KENDRA MUNOZ, Plaintiff - Appellant, versus SELIG ENTERPRISES, INC., Defendant - Appellee.
No. 18-14606
United States Court of Appeals, Eleventh Circuit
December 4, 2020
[PUBLISH]
Before MARTIN, NEWSOM, and JULIE CARNES, Circuit Judges.
D.C. Docket No. 1:16-cv-03924-MHC
MARTIN, Circuit Judge:
This is Kendra Munoz’s appeal of the District Court’s grant of summary judgment to her former employer, Selig Enterprises, Inc. (“Selig”), on her claims under the
I.
From 2005 to 2013, Ms. Munoz was an executive leasing assistant at Selig, which is a real estate management company. She provided administrative assistance to two vice presidents at Selig, Kent Walker and Jim Saine. She received raises and bonuses from Selig every year.
In January 2010, Ms. Munoz was disciplined for tardiness. She discussed this issue with Mr. Saine and Mr. Walker, completed team counseling, and signed a performance memorandum indicating her willingness to become more of a “team player” and arrive to work on time.
Then in 2011, Ms. Munoz began experiencing chronic health issues. She was eventually diagnosed with uterine fibroids, ovarian cysts, and endometriosis. She testified that, once in January 2012 and again twice in November 2012, she told Mr. Saine and Mr. Walker she may have uterine fibroids. She claims that she asked to be accommodated for intermittent lateness, early departure, or full-day absences as dictated by her condition and doctor’s appointments. But Mr. Saine said Ms. Munoz never gave these notifications or requests. Later, in February 2013, Ms. Munoz told Mr. Saine and Mr. Walker she needed time off for
Ms. Munoz did send emails to Mr. Saine and Mr. Walker during 2011 to 2013 asking for permission to be late or absent generally because of illness and doctor’s appointments.1 One email from October 2012 said, “I’m sorry but I will not make it into the office today. I live with pain everyday and I just can’t push past it today—just can’t.” A few months later, Ms. Munoz wrote, “Terrible weekend—in bed sick the entire 2 days. My pain meds make me dizzy so I can[’]t drive right now.” In March 2013, Ms. Munoz described that it was “just too hard” in the morning and she was “sick almost every day.” And two months later, she emailed that she felt “completely immobilized” and could not “[p]hysically . . . make it in today.” On another occasion, Ms. Munoz’s endometriosis caused her to
According to Ms. Munoz, Selig was less than accepting of her need for medical leave. One day when Ms. Munoz was tardy for health reasons—and emailed to let Selig know she was sick— Mr. Saine remarked, “Oh, look what the cat drug in,” when she arrived at the office. Mr. Walker also testified that he probably referred to Ms. Munoz’s health conditions at some point during her employment as “female issues” or a “female problem.”
Mr. Saine and Mr. Walker deny that they grew frustrated with Ms. Munoz’s medical leave. Instead, they say Ms. Munoz’s work performance suffered around the same time that her health deteriorated. Both supervisors testified they lost patience with Ms. Munoz in April 2013 after a particularly frustrating email exchange. By email, Ms. Munoz told Mr. Saine and a Selig client that Saine was handling a certain work task himself. Mr. Saine insisted he had asked Ms. Munoz to take care of it. Ms. Munoz responded, “Nope—you didn’t—at any rate, I WILL take care of it now. It’s back on my desk—to my surprise and I’ll handle it. No worries. :-D” Mr. Saine forwarded the email to Mr. Walker, saying, “This attitude is very upsetting.”
Mr. Saine also testified that he saw Ms. Munoz working on personal tasks during work hours. On May 5, 2013, he downloaded a computer program that
All told, Ms. Munoz was tardy 72 days in 2009, 53 days in 2010, 23 days in 2011, 75 days in 2012, and 32 days between January and May 2013. Ms. Munoz testified that the occasions of her tardiness related to chronic illness outnumbered those unrelated to her health. Nevertheless, Mr. Saine and Mr. Walker believed the majority of Ms. Munoz’s tardies were for non-health related reasons.
On May 22, 2013, Mr. Saine and Mr. Walker prepared a memorandum on Ms. Munoz’s performance (the “Performance Memo” or “Memo”), along with Selig CFO Ron Stein, who oversaw Selig’s human resources matters. The Performance Memo listed concerns like Ms. Munoz’s defensiveness, excessive tardiness, failure to seek consent before changing her work hours, failure to adequately give notice when taking extended paid time off, excessive amount of the day working on personal affairs, and causing a difficult work environment.
On June 6, 2013, Mr. Saine and Mr. Walker met with Ms. Munoz to review these concerns. Ms. Munoz testified that their discussion touched on many things, including Mr. Saine and Mr. Walker’s concern that she had not given them enough notice about taking off for spring break. But according to Ms. Munoz, the “common thread” of their criticism was “You’ve been out” and “You’ve been
I’m not signing this [Performance Memo] guys because . . . this goes against everything that I am doing here. I have endometriosis, how, how can I not be out anymore, how can I effectively remedy this situation when I have a chronic illness and you already know I’m going to be late and you know I’ve been late because of it.
According to Ms. Munoz, Mr. Saine then responded, “Oh nobody’s sick that long. You’ve been sick for over a year. Who’s sick that long; over a year you’ve been sick?” Ms. Munoz says she was fired shortly after.
For their part, Mr. Saine and Mr. Walker say Ms. Munoz did not refuse to sign the Memo on account of her health conditions. Mr. Saine says Ms. Munoz did not offer any health reason for declining to sign, and Mr. Walker says she never brought up her endometriosis at all during the meeting. Mr. Saine acknowledged that when Ms. Munoz otherwise brought up her health conditions as a reason for
II.
In December 2013, following her termination, Ms. Munoz filed a charge of discrimination with the Equal Employment Opportunity Commission. She then filed suit in federal court in October 2016, making several statutory claims. She alleged Selig discriminated against her under the
After the close of discovery, Selig moved for summary judgment on all claims. A magistrate judge recommended granting Selig’s motion. The magistrate judge found that Ms. Munoz was not disabled within the meaning of the ADA because she “provided no evidence of the limiting effects of her health condition beyond her own declaration and deposition testimony.” The magistrate judge also found that Selig never denied Ms. Munoz any accommodations and that Selig fired her for reasons unrelated to her medical conditions, namely “insubordination” and “defensiveness.”
Ms. Munoz objected to the magistrate judge’s recommendations, arguing, among other things, that Mr. Saine’s comment that “nobody’s sick that long” was evidence of discriminatory and retaliatory intent. She also objected to the analysis of her other performance issues (being insubordinate, defensive, and off-task)
The District Court overruled Ms. Munoz’s objections and adopted the recommendations of the magistrate judge, granting summary judgment to Selig. Ms. Munoz timely appealed.
III.
We review de novo a district court’s grant of summary judgment. Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). We view the evidence and draw all reasonable inferences in favor of Ms. Munoz, the party opposing summary judgment. See id.
IV.
