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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-12389
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 6:18-cv-00161-ACC-GJK



ANGEL L. APONTE,

                                                           Plaintiff-Appellant,

                                  versus

BROWN & BROWN OF FLORIDA, INC.,
d.b.a.
Brown & Brown, Inc.,

                                                          Defendant-Appellee.

                      ________________________

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

                            (March 24, 2020)


Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Angel Aponte appeals the district court’s denial of his request for a jury trial

on his claims arising under the Family and Medical Leave Act and the Americans

with Disabilities Act, its grant of summary judgment on various claims under the

FMLA and the ADA, and its opinion denying his remaining FMLA interference

claim, which it issued following a bench trial. He argues that the district court

erred in: (1) denying his request for a jury trial; (2) granting summary judgment on

his FMLA interference claims where Brown & Brown, Inc.’s technical violations

of the FMLA prejudiced him and he was entitled to additional time to take a

licensing exam under the FMLA; (3) granting summary judgment on his FMLA

retaliation claim where he alleged a causal relationship between his FMLA request

and his termination; (4) granting summary judgment on his ADA discrimination

claim where he alleges that B&B knew of his disability and fired him anyway; (5)

granting summary judgment on his ADA failure-to-accommodate claim where he

contends that he was entitled to additional time to take his licensing exam under

the ADA; and (6) ruling that B&B had proved its “same decision” affirmative

defense at trial.

       As we will explain, Aponte has not shown that the district court erred. We

therefore affirm the district court’s denial of Aponte’s request for a jury trial, its

grant of summary judgment, and its conclusion that B&B prevailed following the

bench trial.


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                                         I

      The parties are familiar with the facts, so we repeat them only briefly here.

Angel Aponte was hired as a sales associate for Brown & Brown, Inc., a position

that required him to obtain a Property and Casualty 2-20 license. B&B terminated

Aponte on March 3, 2017, stating as its reason that Aponte had failed to acquire

the necessary license. From February 27, 2017 to March 2, 2017, shortly before he

was terminated, Aponte was hospitalized for ulcerative colitis. And on March 3—

again, before he was terminated—he asked B&B how to file a request for a leave

of absence under the Family and Medical Leave Act.

      Aponte sued B&B, arguing that B&B wrongfully terminated him because he

requested leave. He claimed violations of the Family and Medical Leave Act, the

Florida Civil Rights Act, and the Americans with Disabilities Act. The district

court granted B&B’s motion to strike Aponte’s demand for a jury trial because

Aponte had signed an employment agreement with a jury-trial waiver provision.

The district court subsequently granted B&B’s motion for summary judgment on

all of Aponte’s claims save one: that B&B interfered with his FMLA rights by

terminating him after he requested FMLA leave. After a bench trial, the district

court concluded that B&B proved that it would have terminated Aponte regardless

of his request for FMLA leave because he failed to obtain the required license.

      Aponte appealed the district court’s decisions to us.


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                                          II

      Aponte first claims that the trial court erred in striking his demand for a jury

trial. “We review the grant of a motion to strike a jury demand de novo.” Hard

Candy, LLC v. Anastasia Beverly Hills, Inc., 

, 1352 (11th Cir. 2019).

                                          A

      While we have not directly addressed the enforceability of jury-trial waivers

in the context of employment agreements, we have upheld arbitration provisions in

these agreements “as valid unless defeated by fraud, duress, unconscionability, or

another ‘generally applicable contract defense.’” Parnell v. CashCall, Inc., 

, 1146 (11th Cir. 2015) (quoting Rent-A-Center, West, Inc. v. Jackson,

, 67–68 (2010)) (stating that the enforceability of such an arbitration

provision is based on the Federal Arbitration Act). And generally, while “[t]he

seventh amendment right is . . . a fundamental one,” courts have recognized that “it

is one that can be knowingly and intentionally waived by contract.” Leasing Serv.

Corp. v. Crane, 

, 832 (4th Cir. 1986); see also Merrill Lynch & Co.

Inc. v. Allegheny Energy, Inc., 

, 188 (2d Cir. 2007) (“Although the

right is fundamental and a presumption exists against its waiver, a contractual

waiver is enforceable if it is made knowingly, intentionally, and voluntarily.”).




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                                          B

      Here, the record evidence demonstrates that Aponte’s jury-trial waiver was

knowing and voluntary. The jury-trial waiver provision in the employment

agreement was written in bold and all-capital letters and set apart in a paragraph

labeled “WAIVER OF JURY TRIAL.” The waiver’s language was

straightforward, and Aponte does not dispute that he signed the agreement.

Further, Aponte doesn’t raise any contract defenses, such as fraud, duress, or

unconscionability. Accordingly, the district court did not err in granting B&B’s

motion to strike.

