Case: 13-10446   Date Filed: 10/31/2013   Page: 1 of 8


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10446
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:11-cv-02656-VMC-AEP



ANAMARIA PENALOZA,

                                              Plaintiff - Appellant,

versus

TARGET CORPORATION,

                                              Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (October 31, 2013)

Before TJOFLAT, PRYOR and JORDAN, Circuit Judges.

PER CURIAM:
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      Anamaria Penaloza, proceeding pro se, appeals the summary judgment

granted in favor of her employer, Target, on her claims of (1) pregnancy

discrimination under Title VII of the Civil Rights Act, as amended by the

Pregnancy Discrimination Act (PDA), and under the Florida Civil Rights Act

(FCRA); (2) retaliation under Title VII; and (3) Family Medical Leave Act

(FMLA) interference and retaliation. Ms. Penaloza also appeals the district court’s

dismissal of her disability discrimination claim for failure to exhaust administrative

remedies. We affirm.

                                          I.

      We review the grant of summary judgment de novo. Rioux v. City of Atlanta,

Ga., 

, 1274 (11th Cir. 2008). Summary judgment is proper if all the

evidence on file, viewed in the light most favorable to the nonmoving party, shows

there is “no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” 

then-current Fed.R.Civ.P. 56(c)).

The movant carries its burden by showing that there is an absence of evidence to

support the nonmoving party’s case. Celotex Corp. v. Catrett, 

, 325

(1986). The burden then shifts to the nonmoving party to go beyond the pleadings

and to present evidentiary materials designating specific facts that show a genuine

issue. 

When a nonmoving party’s response consists of nothing more

than conclusory allegations, summary judgment is not only proper but required.


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. Ross, 

, 1034 (11th Cir. 1981). A pro se plaintiff must still

meet the essential burden of establishing that there is a genuine issue as to a fact

material to her case. Holifield v. Reno, 

, 1561 (11th Cir. 1997).

                                          II.

      The PDA amended Title VII by providing that the prohibition against sex

discrimination includes discrimination based on pregnancy, childbirth, or related

medical conditions. Armstrong v. Flowers Hosp., Inc., 

, 1312 (11th

Cir. 1994). The analysis for a pregnancy discrimination claim is the same as for a

Title VII sex discrimination claim. 

The Title VII analysis also

applies to FCRA claims. Harper v. Blockbuster, 

, 1389 (11th Cir.

1998).

      A plaintiff may prove discrimination through circumstantial evidence using

the framework established in McDonnell Dougals Corp. v. Green, 

(1973). First, the plaintiff must establish a prima facie case by showing that (1) she

belongs to a protected class; (2) she was qualified to do the job; (3) she was

subjected to an adverse employment action; and (4) her employer treated similarly

situated employees outside her class more favorably. Crawford v. Carroll, 

, 970 (11th Cir. 2008).

      Here, there is no dispute as to the first three elements. Ms. Penaloza was

qualified for her job, was in a protected class (pregnant women), and suffered a


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number of adverse employment actions: (1) reduction in hours; (2) disciplinary

action for alleged absences and late arrivals; and (3) termination for failing to

return to work after a 14-week absence.

      The dispute here turns on the fourth element: whether Target treated

similarly situated, non-pregnant employees more favorably. Ms. Penaloza has

presented no evidence to satisfy this element. In particular, she has presented no

evidence that (1) the number of hours assigned to any of her coworkers remained

the same when her hours were reduced; (2) other employees whom Target accused

of failing to call in absent before an unscheduled absence were treated differently

than she; and (3) any other Target employee failed to return to work after a 14-

week absence but retained a position at Target.

      Because Ms. Penaloza failed to establish a prima facie case, there is no

genuine issue of material fact to preclude summary judgment on Penaloza’s

pregnancy discrimination claim.

                                          III.

      Ms. Penaloza also claims that Target terminated her in retaliation for filing a

pregnancy discrimination charge with the Equal Employment Opportunity

Commission (EEOC). Title VII prohibits an employer from retaliating against

employees for engaging in protected activity. 42 U.S.C. § 2003e-3(a). In order to

establish a prima facie case for retaliation, an employee must establish that (1) she


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engaged in a statutorily protected activity; (2) she suffered a materially adverse

action; and (3) there was a causal relation between the protected activity and the

adverse action. Goldsmith v. Bagby Elevator Co., 

, 1277 (11th Cir.

2008). As to the last element, temporal proximity by itself can be enough to show

causation; the events, however, must be “very close.” Thomas v. Cooper Lighting,

Inc., 

, 1364. We have held, for example, that three months is not

close enough, where there is no other evidence of a causal link. 

Ms. Penaloza’s employment 14 weeks (over three

months) after she filed an EEOC charge of discrimination. Ms. Penaloza offers no

evidence other than the timing of the two events to establish a causal connection.

Thus, she failed to satisfy the causation element of the prima facie case, and

summary judgment was proper as to her retaliation claim.

                                        IV.

