                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 09-13150                 ELEVENTH CIRCUIT
                                                             FEBRUARY 24, 2010
                           Non-Argument Calendar
                                                                 JOHN LEY
                         ________________________
                                                                  CLERK

                     D. C. Docket No. 07-22074-CV-JAL

LUZ DIAZ,


                                                              Plaintiff-Appellant,

                                    versus

TRANSATLANTIC BANK,

                                                            Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                              (February 24, 2010)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Luz Diaz appeals the district court’s grant of summary judgment in favor of
her former employer, Transatlantic Bank. Diaz filed suit against Transatlantic for:

(1) interference and retaliation under the Family and Medical Leave Act of 1993

(“FMLA”), 29 U.S.C. §§ 2615 and 2617; and (2) discrimination and retaliation

claims under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§

12112(a) and 12203(a). The district court granted summary judgment on all

claims. Diaz also appeals the district court’s denial of her motion to alter or amend

the judgment. Viewing all facts and inferences in favor of Diaz, we find that the

district court properly granted Transatlantic’s motion for summary judgment.

Further, we find that the district court did not abuse its discretion in denying Diaz’s

motion to alter or amend the judgment.

                                           I.

      Diaz was employed by Transatlantic as a bank teller for several years. Diaz

took FMLA leave on September 11, 2006, due to a severe knee injury.

Transatlantic requested documentation and medical updates concerning Diaz’s

condition during the period of FMLA leave, and Diaz complied. Her injury

prevented her from climbing into the high chairs used by bank tellers. Diaz

informed Transatlantic that she was willing to work at any other position that did

not require her to climb into one of the high chairs.

      Diaz’s FMLA leave expired on December 11, 2006. Transatlantic’s policy



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required medical clearance prior to any employee returning to work from FMLA

leave. Diaz submitted a long-term disabilities claim on December 4, 2006. In

support of this claim, Diaz attached a statement form from her physician. The

physician stated that Diaz could return to work in six to eight weeks and went on to

describe the limitations created by her injury. Diaz’s doctors would not clear her

to work until she received an MRI that was scheduled for January 3, 2007. Thus,

Diaz did not provide medical clearance and did not return to work on December

11, 2006. This resulted in Diaz’s dismissal from Transatlantic.

      The district court granted Transatlantic’s motion for summary judgment

finding that Diaz failed to demonstrate that her physician cleared her to return to

work, and thus Transatlantic was not liable for dismissing her. The district court

also found that Diaz’s retaliation claim failed because her failure to provide

medical clearance to return to work was a legitimate non-discriminatory reason for

dismissing her. In addressing Diaz’s ADA claims, the district court found that she

was not disabled at the time of the alleged discriminatory action by Transatlantic.

Finally, the district court denied Diaz’s motion to alter or amend judgment

pursuant to Federal Rule of Civil Procedure 59(e).

                                          II.

A.    The District Court Properly Granted Summary Judgment to Transatlantic



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

the record and drawing all inferences in favor of the non-moving party. Martin v.

Brevard County Pub. Sch., 543 F.3d 1261, 1265 (11th Cir. 2008). Summary

judgment is proper “if the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c)(2). “A party moving for summary judgment has the burden of showing that

there is no genuine issue of fact.” Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th

Cir. 1990) (quotation omitted). “A party opposing a properly submitted motion for

summary judgment may not rest upon mere allegations or denials of his pleadings,

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

(quotation omitted). “All evidence and reasonable factual inferences therefrom

must be viewed against the party seeking summary judgment.” Id.

      1.     Transatlantic Did Not Interfere with Diaz’s FMLA Rights

      An employer commits FMLA interference by denying a benefit that an

employee is entitled to under the FMLA. Martin, 543 F.3d at 1266–67. An

employee who takes FMLA leave is entitled “‘to be restored by the employer to the

position of employment held by the employee when the leave commenced’ or to an

equivalent position.” Id. at 1267 (quoting 29 U.S.C. § 2614(a)(1)(A)). “An



                                           4
employee has no greater right to . . . benefits and conditions of employment than if

the employee had been continuously employed during the FMLA leave period.”

29 C.F.R. § 825.216(a).

      If the employee is unable to perform an essential function of the
      position because of a physical or mental condition, including the
      continuation of a serious health condition . . . the employee has no
      right to restoration to another position under the FMLA. The
      employer’s obligations may, however, be governed by the Americans
      with Disabilities Act (ADA), as amended.


29 C.F.R. § 825.216(c). “As a condition of restoration . . ., the employer may have

a uniformly applied practice or policy that requires each such employee to receive

certification from the health care provider of the employee that the employee is

able to resume work.” 29 U.S.C. § 2614(a)(4).

