Kendra Munoz v. Selig Enterprises, Inc.

981 F.3d 1265

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 4, 2020
• Docket: 18-14606
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14606 ________________________

D.C. Docket No. 1:16-cv-03924-MHC

KENDRA MUNOZ,

Plaintiff - Appellant,

versus

SELIG ENTERPRISES, INC.,

Defendant - Appellee.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(December 4, 2020)

Before MARTIN, NEWSOM, and JULIE CARNES, Circuit Judges.

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 Americans with Disabilities Act (“ADA”) and the Family and Medical USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 2 of 71

Leave Act (“FMLA”). After careful consideration, and with the benefit of oral

argument, we reverse the grant of summary judgment on Ms. Munoz’s claim of

retaliation under the FMLA. We otherwise affirm.

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

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exploratory surgery, and they granted her time off. Ms. Munoz alleges she then

told them on April 30, 2013, that she had been diagnosed with endometriosis and

that she would immediately begin treatment. Yet again, Mr. Saine and Mr. Walker

testified to the contrary, saying they never learned of Ms. Munoz’s diagnosis or

treatment. It is undisputed that Selig never provided Ms. Munoz with FMLA

certification paperwork or advised her of her right to request accommodations for

health conditions.

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

1 Ms. Munoz never submitted any medical notes about her conditions, but the parties agree she was not required to submit medical notes in order to receive paid time off.

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“have an accident and soil [her] clothing” while she was driving to work and she

had to turn around and go home before coming into the office.

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

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allowed him to view Ms. Munoz’s computer activities in real time from his own

computer. Overall, Mr. Saine observed Ms. Munoz was off task on nine days in

May and on three days in June.

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

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late.” She said 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.” They then asked Ms. Munoz to sign the Performance Memo to

acknowledge its receipt. The Memo stated that “failure to make the necessary

changes will lead to further discipline, up to and including termination of [Ms.

Munoz’s] employment.” Ms. Munoz says she told Mr. Saine and Mr. Walker that

she would not sign the Memo because her endometriosis would still occasionally

require her to miss and be late for work. She asserted,

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

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her attendance issues, he told her that “no one is sick that long.” But he

maintained this exchange happened after Ms. Munoz had been fired.

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 ADA, 42 U.S.C. § 12101 et seq.,

by failing to accommodate her disability and firing her because she was disabled.

She also alleged that Selig interfered with her rights and retaliated against her

under the FMLA, 29 U.S.C. § 2601 et seq., by failing to notify her of her FMLA

rights and firing her for intending to use leave allowed by the FMLA. Selig

answered the complaint and denied liability.

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.”

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With respect to Ms. Munoz’s FMLA claims of interference and retaliation,

the magistrate judge decided Selig did not willfully violate the FMLA, and thus he

rejected Munoz’s claims. The magistrate judge also found that Ms. Munoz

suffered no damages from any violations of her FMLA rights. The magistrate

judge further decided that Ms. Munoz was terminated for non-health-related

tardiness, rather than for FMLA-qualifying absences and tardiness. Finally, the

magistrate judge found that Selig did not retaliate against Ms. Munoz in violation

of the FMLA, because she failed to give sufficient notice of the timing or duration

of her health-related leave, such that her request for leave was not statutorily

protected activity. The magistrate judge also said that Ms. Munoz’s refusal to sign

the Performance Memo was not protected activity because it was “objectively

unreasonable” for her to believe that agreeing to the Memo would eliminate her

FMLA rights. Thus, the magistrate judge found no causal connection between Ms.

Munoz’s requests for leave or refusal to sign the Performance Memo and her

termination.

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)

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because she said it was undisputed “that she was terminated for refusing to sign”

the Performance Memo after objecting to the attendance requirements.

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

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that Ms. Munoz did not introduce sufficient evidence that she was disabled under

the ADA.

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.” 42 U.S.C.

§ 12102(2)(A). The ADA also defines major life activities to include “the

operation of a major bodily function, including . . . endocrine[] and reproductive

organs.” Id. § 12102(2)(B). To qualify as disabled under the ADA, the employee

must be substantially limited in a major life activity “as compared to most people

in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii).

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

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limited her ability to sleep, work, and reproduce. This is because the record does

not contain evidence of the timing, frequency, and duration of Ms. Munoz’s

impairments. Without this evidence, we cannot assess whether Ms. Munoz meets

the definition of disabled under the ADA.

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

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long she experienced these symptoms. We therefore cannot assess whether her

impairments substantially limited her ability to work or sleep as compared to most

people in the general population. See Lewis, 934 F.3d at 1180–81. This, in turn,

means Ms. Munoz has not established she was disabled because she was limited in

the major life activities of working or sleeping.

