                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                        FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                              JUNE 23, 2010
                                No. 09-16499                   JOHN LEY
                            Non-Argument Calendar                CLERK
                          ________________________

                       D. C. Docket No. 09-00136-CV-IPJ

LYNN M. FOSHEE,


                                                              Plaintiff-Appellant,

                                      versus

ASCENSION HEALTH - IS, INC.,
d.b.a. St. Vincent's Health System,

                                                             Defendant-Appellee.


                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                         _________________________

                                 (June 23, 2010)

Before DUBINA, Chief Judge, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

      Appellant Lynn M. Foshee appeals the district court’s grant of summary
judgment in favor of Ascension Health - IS, Inc. (“Ascension Health”) in her

retaliation suit under the FMLA, 29 U.S.C. § 2615(a). Foshee argues that she met

her burden of establishing a prima facie case under the McDonnell Douglas1

framework. She contends that the “materially adverse effect” standard should

apply to her FMLA retaliation claim.2 She argues that under this standard, the

behavioral agreement, Ascension Health’s refusal to discuss accommodations with

her, and her constructive discharge were adverse employment decisions.

       “We review de novo the district court’s order granting summary judgment.”

Little v. United Technologies, Carrier Transicold Div., 103 F.3d 956, 959 (11th

Cir. 1997). Summary judgment should be granted where there is no genuine issue

of material fact. Fed.R.Civ.P. 56(c). Thus, where the record as a whole could not

lead a rational trier of fact to find for the nonmoving party, there is no genuine

issue of fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587, 106 S. Ct. 1348, 1356 (1986). The record and all of its inferences should

be viewed in the light most favorable to the nonmoving party. Id. at 587-88, 106

S. Ct. at 1356. However, a “party opposing a properly supported motion for

summary judgment may not rest upon mere allegation or denials of his pleading,


       1
           McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817.
       2
       See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 70-71, 126 S. Ct. 2405,
2416-17 (2006).

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but must set forth specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514 (1986).

      To succeed under a theory of FMLA retaliation, Foshee must show that

Ascension Health intentionally “discriminated against [her] because [s]he engaged

in activity protected by the Act.” Strickland v. Water Works & Sewer Bd. of

Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001). When the plaintiff does not

offer direct evidence of the employer’s retaliatory intent, we employ the

McDonnell Douglas burden-shifting framework. Schaaf v. Smithkline Beecham

Corp., 602 F.3d 1236, 1243 (11th Cir. 2010). Under this framework, the “plaintiff

must first establish a prima facie case by demonstrating (1) she engaged in

statutorily protected activity, (2) she suffered an adverse employment decision, and

(3) the decision was causally related to the protected activity.” Id.

      Prior to Burlington Northern, we held that in order to show an adverse

employment action, “an employee must show a serious and material change in the

terms, conditions, or privileges of employment.” See, e.g., Davis v. Town of Lake

Park, 245 F.3d 1232, 1239 (11th Cir. 2001) (addressing a Title VII discrimination

claim). However, we have not addressed whether the “materially adverse effect”

standard articulated in Burlington Northern should apply to claims of FMLA

retaliation. See Schaaf, 602 F.3d at 1243-44 (articulating the traditional “adverse



                                            3
employment decision” language when describing the plaintiff’s prima facie

burden, then holding that even assuming the plaintiff could establish a prima facie

case, she could not establish pretext). However, it is unnecessary for us to decide

whether Burlington Northern applies in FMLA retaliation cases in order to dispose

of this appeal because even if the broader Burlington Northern standard applies,

Foshee still cannot show that any of Ascension Health’s actions had a materially

adverse effect on her. See Crawford v. Carroll, 529 F.3d 961, 973-74 (11th Cir.

2008) (noting that the Burlington Northern standard is broader than the previously

applicable “adverse employment action” standard).

A.    Constructive Discharge

      Foshee argues that summary judgment is inappropriate because a jury should

determine what constitutes intolerable working conditions sufficient to amount to

constructive discharge. She argues that the company’s posting of her position

combined with the company’s refusals to meet with her were sufficiently

suggestive that she was being terminated.

      An employee has been constructively discharged when her employer

“imposes working conditions that are so intolerable that a reasonable person in the

employee’s position would have been compelled to resign.” Fitz v. Pugmire

Lincoln-Mercury, Inc., 348 F.3d 974, 977 (11th Cir. 2003) (internal quotation



                                            4
marks & alterations omitted). We have held that “[m]ere suspicion of an

unsubstantiated plot is not an intolerable employment condition.” Id. at 978. We

also have said that “[p]art of an employee’s obligation to be reasonable is an

obligation not to assume the worst, and not to jump to conclusions too fast.”

Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987).

      We conclude from the record that Foshee cannot establish constructive

discharge because her mere suspicion of a plot against her is insufficient to support

a claim of constructive discharge. Moreover, a reasonable person in Foshee’s

position would not have felt compelled to resign as a result of the company posting

her position as available.

B.    Other employment actions

      Foshee points out two other actions that the district court refused to

consider, which she contends satisfy the second prong of her prima facie case.

First, Foshee contends that the counseling sessions and the behavioral agreement

she was forced to sign constitute adverse employment actions under Burlington

Northern because the sessions and the agreement were materially adverse in that

they placed her closer to termination and increased her stress level. Second, she

argues that it should be for a jury to decide whether Ascension Health’s refusal to

communicate with her or to consider accommodating her, as they had done prior to



                                          5
her FMLA leave, was an adverse employment action under the Burlington

Northern standard because her supervisor knew that her physician would not

release her to return to work until after she met with Ascension Health.

      The materiality of the alleged adverse action is judged by an objective

standard. See Burlington Northern, 548 U.S. at 68, 126 S. Ct. at 2415 (explaining

that a materially adverse action is one that “well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination”) (internal quotation

marks omitted). However, we have stated that Burlington Northern “strongly

suggests that it is for a jury to decide whether anything more than the most petty

and trivial actions against an employee should be considered ‘materially adverse’

to [her] and thus constitute adverse employment actions.” Crawford, 529 F.3d at

973 n.13 (citing Burlington Northern, 548 U.S. at 71-73, 126 S. Ct. at 2417).

      Ascension Health’s actions did not have a materially adverse effect upon

Foshee. First, because Foshee did not submit the behavioral agreement to the

district court, account for its absence, or even attempt to detail its contents, the

record before us is inadequate to review whether the behavioral agreement is

anything more than the most petty and trivial of actions. Foshee did not meet her

burden of establishing that there is a genuine issue for trial. Second, Poe’s refusals

to talk with Foshee about potential accommodations while she was out on leave are



                                            6
likewise not sufficiently material to be an adverse employment action. Foshee’s

emails do not clearly indicate that Foshee’s doctor would not clear her for a return

to work in any capacity until she met with someone from Ascension Health, and

Poe’s response did not foreclose an attempt to accommodate Foshee upon her

return to work. An objectively reasonable person would not consider Poe’s

response materially adverse.

      Finally, even when viewed collectively, we conclude that these actions are

not sufficiently material that an objectively reasonable person would consider them

materially adverse. Because Foshee has failed to establish that any of Ascension

Health’s actions had a materially adverse effect on her, she has not met her burden

of establishing a prima facie case. Accordingly, we affirm the district court’s grant

of summary judgment in favor of Ascension Health.

      AFFIRMED.




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