day, Jones filed a motion for partial summary judgment on Aaron’s
affirmative defenses, which the district court ultimately denied. Jones does not appeal that denial
so we do not discuss it.
       5
         The district court first adopted the report and granted Aaron’s motion for summary
judgment on September 25, 2017. Two days later, however, the district court discovered an error
in its September 25 order and vacated it.
       6
           Jones does not appeal the denial of her motion for partial summary judgment.
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                         II. STANDARDS OF REVIEW
      This Court reviews de novo a district court’s grant of summary judgment.

Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016). 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). In determining whether evidence creates a factual dispute, a court

should draw reasonable inferences in favor of the nonmoving party, Plaintiff Jones.

Furcron, 843 F.3d at 1304.

      This Court reviews a district court’s evidentiary rulings for an abuse of

discretion. Id.

                                 III. DISCUSSION
A.    Exclusion of Piper’s and Carter’s Declarations
      We first conclude that the district court did not abuse its discretion when it

excluded Piper’s declaration, signed on May 26, 2016, and Carter’s declaration,

signed on June 13, 2016. We agree with the district court that Jones failed to

timely identify Piper and Carter as witnesses.

      Specifically, under Federal Rule of Civil Procedure 26(a)(1)(A)(1), a party

must provide to the other party in its initial disclosures the name, address, and

telephone number of “each individual likely to have discoverable information” and

“the subjects of that information.” Under Federal Rule of Civil Procedure

37(c)(1), “[i]f a party fails to provide information or identify a witness as required
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by Rule 26(a) . . . the party is not allowed to use that information or witness to

supply evidence on a motion . . . unless the failure was substantially justified or is

harmless.”

      Here, Jones’s initial disclosures did not list Piper and Carter as witnesses. In

fact, Jones did not list Piper and Carter as witnesses until July 11, 2016, which was

the last day of discovery. Thus, Aaron’s had no opportunity to depose Piper and

Carter about the contents of their declarations or conduct any other discovery as to

them. Under these circumstances, Jones’s failure to identify Piper and Carter in

her initial disclosures cannot be said to be harmless. Further, given that the

declarations were dated May 26 and June 13 and thus available before July 11,

Jones has not shown that her failure was substantially justified or that the district

court abused its discretion when it excluded Piper’s and Carter’s declarations.

      We now turn to Jones’s claims.

B.    ADA Discrimination
      The ADA provides that covered employers shall not discriminate against

qualified individuals with a disability on the basis of that disability. 42 U.S.C.

§ 12112(a). An employer who fires a qualified employee with a disability violates

the ADA if the employer would not have fired the employee but for her disability.

McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077 (11th Cir. 1996) (“The

ADA imposes a ‘but-for’ liability standard.”).


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      In the absence of direct evidence of discrimination, we apply the burden-

shifting framework established by the Supreme Court in McDonnell Douglas 7 to

ADA discrimination claims. See Durley v. APAC, Inc., 236 F.3d 651, 657 (11th

Cir. 2000). Under this framework, Jones first must establish a prima facie case of

ADA discrimination. Id. at 655-56. If she does so, the burden of production shifts

to Aaron’s to assert a legitimate, nondiscriminatory reason for terminating Jones.

Id. If Aaron’s produces a legitimate, nondiscriminatory reason, Jones must show

that Aaron’s proffered reason is false and that the real reason for her termination

was her disability. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113

S. Ct. 2742, 2751-52 (1993) (explaining that, under the pretext stage of the burden-

shifting framework, a plaintiff must show that the employer’s proffered reason for

her termination is false and that the real reason for firing her was discrimination).

      Here, we assume arguendo that Jones established a prima facie case of ADA

discrimination—namely, that (1) she was disabled, (2) she was a “qualified

individual” when she was terminated by Aaron’s, and (3) she was discriminated

against on account of her disability. Wood v. Green, 323 F.3d 1309, 1312 (11th

Cir. 2003). Aaron’s, however, gave a legitimate and nondiscriminatory reason for

firing Jones—her disruptive conduct and insubordination as to Cooper. Thus, the




      7
          McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
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burden shifted back to Jones to show that this reason was pretextual and that the

real reason for her termination was her disability.

