[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
___________________________ FILED
U.S. COURT OF APPEALS
No. 09-12512 ELEVENTH CIRCUIT
____________________________ APRIL 5, 2010
JOHN LEY
D.C. Docket No. 07-02330-CV-T-30-TGW CLERK
BETSY KRUTZIG,
Plaintiff-Appellant,
versus
PULTE HOME CORPORATION
d.b.a. Pulte Homes,
Defendant-Appellee.
____________________________
Appeal from the United States District Court
for the Middle District of Florida
_____________________________
(April 5, 2010)
Before DUBINA, Chief Judge, KRAVITCH, Circuit Judge, and ALBRITTON,*
District Judge.
*
Honorable W. Harold Albritton, United States District Judge for the Middle District of
Alabama, sitting by designation.
ALBRITTON, District Judge:
This case presents an appeal by Betsy Krutzig of a grant of summary
judgment in favor of Pulte Home Corporation d/b/a Pulte Homes (“Pulte”).
Krutzig was terminated from her employment with Pulte and claims that her
termination was an act of retaliation and interference with her rights under the
Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq.; and interference
with her rights under the Employee Retirement Income Security Act (“ERISA”),
29 U.S.C. § 1001, et seq. For the reasons set forth below, we affirm the district
court’s entry of summary judgment in favor of Pulte.
I. BACKGROUND
Krutzig was hired by Pulte in January of 2005, as a sales associate selling
homes in housing developments in Sarasota, Florida. Her immediate supervisor
was Janet Parsons. In June 2007, Krutzig fell and injured her foot. She did not
initially request any leave from work at Pulte as a result of this injury.
In July 2007, Krutzig received two written warnings from Parsons and was
placed on a 30-day performance improvement plan.
On Friday, August 17, 2007, Krutzig contacted Jessica Hernandez-Parkman,
a human resources representative for Pulte who was located in Estero, Florida and
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supervised by Kathy McQuire, and requested FMLA leave for a period of time
during which she was scheduled to have surgery on her foot. Hernandez-Parkman
sent forms relevant to medical leave by facsimile to Krutzig’s office in Sarasota,
Florida, and also provided contact information so that Krutzig could file a claim
for short-term disability benefits with an insurance company. In response, Krutzig
faxed Hernandez-Parkman in Estero a form signed by her doctor. Krutzig
attempted to have her supervisor, Parsons, located in the Sarasota offices, sign her
leave form on the same day, August 17, but Parsons was in her office with her
door shut, and Krutzig was never able to ask for approval.
Also on August 17, Krutzig met with a disgruntled customer named Donna
Guerrieri, who had complained to Pulte’s CEO about a situation with a home she
was purchasing. After meeting with Krutzig, Guerrieri spoke to Jill Hoffman,
Pulte’s Vice President of Sales and Marketing, and also voiced a complaint to
Hoffman. Hoffman called Jeff Cooper, Director of Sales with Pulte in Sarasota,
to discuss the situation. The following day, Saturday, August 18, Cooper advised
Hoffman by telephone that he had decided to terminate Krutzig. When Krutzig
reported to work on Monday, August 20, she was informed by Cooper that her
employment had been terminated.
Cooper testified in his deposition that he decided to terminate Krutzig based
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on her failure to address the issues in her performance improvement plan,
including the lack of communication with customers and infractions regarding
attitude and teamwork, and also the situation with customer Guerrieri, and that he
was not aware of any request by her for FMLA leave at the time he made the
decision. Hoffman testified that she first became aware of Krutzig’s request for
leave in an e-mail dated August 20, 2007, and that the decision to terminate
Krutzig was made on August 18, 2007.
Krutzig filed a complaint in federal district court as a result of her
termination. The district court subsequently granted Pulte’s motion for summary
judgment as to Krutzig’s FMLA retaliation and ERISA interference claims on the
ground that there was no evidence in the record that management at Pulte was
aware of Krutzig’s FMLA leave request at the time the decision was made to
terminate her. The district court granted summary judgment as to the FMLA
interference claim on the basis that Krutzig failed to provide any medical evidence
substantiating her alleged medical condition and entitlement to FMLA leave. The
district court further concluded that Krutzig failed to present evidence that she
submitted a valid request for FMLA leave. The district court alternatively granted
summary judgment on the FMLA interference claim based on a finding that
Krutzig would have been terminated regardless of any request for FMLA leave.
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II. STANDARD OF REVIEW
This court reviews a district court’s grant of summary judgment de novo,
applying the same legal standards used by the district court. Galvez v. Bruce, 552
F.3d 1238, 1241 (11th Cir. 2008). Summary judgment is appropriate where,
viewing the movant’s evidence and all factual inferences arising from it in the
light most favorable to the nonmoving party, there is no genuine issue of any
material fact, and the moving party is entitled to judgment as a matter of law. Id.
This court may affirm a decision of the district court on any ground
supported by the record. Bircoll v. Miami-Dade County, 480 F.3d 1072, 1088
n.21 (11th Cir. 2007).
III. DISCUSSION
Krutzig has appealed the grant of summary judgment in Pulte’s favor on her
FMLA retaliation and interference claims, and her ERISA interference claim.
A prima facie case of retaliation under the FMLA requires a showing that
(1) the employee engaged in statutorily protected conduct, (2) the employee
suffered an adverse employment action, and (3) there is a causal connection
between the two. Smith v. BellSouth Telecomm., Inc., 273 F.3d 1303, 1314 (11th
Cir. 2001). The causal connection element is satisfied if a plaintiff shows that the
protected activity and adverse action were “ not wholly unrelated.” Brungart v.
