[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-14923

Non-Argument Calendar

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D.C. Docket No. 2:17-cv-14431-RLR

THEODORE SALEM, 

 Plaintiff-Appellant,

versus

CITY OF PORT ST. LUCIE, 

 Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(October 8, 2019)

Before WILSON, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM: 

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Theodore Salem, a former police officer, appeals following the district 

court’s grant of summary judgment in favor of his former employer, the City of 

Port Saint Lucie (City), on his claims of Americans with Disabilities Act (ADA)

discrimination, Family and Medical Leave Act (FMLA) interference and 

retaliation, and breach of contract under Florida law.

1

 Salem contends the district 

court erred by granting the City’s motion for summary judgment as to all of his 

claims because: (1) he established he was a qualified individual for purposes of the 

ADA and he was unable to maintain his mandatory certification only because the 

City failed to accommodate his disability; (2) the City interfered with his FMLA 

leave when it ordered him to report to a meeting—at which he was terminated—

while he was on leave; (3) he established a causal connection between his FMLA 

leave and his termination for purposes of his claim of FMLA retaliation; and 

(4) the City breached the collective bargaining agreement (CBA) when it extended 

his probationary period by 180 days, instead of the permitted 90 days, and did not 

designate his termination as a medical termination. We address each issue in turn, 

and after review,2 affirm the district court. 

1

 The district court also granted a motion to dismiss on Salem’s claim of intentional 

infliction of emotional distress. Although Salem challenges the dismissal of his intentional 

infliction of emotional distress claim on appeal, he does not offer any substantive arguments—

only a conclusory and vague reference—in support of the challenges and has, therefore, 

abandoned the issue. See Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001). 

2

 We review a district court’s grant of summary judgment de novo. Thomas v. Cooper 

Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). Summary judgment is appropriate “if the 

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I. DISCUSSION

A. ADA

The ADA prohibits discrimination against a qualified individual on the basis 

of disability. 42 U.S.C. § 12112(a). The ADA also imposes upon employers an 

affirmative duty to provide reasonable accommodations for known disabilities, 

unless doing so would result in undue hardship on the operation of the business. 

42 U.S.C. § 12112(b)(5)(A). 

“To establish a prima facie case of discrimination under the ADA, a plaintiff 

must show: (1) he is disabled; (2) he is a qualified individual; and (3) he was 

subjected to unlawful discrimination because of his disability.” Holly v. Clairson 

Indus., L.L.C., 492 F.3d 1247, 1255-56 (11th Cir. 2007). To show he is a qualified 

individual, a plaintiff must show he can perform the essential functions of the 

employment position he holds with or without reasonable accommodations. Id. at 

1256. An accommodation is reasonable and necessary under the ADA only if it 

will enable the employee to perform the essential functions of the job. Id. 

“[E]ssential functions are the fundamental job duties of a position that an 

individual with a disability is actually required to perform.” Id. at 1257 (quotation 

movant shows that there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In determining whether the movant has 

met this burden, we view the evidence and all factual inferences in the light most favorable to the 

non-moving party. Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001). 

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omitted). “[C]onsideration shall be given to the employer's judgment as to what 

functions of a job are essential, and if an employer has prepared a written 

description before advertising or interviewing applicants for the job, this 

description shall be considered evidence of the essential functions of the job.” Id.

(quotation omitted). The employee has the burden of identifying a reasonable 

accommodation that would allow him to perform the essential functions of his job. 

Earl v. Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir. 2000). 

The Florida Statutes provide the minimum qualifications for a law 

enforcement officer to be, and remain, employed. See Fla. Stat. §§ 943.13, 

943.135 (2016). Once an officer has met the minimum qualifications—including 

Florida Department of Law Enforcement (FDLE) certification—for employment, 

the officer must comply with “periodic commission-approved continuing training 

or education.” Fla. Stat. § 943.135(1). Moreover, “[t]he certification of an officer 

who fails to comply with s. 943.135(1) shall be inactive, and the officer may not be 

employed or appointed as an officer until he or she complies with the provisions of 

§ 943.135(1).” Fla. Stat. § 943.1395(4) (emphasis added). 