      The FMLA gives employees the right to 12 weeks of unpaid leave due to the

birth of a child or for a serious health condition that makes the employee unable to

work. 29 U.S.C. § 2612(a)(1). The FMLA does not require that employers provide

more leave than the FMLA’s 12-week entitlement. McGregor v. AutoZone,

Inc.,180 F.3d 1305, 1307-08 (11th Cir. 1999).

      There are two types of FMLA claims: (1) interference claims, where an

employer denies or otherwise interferes with substantive rights under the FMLA;


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and (2) retaliation claims, where an employer retaliates against an employee for

engaging in activity protected by the FMLA. Hulbert v. St. Mary’s Health Care

Sys., Inc., 

, 1353-54 (11th Cir. 2000). An employee claiming

interference must show she was entitled to a benefit that she was denied. Strickland

v. Water Works & Sewer Bd., 

, 1206-07 (11th Cir. 2001). An

employee claiming retaliation must show that the employer’s actions “were

motivated by an impermissible discriminatory or retaliatory animus.” 

The prima facie case of retaliation under the FMLA is the same as under Title VII

and requires a showing of (1) statutorily protected conduct, (2) adverse

employment action, and (3) causation. Krutzig v. Pulte Home Corp., 

(11th Cir. 2010).

       As to interference, Target gave Ms. Penaloza over 12 weeks of leave before

her termination. She was terminated two weeks after her 12-week leave period

ended. Thus, Penaloza cannot show that she was denied any benefit to which she

was entitled under the FMLA.1 As to FMLA retaliation, Ms. Penaloza did not

present any evidence to show a causal connection between her FMLA request and

her termination, other than temporal proximity. But the time period between her

request for leave and her termination was over three months, which as noted above
1
 Target had a policy of providing employees who timely completed FMLA forms 16 weeks of
unpaid FMLA leave, i.e. four weeks more than the statutory requirement. There is some dispute
as to whether Ms. Penaloza timely filled out her FMLA form. At any rate, this voluntary policy
could not form the basis of an FMLA claim, which has a fixed statutory requirement of 12
weeks. 

.
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regarding Ms. Penaloza’s Title VII retaliation, is insufficient in itself to establish

causation. 

.

                                         V.

       Ms. Penaloza appeals the district court’s dismissal of her Americans with

Disabilities Act (ADA) claim for failure to exhaust administrative remedies. We

review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure to state a

claim. Glover v. Liggett Grp, Inc., 

, 1308 (11th Cir. 2006).

      In a deferral state like Florida, a plaintiff is required to file an EEOC charge

within 300 days of the discriminatory act for the claim to be actionable. EEOC v.

Joe’s Stone Crabs, Inc., 

, 1271 (11th Cir. 2002). A judicial

complaint is limited by the scope of the EEOC investigation “which can

reasonably be expected to grow out of the charge of discrimination.” Mulhall v.

Advance Sec., 

, 589 n.8 (11th Cir. 1994). Courts are “extremely

reluctant to allow procedural technicalities to bar claims brought under [Title VII]”

and should construe an EEOC complaint broadly. Gregory v. Georgia Dept. of

Human Resources, 

, 1280 (11th Cir. 2004). Nevertheless, judicial

discrimination claims are only allowed if they “amplify, clarify or more clearly

focus” the allegations in the EEOC complaint; “allegations of new acts of

discrimination are inappropriate.” 

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       Ms. Penaloza filed an EEOC charge alleging the following: “I believe that I

am being discriminated against on the basis of my sex; female; pregnancy related,

in violation of the Civil Rights Act of 1964, as amended.” There was no mention of

disability discrimination, nor could a disability discrimination claim “be expected

to grow” out of Ms. Penaloza’s sex and pregnancy discrimination charge, even on

a broad reading of her EEOC complaint. 

n.8. 2 Thus, the

district court did not err in dismissing Penaloza’s disability claim for failure to

exhaust administrative remedies.

       AFFIRMED.




2
  Pregnancy is generally not considered a disability, although a pregnancy-related impairment
may be considered a disability if it substantially limits a major life activity. See 29 C.F.R. §
1630.2(h). Ms. Penaloza alleges that her pregnancy was “high risk” and limited her ability to lift
and to stand for long periods of time. Even assuming that this would qualify as a disability, Ms.
Penaloza admitted that she did not learn of her high-risk pregnancy until after she had taken
leave from Target. Thus, Ms. Penaloza’s allegation that Target did not accommodate her at work
(e.g., by providing her a chair with back support) does not plausibly support a disability
discrimination claim. Because her alleged disability arose after her departure from Target, the
only possible basis for a disability discrimination claim would be that Target failed to
accommodate Ms. Penaloza by providing her additional leave time. See Holly v. Clairson Indus.,
L.L.C., 

, 1263 (11th Cir. 2007) (citing EEOC Enforcement Guidance, Question
17). However, Ms. Penaloza never raised this allegation, and it falls outside the scope of the
EEOC investigation based on her sex- and pregnancy-discrimination charge.
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