                                         III

      We next consider Aponte’s claims arising out of the district court’s grant of

summary judgment in favor of B&B. Specifically, Aponte argues that the district

court erred in granting summary judgment on the following claims: (1) FMLA

interference, (2) FMLA retaliation, (3) ADA discrimination, and (4) ADA failure-

to-accommodate. The party moving for summary judgment bears the initial

burden of establishing the absence of a dispute over a material fact. Celotex Corp.

v. Catrett, 

, 323 (1986). The burden then shifts to the non-moving

party, who “may not rest upon mere allegation[s] . . . but must set forth specific

facts showing that there is a genuine issue for trial.” Eberhardt v. Waters, 

, 1580 (11th Cir. 1990) (quotation omitted); Fed. R. Civ. P. 56(e).


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                                           A

      Aponte argues that the district court erred in granting summary judgment on

the bulk of his FMLA interference claim because B&B committed technical

violations that prejudiced him. We review a district court’s grant of summary

judgment de novo, viewing all evidence “in the light most favorable to the non-

moving party.” Owen v. I.C. Sys., Inc., 

, 1270 (11th Cir. 2011).

                                           1

      The FMLA grants an eligible employee the right to take up to 12 weeks of

unpaid leave annually for several reasons, including “a serious health condition”

that prevents the employee from performing the functions of his position. 29

U.S.C. § 2612(a)(1). Moreover, after the completion of FMLA qualified leave,

eligible employees have the right “to be restored by the employer to the position of

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

equivalent position with equivalent employment benefits, pay, and other terms and

conditions of employment.”

      “To preserve and enforce these rights, the FMLA creates two types of

claims: interference claims, in which an employee asserts that his employer denied

or otherwise interfered with his substantive rights under the Act . . . [,] and

retaliation claims, in which an employee asserts that his employer discriminated

against him because he engaged in activity protected by the Act.” Jones v. Gulf


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Coast Health Care of Delaware, LLC, 

, 1267 (11th Cir. 2017)

(alterations in original) (quotation marks and quotation omitted). To make out an

FMLA interference claim, Aponte must demonstrate that he was (1) “entitled to a

benefit under the FMLA” and (2) “denied . . . that benefit” by B&B. White v.

Beltram Edge Tool Supply, Inc., 

, 1191 (11th Cir. 2015).

      Employers who violate the FMLA’s provisions are “liable to any eligible

employee affected . . . for damages” and “for such equitable relief as may be

appropriate.” 29 U.S.C. § 2617(a)(1). A plaintiff can recover damages under the

FMLA for “any wages, salary, employment benefits, or other compensation denied

or lost . . . by reason of the violation,” or for “any actual monetary losses

sustained . . . as a direct result of the violation.”

(emphasis

added). The Supreme Court has thus made clear that “[section] 2617 provides no

relief unless the employee has been prejudiced by the violation.” Ragsdale v.

Wolverine World Wide, Inc., 

, 89 (2002). And we have held that

“[e]ven if the defendant[] ha[s] committed certain technical infractions under the

FMLA, [the] plaintiff may not recover in the absence of damages.” Graham v.

State Farm Mut. Ins. Co., 

, 1284 (11th Cir. 1999).

                                           2

      With regard to the alleged technical violations of the FMLA, Aponte has

neither argued nor demonstrated that any monetary damages he claimed stemmed


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from those violations. He states, in a conclusory fashion, that the technical

violations “otherwise affected” his employment and “prejudiced” him but does not

explain how they did so. In the absence of any evidence showing that Aponte

sustained any monetary loss or any other prejudice as a direct result of the alleged

technical violations of the FMLA, Aponte was not entitled to any relief and the

district court did not err in granting summary judgment on those claims. 29 U.S.C.

§ 2617(a)(1)(A)(i); 

.

      Aponte seems to suggest that 29 C.F.R. § 825.215(b) required B&B to give

him additional time in which to take his licensing exam. The regulation states:

      If an employee is no longer qualified for the position because of the
      employee’s inability to attend a necessary course, renew a license, fly
      a minimum number of hours, etc., as a result of the leave, the
      employee shall be given a reasonable opportunity to fulfill those
      conditions upon return to work.

29 C.F.R. § 825.215(b). By its terms, this regulation applies “[i]f an employee is

no longer qualified for the position.”

Here, however,

Aponte was never qualified for his position in the first place. The record

establishes that acquiring the 2-20 license was always a requirement of the position

that Aponte held and that Aponte was aware of that fact from the time he began

working at B&B until the time he was terminated. The record is also clear that

Aponte never acquired the license during the time he was employed at B&B.