      In support of her FMLA interference claim, Diaz argues that the district

court made improper inferences from the evidence and did not consider the

medical evidence as a whole. Diaz asserts that the statements of her physician in

the December 4, 2006 disability application medically cleared her to resume work.

Diaz emphasizes that the physician’s statement detailed the tasks that Diaz could

complete, which included every task of the teller position other than sitting on the

high chair. Diaz asserts that the district court improperly determined facts by

refusing to consider this statement. Additionally, Diaz argues that Transatlantic



                                          5
interfered with Diaz’s return to work by changing medical insurance and refusing

to help Diaz navigate the insurance coverage to obtain a timely MRI.

      There is no evidence that Diaz ever provided Transatlantic with medical

clearance from a doctor that would allow her to return to work. The December 4,

2006 disability form cannot be construed as medical clearance for the simple

reason that the form itself stated that Diaz would not be able to return to work for

six to eight weeks. This is the very opposite of medical clearance. Further, we

agree with the district court that it is unreasonable to ask Transatlantic to determine

that Diaz was able to return to work on the basis of a statement contained in an

application for disability benefits.

      As for Diaz’s claim that Transatlantic refused to help her schedule an MRI,

we find no merit. Diaz was, or should have been, aware of the amount of time she

was afforded under FMLA. Transatlantic was not required to help Diaz schedule

medical appointments or manage her insurance coverage. Furthermore,

Transatlantic was not required to extend FMLA leave by nearly a month for Diaz

to obtain an MRI.

      Transatlantic did not interfere with Diaz’s FMLA rights because

Transatlantic was permitted to require medical clearance for Diaz to return to work.

Further, Transatlantic did not treat Diaz differently than other employees when it



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changed its health insurance provider.

      2.     Diaz’s Allegations Did Not Establish a Claim for Retaliation

      In support of her FMLA retaliation claim, Diaz argues that the district court

erroneously failed to consider adverse actions taken by Transatlantic before it fired

her. Diaz claims Transatlantic: (1) refused to consider her for other positions; (2)

unreasonably requested medical evidence; and (3) refused to provide medical

benefits during the change in health insurance providers.

      “To establish a prima facie case of retaliation, a plaintiff must show that he

engaged in statutorily protected conduct, he suffered adverse action, and there is a

causal connection between the protected conduct and the adverse action.” Smith v.

BellSouth Telecomms., Inc., 273 F.3d 1303, 1314 (11th Cir. 2001) (citation

omitted). “If the alleged statement suggests, but does not prove, a discriminatory

motive, then it is considered circumstantial evidence.” Akouri v. Fla. Dept. of

Transp., 408 F.3d 1338, 1347 (11th Cir. 2005).

      If the plaintiff establishes a prima facie case, the burden of production shifts

to the employer to articulate a legitimate, non-discriminatory reason for the

challenged action. See EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272

(11th Cir. 2002). Where the employer meets its burden, “the plaintiff must

introduce significantly probative evidence showing that the asserted reason is



                                          7
merely a pretext for discrimination” to avoid summary judgment. Brooks v.

County Comm’n of Jefferson County, 446 F.3d 1160, 1163 (11th Cir. 2006)

(quotation omitted). A plaintiff may show pretext “either directly by persuading

the court that a discriminatory reason more likely motivated the employer or

indirectly by showing that the employer’s proffered explanation is unworthy of

credence.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct.

1089, 1095 (1981). A plaintiff may point to “weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions” in the employer’s proffered

reason. Brooks, 446 F.3d at 1163 (citation omitted). However, a plaintiff cannot

merely quarrel with the wisdom of the employer’s reason, but “must meet the

reason head on and rebut it.” Chapman v. AI Transport, 229 F.3d 1012, 1030

(11th Cir. 2000) (en banc).

      Even assuming Diaz established a prima facie case of FMLA retaliation, she

did not raise a genuine issue of material fact to show that Transatlantic’s legitimate

non-discriminatory reason for dismissing her was a pretext. Diaz did not provide

Transatlantic with medical clearance. Transatlantic dismissed her because she was

unable to return to work at the end of her FMLA leave without medical clearance.

      Diaz has not provided any evidence or any reasonable argument as to why

we should view this reason for dismissal as pretext. Despite the fact that



                                           8
Transatlantic did not have an obligation to place Diaz in a different position, the

evidence shows that there were not any other positions available at Transatlantic at

the end of her FMLA leave. Transatlantic’s requests for updates of Diaz’s medical

status were not unreasonable, and Diaz has provided no basis for us to conclude

that these requests were pretext for discrimination. Finally, Transatlantic’s change

of the employees’ medical insurance was a uniform switch for all employees. Diaz

has not shown any reason for us to conclude that any of these actions by

Transatlantic were a pretext for discrimination.

