[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 15

- 15261 Non

- Argument Calendar

________________________ D.C. Docket No. 0:14

- cv - 61556

- BB

STACIE FEISE, Plaintiff

- Appellant,

versus NORTH BROWARD HOSPITAL DISTRICT, d.b.a. Broward Health, Defen dant

- Appellee.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ ( March 24, 2017 ) Before MARTIN , JILL PRYOR and ANDERSON , Circuit Judges. PER CURIAM: Plaintiff Stacie Feise appeals the district court’s grant of summary judgment
to Defendant North B roward Hospital District, d/b/a Broward Health (“Broward

Case: 15-15261 Date Filed: 03/24/2017 Page: 1 of 182 Health”) on her claim that Broward Health unlawfully terminated her in retaliation for taking leave pursuant to the Family and Medical L eave Act (“FMLA”) , 29 U.S.C. § 2615 . On appeal, Feise argues that the district court improperly determined that: ( 1) her proffered comparators were not sufficiently similar to her, and ( 2) she failed to produce circumstantial evidence sufficient to permi t a reasonable jury to find that Broward Health’s proffered reason for terminating her was pretextual. After careful review, we affirm the district court’s judgment. 1
I. BACKGROUND Feise began working as a registered nurse in the pediatrics department at
Br oward Health in 2010 after completing nursing school. During her tenure at Broward Health, Feise had a series of medical issues that forced her to take time off. In 2011, Feise missed work for a period of time due to a sinus surgery. In 2012, she took F MLA leave for eight days due to severe asthmatic bronchitis. In April 2013, she took three weeks of FMLA leave after her asthmatic bronchitis worsened

— nine days of which she spent in the hospital. In August 2013, she was again hospitalized, taking two we eks of FMLA leave. In August 2013, Feise’s supervisor relocated and was replaced by Caren Bock. On August 28, 2013

— amid Feise’s FMLA leave

— Bock sent an email to another Broward Health employee indicating that additional staffing was needed

1 Feise’s Motion for Leave to File Reply Brief Out of Time is GRANTED. Case: 15-15261 Date Filed: 03/24/2017 Page: 2 of 183 because “Stacy Feise (Night ED RN) is out on DL as she was recently hospitalized without a date of return and the night staff is overtime x 2 (12’s) at the minimum each week.” First Bock E

- Mail, Doc. 98

- 2 at 3. 2 Bock was aware that Feise was hospitalized indefinitely with pneumonia , but denied knowing that Feise had taken FMLA leave specifically

. In an e

- mail shortly after Feise’s termination, Bock indicated to a nurse that “ [w] e need to watch overtime

. . . this is being looked at.” Second Bock E

- Mail, Doc. 98

- 4 at 1

. Feise returned to work on September 6. In a meeting with Bock that day, Feise advised that her doctor wanted to do additional testing, but that she would try to complete the testing on an ou tpatient basis so as to avoid missing work. On the evening of September 16, Feise reported for her fourth consecutive twelve hour shift , scheduled from 7 :00 p . m . to 7 :00 a . m . , followed by a 7:30 a

. m . staff meeting

. Because there was no time to take a break in the middle of her shift, Feise took her break at the end, after caring for her last patient. In accordance with standard hospital practice, Feise remained on the clock after 7 :00 a . m . as she took her break , clocking out of her shift only after the break was completed

. According to Feise,

w hile she was on her break she closed her eyes at the nurses’ station but never fell asleep. Feise further explained that w h en Bock arrived to conduct the staff meeting , Bo ck greeted her , and she immed iately looked up and responded.

2 Citations to “Doc.” refer to docket entries in the district court record in this case. Case: 15-15261 Date Filed: 03/24/2017 Page: 3 of 184 Bock’s version of events differed . According to Bock, she personally witnessed Feise sleeping on the morning of September 17. When Bock arrived at the nurses’ station, she said “good morning” t o the employees there. While others responded, Feise did not. Bock then approached Feise and said , “ G ood morning , Stacie.” Feise awoke. After the incident, Bock consulted with human resources, who informed her that sleeping on the job is a terminable offense. Bock also requested surveillance footage of the nurses’ station, which according to Bock showed Feise sleeping intermittently for three minutes and continuously for another three minutes. Two days after the incident , Bock ca lled Feise and instructed her to meet with Bock and human resources the next day, noting that she saw Feise sleeping prior to the 7:30 a

. m . meeting. At the m eeting , Feise met with Bock, H uman R esources (HR) Specialist Maxine Trotter, and Regional HR Director Eileen O’Brien. Feise explained that while her eyes may have been closed, she had not been sleeping. Feise was told there would be further investigation. Bock

— consulting with Trotter

— ultimately made the final decision to fire Feise. Feise

was summoned to another meeting with Bock and Trotter three days later, where Feise was shown a video of the sleeping incident and was told that she was being terminated. Trotter was aware that Feise had taken FMLA leave.

