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[DO NOT PUBLISH]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: Case: 19-12389 Date Filed: 03/24/2020 Page: 2 of 16
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., 921 F.3d 1343, 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., 804
F.3d 1142, 1146 (11th Cir. 2015) (quoting Rent-A-Center, West, Inc. v. Jackson,
561 U.S. 63, 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, 804 F.2d 828, 832 (4th Cir. 1986); see also Merrill Lynch & Co.
Inc. v. Allegheny Energy, Inc., 500 F.3d 171, 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, 477 U.S. 317, 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, 901
F.2d 1578, 1580 (11th Cir. 1990) (quotation omitted); Fed. R. Civ. P. 56(e).
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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., 629 F.3d 1263, 1270 (11th Cir. 2011).
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.” Id. § 2614(a)(1).
“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, 854 F.3d 1261, 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., 789 F.3d 1188, 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.” Id. § 2617(a)(1)(A)(i) (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., 535 U.S. 81, 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., 193 F.3d 1274, 1284 (11th Cir. 1999).
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); Ragsdale, 535 U.S. at 89.
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.” Id. (emphasis added). 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.
Aponte next argues that the district court erred in granting summary
judgment on his FMLA retaliation claim.
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., 239 F.3d 1199, 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. Id.
Where, as here, there is no direct evidence of discrimination, the McDonnell
Douglas burden-shifting framework applies. See Brungart v. BellSouth
Telecomms., Inc., 231 F.3d 791, 798 (11th Cir. 2000) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (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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F.3d 1261, 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., 120 F.3d 1192, 1197 (11th Cir. 1997) (citation
omitted) (analyzing a Title VII retaliation claim); see also Brungart, 231 F.3d at
799 (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 Raney, 120 F.3d at 1197)). “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., 439 F.3d 1286, 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.” Id.
Here, 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 10 Case: 19-12389 Date Filed: 03/24/2020 Page: 11 of 16
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. Hurlbert, 439 F.3d at 1297. 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
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, 492 F.3d 1247, 1255 (11th Cir. 2007). Our analysis of his ADA claims thus applies equally to any claims he has raised under the FCRA. 11 Case: 19-12389 Date Filed: 03/24/2020 Page: 12 of 16
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., 498 F.3d 1258, 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.” Id.
Aponte 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., 80 F.3d 445,
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, 576 F.3d 1223, 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. id.
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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., 602 F.3d 1231, 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.” Id.
Federal Rule 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., 885
F.2d 795, 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. Id. Because the 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. Id.
at 797–98.
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 judgment. 543 F.3d at 1265. 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 Gordon, 576
F.3d at 1230. 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. Krutzig, 602 F.3d at 1236.
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. Grant, 885 F.2d at
797–98 (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.