      3.     Diaz’s Allegations Did Not Present a Claim Under the ADA

      Turning to her ADA claims, Diaz argues that the medical evidence, taken as

a whole, shows that she was disabled. Diaz maintains that the district court erred

by finding that her condition was temporary because the most recent medical

evidence showed that her condition is permanent and long term. Acknowledging

that the new medical evidence cannot stand alone to show her disability because it

was not available when Transatlantic fired her, Diaz argues that the new medical

evidence corroborates the evidence provided to Transatlantic and shows that she

suffered a disability. Additionally, Diaz maintains that her supervisor’s attitude

towards her showed that Transatlantic regarded her as disabled. Diaz argues that

the same conduct that showed retaliation for her FMLA claims showed that her



                                           9
dismissal was in retaliation for her request for reasonable accommodation under

the ADA.

      The ADA provides that “[n]o person shall discriminate against any

individual because such individual has opposed any act or practice made unlawful

by [the ADA] or because such individual made a charge . . . under [the ADA].” 42

U.S.C. § 12203(a).

      This provision creates a prohibition on retaliation under the ADA that
      is similar to Title VII’s prohibition on retaliation. Accordingly, we
      assess ADA retaliation claims under the same framework [employed]
      for retaliation claims arising under Title VII. To establish a prima
      facie case of retaliation, a plaintiff must show: (1) statutorily protected
      expression; (2) adverse employment action; and (3) a causal link
      between the protected expression and the adverse action.

Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir.

1997) (citations omitted).

      The ADA prohibits discrimination against a disabled individual in regard to

employment matters. 42 U.S.C. § 12112(a). In order to prove a prima facie case

of employment discrimination under the ADA, the plaintiff must show that:

“(1) she has a disability; (2) she is a qualified individual; and (3) she was subjected

to unlawful discrimination because of her disability.” Morisky v. Broward County,

80 F.3d 445, 447 (11th Cir. 1996). “A severe limitation that is short term and

temporary is not evidence of a disability.” Garret v. Univ. of Ala. at Birmingham



                                           10
Bd. of Trs., 507 F.3d 1306, 1315 (11th Cir. 2007) (interpreting the definition of

disability under the Rehabilitation Act); see Allmond v. Akal Sec., Inc., 558 F.3d

1312, 1316 n.3 (11th Cir. 2009) (holding that the Rehabilitation Act and the ADA

apply the “same standards” and may be used “interchangeably”). An individual

qualifies as disabled if she is “regarded as having [a disabling] impairment.” 42

U.S.C. § 12102(3)(A).

      A qualified individual is unlawfully discriminated against if the employer

does not reasonably accommodate the disability. 42 U.S.C. § 12112(b)(5)(A);

D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1225–26 (11th Cir. 2005).

Reasonable accommodations may include “reassignment to a vacant position,

acquisition or modification of equipment or devices, . . . and other similar

accommodations.” 42 U.S.C. § 12111(9)(B). An employer is not required to

reasonably accommodate an employee by creating a new position. Terrell v.

USAir, 132 F.3d 621, 626–27 (11th Cir. 1998).

      Diaz has not shown that she was disabled when she was dismissed by

Transatlantic, thus the district court properly granted Transatlantic summary

judgment on her ADA claim. See 42 U.S.C. § 12102(1) (a person is considered

disabled under the ADA if: (1) a major life activity is substantially limited by the

impairment; (2) there is a record of impairment; or (3) the person is regarded by



                                          11
the employer as having an impairment). Diaz cannot maintain a claim of ADA

discrimination if she was not disabled at the time of the alleged discriminatory act.

She did not show that one or more of her major life activities has been limited. She

did not have a record of impairment, and there is no evidence to support that Diaz

was at any time treated by Transatlantic as having an impairment. Moreover, even

assuming Diaz established a prima facie case of ADA retaliation, she did not raise

a genuine issue of material fact to show that Transatlantic’s legitimate, non-

discriminatory reason for firing her was a pretext.

B.    The District Court Did Not Abuse Its Discretion in Denying Diaz’s Motion
      to Amend Judgment

      Diaz argues that the district court erroneously denied her Rule 59(e) motion

because she cited facts that were misinterpreted and overlooked by the court. We

review a district court’s denial of a motion to amend judgment for abuse of

discretion. Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009).

      The district court did not abuse its discretion by denying Diaz’s motion to

alter or amend the judgment because the district court correctly resolved

Transatlantic’s summary judgment motion. Accordingly, we affirm the district

court’s grant of summary judgment to Transatlantic.

      AFFIRMED.




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