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, 118

S. Ct. 2196, 2205 (1998). Of course, endometriosis is a disorder of the

reproductive system. See id. at 660, 118 S. Ct. at 2215 (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

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substantially limited in any major life activity at the time of the employment

actions complained of”).

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 29 U.S.C. § 2612(a)(1)(D)). The parties agree that Selig is covered by the

FMLA and that Ms. Munoz is eligible for FMLA leave. They also agree that Ms.

Munoz’s health conditions qualified her for FMLA leave. But Selig maintains that

it fulfilled its obligations to Ms. Munoz under the FMLA, and that it did not

retaliate against her for needing leave under the FMLA. Ms. Munoz disagrees.

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1.

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.” 29 C.F.R. § 825.300(b)(1). An employer’s failure to

notify an employee about her right to take FMLA leave “may constitute an

interference with, restraint, or denial of the exercise of [her] FMLA rights.” Id.

§ 825.300(e).

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

2 To establish that Selig interfered with her FMLA rights, Ms. Munoz would also need to show 1) she gave Selig proper notice of her need for FMLA leave, and 2) Selig willfully interfered with her FMLA rights. As this opinion goes on to discuss, Ms. Munoz gave Selig proper notice of her need for leave, supporting her FMLA interference claim.

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 29 U.S.C. § 2617(c)(1). We know that if an employer commits a “willful violation” of the FMLA rights guaranteed to the employee, the FMLA provides for an extended, three-year statute

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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

of limitations. See id. § 2617(c)(2). Ms. Munoz must meet this standard and show Selig’s interference with her rights was “willful” in order to maintain her FMLA interference claim. To date, this Court has not articulated a standard for what constitutes a willful violation of the FMLA, but many of our sister circuits have confronted this question. See Sampra v. U.S. Dep’t of Transp., 888 F.3d 330, 333–34 (7th Cir. 2018); Bass v. Potter, 522 F.3d 1098, 1103–04 (10th Cir. 2008); Hoffman v. Prof’l Med Team, 394 F.3d 414, 417–18 (6th Cir. 2005); Porter v. N.Y. Univ. Sch. of Law, 392 F.3d 530, 531–32 (2d Cir. 2004) (per curiam); Hanger v. Lake County, 390 F.3d 579, 583 (8th Cir. 2004); Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 33–34 (1st Cir. 2003). Because Ms. Munoz does not otherwise succeed on her FMLA interference claim, we leave this issue of first impression for another panel in another case.

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employee in Graham, Ms. Munoz testified that Selig did not deny her leave time.

As a result, Ms. Munoz has not shown damages to support her FMLA interference

claim.

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 29 U.S.C.

§ 2615(a)(1)-(2)). We analyze a claim of FMLA retaliation under the burden-

shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S.

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792, 93 S. Ct. 1817 (1973). See Batson, 897 F.3d at 1328–29. First, the employee

must make a prima facie case showing that: (1) she engaged in statutorily protected

conduct; (2) she suffered an adverse employment action; and (3) there is a causal

connection between the two. Id. at 1329. Next, the burden shifts to the employer

to articulate a nondiscriminatory reason for the adverse action. Id. If the employer

does so, the burden shifts back to the employee to produce evidence that the

employer’s reason is pretextual. Id.

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

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future.” Pereda v. Brookdale Senior Living Cmtys., Inc., 666 F.3d 1269, 1274–75

(11th Cir. 2012). Ms. Munoz testified that she told Selig she would need future

FMLA-qualifying leave for tardiness or absence because of her uterine fibroids,

ovarian cysts, and endometriosis. The FMLA protects this type of employee

activity.

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 29 U.S.C. § 2612(e)(2)). The employee

must also disclose the anticipated timing and duration of a foreseeable leave of

absence. Id. at 1196. But if an employee’s need for leave is not foreseeable, she is

not required to give 30 days’ notice or provide the timing and duration of the

anticipated leave. Id. at 1195–96 (citing 29 C.F.R. § 825.303(a)–(b)). She simply

needs to “provide sufficient information for her employer to reasonably determine

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whether the FMLA may apply to the leave request.” Id. at 1196 (alteration

adopted) (quoting 29 C.F.R. § 825.303(b)).

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

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FMLA leave. Her actions therefore sufficiently notified Selig of her need for

FMLA leave, and her conduct was protected under the FMLA.

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

20 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 21 of 71

being disciplined for sick leave. Also, Ms. Munoz testified that Mr. Saine

disparagingly referred to her health and use of leave directly before firing her,

telling her that “nobody’s sick that long.” Because Ms. Munoz introduced

evidence that Selig was aware of her need for future leave, this proximity in time

between her protected activity and her termination raises an inference of causation.

See Strickland, 239 F.3d at 1207 & n.10.

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.

21 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 22 of 71

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.