Case: 15-15261 Date Filed: 03/24/2017 Page: 4 of 185 Feise subsequently contacted Broward Health’s employee advocacy department , where she explained that she believed she had been fired for taking FMLA leave. Feise’s employee advocate , Faith

- Simone Hunte, investigated the incident, interviewing a number of witnesses. Her in terviews yielded varying versions of the incident. Two employees told Hunte that they did not see Feise sleeping prior to the staff meeting, with one adding that Feise “was responsive and participating before and during the meeting.” Bock and one other e mployee told Hunte that they saw Feise sleeping, and another employee noted that while it was
po ssible Feise dozed off, she did not think Feise was sleeping. From her investigation, Hunte concluded that she could not determine whether Feise was sleeping. Consequently, Hunte spoke with Bock and O’Brien, recommending that Feise be reinstated

. They declined to reinstate Feise. Broward Health’s Employee Handbook noted that “[Broward Health] does not allow sleeping during meal periods or rest breaks.” The manual does not specify the punishment for sleeping during a meal period or rest break. Nonetheless, Trotter testified that s he ha d been involved in five or six other terminations for sleeping on the job, and Hunte noted that she was aware of one other case where an employee was terminated for sleeping on the job. Trotter further testified that, in accordance with her experienc e, she informed Bock that sleeping on the job was a terminable offense prior to Feise’s termination. Feise has

Case: 15-15261 Date Filed: 03/24/2017 Page: 5 of 186 not presented any counter evidence sugges ting that sleeping on the job was not historically a terminable offense. Feise had never been written u p or disciplined prior to her termination. Feise also uniforml y received positive performance reviews. From 2010 to 2013, her performance appraisals indicated that she consistently met or exceeded expectations. Feise’s final performance appraisal prior to her termination effu sively praised her work, noting that she “display[ed] a calm, compassionate, confident manner when interac ting with patients and familie s,” “interact[e d] well with physicians, ” and had “expanded her clinical skills.” Indeed, in June 2013, three months before her termination, Feise received a promotion to the Pediatrics Emergency Department. Feise filed suit against Broward Health, alleging that she was fired in retaliation for taking FMLA leave. Before the district court, Feise identified several putative comparators who she alleged engaged in similar misconduct but were not terminated by Broward Health

. Two are relevant for this appeal. First, Feise identified a Senior Medical Technologist who was caught sleeping in a chemistr y lab but was only suspended for two days. That employee provided a doctor’s note indicating that she was prescribed medication to he lp her sleep at night and that she accidentally took the medication in the morning prior to falling asleep at work.

Case: 15-15261 Date Filed: 03/24/2017 Page: 6 of 187 Secon d, Feise identified a comparator who engaged in mis conduct that, in her view, was more severe than sleeping on the job. The employee, a medical technician, repeatedly abandoned a child patient who was supposed to be under close observation because he had threatened self harm. The medical technician had numerous previous corrective actions, for offenses including unprofessional behavior, failure to communicate when taking a break, using a personal cell phone at work, having his head down at a desk, mislabe ling a specimen, leaving the work area for an extended period of time, and threatening violence. Nonetheless, Bock did not terminate him, instead referring him to an employee assistance program and recommendi ng that he review hospital policies and undergo re - education

. The district court granted summary judgment to Broward Health on the ground that Feise failed to present evidence sufficient to show that Broward Health’s stated reason for firing her

— sleeping on the job

— was pretextual. Feise now appeals.
II. STANDARD OF REVIEW “This court reviews a district court’s grant of summary judgement de novo , applying the same legal standards used by the district court.” Galvez v. Bruce , 552 F.3d 1238, 1241 (11th Cir. 2008). We view the facts in the light most favora ble to the nonmoving party. See id. We must also draw “all reasonable inferences in favor of the party opposing summary judgment.” Whatley v. CNA Ins. Cos. , 189

Case: 15-15261 Date Filed: 03/24/2017 Page: 7 of 188 F.3d 1310, 1313 (11th Cir. 1999). Summary judgment is appropriate when 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). Mere speculation is insufficient to create a genuine issue of material fact. See Cordoba v. Dillard’s Inc. , 419 F.3d 1169, 1181 (11th Cir . 2005).
III. DISCUSSION “When a plaintiff asserts a claim of retaliation under the FMLA, in the absence of direct evidence of the employer’ s intent, we apply the same burden

shifting framework established by the Supreme Court in McDonnell Douglas Corp.
v. Gree n, 411 U.S. 792 (1973) , for evaluating Title VII discrimination claims.” Strickland v. Water Works & Sewer Bd. of City of Birmingham , 239 F.3d 1199, 1207 (11th Cir. 2001) (parallel citations omitted) . To prove a retaliation claim, an employee “ must 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.” Id