      Jones failed to present evidence sufficient to create an issue of fact as to

pretext. For starters, Jones does not dispute that she committed several

unprofessional and insubordinate actions in the last few weeks of her employment:

(1) calling Cooper “a young, cocky, black male” when speaking with Smith;

(2) leaving the store in the middle of her shift without being excused, resulting in a

short-staffed store; (3) telling Scott-Dyer and Smith that she did not respect Cooper

and was not sure if she would be able to comply with his directives; (4) engaging

in personal business with a customer during her shift—in violation of Aaron’s

Code of Conduct (and only one day after she met with Scott-Dyer and Smith to

discuss her already-inappropriate behavior); (5) goading Cooper to “be a man”;

and (6) repeatedly challenging Cooper’s management style and operational

decisions in front of other employees and customers.

      Second, even if we could ignore Jones’s inappropriate conduct, Jones has

also failed to show that her disability was the real reason for her termination. If

anything, the record evidence demonstrates that Aaron’s had no problem with

Jones’s disability. During the four-month span between Jones’s injury (early June

2013) and Cooper’s hiring (early October 2013), Aaron’s fully adhered to Jones’s

medical restrictions. We recognize that Cooper tasked Jones with carrying a heavy

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desktop computer on one occasion, but that was before Cooper learned of her

medical restrictions. More importantly, Jones immediately complained to Scott-

Dyer and Smith, and Cooper never again violated her medical restrictions. In fact,

Jones later complained that Cooper was too obedient in following her medical

restrictions, causing her to become bored when Cooper would not let her vacuum

or clean windows.

      Finally, Cooper’s few disparaging remarks about Jones’s maladies are

insufficient to show pretext. Though these isolated comments can contribute to a

circumstantial case for pretext, they are not direct evidence of discrimination and

are unrelated to the challenged employment decision. See Rojas v. Florida, 285

F.3d 1339, 1342-43 (11th Cir. 2002).

      Simply put, Jones fails to point to evidence in the record that Aaron’s fired

her because of her disability. The district court did not err in granting summary

judgment on Jones’s ADA discrimination claim. Mayfield v. Patterson Pump Co.,

101 F.3d 1371, 1376-77 (11th Cir. 1996) (“Conclusory allegations of

discrimination, without more, are not sufficient to raise an inference of

pretext . . . where [an employer] has offered . . . extensive evidence of legitimate,

non-discriminatory reasons for its actions.” (citations omitted, second and third

alteration in original) (quoting Isenberg v. Knight-Ridder Newspaper Sales, Inc.,

97 F.3d 436, 443-44 (11th Cir. 1996))).

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C.     ADA Retaliation

       Jones contends that she established a prima facie case of ADA retaliation—

that (1) she engaged in a statutorily protected expression by opposing an unlawful

practice (i.e. complaining once about Cooper violating her medical restrictions),

(2) she suffered an adverse employment action when she was terminated, and

(3) there was a causal link between the two. Frazier-White v. Gee, 818 F.3d 1249,

1258 (11th Cir. 2016). 8

       As we noted above, Jones has not presented evidence that Cooper violated

her medical restrictions more than one time, and that instance occurred before

Cooper learned of Jones’s restrictions. In addition, Cooper never denied Jones’s

request for time off to go to a doctor’s appointment; instead, he asked for her to

provide a doctor’s note before he could approve her time off. Even assuming

arguendo that Jones could show that her complaints about Cooper and her request

for time off were causally linked to her termination, which she has not, Aaron’s

articulated a legitimate reason for terminating Jones—her disruptive and

insubordinate behavior.

       Likewise, we hold that Jones’s ADA retaliation claims fail on pretext. For

the reasons stated above, Jones has not rebutted Aaron’s explanation that it fired


       8
          This Court employs the same McDonnell Douglas burden-shifting framework to ADA
retaliation claims. Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th
Cir. 1997).
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her for repeated acts of unprofessionalism and insubordination. Jones also has

failed to show that the real reason for her termination was her complaints about

Cooper’s failure to adhere to her medical restrictions.9

D.     FMLA Claims
       Among the substantive rights given to eligible employees under the FMLA

are the right to 12 weeks of “leave during any 12-month period . . . [b]ecause of a

serious health condition that makes the employee unable to perform the functions

of the position,” 29 U.S.C. § 2612(a)(1)(D), and the right following 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 with equivalent

employment benefits, pay, and other terms and conditions of employment.” Id.

§ 2614(a)(1)(A)-(B); see Batson v. Salvation Army, ___ F.3d ___, No. 16-11788,

2018 WL 3628184, at *7 (11th Cir. July 31, 2018). To enforce these rights, the

FMLA creates two types of claims: interference claims, which assert an

interference with a substantive right under the Act, see 29 U.S.C. § 2615(a)(1), and

retaliation claims, which assert that the employer discriminated because of the

employee’s engaging in activity protected by the Act, see 29 U.S.C. § 2615(a)(1)




       9
        Because we affirm the district court’s grant of summary judgment on Jones’s ADA
claims, we also affirm the district court’s grant of summary judgment on Jones’s civil rights
claim, which was premised on Aaron’s alleged violations of her ADA rights.
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& (2). Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1206 (11th Cir.