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

22 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 23 of 71

termination” is evidence of pretext. Hurlbert, 439 F.3d at 1298 (finding proximity

of two weeks to support pretext); see also Jones, 854 F.3d at 1272–73, 1276

(holding that a “one-month period” between returning from FMLA leave and

termination supported pretext).

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

23 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 24 of 71

company social-media policy and exhibiting poor managerial judgment. Id. at

1274. Our Court held that Mr. Jones had raised sufficient evidence of pretext, in

part because of his employer’s comments casting aspersions on his use of FMLA

leave. Id. at 1275–76. Especially because the “evidence supporting [the

employer’s] claim that Jones abused medical leave . . . [was] murky at best,” we

held a reasonable jury could consider these accusations as evidence of pretext and

retaliation. Id. at 1275.

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

24 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 25 of 71

monitor her computer activity “due to any health condition.” Appellee’s Br. at 41.

Selig also asks us to disregard Mr. Saine’s comments as “stray remarks.” Id. at

42–43. Selig says that “Saine’s comment that ‘nobody’s sick that long’ is

unrelated to the challenged employment decision because it was made following

Munoz’s termination, as they were walking out of the meeting.” Id. at 43. Instead,

the comment was “intended to point out that Munoz’s history of tardiness could

not be entirely excused by illness.” Id. But through these arguments, Selig urges

us to accept the truth of the testimony given by Mr. Saine and Mr. Walker, even

though Ms. Munoz testified to the contrary on each point. This we cannot do. A

reasonable jury might well adopt Selig’s account of these material facts, but this

Court cannot resolve these disputes of fact on summary judgment.

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

25 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 26 of 71

pointed to the fact that it ordered the plaintiff to submit to a skills evaluation before

he ever requested leave. Id. Nevertheless, our Court held this fact did “not

demonstrate that the decision to terminate [the employee] was itself made before

the request for leave, or that termination would have occurred regardless of the

request.” Id.

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

26 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 27 of 71

the Memo violated her FMLA rights. We also reverse the grant of summary

judgment on this theory of retaliation.

The FMLA prohibits covered employers from “discriminat[ing] against any

individual for opposing any practice made unlawful” by the FMLA. 29 U.S.C.

§ 2615(a)(2). This anti-retaliation provision “is derived from Title VII of the Civil

Rights Act of 1964 and is intended . . . to be construed in the same manner.” The

Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2218 (Jan. 6, 1995);

see also Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005 (8th Cir.

2012) (describing the FMLA’s anti-retaliation provision as “analogous to

retaliation claims that are familiar under Title VII”). To state a retaliation claim

for opposing illegal practices under Title VII, the employee plaintiff must show she

“had a good faith, reasonable belief that the employer was engaged in unlawful

employment practices” and the employer took adverse action against her for

opposing the practices. Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1213 (11th

Cir. 2008) (quotation marks omitted). Ms. Munoz must meet the same standard for

her FMLA claim. She must present evidence that she subjectively believed her

employer was engaged in unlawful practices, and that her belief was objectively

reasonable in light of the facts and record presented. See id.; see also Graham, 193

F.3d at 1284.

27 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 28 of 71

Ms. Munoz introduced evidence from which a reasonable jury could find she

reasonably believed Selig was engaged in unlawful practices by eliminating her

right to FMLA leave. To begin, the Performance Memo listed “Kendra’s

continued excessive tardiness” and “Kendra’s failure to seek Jim and Kent’s

consent before changing her working hours” as concerns. The Memo also warned

that “failure to make the necessary changes will lead to further discipline, up to and

including termination.” This language alone does not establish that Selig intended

to deny Ms. Munoz her right to FMLA leave. Nor, for that matter, does an

employer’s insistence that its employee sign a performance-issue memo, in and of

itself, give the employee an objectively reasonable belief that the employer is

engaged in unlawful practices. But Ms. Munoz has alleged more than that. In

particular, she testified that when Mr. Saine and Mr. Walker discussed the Memo

with her, they instructed, “You’re not going to be able to be late. You’re not going

to be able to be out.” She claims they also told her, “You know you need to sign

this [Memo] or you will be terminated.” According to Ms. Munoz, she responded

that her tardiness and absences were caused by her illness, and she did not believe

she could sign the Memo because she knew she would have future treatment days.

Mr. Saine allegedly retorted, “Oh nobody’s sick that long.” After this exchange,

Ms. Munoz says, she was fired because she would not sign the Performance

28 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 29 of 71

Memo. Selig admits it fired Ms. Munoz for failing to sign the Memo but otherwise

denies her account of the meeting.

