                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                         ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                            November 16, 2005
                               No. 05-13287
                                                           THOMAS K. KAHN
                           Non-Argument Calendar               CLERK
                         ________________________

                     D. C. Docket No. 04-60353-CV-FAM


JASON GAMBA,
                                                       Plaintiff-Appellant,

                                    versus

CITY OF SUNRISE, a municipal corporation,

                                                       Defendant-Appellee,

ROBERT MISITI, Captain, et al, individuals,
                                                       Defendants.


                         ________________________

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

                             (November 16, 2005)

Before BLACK, PRYOR and HILL, Circuit Judges.
PER CURIAM:

      Jason Gamba brought this action claiming that the City of Sunrise (the

“City”) unlawfully terminated and retaliated against him in violation of the Family

and Medical Leave Act of 1993, 29 U.S.C. § 2614(a)(1) (the “FMLA”). Gamba

was a probationary police officer for the City, but was terminated for failing to

complete his probationary period satisfactorily. Gamba contends that his

termination was in retaliation for having requested leave under the FMLA.

      The FMLA does not insulate an employee who has requested medical leave

from being terminated for poor performance. So long as the employer would have

taken the same action it did regardless of the request for leave, there is no statutory

violation. Strickland v. Water Works and Sewer Bd. of the City of Birmingham,

239 F.3d 1199 (11 th Cir. 2001). Although Gamba contends his termination was in

retaliation for having requested leave under FMLA, the City’s position that he was

terminated after numerous documented instances of unsatisfactory job performance

is well-supported by the record. Gamba was given, and does not dispute that he

received, several written notices of problems in his job performance during his

probationary period.

      The district court noted that Gamba “produced virtually no evidence in

response” except to point to the temporal relationship between the leave request



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and his termination. Where the employer produces significant evidence of the

employee’s poor performance, it is not enough that the request for leave and the

termination are closely related in time. Wascura v. City of South Miami, 257 F.3d

1238, 1248 (11 th Cir. 2001) (affirming summary judgment for employer where

employee presented virtually no evidence, other than temporal proximity of the

events).

      Having carefully reviewed the briefs and the record, and finding no error in

the district court’s order granting summary judgment, we conclude that the

judgment is due to be

      AFFIRMED.




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