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BellSouth Telecomm., Inc., 231 F.3d 791, 799 (11th Cir. 2000). Generally, a
plaintiff can show the two events are not wholly unrelated if the plaintiff shows
that the decision maker was aware of the protected conduct at the time of the
adverse employment action. Id. Temporal proximity alone, however, is not
sufficient to establish a causal connection when there is unrebutted evidence that
the decision maker was not aware of the protected activity. Id. Furthermore,
knowledge on the part of persons other than a decision maker cannot be imputed
from other supervisors to the decision maker for purposes of an FMLA retaliation
claim. Id. at 800.
Similarly, an ERISA interference claim requires a showing that the plaintiff
“(1) is entitled to ERISA protection, (2) was qualified for the position, and (3) was
discharged under circumstances which give rise to an inference of discrimination.”
Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1223 (11th Cir. 1993). To prevail on
an ERISA interference claim, a plaintiff “must introduce evidence suggesting that
the employer's decision was directed at ERISA rights in particular.” Id. at 1224.
The only issue presented in this appeal, with respect to the prima facie case
of Krutzig’s FMLA retaliation and ERISA interference claims, is whether she
created a question of material fact as to whether the decision maker was aware of
Krutzig’s request for FMLA leave or disability benefits before deciding to
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terminate her employment.
Krutzig argues that there is a question of fact as to whether Cooper or
Hoffman made the decision to terminate her employment. She also contends that
the temporal proximity of one day between her termination and her requests for
FMLA and short-term disability benefits, and the circumstances of the
termination, can prove that the termination and requested benefits are not wholly
unrelated.
Even accepting, as Krutzig argues, that there is a question of fact as to
whether Hoffman or Cooper was the final decision maker, no evidence in the
record rebuts the affirmative evidence offered by Pulte that Hoffman and Cooper
both were unaware of Krutzig’s FMLA request at the time the decision was made
to terminate Krutzig’s employment. There also is no evidence in the record to
support a finding that Hoffman or Cooper knew of any application for short-term
benefits by Krutzig at the time the decision was made to terminate Krutzig’s
employment. Since Krutzig failed to present sufficient evidence to create a
genuine issue of fact as to causal connection for her FMLA retaliation and ERISA
interference claims, Pulte is entitled to summary judgment on those claims.
Different issues are presented by the FMLA interference claim. To
establish an interference claim, "an employee need only demonstrate by a
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preponderance of the evidence that he was entitled to the benefit denied."
Strickland v. Water Works and Sewer Bd. of Birmingham, 239 F.3d 1199, 1206-07
(11th Cir. 2001). The employee need not allege that his employer intended to
deny the benefit, because "the employer's motives are irrelevant." Id. at 1208.
Krutzig has argued that the district court granted summary judgment on the
FMLA interference claim on grounds not raised by Pulte in its motion, i.e., that
she had failed to present evidence of a valid request for, and a medical condition
entitling her to, FMLA leave, so that she was not given an adequate opportunity to
respond. The district court, however, also granted summary judgment on the
alternative ground that Krutzig would have been terminated despite her FMLA
leave request, which was an argument raised in the brief in support of the motion
for summary judgment. The alternative ground for summary judgment is,
therefore, properly presented for this court’s de novo review.
This court has previously concluded that, if an employer can show that it
refused to reinstate an employee for a reason unrelated to FMLA leave, the
employer is not liable for failing to reinstate the employee after the employee has
taken FMLA leave. Strickland, 239 F.3d at 1208.
Other circuits have extended the same analysis to FMLA claims based on
interference with the right to commence FMLA leave. See Phillips v. Mathews,
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547 F.3d 905 (8th Cir. 2008); Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 877
(10th Cir. 2004); Arban v. West Publ’g Corp., 345 F.3d 390 (6th Cir. 2003).
These circuits have reasoned that, as with the FMLA right to reinstatement, the
FMLA right to non-interference with the commencement of leave is not absolute,
and if a dismissal would have occurred regardless of the request for FMLA leave,
an employee may be dismissed, preventing her from exercising her right to leave
or reinstatement. See Phillips, 547 F.3d 911-12; Bones, 366 F.3d at 877-78;
Arban, 345 F.3d at 401. These circuits have concluded that an employee who
requests FMLA leave has no greater protection against her employment being
terminated for reasons unrelated to an FMLA request than she did before
submitting the request. See, e.g., Arban, 345 F.3d at 401.
This court has not previously decided whether the FMLA right to
commence leave is absolute.1 Now, being presented directly with the issue, the
court is persuaded by the reasoning of other circuits which have addressed this
issue that the right to commence FMLA leave is not absolute, and that an
1
To the extent that this court’s opinion in O'Connor v. PCA Family Health Plan, Inc.,
200 F.3d 1349, 1354 (11th Cir. 2000), distinguishes between the FMLA right of reinstatement
and right to commence leave, such a distinction was unnecessary to the disposition of that case,
which involved a reinstatement claim only, and, therefore, is not binding. See Great Lakes
Dredge & Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575, 1578 (11th Cir.), cert. denied,
506 U.S. 981, 113 S.Ct. 484, 121 L.Ed.2d 388 (1992).
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employee can be dismissed, preventing her from exercising her right to commence
FMLA leave, without thereby violating the FMLA, if the employee would have
been dismissed regardless of any request for FMLA leave. In this case, the
unrebutted evidence that the decision maker was not aware, at the time of the
decision to terminate Krutzig, of her request to commence FMLA leave
establishes as a matter of law that Krutzig’s termination was for reasons other than
her requested leave. Pulte is, therefore, entitled to summary judgment on the
FMLA interference claim.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM.
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