Traci Burgen v. Pine Enterprises LLC, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13519
Non-Argument Calendar
____________________
TRACI BURGEN,
Plaintiff-Appellant,
versus
PINE ENTERPRISES LLC,
ROBERT CABRAL,
JEAN CABRAL,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
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2 Opinion of the Court 22-13519
D.C. Docket No. 1:21-cv-00829-JPB
____________________
Before LAGOA, BRASHER and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Traci Burgen, proceeding with counsel, appeals
the district court’s order granting summary judgment to the
defendants, Pine Enterprises, LLC, Robert Cabral, and Jean Cabral,
her previous employers (collectively referred to as “Pine”).
Additionally, Burgen argues that the district court abused its
discretion by denying her second motion to extend discovery.
Burgen also challenges the district court’s conclusion that she did
not make out a prima facie case in support of her claim for
retaliation under the Emergency Paid Sick Leave Act (“EPSLA”) of
the Families First Coronavirus Response Act, Pub. L. No. 116-127,
§§ 5102(a)(2), 5104(1), 134 Stat. 178, 195-97 (2020), because she did
not: (i) establish a causal connection between her protected activity
of seeking paid leave under the EPSLA and her termination; and
(ii) did not show that the proffered reason for her firing ⸺⸺
allegedly poor performance ⸺⸺ was pretextual. Having read the
parties’ briefs and reviewed the record, we affirm the district
court’s orders.
I .
We review a district court’s denial of a motion to extend
discovery for an abuse of discretion. Josendis v. Wall to Wall
Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011).
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22-13519 Opinion of the Court 3
Generally, a district court’s discovery rulings will be overturned
only if “it is shown that they resulted in substantial harm to the
appellant’s case.” Id. at 1307 (quotation marks and alteration
omitted); see also Harrison v. Culliver, 746 F.3d 1288, 1297 (11th Cir.
2014).
We review de novo a district court’s grant of summary
judgment. Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1263 (11th
Cir. 2010). “We will affirm if, after construing the evidence in the
light most favorable to the non-moving party, we find that no
genuine issue of material fact exists and the moving party is entitled
to judgment as a matter of law.” Id. at 1263-64. A fact is material
when it might affect the outcome of the case under the relevant
law. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th
Cir. 2004). Additionally, we may affirm the district court’s
judgment on any ground in the record. Thomas v. Cooper Lighting,
Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).
II.
Burgen asserts on appeal that the district court abused its
discretion by denying her second request to extend the discovery
period. Pine contends that Burgen waived this issue by failing to
articulate clearly her argument on appeal. Pursuant to Fed. R. Civ.
P. 16(b), the district court must issue a scheduling order that limits
the time to complete discovery. See Fed. R. Civ. P. 16(b)(3). As a
result, a scheduling order “may be modified only for good cause
and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Additionally,
when a party seeks to extend an expired deadline, the court may do
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4 Opinion of the Court 22-13519
so for good cause if that party failed to act because of excusable
neglect. Fed. R. Civ. P. 6(b)(1)(B). To establish good cause, a party
must show that it could not meet the applicable deadlines despite
due diligence. See Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th
Cir. 1998). Thus, we have routinely held that a district court’s
decision to hold litigants to the terms of its scheduling order is not
an abuse of discretion. Josendis, 662 F.3d at 1307-08.
When an issue is raised without citation to authority, we
consider the issue waived. Continental Tech. Services, Inc. v. Rockwell
Int’l Corp., 927 F.2d 1198, 1199 (11th Cir. 1991). Further, pursuant
to the Rules of Appellate Procedure, an appellant’s argument must
contain “contentions and the reasons for them, with citations to
the authorities and parts of the record on which the appellant
relies.” See Fed. R. App. P. 28(a)(8). Thus, arguments that are
“briefed in the most cursory fashion . . . [are] waived.” Center v.
Sec’y Dep’t of Homeland Sec., 895 F.3d 1295, 1299 (11th Cir. 2018)
(citing In re Globe Mfg. Corp., 567 F.3d 1291, 1297 n.3 (11th Cir.
2009)).
We conclude that Burgen has waived her claim that the
district court abused its discretion by denying her second motion
to extend discovery because she does not point to any authority
upon which she relies, and she briefed the issue in only a cursory
fashion. See Continental Tech. Services, Inc., 927 F.2d at 1199; Center,
895 F.3d at 1299; see also Fed. R. App. P. 28(a)(8). Moreover, even if
we were to deem the argument properly preserved, Burgen cannot
show that the district court abused its discretion. Burgen did not
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22-13519 Opinion of the Court 5
show good cause or exercise due diligence to support the requested
extension, as she cancelled one scheduled deposition that she later
asserted as a basis for extending the discovery period. Sosa, 133 F.3d
at 1418. Nor can she demonstrate that substantial harm resulted
from the denial of her motion, as she already had two chances to
depose the individual she identified in the former motion. Josendis,
662 F.3d at 1306. Thus, based on the record, the district court did
not abuse its discretion when it denied Burgen’s second motion to
extend discovery, and we affirm in this respect. See Id. at 1307
(stating that the decision to modify a final scheduling order is
ultimately at the discretion of the court).
