Charity Moore, et al v. City of Homewood, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11378
Non-Argument Calendar
____________________
CHARITY MOORE,
LASHAWN SMITH,
Plaintiffs-Appellants,
versus
CITY OF HOMEWOOD,
STEVE SPARKS,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 1 of 32

-- 1 of 32 --

2 Opinion of the Court 21-11378
D.C. Docket No. 2:19-cv-00879-SGC
____________________
Before W ILSON, L UCK , and ANDERSON, Circuit Judges.
PER C URIAM :
Charity Moore and LaShawn Smith, both police dispatchers,
sued the City of Homewood and Sergeant Steve Sparks, alleging
violations of Title VII of the Civil Rights Act of 1964, the Fair Labor
Standards Act, and the Family and Medical Leave Act. The district
court granted the defendants’ motion to dismiss in full. We reverse
as to Officer Moore’s Family and Medical Leave Act retaliation
claim. We affirm as to the remaining claims.
FACTUAL BACKGROUND1
The Parties
Charity Moore and LaShawn Smith worked as police dis-
patchers for the Homewood Police Department. Officer Smith be-
gan working for the department in 2014. Officer Moore joined the
department in 2015. Officer Moore and Officer Smith are African
American. Through this action, the officers sued their employer,
1 “We accept the factual allegations in the complaint as true and construe them
in the light most favorable to the plaintiff.”
Luke v. Gulley, 975 F.3d 1140, 1143
(11th Cir. 2020) (quoting
Echols v. Lawton, 913 F.3d 1313, 1319 (11th Cir.
2019)).
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 2 of 32

-- 2 of 32 --

21-11378 Opinion of the Court 3
the City of Homewood, and their supervisor, Sergeant Steve
Sparks.2
Officer Moore
Officer Moore’s problems started when she returned from
maternity leave in April 2017. When Officer Moore returned from
leave, she asked her white supervisor, Sergeant Steve Sparks, for a
private place to express breast milk. About a year earlier, a white
police department employee asked for a private place to pump
breast milk and the department made one available. But when Of-
ficer Moore made the same request, Sergeant Sparks told her to
pump at her desk and to “place a sign on the doorway as needed.”
Officer Moore’s desk—in the dispatch room—offered little
privacy. Although employees needed an access code to enter the
dispatch room, anyone with the code could freely enter the room.
In practice, that meant that all dispatchers and several police offic-
ers had access to the room. And those people would often enter
the dispatch room, even when Officer Moore placed a sign on the
doorway that read “Private: Pumping in Progress.” Over the
spring and summer of 2017, the department also increased the
number of police patrols but kept the number of dispatchers the
same. This meant longer hours for dispatchers and fewer oppor-
tunities for Officer Moore to take a break to seek “a private refuge
to pump.” These new officers were also given the access code,
2 We refer to the City of Homewood and to Sergeant Sparks collectively as the
“city.”
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 3 of 32

-- 3 of 32 --

4 Opinion of the Court 21-11378
increasing the number of people who would “walk[] in and out of
the dispatch room, ignoring [Officer] Moore’s sign requesting pri-
vacy.”
During this period, several officers in the department made
offensive comments to Officer Moore. One employee asked her,
for example, “[a]re you hooked up like a cow?” Another told her,
“[I] would love to purchase some of that milk.” In May 2017, about
a month into her return from maternity leave, Officer Moore asked
Lieutenant Andrew Didcoct for a private place to pump and, de-
spite saying that he would “[l]ook into it,” Lieutenant Didcoct
never did.
In July 2017, two months after she reached out to Lieutenant
Didcoct, Officer Moore again asked Sergeant Sparks for a private
place to pump. Sergeant Sparks falsely replied that Officer Moore’s
request was “the first time anyone ha[d] notified” him that she
needed a private place to pump. Sergeant Sparks told Officer
Moore that “options for privacy were limited” and offered her the
opportunity to use the “bathroom / locker room.” The department
also made Lieutenant Didcoct’s windowed office available to her.
A few months later, the jail bathroom leaked sewage onto
Officer Moore’s desk, contaminating milk and her breast pump.
The department bought Officer Moore a new breast pump. Going
forward, the department required her to sit at the desk closest to
the dispatch room’s entry door. This new desk was in front of a
window that “anyone” could see into.
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 4 of 32

-- 4 of 32 --

21-11378 Opinion of the Court 5
Beyond these breast-pump problems, Officer Moore also
faced push-back from the department about two years later when
she discovered she had a tumor and needed to adjust her work
schedule. In February 2019, Officer Moore felt excruciating back
pain, went to the emergency room, and was diagnosed with a tu-
mor in her lower back. When she provided her doctor’s note to
Sergeant Sparks, he told her that, unless she further explained the
note, he wouldn’t accept it and would instead discipline her. In
response, Officer Moore told Sergeant Sparks’s supervisor, Lieu-
tenant Keith Peterson, that Sergeant Sparks scrutinized black offic-
ers’ medical notes more closely than white officers’ notes. Lieuten-
ant Peterson didn’t deny that allegation. He told Officer Moore
that he would “look into it” but he never followed up with her.
On top of requiring additional information, Sergeant Sparks
“subjected [Officer Moore] to heightened, onerous scrutiny com-
pared to her white co-workers” when she requested time off be-
cause of her tumor. So, for example, before allowing her to return
to work, Sergeant Sparks required Officer Moore to take a “Fit for
Duty” assessment, even though he didn’t make white co-workers
with similar health issues do the same. Later, in April 2019, Ser-
geant Sparks told Officer Moore that she would need to work more
days than her doctor-prescribed limit. Officer Moore said she could
not do this without first checking with her doctor. Within days,
Officer Moore was “subjected to her first drug test” since she
started with the department five years earlier. Officer Moore
emailed Sergeant Sparks, saying she thought there was a “race-
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 5 of 32

