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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12176
________________________
D.C. Docket Nos. 2:16-cv-01308-LSC,
2:17-cv-00739-LSC
CANDACE E. HERREN,
Plaintiff - Appellant,
versus
LA PETITE ACADEMY, INC.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(July 14, 2020)
Before WILLIAM PRYOR, Chief Judge, and GRANT, Circuit Judges, and
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ANTOON,* District Judge.
PER CURIAM:
Candace Herren appeals the district court’s grant of summary judgment in
favor of her former employer, La Petite Academy, Inc., on Herren’s claims of
discrimination, retaliation, and interference under several federal statutes. 1 We
affirm the summary judgment on all but one claim—Herren’s interference claim
under the Family and Medical Leave Act. Because, in addressing that claim, the
district court did not—as required by this Court’s precedent—place the burden on
La Petite to establish that Herren’s termination was unrelated to her request for
leave, we vacate the summary judgment on that claim and remand for further
proceedings.
I. BACKGROUND
La Petite operates childcare centers throughout the United States. At the
time the events at issue here began, eight of those centers were in Alabama.
Herren worked at various of La Petite’s Alabama centers for thirty years,
beginning her career in 1986 as an infant teacher and spending the last three years
of her employment as the Director of La Petite’s Grayson Valley center in
*
Honorable John Antoon II, United States District Judge for the Middle District of
Florida, sitting by designation.
1
In the district court, Herren also asserted several claims under Alabama law, but only
the federal claims are at issue in this appeal.
2
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Birmingham.
In December 2015, an infant at one of La Petite’s Alabama centers—the
Brookwood center—died after becoming unresponsive during a nap. After that
tragic incident, the Child Care Services Division of the Alabama Department of
Human Resources (the Division), which licenses and regulates childcare centers in
Alabama, began to scrutinize more closely La Petite’s Alabama operations,
including by visiting the centers more frequently. In January 2016, the Division
shut down La Petite’s Brookwood center, and La Petite fired the director of that
center.
After visits to the Grayson Valley center in the first few months of 2016, the
Division issued several deficiency reports. A January 14 report identified four
deficiencies: noncompliant children’s records; noncompliant staff records;
equipment missing from classrooms; and a hazardous condition on the
playground—a torn tarp on a sand area. The next day, Herren’s supervisor,
District Manager P.J. Kimball, sent a letter to Herren and all other center directors
under her supervision reminding them of the Division’s “Minimum Standards
requirements” regarding napping and resting.
A week later, a January 21 report from the Division listed fourteen
deficiencies at the Grayson Valley center. The Division again cited La Petite for
noncompliant records, and thirteen new shortcomings were noted: (1) a torn
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mattress in the infant classroom; (2) an unlocked laundry closet in the infant
classroom containing hazardous materials including cleaning supplies and
detergent; (3) hazardous substances—including paint, cleaners, staff purses, and
hand sanitizer—not locked up elsewhere in the center; (4) unlabeled cleaning spray
bottles; (5) an unsecured door leading to the outside playground; (6) broken floor
tile with sharp edges in the four-year-old classroom; (7) an unsecured television in
the school-age room; (8) the base of the steps to the slide was broken on the
toddler playground; (9) debris and broken material on the toddler playground; (10)
a cracked/broken sliding board on the preschool playground; (11) an unused water
hose on the playground; (12) medication forms not filled in with the names of
medications; and (13) 92 children present but only 39 children signed in. The
Division visited the Grayson Valley center again on February 5 and noted no
deficiencies.
On February 29, Kimball issued a written warning to Herren that included
the following “description of unacceptable performance, behavior, or conduct”:
Poor overall performance by failing to manage the school in
conformance with all state/local regulations and Company policies,
procedures, programs and processes. Failure to stay in compliance
with the following:
* Not accurately maintaining the appropriate and required records on
staff and children. Staff and children files were not complete when
reviewed in Jan.
* New hires not completing their new hire paperwork on the first day
of employment.
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* Failure to properly maintain and administer all school financial and
business related documentation.
* Failure to maintain the building equipment and grounds to ensure a
safe environment that meets Company and state/local regulations.
Herren signed the written warning, acknowledging “that employment with
the company is at-will” and that she understood “that failure to maintain or
sustain acceptable levels of performance, behavior, or conduct may result in
further action, up to and including separation of employment.”
In early April, the Division returned to the Grayson Valley center after
receiving complaints from a center employee. Although eleven of the twelve areas
of concern identified by that employee were deemed unsubstantiated by the
Division on April 5 and 7, the Division observed other problems on those dates and
issued two more deficiency reports. In the April 5 report, the Division listed eight
deficiencies: (1) hazardous substances not locked up (cleaning supplies and
disinfectants under the sink in the kitchen, and hand sanitizer in the 12-to-18-
month-old room); (2) not all children were signed in and out of the center when
being transported to and from school; (3) staff did not wash hands immediately
after changing a diaper; (4) staff did not disinfect the changing area after changing
a diaper; (5) some infants younger than 12 months old were asleep in bounce seats;
(6) the playground fence had holes in its base in two places; (7) there was
hazardous tall grass in a playground and beside a walkway; and (8) 86 children
were present but only 65 were signed in. And the Division’s April 7 report noted
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five shortcomings at Grayson Valley: (1) 82 children present but only 77 signed
in; (2) 16 children not signed out on April 6; (3) hazardous substances not locked
up under the kitchen sink; (4) 14 infants but only 10 cribs; and (5) required staff-
to-child ratios not being met.
