Case: 19-13173 Date Filed: 06/01/2020 Page: 1 of 26
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13173 Non-Argument Calendar ________________________
D.C. Docket No. 3:17-cv-00609-MMH-JRK
JOHNNY MACK MITCHELL,
Plaintiff-Appellant,
versus
PILGRIM’S PRIDE CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 1, 2020) Case: 19-13173 Date Filed: 06/01/2020 Page: 2 of 26
Before MARTIN, ROSENBAUM, and LUCK, Circuit Judges.
PER CURIAM:
Johnny Mack Mitchell sued his employer, Pilgrim’s Pride Corporation,
claiming race and disability discrimination under Florida and federal law as well as
interference and retaliation under the Family & Medical Leave Act. The district
court granted summary judgment in favor of Pilgrim’s. We affirm.
FACTUAL BACKGROUND 1
In 1991, Mitchell began working at a poultry plant in Live Oak, Florida.
When Pilgrim’s bought the plant in 2008, Mitchell was assigned to work as a live
hanger in the live shed, where he reported to supervisor Kenneth Burnham and
superintendent James Johnson. As a live hanger, Mitchell used both hands to hang
live chickens to shackles on the production line. Mitchell was expected to hang
twenty-eight chickens a minute, approximately one chicken every two seconds.
In February 2013, Mitchell began experiencing shoulder and arm pain as a
result of repetitive hanging. Pilgrim’s transferred Mitchell to a light-duty
assignment, but once he started feeling better, the company reassigned him to the
live shed. Mitchell’s pain then got worse after he started hanging chickens again.
In June 2014, Mitchell applied for workers’ compensation benefits for “bilateral
1 We give the facts in the light most favorable to Mitchell. See Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997) (“We review a grant of summary judgment de novo, viewing all the facts and reasonable inferences in the light most favorable to the nonmoving party.”). 2 Case: 19-13173 Date Filed: 06/01/2020 Page: 3 of 26
shoulder pain.” After a series of medical appointments, Mitchell was diagnosed with
“bilateral rotor cuff tendinopathy, impingement signs, mild a.c. joint arthritis
bilaterally, and repetitive use injury.”
In January 2015, Mitchell had surgery to repair a rotator cuff tear in his left
shoulder. Mitchell’s doctor ordered him to return to work two weeks later with
restrictions on lifting and using his left shoulder. Upon his return, Pilgrim’s assigned
Mitchell to the picking room, where he picked feathers off chickens. Mitchell
received the same hourly wage as before his surgery.
Mitchell had a follow-up appointment with his doctor on August 31, 2015.
Mitchell’s doctor determined that Mitchell had reached maximum medical
improvement for his left shoulder. However, Mitchell still had to complete two more
weeks of physical therapy. Mitchell also complained of pain in his right shoulder,
and his doctor determined that an MRI of his right shoulder was necessary.
As he had in the past, Mitchell brought the paperwork from his doctor’s
appointment to Gay Papoi, a licensed practical nurse who worked in the occupational
health department at Pilgrim’s. Papoi told Mitchell’s supervisors, Burnham and
Johnson, that it would “not [be] a good idea for [Mitchell] to go back to live hang”
because he “just had surgery,” live hanging “would aggravate his postoperative
shoulder,” and he was having “pain in his other shoulder.” Although Papoi did not
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say that Mitchell could not return to the live shed—she felt it was “not [her] position
as a nurse” to do so—she “recommended that he not return.”
Despite not being assigned to the live shed, on September 1, 2015, Mitchell
reported to the live shed dressed as a live hanger. Mitchell was “merely standing in
the live hang area” and “did not actually hang any birds,” although he “caught one
leg.” Burnham told Mitchell to stop hanging, and Mitchell walked off the line
without saying anything.
Burnham left to find Johnson and told him Mitchell “was live hanging and did
not go to the picking room as requested.” Johnson told Burnham that, the day before,
he told Mitchell “he was not to hang until released by the plant nurse,” and Burnham
said he had given Mitchell the same instructions. Burnham and Johnson went back
to where Mitchell was, and Mitchell told them that his doctor had released him to
full duty. Johnson told Mitchell he was not needed in the live shed because they had
a “full crew” already. Johnson also said he could terminate Mitchell for
insubordination and told him to go to a waiting area until human resources showed
up. Mitchell and Johnson met with a human resources officer later that day. Johnson
and the human resources officer told Mitchell that he was being suspended because
he had not been cleared by nursing staff to return to the live shed.