-- 5 of 32 --

6 Opinion of the Court 21-11378
based double standard” within the department. Sergeant Sparks
never acknowledged Officer Moore’s complaint.
The department, according to Officer Moore, continued to
“interfere[]” with her right to take leave in a way that white officers
never experienced. For example, Sergeant Sparks “impl[ied]
and/or threaten[ed]” Officer Moore with disciplinary action for
taking leave. He also called her and demanded that she work
longer hours to accommodate two white dispatchers who were
taking time off for a baby and for elective surgery. Sergeant Sparks
further told Officer Moore that he “did not like or appreciate her
having longer, [Family and Medical Leave Act] agreed-upon week-
ends,” and he altered Officer Moore’s work schedule to prevent her
from having consecutive days off. For his part, Lieutenant Peter-
son told Officer Moore to have her doctor amend her medical pa-
pers so that she could work more hours.
In September 2019, Sergeant Sparks stepped down as Offic-
ers Moore and Smith’s supervisor but remained with the depart-
ment. That same day, an anonymous complaint was filed against
Officer Moore for having—two years earlier—posted a video to so-
cial media as part of her ongoing advocacy for breastfeeding moth-
ers in Alabama. Officer Moore’s new white supervisors “gave her
a write up” for posting the video. Four years earlier, a white officer
had “made a pornographic video” and sent “invitations around the
[department] to join him in a ‘viewing party’” but was not disci-
plined. That same officer was allowed to resign after failing a drug
test. Both Sergeant Sparks and Internal Affairs Sergeant Doug
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 6 of 32

-- 6 of 32 --

21-11378 Opinion of the Court 7
Finch (who is also white) had posted “bigoted and/or violence-
steeped ‘memes’” on social media but had never been disciplined.
Officer Smith
Officer Smith’s claims are based on a single incident. In Feb-
ruary 2019, Officer Smith asked Sergeant Sparks to go home early
because she was feeling sick. Sergeant Sparks denied that request—
despite granting similar ones from white employees. This was “be-
yond frustrating to Smith” and she “began experiencing what to
her felt like a panic attack.” Officer Smith called Homewood’s Em-
ployee Assistance Program for help, and a representative advised
her to go to the emergency room. When Officer Smith told Ser-
geant Sparks that she was going to the emergency room, Sergeant
Sparks sent an “armed guard” to escort her off of the city’s prop-
erty.3
PROCEDURAL HISTORY
In their second amended complaint, Officers Moore and
Smith asserted twelve counts against Homewood and Sergeant
Sparks. Their claims can be broken down into four categories: (1)
race discrimination under section 1983 and Title VII (counts one,
three, five, ten, eleven, and twelve); (2) race retaliation under sec-
tion 1983 (counts two and four); (3) Officer Moore’s claims for vio-
lations of nursing mother accommodations under the Fair Labor
3 In their complaint, Officer Moore and Officer Smith also describe a series of
racist incidents—not involving them—that occurred within the department
throughout their time working there.
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 7 of 32

-- 7 of 32 --

8 Opinion of the Court 21-11378
Standards Act and section 1983 (counts six and seven); and (4) Of-
ficer Moore’s claims for interference and retaliation under the Fam-
ily and Medical Leave Act and section 1983 (counts eight and
nine).4
The district court granted the city’s motion to dismiss in full.
First, as to Officer Moore and Smith’s race discrimination claims,
the district court held that neither of them suffered any adverse
employment action. Second, as to Officer Moore and Smith’s race
retaliation claims, the district court reached the same conclusion,
holding that they failed to allege any adverse employment action.
The district court held that Officer Smith’s retaliation claim also
failed because she did not allege that she engaged in any protected
activity. Third, as to Officer Moore’s nursing claim—that the city
failed to provide a private place to nurse—the district court held
that Officer Moore failed to plausibly allege damages. Fourth, as
to Officer Moore’s Family and Medical Leave Act interference and
retaliation claims, the district court concluded that these claims
must be dismissed because Officer Moore was never denied any
benefit and because she suffered no adverse employment action.
This appeal followed.
4 In their opening brief, Officers Moore and Smith make a few passing refer-
ences to the Americans with Disabilities Act. But that is not enough to pre-
serve an ADA claim for appeal.
See Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant abandons
a claim when he either makes only passing references to it or raises it in a
perfunctory manner without supporting arguments and authority.”).
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 8 of 32

-- 8 of 32 --

21-11378 Opinion of the Court 9
STANDARD OF REVIEW
We review de novo the district court’s dismissal of a com-
plaint for failure to state a claim.
Am. Dental Ass’n v. Cigna Corp.,
605 F.3d 1283, 1288 (11th Cir. 2010). A “complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plaintiff must plead “factual content that allows the
court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.”
Id. Our review has two steps: (1) we
“eliminate any allegations in the complaint that are merely legal
conclusions”; and (2) for any “well-pleaded factual allegations, [we]
assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.”
Am. Dental Ass’n, 605 F.3d at
1290 (cleaned up).
DISCUSSION
Race Discrimination
The district court properly dismissed the officers’ claims for
race discrimination under Title VII and section 1983. “When sec-
tion 1983 is used as a parallel remedy for [a] violation of . . . Title
VII . . . , the elements of the two causes of action are the same.”
Cross v. State of Ala., State Dep’t of Mental Health & Mental Re-
tardation, 49 F.3d 1490, 1508 (11th Cir. 1995) (quoting
Hardin v.
Stynchcomb, 691 F.2d 1364, 1369 n.16 (11th Cir. 1982));
see also
Bryant v. Jones, 575 F.3d 1281, 1296 n.20 (11th Cir. 2009) (same).
Like the parties, we’ll analyze the claims together.
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 9 of 32