We consider Ms. Munoz’s ADA claims first, then turn to her FMLA claims.
A.
The ADA protects an employee who (1) has a disability; (2) can perform the essential functions of her job with or without reasonable accommodations; and (3) is subjected to unlawful discrimination because of her disability. See Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1267–68 (11th Cir. 2014). The District Court granted summary judgment on Ms. Munoz’s ADA claims because she had not proven she was disabled within the meaning of the statute. We agree
The ADA considers an employee disabled if she has an impairment that substantially limits a major life activity. Rossbach v. City of Miami, 371 F.3d 1354, 1357 (11th Cir. 2004) (per curiam). Major life activities include, but are not limited to, “caring for oneself, performing manual tasks, seeing, hearing eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”
Ms. Munoz argues that she had an ADA-qualifying disability because she was ill from 2011 to 2017 with ovarian cysts, uterine fibroids, and endometriosis. She relies on her own testimony that she suffered “extreme pain, exhaustion, sleep interruption, and lack of bodily function control.” She says these ailments substantially limited her ability to sleep, work, and reproduce.
The record does include evidence that Ms. Munoz’s health was impaired. But, despite this, we cannot conclude that Ms. Munoz’s impairments substantially
Our Court rejected a claim similar to Ms. Munoz’s in Lewis v. City of Union City, 934 F.3d 1169 (11th Cir. 2019). In that case, Jacqueline Lewis asserted disability under the ADA because of a permanent injury to her heart from a heart attack. Id. at 1179–80. She argued that her condition substantially limited her ability to sleep and breathe. Id. at 1180. In support of her ADA claims, Ms. Lewis testified that she experienced “periodic shortness of breath” which her primary care doctor testified “could” affect Lewis’s ability to sleep. Id. (alteration adopted). But because Ms. Lewis introduced no evidence of “the severity, frequency, and duration of these episodes,” this Court held she did not provide sufficient evidence to show she was disabled under the ADA. Id. at 1180–81.
Like Ms. Lewis, Ms. Munoz does not point to evidence of the frequency or duration of her pain, exhaustion, sleep problems, or lack of bodily function control. She asserts “there were days she could not leave bed because of pain and fatigue” and she “was house bound from time-to-time.” Appellant’s Br. at 8, 47. We do not doubt that Ms. Munoz was quite sick at points in her Selig career. But, on review of the record, Ms. Munoz has not provided evidence of how often and how
Neither did Ms. Munoz introduce evidence that she was substantially limited in reproductive function when she was employed by Selig. Reproduction is a major life activity under the ADA. See Bragdon v. Abbott, 524 U.S. 624, 639 (1998). Of course, endometriosis is a disorder of the reproductive system. See id. at 660 (Rehnquist, J., concurring in the judgment in part and dissenting in part). By definition, so are uterine fibroids and ovarian cysts. Even so, Ms. Munoz introduced no evidence that she was substantially limited in her ability to procreate because of these impairments during the time she worked for Selig. The only relevant evidence in the record is that Ms. Munoz had a hysterectomy in January 2017, which was three-and-a-half years after she was terminated by Selig. Without more evidence that Ms. Munoz was substantially limited in her ability to reproduce while she worked at Selig, she cannot establish disability for purposes of her ADA claim. See Cash v. Smith, 231 F.3d 1301, 1306 (11th Cir. 2000) (affirming grant of summary judgment to employer on ADA claim because employee had not “shown that she was
On this record, we cannot say Ms. Munoz is disabled under the ADA. Therefore, the District Court correctly granted summary judgment to Selig on her ADA claims.
B.
Ms. Munoz’s FMLA claims find more traction. Accepting her account of the June 6 meeting with Mr. Saine and Mr. Walker as true, a reasonable jury could find Ms. Munoz suffered retaliation for intending to use FMLA leave in the future. Because Ms. Munoz raises triable issues of fact on her claim of FMLA retaliation, we reverse the District Court’s grant of summary judgment.
The FMLA provides eligible employees the right to 12 weeks of leave for a serious health condition that makes the employee unable to perform the functions of her position. Batson v. Salvation Army, 897 F.3d 1320, 1328 (11th Cir. 2018) (citing
Ms. Munoz first claims that Selig interfered with her rights under the FMLA by withholding notice that she was eligible for FMLA leave.
An FMLA interference claim lies if an employee can demonstrate by a preponderance of the evidence that she was entitled to an FMLA benefit and her employer denied her that benefit. Id. at 1331. “When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances.”
Selig never notified Ms. Munoz of her right to take FMLA leave. This failure may well have interfered with Ms. Munoz’s FMLA rights.2 But to prevail
on her FMLA interference claim, Ms. Munoz must show harm from the alleged interference with her rights. See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1284 (11th Cir. 1999) (per curiam) (“Even if the defendants have committed certain technical infractions under the FMLA, [a] plaintiff may not recover in the absence of damages.”). This harm must be “remediable by either damages or equitable relief.” Evans v. Books-A-Million, 762 F.3d 1288, 1296 (11th Cir. 2014) (quotation marks omitted).
Under our precedent, Ms. Munoz has not shown she was harmed by Selig’s failure to notify her of her right to FMLA leave. In Graham, an employee alleged that her employer, State Farm, violated the FMLA by failing to inform her of her FMLA rights. 193 F.3d at 1283. But State Farm “never denied [her] leave time,” and “she was provided with more than 170 hours of leave . . . , most of which was paid.” Id. at 1284. Because the employee received all the leave she requested, this Court held she had “not demonstrated that she suffered any damages as a result of State Farm’s actions” and thus could not recover under the FMLA. Id. Like the
Ms. Munoz tries to save her claim by arguing she suffered damages because she “was terminated rather than being granted the opportunity to continue to use . . . intermittent FMLA leave.” Appellant’s Br. at 27. This argument fails. An employee’s damages must be “a result of” the employer’s interference with rights guaranteed by the FMLA. See Graham, 193 F.3d at 1284. But Ms. Munoz has not identified any evidence that she was terminated as a result of Selig’s failure to give her notice of her FMLA rights. On this record, we affirm the District Court’s grant of summary judgment to Selig on Ms. Munoz’s FMLA interference claim.
2.
Ms. Munoz also argues that Selig retaliated against her. She says she was fired because she expressed the need for future FMLA leave and because she refused to sign the Performance Memo. We are persuaded that these claims should be heard by a jury.
The FMLA prohibits employers from retaliating against employees for engaging in protected activities. Batson, 897 F.3d at 1328 (citing
Ms. Munoz articulated two theories of FMLA retaliation. First, she says Selig retaliated against her for needing FMLA leave, and second, that Selig retaliated against her for refusing to sign the Performance Memo. We address each theory in turn.
a. Retaliation for Intending to Use Future FMLA Leave
Ms. Munoz has presented a prima facie case that Selig retaliated against her for needing FMLA leave.
i. Prima facie case
First, Ms. Munoz suffered an adverse employment action because Selig terminated her. See Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1234–35 (11th Cir. 2010) (recognizing termination as an adverse employment action).