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

29 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 30 of 71

terminated if she missed any more days of work,” even if further absences were

FMLA-qualifying. See id. at 1284. Because of this memorandum, Ms. Graham

said, she was forced to resign due to intolerable working conditions. Id. Our

Court held that Ms. Graham’s belief that she would be fired for taking FMLA

leave was objectively unreasonable as a matter of law. Id. But in Ms. Graham’s

case, the employer’s memo specified that “[f]urther non-FMLA protected absences

could . . . result in disciplinary action.” Id. at 1284 & n.2 (emphasis added). And

the employer had a policy that “only non-FMLA protected absences resulted in

absentee memos.” Id. at 1276.

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

30 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 31 of 71

that further FMLA-related absences or late appearances would result in

termination.” Appellee’s Br. at 38. Selig says her “signature was merely intended

to acknowledge receipt of the Memorandum and an understanding of her

supervisors’ concerns.” Id. Selig points to the fact that Ms. Munoz previously

received and signed a similar performance-improvement memo in 2010, so she

could not reasonably believe that signing the 2013 Performance Memo would

compromise her FMLA rights. Id. at 38–39. The Dissent also points to the 2010

memorandum as evidence that Ms. Munoz’s belief was not reasonable. See

Dissenting Op. at 49–55. And Mr. Saine testified that he told Ms. Munoz her

signature would merely document the meeting, not indicate Munoz’s agreement

with the Memo’s contents.

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

3 The fact that Ms. Munoz says her employers essentially told her that she would be waiving her statutorily protected rights by signing the Memorandum also distinguishes this case from those the Dissent relies upon. See Dissenting Op. at 40–46. In none of those cases did the aggrieved employees allege that the employers made such a representation. Here there is no question that the alleged conduct—requiring Ms. Munoz to sign a Memorandum waiving her FMLA rights— is unlawful. See Dissenting Op. at 62–63. Instead, the question is whether Ms. Munoz reasonably believed that this is what she was being asked to do, given what she says her bosses stated during the June 6 meeting. If Ms. Munoz was wrong about the effect of the Memorandum under Georgia contract law, as the Dissent argues, then, according to Ms. Munoz’s account of the June 6 meeting, so were Mr. Saine and Mr. Walker—the people who drafted the

31 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 32 of 71

testified that, during the meeting, she brought up her right to take leave for

sickness and treatment. She claims that she told Mr. Saine and Mr. Walker she

believed signing the Memo would subject her to discipline for further FMLA-

qualifying leave. Her two supervisors did nothing, according to Ms. Munoz, to

clear up her understanding. Instead, Mr. Saine indicated perhaps she should not

receive future leave because she was not legitimately ill. Ms. Munoz claims she

then refused to sign the Performance Memo, saying, “I’m not signing this[,]

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.” She says she was then fired for

refusing to sign.

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.

32 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 33 of 71

Memo, just as Munoz may not have brought up her health concerns until after she

was fired. And Mr. Saine may not have expressed doubt about her illness until

after she had been terminated. Under this view of the facts, Ms. Munoz’s

understanding that the Performance Memo terminated her right to future FMLA

leave would be objectively unreasonable. But a factfinder, not this Court, should

resolve these disputes.

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.

33 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 34 of 71

JULIE CARNES, Circuit Judge, concurring in part and dissenting in part:

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.

34 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 35 of 71

Specifically, the majority opinion holds that a jury should decide whether Munoz

also engaged in protected conduct under the FMLA when she refused to

acknowledge, via her signature, that she had received a performance memorandum

from her employer expressing the latter’s concern with various aspects of Munoz’s

attitude and job performance. Not surprisingly, the FMLA nowhere prohibits an

employer from giving its employee a memorandum setting out the employer’s

concerns about the employee’s job performance, nor does the statute prohibit the

employer from requiring the employee to acknowledge her receipt of such a

memorandum. Indeed, the majority opinion acknowledges that Munoz’s refusal to

acknowledge receipt of the document was not prohibited by the FMLA (or any

other statute).

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

35 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 36 of 71

majority’s lip-service to that test notwithstanding. Moreover, on the facts of this

case1—and even with the generous assumption that Munoz actually believed that

her refusal to acknowledge receipt of the document constituted protected conduct

under the statute—I find it impossible to conclude that any such belief by Munoz

was objectively reasonable. And it is our responsibility, when the record prompts

such a conclusion, not to abandon our duty to say so. Finally, in fashioning a jury

question on this novel proposition, the majority has greatly shifted—and arguably

mooted—what is the proper focus of a jury inquiry: whether Munoz proved that

but for her notification of continuing medical leave, Defendant would not have

fired her.