Mitchell was then suspended for insubordination pending investigation.
While Mitchell was suspended, Bobby Riley—a human resources manager—
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confirmed with nursing staff that Mitchell “had not followed medical protocol.”
After obtaining statements from Burnham and Johnson, Riley made the decision to
terminate Mitchell. On September 3, 2015, Pilgrim’s sent Mitchell a letter
explaining that he had been terminated for insubordination.
Mitchell later filed a union grievance for unjust termination. Pilgrim’s,
Mitchell, and the union ultimately agreed that Mitchell would be “reinstated with no
back pay” and “assigned [a] new job.” Mitchell signed a grievance resolution setting
out the terms of the parties’ agreement.
After settling the grievance, Riley met with nursing staff and the operations
team to find a job where Mitchell “wouldn’t have to be reaching overhead [or] doing
a lot of the stuff that he’d been doing in live hanging.” Riley also met with Mitchell,
who asked not to work on Saturdays. On October 20, 2015, Pilgrim’s reinstated
Mitchell and assigned him to the mechanically separated chicken (MSC)
department. Mitchell believed that he was assigned to the MSC department because
Johnson and Raul Lagos, a human resources officer, “thought it was easy work” and
“would have been better on [his] shoulder.”
Mitchell’s pay in the MSC department was lower than what he received before
his termination. His job consisted of making boxes, grating chicken bones, and
stacking boxes on pallets. Mitchell also had to lift forty-pound boxes above shoulder
height on occasion. Eventually, Mitchell complained to his supervisor about having
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to lift heavy boxes, and his supervisor suggested that Mitchell switch tasks with
another employee. Mitchell believed that option “was not feasible because then [he]
would have been singled out by [his] fellow employees,” who “would have accused
[him] of not doing good work” and possibly file complaints that could lead to him
getting fired. Mitchell never spoke with anyone at human resources about his
complaints regarding the MSC position.
In December 2015, Mitchell told the occupational health department that he
was experiencing pain in his left shoulder. Nursing staff scheduled Mitchell for a
follow-up appointment with his doctor, and Mitchell was seen a few days later. The
doctor again noted that Mitchell had reached maximum medical improvement in his
left shoulder and clarified that Mitchell had a 6% permanent impairment rating. The
doctor released Mitchell without any work restrictions.
In June 2016, Mitchell had another doctor’s appointment due to shoulder pain.
Mitchell told his doctor that he was doing “repetitive work lifting 50-pound boxes”
and that it was causing him “more pain” in his shoulder. Mitchell’s doctor restricted
him from doing overhead lifting and from lifting more than ten pounds for the
following four weeks. Pilgrim’s then transferred Mitchell to the salvage department,
where his job consisted of removing salvageable parts from defective chickens and
did not require any lifting.
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Mitchell worked in the salvage department from June 2016 until May 2018.
Mitchell never had any medical complaints about his ability to do the salvage job.
However, Mitchell had interpersonal issues with two of his colleagues. Specifically,
two colleagues “took issue” with the fact that Mitchell used approved FMLA leave
for hypertension and “missed a few days of work.” Those two colleagues
complained about Mitchell to his supervisor and, knowing “how [they] [we]re,” the
supervisor decided to move Mitchell to the neck chiller department.
Mitchell had been approved for intermittent FMLA leave for hypertension
since May 2016. Every time Mitchell applied for FMLA leave, it was granted.
Mitchell was familiar with how to take FMLA leave and, other than the interpersonal
issue in the salvage department, never had any problems doing so.
As a neck chiller, Mitchell was responsible for boxing up chicken necks.
