[DO NOT PUBLISH]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
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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
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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
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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
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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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