Ms. Munoz also engaged in statutorily protected conduct. The FMLA protects an employee who gives “[n]otice of an intent to use FMLA leave in the
Selig contends that Ms. Munoz’s notice of future leave was not protected activity, because she did not give proper notice of her need for leave, including the “anticipated timing or duration” of leave. We are not persuaded. Of course, an employee who needs FMLA leave must give her employer adequate notice of her need. But the FMLA’s notice requirements depend on whether an employee’s need for leave is foreseeable. See White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1195 (11th Cir. 2015). If an employee’s need for FMLA leave is foreseeable, she must give her employer at least 30 days’ advance notice, or “such notice as is practicable.” Id. (quoting
Ms. Munoz says her need for leave was unforeseeable because she suffers from “a chronic health condition causing flareups.” Appellant’s Br. at 24. Because her flareups were unforeseeable, she says, she did not need to notify Selig of the timing or duration of her leave. She is right. Our Court has recognized that employees with health conditions who experience a sudden, acute flareup can demonstrate an unforeseeable need for FMLA leave. See, e.g., White, 789 F.3d at 1196–97 (holding an employee with a preexisting knee injury had an unforeseeable need for leave when the knee suddenly gave out and required surgery); Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1209 (11th Cir. 2001) (holding that an employee with diabetes had an unforeseeable need for leave when he “suffer[ed] a debilitating diabetic attack”). Ms. Munoz introduced evidence her endometriosis and uterine fibroids sometimes caused pain so severe she couldn’t move. She also testified she told both Mr. Saine and Mr. Walker of her diagnoses, need for medical treatment, and need for occasional leave to be tardy or absent. The record shows she emailed Mr. Saine and Mr. Walker on specific days she would be absent or late to work because of health issues. Like the plaintiffs in White and Strickland, Ms. Munoz had an unforeseeable need for
Rounding out her prima facie case of retaliation, Ms. Munoz also introduced evidence of a causal connection between her need for future FMLA leave and her termination. To show a causal connection, an employee must demonstrate that “the decision-makers were aware of the protected conduct, and that the protected activity and the adverse action were not wholly unrelated.” McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008) (alterations adopted) (discussing causation required for a Title VII retaliation claim).
Ms. Munoz points to a sufficient connection. First, she testified that she told Mr. Saine and Mr. Walker about her diagnosis of endometriosis and expressed her need for continued intermittent leave, making them aware of her protected conduct. She testified that Mr. Saine and Mr. Walker did not start looking for ways to fire her until she told them of her diagnosis and treatment. Indeed, the record reflects that just five days after Ms. Munoz says she told them of her endometriosis diagnosis and need for future leave, Mr. Saine downloaded software onto Munoz’s computer to monitor the time she spent off-task. Three weeks after Ms. Munoz began treatment for endometriosis, Mr. Saine and Mr. Walker prepared the Performance Memo to discipline her for attendance issues. Ms. Munoz then testified that she was terminated at the June 6 meeting shortly after she objected to
ii. Legitimate reason for termination
In response to Ms. Munoz‘s prima facie case of retaliation, Selig says it fired Munoz because of her “insubordination, ineffectiveness, and her tendency to handle personal projects while at work.” Appellee‘s Br. at 41. These stated reasons satisfy Selig‘s burden “to articulate a legitimate reason for [its] adverse action.” Hurlbert v. St. Mary‘s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006).
iii. Showing of pretext
In turn, however, Ms. Munoz meets Selig‘s articulation by introducing evidence that would allow a factfinder to conclude Selig‘s stated reasons for firing her are pretextual. To show pretext, an employee must introduce evidence “sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.” Jones v. Gulf Coast Health Care of Del., LLC, 854 F.3d 1261, 1274 (11th Cir. 2017) (quotation marks omitted). This evidence may include the evidence already produced by the employee to establish her prima facie case. See id. A showing of pretext arises from “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer‘s proffered legitimate reasons for its action.” Id. (quotation marks omitted).
Ms. Munoz carries her burden to show pretext. She testified that, at the June 6 meeting about her job performance, Mr. Saine and Mr. Walker mostly reprimanded her for being “out” and “late.” She says they did not reprimand her for working on personal matters or being insubordinate. She also stated that when they met to discuss the Performance Memo, Mr. Saine and Mr. Walker told her, “You‘re going to have to square this up. You‘re not going to be able to be late. You‘re not going to be able to be out.” Ms. Munoz testified that the “common thread” of the meeting was “You‘ve been out” and “You‘ve been late.” These comments suggest Selig was more concerned with her absences and tardiness than with Ms. Munoz working on personal matters at work or with her attitude.
Ms. Munoz also claims that Mr. Saine and Mr. Walker began monitoring her computer for signs she was off-task just five days after she told them about her diagnosis of endometriosis and her need for continued sick leave. And she notes she was fired only 37 days after disclosing her diagnosis and asking for future leave. Such “close temporal proximity between [a] request for leave and
Ms. Munoz also put forth evidence that Selig disapproved of her need for FMLA-qualifying leave. She testified that when she arrived late to work for health reasons, Mr. Saine would comment, “[L]ook what the cat drug in.” She also testified that, directly before she was fired, Mr. Saine remarked, “Oh nobody‘s sick that long. You‘ve been sick for over a year. Who‘s sick that long; over a year you‘ve been sick?” A reasonable jury could find further evidence of pretext from these comments, which suggest that Selig believed Ms. Munoz was misusing sick leave or even faking sickness.
Our Court recently considered a similar case in Jones. Mr. Jones alleged his employer had fired him in retaliation for taking FMLA leave. 854 F.3d at 1275-76. While he was employed, Mr. Jones‘s supervisor told him “‘corporate’ would not like the timing of Jones‘s FMLA leave.” Id. at 1271. Mr. Jones testified that when he was terminated, his supervisor said “corporate believed that [Jones] had abused and misused his FMLA leave” by traveling during his leave period and “demonstrat[ing] his ability to have earlier returned to work.” Id. at 1271, 1275. But on appeal, Mr. Jones‘s employer insisted Jones was fired for violating
Here too, a reasonable jury could consider the comments to Ms. Munoz as evidence that Selig‘s non-discriminatory reasons for firing her were pretextual. Viewing the evidence in the light most favorable to Ms. Munoz, a jury could find Mr. Saine intended to discipline Munoz for (untruthfully, in his view) claiming leave for her health conditions. Like the supervisor‘s comments in Jones, Mr. Saine‘s comments could be construed to reflect retaliatory animus against Ms. Munoz because she intended to use additional leave. And as in Jones, there is little evidence Ms. Munoz faked her illness in order to claim sick leave, thus adding to her showing that the comments reflected animus.