Specifically, Mitchell made boxes and placed them on a conveyor belt, and chicken
necks dropped into the boxes. The conveyor belt would then take the boxes to
another room, where they were processed for shipment. Mitchell “[didn’t] have a
problem” being moved to the neck chiller department. At a deposition taken in
June 2018, Mitchell said that things were “going well” and he did not have any
limitations on his ability to do the job. However, Mitchell continued to have pains
and said “[i]t would be the same way” even if he were to return to live hanging.
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Mitchell still had to pick up forty-pound boxes and stack them, which aggravated
his shoulder pain.
PROCEDURAL HISTORY
On March 22, 2017, Mitchell sued Pilgrim’s in Florida state court. Pilgrim’s
removed the action to the Middle District of Florida, and the district court later
ordered Mitchell to file an amended complaint. On July 14, 2017, Mitchell filed an
amended complaint containing three counts.
In count one, Mitchell argued that Pilgrim’s discriminated against him on the
basis of race. Specifically, Mitchell alleged that, as an African-American, he was
“treated differently than similarly situated white employees.” He alleged that he was
falsely suspended and terminated for insubordination and noted that “a nearly
identical white employee who sustained the same or a similar injury . . . was not
relocated to another position after his injury nor demoted.” Mitchell also
complained about his assignment to the MSC department—which he alleged was a
“demoted position”—and his reduction in pay in connection with that assignment.
In count two, Mitchell alleged that Pilgrim’s harassed and terminated him for
“taking time off that was protected under the FMLA.” Specifically, Mitchell alleged
that, after taking leave for his surgery in January 2015, “[Pilgrim’s] harassed [him]
and took adverse personnel actions against him for using leave and refused to return
him to the position [he had] prior to his protected leave.” Mitchell further alleged
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that “[Pilgrim’s] then fired him[,] and when he was reinstated pursuant to a union
grievance, [Pilgrim’s] demoted him to a more difficult position to perform in light
of his prior medical condition and surgery.” Finally, Mitchell alleged that he “was
denied rights and benefits conferred by the FMLA.”
In count three, Mitchell alleged that Pilgrim’s discriminated against him on
the basis of a disability or perceived disability. Specifically, Mitchell alleged that
Pilgrim’s was “liable for the differential treatment and actions against [him] after he
took time off for his surgery, worked in a light duty capacity[,] and attempted to
return to work in his live hanging position.” Mitchell also alleged that he “needed
accommodations in the form of time off work for his surgery and light duty for a
period of around six months [thereafter].” He alleged that his position in the MSC
department “require[d] him to use his shoulder in a way that cause[d] him pain” and
was “more physically taxing” because he had to help lift fifty-pound boxes.
During discovery, Pilgrim’s asked Mitchell to identify which employees he
believed had been treated more favorably than he had. Mitchell identified three
white employees: Johnson, Joyce Grantham, and a male electrician whose name
Mitchell could not remember. Mitchell said that Johnson had issues with his back
and had to go home on occasion but still got to keep his job. Likewise, Mitchell said
that Grantham had surgery on her wrist, arm, and shoulder and was permitted to
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return to work doing her regular job. Finally, Mitchell said that the electrician had
fainted and injured his head but was never required to leave work or change duties.
After discovery, Pilgrim’s moved for summary judgment. Pilgrim’s argued
that it was entitled to summary judgment on Mitchell’s discrimination claims
because he failed to establish a prima facie case of discrimination or establish a
triable issue of pretext under the McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) burden-shifting test. Pilgrim’s argued that Mitchell failed to show he was
“qualified” to work as a live hanger and that his alleged comparators were not
sufficiently similar to infer disparate treatment. Pilgrim’s also argued that it was
entitled to summary judgment on Mitchell’s FMLA claim because Mitchell could
not “point to a single instance when he was prevented from exercising his rights
under the FMLA, as required for an interference claim” and there was no evidence
of FMLA retaliation.
In response, Mitchell argued that he was qualified to work as a live hanger
and that he identified sufficiently similar comparators to infer disparate treatment.