2001).

      Often, as alleged here by Jones, the same employment actions can form the

basis for FMLA claims of interference and retaliation. See, e.g., Batson, 2018 WL

3628184, at *3-4, 8-9 (involving interference and retaliation claims arising out of

the elimination of an employee’s current position and refusal to rehire her to an

open position she had previously held after she returned from FMLA leave);

Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1239-40 (11th Cir. 2010)

(involving interference and retaliation claims arising out of an employee’s

demotion upon her return from FMLA leave); Strickland, 239 F.3d at 1202-03,

1206 (involving interference and retaliation claims arising out of an employee’s

termination after taking FMLA leave).

      1.     FMLA Retaliation

      The district court found that Jones’s FMLA retaliation claim failed at the

pretext stage. Specifically, the district court found that Jones failed to show that

Aaron’s proffered reason for terminating her was false and that the real reason was

her FMLA leave.

      To the extent that Jones’s FMLA retaliation claim centered on the allegation

that Aaron’s fired her for exercising her FMLA rights, the district court was




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correct—Jones failed to show that Aaron’s legitimate explanation for her

termination was a pretext for FMLA retaliation, for the same reasons stated above.

      The problem is that the district court misconstrued Jones’s FMLA retaliation

claim as being premised on only her termination when it was based instead on her

reduction in hours after her return from FMLA leave.

      “To prove FMLA retaliation, an employee must show that h[er] employer

intentionally discriminated against h[er] for exercising an FMLA right.” Martin v.

Brevard Cty. Pub. Sch., 543 F.3d 1261, 1267 (11th Cir. 2008). Absent direct

evidence of retaliatory intent, we apply the same McDonnell-Douglas burden-

shifting framework used to evaluate Jones’s ADA discrimination and retaliation

claims. See Martin, 543 F.3d at 1268.

      To establish a prima facie case of FMLA retaliation as to the two weeks of

reduced hours, Jones had to show that (1) she engaged in a statutorily protected

activity, (2) she suffered an adverse employment action, and (3) the adverse action

was causally related to the protected activity. Schaaf, 602 F.3d at 1243. Jones’s

FMLA retaliation claim based on her reduction in hours met this burden.

      Jones engaged in a statutorily protected activity when she took FMLA leave

for two weeks in early June 2013. When she returned, Jones’s schedule was

reduced to only 32 hours per week, instead of her prior 40 hours per week. In

other words, she went from full-time to part-time work. Because she was an

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hourly employee, this change to part-time work meant that Jones earned less

money for those two weeks. Jones also lost the opportunity during those cut hours

to make sales from which she could have earned a commission. Thus, reducing

Jones’s hours to part-time work was a materially adverse employment action. Cf.

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68, 126 S. Ct. 2405,

2415 (2006) (concluding in the Title VII retaliation context that an employment

action is “materially adverse” when it involves a significant harm and might

dissuade a reasonable worker from engaging in the protected activity, but material

adversity does not include trivial harms, petty slights, or minor annoyances); Bass

v. Bd. Of Cty. Comm’rs, 256 F.3d 1095, 1118 (11th Cir. 2001) (“[A]ctions which

deprived [the plaintiff] of compensation which [s]he otherwise would have earned

clearly constitute adverse employment actions for purposes of Title VII.”).

      Given the close temporal proximity between her FMLA leave (June 3-17)

and her reduction in hours right when she returned (June 18-29), Jones also

satisfied the causal connection element for purposes of a prima facie case. See

Hurlbert v. St. Mary’s Health Care Sys., 439 F.3d 1286, 1298 (11th Cir. 2006)

(explaining that, at the prima facie stage, “[c]lose temporal proximity between

protected conduct and an adverse employment action is generally sufficient

circumstantial evidence to create a genuine issue of material fact of a causal

connection” (quotation marks omitted)).

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      Because Jones established a prima facie case of FMLA retaliation, the

burden shifted to Aaron’s to proffer a legitimate, nondiscriminatory reason as to

why it reduced Jones’s hours after she returned from FMLA leave. To meet its

burden, Aaron’s claimed that Jones asked her manager to reduce her hours when

she returned from FMLA leave. In support, Aaron’s cited to internal emails

between Aaron’s human resources personnel in September 2013 indicating that

Jones asked to work fewer hours when she returned from FMLA leave because of

her ailing back. Notably, none of these emails were authored by Jones.