-- 9 of 32 --

10 Opinion of the Court 21-11378
“Claims of race discrimination . . . require a showing that the
employer subjected the employee to an ‘adverse employment ac-
tion.’”
Davis v. Legal Servs. Ala., Inc., 19 F.4th 1261, 1265 (11th Cir.
2021). Where a plaintiff brings a disparate treatment claim, adverse
employment actions “consist of things that affect continued em-
ployment or pay—things like terminations, demotions, suspen-
sions without pay, and pay raises or cuts—as well as other things
that are similarly significant standing alone.”
Monaghan v. World-
pay US, Inc., 955 F.3d 855, 860 (11th Cir. 2020).
We’ve held, in other words, that an employee bringing a dis-
crimination claim “must show a
serious and material change in the
terms, conditions, or privileges of employment.”
Davis v. Town
of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001). It follows that
“not all conduct by an employer negatively affecting an employee
constitutes adverse employment action.”
Webb-Edwards v. Or-
ange Cnty. Sheriff’s Off., 525 F.3d 1013, 1031 (11th Cir. 2008)
(cleaned up);
see also Doe v. Dekalb Cnty. Sch. Dist., 145 F.3d 1441,
1453 (11th Cir. 1998) (“[I]t is not enough that [the challenged ac-
tion] imposes some
de minimis inconvenience or alteration of re-
sponsibilities.”). “Title VII is neither a general civility code nor a
statute making actionable the ordinary tribulations of the working
place.”
Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d
1227, 1234 (11th Cir. 2006) (cleaned up).5
5 This is consistent with the text of Title VII, which limits discrimination claims
to changes in an employee’s “compensation, terms, conditions, or privileges
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 10 of 32

-- 10 of 32 --

21-11378 Opinion of the Court 11
The officers have failed to plausibly allege that they suffered
any adverse employment action. Officer Moore rests her claim to
an adverse employment action on three events. First, Officer
Moore points to the fact that the city previously provided a white
employee with a small room to pump in but offered her only (1)
her desk in the dispatch room, (2) the women’s bathroom or locker
room, and (3) Lieutenant Didcoct’s windowed office. Even assum-
ing these accommodations fall short of the Fair Labor Standards
Act’s requirements, we can’t say that they amount to an adverse
employment action because they simply don’t resemble a “termi-
nation[], demotion[], suspension[] without pay, [or] pay raise[] or
cut[]”—the things we’ve previously identified as paradigmatic ad-
verse actions.
Monaghan, 955 F.3d at 860. The department offered
Officer Moore at least three places to pump—some of which ap-
pear to have offered at least some privacy. The city’s failure to offer
her some other (more-private) location doesn’t rise to the level of
an adverse employment action.
Second, Officer Moore claims that the department’s re-
sponse to her back injury also constitutes an adverse action. The
department, Officer Moore says, (1) required her to provide more
information about her doctor’s note, (2) subjected her to a “Fit for
Duty” assessment, (3) had her take a drug test, (4) “impl[ied]
of employment.” 42 U.S.C. § 2000e-2(a)(1). “Courts have uniformly read this
language to require a plaintiff suing under [section] 2000e–2(a) to establish, as
part of his prima facie case, that he suffered so-called ‘adverse employment
action.’”
Davis, 245 F.3d at 1238.
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 11 of 32

-- 11 of 32 --

12 Opinion of the Court 21-11378
and/or threaten[ed]” her with disciplinary action for taking leave,
(5) “demanded” that she work more than her doctor recom-
mended, and (6) altered her work schedule to “prevent her from
having consecutive days off.” The problem, though, is that none
of these things had a “material” and “tangible” adverse effect on
Officer Moore’s terms of employment.
Davis, 245 F.3d at 1239.
Officer Moore never alleges, for example, that the city
ultimately
rejected her doctor’s note, that it
actually required her to work
more hours, or that it
ever took any disciplinary action against her.
Nor does she explain how the “Fit for Duty” assessment or the drug
test imposed anything more than a “
de minimis inconvenience.”
Doe, 145 F.3d at 1453. Because none of these actions materially
affected Officer Moore’s terms of employment, they are not ad-
verse employment actions.
Third, Officer Moore points to the “write-up” she received
for an Instagram video she posted. But we’ve routinely held that
negative reviews—standing alone—rarely establish an adverse ac-
tion. As we explained in
Davis:
Employer criticism, like employer praise, is an ordi-
nary and appropriate feature of the workplace. Ex-
panding the scope of Title VII to permit discrimina-
tion lawsuits predicated only on unwelcome day-to-
day critiques and assertedly unjustified negative eval-
uations would threaten the flow of communication
between employees and supervisors and limit an em-
ployer’s ability to maintain and improve job perfor-
mance. Federal courts ought not be put in the
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 12 of 32

-- 12 of 32 --

21-11378 Opinion of the Court 13
position of monitoring and second-guessing the feed-
back that an employer gives, and should be encour-
aged to give, an employee. Simply put, the loss of
prestige or self-esteem felt by an employee who re-
ceives what he believes to be unwarranted job criti-
cism or performance review will rarely—without
more—establish the adverse action necessary to pur-
sue a claim under Title VII’s anti-discrimination
clause.
Davis, 245 F.3d at 1242;
see also, e.g.,
Butler v. Ala. Dep’t of
Transp., 536 F.3d 1209, 1216 (11th Cir. 2008) (holding that several
“warnings and [a] reprimand did not lead to any change in the
terms, conditions, or privileges of employment”). In short, none
of the actions Officer Moore points to—considered individually or
collectively—rise to an adverse employment action.
Officer Smith’s claim fails for similar reasons. Officer Smith,
for her part, says she suffered an adverse employment action when
Sergeant Sparks denied her request to leave work early and when
he sent officers to escort her off the property. But neither of these
things amount to “a serious and material change in the terms, con-
ditions, or privileges of [her] employment.”
Crawford v. Carroll,
529 F.3d 961, 970–71 (11th Cir. 2008) (cleaned up). In fact, Sergeant
Sparks ultimately allowed Officer Smith to leave work early. The
allegations show that Sergeant Sparks sent help to an employee suf-
fering from a panic attack. Even viewed in the light most favorable
to the officers, Sergeant Sparks’s actions amount at most to “[t]riv-
ial slights” that “are not actionable.”
Monaghan, 955 F.3d at 860.
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 13 of 32