Selig argues that Ms. Munoz cannot establish pretext. It says Mr. Saine and Mr. Walker were more concerned with her insubordination and distraction at work than her absences or tardiness. Selig contends that Mr. Saine and Mr. Walker never learned that Ms. Munoz was diagnosed with endometriosis, so they did not
Finally, Selig appears to argue that it decided to terminate Ms. Munoz for her “defensiveness in an . . . email exchange” with Mr. Saine and a Selig client “about whether something did or did not occur and whose fault it was.” Id. at 41. This email exchange occurred before Ms. Munoz told Mr. Saine and Mr. Walker about her endometriosis diagnosis and need for future leave. Nevertheless, Selig‘s assertion does not establish, as a matter of law, that Selig is entitled to judgment on the retaliation claim. For example, in Hurlbert, an employer argued that its “decision to terminate [the plaintiff employee] had been set in motion” before he engaged in protected activity by requesting FMLA leave. 439 F.3d at 1299. It
Ms. Munoz‘s email exchange with Mr. Saine, while falling short of desirable professional standards, also fails to convince us that, as a matter of law, Selig would have terminated her on this basis. Because of the evidence of retaliatory animus in the record, a reasonable jury could reject Selig‘s stated reasons for terminating Ms. Munoz. This is how cases proceed at the summary judgment stage. If we were to accept Selig‘s argument, any misstep an employee makes before engaging in protected activity would allow her employer to evade liability for retaliation under the FMLA, regardless of the evidence of retaliatory animus. On this record, we reverse the grant of summary judgment on Ms. Munoz‘s first theory of retaliation under the FMLA.
b. Retaliation for Refusing to Sign the Performance Memo
Now for Ms. Munoz‘s second FMLA-retaliation theory. She argues she was terminated for refusing to sign the Performance Memo on June 6 because she believed, in light of the conversations that surrounded its presentation to her, that
The FMLA prohibits covered employers from “discriminat[ing] against any individual for opposing any practice made unlawful” by the FMLA.
In light of Mr. Saine and Mr. Walker‘s alleged remarks, Ms. Munoz could have reasonably believed that signing the Performance Memo would cause her to lose her right to FMLA leave. The Memo addressed her work attendance and cautioned that she could be terminated if she failed to make necessary changes. Mr. Saine and Mr. Walker allegedly emphasized that Ms. Munoz could not be late or absent anymore. Ms. Munoz claims that when she explained she would need more leave time for sickness and treatment, they did not acknowledge or alleviate this concern. Instead, Ms. Munoz alleges that Mr. Saine dismissed it and implied that Ms. Munoz was not entitled to leave for sickness or treatment. Given these circumstances, a jury could find Ms. Munoz reasonably believed she was opposing practices made unlawful by the FMLA by refusing to sign the Performance Memo.
Our precedent supports allowing a jury to decide whether Ms. Munoz‘s belief was objectively reasonable in this context. In Graham, the employee plaintiff brought an FMLA claim of retaliation. 193 F.3d at 1283. Ms. Graham suffered from injuries from a car accident, and she took time away from work for treatment and on account of pain. Id. at 1277-79. To support her claim of retaliation, she alleged that a memorandum from her employer documenting her series of absences from the office “led her to believe that she was going to be
Ms. Munoz received no assurances that she could continue to exercise her right to FMLA-qualifying leave. Again, viewed in the light most favorable to her, the circumstances at the June 6 meeting strongly indicated the opposite. Ms. Munoz claims that when she brought up her need to take leave that would qualify for protection under the FMLA, she was dismissed. And unlike the employer in Graham, when taking stock of employee attendance Selig did not distinguish between FMLA-protected absences and tardies from those not protected under the statute. Again here, a jury could reasonably conclude she was terminated for opposing practices she reasonably believed to be illegal under the FMLA.
Selig argues Ms. Munoz‘s belief was unreasonable because “the document itself did not specifically indicate or imply that by signing Munoz was agreeing
But, once again, that argument fails to account for Ms. Munoz‘s version of the facts. Accepting Ms. Munoz‘s account of the June 6 meeting, she reasonably believed that signing the Memo would waive her FMLA rights, because she understood Mr. Saine and Mr. Walker to communicate as much.3 Ms. Munoz
Selig does not persuade us that Ms. Munoz‘s belief about the Memo‘s effect is unreasonable, when—according to her—Mr. Saine and Mr. Walker did nothing to correct her belief. Again, Selig‘s version of the facts may well be true: Mr. Saine may have counseled Ms. Munoz about the implications of signing the Memorandum and insisted she sign it or face termination. The fact that the Memorandum did not specify that only “non-FMLA protected absences” would result in a sanction, coupled with Mr. Saine and Mr. Walker‘s statements at the June 6 meeting that Ms. Munoz would no longer be entitled to FMLA-protected leave as a result of signing the Memorandum, means that there remains a factual dispute regarding the objective reasonableness of Ms. Munoz‘s belief about the effect of the Memorandum. See Graham, 193 F.3d at 1284 & n.2. This is not a dispute we can resolve at the summary judgment stage.
V.
In sum, the District Court correctly granted summary judgment to Selig on Ms. Munoz‘s ADA and FMLA interference claims. But there are a number of factual disputes that are material to her FMLA retaliation claim, so summary judgment was not appropriate on this point. We reverse the grant of summary judgment on Ms. Munoz‘s retaliation claim and remand for further proceedings on that claim. The District Court‘s judgment is otherwise affirmed.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
The majority opinion affirms the district court‘s grant of summary judgment to defendant Selig Enterprises on plaintiff Kendra Munoz‘s ADA and substantive FMLA claims, and I concur. The majority opinion reverses the district court‘s grant of summary judgment to Defendant on Munoz‘s FMLA retaliation claim. I concur as to the majority‘s first ground for that ruling, but strongly dissent as to its second ground.
As the primary basis for her claim of retaliation, Munoz alleges that she was fired because she had informed her employer, defendant Selig, that she would continue to need to take some time off—here and there—to address a medical issue. Although the FMLA does not expressly use the term “retaliate,” we have held that an employer cannot retaliate against an employee who engages in conduct that is protected by the FMLA. Notifying one‘s employer that one will need time off to attend to a serious medical issue is obviously an act protected by the FMLA: indeed, it is the focus of the statute. And I agree with the majority that a jury question exists as to whether Defendant fired Munoz because she had notified Defendant of her continuing need to take medical leave, as opposed to other legitimate reasons it had for terminating her employment.
Had the majority left it at that, they would hear no disagreement from me. But the majority goes further, reaching out to identify a new kind of protected act.
Yet, the majority concludes that it might have been objectively reasonable for Munoz to conclude that Defendant was engaging in unlawful conduct when it directed her to acknowledge receipt of the document. And rather than decide—as our court has typically done—whether an employee‘s belief that particular conduct is protected by statute is an objectively reasonable belief, the majority laterals this novel question to a jury to decide.
In so ruling, the majority has largely jettisoned the objectively-reasonable-belief test that we have long used to gauge whether an employee‘s conduct should be deemed to be protected against an adverse action by the employer—the
To explain my disagreement with the majority‘s unique holding, I first set out the legal framework for this type of inquiry, and then explain why one cannot reasonably conclude that it was objectively reasonable for Munoz to believe her refusal to acknowledge receipt of her employer‘s memorandum of concerns was protected conduct under the FMLA.