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

1 Whenever I use the phrase “facts of this case” or “the record,” I mean the facts taken in the light most favorable to the non-movant, plaintiff Munoz. 36 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 37 of 71

condition that makes the employee unable to perform the functions of [her]

position.” 29 U.S.C. § 2612(a)(1)(d). Although the statute nowhere expressly

prohibits retaliation by an employer against an employee who has attempted to

exercise her right to take medical leave, “we have held that it also ‘prohibits an

employer from retaliating against an employee who attempts to exercise any

FMLA-created right.’” Martin v. Fin. Asset Mgmt. Sys., 959 F.3d 1048, 1052

(11th Cir. 2020), citing Walker v. Elmore Cty. Bd. of Educ., 379 F.3d 1249, 1250

(11th Cir. 2004). “In plain English, ‘an employer may not do bad things to an

employee who has exercised or attempted to exercise any rights under the statute.’”

Martin, id., citing Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 798 n.5

(11th Cir. 2000).

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

37 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 38 of 71

shifts back to the employee to present 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. Id.

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

38 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 39 of 71

chance to work with its employee on issues of concern and allow the employee a

chance to learn about these issues while there is still time to make things right. It

is also a sensible practice to have the employee sign an acknowledgment of receipt

of the memorandum to eliminate disputes later on as to whether the employer

actually communicated its concerns.

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.

39 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 40 of 71

Id. at 960 (underlined emphasis added).

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

2 Albeit this is one of those cases where the record calls into great question even the subjective prong of the test for Munoz. 40 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 41 of 71

reasonableness inquiry becomes no more than speculation regarding their

subjective knowledge.” Id. (emphasis added).

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. at 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. at 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. at 1329.

41 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 42 of 71

In Butler v. Alabama Department of Transportation, 536 F.3d 1209, 1213

(11th Cir. 2008), the plaintiff alleged that her employer’s issuance of a letter of

counsel regarding her excessive absenteeism and failure to follow call-in

procedures for unscheduled absences was done to retaliate against her because she

had reported a racially hostile environment. We held that because it was

objectively unreasonable for the plaintiff to believe that a co-employee’s isolated

use of racially discriminatory language constituted a racially abusive working

environment, her complaint about this incident did not constitute protected conduct

and therefore the district court should have granted the defendant a judgment as a

matter of law following trial on the retaliation claim. Id. at 1213–14, 1217.

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. at 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).

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In Howard v. Walgreen Co., 605 F.3d 1239 (11th Cir. 2010), the plaintiff

claimed that he was retaliated against after he complained about a racially

discriminatory remark directed at him by a supervisor and was later fired. Both his

racial discrimination claim and the retaliation claim went to a jury. The latter

found for the employer on the discrimination claim, but for the plaintiff on the

retaliation claim. On appeal, we held that the district court should have granted a

motion for judgment as a matter of law on the retaliation claim. Id. at 1242. We

noted that it was not enough that the plaintiff actually believed that the comment

constituted racial discrimination. Instead, that belief must have been objectively

reasonable. Id. at 1244. And measuring the particular conduct under existing

substantive law, it was clear that such a belief was not objectively reasonable

because discrimination under Title VII requires an adverse action, which did not

occur merely by virtue of a supervisor’s remark. Id. at 1244–45. Consequently,

this was not a question for a jury, but instead it should have been decided as a

matter of law. Id. at 1245. See Brungart, 231 F.3d at 799 n.6 (“the standard for

granting summary judgment mirrors the standard for judgment as a matter of law

such that the inquiry under each is the same.”)

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.

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at 1310. The plaintiffs refused to sign the agreement, and they were fired. They

sued, arguing that, in firing them, the employer had retaliated based on the

plaintiffs’ opposition to the employer’s unlawful conduct, which alleged unlawful

conduct was the employer’s insistence that the employees sign the arbitration

agreement. Although the district court agreed that an employer could properly

require its employees to sign the arbitration agreement, it nonetheless denied the

employer’s motion for summary judgment. The court reasoned that, albeit

mistaken in their belief that the employer had acted unlawfully by requiring them

to sign the agreement, the plaintiffs’ incorrect belief was reasonable, and therefore

it constituted protected conduct. Id. at 1311.

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. at

1313–16. Moreover, that the plaintiffs may have been ignorant of the substantive

law did not render their belief reasonable. Id. at 1317. Indeed, to hold “that the

action of an employer requiring employees to arbitrate employment disputes is an

‘unlawful’ employment practice would require an intellectual dishonesty in which

this court will not engage.” Id. at 1316 (emphasis added). Substitute the phrase

44 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 45 of 71

“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

3 Instead of grappling with the above caselaw, the majority opinion cites to one inapt case in support of its reasoning: Graham v. State Farm Mutual Insurance Company, 193 F.3d 1274 (11th Cir. 1999). Graham bears little similarity, factually or legally, to the protected-conduct issue before us. In Graham, the plaintiff, who had been denied requested FMLA leave, had resigned her position after receiving a memorandum counseling her about her excessive non- FMLA absences from work. Id. at 1279–81. Adopting the opinion of the district court, we made no pronouncement whether the plaintiff had engaged in protected conduct and was thereafter retaliated against for that conduct, meaning we did not discuss the objective reasonableness of any belief the plaintiff may have had. Rather, we held that there was no basis for the plaintiff’s FMLA retaliation claim because the memorandum was not an adverse action. Id. at 1283–84. Moreover, we rejected the plaintiff’s claim that she had been constructively discharged, reasoning that no reasonable employee in these circumstances would consider her working conditions to be so intolerable that she was forced to resign. Id. at 1284.