-- 13 of 32 --

14 Opinion of the Court 21-11378
When faced with similar facts, we’ve found no adverse em-
ployment action. Take our decision in
Davis v. Legal Services Al-
abama Inc., 19 F.4th 1261, 1264 (11th Cir. 2021), for example. In
that case, Legal Services Alabama, a legal nonprofit, suspended
with pay its executive director.
Id. at 1264. Affirming the district
court’s order granting summary judgment for the employer, we
held that a “paid suspension is not an adverse employment action.”
Id. at 1267. Indeed, the
Davis court reached this conclusion, even
where the employer (1) disclosed the suspension to the executive
director’s former political opponent, (2) suspended him days before
a high-profile reception with the state bar, (3) compiled a narrative
of reasons for his suspension in a suspension letter, and (4) placed
a security guard in front of the nonprofit’s building in the wake of
the suspension.
Id. Here, neither Officer Moore nor Officer Smith
faced anything approaching a suspension. As in
Legal Services Al-
abama, then, the officers in our case have alleged no adverse em-
ployment action.
* * *
Because Officers Moore and Smith failed to plausibly allege
an adverse employment action, the district court properly dis-
missed their race discrimination claims.
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 14 of 32

-- 14 of 32 --

21-11378 Opinion of the Court 15
Race Retaliation
The district court properly dismissed the officers’ claims for
race-based retaliation.6 To establish a prima facie case of retalia-
tion, a “plaintiff must show that (1) she engaged in statutorily pro-
tected activity, (2) an adverse employment action occurred, and (3)
the adverse action was causally related to the plaintiff’s protected
activities.”
Little v. United Techs., Carrier Transicold Div., 103
F.3d 956, 959 (11th Cir. 1997);
see also Weeks v. Harden Mfg.
Corp., 291 F.3d 1307, 1317 (11th Cir. 2002) (same). Only the first
and second elements are at issue here.
As to the first element, an employee has engaged in a pro-
tected activity, under Title VII, if she (1) “has opposed any practice
made an unlawful employment practice by” Title VII or (2) “has
made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing” under Title VII. 42 U.S.C.
§ 2000e-3(a). “The first part of the anti-retaliation provision is
known as the ‘opposition clause’ and the second part as the
6 The officers bring their race-based retaliation claims under section 1983. Sec-
tion 1983 claims require an underlying constitutional or statutory violation.
See Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979) (noting that section 1983
“is not itself a source of substantive rights, but a method for vindicating federal
rights elsewhere conferred by those parts of the United States Constitution
and federal statutes that it describes”). But the officers never identify the un-
derlying constitutional or statutory violation that they base their section 1983
retaliation claims on. In any event, the parties—and the district court—ana-
lyzed the officers’ section 1983 retaliation claims under Title VII standards.
We’ll do the same.
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 15 of 32

-- 15 of 32 --

16 Opinion of the Court 21-11378
‘participation clause.’”
Gogel v. Kia Motors Mfg. of Ga., Inc., 967
F.3d 1121, 1134 (11th Cir. 2020) (setting out the standard for retali-
ation).
As to the second element, “a plaintiff must show that a rea-
sonable employee would have found the challenged action materi-
ally adverse, which in [the retaliation] context means it well might
have dissuaded a reasonable worker from making or supporting a
charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006) (cleaned up). “We speak of
material
adversity because we believe it is important to separate significant
from trivial harms.”
Id. “An employee’s decision to report discrim-
inatory behavior,” the Supreme Court has cautioned, “cannot im-
munize that employee from those petty slights or minor annoy-
ances that often take place at work and that all employees experi-
ence.”
Id.
We’ll take the officers’ claims in turn.
Officer Moore has abandoned her race-based retaliation
claim. In her initial brief, Officer Moore argued that the district
court erred in dismissing her race discrimination claim but made
no arguments for her race-based retaliation claim. And “[w]e have
long held that an appellant abandons a claim when he either makes
only passing references to it or raises it in a perfunctory manner
without supporting arguments and authority.”
Sapuppo, 739 F.3d
at 681. To the extent that she sufficiently raised the issue in her
reply, by then it was too late.
In re Egidi, 571 F.3d 1156, 1163 (11th
Cir. 2009) (“Arguments not properly presented in a party’s initial
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 16 of 32

-- 16 of 32 --

21-11378 Opinion of the Court 17
brief or raised for the first time in the reply brief are deemed [aban-
doned].”).
Officer Smith’s race-based retaliation claim fails for two rea-
sons. First, Officer Smith never alleged that she opposed any prac-
tice that is unlawful under Title VII or that she participated in any
Title VII proceedings. Although Officer Smith speculated that Ser-
geant Sparks denied her request to leave early due to her race, she
never says that she reported that belief to anyone or that she suf-
fered any consequences because of that complaint. Indeed, Officer
Smith never claims that she ever reported
any instances of race dis-
crimination to
anyone. As a result, Officer Smith failed to allege
that “she engaged in statutorily protected activity.”
Little, 103 F.3d
at 959.
Second, even if she had alleged that she engaged in protected
activity, Officer Smith’s claim would still fail because she didn’t
plead an adverse employment action. As we’ve said, Officer
Smith’s entire claim rests on Sergeant Sparks’s initial refusal to al-
low her to leave work early and on his decision to send guards to
help her out of the building. But at no point does Officer Smith
“allege why a reasonable worker in [her] shoes would have been
dissuaded from reporting allegedly retaliatory conduct because of
these [actions].”
Johnson v. Miami-Dade Cnty., 948 F.3d 1318, 1327
(11th Cir. 2020). Nor could she. As we’ve said, Sergeant Sparks
ultimately allowed Officer Moore to leave. And an employee suf-
fering from a panic attack cannot reasonably expect her employer
to send no one to help her out of the building. In all, while Sergeant
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 17 of 32

