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                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11127
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 6:12-cv-00071-GKS-TBS



CHRISTINE BAILEY,

                                                            Plaintiff-Appellant,

                                   versus

CITY OF DAYTONA BEACH SHORES,

                                                           Defendant-Appellee.

                       ________________________

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

                             (March 20, 2014)

Before CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.

PER CURIAM:
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       Christine Bailey appeals the district court’s grant of summary judgment to

her former employer, the City of Daytona Beach Shores, on her claims of

interference and retaliation under the Family and Medical Leave Act, 29 U.S.C.

§§ 2601–2654.

                                                I.

       Bailey worked as a fire inspector for the City, which required its employees

to adhere to a drug-free workplace policy and to inform their supervisors about the

use of any prescription drugs that could “impair [] safety, performance, or any

motor functions.” The policy provided that an employee who violated it would be

subject to discipline “up to and including discharge.” In March 2010, while Bailey

was away on FMLA leave, the City Clerk noticed that Bailey had submitted to the

City a claim for reimbursement for the cost of prescription narcotics that she was

taking.1 Considering that a violation of its drug-free workplace policy, the City

confronted Bailey upon her return, and she admitted both to taking the drugs

prescribed to her and to not disclosing the use of those drugs to the City. The City

gave Bailey the option to resign or be terminated, and she chose to resign.


       1
         The City is self-insured, so the City Clerk acts as the plan administrator, which includes
reviewing all claims for reimbursement for prescription medication. Bailey’s claim caught the
Clerk’s eye because the $500.00 cost that Bailey claimed was unusually expensive. When the
Clerk researched Bailey’s past reimbursement claims, she learned that Bailey had filled
prescriptions for the narcotic before. She also learned that the drug had a warning label
cautioning against driving while on the medication. The Clerk reported Bailey’s prescription to
the City Manager because she was afraid that Bailey might have been impaired by the
medication while driving a city-owned vehicle as part of her job as a fire inspector.
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       Bailey sued the City alleging that it had interfered with her FMLA rights and

retaliated against her for exercising those rights. The district court rejected

Bailey’s attempt, made in a motion to strike, to bar the City from using her

personal health information in its defense.2 The court then granted summary

judgment to the City on Bailey’s interference claim after determining that the City

would have taken the same action against her irrespective of her FMLA leave. The

court also granted summary judgment to the City on the retaliation claim because

Bailey had not established a prima facie case of retaliation, and she had not shown

that the reason given by the City for its action against her was pretextual.

       Bailey raises three issues on appeal. First, she contends that the district

court erred in allowing the City to rely on her personal health information to

defend itself against her lawsuit after the Department of Health and Human

Services notified the City that using that information for employment-related

decisions would violate Bailey’s rights under the Health Insurance Portability and

Accountability Act (HIPAA). Second, she contends that the district court erred in

granting summary judgment to the City on her interference claim because there

was a sufficient basis for a jury to conclude that the City had interfered with her

       2
          Under the Health Insurance Portability and Accountability Act, “health information” is
a defined term meaning: “information, whether oral or recorded in any form or medium, that (A)
is created or received by a health care provider, health plan, public health authority, employer,
life insurer, school or university, or health care clearinghouse; and (B) relates to the past, present,
or future physical or mental health or condition of an individual, the provision of health care to
an individual, or the past, present, or future payment for the provision of health care to an
individual.” 42 U.S.C. § 1320d(4).
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FMLA rights. Third, she contends that the district court erred in granting summary

judgment to the City on her retaliation claim because she had established a prima

facie case of retaliation and the City’s proffered reason for its adverse employment

action against her was pretextual.

                                          II.

      We review de novo questions of law that underlie evidentiary decisions.

Lamonica v. Safe Hurricane Shutters, Inc., 

, 1317 (11th Cir. 2013).

HIPAA prohibits the use and disclosure of personal health information in

employment-related decisions, see 45 C.F.R. § 164.504(f)(2)(ii)(C), and it

authorizes governmental actors to enforce the rights created by the statute, see 42

U.S.C. § 1320d-5. But the statute does not bar a defendant in a non-HIPPA lawsuit

from using the plaintiff’s personal health information to defend against that

lawsuit. See generally 42 U.S.C. §§ 1320d to 1320d-9. And neither we nor the

United States Supreme Court has interpreted HIPAA as implying such a rule. It

follows that the district court did not err in concluding that there was no legal basis

for excluding Bailey’s personal health information, which is relevant to this case.