. “Only after the plaintiff makes this prima facie case of disc riminatory retaliation does the burden shift to the defendant to rebut the presumption of retaliation by producing legitimate reasons for the adverse employment action.” Drago v. Jenne , 453 F.3d 1301, 1307 (11th Cir. 2006). “If the defendant does so, the plaintiff must then show that the defendant’s proffered

Case: 15-15261 Date Filed: 03/24/2017 Page: 8 of 189 reason for the adverse action is pretextual.” Hurlbert v. St. Mary's Health Care Sys., Inc. , 439 F.3d 1286, 1297 (11th Cir. 2006). In establishing pretext, “[i]f a plaintiff fails to show the exis tence of a similarly situated employee, summary judgment is appropriate where no other evidence of discrimination is present. ” Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997). Consequently, absent direct evidence of retaliation, a plaintiff may d emonstrate pretext either by identifying a similarly situated comparator who was treated less harshly or by presenting circumstantial evidence sufficient for a reasonable jury to find that the employer’s p roffered reason for terminating the plaintiff was m ere pretext for discrimination. The district court determined that al though Feise made out a prima facie case of retaliation, Broward Health produced a legitimate reason for Feise’s termination

— sleeping on the job

. The district court then found that Feise failed to adduce enough evidence to show that Browar d Health’s putative reason for f iring her was pretextual. Feise raises two points of error on appeal. First, she argues that the district court erred in conduc ting its comparator analysis, improperly focusing on minute differences between Feise and her p roffered comparators. Second, Feise argues that she adduced enough circumstantial evidence to permit a reasonable jury to find that Broward Health’s reason for firing her was pretext ual

. In response, Broward Health disputes Feise’s points of error and also argues that

Case: 15-15261 Date Filed: 03/24/2017 Page: 9 of 1810 the district court erred in initially concluding that Feise made out a prima facie retaliation case. For purposes of this appeal , we assume that F eise has made out a prima facie retaliation case. It is undisputed that Broward Health produced a legitimate reason for Feise’s termination, sleeping on the job. The question, then, is whether Feise has put fo rward sufficient evidence indicating that Bro ward Health’s putative reason was mere pretext for its true intention to fire Feise for having taken FMLA leave. We conclude that she has not. A. Comparator Analysis Feise argues that the district court overstated the differences between her and her proffered comparators in concluding that the comparators were not similarly situated to her. We disagree. “A comparator is an employee similarly situated to the plaintiff in all relevant respects.” Rioux v. City of Atlan ta, Ga. , 520 F.3d 1269, 1280 (11th Cir. 2008) (alterations and internal quotation marks omitted). “The quantity and qu ality of the comparator’ s misconduct must be nearly identical to prevent courts from second

- guessing employers’ reasonable decisions and confusing apples with oranges.” Id . (alterations and internal quotation marks omitted). “Misconduct merely ‘similar’ to the misconduct of the disciplined plaintiff is insufficient.” Id

.

Case: 15-15261 Date Filed: 03/24/2017 Page: 10 of 1811 The district court properly found that Feise was not “nearly identical” to the comparators she identified. First , Feise does not argue that s h e is similarly situated to the medical technician who abandoned his post supervising an at

- risk child

. Instead, Feise asse r ts that the medical technician is an appropriate comparator because he was not fired even though his mis conduct was objectively more serious than Feise’s. But this is preci sely the kind of analysis in which we are not permitted to engage. “On

- the

- ground determinations of the severity of different types of workplace misconduct and how best to deal with them are exactly the sort of judgments about which we defer to employers.” Flowers v. Troup Cty., Ga., Sch. Dist. , 803 F.3d 1327, 1341 (11th Cir . 2015). We have repeatedly noted that “[f]ederal courts ‘do not sit as a super

- personnel department that reexamines an entity’s business decisions.’” Chapman v. AI Transp. , 229 F.3d 1012, 1030 (11th Cir. 2000). Consequently, the appropriate question is not whether the technician’s “alleged violations were worse than [Feise’s],” but instead whether the technician’s violations “were sufficiently similar ” to Feise’s. Flowers , 803 F.3d at 1341. Because Feise does not argue that the technician’s actions were “nearly identical” to hers, the technician is not an appropriate comparator. 3

3 Feise notes that in Flowers , we engaged in a discussion of the relative severity of the plaintiff’s and the putative comparators’ alleged misconduct. But there, we u sed differences in the severity of the misconduct to explain why the individuals the plaintiff identified were not suitable comparators, even if their misconduct was similar in kind to the plaintiff’s. Flowers , 803 F.3d at 1340

- 41.

