          Case: 14-10570   Date Filed: 10/23/2014   Page: 1 of 12


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-10570
                      ________________________

                  D.C. Docket No. 4:12-cv-00255-HLM



MELISSA COLEMAN,

                                                     Plaintiff-Appellant,

                              versus

REDMOND PARK HOSPITAL, LLC,

                                                     Defendant-Appellee,

REDMOND HOSPITAL SERVICES, LLC, et al.,

                                                     Defendants.

                      ________________________

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

                           (October 23, 2014)
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Before WILSON and ROSENBAUM, Circuit Judges, and HUCK, * District Judge.



PER CURIAM:

       Melissa Coleman appeals the district court’s grant of summary judgment on

her claim that Redmond Park Hospital, LLC (Redmond) retaliated against her

when it chose not to rehire her after learning that she had taken FMLA leave

during her intervening employment, in violation of the Family and Medical Leave

Act (FMLA), 29 U.S.C. §§ 2601–2654.1 Coleman worked as a registered nurse in

the intensive care unit (ICU) at Redmond from 2004 until 2010, when she

voluntarily transferred to another hospital in the same corporate family as

Redmond. In 2012, after being terminated while on FMLA leave from the

hospital to which she had transferred, Coleman applied for several ICU nurse

positions at Redmond, but she was not interviewed for any of them.

       Matthew Forrester, clinical nursing recruiter for Redmond, received and

reviewed Coleman’s application. Forrester spoke with Coleman over the telephone

regarding her application. During their conversation, Forrester and Coleman

discussed her application, her previous employment with Redmond, and her

       *
          Honorable Paul C. Huck, Senior United States District Judge for the Southern District
of Florida, sitting by designation.
        1
          Coleman’s initial complaint also named Redmond Hospital Services, LLC and Central
Florida Regional Hospital, Inc. as defendants, but her claims as to them were dismissed without
prejudice upon a joint motion of the parties. Her amended complaint also raised claims against
Redmond under the Americans with Disabilities Act, the dismissal of which she does not
challenge on appeal.
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termination from the hospital to which she transferred while on FMLA leave.

During discovery, Forrester testified that soon after speaking with Coleman, he

received a voicemail from her in which she used profanity, was upset and crying,

and raised her voice. No record of this voicemail was kept. As a result of this

voicemail, Forrester testified that he rejected Coleman’s candidacy. Coleman, on

the other hand, testified that her voicemail was not profanity-laced and

unprofessional; rather, Coleman claimed she only requested a status update on her

application and asked that Forrester call her back. According to Coleman,

Forrester, on behalf of Redmond, rejected her candidacy upon learning that she

took FMLA leave while employed at the hospital to which she transferred.

      Coleman quarrels with the district court’s findings below. Coleman

challenges the district court’s ruling that she waived the argument that she

established a factual dispute about the contents of Redmond’s proffered voicemail

because she failed to first present that argument to the magistrate judge. Coleman

also argues that the district court erred in determining that she failed to make a

sufficient evidentiary showing on the issue of pretext. She contends that her

testimony about the pertinent voicemail directly contradicted Forrester’s testimony

about it. In addition, Forrester’s testimony revealed that his notes from the

telephone conversation contained two notations regarding her prior use of FMLA

leave. Furthermore, there was no mention of the allegedly unprofessional


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voicemail in Redmond’s computer system, and Redmond rejected her candidacy

on the same day Forrester learned Coleman had taken FMLA leave at her last job.

      Redmond also challenges the district court’s findings below. Redmond

argues that the district court erred in deciding that Coleman established a prima

facie case of retaliation because the statutory language of the FMLA anti-

retaliation provision requires that an individual first oppose a practice made

unlawful by the FMLA. See 29 U.S.C. § 2615(a)(2). It contends that the

Department of Labor’s implementing regulation clarified that individuals “are

protected from retaliation for opposing (e.g. filing a complaint about) any practice

which is unlawful under the [FMLA].” See 29 C.F.R. § 825.220(e). Redmond also

argues for the first time on appeal that we should require Coleman to prove that

illegal retaliation was the “but-for” cause of her non-rehire. Redmond

acknowledges that, in the FMLA context, neither the Supreme Court nor this Court

has required plaintiffs to prove that illegal retaliation was the “but-for” cause of the

adverse employment actions suffered.

                                           I.