45 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 46 of 71

any legal rights. Second, Munoz knew this full well as she had been through the

memorandum process before. From her own experience, she was well aware that,

in acknowledging receipt of such a memorandum, she was in no way expressing

any concessions toward her employer or agreement with the latter’s criticisms. I

address this latter point next before turning to the legal insufficiency of Munoz’s

position.

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. 46 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 47 of 71

As noted, our panel unanimously agrees that there is a disputed issue of fact

as to whether Defendant fired Munoz because of her insubordination—as reflected

in this refusal to acknowledge receipt of the memorandum—combined with what

her supervisors deemed to be her longstanding pattern of combative responses to

their requests, or whether instead Defendant fired Munoz because she had notified

them that she would continue to need intermittent leave to deal with a health

problem. And as a request for such leave is protected against retaliation under the

FMLA, our panel agrees that a jury must decide whether Munoz has proven that

but for this notification, she would not have been fired. See generally Univ. of Tx.

Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013).

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.

47 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 48 of 71

That being so, Munoz presses her second argument: even if wrong, she believed

that her employer acted unlawfully when it directed her to acknowledge receipt of

the memo because she believed that, by doing so, she would be waiving any

ability to assert her FMLA right to take future medical leave. And the majority

says this mistaken belief might have been an objectively reasonable belief. The

majority so speculates even though the memorandum nowhere indicates that

Munoz was waiving any rights—FMLA-related or otherwise—merely by

acknowledging she had received the memorandum. Moreover, given Munoz’s

own experience with this process, she could not have reasonably believed that

merely by acknowledging her receipt of the memorandum, she was indicating her

agreement with her supervisors’ concerns or otherwise waiving any rights. Why is

this so? Because three years before, in 2010, Munoz had been presented with a

memorandum of similar concerns. On that occasion, she not only signed the

acknowledgement but took the initiative to prepare her own counter-memorandum

challenging some of the criticisms of her supervisors. Thus, Munoz was well

aware that a mere acknowledgement of receipt of a memorandum did not indicate

agreement with the comments made in the memorandum nor estop her from

challenging any criticism via her own separate memorandum. She knew it meant

only one thing: that she had received the memorandum.

48 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 49 of 71

B. The 2010 Memorandum of 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.

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A deep dive into those two competing 2010 memoranda is revealing. As to

the first item on the list, Selig’s memorandum indicated that it and Munoz

mutually recognized that “Kendra packing up and taking all her personal

belongings was an emotional response to the situation and inappropriate, and

although the perception was that Kendra was implicitly ‘quitting,’ that was not her

intent.” Nonetheless, Selig concluded, “To clarify for the future, should this occur

again Selig will consider her actions an explicit resignation from her employment.”

In her own memorandum, Munoz reflected a somewhat different view of the

incident, casting some blame on her boss for her behavior.4

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

4 In explaining her behavior in her own memorandum, Munoz indicated that she did not intend to quit when she left work early, but that instead she was simply taking her lunch break late that day at 3:45. As to why she packed up all her personal belongings and took them with her as she was taking this late lunch break, Munoz’s memorandum explained that she was “responding outwardly” to Saine’s email (declining to close the office due to the snow). Apparently considering Saine to have been partially to blame for her angry exit, she further stated that she and her supervisors had agreed not to provoke each other to such a point in the future, and she agreed not to remove her personal belongings again when she was upset. 5 Munoz’s memorandum agreed with the need for teamwork, although she “did not agree with the characterization by some of her lack of teamwork.” She further indicated that Saine and Walker explained that they were under tremendous pressure to produce and if they had to “lean on various other departments,” this would have to be done, even though they may sometimes be perceived as “harsh or to the point or matter of fact by some.” 50 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 51 of 71

Responding to Munoz’s complaints of racial harassment in the Selig workplace,

Item 3 of the Selig memo indicated that it takes racial harassment seriously and

that if Munoz believes she has been the victim of harassment, it is her

responsibility to report that to an officer or the senior management. For her part,

Munoz’s memorandum contests Selig’s suggestion that she had failed to do so. 6

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,

6 Munoz’s response, in part, which was identified in her memorandum as Item 4, was that she had reported inappropriate comments “in every instance in the past. Her concern now is what happens in the future?”