-- 17 of 32 --

18 Opinion of the Court 21-11378
Sparks might’ve been rude—maybe even harsh—we can’t say that
he took any adverse employment action.
See, e.g.,
Higdon v. Jack-
son, 393 F.3d 1211, 1219–20 (11th Cir. 2004) (“[The plaintiff] alleges
that [a supervisor] was rude, but this Court has repeatedly stated
that the civil rights laws were not intended to be a ‘civility code.’”).
* * *
In short, Officer Moore abandoned her race-based retalia-
tion claim. And Officer Smith failed to plausibly allege that she en-
gaged in any protected activity or that she suffered an adverse em-
ployment action.
Officer Moore’s Nursing Claim
Officer Moore’s nursing claim—that the city is liable for fail-
ing to provide a private place to pump—fares no better. Under the
Fair Labor Standards Act:
(1) An employer shall provide--
(A) a reasonable break time for an employee to
express breast milk for her nursing child for 1
year after the child’s birth each time such em-
ployee has need to express the milk; and
(B) a place, other than a bathroom, that is
shielded from view and free from intrusion
from coworkers and the public, which may be
used by an employee to express breast milk.
29 U.S.C. § 207(r).
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 18 of 32

-- 18 of 32 --

21-11378 Opinion of the Court 19
Both sides agree that Officer Moore adequately alleged that
the city violated the Fair Labor Standards Act by failing to give Of-
ficer Moore “a place . . . that is shielded from view and free from
intrusion . . . to express breast milk.”
Id.7 But they disagree as to
whether Officer Moore plausibly alleged that she suffered the sorts
of damages required by the Fair Labor Standards Act. As we ex-
plain below, we agree with the district court that Officer Moore’s
nursing claim must be dismissed because she failed to adequately
plead damages.
In setting out the damages an employee can recover under
the nursing provisions, the Fair Labor Standards Act says this:
“Any employer who violates the provisions of . . . section 207 . . .
shall be liable to the employee or employees affected in the amount
of their unpaid minimum wages, or their unpaid overtime com-
pensation, as the case may be, and in an additional equal amount
as liquidated damages.” 29 U.S.C. § 216(b). Here, Officer Moore
did not allege that she is owed any “unpaid minimum wages” or
“unpaid overtime compensation.” Instead, she said that she
7 It’s not entirely clear to us that Officer Moore
has plausibly stated a violation
of section 207(r). That’s because she alleged, in her complaint, that Sergeant
Sparks “offered the women’s bathroom / locker room as a place to pump.”
And while the Fair Labor Standards Act says that a “bathroom” (for obvious
sanitary reasons) won’t suffice for a private place to nurse, it says nothing
about locker rooms. Nor does Officer Moore explain why the locker room
provided by her employer was deficient. In any event, because the parties
(and the district court) assumed that Officer Moore stated a violation of section
207(r), we’ll do the same and continue to damages.
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 19 of 32

-- 19 of 32 --

20 Opinion of the Court 21-11378
incurred only “privations, physical and emotional damages.” Be-
cause Officer Moore’s damages aren’t recoverable under the Act,
she’s failed to state a plausible claim for relief.
Federal district courts across the country have reached this
same plain-text conclusion.
See, e.g.,
Poague v. Huntsville Whole-
sale Furniture, 369 F. Supp. 3d 1180, 1199 (N.D. Ala. 2019)
(“[C]ourts have found in their interpretation of [section] 207(r) that
employees may only recover for unpaid minimum wage or over-
time wages due as a result of a violation of [section] 207(r).”);
Lampkins v. Mitra QSR, LLC, 2018 WL 6188779, at *5 (D. Del.
Nov. 28, 2018) (“By its express terms, [section] 216(b) limits the
remedies available for violations of [section] 207(r) to ‘unpaid min-
imum wages’ and ‘unpaid overtime compensation.’”);
Barbosa v.
Boiler House LLC, 2018 WL 8545855, at *6 (W.D. Tex. Feb. 23,
2018) (observing that “unpaid minimum wages” and “unpaid over-
time compensation” are “the only forms of compensation provided
under the statute for violations of 29 U.S.C. [section] 207”);
Mayer
v. Prof’l Ambulance, LLC, 211 F. Supp. 3d 408, 413 (D.R.I. 2016)
(“Courts examining this issue have likewise held that there is no
cause of action under [s]ection 207(r) absent a claim for unpaid min-
imum wages or overtime.”).
Against this, Officer Moore advances two arguments—both
unpersuasive.
First, Officer Moore points to
Moore v. Freeman, 355 F.3d
558 (6th Cir. 2004), in which the Sixth Circuit held that the “anti-
retaliation provisions of the [Fair Labor Standards Act] . . . allow[]
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 20 of 32