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

the same legal standard used by the district court. Johnson v. Bd. of Regents of

Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir. 2001). We draw all factual

inferences in the light most favorable to the non-moving party. Id. at 1242–43.


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We also review questions of law, including statutory interpretation, de novo. Smith

v. BellSouth Telecomms., Inc., 273 F.3d 1303, 1305 (11th Cir. 2001). Summary

judgment is only appropriate where “there is no genuine dispute as to any material

fact.” Fed. R. Civ. P. 56(a).

      As an initial matter, we decline to address Redmond’s argument that we

should require Coleman to prove that her FMLA leave was the “but-for” cause of

its decision not to rehire her, given the posture of the case and the fact that the

argument was not raised below. See Fed. R. App. P. 28; see also Doe v. Moore,

410 F.3d 1337, 1349 n.10 (11th Cir. 2005). This argument is more appropriately

addressed in the context of trial.

      We now turn to the arguments that are properly before us on appeal.

                                           II.

      We begin by disposing of Redmond’s argument that the district court

applied the wrong standard for determining whether Coleman established a prima

facie case of retaliation under the FMLA. The FMLA grants private employees

periods of leave for certain family or health-related events. See 29 U.S.C. §§

2601–2654. It prohibits interference or retaliation against an employee for

exercising rights under the Act. Specifically, it provides:

             It shall be unlawful for any employer to interfere with, restrain,
             or deny the exercise of or the attempt to exercise, any right
             provided under this subchapter…


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             It shall be unlawful for any employer to discharge or in any
             other manner discriminate against any individual for opposing
             any practice made unlawful by this subchapter.

Id. § 2615(a)(1), (2). The enforcement provision of the FMLA provides that any

employee may sue her employer for damages or equitable relief, for or on behalf of

the employee or other employees similarly situated. See id. § 2617(a)(2). By

regulation, the Department of Labor has also explained:

      The [FMLA’s] prohibition against interference prohibits an employer
      from discriminating or retaliating against an employee or prospective
      employee for having exercised or attempted to exercise FMLA rights.
      . . . [E]mployers cannot use the taking of FMLA leave as a negative
      factor in employment actions, such as hiring . . . .

29 C.F.R. § 825.220(c). In the same regulation, the Department of Labor extends

FMLA protection from retaliation to individuals, not merely employees, who

oppose (e.g., file a complaint about) any practice which is unlawful under the

FMLA. See id. § 825.220(e).

       In Smith, we held that a former employee who alleges that his former

employer refused to rehire him based on his past use of FMLA leave qualifies as

an “employee” under the enforcement provision of the FMLA. Smith, 273 F.3d at

1306–07. We explained, “[i]f [a plaintiff] proves that his past use of FMLA leave

was a motivating factor in [the employer’s] refusal to rehire him, this is precisely

the type of discrimination that the FMLA seeks to prohibit.” Id. at 1314. Noting

that the plaintiff in Smith had framed his claim as one of “retaliation,” we also


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explained, “[w]hile the FMLA uses the language of interference, restraint, denial,

discharge, and discrimination, not retaliation, nomenclature counts less than

substance. And the substance of the FMLA is that an employer may not do bad

things to an employee who has exercised or attempted to exercise any rights under

the statute.” Id. at 1313 (alterations omitted) (internal quotation marks omitted).

      Redmond’s argument that the district court applied the wrong standard for

determining whether Coleman established a prima facie case of retaliation under

the FMLA is supported neither by our precedent nor by the text of the Department

of Labor’s implementing regulations. In Smith, we held that the FMLA provides a

right of action to a former employee who was not rehired by his former employer

because he took FMLA leave in the past. Id. at 1307. In reversing summary

judgment for the defendant, we did not require the plaintiff to demonstrate that he

had opposed unlawful conduct by the employer before filing his FMLA complaint.

See id. at 1314. For these reasons, we reject Redmond’s argument.

                                         III.

      Next, we conclude that the district court erred in finding that Coleman

waived any factual dispute as to the contents of Redmond’s proffered voicemail.

A district court has discretion to decline to consider a party’s argument when the

argument was not first presented to the magistrate judge. Williams v. McNeil, 557

F.3d 1287, 1291–92 (11th Cir. 2009). Accordingly, we review for abuse of


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discretion a district court’s decision to consider waived an argument that was not

first presented to the magistrate judge. See id.; see also Stephens v. Tolbert, 471

F.3d 1173, 1175 (11th Cir. 2006) (per curiam) (“We review for abuse of discretion

the treatment by a district court of a report and recommendation of a magistrate

judge.”).