Citing to a sworn affidavit he prepared, Mitchell referenced a previously
unmentioned comparator—Ed Conquer—“a maintenance worker who injured his
rotator cuff but was allowed to do his same job even with a sling on.” Mitchell also
argued that he was not required to satisfy the “rigid McDonnell Douglas standards”
and that, even if he failed to identify a comparator, he could survive summary
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judgment if he presented a “convincing mosaic of circumstantial evidence that
would allow a jury to infer intentional discrimination.” As for his FMLA claim,
Mitchell argued that he had established prima facie cases of interference and
retaliation because, after taking FMLA leave, he was transferred from the salvage
department to the neck chiller department where he was required to do heavy lifting.
The district court issued a lengthy order granting summary judgment in favor
of Pilgrim’s on all three counts. Beginning with count one, race discrimination, the
court noted that the crux of Mitchell’s claim was that, “unlike white employees who
suffered workplace injuries but were permitted to return to or continue in their jobs,
Mitchell was terminated for his attempt to return to his job.” The court concluded
that Pilgrim’s was entitled to summary judgment on Mitchell’s race discrimination
claim because Mitchell’s proffered comparators were not sufficiently similar to
establish a prima facie case under McDonnell Douglas and he had otherwise
presented no evidence from which a reasonable jury could infer race discrimination.
On count two, the FMLA claim, the district court declined to consider
Mitchell’s allegations regarding his transfer from the salvage department to the neck
chiller department because the transfer “occurred in May of 2018, nearly a year after
he filed his [a]mended [c]omplaint.” The district court noted that “Eleventh Circuit
precedent precludes a plaintiff from amending his complaint through argument at
the summary judgment phase of proceedings,” and, as such, the district court limited
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its analysis to the allegations in Mitchell’s amended complaint. The district court
concluded there was no genuine dispute that Pilgrim’s did not interfere with
Mitchell’s FMLA rights because he “never sought or used FMLA leave to address
his ongoing shoulder problems” and there was no evidence that Pilgrim’s ever
denied or interfered with his FMLA requests regarding his hypertension. The court
also concluded that the undisputed facts entitled Pilgrim’s to summary judgment on
his FMLA retaliation claim because “the adverse employment actions alleged in his
[a]mended [c]omplaint all occurred before Mitchell requested [his] FMLA leave.”
Finally, the district court concluded that Pilgrim’s was entitled to summary
judgment on count three—the disability discrimination claim. As for Mitchell’s
theory of disparate treatment, the district court concluded that Mitchell’s proffered
comparators were not sufficiently similar to establish a prima facie case under
McDonnell Douglas and he had otherwise presented no evidence from which a
reasonable jury could infer discrimination. As for Mitchell’s failure-to-
accommodate theory, the court concluded that there was no genuine dispute of
material fact that Pilgrim’s had provided Mitchell reasonable accommodations for
his disabilities. In doing so, the court refused to consider Mitchell’s allegations,
raised for the first time in his response in opposition to summary judgment, that
Pilgrim’s “failed to provide him with reasonable accommodations immediately
following his surgery in 2015, and also failed to do so when it transferred him to the
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[n]eck [c]hiller [d]epartment in 2018.” These claims, the district court determined,
were an improper attempt to add to the allegations in his amended complaint.
STANDARD OF REVIEW
We review the district court’s grant of summary judgment de novo. Sconiers
v. Lockhart, 946 F.3d 1256, 1262 (11th Cir. 2020). Summary judgment is
appropriate when the evidence, viewed in the light most favorable to the nonmoving
party, presents no genuine dispute as to any material fact and compels judgment as
a matter of law. Fed. R. Civ. P. 56(a).
DISCUSSION
Mitchell appeals the district court’s grant of summary judgment in favor of
Pilgrim’s. First, he argues that the district court erred by concluding that he
improperly attempted to amend his complaint by including new allegations in his
response in opposition to summary judgment. Second, he argues that the district
court erred by granting summary judgment on his race discrimination claim because
he satisfied the McDonnell Douglas burden-shifting test, he presented a convincing
mosaic of circumstantial evidence from which a jury could infer intentional
discrimination, and Pilgrim’s non-discriminatory reason for firing him—his
insubordination—was a pretext for discrimination. Third, Mitchell argues that the
district court erred by granting summary judgment on his disability discrimination
claim because he presented evidence of disparate treatment and a failure to
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reasonably accommodate his disability. And fourth, Mitchell argues that the district
court erred by granting summary judgment on his FMLA claims because he
established prima facie cases of interference and retaliation.