-- 20 of 32 --

21-11378 Opinion of the Court 21
for damages for mental and emotional distress.”
Id. at 563. Relying
on this decision, Officer Moore contends that she too is entitled to
these sorts of damages. But the Sixth Circuit’s ruling—interpreting
the Fair Labor Standards Act’s retaliation provisions—does nothing
to help Officer Moore’s case. That’s because Officer Moore
brought an
accommodations claim (contending that her employer
“refus[ed] to provide her the safety and privacy accorded to her un-
der the Act”), not a
retaliation claim (contending that her employer
punished her for invoking her rights under the Act).
The Sixth Circuit’s holding in
Freeman only supports our
ruling here. The damages provision at issue in our case—for vio-
lating section 207(r)’s nursing requirements—says that an em-
ployer “shall be liable to the employee or employees affected in the
amount of their unpaid minimum wages, or their unpaid overtime
compensation, as the case may be, and in an additional equal
amount as liquidated damages.” 29 U.S.C. § 216(b). The damages
provision at play in
Freeman—for violating section 215(a)(3)’s re-
taliation prohibition—is significantly broader, providing that the
employer “shall be liable for such legal or equitable relief as may
be appropriate to effectuate the purposes of [the retaliation provi-
sion], including without limitation employment, reinstatement,
promotion, and the payment of wages lost and an additional equal
amount as liquidated damages.” 29 U.S.C. § 216(b). Congress, in
short, knows how to expand damages beyond unpaid minimum
wages, unpaid overtime, and liquidated damages when it wants to.
But it chose
not to do so here.
See generally Savage Servs. Corp.
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 21 of 32

-- 21 of 32 --

22 Opinion of the Court 21-11378
v. United States, 25 F.4th 925, 935 (11th Cir. 2022) (“Where Con-
gress knows how to say something but chooses not to, its silence is
controlling.” (quoting
Pinares v. United Techs. Corp., 973 F.3d
1254, 1262 (11th Cir. 2020))).
Second, Officer Moore argues that she did, in fact, raise a
Fair Labor Standards Act retaliation claim and that she plausibly
stated that claim. We disagree. For starters, Officer Moore, in her
complaint, never referenced section 215(a)(3) or any Fair Labor
Standards Act retaliation claim. Nor did she ever argue that she
plausibly stated such a claim before the district court. “[A]nd on
appeal this Court ‘cannot allow [a plaintiff] to argue a different case
from the case she presented to the district court.’”
Matamoros v.
Broward Sheriff’s Off., 2 F.4th 1329, 1337 n.6 (11th Cir. 2021) (quot-
ing
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th
Cir. 2004)).
Even if Officer Moore’s newly discovered retaliation claim
had been preserved, it would still fail on the merits. To make out
a prima facie case of retaliation under the Fair Labor Standards Act,
a plaintiff must allege: “(1) she engaged in activity protected under
the act; (2) she subsequently suffered adverse action by the em-
ployer; and (3) a causal connection existed between the employee’s
activity and the adverse action.”
Wolf v. Coca-Cola Co., 200 F.3d
1337, 1342–43 (11th Cir. 2000) (cleaned up). As the district court
noted, Officer Moore hasn’t met the third element: causation.
While Officer Moore complains, for example, that the city “refused
to provide her with . . . federally-mandated nursing
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 22 of 32

-- 22 of 32 --

21-11378 Opinion of the Court 23
accommodations” and “failed to address widespread harassment,
taunts and jeers she experienced with respect to her nursing prac-
tices,” she never suggested in her complaint that the city took these
actions
because she invoked the Fair Labor Standards Act.
See 29
U.S.C. § 215(a)(3) (providing that it is unlawful to “discriminate
against any employee because such employee has filed any com-
plaint”);
see also Wolf, 200 F.3d at 1343 (explaining that a plaintiff
“must show she would not have been [subjected to the adverse ac-
tion] but for her assertion of [Fair Labor Standards Act] rights”).8
* * *
Because Officer Moore alleged no damages under the Fair
Labor Standards Act, she did not state a plausible claim for relief.
We affirm the district court’s dismissal of Officer Moore’s nursing
claim.
8 Officer Moore brought two counts based on these alleged nursing violations:
one under the Fair Labor Standards Act and the other under section 1983. In
her section 1983 count, Officer Moore says that the city “deprived and violated
Plaintiff Moore’s 29 U.S.C. § 207(r) rights under color of law.” Officer Moore
treats the two counts as rising and falling together. She never argues (for in-
stance) that, even if she failed to allege damages under the Fair Labor Stand-
ards Act, her section 1983 count may still somehow survive. In failing to do
so, she forfeited any such contention.
See United States v. Campbell, 26 F.4th
860, 873 (11th Cir. 2022) (explaining that the “failure to raise an issue in an
initial brief on direct appeal should be treated as a forfeiture of the issue, and
therefore the issue may be raised by the court
sua sponte [only] in extraordi-
nary circumstances”).
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 23 of 32

-- 23 of 32 --

24 Opinion of the Court 21-11378
Officer Moore’s Family and Medical Leave Act Claims
The Family and Medical Leave Act “creates two types of
claims: interference claims, in which an employee asserts that his
employer denied or otherwise interfered with his substantive rights
under the Act, and retaliation claims, in which an employee asserts
that his employer discriminated against him because he engaged in
activity protected by the Act.”
Strickland v. Water Works & Sewer
Bd. of City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001)
(cleaned up). Officer Moore has advanced both types of claims
here. We address them in turn.
The Interference Claim
The Family and Medical Leave Act’s interference provision
makes it “unlawful for any employer to interfere with, restrain, or
deny the exercise of or the attempt to exercise, any right provided
under [the Act].” 29 U.S.C. § 2615(a)(1). The benefits afforded by
the Family and Medical Leave Act include (1) “12 workweeks of
leave during any 12-month period” for certain family and medical
events, 29 U.S.C. § 2612(a)(1); and (2) the right “to be restored by
the employer to the position of employment held by the employee
when the leave commenced,” 29 U.S.C. § 2614(a)(1). “To establish
that an employer interfered with her [Family and Medical Leave
Act] rights, an employee need only show by a preponderance of
the evidence that she was entitled to the benefit that her employer
denied.”
Matamoros, 2 F.4th at 1338.
We’ve held that “a technical [Family and Medical Leave Act]
violation alone is not enough” to secure relief under the Act.
Ramji
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 24 of 32

