Case: 13-10728     Date Filed: 12/19/2013   Page: 1 of 8


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-10728
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 0:10-cv-62322-KMW



COREY V. DAVIS,

                                                                 Plaintiff-Appellant,


                                       versus

POSTMASTER GENERAL,

                                                                Defendant-Appellee.

                           ________________________

                   Appeals from the United States District Court
                       for the Southern District of Florida
                          ________________________

                                (December 19, 2013)

Before TJOFLAT, FAY and DUBINA, Circuit Judges.

PER CURIAM:

      Appellant Corey V. Davis, an African-American male proceeding pro se,

appeals the district court’s grant of defendant U.S. Postal Service’s (“Postal
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Service”) motion for summary judgment as to his complaint alleging race

discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-16 (“Title VII”), and retaliation pursuant to the Family and

Medical Leave Act, 29 U.S.C. § 2612 (“FMLA”).

      Davis’s appeal challenges the district court’s conclusion that he failed to

make prima facie showings for his Title VII race discrimination and retaliation

claims, and for his FMLA retaliation claim. In connection with the latter, he

primarily argues that he was entitled to FMLA leave for most of his period of

absence because he was caring for his sick children.

      We review a district court’s grant of summary judgment de novo. Thomas v.

Cooper Lighting, Inc., 

, 1363 (11th Cir. 2007). When reviewing the

record, we consider all evidence, along with any reasonable factual inferences, in a

light most favorable to the non-moving party. Crawford v. Carroll, 

,

964 (11th Cir. 2008). Summary judgment is proper “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). 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, 

, 2554 (1986).

Once that burden has been met, the burden shifts “to the non-moving party to

demonstrate that there is indeed a material issue of fact that precludes summary


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judgment.” Clark v. Coats & Clark, Inc., 

, 608 (11th Cir. 1991). The

non-movant is required to go beyond the pleadings and present evidentiary

materials in the form of affidavits, answers to interrogatories, and depositions,

designating specific facts that show a genuine issue. 

, 106

S.Ct. at 2553.

                                           I.

      Title VII prohibits a private employer from discriminating against a person

based on race. 42 U.S.C. § 2000e–2(a)(1). Federal employees are protected to the

same extent by § 2000e-16(a). Llampallas v. Mini-Circuits, Lab, Inc., 

, 1243 (11th Cir. 1998).

      When, as here, a plaintiff uses circumstantial evidence to prove

discrimination under Title VII, we apply the burden-shifting approach articulated

in McDonnell Douglas Corp. v. Green, 

, 

(1973). See

Brooks v. Cnty. Comm’n, 

, 1162 (11th Cir. 2006). Under the

McDonnell Douglas framework, a plaintiff has the initial burden to establish a

prima facie case of discrimination, which creates a presumption that the employer

discriminated against the plaintiff. 

. A plaintiff may

establish a prima facie case of racial discrimination by showing that: (1) he is a

member of a protected class; (2) he was subject to an adverse employment action;

(3) his employer treated similarly situated employees outside his protected class


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more favorably; and (4) he was qualified to do the job. Maniccia v. Brown, 

, 1368 (11th Cir. 1999). “If a plaintiff fails to show the existence of a

similarly situated employee, summary judgment is appropriate where no other

evidence of discrimination is present.” Holifield v. Reno, 

, 1562

(11th Cir. 1997).

      To demonstrate a prima facie case of retaliation under Title VII, a plaintiff

may show that: (1) he engaged in protected activity; (2) his employer was aware of

that activity; (3) he suffered a materially adverse action; and (4) there was a causal

link between that protected activity and an adverse employment action. 

; Burlington N. & Santa Fe Ry. Co. v. White, 

, 67-68,

, 2414-15 (2006) (setting forth the “materially adverse” standard for

claims under Title VII’s antiretaliation provision). For the causal link requirement,

the plaintiff need only prove that the protected activity and the negative

employment action are not completely unrelated. 

(internal quotation marks omitted).

      In both types of claims, if the plaintiff establishes a prima facie case, the

burden shifts to the employer to proffer a legitimate non-discriminatory reason for

the adverse action. 

1567. If the employer does so, the burden shifts

back to the plaintiff to show that the proffered explanation is a pretext for

retaliation. 