Mitchell’s Improper Attempt to Amend his Complaint
The district court refused to consider certain allegations in Mitchell’s response
in opposition to summary judgment because the response can’t be used as a backdoor
and unauthorized attempt to amend his complaint. Mitchell argues that the district
court erred in refusing to consider those allegations because some of them were
“specifically described in his [a]mended [c]omplaint,” and the others amounted to
“additional evidence of ongoing discrimination and retaliation” that Pilgrim’s was
already aware of. In other words, Mitchell argues that he “did not add additional
claims” or “‘amend’ his complaint in ‘any critical way.’”
“A plaintiff may not amend her complaint through argument in a brief
opposing summary judgment.” Lightfoot v. Henry Cty. Sch. Dist., 771 F.3d 764,
779 (11th Cir. 2014) (citation omitted). This principle applies here even though
Mitchell characterizes the allegations at issue as “additional evidence” rather than
“additional claims.” See id. at 778–79 (concluding that the district court did not err
in declining to consider a “new factual basis” raised for the first time in the plaintiff’s
response in opposition to summary judgment).
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Mitchell improperly attempted to offer a new factual basis for his claims. As
pleaded in his amended complaint, Mitchell’s FMLA and disability claims were
based only on events occurring around the time of his surgery and termination in
2015 and his time in the MSC department, which lasted from October 2015 to June
2016. However, in his response in opposition to summary judgment, Mitchell added
new allegations about a later transfer from the salvage department to the neck chiller
department that happened in May 2018. That transfer took place almost a year after
Mitchell filed his amended complaint. If Mitchell sought to stake his FMLA and
disability claims on his transfer to the neck chiller department, he should have
amended his complaint to state as much. See Lightfoot, 771 F.3d at 779; see also
Flintlock Constr. Servs., LLC v. Well-Come Holdings, LLC, 710 F.3d 1221, 1227–
28 (11th Cir. 2013) (explaining our refusal to consider “additional facts” included in
plaintiffs’ motion for summary judgment). Accordingly, the district court did not
err in refusing to consider Mitchell’s transfer to the neck chiller department.2
2 The district court also refused to consider Mitchell’s allegation that Pilgrim’s “failed to provide him with reasonable accommodations immediately following his surgery in [January] 2015.” Specifically, the district court refused to consider Mitchell’s allegation that “[w]hile in his sling immediately following his surgery, Mr. Johnson had [Mitchell] work with the vats, which contradicted his restrictions.” However, as discussed below, even if the district court erred in refusing to consider this allegation, the district court properly granted summary judgment on Mitchell’s disability claim. 15 Case: 19-13173 Date Filed: 06/01/2020 Page: 16 of 26
Race Discrimination
The district court entered summary judgment on Mitchell’s race
discrimination claim because it concluded that Mitchell’s proffered comparators
were not sufficiently similar to establish a prima facie case under McDonnell
Douglas, there was no dispute of fact from which a reasonable jury could infer race
discrimination, and Pilgrim’s non-discriminatory reason for firing Mitchell—his
insubordination—was not a pretext for discrimination. Mitchell argues that his
comparators were sufficiently similar to establish a prima facie case under
McDonnell Douglas. Alternatively, he argues that he was not required to satisfy the
McDonnell Douglas burden-shifting test because he presented a convincing mosaic
of circumstantial evidence from which a jury could infer intentional discrimination.
Finally, Mitchell argues that Pilgrim’s non-discriminatory reason for firing him—
his insubordination—was a pretext for discrimination because it was a “nonsensical
charge.”
We need not evaluate Mitchell’s comparator argument because, even if he
presented sufficiently similar comparators, Mitchell failed to establish a genuine
issue of fact that his firing for insubordination was a pretext under McDonnell
Douglas. At the pretext stage, an employer “must articulate a legitimate
nondiscriminatory reason for the challenged employment action.” Chapman v. AI
Transp., 229 F.3d 1012, 1024 (11th Cir. 2000). “However, the employer’s burden
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is merely one of production; it need not persuade the court that it was actually
motivated by the proffered reasons.” Id. (citation omitted). “If the defendant
articulates one or more such reasons,” the plaintiff must “come forward with
evidence, including the previously produced evidence establishing the prima facie
case, 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.” Id.
