FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 APRIL 23, 2012

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 11-11917

________________________

D.C. Docket No. 3:09-cv-01220-TJC-MCR

LINDA L. DIEHL,

an individual,

Plaintiff-Appellant,

versus

BANK OF AMERICA, N.A., 

a National Association,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(April 23, 2012)

Before MARCUS, COX and SILER,*

 Circuit Judges.

SILER, Circuit Judge:

*

Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by

designation.
Plaintiff Linda Diehl appeals the district court’s grant of summary judgment to

Defendant Bank of America (BOA). Diehl filed an amended complaint against BOA

in 2010 alleging violations of the Age Discrimination in Employment Act (ADEA),

the Americans with Disabilities Act (ADA), and the Family Medical Leave Act

(FMLA). For the following reasons we affirm.

I.

Diehl was a Senior Vice President at BOA and had worked at the bank for 34

years. She was diagnosed with breast cancer in July 2008 and took FMLA leave from

September 15, 2008 to November 10, 2008 to seek treatment. Shortly after her return,

BOA restructured her position and removed her management responsibilities. In early

February 2009 Diehl was terminated as part of a reduction in force (RIF). She was

55 years old at that time.

Diehl’s manager was Ann McCormick, who had been in that position since the

end of 2007. McCormick’s boss, Kevin Phalen, joined BOA in June 2008. Phalen’s

boss was William “Dub” Newman.

A.

When Phalen arrived at BOA he immediately started looking for ways to

streamline the bank’s management structure. He spoke with McCormick about

consolidating the responsibilities of Diehl with one of her peers, Marybeth Worsham. 

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The women had similar responsibilities and managed an equal number of people at

BOA, with Diehl working on the bank’s private credit/debit card business and

Worsham responsible for BOA’s government credit/debit card business. At some

point in late summer or early fall of 2008, McCormick and Phalen decided to transfer

Diehl’s credit card responsibilities and subordinates to Worsham. They informed

Worsham in October or November 2008.

Diehl was informed of this decision in December 2008, approximately one

month after she returned from FMLA leave. When McCormick informed Diehl about

the decision she said to Diehl, “So that should take the stress off you.” BOA claims

it chose Worsham over Diehl because Worsham was a better manager, had more

knowledge and experience with BOA’s credit card system, and had experience with

Diehl’s private credit card responsibilities, whereas Diehl had no experience with

Worsham’s government credit card responsibilities. 

After the restructuring, Diehl’s title, salary and benefits remained the same and

she continued working on a project known as the LaSalle transition.

B.

 Rumors about layoffs at BOA began circulating when Diehl returned from

leave in November 2008. The topic of layoffs was discussed during a November 13,

2008 meeting that McCormick had with her subordinates, which included Diehl and

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Worsham. McCormick stated that her supervisor, Phalen, had not been notified of any

layoffs. Worsham responded that she did not have enough years of service with BOA

to retire. During that conversation, McCormick stated, “We have our old-timer, Linda

[Diehl], who has 30-some years; right Linda?” 

In late December 2008, Newman learned that BOA wanted a ten percent RIF

in effect by early 2009. He informed Phalen in January 2009 of the planned layoffs,

and Phalen subsequently told his subordinates, including McCormick, to begin

selecting employees for termination. 

Diehl was selected to be terminated, but there is some confusion with regard to

who made that decision. In her deposition, McCormick stated that Phalen told her

Diehl would be let go. Phalen says that McCormick recommended Diehl for

termination. Newman initially stated that he was “[n]ot personally” involved in the

decision to terminate Diehl. But after his deposition Newman filed an errata that

stated that he had reviewed his email from January 2009 and discovered that he had

suggested Diehl to Phalen as someone to consider for termination. 

In late January 2009, McCormick was told that Diehl would be a victim of the

RIF. She informed Diehl on February 3, 2009.

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BOA did not replace Diehl with anyone because the bank completely eliminated

her position after the layoffs. Her remaining duties were distributed to other BOA

employees.

Despite the absence of any evidence in the record, Diehl believes that her BOA

supervisors knew about the RIF before they decided to restructure her job and used

the restructuring decision to justify their decision to terminate her. 

II.

A.