The City proffered that information to the district court to defend itself from




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Bailey’s lawsuit; its use of the personal health information in that way was not part

of an employment-related decision. 3

                                               III.

       We review de novo a district court’s grant of summary judgment,

considering the evidence in the light most favorable to the nonmoving party and

drawing all reasonable inferences in her favor. Ellis v. England, 

,

1325 (11th Cir. 2005). Summary judgment is appropriate if there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law. See id.; see also Fed. R. Civ. P. 56(a).

                                                A.

       The FMLA grants an eligible employee the right to a certain amount of

unpaid leave each year for specified reasons enumerated in the act. 29 U.S.C.

§ 2612(a)(1). If an employer “interfere[s] with, restrain[s], or den[ies] the exercise

of” an employee’s rights under the FMLA, the FMLA allows that employee to

bring a private action against the employer. Hurlbert v. St. Mary’s Health Care

Sys., Inc., 

, 1293 (11th Cir. 2006) (quoting 29 U.S.C.

§§ 2615(a)(1)). We have recognized that the FMLA creates a claim for

interference, “in which an employee asserts that [her] employer denied or


       3
         In the case before us, Bailey has not asserted an independent claim against the City for a
violation of her HIPAA rights, so we do not address whether any of the City’s actions would
have otherwise constituted a violation of HIPAA.
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otherwise interfered with [her] substantive rights under the Act.” 

omitted).

       One of the substantive rights which the FMLA protects from interference,

and the right at issue here, is the right “to be restored . . . to the position of

employment held by the employee when the leave commenced” or “to be restored

to an equivalent position.” 29 U.S.C. § 2614(a)(1). That right, however, is not

absolute. See 29 U.S.C. § 2614(a)(3)(B). An employer is not liable for

interference, for instance, if it can show that it refused to restore the employee to

her position of employment for a reason unrelated to her FMLA leave. See Spakes

v. Broward Cnty. Sheriff’s Office, 

, 1310 (11th Cir. 2011);

Strickland v. Water Works & Sewer Bd. of City of Birmingham, 

,

1208 (11th Cir. 2001) (“An employer can deny the right to reinstatement . . . if it

can demonstrate that it would have discharged the employee had he not been on

FMLA leave.”).

       Here, the City presented Bailey with the option to resign or be terminated

because she had used prescription narcotics without reporting that use to the City.

Even when the facts are viewed in the light most favorable to Bailey, there is no

genuine dispute of material fact that the City would have taken that same action if

Bailey had not taken FMLA leave. The City did not take action against Bailey as a

result of her FMLA leave, and its decision was unrelated to that leave. The district


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court did not err by granting summary judgment in favor of the City on Bailey’s

interference claim.

                                          B.

      In addition to interference claims, we have recognized that the FMLA

creates a claim for retaliation, “in which an employee asserts that [her] employer

discriminated against [her] because [s]he engaged in [an] activity protected by the

Act.” 

(quotation marks omitted). To establish a

retaliation claim, an employee must demonstrate that her employer intentionally

discriminated against her for exercising a right guaranteed under the FMLA.

Martin v. Brevard Cnty. Pub. Sch., 

, 1267 (11th Cir. 2008). Absent

direct evidence of retaliatory intent, we apply the burden-shifting framework set

forth in McDonnell Douglas Corp. v. Green, 

, 

(1973).

. Under that framework, the employee bears the initial

burden of establishing a prima facie case of FMLA retaliation. 

prima facie

case is established, the burden then shifts to the employer “to articulate a legitimate

reason” for the action it took against the employee. 

.

Once such a reason is articulated, the employee must “show that the [employer’s]

proffered reason for the adverse action is pretextual.” 

summary

judgment, specific facts showing pretext are needed; “[m]ere conclusory




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allegations and assertions will not suffice.” Earley v. Champion Int’l Corp., 

, 1081 (11th Cir. 1990).

      Here, the City explained that it gave Bailey the option to resign or be

terminated because she had violated its drug-free workplace policy. Even

assuming that Bailey could establish a prima facie case of retaliation, she has not

shown that the City’s articulated reason for its action was pretextual. She put forth

no evidence to support her allegation of pretext, and mere conclusory allegations

are not enough. Because there is no genuine dispute of material fact, and because

the City is entitled to judgment as a matter of law, the district court did not err by

granting summary judgment to it on Bailey’s retaliation claim.

      AFFIRMED.




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