(citation omitted). “If the plaintiff does not proffer sufficient evidence to create a
genuine issue of material fact regarding whether each of the defendant employer’s
articulated reasons is pretextual, the employer is entitled to summary judgment on
the plaintiff’s claim.” Id. at 1024–25 (citation omitted).
Here, Mitchell’s only argument as to pretext is that his “alleged
‘insubordination’ was a nonsensical charge that should not have resulted in [his]
termination.” Specifically, Mitchell argues that “the fact that [he] had such a long
and positive work history with [Pilgrim’s], and was never before accused of any sort
of insubordination, but was terminated for attempting to return to his job and work,
is in itself evidence of pretext.” He argues that it “makes little sense” that his conduct
“somehow justified skipping the entire progressive discipline policy” because
“[t]here were no serious safety threats or immediate hazards, [and he] simply suited
up to return to the [live hanging] position.”
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The record indisputably established that Mitchell was fired for
insubordination. Mitchell conceded that he returned to the live shed dressed as a
live hanger despite being assigned to the picking room. Moreover, Papoi had
recommended to Burnham and Johnson that Mitchell not return to the live shed
because of his shoulder.3 While Mitchell was suspended, human resources
confirmed with nursing staff that Mitchell “had not followed medical protocol.”
Mitchell’s long work history does not make Pilgrim’s reason for firing him
nonsensical. It is undisputed that Pilgrim’s considers insubordination—even if it
only happens once—a terminable offense. Indeed, the Pilgrim’s standards of
conduct state that “[f]ailure to follow instructions or perform designated work” will
“subject the employee to corrective action, up to and including termination.” It is
undisputed that Mitchell was aware of those standards. It is likewise undisputed that
he was aware of the potential consequences:
Q. What would happen generally if you would break one of the rules at the plant? I mean, is there a disciplinary policy?
....
A If you go against their rules, you’ll be fired.
3 Mitchell argues that Pilgrim’s “attempt to hide behind Nurse Papoi’s belief that the live hang position might exacerbate [his] condition, in spite of his physician’s full release, is undermined by the fact that the MSC position . . . involve[d] substantially heavier lifting than the live hang position.” This, too, does not establish a triable issue of pretext. Mitchell said he thought he was assigned to the MSC department because Johnson and a human resources officer “thought it was easy work” and “would have been better on [his] shoulder.” 18 Case: 19-13173 Date Filed: 06/01/2020 Page: 19 of 26
Q So there were some instances where someone could be fired immediately?
A Yes.
Accordingly, Mitchell failed to put forward a triable issue of pretext.
Mitchell’s “convincing mosaic” argument fails for the same reason. “[A]
plaintiff will always survive summary judgment if he presents circumstantial
evidence that creates a triable issue concerning the employer’s discriminatory
intent.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).
“A triable issue of fact exists if the record, viewed in a light most favorable to the
plaintiff, presents a convincing mosaic of circumstantial evidence that would allow
a jury to infer intentional discrimination by the decisionmaker.” Id. (citation,
quotation marks, and footnote omitted). Mitchell failed to assemble any type of
mosaic, let alone a convincing one. Indeed, Mitchell’s only evidence of intent is the
supposed pretextual nature of Pilgrim’s actions. And, as we explained, Mitchell
failed to establish a triable issue of pretext. Accordingly, the district court did not
err in granting summary judgment on Mitchell’s race discrimination claim.