I. Legal Framework
As pertinent to this case, the central right established by the FMLA is the entitlement of up to 12 weeks of leave each year “[b]ecause of a serious health
In examining a retaliation claim under the FMLA, we apply the same McDonnell Douglas test that is used for retaliation claims made pursuant to other federal employment statutes. The plaintiff-employee must first establish a prima facie case of retaliation, which requires that she demonstrate (1) that she engaged in statutorily protected conduct; (2) that she suffered an adverse employment action; and (3) that a causal connection exists between the two. Batson v. Salvation Army, 897 F.3d 1320, 1329 (11th Cir. 2018). Once the plaintiff has established a prima face case, the burden shifts to the employer to articulate a nonretaliatory reason for the adverse action. If the employer does so, the burden
Our panel unanimously agrees that Munoz‘s notification of her likely need for continuing intermittent leave constituted conduct that is protected by the FMLA, and that Munoz has introduced evidence sufficient to defeat summary judgment on her claim that Defendant fired Munoz in retaliation for that notification. I part company with the majority on Munoz‘s back-up argument that she also engaged in protected conduct when she refused her employer‘s directive that she acknowledge, with her signature, her receipt of a written memorandum setting out her employer‘s many concerns with her job performance. And, of course, absent a showing by Munoz that her refusal to comply was protected by the statute, she lacks any legitimate basis for launching a retaliation claim based on Defendant‘s response to that non-compliance.
So, the first question is whether Munoz‘s refusal to acknowledge receipt of a document given to her by her employer constituted protected conduct. The answer is obvious: of course, it was not protected by the FMLA or any other statute. Memoranda from employers to employees counseling the latter as to needed improvements have become a regular feature of the workplace. And they are a good thing for both the employer and the employee. They give the employer a
In fact, the majority agrees that the FMLA does not prohibit an employer from advising its employee of the employer‘s concerns nor from requiring the employee to sign an acknowledgement that she has received the document. That being so, Munoz can succeed on her argument that her conduct was protected only if she meets the two-prong test we have established in this area. Specifically, a plaintiff alleging that she was retaliated against for engaging in conduct that is protected must show two things: (1) that she actually, subjectively, believed that her employer was engaged in conduct made unlawful by the statute and (2) that this belief was an objectively reasonable belief. See Little v. United Techs., Carrier Transicold Div., 103 F.3d 956 (11th Cir. 1997). There we said,
It is critical to emphasize that a plaintiff‘s burden under this standard has both a subjective and an objective component. A plaintiff must not only show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented. It thus is not enough for a plaintiff to allege that his belief in this regard was honest and bona fide; the allegations and record must also indicate that the belief, though perhaps mistaken, was objectively reasonable.
In a summary judgment analysis, we typically spot the non-movant plaintiff the subjective element, and assume that a jury should decide that question.2 But we do not take such a deferential view when assessing the objective reasonableness of an incorrect belief by an employee. Unlike the fuzzy approach the majority has taken here, our caselaw has treated this test as more robust in its requirements. For example, in Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385 (11th Cir. 1998), the male plaintiffs opposed the company‘s grooming policy, which permitted women but not men to wear long hair, and they were fired after they refused to cut their hair. Affirming summary judgment for the company, we concluded that the plaintiffs’ belief that the grooming policy was discriminatory under Title VII was not objectively reasonable, as the caselaw around the country and in our own court had held such policies to be nondiscriminatory. Id. at 1388. We rejected the plaintiffs’ argument that, “when judging the reasonableness of their belief, we should not charge them with substantive knowledge of the law . . . .” Id. at n.2. To accede to the plaintiffs’ argument, we noted, “would eviscerate the objective component of our reasonableness inquiry” because “[i]f the plaintiffs are free to disclaim knowledge of the substantive law, the
In Clover v. Total System Services, Inc., 176 F.3d 1346, 1351 (11th Cir. 1999), the employer indicated that it had fired the plaintiff because of frequent tardiness and her false explanations for that conduct. She sued and alleged that she was actually fired for opposing sexually harassing conduct in violation of Title VII. Id. 1350-51. We concluded that the plaintiff had not shown to be objectively reasonable her belief that the conduct in question constituted sexual harassment. We stated, “We do not mean to hold that the conduct opposed must actually be sexual harassment, but it must be close enough to support an objectively reasonable belief that it is. The conduct Clover described misses the mark by a country mile.” Id. 1351 (emphasis added).
In Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318 (11th Cir. 1998), the plaintiff alleged that he was retaliated against by his employer, in violation of the ADA, because he requested accommodations for his alleged disability, which was a bad back. We concluded that not only was he wrong that he was disabled but that he had failed to produce evidence sufficient to “allow a rational fact finder to conclude that his belief that he was disabled under the ADA was objectively reasonable.” Having failed to make this showing, we held that the plaintiff could not establish that he had engaged in protected conduct. Id. 1329.
In Dixon v. Hallmark Companies, Inc., 627 F.3d 849 (11th Cir. 2010), the plaintiffs argued that they had been fired on religious grounds in violation of Title VII because they had protested their employer‘s refusal to allow them to keep religious symbols in their workplace. They argued that this refusal constituted an unlawful employment practice. Id. 857. Noting that the plaintiffs had ”called attention to no statutory or case law that can reasonably be believed to prohibit a private employer from keeping its own workplace free of religious references,” we concluded that the plaintiffs had failed to satisfy the objective prong of the protected-conduct test and had therefore failed to show that they had engaged in protected conduct. Id. (emphasis added).
In Weeks v. Harden Manufacturing Corp., 291 F.3d 1307 (11th Cir. 2002), the employer required each of its employees to agree to arbitrate all claims arising out of his or her employment, including all Title VII or discrimination claims. Id.
On interlocutory appeal, we reversed the district court, concluding that the plaintiffs’ belief was not an objectively reasonable belief and that the district court should therefore have granted summary judgment to the employer. We noted that such agreements have been accepted by almost all courts, including our own. Id.Id.would require an intellectual dishonesty in which this court will not engage.” Id.“to acknowledge receipt of a memorandum” for the phrase “to arbitrate employment disputes” and you have the case now before this panel.