A few weeks later, on April 26, La Petite placed Herren on administrative
leave, and La Petite’s Divisional Vice President of Operations, Cindy Lehnhoff,
sent Rhonda Kirk, La Petite’s interim human resources manager for the region
encompassing Alabama, to investigate the Grayson Valley center. Later that day,
Herren requested and received paperwork from La Petite’s headquarters in
Michigan to apply for FMLA leave to obtain chemotherapy treatments for
digestive ailments from which she suffered; she emailed the paperwork back on
April 27. Herren had previously requested and been granted intermittent FMLA to
obtain those treatments from March 2015 to March 2016, but she was required to
reapply because a new 12-month leave period had begun.
On May 2, Lehnhoff, with Kirk on the line, terminated Herren during a
telephone call. That same day, Herren received a certified letter informing her that
she was eligible for the further FMLA leave she had requested. Herren is
Caucasian and was 51 years old at the time of her firing.
Herren filed suit in August 2016, asserting that La Petite’s termination of her
violated the Family and Medical Leave Act of l993 (FMLA), 29 U.S.C. § 2601 et
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seq. And in May 2017, she filed a second suit asserting claims of race
discrimination under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of
1964 (Title VII), 42 U.S.C. § 2000e et seq.; age discrimination under the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.; disability
discrimination under the Americans With Disabilities Act (ADA), 42 U.S.C.
§ 12101 et seq.; and several tort claims under Alabama common law. The district
court consolidated the cases, and in May 2019 it granted La Petite’s motion for
summary judgment on all of Herren’s claims. Herren appeals only the rulings on
her federal claims.
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo. Chapman v. AI Transp.,
229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). Summary judgment is warranted
“if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
In assessing a motion for summary judgment, a court must “view[] the
movant’s evidence and all factual inferences arising from it in the light most
favorable to the nonmoving party.” Krutzig v. Pulte Home Corp., 602 F.3d 1231,
1234 (11th Cir. 2010). And “the summary judgment rule applies in job
discrimination cases just as in other cases. No thumb is to be placed on either side
of the scale.” Chapman, 229 F.3d at 1026.
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III. DISCUSSION
A. The District Court Correctly Granted Summary Judgment for La Petite on
Herren’s FMLA Retaliation Claim and Her Discrimination Claims Under 42
U.S.C. § 1981, Title VII, the ADEA, and the ADA
In support of her claims of discrimination under 42 U.S.C. § 1981, Title VII,
the ADEA, and the ADA, as well as her FMLA retaliation claim, Herren relies on
circumstantial rather than direct evidence. Accordingly, we, like the district court,
analyze these claims using the three-part framework established by McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. See, e.g., Kidd v.
Mando Am. Corp., 731 F.3d 1196, 1202 (11th Cir. 2013). Under this step-by-step
analysis, Herren first bears the burden of establishing a prima facie case of
discrimination or retaliation. McDonnell Douglas, 411 U.S. at 802. If Herren
succeeds at step one, the burden then shifts to La Petite “to articulate some
legitimate, nondiscriminatory [or nonretaliatory] reason for” its actions. Id. And if
La Petite meets that burden—which is one of production, not proof—Herren must,
to survive summary judgment on these claims, present “sufficient evidence to
create a genuine issue of material fact regarding whether” La Petite’s articulated
reason is a pretext for discrimination or retaliation. Chapman, 229 F.3d at 1024–
25.
The district court concluded, and on de novo review we also conclude, that
Herren established a prima facie case of race discrimination under Title VII and 42
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U.S.C. § 1981 and a prima facie case of age discrimination under the ADEA
because she was qualified for her position; suffered an adverse employment action
when she was terminated; and was replaced by someone outside her protected
class—a younger, African-American employee. We also agree with the district
court’s conclusion that Herren failed to establish a prima facie case of retaliation
under the FMLA or disability discrimination under the ADA because she did not
establish a causal connection between her leave request or her disability on the one
hand and her termination on the other. And even assuming that Herren had
presented a prima facie case on these two claims, they would, as discussed next,
fail at the pretext stage of the analysis along with the other discrimination claims.
Once the burden shifted to La Petite to articulate a legitimate reason for its
termination of Herren, La Petite satisfied that burden by pointing to Herren’s
performance issues and the repeated deficiency reports regarding the Grayson
Valley center. La Petite having done so, it fell to Herren to “demonstrate[] such
weaknesses, implausibilities, incoherencies, or contradictions in [La Petite]’s
proffered legitimate reasons for its action that a reasonable factfinder could find
them unworthy of credence.” Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1312
(11th Cir. 2018) (quoting Jackson v. State of Ala. State Tenure Comm’n, 405 F.3d
1276, 1289 (11th Cir. 2005)). But the evidence presented by Herren—including,
but not limited to, the supposed “comparator” evidence—does not create a genuine
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issue of material fact as to pretext, and thus we affirm the district court’s grant of
summary judgment to La Petite on these claims.