Case: 15-15261 Date Filed: 03/24/2017 Page: 11 of 181 2 Second, with regard to the putative comparator who was sleeping on the job, the district court properly concluded that two key fact s distinguished her situation from Feise’ s: ( 1) t he putative comparat or was a Senior Medical Technologist in the Laboratory Department, not a nurse, and ( 2) unlike Feise, who never admit ted to sleeping, the technologist provided documentation from her doc tor indicating that she had been prescribed medicine to assist her in sleeping at night , and that she had accidentally taken the medicine prior to her shift, causing her to fall asleep. Feise argues that these were improper considerations , but we cannot a gree. W hile differences in official duties “are not, in and of themselves, dispositive as to whether the two individuals may be compared for purposes of evaluating a [retaliation] claim,” misconduct that “might be tolerated or treated with progressive disc ipline” in one position need not “be similarly accepted” in other positions. Rioux , 520 F.3d at 1281. Here, the district court r easonably concluded that there are significant differences between a nurse falling asleep in a public area and a technologist falling asleep in a chemistry lab. Nurses

— unlike technologists

— have a responsibility to respond with immediacy to patient needs. Moreover, a nurse sleeping in a public area could undermine the public’s confidence in the hospital , which has an interest in putting forth a professional image

. We find that the difference in responsibilities between Feise and the technologist

— combined with the fact that the technol ogist, unlike Feise, provided

Case: 15-15261 Date Filed: 03/24/2017 Page: 12 of 1813 a medically documented reason for her misconduct 4

— render the technologist an unsuitable comparator.
B. Other Evidence of Pretext Nor has Feise adduced other circumstantial evidence sufficient for a reasonable jury to find th at Broward Health’s proffered reason for terminating her was pretextual. To show pretext in the absence of a comparator , a plaintiff must adduce evidence not only that the employer’s proffered reason is false, but also that unlawful retaliation was the employer’s true motive. See St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 51 4

- 1 5 (1993). To do so, Feise could have show n either “that [Broward Health’s] proffered reason is unworthy of credence or . . . that [retaliation] more than likely motivated [Broward Health] to fire [her].” Elrod v. Sears, Roebuck & Co. , 939 F.2d 1466, 1470 (11th Cir. 1991). Here, the evidence i n the record would not permit a reasonable jury to find that Broward Health’s reason for terminating Feise

— sleeping on the job

— was unworthy of credence , or that retaliation more likely than not motivated Broward Health to terminate her. Initially , Feise argues that the district court failed to consider evidence suggesting that sh e did not actually fall asleep on the da y in question, asserting that

4 Feise argues that the technologist is a suitable comparator because Feise too suffered from medical issues prior to her termination. But there is no evidence in the record suggesting that Feise informe d anyone at Broward Health that her medical issues we re the reason she was sleeping on the day in question. To the contrary, she denied having been asleep.

Case: 15-15261 Date Filed: 03/24/2017 Page: 13 of 1814 the cour t improper ly focus ed on whether Bock genuinely believed Feise was sleeping and whether Bock terminated Feise for that reason. According to Feise, our decision in Sparks v. Pilot Freight Carriers, Inc. , 830 F.2d 1554 ( 11th Cir. 1987) , indicates that where an employer claims to have terminated an employee based on direct knowledge of miscond uct, the operative question with regard to pretext is whether the misconduct actually occurred. We disagree.
In Sparks , an employer claimed that it terminated the plaintiff because the plaintiff violated an unwritten company policy requiring employees to inform the employer if they are going to be absent from work. 830 F.2d at 1563

- 64. All parties agreed that during a phone call initiated by the employer for a separate
purpose , the plaintiff had informed the employer she would be absent on the day in question. Id

. The defendant nonetheless asserted that the unwritten rule required employees to initiate the communication in which they inform the employer of their absence. Though we noted that the plaintiff could prove pretext by “showing . . . that she did not violate the work rule,” the question in Sparks was not whether the employee engaged in the specific mis conduct, but whether the work rule in question actually existed

. Id . In that case , evidence that the employee did not violate the work rule because the specific rule in question was invented ex post

Case: 15-15261 Date Filed: 03/24/2017 Page: 14 of 1815 facto by the employer wa s relevant to whether the employer’s proffered reason for termination was worthy of credence