Disability Discrimination
Mitchell raised two theories to support his disability discrimination claim:
disparate treatment and failure to reasonably accommodate his disabilities. The
district court granted summary judgment on Mitchell’s disparate treatment claim
because it concluded that Mitchell’s proffered comparators were not sufficiently 19 Case: 19-13173 Date Filed: 06/01/2020 Page: 20 of 26
similar to establish a prima facie case under McDonnell Douglas and he presented
no evidence to show a genuine dispute on intentional discrimination. The only
comparators Mitchell cited in his response in opposition to summary judgment were
Grantham and Conquer. They cannot be comparators for Mitchell’s disability claim
because, like Mitchell, they were disabled; Mitchell pointed to no non-disabled
comparator, which is fatal. See Lewis v. City of Union City, 918 F.3d 1213, 1221
(11th Cir. 2019) (en banc) (noting that comparators must be “outside” the plaintiff’s
protected class); see also Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1995) (“[A]s
used in civil rights law, the notion of ‘similarity’ generally involves a comparison
between a protected class that is subject to disparate treatment and another class of
persons. The point of such comparisons is this: because the classes are similarly
situated in most relevant respects except their protected status (e.g., gender or race),
there arises a rational inference of discrimination on the basis of that status. Myers’
argument misses this point, however. Here, the analogy is inapposite because all
employees to whom Myers compares himself are also disabled. Thus, this set of
circumstances gives rise to no logical inference of handicap discrimination.”
(citation omitted)). The only other evidence Mitchell cited to prove discriminatory
intent was the adverse employment actions taken against him. These adverse
actions, in and of themselves, cannot constitute evidence of discrimination—there
must be evidence showing a discriminatory intent behind those actions. See Lewis,
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918 F.3d at 1223 (“Every qualified minority employee who gets fired, for instance,
necessarily satisfies the first three prongs of the traditional prima facie case. But
that employee could have been terminated because she was chronically late, because
she had a foul mouth, or for any of a number of other nondiscriminatory reasons. It
is only by demonstrating that her employer has treated ‘like’ employees
‘differently’—i.e., through an assessment of comparators—that a plaintiff can
supply the missing link and provide a valid basis for inferring unlawful
discrimination.”). Accordingly, the district court did not err in rejecting Mitchell’s
disparate treatment claim.
The district court granted summary judgment on Mitchell’s failure-to-
accommodate claim because it concluded there was no genuine dispute that
Pilgrim’s provided Mitchell reasonable accommodations for his disabilities. We
agree. When Pilgrim’s reinstated Mitchell to the MSC department after his
termination, he was not under any medical work restrictions that conflicted with his
job duties. Indeed, Mitchell claims that he was “cleared to return . . . with no
restrictions” before he was terminated. There was nothing to accommodate.
Mitchell also said he thought he was assigned to the MSC department because
Johnson and a human resources officer “thought it was easy work” and “would have
been better on [his] shoulder.” No reasonable jury could conclude from these facts
that Pilgrim’s failed to accommodate Mitchell’s disabilities.
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Mitchell also argued that Pilgrim’s failed to accommodate his disabilities
immediately after his surgery—an allegation that, as discussed above, the district
court refused to consider. Specifically, Mitchell contends that, “[w]hile in his sling
immediately following his surgery, . . . Johnson had [Mitchell] work with the vats,
which contradicted his restrictions.” But Pilgrim’s assigned Mitchell to the picking
room to accommodate his work restrictions after his surgery. And Mitchell never
informed anyone at Pilgrim’s that his work contradicted his restrictions at the time.
“[I]n general . . . it is the responsibility of the individual with a disability to inform
the employer that an accommodation is needed.” Gaston v. Bellingrath Gardens &
Home, Inc., 167 F.3d 1361, 1364 (11th Cir. 1999) (quoting 29 C.F.R. pt. 1630 App.
§ 1630.9); see also Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1226 (11th Cir. 2016)
(explaining that, for purposes of the Fair Housing Act, a plaintiff can be said to have
made a request for accommodation when the defendant has “enough information to
know of both the disability and desire for an accommodation” (citation omitted)
(emphasis added)). Mitchell admitted that he didn’t say anything to anyone at
Pilgrim’s “because [he] was trying to get better.” Again, no reasonable jury could
conclude from these facts that Pilgrim’s did not reasonably accommodate Mitchell’s
disabilities.