The district court did not err in granting the City’s motion for summary 

judgment as to Salem’s ADA discrimination claim because he failed to show he 

was a qualified individual by demonstrating he could perform essential functions

of his position. See Holly, 492 F.3d at 1256. The following facts are undisputed: 

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(1) maintaining an updated FDLE certification—specifically, undergoing use of 

force retraining—was an essential function of a City police officer; (2) an officer 

who failed to maintain an active FDLE certification could not be employed as an 

officer by the City; (3) Salem’s physician did not give him the medical clearance to 

complete his use of force retraining; and (4) consequently, Salem’s FDLE 

certification became inactive. Thus, the record reflects Salem was unable to 

complete an essential function of his position and was not a qualified individual for 

purposes of the ADA.

Moreover, although Salem argues he could have maintained his FDLE 

certification with accommodations from the City, he failed to meet his burden of 

identifying a reasonable accommodation that would have allowed him to do so

because the undisputed evidence reflects a waiver or exemption from training was 

only available for firearms training, not use of force training. See Earl, 207 F.3d at 

1367. Additionally, he only conclusorily alleges he made requests to the City for 

reasonable accommodations without any accompanying specific supporting facts. 

See Jefferson v. Sewon America, Inc., 891 F.3d 911, 924-25 (11th Cir. 2018) 

(“[T]his Court has consistently held that conclusory allegations without specific 

supporting facts have no probative value” at summary judgment.). Thus, the 

district court did not err in granting summary judgment to the City on Salem’s 

ADA discrimination claim, and we affirm on this issue. 

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B. FMLA Interference

FMLA’s interference provision makes it “unlawful for any employer to 

interfere with, restrain, or deny the exercise of or the attempt to exercise,” any

substantive FMLA right. 29 U.S.C. § 2615(a)(1). To establish a prima facie case 

of FMLA interference, a plaintiff must show by a preponderance of the evidence 

his employer denied him a benefit to which he was entitled. Krutzig v. Pulte Home 

Corp., 602 F.3d 1231, 1235 (11th Cir. 2010). In dealing with an interference 

claim, “the employer's motives are irrelevant.” Id. (quotation omitted).

The district court did not err in determining Salem failed to establish the 

City interfered with a benefit to which he was entitled under the FMLA. The 

FMLA provides eligible employees are entitled to “12 workweeks of leave during 

any 12-month period . . . [b]ecause of the birth of a son or daughter of the 

employee and in order to care for such son or daughter.” 29 U.S.C. 

§ 2612(a)(1)(A). It is undisputed Salem was granted his request for FMLA leave. 

Moreover, nothing in the FMLA indicates it ensures 12 workweeks of undisturbed

leave. To the contrary, regulations expressly allow an employer to contact an 

employee while he is on FMLA leave to discuss the employee’s status. See 29 

C.F.R. § 825.311(a). The City did just that when it called Salem and asked to meet 

with him to discuss his employment status—i.e. his termination. Accordingly, we

affirm on that basis. See Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 

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F.3d 839, 844 (11th Cir. 2008) (explaining we can affirm on any ground supported 

in the record).

C. FMLA Retaliation

To establish a claim of FMLA retaliation, an employee must demonstrate his 

employer intentionally discriminated against him for exercising a right guaranteed 

under the FMLA. Martin v. Brevard Cty. Pub. Sch., 543 F.3d 1261, 1267 (11th 

Cir. 2008). “Unlike an interference claim, an employee bringing a retaliation claim 

faces the increased burden of showing that his employer’s actions were motivated 

by an impermissible retaliatory or discriminatory animus.” Id. at 1267-68 

(quotation omitted). Absent direct evidence of retaliatory intent, we apply the 

burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 

U.S. 792 (1973). Martin, 543 F.3d at 1268. To establish a prima facie case of 

FMLA retaliation, an employee may show “(1) he engaged in statutorily protected 

activity, (2) he suffered an adverse employment decision, and (3) the decision was 

causally related to the protected activity.” Id.

Close temporal proximity between an employee’s protected conduct and the 

adverse action is generally sufficient to create a genuine issue as to whether there 

is a causal connection. Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 

1286, 1298 (11th Cir. 2006). However, “in a retaliation case, when an employer 

contemplates an adverse employment action before an employee engages in 

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protected activity, temporal proximity between the protected activity and the 

subsequent adverse employment action does not suffice to show causation.” 

Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006). 

If the employee successfully demonstrates a prima facie case of FMLA 

retaliation, the burden then shifts to the employer to articulate a legitimate reason 

for the adverse action. See McDonnell Douglas, 411 U.S. at 802. Once an 

employer articulates a legitimate non-discriminatory reason, the employee then 

must show the employer’s proffered reason was pretextual. See id. at 804. Pretext 

is only proven if it is shown both that the reason was false, and that discrimination 

or retaliation was the real reason behind the challenged action. St. Mary’s Honor 

Ctr. v. Hicks, 509 U.S. 502, 515 (1993).

The district court did not err in concluding Salem failed to establish a prima 

facie case of FMLA retaliation because he did not establish a causal connection 

between his FMLA leave and his termination. See Martin, 543 F.3d at 1268. The 

fact Salem was terminated while on FMLA leave, alone, was insufficient to create 

a genuine issue as to whether there was a causal connection because the City 

contemplated his termination before he engaged in a statutorily protected activity. 

See Drago, 453 F.3d at 1308. Specifically, on March 28, 2016, the City informed 

Salem he was required to complete mandatory retraining in order to maintain an 

active FDLE certification. It is undisputed an officer who does not maintain an 

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active FDLE certification cannot continue to be employed by the City. See Fla. 

Stat. § 943.1395(4). Thus, by informing Salem he was required to complete 

mandatory retraining for his FDLE certification, the City contemplated the 

termination of his employment absent his compliance with the retraining 

requirement. Accordingly, the City contemplated Salem’s termination before he 

requested his FMLA leave in June 2016, and, consequently, the temporal 

proximity between his termination and his FMLA leave, alone, did not establish 

the causal requirement of a prima facie case of FMLA retaliation. See Drago, 453 

F.3d at 1308. 

Moreover, even if he had established a prima facie case of FMLA 

retaliation, Salem failed to present any substantive evidence to show the City’s 

legitimate reason for firing him—that he had failed to comply with the certification 

requirements of his position—was pretextual. Even assuming Police Chief John 

Bolduc stated he was “taking heat from the city [because Salem] was being paid a 

sworn officer’s salary while on light duty” and that, consequently, the City’s 

reason for firing Salem was false, Salem has not presented any evidence that 

retaliation for his FMLA leave was the real reason behind his termination. See St. 

Mary’s Honor Ctr., 509 U.S. at 515. Accordingly, we affirm on this issue. 

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D. Breach of Contract

Under Florida law, a breach of contract claim “requires the plaintiff to plead 

and establish: (1) the existence of a contract; (2) a material breach of that contract; 

and (3) damages resulting from the breach.” Vega v. T-Mobile USA, Inc., 564 F.3d 

1256, 1272 (11th Cir. 2009). To prove the existence of a valid contract, a plaintiff 

must plead facts showing the following: “(1) offer; (2) acceptance; 

(3) consideration; and (4) sufficient specification of the essential terms.” Id. 

The district court did not err in granting the City’s motion for summary 

judgment as to Salem’s breach of contract claim for two reasons. First, as to his 

claim the City breached the CBA by extending his probationary period by 180 

days, and assuming without deciding he established the first three elements of a 

breach of contract, Salem failed to demonstrate he suffered any damages from the 

City’s breach of the CBA. Salem’s probationary period was set to end on June 5, 

2016. Under the terms of the CBA, the City could have extended Salem’s 

probationary period by up to 90 days. The City terminated Salem on July 5, 

2016—only 30 days into his extended probationary period. Thus, the damages he 

alleges were necessarily caused by his termination, not the extension of his 

probationary period.

Second, as to his claim the City committed a breach of contract by failing to 

designate his termination as a medical termination, Salem failed to provide any 

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evidence the City was required by contract to do so. Thus, we affirm on the breach 

of contract issues. 

II. CONCLUSION

The district court did not err in granting summary judgment to the City on 

Salem’s ADA, FMLA interference and retaliation, and breach of contract claims. 

Thus, we affirm.

AFFIRMED.

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