      While one email (authored by Christy Wilson and sent to Sandy Scott-Dyer

and Jill Reinert) states that Jones requested a reduced-hours schedule to 32 hours,

the same email states that her request was denied due to a policy that all full-time

employees must work 40 hours per week. Further, handwritten notes on a printout

of the email indicate that, “Per Jill,” Jones did not request part-time work and that

it was Jones’s former supervisor, David Pier, who put her on a part-time schedule.

Consistent with this note, Sandy Scott-Dyer averred in her declaration that after

receiving Christy Wilson’s email, Jill Reinert “spoke with Ms. Jones and received

a detailed account of the issues,” Jones was having with Piper and then told Scott-

Dyer that “when Ms. Jones returned from FMLA leave in June 2013, she did not

immediately get scheduled for forty (40) hours a week.” In any event, in her




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deposition, Jones testified that Aaron’s cut her hours, which contradicts Aaron’s

claim that she requested reduced hours.

       In short, in the record as it stands now, there is a factual dispute as to

whether Aaron’s proffered non-retaliatory reason for reducing Jones’s hours—

because she requested it—is true. To establish pretext, however, a plaintiff must

show not only that the proffered reason is false, but also that the real reason was

the plaintiff’s FMLA leave. See Schaaf, 602 F.3d at 1244 & n.3 (explaining that to

show the employer’s reason was pretext for FMLA retaliation it is not enough to

cast doubt on the employer’s reason and that the plaintiff must also present

evidence from which a jury could find that the employer was motivated by a

retaliatory animus). In this summary judgment posture, we accept the facts in the

light most favorable to Jones—that Aaron’s cut her hours—but we point out that

Jones still must show that Aaron’s cut her hours in retaliation for her taking FMLA

leave. Because a factual issue exists, we vacate the grant of summary judgment on

Jones’s FMLA retaliation claim and remand for further consideration of the pretext

issue by the district court in the first instance.

       2.     FMLA Interference

       Similarly, the district court erred in granting summary judgment on Jones’s

FMLA interference claim.




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      “[T]o state a claim that [her] employer has interfered with a substantive

FMLA right, a plaintiff need only demonstrate that [she] was entitled to but denied

the right.” Strickland, 239 F.3d at 1208. However, the plaintiff does not have to

allege that her employer intended to deny the right, as the employer’s motives are

irrelevant. Id.

      As already mentioned, an employee has a right following FMLA leave to be

restored to the same position or to an equivalent position “with equivalent

employment benefits, pay, and other terms and conditions of employment.” 29

U.S.C. § 2614(a)(1)(B). Regulations require an “equivalent position” to be

“virtually identical to the employee’s former position in terms of pay, benefits, and

working conditions.” 29 C.F.R. § 825.215(a). Further, “equivalent pay” includes

“the same or equivalent pay premiums,” such as average overtime pay and

bonuses, and “equivalent terms and conditions of employment” includes “the same

shift or the same or an equivalent work schedule.” Id. § 825.215(c), (e). This right

“does not extend to de minimis, intangible, or unmeasurable aspects of the job.”

Id. § 825.215(f).

      The right to be restored to the same or an equivalent position “is not

absolute.” Martin, 543 F.3d at 1267. If the employer interfered with the plaintiff’s

FMLA rights, the employer can escape liability by showing that it would have

interfered with the plaintiff’s FMLA rights for reasons unrelated to any FMLA

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leave. Parris v. Miami Herald Publ’g Co., 216 F.3d 1298, 1301 n.1 (11th Cir.

2000) (explaining that an employer that interferes with an employee’s FMLA right

“bears the burden of proving that the employee would have [had her FMLA rights

violated] . . . for reasons unrelated to the [FMLA right]”); see 29 U.S.C.

§ 2614(3)(B) ( “Nothing in this section shall be construed to entitle any restored

employee to . . . any right, benefit, or position of employment other than any right

benefit, or position to which the employee would have been entitled had the

employee not taken the leave.”). Put another way, if an employer can show that it

refused to reinstate the employee to her former position for a reason wholly

unrelated to the FMLA leave, there is no liability. Strickland, 239 F.3d at 1208

(describing the limitation in § 2614(a)(3) as an “affirmative defense”).