III.
Burgen contends that the district court erred by granting
summary judgment to Pine on her retaliation claim under the
EPSLA because Pine terminated her the day she returned to work
following her COVID-19 leave. Under the EPSLA, an employer
who discharges an employee for seeking to exercise her rights
thereunder is considered to have violated § 15(a)(3) of the Fair
Labor Standards Act (“FLSA”). See 29 C.F.R. § 826.150(b)(2)(a). To
establish a prima facie case of retaliation under the FLSA, the
plaintiff must demonstrate that: (1) she engaged in a protected
activity under the Act; (2) she subsequently suffered an adverse
action by the employer; and (3) there was a causal connection
between her activity and the adverse action. Wolf v. Coca-Cola Co.,
200 F.3d 1337, 1342-43 (11th Cir. 2000).
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6 Opinion of the Court 22-13519
The plaintiff has the burden of proving causation by
demonstrating that “the adverse action would not have been taken
but for the assertion of FLSA rights,” where the adverse action
must occur after the assertion of FLSA rights. Id. (internal
quotation marks omitted). Generally, close temporal proximity
between the employee’s protected conduct and the adverse action
is sufficient circumstantial evidence to create a genuine issue of
material fact of causal connection. Patterson v. Georgia Pac., LLC, 38
F.4th 1336, 1352 (11th Cir. 2022). However, we have held that, in a
retaliation case, “when an employer contemplates an adverse
employment action before an employee engages in protected activity,
temporal proximity between the protected activity and the
subsequent adverse employment action does not suffice to show
causation.” Drago v. Jeune, 453 F.3d 1301, 1308 (11th Cir. 2006)
(emphasis added).
Under the burden-shifting model set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), even if a
plaintiff makes out a prima facie case, and the employer articulates
a nondiscriminatory reason for the adverse action, the employee
must still demonstrate that the employer's proffered reason was
pretextual by presenting 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.” Batson
v. Salvation Army, 897 F.3d 1320, 1329 (11th Cir. 2018). “A reason is
not pretext for retaliation unless it is shown both that the reason
was false, and that retaliation was the real reason.” Gogel v. Kia
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22-13519 Opinion of the Court 7
Motors Mfg. of Ga., 967 F.3d 1121, 1136 (11th Cir. 2020) (internal
quotation marks and alteration omitted).
To establish pretext, Burgen must show that the proffered
reason, poor performance, was not the true reason for her
termination. See Jackson v. Ala. State Tenure Comm’n., 405 F.3d 1276,
1289 (11th Cir. 2005). A plaintiff’s proof of pretext can include
evidence of “weaknesses, implausibilities, incoherencies, or
contradictions” in the employer’s proffered legitimate reasons for
its action that a worthy factfinder could find them unworthy of
credence. Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160,
1163 (11th Cir. 2006). Additionally, a lack of evidence in support of
speculation cannot establish pretext for retaliation. Hornsby-
Culpepper v. Ware, 906 F.3d 1302, 1314 (11th Cir. 2018).
The record demonstrates that the district court did not err
in granting summary judgment to Pine on Burgen’s claim for
retaliation under the EPSLA. First, Burgen failed to show
causation. While there was temporal proximity between her
request for paid leave and her subsequent termination, the record
reveals that Pine had decided to terminate Burgen before she
requested paid COVID-19 leave. Drago, 453 F.3d at 1308. Although
Pine did not provide written evidence of its decision to terminate
Burgen before she requested COVID-19 leave, Burgen does not
provide any authority for the proposition that a personnel
discussion or decision that is not reduced to writing should not be
believed. Thus, Burgen did not show that the adverse action would
not have occurred but for her assertion of her EPSLA rights and
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8 Opinion of the Court 22-13519
failed to establish a prima facie case for retaliation. Wolf, 200 F.3d at
1342-43.
Further, even if Burgen established a prima facie case, she
failed to demonstrate pretext. Burgen did not provide evidence
that disputed Pine’s’ nondiscriminatory reason for her termination
— her poor performance. Instead, she speculated regarding the
timing of the termination decision, and she pointed to how Pine
did not memorialize in writing its concerns with her performance.
Nevertheless, speculation and the absence of a writing cannot
satisfy Burgen’s burden to establish pretext on summary judgment.
See Hornsby-Culpepper, 906 F.3d at 1314 (finding that the district
court did not err in granting summary judgment on the plaintiff’s
retaliation claim where she offered only speculation and no
evidence to support her claim). The record does not support a
finding that Pine’s reason for Burgen’s termination, poor
performance, was false. Burgen has failed to meet her burden to
show that she was terminated solely because she requested
COVID-19 leave. Gogel, 967 F.3d at 1136. Thus, the district court
properly granted summary judgment to Pine.
Accordingly, for the aforementioned reasons, we affirm the
district court’s order denying Burgen’s second request for extension
of the discovery period, and its order granting summary judgment
to Pine on Burgen’s retaliation claim under the EPSLA.
AFFIRMED.
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