51 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 52 of 71

Munoz’s memorandum indicated that she had improved and she explained her

difficulties arriving to work on time, given her long commute. 7

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

7 At Item 6, Munoz indicated that she had “made significant improvement” in providing her requests for PTO in advance. And she recognized that it was within Selig’s discretion whether to grant a particular request. As to tardiness, Munoz acknowledged that she had been tardy “an unacceptable number of times,” but explained that it was difficult to get “from Austell, to Mableton, to Midtown to arrive prior to 8:20 a.m. each morning (which includes the 5 minute grace period).” She nonetheless agreed that should she be tardy more than 5 times in a month that Selig would “need to take immediate action to remedy her tardiness.” 52 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 53 of 71

the circumstances surrounding her need to leave early, it was agreed at the time, if

feasibly possible, Kendra should then follow up with an email copying” the two

staff members.

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

53 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 54 of 71

already been sent back to them or are being signed by Steve (the CEO).” She also

understood that Saine and Walker’s concerns regarding her defensiveness “at times

were valid” and that “having the right attitude can make or break any relationship.”

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.”

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Wrapping up these reflections on the topic of her defensiveness when

supervisors addressed her about work assignments, Munoz repeated CFO Ron

Stein’s remarks during the discussion that “sarcasm has played a role in the group

interaction, which has had a negative impact on the work relationship. He noted

that less sarcasm on everyone’s part would serve all three parties well,” a

sentiment to which all parties agreed. Munoz repeated the analogy of a three-

legged stool, essentially explaining that to stand strong, all three legs of the

professional relation between her, Saine, and Walker had to work harmoniously.

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.

55 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 56 of 71

C. The 2013 Memorandum

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,

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Munoz had been tardy 72 days in 2009 and 53 days in 2010. During 2011, she was

tardy 23 times. After the onset of her symptoms, she was tardy 75 days in 2012

and 32 days from January-June 2013. In other words, she had an uptick in tardies

after developing health issues, albeit her record of tardy arrivals was numerous

even before that time. Moreover, Munoz concedes that none of her tardies were

related to health issues prior to October 2011 and that not all the tardies thereafter

were prompted by illness.

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

57 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 58 of 71

resistance. Saine testified that he could no longer count on his work being done

promptly and that he “purposely avoided” giving her work for that reason.

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

58 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 59 of 71

Munoz about using company time to handle personal business, Munoz was

dismissive of his concern, insisting that she could “multi-task.”

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?

59 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 60 of 71

Saine responded, “Kendra, I am sorry but I asked you to take care of this.” Munoz

replied to her boss:

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”:

1) Kendra’s defensiveness when questioned about whether there was a misunderstanding about who was to perform a certain task.

2) Kendra’s continued excessive tardiness.

3) Kendra’s failure to seek Jim and Kent’s consent before changing her working hours.

4) Kendra’s failure to adequately give Jim and Kent notice when taking extended PTO.

5) Jim and Kent’s belief that Kendra spends an excessive amount of the day working on personal affairs.

60 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 61 of 71

6) Jim and Kent’s belief that Kendra’s attitude has resulted in a difficult work environment that has negatively impacted the department. 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

8 Munoz’s explanation for her failure to let her supervisors know well ahead of time about this planned absence was that they knew she always took time off during spring break, and it was essentially up to them each year to figure out, and remember, when that break would occur. 61 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 62 of 71

from—or retaliate against her for—taking medical leave, it could legitimately

insist that Munoz abide by its procedures for requesting leave, especially leave that

was not illness-related.

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

62 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 63 of 71

indicates only that Munoz acknowledges receipt of the memorandum, not that she

is conceding anything or waiving any right.

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

9 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 63 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 64 of 71

acknowledgment of receipt of the memorandum would constitute a waiver of her

statutory right to take medical leave.10 Yet, no matter the content of the memo, the

acknowledgment-of-receipt line of the memorandum indicated only that Munoz

had received the document—not that she agreed with anything contained therein or

that she waived any right.

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

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. 10 The majority opinion states, “Ms. Munoz says her employer essentially told her that she would be waiving her statutorily protected rights by signing the Memorandum . . . .” Maj. Op. at 31 n.3 (emphasis added). Although it is Munoz’s position that she believed this to be the case, I can find no support in Munoz’s deposition for this characterization of what her supervisors actually said to her. 64 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 65 of 71

effect without straining to extend coverage where none was contracted or

intended.”). Where contract terms “are clear and unambiguous, the court will look

to the contract alone to find the intention of the parties.” Wooden v. Synovus Bank,

325 Ga. App. 876, 877 (2014) (internal quotation marks omitted). Georgia courts

generally do not look beyond the face of a written contract “to add to, take from, or

vary” the terms of the contract. Id. at 878 (internal quotation marks omitted).