In short, our caselaw makes clear that an employee‘s actual, mistaken belief that her employer has engaged in unlawful conduct does not necessarily constitute an objectively reasonable belief. And there is a great deal more rigor to the objective-reasonableness test than is reflected in the majority opinion‘s conclusory explanation for its determination that Munoz‘s belief satisfied this test. Indeed, the majority opinion largely ignores the above caselaw.3 Moreover, as discussed in greater detail below, Munoz comes nowhere close to meeting that test. First, she presents a far less persuasive case than did the plaintiffs in the cases discussed above, all of whom we held to have failed the objective-reasonableness test. There is simply no legal basis for an argument that merely by acknowledging receipt of a document reflecting the concerns of one‘s employer that the employee has waived
II. Munoz‘s Purported Belief Was Not Objectively Reasonable
A. Munoz‘s Purported Basis For Arguing that She Engaged In Protected Conduct
For the last few years of her tenure at Selig Enterprises, Munoz had been a very challenging employee. As a result, in June 2013, her two supervisors met with her to discuss their ongoing concerns, handing her a written memorandum setting out those concerns. At the end of the meeting, they asked that she affix her signature on the line of the document indicating her acknowledgement that she had received the document. She refused. As the supervisors’ concerns included what they believed to be Munoz‘s confrontational, uncooperative attitude, this final act of insubordination suggested the unlikelihood that Munoz‘s attitude was going to improve. They therefore suspended the meeting for fifteen minutes to speak to their attorney about their options. When they returned, they told Munoz that if she refused to sign the acknowledgement line showing her receipt of the memorandum, they would have to fire her. She refused. They fired her.
Yet, also as noted, I strongly disagree with the majority‘s identification of a second protected act on which a jury could properly base a finding of retaliation. The majority holds that Munoz may well have engaged in additional protected conduct when she refused to place her signature on the line of the memorandum of concerns denoting an acknowledgement of its receipt. And instead of deciding whether, on this record, such conduct can be deemed to be protected, the majority says a jury should decide.
Contrary to Munoz‘s position, the majority does agree that an employer does not engage in unlawful conduct merely by asking an employee to sign an acknowledgement of receipt of a document expressing her employer‘s concerns.
An understanding of the 2010 memorandum and the process that led to its issuance is important in evaluating the absence of any objectively reasonable belief by Munoz that she would have been forfeiting FMLA rights had she signed the 2013 memorandum. To set the stage for the 2010 memo, Munoz had gotten mad at her supervisors when they refused to let her leave immediately once it had started snowing. In a moment of pique, she began “slamming everything,” packed all her belongings in a box, and “stormed out” of the office as if she was quitting. This created disruption and confusion as to whether Munoz was resigning her position, which she apparently decided against as she returned to the office the next day. But her dramatic exit led to the issuance of the January 13, 2010 memorandum. Signed by the two men for whom she worked—Jim Saine and Kent Walker—as well as CFO Ron Stein, the memorandum set out Selig‘s concerns about Munoz‘s attitude and job performance and summarized the meeting relating to those concerns that occurred between Munoz, Saine, Walker, and Stein on the previous day. Munoz signed the memorandum that Selig presented to her in the block that acknowledged she had received it. She did so even though she clearly did not agree with all of its contents, as evidenced by the fact that she shortly thereafter produced her own memorandum setting out her own version of the meeting and disputing some of the criticisms directed toward her.
As to Item 2, the Selig memo stated, “It is important that everyone work as a team and pitch in on activities that might otherwise be outside our normal job function. Munoz’ response in her memorandum was to deny her own lack of teamwork, instead implicitly faulting Saine and Walker for their ‘harshness.‘”5
Item 4 of the Selig memo noted the need for Munoz to follow Selig‘s protocol for taking paid time-off (PTO) and for Munoz to reduce her number of tardy arrivals. The memorandum further indicated that its policies require Munoz to have her paid leave “approved in advance where possible by Jim and Kent.” While recognizing Munoz‘s interest in participating in her children‘s activities, the memorandum indicated that Selig would try to be as accommodating as possible, but that the interests of the business must take precedence. This item of the memo indicated the mutual agreement of Munoz and Selig that Munoz had been arriving to work late an unacceptable number of times and that Munoz agreed to improve. The memo indicated that the goal was to never be late, but that if Munoz was late more than 5 times in a month, “this would clearly be unacceptable.” In response,
As to Item 5, Selig‘s memo indicated that this item concerned discussion of procedural “issues” and that further elaboration in the memorandum was unnecessary. Apparently thinking that a good deal more elaboration was necessary, Munoz addressed the topic in her own memo, at Item 5, fleshing out her own position on what she characterized as procedural “changes.” Munoz, whose duty was to provide administrative assistance to Saine and Walker, acknowledged their request that she answer their calls, direct them accordingly, and not let their calls go directly to voicemail when they were on vacation; she agreed to accede to their request going forward. She further noted that when she has to leave work early and “advance notice is not possible, such as in the case of an emergency or unforeseen appointment,” instead of communicating her departure via an email to the two staff members who keep track of employee leave, she would verbally inform her bosses, Saine and Walker, that she was about to leave work. Then “[o]nce Kent, Jim, and Kendra have a definitive understanding and agreement of
As to Item 6, the Selig memorandum indicated that Saine and Walker “were generally concerned about Kendra‘s defensive reaction to requests, such as when a broker inquired about the status of returning a Lease, and her failure to listen promptly to voice messages that required an action on her part, which Kendra acknowledged.” It further noted that Munoz expressed concern about “being talked down to,” that Walker “agreed to improve,” and that Munoz, Saine, and Walker agreed to address concerns between them as promptly as possible. Nonetheless, the memo concluded: “For clarification, although Kendra, Kent and Jim are a team, Kent and Jim have the final responsibility to insure that their department is operating to their satisfaction.”
In her own memo, Munoz responded to what was a one-paragraph summary in the Selig memo concerning Munoz‘s “defensive reaction to requests” with four paragraphs of her own, identified as Items 7-10. In response to an example offered by Selig—broker inquiries about the status of returning to them a lease—Item 7 of Munoz‘s memo downplayed the significance of her supervisors’ concerns about her non-responsiveness, “explain[ing] that she gets those requests all the time from anxious brokers. 99% of the time the lease documents have
As to whom she apparently suspected to be an individual with the wrong attitude, Munoz is not subtle, stating in ¶ 8 of her memo, “Kent [Walker] recognized and agreed that he is fully aware of his condescending manner and tone at times. He said that it is an issue even his family has brought to his attention and correcting the behavior is a work in progress that he is actively working to improve. Kendra whole-heartedly understands that we are all a work in progress and supports Kent‘s efforts.”
Turning her aim to her other boss, Jim Saine, she continued, “Jim agreed that Kendra‘s concerns over his sarcastic and sometimes provoking responses were valid, and he agreed to work to correct those tendencies by not having a knee-jerk reaction response to Kendra‘s actions that may irritate him. Jim mentioned that at times he can be a little quick on responding in emotion rather than pausing for a period of time, then giving a well thought out appropriate response. Kendra understands that we are all very passionate about our careers and sometimes our emotions can get the better of us as human beings, and she supports Jim in his efforts.”
Just as Munoz had earlier acknowledged receipt of the Selig memorandum with her signature, Selig officials signed off on Munoz‘s memorandum, acknowledging by their signatures the receipt of that document. In short, Munoz signed the block of the 2010 Selig memorandum acknowledging her receipt of the document. But, given her authorship of a counter-memo, it is clear that she did not view this acknowledgement as reflecting her agreement with any criticisms nor a concession of any rights she might have as an employee. Nor was Munoz reluctant to push-back on her supervisor‘s criticism or shy about leveling criticism against her bosses. Indeed, she was assertive enough to take the initiative to draft her own competing memorandum setting out her position on all issues. Which brings us to the 2013 memorandum at issue in this case.