-- 24 of 32 --

21-11378 Opinion of the Court 25
v. Hosp. Housekeeping Sys., LLC, 992 F.3d 1233, 1241 (11th Cir.
2021). Instead, “to prevail on a [Family and Medical Leave Act]
interference claim, a plaintiff must show harm from the alleged in-
terference with her rights.”
Munoz v. Selig Enters., Inc., 981 F.3d
1265, 1274–75 (11th Cir. 2020) (cleaned up). As the Supreme Court
has explained, the Family and Medical Leave Act “provides no re-
lief unless the employee has been
prejudiced by the violation.”
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)
(emphasis added). To show prejudice, the plaintiff must “demon-
strate some harm remediable by either ‘damages’ or ‘equitable re-
lief.’”
Evans v. Books-A-Million, 762 F.3d 1288, 1296 (11th Cir.
2014) (quoting
Ragsdale, 535 U.S. at 89).9
In this case, Officer Moore’s interference claim fails because
Officer Moore has identified no “harm from the alleged interfer-
ence with her rights.”
Munoz, 981 F.3d at 1274–75. Officer Moore
alleged that the department (1) required her to provide more infor-
mation about her doctor’s note, (2) subjected her to a “Fit for
Duty” assessment, (3) had her take a drug test, (4) “impl[ied]
9 This “harm” requirement is consistent with the Family and Medical Leave
Act’s enforcement provision, which (roughly speaking) permits damages only
for (1) “any wages, salary, employment benefits, or other compensation de-
nied or lost to such employee by reason of the violation”; (2) “in a case in
which wages, salary, employment benefits, or other compensation have not
been denied or lost to the employee, any actual monetary losses sustained by
the employee as a direct result of the violation”; and (3) “such equitable relief
as may be appropriate, including employment, reinstatement, and promo-
tion.” 29 U.S.C. § 2617(a)(1).
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 25 of 32

-- 25 of 32 --

26 Opinion of the Court 21-11378
and/or threaten[ed]” her with disciplinary action for taking leave,
(5) “demanded” that she work more than her doctor recom-
mended, and (6) altered her work schedule to “prevent her from
having consecutive days off.” These things may show that the de-
partment discouraged Officer Moore from taking leave, but Officer
Moore never explains how she was
prejudiced by any of these ac-
tions. Officer Moore doesn’t claim, for example, that the depart-
ment ever denied her leave, that she would have taken more leave
absent the department’s reaction, or that she lost out on any com-
pensation or suffered any monetary loss because of the depart-
ment’s actions. Officer Moore, in sum, doesn’t tell us how she was
prejudiced by anything the department did.
Faced with similar facts, we’ve held that an employee has no
interference claim. In
Graham v. State Farm Mutual Insurance
Co., 193 F.3d 1274 (11th Cir. 1999), for example, we adopted “the
holding and rationale” of the district court, which held:
Besides failing to show that she was subject to an ad-
verse employment action, plaintiff has not demon-
strated that she suffered any damages as a result of
State Farm’s actions. Even if the defendants have
committed certain technical infractions under the
[Family and Medical Leave Act], plaintiff may not re-
cover in the absence of damages. Plaintiff was never
denied leave time by State Farm. In fact, she was pro-
vided with more than 170 hours of leave in the 12
months between her automobile accident and her
resignation, most of which was paid. As this court has
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 26 of 32

-- 26 of 32 --

21-11378 Opinion of the Court 27
noted, the [Family and Medical Leave Act] does not
allow recovery for mental distress or the loss of job
security.
Graham, 193 F.3d at 1284 (cleaned up);
see also Munoz, 981 F.3d at
1275 (“[The plaintiff] testified that [the employer] did not deny her
leave time. As a result, [the plaintiff] has not shown damages to
support her [Family and Medical Leave Act] interference claim.”).
We reach the same result here.
Pushing back on this point, Officer Moore—relying on our
decision in
Diamond v. Hospice of Florida Keys, Inc., 677 F. App’x
586 (11th Cir. 2017)—contends that “interference” includes dis-
couraging employees from taking leave. It’s true, as we observed
in
Diamond, that “unlawful employer interference includes not
only refusing to authorize [Family and Medical Leave Act] leave,
but also ‘discouraging an employee from using such leave.’” 677
F. App’x at 592 (quoting 29 C.F.R. § 825.220(b)). But our conclu-
sion here
isn’t that Officer Moore alleged no interference. It’s that
Officer Moore alleged no prejudice. In fact, our holding in
Dia-
mond is perfectly consistent with what we’ve said here. In
Dia-
mond, we reversed the district court’s order granting summary
judgment for the employer because the plaintiff
had created an
genuine issue as to whether she was prejudiced by the discourage-
ment—by testifying both that “she would have taken more days off
. . . had [the employer] not discouraged her from doing so” and that
she incurred “the cost of traveling 300 miles each way to her
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 27 of 32

-- 27 of 32 --

28 Opinion of the Court 21-11378
parents’ home” rather than taking leave and staying at her parents’
home.
Id. at 594. Officer Moore has alleged nothing like that here.
The Retaliation Claim
The Family and Medical Leave Act also prohibits retaliation.
See 29 U.S.C. § 2615(a)(1), (2). In order to state a claim of retalia-
tion under the Family and Medical Leave Act, an employee must
plausibly allege that: “(1) [s]he engaged in a statutorily protected
activity; (2) [s]he suffered an adverse employment decision; and (3)
the decision was causally related to the protected activity.”
Strick-
land, 239 F.3d at 1207. No one disputes the first or third elements.
Rather, the city argues—and the district court concluded—that Of-
ficer Moore’s claim fails because she didn’t plausibly allege an ad-
verse employment action. We disagree.
Our circuit has yet to resolve whether
Burlington North-
ern’s “dissuade a reasonable worker” standard from the Title VII
context applies to retaliation claims under the Family and Medical
Leave Act. But both sides appear to assume that
Burlington’s
standard for an “adverse employment action” applies to the Family
and Medical Leave Act claim, and so we’ll do the same.
Under the
Burlington standard, “a plaintiff must show that a
reasonable employee would have found the challenged action ma-
terially adverse, which in this context means it well might have dis-
suaded a reasonable worker from making or supporting a charge
of discrimination.”
Burlington, 548 U.S. at 68 (cleaned up). This
standard won’t reach “trivial harms” like “petty slights or minor
annoyances that often take place at work and that all employees
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 28 of 32