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 law 11 defines a waiver as the “voluntary

relinquishment of a known right.” Kennestone Hosp., Inc. v. Hopson, 273 Ga. 145,

11 I cite Georgia law because Defendant’s business operated in Georgia, where Munoz worked, and the memorandum was presented to her there. See Grupo Televisa, S.A. v. Telemundo Commc’ns Grp., Inc., 485 F.3d 1233, 1240 (11th Cir. 2007) (a “federal court sitting in diversity will apply the conflict-of-laws rules of the forum state”) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)) and Convergys Corp. v. Keener, 276 Ga. 808, 812 (2003) (affirming Georgia’s continued adherence to the traditional lex loci contractus rule). But federal contract law does not differ from Georgia contract law in any respect that is material here. See In re FFS Data, Inc., 776 F.3d 1299, 1304 n.5 (11th Cir. 2015) (noting that state law contract principles and federal common law principles both provide that the plain and ambiguous terms of a contract govern its interpretation) and Witt v. Metro. Life Ins. Co., 772 F.3d 1269, 1279 (11th 65 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 66 of 71

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

Cir. 2014) (explaining that, assuming waiver principles apply to an ERISA claim under federal common law, such a waiver requires the “voluntary, intentional relinquishment of a known right” and the “acts, conduct, or circumstances relied upon to show” an implied waiver “must make out a clear case” (internal quotation marks omitted)). 66 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 67 of 71

complained-about conduct of their employers violated the law and all were

presumably ignorant of the fact that their views did not jibe with the applicable

legal standard. See discussion supra. Yet, in each of these cases, we held that the

plaintiff’s beliefs were not objectively reasonable under the prevailing substantive

law. Indeed, in Dixon, we noted that the plaintiffs there had identified absolutely

no legal authority in support of their particular argument: a position in which

Munoz likewise finds herself. And those plaintiffs’ arguments were a heck of a lot

stronger than Munoz’s contention here, which is flatly contradicted by the simple,

understandable language of the one sentence at issue. Indeed, just like the plaintiff

in Weeks, who believed that his employer acted unlawfully in insisting that he sign

an arbitration agreement, Munoz’s purported belief that Defendant acted

unlawfully in requiring her to acknowledge receipt of the 2013 memorandum is not

an objectively reasonable belief—meaning that her refusal to acknowledge receipt

of the document does not constitute protected conduct. To say otherwise would be

to engage in the “intellectual dishonesty” decried by Weeks. Weeks, 291 F.3d at

1316.

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

67 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 68 of 71

it, even though she disagreed with much of what was in that memorandum and

clearly did not believe that her signature waived any rights. As a result of that

experience, Munoz was aware that she was free to draft her own memorandum

setting out her response to her employer’s position, just as she had done in 2010.

Given this experience with the 2010 memorandum, a person in Munoz’s situation

could not reasonably have believed that her employer was asking her to waive

FMLA rights merely because the employer had merely asked her to acknowledge

receipt of a memorandum expressing the latter’s concerns. Indeed, the majority

opinion has cited no case in which a plaintiff has prevailed on an argument that her

particular belief was reasonable where the accuracy of that purported belief is so

directly contradicted by the plaintiff’s prior experience.

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.

68 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 69 of 71

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

69 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 70 of 71

concerns, this will be relevant in deciding whether Defendant’s stated reason for

terminating Munoz—her insubordination in refusing to acknowledge the memo

combined with her alleged pattern of combativeness—was merely a pretext to hide

its true reason: Munoz’s continuing need to take medical leave. Thus, Munoz will

be able to fully litigate exactly what happened during this meeting. But if the

objective reasonableness issue—which I submit should be decided on this record

as a matter of law—is now up for grabs as a jury question, then ill-equipped to

gauge that question against substantive caselaw, the jury may mistakenly equate a

subjective belief with an objectively reasonable one. And a mislabeling by the jury

of Munoz’s refusal to acknowledge receipt of the memorandum as protected

conduct will essentially constitute a directed verdict for Munoz because Defendant

acknowledges that it would not have fired Munoz on June 6 had she simply signed

the form. Moreover, this will be the result even if the jury decides that Munoz’s

alleged request for future medical leave had nothing to do with Defendant’s

decision to fire her but that instead Defendant fired Munoz entirely because her

confrontational, uncooperative attitude had made it impossible to work with her

any longer.

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

70 USCA11 Case: 18-14606 Date Filed: 12/04/2020 Page: 71 of 71

favorable to Munoz, she did not engage in protected conduct when she refused to

acknowledge receipt of the 2013 memorandum. We should say so. We don’t and,

for that reason, I respectfully dissent.