1. Events Leading up to the 2013 Memorandum
Before addressing the 2013 memorandum, it is helpful to provide some background concerning Selig‘s attendance policies and the timeline of significant events leading to the issuance of that memorandum. Selig allowed each employee 20 days of paid leave (PTO) each year. As for doctor‘s appointments, Selig‘s policy was generous, and did not require the taking of any leave for a doctor‘s appointment so long as the employee worked five hours on the day of the appointment. As to tardiness, Munoz had been tardy an excessive number of times during her tenure—both before she developed health issues and after. But several other employees were likewise tardy—some more than Munoz—and no Selig employee had ever been fired for tardiness. Further, Munoz does not aver that she was ever docked pay or otherwise disciplined for her tardiness prior to the June 2013 meeting with her supervisors, nor that she was ever penalized for her doctor‘s appointments. Likewise, she agrees that she was never denied PTO when she requested it and that she always received an annual bonus.
In October 2011, Munoz began suffering from back and abdominal pain attributed to uterine fibroids or cysts. In January 2012 and again in November 2012, she shared with her supervisors that she was experiencing some health issues. The majority opinion indicates that, prior to developing these symptoms,
Although her symptomology did not change, Munoz was finally given a diagnosis for her condition in late April 2013—endometriosis—and she advised her supervisors that she would continue to need some time off here and there to deal with this condition. Her supervisors testified that, although her continuing tardiness remained a concern, that issue was not what prompted their June 2013 meeting with her. Instead, just as the tardiness had persisted even after the 2010 meeting and memoranda, so had Munoz‘s combative attitude. According to Kent Walker, Munoz was defensive and unwilling to take responsibility whenever she had made a mistake or failed to handle an assignment: “You really couldn‘t go to her with an issue because you didn‘t know exactly how she was . . .going to respond to it.” Jim Saine echoed that concern, testifying that that he and Walker “ended up doing a lot of work ourselves” or trying to find someone else in another department to do the work because it was too difficult dealing with Munoz‘s
Just as these supervisors experienced considerable push-back from Munoz whenever they inquired about the status of their work, they also became concerned that one reason for her slowness was that Munoz‘s personal affairs took precedence over completing her job duties. According to Saine, Munoz would wait until the eleventh hour to complete tasks, while he would hear her on personal telephone calls, laughing and chatting away. Accordingly, he performed some surveillance of her work computer to determine what she was actually doing each day, and was “shock[ed]” to discover that Munoz was spending a great deal of her workday on personal tasks.
Saine learned that Munoz was off task on nine days in May and on three days in June 2013. That is nearly half the workdays in May and all of the workdays in June leading up to Munoz‘s meeting with Walker and Saine on June 6, 2013. On these occasions, Saine observed Munoz conducting her personal finances, drafting a resume, writing a memo to friends about being ready to move on, doing personal internet searches, creating promotional materials for a media group operated by her husband, working on a theatrical play, and browsing Craigslist, among other things. Munoz does not deny any of this, but claims that her personal work did not interfere with her job. Indeed, when Saine confronted
Shortly before Saine confirmed his suspicion that Munoz was spending a great deal of time on personal matters, instead of doing her work, another incident occurred that, according to Walker, was the “straw that broke the camel‘s back.” On April 1, 2013, a client-broker emailed Munoz, copying Saine, politely asking Munoz whether she had had a chance to send him an executed copy of a lease. She responded that the president of Selig had not yet gotten it back to her, but that she would send him a hard copy and email when that happened. The next day, the broker sent an email to Saine, copying Munoz, asking him to check on the lease. Nothing apparently having happened, on April 15, the broker again emailed Saine and Munoz asking about the lease. Saine responded that Munoz was out, but he thought she had been having trouble finding an original and was going to send the broker another original to sign; Saine said he would check with Munoz when she returned. The next day, Munoz responded by email to Saine as follows:
I guess you don‘t remember but you told me that “you” were going to email him and tell him to re-execute, scan, and email it back to us. You were at your computer when we discussed it and said that you‘d take care of it. I asked you if you wanted me to and you said NO—you‘d just email him. You indicated that is what you were doing at that very moment. Soooooooooo since that email didn‘t happen, are you saying you now want me to mail him out a hard copy? Please clarify?
Nope, you didn‘t—at any rate, I WILL take care of it now. It‘s back on my desk—to my surprise and I‘ll handle it. No worries.
Saine responded, “Kendra, I respectfully disagree.” He then forwarded the email chain to Ron Stein as well as to another official at Selig, stating, “This attitude is very upsetting.” Following this incident and Saine‘s subsequent documentation of Munoz‘s personal activities on company time, the two men prepared the memorandum in question, dated May 22, 2013, and met with Munoz on June 6 to discuss the memorandum.
2. The Text of the 2013 Memorandum
The 2013 memo whose receipt Munoz refused to acknowledge describes six areas of concern with Munoz‘s “attitude and work performance“:
- Kendra‘s defensiveness when questioned about whether there was a misunderstanding about who was to perform a certain task.
- Kendra‘s continued excessive tardiness.
- Kendra‘s failure to seek Jim and Kent‘s consent before changing her working hours.
- Kendra‘s failure to adequately give Jim and Kent notice when taking extended PTO.
- Jim and Kent‘s belief that Kendra spends an excessive amount of the day working on personal affairs.
None of these items indicate that Munoz would be prohibited from taking future medical leave. Three of the items have nothing to do with leave. The first item concerning Munoz’s defensiveness is a reference to the recent email chain in which Munoz had responded disrespectfully to her boss’s polite inquiry about the status of a task about which a client was complaining. The fifth item refers to Munoz’s insistence on pursuing personal tasks on company time when her supervisors needed her to handle their own work. The sixth item references the difficult work atmosphere that Munoz had created by her negative attitude.
As to the three items relating to attendance issues, the third item indicates concern that Munoz had in the past unilaterally changed her hours without first obtaining the consent of her supervisors; the note by Saine on this point indicates Munoz’s change of her start time from 8:15 to 8:30. That concern suggests no prohibition on Munoz’s ability to take medical leave. The fourth item indicates Munoz’s failure to give her supervisors adequate notice when taking extended paid time off. This was a reference to Munoz having recently given her bosses short notice before taking a week off for her daughter’s spring break.8 Again, nothing to do with medical leave. Although Defendant could not lawfully prohibit Munoz
The final item, Item 2, does express a concern with Munoz’s excessive tardiness—and Munoz has indicated that some of her tardies occurred when she was feeling bad in the morning and was therefore late getting to work, albeit other tardies were unrelated to illness. The item does not, however, prohibit Munoz from taking appropriate medical leave.
After listing these six concerns, the memo states, “Kendra was told that the failure to make the necessary changes will lead to further discipline, up to and including termination of her employment.” There is then a statement, “The below parties acknowledge receipt of this Memorandum,” with a line for Munoz’s signature, a line for Walker’s signature, and a line for Saine’s signature.
