             Case: 17-12074   Date Filed: 04/30/2018   Page: 1 of 10


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 17-12074
                           Non-Argument Calendar
                         ________________________

                       D.C. Docket No. 1:16-cv-00041-B

KIMBERLY M. GODWIN,

                                                              Plaintiff-Appellant,

                                     versus

CORIZON HEALTH,

                                                            Defendant-Appellee.

                         ________________________

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

                                (April 30, 2018)

Before TJOFLAT, MARCUS and NEWSOM, Circuit Judges.

PER CURIAM:

      Kimberly Godwin, a former Corizon Health (“Corizon”) employee, appeals

through counsel the district court’s grant of summary judgment to Corizon, on her

claims of retaliation under the Family Medical Leave Act (“FMLA”), 29 U.S.C. §
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2614(a), Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-

3(a), and 42 U.S.C. § 1981. On appeal, Godwin argues that the district court erred

in concluding that Corizon’s stated reasons for Godwin’s termination were not

pretextual. 1 Corizon responds that Godwin has abandoned her Title VII and §

1981 retaliation claims on appeal, and also disputes the merits of all of Godwin’s

claims. After thorough review, we affirm.

       We review a district court’s grant of summary judgment de novo. Thomas

v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007).                     Summary

judgment is proper when the evidence, viewed in the light most favorable to the

nonmovant, presents no genuine issue of material fact and compels judgment as a

matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-

23 (1986). “Mere conclusions and unsupported factual allegations are legally

insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d

1321, 1326 (11th Cir. 2005).

       We will not address any claims an appellant fails to raise in her initial brief.

Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1293 (11th Cir.

2009). Further, if a party notes an issue in her initial appellate brief, but makes

only passing or conclusory references to it, or otherwise fails to offer substantive

       1
         Godwin also states that she “adopts and incorporates by reference all facts and
arguments” set forth in her district court pleadings. However, a party may not “incorporate by
reference” arguments presented to the district court. See Four Seasons Hotels & Resorts, B.V. v.
Consorcio Barr S.A., 377 F.3d 1164, 1167 n.4 (11th Cir. 2004).
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argument on it, we will deem the issue abandoned. See Greenbriar, Ltd. v. City of

Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).       Nor will we consider an

issue not raised in the district court and raised for the first time on appeal. Access

Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).

      First, we are unpersuaded by Godwin’s argument that the district court erred

in granting summary judgment in favor of Corizon on her FMLA claim. Under the

FMLA, eligible employees are entitled to take unpaid leave “[b]ecause of a serious

health condition that makes the employee unable to perform the functions of [her]

position.” 29 U.S.C. § 2612(a)(1)(D). The FMLA prohibits employers from

retaliating against an employee who has engaged in statutorily protected activity.

Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010).

      Absent direct evidence of the defendant’s intent, courts evaluate FMLA

retaliation claims under the burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Schaaf, 602 F.3d at 1243. Under

this framework, if a plaintiff establishes a prima facie case, and the defendant

articulates a legitimate, non-discriminatory reason for the adverse action, the

plaintiff must show that the defendant’s purported reason was simply a pretext for

discrimination. Id. at 1244. A legitimate, non-discriminatory reason proffered by

the employer is not a pretext for prohibited conduct unless it is shown by sufficient




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probative evidence that the reason is false and that the real reason is impermissible

discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515-16 (1993).

      The inquiry into pretext centers on the employer’s beliefs and whether the

employer believed the employee was guilty of misconduct. Alvarez v. Royal Atl.

Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010).           Consequently, an

employer can hardly be said to have retaliated against an employee if it terminated

the employee based on a good faith belief that she violated a rule, even if the

purported violation never actually occurred. Elrod v. Sears, Roebuck & Co., 939

F.2d 1466, 1470 (11th Cir. 1991).

      Here, Godwin failed to show that Corizon’s reasons for firing her were mere

pretexts for its true intention to fire her for having taken FMLA leave. Godwin

alleged that, beginning in 2014, she took intermittent FMLA leave due to a medical

condition, and upon her return, two officials told her that she was fired because she

failed to properly conduct an inmate’s medical assessment in January 2014.

Godwin conceded she had violated Corizon’s policy against conducting an inmate

medical assessment at the cell, but she argued that the inmate, Darrell LeGrand,

did not need a medical assessment in order to have his prescription refilled, so he

was not negatively affected when she administered his medical assessment at his

cell. Regardless, the undisputed evidence revealed that it was against Corizon’s

policy to do what Godwin had done. Godwin also points to testimony of Kevin


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Baugh, Director of Nurses, that, ordinarily, performing an inmate’s medical

assessment at the cell would only result in a write up. However, the record further

reveals that Baugh and Katherine Gibson, the Health Services Administrator,

learned in an investigation that Godwin actually had not conducted LeGrand’s

medical assessment and had falsified his medical records to cover up her failure.

Pursuant to Corizon’s policies, the falsification of medical records constitutes

grounds for immediate termination. Godwin attacks the validity of Gibson and

Baugh’s investigation by arguing that Corizon conspired with LeGrand and an

officer to get her fired and that she did not falsify LeGrand’s medical chart, but she

offers only unsupported factual assertions, which are legally insufficient to defeat

summary judgment. See Ellis, 432 F.3d at 1326.

      In short, the undisputed record demonstrates that Godwin violated Corizon’s

policies by, among other things, performing LeGrand’s evaluation at his cell, and

Godwin has not shown that Gibson and Baugh’s beliefs in her work violations

were unworthy of credence. See Elrod, 939 F.2d at 1470; Alvarez, 610 F.3d at

1266. Viewing the evidence in the light most favorable to Godwin, we find no

genuine issue of material fact about whether Corizon’s legitimate, non-

discriminatory reasons for firing her were pretexts for retaliation. Elrod, 939 F.2d

at 1470. Moreover, because Godwin’s FMLA claim fails as a matter of law, we




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need not address Corizon’s argument that Godwin was required to prove that her
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FMLA leave was the “but for” cause of Corizon’s decision to terminate her.