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Given that Aponte was never qualified for his position, he had no right to

additional time to obtain his license under the FMLA.

                                         B

      Aponte next argues that the district court erred in granting summary

judgment on his FMLA retaliation claim.

                                         1

      To establish an FMLA retaliation claim, Aponte “must demonstrate that his

employer intentionally discriminated against him in the form of an adverse

employment action for having exercised an FMLA right.” Strickland v. Water

Works & Sewer Bd., 

, 1207 (11th Cir. 2001). An FMLA retaliation

claim carries an “increased burden” to show that the employer’s actions were

motivated by a retaliatory animus.

here, there is no direct evidence of discrimination, the McDonnell

Douglas burden-shifting framework applies. See Brungart v. BellSouth

Telecomms., Inc., 

, 798 (11th Cir. 2000) (citing McDonnell Douglas

Corp. v. Green, 

(1973)). To establish a prima facie case of FMLA

retaliation, Aponte must demonstrate that “(1) he engaged in statutorily protected

activity, (2) he suffered an adverse employment decision, and (3) the decision was

causally related to the protected activity.” Martin v. Brevard Cty. Pub. Sch., 543




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, 1268 (11th Cir. 2008). Regarding the “causal link” requirement, we

have recognized that

      a plaintiff must, at a minimum, generally establish that the defendant
      was actually aware of the protected expression at the time the
      defendant took the adverse employment action. Since corporate
      defendants act only through authorized agents, in a case involving a
      corporate defendant the plaintiff must show that the corporate agent
      who took the adverse action was aware of the plaintiff’s protected
      expression and acted within the scope of his or her agency when
      taking the action.

Raney v. Vinson Guard Serv., Inc., 

, 1197 (11th Cir. 1997) (citation

omitted) (analyzing a Title VII retaliation claim); see also 

(analyzing an FMLA retaliation claim and stating that “the plaintiff must

generally show that the decision maker was aware of the protected conduct at the

time of the adverse employment action” (citing 

)). “If

[Aponte] makes out a prima facie case, the burden then shifts to [B&B] to

articulate a legitimate reason for the adverse [employment] action.” Hurlbert v. St.

Mary’s Health Care Sys., Inc., 

, 1297 (11th Cir. 2006). “If [B&B]

does so, [Aponte] must then show that [B&B’s] proffered reason for the adverse

action is pretextual.”

even assuming that Aponte has made a prima facie showing of FMLA

retaliation, he has failed to rebut B&B’s proffered non-retaliatory reason for his

termination: his failure to obtain the 2-20 license within the time allotted. The
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record reflects that Peter Matulis, B&B’s executive vice president, determined—at

the very latest, during the week of February 20, 2017 (in advance of Aponte’s

hospitalization beginning on February 27, 2017)—that he would fire Aponte if

Aponte failed to acquire the 2-20 license by March 3, 2017. Matulis believed this

decision to be self-effectuating. Further, Aponte knew this was his deadline and

that he would be terminated if he did not have his license on that date. Because

Aponte failed to pass the 2-20 exam by that deadline, he was terminated. Aponte

has not provided any evidence to contradict B&B’s proffered reason for his

termination, and has, consequently, failed to meet his burden under McDonnell

Douglas. 

. The district court did not err in granting

summary judgment on his FMLA retaliation claim.

                                                C

       Aponte next asserts that the district court erred in granting summary

judgment on his ADA discrimination claim. 1

                                                1

       The ADA prohibits, among other things, employers from discriminating

“against a qualified individual on the basis of disability in regard to job application




1
  Aponte also appears to challenge the district court’s decision as to his claims under the Florida
Civil Rights Act, which are governed by the same standards as the ADA. Holly v. Clairson
Indus., LLC, 

, 1255 (11th Cir. 2007). Our analysis of his ADA claims thus applies
equally to any claims he has raised under the FCRA.
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procedures, the hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a). To establish a prima facie case of ADA

discrimination, Aponte must show that he: “(1) is disabled, (2) is a qualified

individual, and (3) was subjected to unlawful discrimination because of his

disability.” Greenberg v. BellSouth Telecomms., Inc., 

, 1263 (11th

Cir. 2007) (alteration adopted) (quotation omitted). The ADA defines “qualified

individual” as “an individual who, with or without reasonable accommodation, can

perform the essential functions of the employment position.” 42 U.S.C.

§ 12111(8). It further states that “consideration shall be given to the employer’s

judgment as to what functions of a job are essential, and if an employer has

prepared a written description before advertising or interviewing applicants for the

job, this description shall be considered evidence of the essential functions of the

job.”

cannot make a prima facie case of ADA discrimination because he is

not a “qualified individual” under the ADA. When he began working for B&B,

Aponte signed a job description stating that the 2-20 license was a requirement of

his position. Given that Aponte was required to obtain his 2-20 license from the




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day he started working at B&B and that he failed to do so during his employment,

he was never qualified for his position.