      While Coleman argued in her memorandum in opposition to summary

judgment that she did not leave a voicemail for Forrester on March 14, 2012, the

question of whether a voicemail existed subsumes whether its content was profane.

In his report and recommendation, the magistrate judge clearly acknowledged that

there was a factual dispute regarding the content of the voicemail that Redmond

alleged was unprofessional. The magistrate judge also recognized that Coleman

was bound by her response to Redmond’s Rule 36 request for admission, wherein

Coleman admitted that she left a voicemail for Forrester within twenty-four hours

of their phone conversation. The magistrate judge noted the existence of a dispute

as to the timing of the message, but concluded that the relevant matter was its

substance, not its timing. As we see it, the record establishes that Coleman

presented this argument to the magistrate judge, and, therefore, the district court

abused its discretion in ruling that Coleman waived her argument.




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                                         IV.

      Finally, we conclude that the existence of a factual dispute concerning the

content of the disputed voicemail renders summary judgment in favor of Redmond

improper. We have held that, to establish a prima facie retaliation claim under the

FMLA, a plaintiff must demonstrate that: (1) she engaged in protected conduct

under the FMLA; (2) she suffered an adverse employment action; and (3) there is a

causal connection between the protected conduct and the adverse employment

action. Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1234 (11th Cir. 2010).

Ultimately, “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) (per curiam) (internal quotation marks omitted).

      Where, as here, a plaintiff attempts to prove retaliatory intent or

discriminatory animus by circumstantial evidence, the claim is subject to the

methods of proof for Title VII claims set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802–04, 93 S. Ct. 1817, 1824–25 (1973). See Strickland v.

Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001).

Accordingly, the plaintiff bears the initial burden of presenting sufficient evidence

to allow a reasonable jury to determine that she has satisfied the elements of her

prima facie case. See McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. If


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the plaintiff establishes a prima facie case, the burden shifts to the defendant to

articulate a legitimate, non-retaliatory reason for the adverse employment action.

See id. If articulated, the plaintiff must show that the defendant’s reason was, in

fact, pretextual. See id. at 804, 93 S. Ct. at 1825.

      If the defendant’s proffered reason is one that might motivate a reasonable

employer to take the same action, the plaintiff “must meet that reason head on and

rebut it.” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).

However, we have emphasized that, where the plaintiff establishes a prima facie

case and offers evidence to undermine the employer’s proffered legitimate reason,

she need not produce direct evidence of employment discrimination. See Muñoz v.

Oceanside Resorts, Inc., 223 F.3d 1340, 1346 (11th Cir. 2000) (addressing a claim

under the Age Discrimination and Employment Act).

       To be clear, we agree with the district court’s finding that Coleman

established a prima facie case of FMLA retaliation. The same is true regarding the

district court’s finding that Redmond articulated a legitimate, non-retaliatory

reason for rejecting Coleman’s candidacy for employment—the alleged

unprofessional voicemail. However, contrary to the district court’s finding, we

believe that Coleman has offered sufficient factual evidence to undermine

Redmond’s proffered legitimate reason for rejecting her candidacy for

employment.


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      In her memorandum in opposition to summary judgment, Coleman argued

that she disputed that she left Forrester a voicemail on the same day as their

conversation and that she had ever left him a voicemail that contained profanity or

was otherwise unprofessional. Coleman also incorporated—in her attached

statement of material facts and in her deposition—her testimony concerning the

content of the voicemail that she left for Forrester (which she had acknowledged in

her deposition may have occurred within twenty-four hours of her phone

conversation with Forrester), which contradicted Forrester’s account of the

disputed voicemail. Coleman’s version was consistent with a follow-up call

requesting a status update regarding her pending application, while Forrester’s

version of the disputed voicemail was consistent with that of a follow-up call from

a frustrated, upset, and unprofessional applicant. Without the actual recording of

the disputed voicemail, Coleman’s claim depends on which version of the disputed

voicemail a jury would believe.

      The record establishes that the parties’ accounts of the voicemail were in

direct contradiction. Given the factual dispute regarding the content of the

voicemail—Redmond’s sole reason for not rehiring Coleman— summary

judgment for Redmond was inappropriate. Therefore, we reverse the district

court’s grant of summary judgment for Redmond on Coleman’s FMLA retaliation

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


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REVERSED AND REMANDED.




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