“The ADEA makes it ‘unlawful for an employer to fail or refuse to hire or to

discharge any individual or otherwise discriminate against any individual with respect

to his compensation, terms, conditions, or privileges of employment, because of such

individual's age.’ 29 U.S.C. § 623(a)(1).” Chapman v. AI Transp., 229 F.3d 1012,

1024 (11th Cir. 2000). “When a plaintiff alleges disparate treatment, liability depends

on whether the protected trait (under the ADEA, age) actually motivated the

employer's decision.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 130,

141(2000) (quotations and citations omitted).

The McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden shifting

analysis is applied to determine if there was age discrimination, when the claim is

based on circumstantial evidence. Chapman, 229 F.3d at 1024. Under this

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framework, the plaintiff must establish a prima facie case of discrimination by (1)

showing she is a member of the protected class, (2) she suffered an adverse

employment action, (3) she was qualified to do the job, and (4) was replaced by or lost

a position to a younger person. Id. Once the plaintiff establishes a prima facie case,

“the defendant employer must articulate a legitimate, nondiscriminatory reason for the

challenged employment action. However, the employer’s burden is merely one of

production; it need not persuade the court that it was actually motivated by the

proffered reasons.” Id. (quotations and citations omitted). 

If the employer provides a nondiscriminatory reason, “the presumption of

discrimination is eliminated” and the plaintiff must put forth evidence “sufficient to

permit a reasonable fact finder to conclude that the reasons given by the employer

were not the real reasons for the adverse employment decision.” Id. (quotations and

citations omitted). “If the plaintiff does not proffer sufficient evidence to create a

genuine issue of material fact regarding whether each of the defendant employer’s

articulated reasons is pretextual, the employer is entitled to summary judgment on the

plaintiff's claim.” Id. 

i.

BOA argues that Diehl’s job restructure was not an adverse employment action. 

BOA states her title, pay and benefits remained the same even though she was no

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longer supervising two subordinates. Diehl states that she and her coworkers

considered the move a demotion. 

An adverse employment action is “a significant change in employment status,

such as hiring, firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in benefits.” Burlington

Indus., Inc., v. Ellerth, 524 U.S. 742, 761 (1998). Since the restructure meant that

Diehl would not manage any subordinates it should be considered a “reassignment

with significantly different responsibilities,” especially since Diehl’s new role with

BOA was eventually considered expendable and eliminated.

But Diehl cannot prove the restructure was done because of her age. BOA

wanted to streamline its processes under one manager instead of two. BOA states it

selected Worsham because she knew the credit card processing system better than

Diehl, had experience with Diehl’s responsibilities but Diehl had no experience with

Worsham’s responsibilities, and Worsham was managing her division better than

Diehl. 

Diehl counters that these reasons are pretextual because of some comments

from her supervisor. McCormick called Diehl an “old-timer.” But as the district court

held, “this statement was made in the context of comparing years of service between

employees,” and is not evidence of discriminatory intent. The statement was made

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after the restructure decision was made and announced to Worsham, which makes it

irrelevant to this claim. “Remarks such as this one–isolated and unrelated to the

challenged employment decision–are not direct evidence of discrimination.” Rojas

v. Florida, 285 F.3d 1339, 1342-43 (11th Cir. 2002). Accordingly, Diehl’s ADEA

claim for the restructuring decision fails.

ii.

BOA argues that Diehl cannot establish her prima facie case because her

position was eliminated after her termination as a part of its RIF, making it impossible

for Diehl to be replaced by a younger person. Diehl counters that the “old timer”

remark, BOA’s inability to reveal who made the decision to terminate her and that

BOA “essentially ‘hired,’ or at least selected” Worsham–who is 16 years younger than

Diehl–rather than Diehl for the remaining management position is evidence of

discrimination. 

We have generally “eschewed an overly strict formulation of the elements of

a prima facie case, particularly in age discrimination cases.” Jameson v. Arrow Co.,

75 F.3d 1528, 1531 (11th Cir. 1996). 

A plaintiff may establish a prima facie case of age discrimination in a 

reduction-in-force case by (1) demonstrating that he was in a protected 

age group and was adversely affected by an employment decision; (2) 

showing he was qualified for his former position or another position at 

the time he was adversely affected; and (3) producing circumstantial or 

direct evidence from which a reasonable factfinder could conclude that 

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his employer intended to discriminate on the basis of age in reaching the 

decision at issue.