                                           D

      Aponte also contends that the district court erred in granting summary

judgment on his failure-to-accommodate claim under the ADA. As with his ADA

discrimination claim, Aponte must have—but has not—demonstrated that he is a

“qualified individual” under the ADA. See Morisky v. Broward Cty., 

,

447 (11th Cir. 1996) (stating that a plaintiff, arguing that her employer failed to

provide a reasonable accommodation, must prove that “she is a qualified

individual”). Because Aponte’s position required him to obtain a 2-20 license and

he did not do so, he was not “qualified” and therefore cannot establish that he was

entitled to a reasonable accommodation under the ADA.

                                           IV

      Aponte finally claims that the district court erred in entering judgment for

B&B following the bench trial and, more particularly, in concluding that B&B

proved its “same decision” affirmative defense. “After a bench trial, we review the

district court’s conclusions of law de novo and the district court’s factual findings

for clear error.” Proudfoot Consulting Co. v. Gordon, 

, 1230 (11th

Cir. 2009). Unlike at the summary judgment stage, a district court is not required

to draw all inferences in favor of one party over another at a bench trial. Cf.

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                                          A

      The rights granted by the FMLA are not absolute. We have recognized that

“an employee can be dismissed, preventing [him] from exercising [his] right to

commence FMLA leave, without [the employer] violating the FMLA, if the

employee would have been dismissed regardless of any request for FMLA leave.”

Krutzig v. Pulte Home Corp., 

, 1236 (11th Cir. 2010). Moreover, we

have held that “unrebutted evidence that the decision maker was not aware, at the

time of the decision to terminate [the plaintiff], of [his] request to commence

FMLA leave establishes as a matter of law that [the plaintiff’s] termination was for

reasons other than her requested leave.”

of Civil Procedure 8(c) generally requires that “a party must

affirmatively state any avoidance or affirmative defense” when “responding to a

pleading.” But “if a plaintiff receives notice of an affirmative defense by some

means other than the pleadings, the defendant’s failure to comply with Rule 8(c)

does not cause the plaintiff any prejudice.” Grant v. Preferred Research, Inc., 

, 797 (11th Cir. 1989) (quotation omitted). In Grant, the defendant raised

a statute-of-limitations defense for the first time in a motion for summary judgment

filed approximately one month before trial.

plaintiff was “fully

aware” that the defendant “intended to rely on” the defense, and because the

“plaintiff d[id] not assert any prejudice from the lateness of the pleading,” we held


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that the defendant’s failure to comply with Rule 8(c) did not result in a waiver.

                                          B

      As an initial matter, we reject Aponte’s argument that B&B was required to

prove its affirmative defense “beyond dispute or speculation.” Aponte relies on

our decision in Martin v. Brevard County Public School, but that case dealt with an

appeal from a grant of summary 

. Here, however, the

issue of whether B&B had proved its defense was decided at a bench trial, where

the district court was empowered to make factual and credibility determinations

and was not required to make all inferences in Aponte’s favor. See 

. Given that Aponte has not provided any authority suggesting that

facts had to be proven “beyond dispute” at the bench-trial stage, the district court

did not err in basing its conclusions on a preponderance standard.

      Moreover, Aponte failed to produce any evidence to contradict B&B’s

defense that he was terminated as a result of his failure to obtain the 2-20 license.

The record reflects that Matulis determined that he would fire Aponte if Aponte

failed to obtain the license by March 3, 2017. This decision was made in advance

of Aponte’s hospitalization. Under these circumstances, the district court did not

err in determining that B&B had proven its defense by showing—by a




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preponderance of the evidence—that it would have fired Aponte regardless of his

request for FMLA leave. 

.

         Finally, the district court did not err in considering B&B’s affirmative

defense, even though it was raised at the summary-judgment stage. Aponte does

not explain how he was prejudiced by B&B failing to raise the defense in its

answer. And further, Aponte had notice of the defense several months before the

bench trial. B&B first raised the defense in its October 2018 motion for summary

judgment, and the bench trial was not held until April 2019. Cf. 

–98 (holding that the plaintiff was not prejudiced when the defendant raised a

defense for the first time one month before trial).

                                         * * *

         In sum, the district court did not err in denying Aponte’s request for a jury

trial, granting summary judgment on his FMLA and ADA claims, and in

concluding that B&B succeeded in proving its affirmative defense following the

bench trial. We reject Aponte’s arguments to the contrary and affirm the district

court.

         AFFIRMED.




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