. 5 Here, there is no dispute that Broward Health had a rule prohibiting sleeping on the job . Feise merely quibbles that she did not violate the rule because she was not sleeping, not because no such r ule exists. This case therefore fits comfortably in the line of cases indicating that “[t]he inquiry into pretext centers on the employer’s beliefs, not the employee’s beliefs and, to be blunt about it, not on reality as it exists outside of the decision maker ’ s head.” Alvarez v. Royal Atl. Developers , Inc. , 610 F.3d 1253, 1266 (11th Cir. 2010). Indeed, an employer can hardly be said to have discriminated or retaliated against an employee if it terminated the employee based on a good faith belief that sh e violated a rule, even if the purported violation never actually occurred

. Feise argues in the alternative that the district court improperly ignored facts suggesting that Broward Health’s proffered reason for terminating her was a ruse, including: tha t Feise was terminated 11 days after returning from FMLA leave; that she had not been disciplined prior to the incident in question; that she had only closed her eyes for three minutes; and that Bock, at her deposition, could not

5 Feise suggests that the focus ought to shift to whether the employee actually engaged in the putative misconduct where the employer relies on personal knowledge of underlying conduct. We disagree . An employer who, based on personal knowledge of a violation, terminates an employee because of the violation alone has not discriminated or retaliated against the employee, even if the employer ultimately wa s mistaken in its personal belief that the employee committed the violation.

Case: 15-15261 Date Filed: 03/24/2017 Page: 15 of 1816 identify another employee who had been fired for sleeping on the job. But with the exception of temporal proximity, consideration of each of these facts would convert the court into a “super

- personnel committee , ” Chapman , 229 F.3d at 1030 , that impermissibly decides for employers what conduct is sufficient to warrant termination. And temporal proximity alone generally is insufficient to establish pretext. Hurlburt , 439 F.3d at 1298. Absent evidence of discrimination or retaliation, our employment discrimination statutes do not interfere with an employer’s ability to manage its personnel, “[n]o matter how medieval a firm’s practices, no matter how high

- handed its decisional process, no matter how

m istaken the firm’ s managers.” Elrod , 939 F.2d at 1470

. Thus it matters not that
F eise’s termination might hav e been unexpected or unfair ; FMLA simply does not afford relief in the absence of evidence of retaliation. Two other issues are worthy of discussion. First, Feise contends that a purported contradiction in Bock’s testimony call s Bock’s credibility into question such that a jury would be permitted to find all of her testimony unworthy of credence . In Feise’s view, “the record demonstrated that Bock did have knowledge that Feise had taken FMLA leave, yet Bock’s declaration in sup port of Broward Health’s motion for summary judgment stated that she had no knowledge that Feise had ever requested, taken, or been approve d for FMLA leave at any time.” Appellant’s Br. at 22

- 23. This is a factual non

- starter. Feise points to no

Case: 15-15261 Date Filed: 03/24/2017 Page: 16 of 1817 evidenc e on the record

— and we a re unable to locate any

— indicating that Bock knew Feise had taken FMLA leave specifically . The purported contradiction is

non - existent. Second, the record contains two e

- mails from Bock concerning employee overtime that Feise argues constitute evidence that retaliation motivated her termination . The first email, from Bock to another employee while Feise was on FMLA leave, explains that there is a need for additional staffing because “Feise ( Night ED RN) is out on D L as she was recently hospitalized without a date of return and the night staff is overtime x 2 (12’s) at the minimum each week.” First Bock E

- Mail, Doc. 98

- 2 at 3. The second email, sent by Bock to a nurse shortly after Feise’s termination, notes that “ [w ] e need to watch overtime . . . this is being looked at.” Second Bock E

- Mail, Doc. 98

- 4 at 1 . Even taken together, these e

mails do not suggest retaliation. The first e

- mail merely reflects that the hospital had to take steps to provide additional sta ffing in Feise’s absence

— a fact likely to be present whenever an employee takes FMLA leave. And the second e

- mail is nothing more than a general expression that excessive overtime is a concern, with no reference to Feise or FMLA leave . The evidence i n th e record does not permit the inferential leap required to conclude that Bock’s generalized concern about overtime led her to terminate Feise.

Case: 15-15261 Date Filed: 03/24/2017 Page: 17 of 1818 Because Feise is unable to point to a suitable comparator and has failed to produce other evidence that would allo w a reasonable jury to find that Broward Health’s proffered reason for terminating her was pretextual, the district court did not err in granting summary judgment for Broward Health.
IV. CONCLUSION For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED. Case: 15-15261 Date Filed: 03/24/2017 Page: 18 of 18