A showing that the defendant’s proffered reason is


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unpersuasive or obviously contrived is not enough, on its own, to establish a

showing of pretext. St. Mary’s Honor Ctr. v. Hicks, 

, 524, 

, 2756 (1993). Pretext requires the plaintiff to demonstrate that the employer

took the action on account of a prohibited motivation, such as race or retaliation.

See 

reason offered by the employer might motivate a reasonable

employer, “an employee must meet that reason head on and rebut it, and the

employee cannot succeed by simply quarreling with the wisdom of that reason.”

Chapman v. AI Transport, 

, 1030 (11th Cir. 2000) (en banc).

      Here, we conclude from the record that the district court properly granted

summary judgment with respect to Davis’s Title VII claims because he failed to

make a prima facie showing for either claim. First, Davis did not make a prima

facie showing of race discrimination because he failed to identify a similarly

situated employee who was treated differently than he after a long period of

absence and after failing to respond to multiple disciplinary notices. 

. Additionally, he did not make a prima facie showing of

retaliation under Title VII because he did not show any causal link between any

protected conduct and his termination. 

. Moreover, he

failed to rebut the Postal Service’s legitimate, non-discriminatory reasons for

terminating him. 

not address, let alone rebut the Postal Service’s

proffered rationales for terminating him. 

.


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Accordingly, based on our review of the record before us, we conclude that the

grant of summary judgment on Davis’s Title VII race discrimination and retaliation

claims was appropriate.

                                            II.

      Under the FMLA, an eligible employee is entitled to 12 weeks of leave

during a 12-month period in the event of a qualifying condition. 29 U.S.C.

§ 2612(a). When the necessity of leave is foreseeable, the employee is directed to

provide notice before the date the leave is to begin, or as soon as is practicable. 29

U.S.C. § 2612(e). An employer may require that a request for leave pursuant to

§ 2612(a) be supported by timely certification from a healthcare provider. 29

U.S.C. § 2613(a). Any leave taken beyond the 12-week period is not protected by

the FMLA. See McGregor v. Autozone, Inc., 

, 1308 (11th Cir. 1999)

(finding defendant exercised its statutory right to require plaintiff to substitute paid

leave for 12-week FMLA leave, and did not retaliate against plaintiff by demoting

her when she was absent for more than the protected period of time).

      In a retaliation claim, an employee asserts that the employer discriminated

against him because he engaged in an activity protected by the FMLA. Hurlbert v.

St. Mary’s Health Care Sys., Inc., 

, 1293 (11th Cir. 2006). Absent

direct evidence of retaliatory intent, the McDonnell Douglas burden shifting

framework applies to FMLA claims of retaliation. Martin v. Brevard Cnty. Pub.


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Sch., 

, 1268 (11th Cir. 2008). A prima facie case of retaliation

requires a plaintiff to show that: (1) he engaged in a statutorily protected activity;

(2) he suffered an adverse decision; and (3) the decision was causally related to the

protected activity. 

plaintiff successfully makes a prima facie showing,

the burden shifts to the employer to articulate a legitimate reason for the adverse

action. 

employer does so, the employee must show that the proffered

reason was pretextual by presenting evidence sufficient to permit a reasonable

factfinder to conclude that the reasons given were not the real reasons for the

adverse employment decision. 

marks omitted).

      Here, the record demonstrates that Davis failed to make a prima facie

showing of retaliation under the FMLA. First, he failed to show that he engaged in

statutorily protected conduct because even if he was eligible for FMLA leave, and

his call-ins to the Postal Service’s automated leave line were sufficient notice, his

absence from March 8 through July 25, 2008, exceeded the 12 weeks protected by

the FMLA. See 29 U.S.C. § 2612(a).

      Davis additionally failed to demonstrate a causal link between his attempt to

take FMLA leave and his termination. The Postal Service made repeated attempts

to substantiate his FMLA leave requests and did not terminate Davis until

approximately one month after any FMLA leave he would have been entitled to

had expired.


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      Finally, even if Davis had successfully made a prima facie showing of

retaliation under the FMLA, he did not provide any evidence from which a

reasonable jury could find that the Postal Service’s proffered reasons for his

termination were pretexts for retaliation. Accordingly, summary judgment on

Davis’s FMLA retaliation claim was proper. For the above-stated reasons, we

affirm the district court’s grant of summary judgment on all claims.

      AFFIRMED.




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