Nothing in the text of this short memorandum indicates that, by acknowledging receipt, Munoz agreed with the criticism underlying the list of concerns or agreed that she should be terminated if her supervisors concluded that she had not improved. Certainly, nothing in the memorandum indicates that Munoz was being asked to waive her right to take appropriate medical leave or her right to take any leave otherwise allowed by Selig’s leave policies, such as the 20 days PTO allowed each employee each year. Importantly, the signature line
3. Legal Analysis of The Memorandum
It is Munoz’s argument that, by requiring her to acknowledge receipt of the 2013 memorandum, Defendant was attempting to force her to agree to waive her right to take any leave in the future, including leave to address medical issues. It would be unlawful for an employer to insist on a waiver of FMLA rights as a condition of employment. So, if that is what Munoz’s signature on the memo would have accomplished, her refusal to affix that signature would reflect her unwillingness to accede to her employer’s unlawful conduct, and it would be protected.
Support for Munoz’s strained construction, however, is found nowhere in the text of the memorandum. Instead, alleging that during the meeting Saine and Walker’s comments suggested to her that she could never miss another day of work or ever be tardy again,9 Munoz offers the meager non sequitur that mere
Munoz’s argument to the contrary flies in the face of the most basic rules of contract construction. Under Georgia law, the “plain and unambiguous language” of a contract controls its interpretation. Unified Gov’t of Athens-Clarke Cty. v. McCrary, 280 Ga. 901, 903 (2006) (“[N]o construction is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation.“). See also State Farm Fire and Cas. Co. v. Bauman, 313 Ga. App. 771, 773 (2012) (“[W]here an insurance contract contains unambiguous terms excluding coverage, no construction is required, and the plain meaning of the terms must be given full
Applying the above legal standards here, the memorandum nowhere indicates that Munoz’s signature indicated anything more than an acknowledgement of her receipt of the document. Nothing in the document indicates that, by affixing her signature, Munoz was agreeing with her employer’s concerns or that she was waiving any right. Thus, like the plaintiff in Clover, Munoz’s claimed construction of the document “misses the mark by a country mile.” Clover, 176 F.3d at 1351.
Particularly as to waiver, Georgia law11 defines a waiver as the “voluntary relinquishment of a known right.” Kennestone Hosp., Inc. v. Hopson, 273 Ga. 145, 148–49 (2000) (emphasis added). Although it is possible to prove an implied waiver, an implied waiver must be supported by “decisive, unequivocal conduct reasonably inferring the intent to waive.” Id. (internal quotation marks omitted). Georgia law does not support inferring a waiver from contractual silence as to whether a right is waived. Id. at 148–49 (“Ordinarily, silence is insufficient to establish a waiver unless there is an obligation to speak.“). See also Mullis v. Bibb Cty., 294 Ga. App. 721, 725 (2008) (“Summary judgment is appropriate against a claim of waiver where there is no evidence that the defendant intentionally or voluntarily relinquished a known right.“).
The shorthand version: a signatory does not relinquish a known right if nothing in the document states that she is doing so. And nothing in the 2013 memorandum indicates that Munoz is waiving any rights. Lest Munoz complain that it is not fair to attribute to her knowledge of contract law or the legal principle of waiver, our caselaw makes it clear that we attribute knowledge of the substantive law to a plaintiff who is claiming that it was objectively reasonable for her to believe that her employer was acting unlawfully. Similarly, the plaintiffs in Harper, Clover, Standard, Butler, Dixon, and Howard all believed that the
And Munoz’s argument is further derailed by the fact that she was well aware that her signature acknowledging receipt of a performance memorandum did not indicate any concession or agreement with the contents of the memo. She knew this because she had signed a 2010 memorandum, attesting to her receipt of
III. Why Does This Matter?
A casual reader may wonder why it matters that the majority opinion has recognized this new protected conduct. As long as Munoz is getting to a jury anyway on her retaliation claim on one protected-conduct theory—retaliation based on the protected act of requesting FMLA leave—so what if the majority lobs another theory her way—retaliation based on Munoz’s refusal to acknowledge receipt of a performance memorandum? Even if that latter theory seems more than a bit flimsy in its legal and evidentiary foundation, what’s the big deal, our reader might ask.
As it turns out, it matters a great deal. First, we have long-standing precedent governing this issue. This precedent requires that a plaintiff alleging retaliation must show that she engaged in protected conduct. To show protected conduct, the plaintiff must demonstrate that she not only believed a particular act of her employer was in violation of her statutory rights, but that this belief was objectively reasonable under existing law. If, on this record, we conclude that Munoz could have reasonably believed her refusal to acknowledge receipt of a performance memo constituted a protected act, we will have greatly diluted the objective-reasonableness test and rendered it to be something that is little more than an echo of the subjective-belief inquiry.
None of which is to deny that the dynamics of the June 6 meeting and the accompanying memorandum will be an important part of the jury’s inquiry into whether Munoz has made her case on the matter that we unanimously agree constitutes protected conduct: Munoz’s notice to Defendant that she would continue to need intermittent leave to address medical issues. The jury will be called on to decide whether Defendant would have fired Munoz had she not provided that notification. The give-and-take between Munoz and her supervisors during the June 6 meeting will be important in figuring out what motivated Defendant’s decision to fire her. If the jury concludes that Defendant treated Munoz in a high-handed manner during that meeting or was unresponsive to her
Our precedent indicates that when a court can determine that particular conduct is not protected, it should make that call. We fail to honor that precedent with the majority’s ruling on this issue. Taking the facts in the light most
Notes
However, we decline to weigh in on whether Selig willfully interfered with Ms. Munoz’s FMLA rights. Ms. Munoz brought her claims almost three years after Selig terminated her employment. This filing date was outside the FMLA’s ordinary two-year statute of limitations. See
Such comments might initially suggest a viable FMLA-interference claim. But as the majority opinion notes, no interference claim arises because Defendant never actually denied Munoz any leave to which she was entitled under the FMLA. Cf. Batson, 897 F.3d at 1326–27 (although the record established the employer’s intent to deny future accommodations to the plaintiff, no ADA claim could lie because the plaintiff was fired before further accommodation was needed).
Similar to Batson, even assuming that Saine and Walker’s comments suggested that they would never again permit her to take leave allowed for by the FMLA—which if actually carried out would mean that Munoz would have a viable FMLA-interference claim—the fact is that Munoz was never denied any FMLA leave. Had she simply acknowledged receipt of her employer’s memorandum, she would have kept her job, and then subsequent events would have revealed whether her employer—who had never before denied her any PTO or penalized her in any way for late arrivals or doctor’s appointments—was actually intent on denying her leave based on illness. Instead, Munoz chose to short-circuit this logical development of events by refusing to acknowledge receipt of the memorandum: an action that she knew would result in the termination of her employment. She now seeks to benefit from that decision by branding as protected conduct what was actually her own recalcitrance.