      An employer asserting this affirmative defense is entitled to summary

judgment if the record establishes “beyond dispute” that the employer would not

have restored the employee to the same or an equivalent position even if she had

not taken FMLA leave. Martin, 543 F.3d at 1267; Strickland, 239 F.3d at 1208;

see also Batson, 2018 WL 3628184, at *9 (“[W]e ask whether the evidence,

viewed in the light most favorable to the non-moving party, establishes as a matter

of law that the employer would have terminated the employee regardless of her

request for or use of FMLA leave.”). In evaluating this question, “courts examine

not whether the FMLA leave was the but-for cause of an employee’s discharge or

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demotion, but rather whether it was the proximate cause.” See Schaaf, 602 F.3d at

1242 (explaining that, for an employer to be held liable for FMLA interference, the

plaintiff’s exercise of her FMLA rights must have been the proximate cause of the

interference).

      Here, Jones presented evidence that she was not restored to a position with

the same full-time pay that she had before she took her FMLA leave. Thus, Jones

has shown that Aaron’s interfered with her FMLA rights.

      Aaron’s advances two arguments concerning Jones’s FMLA interference

claim. First, Aaron’s argues that it did not interfere with Jones’s FMLA rights

when it reduced her hours from 40 to 32 hours per week following her June 2013

FMLA leave, because Jones was never entitled to work 40 hours in the first place.

Second, Aaron’s argues that any FMLA interference was harmless because

Aaron’s eventually paid Jones (in June 2016) for the hours that she would have

worked in June 2013 had her hours not been reduced.]

      The district court agreed with Aaron’s first argument, finding that no FMLA

interference occurred because Jones was never entitled to a 40-hour work week.

The district court granted summary judgment on that basis alone, never analyzing

whether Aaron’s reason for cutting Jones’s hours was wholly unrelated to her

FMLA leave.




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      The district court erred in its analysis. Jones was entitled under the FMLA

to return to the same job (or an equivalent position offering the same pay and

benefits) that she had before she took FMLA leave. 29 U.S.C. § 2614 (a)(1). It is

undisputed that as a CSR, Jones worked a full-time, 40 hours per week and that

when Jones finished her FMLA leave, she returned to a part-time CSR position

with her hours reduced to 32 hours per week. Thus, when Aaron’s failed to restore

Jones to a 40-hour work week, it cut her pay and interfered with her FMLA rights.

Whether Aaron’s had a reason for this interference that was wholly unrelated to

Jones’s FMLA leave is a question we leave for the district court to answer.

      Aaron’s second argument—that its eventual payment to Jones for the

reduced hours absolved it of FMLA liability—also fails. Employers cannot escape

liability for illegal adverse employment decisions by making retroactive payments

to aggrieved employees. Crawford v. Carroll, 529 F.3d 961, 971-72 (11th Cir.

2008). “To conclude otherwise would permit employers to escape [employment

discrimination] liability by correcting their discriminatory and retaliatory acts after

the fact.” Id. at 972 (explaining that the employer’s retroactive pay increase to the

plaintiff-employee did not preclude a finding of adverse employment action).

Moreover, Aaron’s late payment to Jones does not alter the fact that Jones was

denied payment because of an alleged FMLA violation, nor does it erase the injury




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caused by this alleged FMLA violation—specifically the lost value and use of the

funds in the three years before she received payment. See id.

       We therefore vacate the district court’s grant of summary judgment on

Jones’s FMLA interference claim and remand it back to the district court. On

remand, the district court must decide whether the record establishes beyond

dispute that this interference was “wholly unrelated” to Jones’s FMLA leave.10

                                    IV. CONCLUSION
       For the foregoing reasons, we affirm the district court’s order granting

summary judgment to Defendant Aaron’s, except as to Jones’s FMLA retaliation

and interference claims. As to these claims, we vacate the district court’s order

and remand the case for further proceedings consistent with this opinion.

       AFFIRMED IN PART; VACATED AND REMANDED IN PART.




       10
          Plaintiff Jones also argues that the district court violated her Seventh Amendment right
to a jury trial when it granted summary judgment to Aaron’s on all of her claims. This argument
is meritless. Summary judgment does not violate the Seventh Amendment. Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 336, 99 S. Ct. 645, 654 (1979) (citing Fidelity & Deposit Co. v.
United States, 187 U.S. 315, 319-321, 23 S. Ct. 120, 121–122 (1902)); Zivojinovich v. Barner,
525 F.3d 1059, 1066 (11th Cir. 2008) (describing as “meritless” the argument that summary
judgment unconstitutionally deprives plaintiffs of their Seventh Amendment rights to a jury
trial).
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