[DO NOT PUBLISH]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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