       Next, we agree with Corizon that summary judgment in its favor was also

warranted on Godwin’s Title VII and § 1981 claims. Title VII prohibits employers

from retaliating against an employee because she has participated in proceedings

designed to enforce rights thereunder or otherwise opposed “an unlawful

employment practice.” 42 U.S.C. § 2000e-3(a). Similarly, while 42 U.S.C. § 1981

-- which prohibits race discrimination in connection with making and enforcing

contracts -- does not expressly protect individuals who seek to enforce their rights

thereunder from retaliation, both the Supreme Court and our Court have confirmed

that this prohibition exists. See CBOCS W., Inc. v. Humphries, 553 U.S. 442, 451-

52 (2008) (holding that retaliation claims are permitted under § 1981); Andrews v.

Lakeshore Rehab. Hosp., 140 F.3d 1405, 1411-13 (11th Cir. 1998) (concluding

that a claim that an employer retaliated against an employee by firing her for filing

a race discrimination claim is cognizable under § 1981). Section § 1981 and Title

VII retaliation claims are analyzed under the same framework.                     Standard v.

A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).




2
        Godwin argued, for the first time on appeal, that Corizon’s proffered reasons were
pretextual because Corizon treated Jenkins, an employee outside of Godwin’s protected class,
less harshly than her for violating a work rule. Since she did not argue this before the district
court, we decline to consider it. See Access Now, Inc., 385 F.3d at 1331.
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        In order to make out a prima facie case of retaliation, a plaintiff may show

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

materially adverse action; and (3) there is a casual connection between the

protected activity and the materially adverse action. Brown v. Ala. Dep’t of

Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). If the plaintiff does so, and the

employer proffers a legitimate, non-discriminatory reason for its actions, then the

plaintiff must show that the reason given is pretextual. Id. at 1181-82.

        As for the prima facie causal-connection element, we construe it broadly,

requiring only that the protected activity and the negative employment action are

not completely unrelated. Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249,

1260 (11th Cir. 2012). To do so, a plaintiff must show that the specifically

identified decision-maker was aware of her protected conduct at the time of the

materially adverse action. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1278

(11th Cir. 2008). Thus, if an alleged materially adverse action occurred or was

decided before the employee engaged in a protected expression, the two cannot be

causally connected. Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d

1227, 1232-33 (11th Cir. 2006). Further, while close temporal proximity of a

protected activity and a subsequent adverse action may be probative of

discriminatory intent, a three-month interval between the two is insufficient to




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establish a causal connection, as a matter of law. Thomas v. Cooper Lighting, Inc.,

506 F.3d 1361, 1363-64 (11th Cir. 2007).

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

Corizon on Godwin’s Title VII and § 1981 claims. For starters, Godwin fails to

explicitly address the district court’s disposition of her Title VII and § 1981 claims.

Notably, she does not raise arguments about the district court’s conclusion that she

had failed to establish either a prima facie case of Title VII or § 1981 retaliation,

due to a failure to demonstrate a causal connection between her termination and

her statutorily protected conduct, or otherwise show pretext. Instead, Godwin’s

only argument on appeal is that Corizon’s reasons for her termination were

pretextual. Although she mentions Corizon’s alleged retaliation against her for

filing EEOC charges in her “undisputed facts,” she provides no explicit argument

as to how her termination was causally connected to her EEOC charges.

Therefore, she has abandoned any challenge she may have had to the district

court’s grant of summary judgment on her Title VI and § 1981 claims. See

Carmichael, 572 F.3d at 1292; Greenbriar, 881 F.2d at 1573 n.6.

      But even if Godwin’s argument on appeal is deemed sufficient to preserve

her Title VII and § 1981 claims, summary judgment was proper. Godwin did not

establish a prima facie case of Title VII or § 1981 retaliation because she failed to

demonstrate that the decision to terminate her was causally connected to the EEOC


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charges she lodged against Corizon in the past. Although Godwin filed an EEOC

charge against Corizon in March 2014 and was terminated only one month later, in

April 2014, it was undisputed that the decisionmakers, Gibson and Baugh, made

their recommendation to terminate Godwin in February 2014. Thus, despite the

close proximity in events, Godwin’s March 2014 EEOC charge was unrelated to

her termination since it was filed after Corizon had made its decision to terminate

Godwin’s employment. See Cotton, 434 F.3d at 1233. As for Godwin’s 2012

EEOC charge, it was too remote in time to establish a causal connection on its

own, and to the extent she provided additional evidence to bolster her showing of

causality, it was insufficient to create a genuine issue for trial. See Anderson, 477

U.S. at 249-50; Thomas, 506 F.3d at 1363-64. Further, even if Godwin had met

the initial burden of establishing a prima facie case in her Title VII and § 1981

claims, she failed to discharge her ultimate burden of demonstrating that Corizon’s

proffered reasons for her termination -- her failure to perform a medical assessment

of an inmate in accordance with Corizon’s policies, and subsequent falsification of

medical records to cover up this fact -- were pretexts for retaliation, as we’ve

already discussed. See Hicks, 509 U.S. at 515-16; Brown, 597 F.3d at 1181.

      In short, the district court did not err in granting summary judgment in favor

of Corizon on Godwin’s FMLA, Title VII and § 1981 retaliation claims, and we

affirm.


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AFFIRMED.




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