B. The District Court Erred in Granting Summary Judgment for La Petite on
Herren’s FMLA Interference Claim
Although the district court correctly granted summary judgment on the
claims discussed in Part III.A., we reach a contrary conclusion with regard to
Herren’s FMLA interference claim. In ruling in favor of La Petite on this claim,
the district court relied on its assessment—under the McDonnell Douglas
framework—of Herren’s FMLA retaliation claim. But because the burden of proof
is allocated differently on these two types of claims, it was error for the court to
base its interference ruling on its retaliation analysis.
This circuit recognizes that “the FMLA creates two types of claims”—
“retaliation claims, in which an employee asserts that his employer discriminated
against him because he engaged in activity protected by the [FMLA],” and
“interference claims, in which an employee asserts that his employer denied or
otherwise interfered with his substantive rights under the [FMLA].” Strickland v.
Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001).
Retaliatory motive is an element of an FMLA retaliation claim, and, as discussed
above, absent direct evidence of an employer’s motive this circuit applies the
McDonnell Douglas burden-shifting framework to FMLA retaliation claims. Id. at
1207.
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On the other hand, to establish an FMLA interference claim, a plaintiff is not
required to establish the employer’s intent but instead “need only demonstrate that
he was entitled to but denied the right” to FMLA leave. Id. at 1208. “[T]he
employer can [then] raise the lack of causation as an affirmative defense” 2 to such
a claim. Spakes v. Broward Cty. Sheriff’s Office, 631 F.3d 1307, 1309 (11th Cir.
2011). To establish this affirmative defense, the employer must “demonstrate[]
that it would have discharged [the] employee ‘for a reason wholly unrelated to the
FMLA leave.’” Id. at 1310 (quoting Strickland, 239 F.3d at 1208); see also
Krutzig, 602 F.3d at 1236 (“[T]he right to commence FMLA leave is not absolute,
and . . . an 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.”).
Here, in its summary judgment order, the district court initially noted—
consistent with our precedent—that motive is not relevant to the showing that
Herren is required to make to establish her FMLA interference claim. It then
2
On appeal, Herren asserts that the district court erred in “sua sponte” raising this affirmative
defense on La Petite’s behalf. While Herren is correct that La Petite did not couch its argument
on the FMLA interference claim in terms of an affirmative defense, in her response to La Petite’s
summary judgment motion, Herren pointed out that La Petite—not she—bore the burden of
proof on the question whether there was a causal relationship between her termination and her
leave request, and she asserted, in discussing the interference claim, that La Petite “argue[d] that
Herren’s request for additional FMLA leave was not the basis for her termination.” We thus do
not fault the district court for addressing the merits of the causal relationship question. But as
discussed in the text, the district court did err by relying on its McDonnell Douglas analysis of
the other claims in resolving that issue.
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stated that the interference claim “fails as a matter of law” if Herren “was
terminated for reasons unrelated to her FMLA leave request.” But in concluding
that Herren was indeed terminated for reasons unrelated to her leave request, the
district court relied on its analysis—using the McDonnell Douglas framework—of
Herren’s FMLA retaliation claim. This was error.
Under the McDonnell Douglas three-step framework, the burden of
persuasion remains on the plaintiff to establish her claim, and as both the Supreme
Court and this Court have repeatedly emphasized, the employer’s burden at the
second step of that analysis “is one of production, not persuasion.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); accord Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 254 (1981) (noting that “[t]he
ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff” and that
“[t]he defendant need not persuade the court that it was actually motivated by the
proffered reasons”); Flournoy v. CML-GA WB, LLC, 851 F.3d 1335, 1339 (11th
Cir. 2017) (“That ‘exceedingly light’ burden is one of production, not persuasion.”
(quoting Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th Cir. 1983)));
Kidd, 731 F.3d at 1202. Indeed, in its analysis of the FMLA retaliation claim, the
district court noted the lightness of La Petite’s burden.
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Again, on the FMLA interference claim, La Petite—not Herren—bears the
burden to establish the lack of a causal connection between Herren’s request for
leave and her termination. By referring to its analysis of Herren’s FMLA
retaliation claim as the basis for finding a lack of causation, the district court did
not place the burden on La Petite to “demonstrate[] that it would have discharged
[Herren] ‘for a reason wholly unrelated to’” her request for FMLA leave. Spakes,
631 F.3d at 1310 (quoting Strickland, 239 F.3d at 1208). We therefore vacate the
summary judgment on the FMLA interference claim and remand for further
proceedings on that claim. 3
IV. CONCLUSION
We affirm in part, vacate in part, and remand for further proceedings in
accordance with this opinion.
3
We express no view on whether La Petite will be able to meet this burden on remand. We
leave the question whether La Petite prevails when the burden of proof is placed on it—instead
of on Herren—for the district court to resolve in the first instance.
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