Maddow v. Procter & Gamble Co., 107 F.3d 846, 851 (11th Cir. 1997).

But even if we accept that Diehl has established her prima facie case from the

transfer of her responsibilities to Worsham, Diehl cannot prove she is the victim of

age discrimination. The only evidence of discrimination she has is the “old timer”

comment, which in context refers to her tenure at BOA and not her age, and BOA’s

inability to specify who made the decision to terminate her. As the district court

stated, “whoever made the termination decision, [BOA] has put forward a legitimate,

non-discriminatory reason for the action it took,” i.e., the ten percent reduction in

force. Without more, Diehl’s age discrimination claim fails.

B.

Under the ADA, an employer cannot discriminate against “a qualified

individual on the basis of disability in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job training, and

other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). ADA

claims are also analyzed under the McDonnell Douglas format. Holly v. Clairson

Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007). A plaintiff establishes a prima

facie case by establishing (1) she was disabled, (2) she was qualified for her job and

(3) suffered an adverse action because of her disability. Id. at 1255-56. 

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BOA does not dispute Diehl was disabled but states that she cannot prove

causation. As the district court held, “there is no evidence in the record from which

a reasonable factfinder could conclude that . . . her termination [was] a pretext for

disability discrimination.” Diehl argues that her lower performance evaluation, which

occurred after she was diagnosed with cancer, is evidence of causation. But this

merely proves that the two events coincided, not that they were causally related. Diehl

also cites McCormick’s comment about Diehl’s stress level when she told her about

the restructure decision as evidence of discrimination. However, this comment

concerned the restructure decision, an ADA claim Diehl has abandoned on appeal, not

the termination decision. Accordingly, her ADA claim fails. 

C.

The FMLA grants employees “12 workweeks of leave during any 12-month

period . . . [b]ecause of a serious health condition that makes the employee unable to

perform the functions of the position of such employee,” 29 U.S.C. § 2612(a)(1), and

afterwards the employee must “be restored by the employer to the position of

employment held by the employee when the leave commenced” or to an equivalent

position. 29 U.S.C. § 2614(a)(1). The FMLA has two types of claims to enforce these

rights: “interference claims, in which an employee asserts that his employer denied

or otherwise interfered with his substantive rights under the Act, see 29 U.S.C. §

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2615(a)(1), and retaliation claims, in which an employee asserts that his employer

discriminated against him because he engaged in activity protected by the Act, see 29

U.S.C. § 2615(a)(1) & (2); 29 C.F.R. § 825.220(c) (‘An employer is prohibited from

discriminating against employees . . . who have used FMLA leave.’).” Strickland v.

Water Works & Sewer Bd., 239 F.3d 1199, 1206 (11th Cir. 2001). 

To establish a retaliation claim, “an employee must demonstrate that his

employer intentionally discriminated against him in the form of an adverse

employment action for having exercised an FMLA right.” Id. at 1207 (citation

omitted). “In other words, a plaintiff 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. (quotation and citation omitted). 

 FMLA claims are also analyzed under the McDonnell Douglas format. Id.

(citation omitted). The employee’s prima facie case is made by showing: “(1) he

engaged in a statutorily protected activity; (2) he suffered an adverse employment

decision; and (3) the decision was causally related to the protected activity.” Id.

(citation omitted).

The district court is correct that Diehl did not prove causation. Diehl cites

McCormick’s comment that her new restructured role at BOA should relieve her stress

level, the timing of the job restructuring and termination decisions and the reference

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to Diehl’s leave of absence on her performance review as evidence that BOA

retaliated against her for taking FMLA leave. The district court correctly found that

the stress comment “[a]t most, [] evidences a concern for Diehl’s well-being, not any

animus from Diehl’s exercise of her FMLA rights.” Diehl has shown the decisions

to restructure and terminate her position coincide with her FMLA leave but not that

they were caused by her FMLA leave. As the district court held: “[T]he reference to

Diehl’s leave in her review is not a negative reference, but is rather an explanatory

reference. McCormick was merely seeking to explain why Diehl was not able to meet

all of her goals for the review period.” Since Diehl is unable to prove causation, her

FMLA claim fails.

AFFIRMED.

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