Finally, Mitchell complains that Pilgrim’s never engaged in an “interactive
process” with him. He cites 29 C.F.R. § 1630.2(o)(3) for the proposition that it may
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be “necessary for the covered entity to initiate an informal, interactive process with
the qualified individual” and argues that Pilgrim’s never “worked with [him] to find
a position that actually suits his medical needs.” Even if failure to comply with that
regulation could result in a violation of the ADA, see Willis v. Conopco, Inc., 108
F.3d 282, 285 (11th Cir. 1997) (“assuming,” without deciding, that “an employer
has an affirmative obligation . . . to engage in [an] interactive process”), the
undisputed evidence shows that Pilgrim’s engaged with Mitchell about his needs.
Riley met with Mitchell to discuss potential assignments prior to his reinstatement,
and Mitchell accepted the MSC position because it meant he would not have to work
on Saturdays. Mitchell believed that he was assigned to the MSC department
because Johnson and a human resources officer “thought it was easy work” and
“would have been better on [his] shoulder.” When Mitchell complained to his
supervisor about having to lift heavy boxes, his supervisor offered for Mitchell to
switch tasks with another employee. When Mitchell later complained about
reemerging pain, nursing staff immediately scheduled Mitchell for a follow-up
doctor’s appointment. The doctor then released Mitchell without any work
restrictions, so it was reasonable for Pilgrim’s to keep Mitchell in the same position.
When Mitchell was placed on work restrictions six months later, Pilgrim’s
accommodated his limitations by transferring him to the salvage department.
Mitchell never had any medical complaints about his ability to do the salvage job.
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In sum, the district court did not err in concluding that there was no genuine dispute
that Pilgrim’s “informally engage[d] with him to respond to his reports of suffering
from pain at work.”
FMLA Claims
The district court concluded that no reasonable jury could find that Pilgrim’s
interfered with Mitchell’s FMLA rights because he “never sought or used FMLA
leave to address his ongoing shoulder problems” and there was no evidence that
Pilgrim’s ever denied or interfered with his FMLA requests. The district court also
concluded that the undisputed facts entitled Pilgrim’s to summary judgment on
Mitchell’s FMLA retaliation claim because “the adverse employment actions
alleged in his [a]mended [c]omplaint all occurred before Mitchell requested [his]
FMLA leave.” Mitchell argues that the district court erred by granting summary
judgment on his FMLA claims because he established prima facie cases of FMLA
interference and retaliation.
We agree with the district court that there was no evidence of interference.
To establish an FMLA interference claim, Mitchell had to show “that he was entitled
to [an FMLA] benefit denied.” Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1235
(11th Cir. 2010) (citation omitted). Further, Mitchell had to show that he was
prejudiced by the alleged interference. See Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81, 89 (2002) (noting that the FMLA provides no relief for an
24 Case: 19-13173 Date Filed: 06/01/2020 Page: 25 of 26
interference claim “unless the employee has been prejudiced by the violation”).
Here, there was no such evidence. Mitchell never sought FMLA leave for his
shoulder in 2015 and 2016. Mitchell had been on approved intermittent FMLA leave
for hypertension since May 2016, and every time he applied for FMLA leave, it was
granted. Indeed, the only alleged interference Mitchell complains of pertains to his
transfer to the neck chiller department in 2018. As discussed earlier, the district
court properly disregarded that allegation because Mitchell did not plead it in his
complaint.
There was likewise no evidence of FMLA retaliation. Again, Mitchell only
points to his transfer to the neck chiller department, which the district court properly
refused to consider. The retaliatory acts cited in Mitchell’s complaint all occurred
before he requested his FMLA leave. Mitchell cannot claim retaliation based on acts
that occurred prior to his request for FMLA leave. See Chapter 7 Tr. v. Gate
Gourmet, Inc., 683 F.3d 1249, 1259 (11th Cir. 2012) (“The denial of a light-duty job
cannot, therefore, be a materially adverse action causally connected to her EEOC
charge because it happened before Gate Gourmet got notice of the charge and an
effect cannot precede the cause.”); Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir.
2006) (“We hold that, in a retaliation case, when an employer contemplates an
adverse employment action before an employee engages in protected activity,
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temporal proximity between the protected activity and the subsequent adverse
employment action does not suffice to show causation.”).
CONCLUSION
The district court did not err in granting summary judgment in favor of
Pilgrim’s on Mitchell’s race discrimination, disability, and FMLA claims.
Accordingly, we affirm.
AFFIRMED.