-- 28 of 32 --

21-11378 Opinion of the Court 29
experience.”
Id. At the same time, “
Burlington suggests that it is
for a jury to decide whether anything more than the most petty
and trivial actions against an employee should be considered ‘ma-
terially adverse’ to him and thus constitute adverse employment
actions.”
Crawford, 529 F.3d at 974 n.13.
Officer Moore alleged more than that here. She alleged (for
example) that the department “threaten[ed] [her] with disciplinary
action for her attempting to avail herself of her FMLA rights.” She
said that the department, on more than one occasion, “de-
mand[ed]” that she work more hours, including more than what
her doctor recommended. She claimed that the department “al-
ter[ed] her work schedule to prevent her from having consecutive
days off.” She alleged that the department subjected her to a “Fit
for Duty” assessment and a drug test. Viewing the facts in the light
most favorable to the plaintiff, we think it’s at least plausible that a
reasonable employee may be dissuaded from invoking her Family
and Medical Leave Act rights if she knew that, in the immediate
aftermath, her employer would threaten disciplinary action, im-
pose a burdensome schedule, demand longer hours, and subject
her to various physical examinations.
The employer’s actions here are quite a stretch from the
“petty slights, minor annoyances, and simple lack of good man-
ners” the Supreme Court identified in
Burlington as falling outside
the Family and Medical Leave Act’s scope of protection. 548 U.S.
at 68 (pointing to the “sporadic use of abusive language, gender-
related jokes, and occasional teasing” (quoting
Faragher v. City of
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 29 of 32

-- 29 of 32 --

30 Opinion of the Court 21-11378
Boca Raton, 524 U.S. 775, 788 (1998))). Not surprisingly, the facts
of our case are much closer to those in which courts have found
sufficient adverse action to support a retaliation claim.
See, e.g.,
id.
(holding that a jury could reasonably find that reassignment to a
less prestigious and more arduous position was an adverse action);
Monaghan, 955 F.3d at 863 (holding that “statements from a super-
visor . . . which threatened both termination and possible physical
harm” were adverse actions);
Crawford, 529 F.3d at 974 (“[W]e
have no doubt but that Crawford suffered a materially adverse ac-
tion in the form of the unfavorable performance review she re-
ceived (that affected her eligibility for a merit pay increase) after
she complained of racial discrimination[.]”).
In response, the city makes two arguments—neither con-
vincing.
First, the city cites various district court and unpublished cir-
cuit court decisions for the proposition that fit-for-duty tests, drug
tests, and denials of time off are not adverse employment actions.
But the city doesn’t address the fact that the department also threat-
ened Officer Moore with disciplinary action and demanded that she
work longer hours. And crucially, while the “actions of which [Of-
ficer Moore] complains might not have individually risen to the
level of adverse employment action . . . , when those actions are
considered collectively, the total weight of them does constitute an
adverse employment action.”
Shannon v. Bellsouth Telecomms.,
Inc., 292 F.3d 712, 716 (11th Cir. 2002). It is not enough, in other
words, to view the employer’s actions in isolation. We must view
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 30 of 32

-- 30 of 32 --

21-11378 Opinion of the Court 31
them together, and—in that light—decide whether they might dis-
suade a reasonable employee from engaging in protected activity.
Having done so, we believe Officer Moore has stated a plausible
claim here.
Second, the city argues that the complaint “makes no allega-
tions about retaliation under the [Family and Medical Leave Act]”
and that “[t]he word retaliation is found nowhere in the” operative
complaint. This is wrong. The complaint says that “Defendant
Homewood deprived and violated Plaintiff Moore’s [Family and
Medical Leave Act] rights by . . . retaliating against her for exercis-
ing and/or attempting to exercise her rights under the Family and
Medical Leave.” It’s clear, in other words, that Officer Moore
pleaded a retaliation claim under the Family and Medical Leave
Act.10
* * *
To sum up: Officer Moore has not stated an interference
claim under the Family and Medical Leave Act. But we believe the
district court erred in dismissing Officer Moore’s Family and Med-
ical Leave Act retaliation claim.11
10 The city never contends that Officer Moore’s retaliation claim fails for the
same reason her interference claim fails (i.e., a lack of prejudice). We decline
to address that argument with no briefing and in the first instance.
11 In their complaint, Officer Moore brought a section 1983 claim alleging that
“Homewood deprived and violated Plaintiff Moore’s 29 U.S.C. § 2601,
et seq.
[Family and Medical Leave Act] rights under color of law.” We affirm the
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 31 of 32

-- 31 of 32 --

32 Opinion of the Court 21-11378
CONCLUSION
We reverse the part of the district court’s order dismissing
count eight’s retaliation claim. We affirm the rest of the district
court’s order.
AFFIRMED IN PART, REVERSED IN PART, AND RE-
MANDED for further proceedings.
district court’s dismissal of this count for two reasons. First, Officer Moore’s
passing reference to the claim in her initial brief is insufficient to preserve her
claim.
Sapuppo, 739 F.3d at 681. Second, “a municipality cannot be held liable
under [section] 1983 on a
respondeat superior theory.”
Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978). “Instead, it is when execution of a govern-
ment’s
policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury
that the government as an entity is responsible under [section] 1983.”
Id. at
694 (emphasis added). Officer Moore has alleged no such policy or custom
here.
USCA11 Case: 21-11378 Document: 23-1 Date Filed: 01/09/2023 Page: 32 of 32

-- 32 of 32 --