FILED

U.S. COURT OF

APPEALS

ELEVENTH CIRCUIT

JUNE 27, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-11276

________________________

D. C. Docket No. 03-61420 CV-PAS

ROBERT DRAGO,

Plaintiff-Appellant,

versus

KEN JENNE, Sheriff of Broward County, Florida,

BROWARD COUNTY SHERIFF’S OFFICE,

Defendants-Appellees.

________________________

No. 05-14866

________________________

D. C. Docket No. 03-61420 CV-PAS

ROBERT DRAGO,

Plaintiff-Appellant,

versus

KEN JENNE, Sheriff of Broward County, Florida,

BROWARD COUNTY SHERIFF’S OFFICE,

Defendants-Appellees.
2

________________________

Appeals from the United States District Court

for the Southern District of Florida

_________________________

(June 27, 2006)

Before BLACK, PRYOR and COX, Circuit Judges.

COX, Circuit Judge:

Robert Drago appeals the district court’s grant of summary judgment to the

Broward County Sheriff’s Office and Sheriff Ken Jenne (collectively, BSO) on

Drago’s claims under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601

et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.,

and the Florida Civil Rights Act (FCRA), Fla. Stat. §§ 760.01-760.11. Drago also

appeals the district court’s denial of his Federal Rule of Civil Procedure 59(e) motion

to alter or amend the judgment. We affirm.

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

Beginning in July 2000, Drago was a captain in BSO, assigned to District 11,

Area 1. In that position, Drago supervised over one hundred and twenty people and

was accountable to his superiors for Area 1’s operational performance. He was

responsible for making periodic presentations to those superiors as part of the

Powertrac Rating System. In August 2000, after his first Powertrac presentation,
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Drago’s superiors expressed concerns about the presentation and his district’s

performance. After Drago’s Powertrac presentation in January 2001, one superior

commented that Drago “was not as familiar as he should be with investigations” and

recommended “more preparation and organization.” (R.2-53, Ex. 1 at 4.) 

In March 2001, Major Rick Frey became Drago’s direct supervisor. Shortly

thereafter, Frey formed the opinion that Drago was insubordinate, disruptive to the

command, and undermined Frey’s authority as the district chief. In April of that same

year, Frey threatened to demote Drago for insubordination and “for not knowing the

answer to [Frey’s] questions in the morning meetings and [for Drago’s] inability to

respond.” (R.2-55, Ex. 6 at 2.) On July 6, 2001, Frey advised Drago in writing of

Drago’s performance deficiencies and advised Drago that he had five weeks “to effect

some drastic change.” (R.2-56, Ex. 4.) Later that summer, other evaluators

characterized Drago’s attitude during his August 2001 Powertrac presentation as

“argumentative,” “defensive,” “cocky,” “irritating,” and “borderline disrespectful,”

particularly when deficiencies were brought to his attention. (R.2-53, Ex. 2.)

On September 18, 2001, Drago gave another Powertrac presentation, during

which he again received negative comments about his performance. Lt.Colonel John

G. Auer told Drago, “Your district issucceeding and doing very well in spite of you.”

(R.2-55 at 33-34.) Immediately after the presentation, Frey told Drago that they
4

needed to meet about Drago’s performance deficiencies. Rather than meeting with

Frey, however, Drago went to breakfast alone and did not return to the command.

Because Drago had not communicated to anyone at his command that he would not

be reporting to work that day and because no one was able to reach him by telephone

or pager, BSO sent a patrolman to Drago’s home, where the patrolman found Drago’s

BSO-issued carin the driveway. After breakfast, Drago had returned home to change

his clothes and then had attended an emergency appointment with a psychologist. 

On September 19, 2001, Frey recommended to his superior, Lt. Colonel Danny

Wright, that Drago be demoted for his repeated performance deficiencies, for the

problems noted during his Powertrac presentation the previous day, and for failing

to meet with Frey as requested, instead disappearing from the command following the

presentation. Frey stated that Drago had “failed to demonstrate the basic leadership

abilities required of a Captain within the Broward Sheriff’s Office” and that he was

immediately relieving Drago of his command and replacing himwith another captain.

(R.2-56, Ex. 9.) 

Later, on the same day, Wright was successful in contacting Drago by

telephone. Wright informed Drago that Wright and others at BSO were concerned

because they had not heard from Drago since he left the Powertrac presentation the

previous day. During that conversation, Drago said that he needed time off from
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work and was requesting leave; he did not indicate the anticipated length of his

absence. After his conversation with Wright, Drago requested an FMLA application

from BSO’s Human Resources department. 

On October 3, 2001, Drago returned to work unannounced. He brought with

him a completed FMLA application (signed by his treating psychologist) but no

Return to Work Authorization form. Frey and Wright met with Drago and told Drago

that they were upset with him for leaving the command without notifying anyone.

They threatened to terminate him if he went out on leave again without notice. They

also told him that, to officially return from leave, he should have a Return to Work

Authorization form signed by the psychologist.

After obtaining the psychologist’s signature on the Return to Work

Authorization form, Drago returned to work on October 8, 2001. That day, he was

reinstated to the position he held prior to his FMLA leave, with no change in rank,

pay, or benefits. Drago’s request for FMLA leave was retroactively approved on

October 11, 2001. Drago was paid for every day of the leave.

On October 8, 2001, the same day he officially returned to work, Drago filed

an internal complaint with BSO’s Equal Employment Opportunity (EEO) department,

on which he checked “age discrimination” and “harassment” as the reasons for the

complaint. The EEO complaint stated that Frey was hostile toward Drago and
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demeaned him, but it did not include any explanation of why Drago believed that

treatment was related to Drago’s age or how BSO had interfered with Drago’s FMLA

rights. In November 2001, EEO concluded that Drago’s complaint was not

meritorious.

By Drago’s own account, after he returned from FMLA leave, he continued to

receive criticisms of his performance similar to those he had received before the

leave. In November 2001, he applied for a position with the Kissimmee Police

Department. He was told by his superiors in BSO that he would not be demoted

during the pendency of his application with the Kissimmee department but that, if he

did not receive the position with Kissimmee, he would be demoted to lieutenant. 

Drago did not receive the position with the Kissimmee department and, in

January 2002, he was demoted to the rank of lieutenant within BSO. After the

January 2002 demotion, Drago did not experience any other change to his rank, title

or pay.

In July 2003, Drago filed this lawsuit against the Broward County Sheriff’s

Office and Sheriff Ken Jenne, in his official capacity, seeking to recover damages

from BSO for interference with his FMLA rights and retaliation for exercising his

rights under the FMLA, the ADEA and the FCRA. The district court granted

summary judgment to BSO. Drago then moved, pursuant to Federal Rule of Civil
7

Procedure 59(e), to alter or amend the judgment. The district court denied the

motion. Drago’s appeal challenges both the summary judgment for BSO and the

denial of his Rule 59(e) motion.

II. CONTENTIONS OF THE PARTIES

Drago contends that the district court erred in finding that there were no

genuine issues of material fact to support his claims that BSO interfered with his

rights under the FMLA orretaliated against himfor exercising his FMLA, ADEA and

FCRA rights. Specifically, Drago takes issue with the district court’s findings that

he received all the benefits that the FMLA guaranteed him and that he had not shown

that his demotion was causally connected to any protected conduct. Drago also

contends that the district court erred in denying his Rule 59(e) motion, which motion

sought reconsideration of the district court’s summary judgment. 

BSO contends that the district court correctly granted summary judgment on

all of Drago’s claims and that it did not abuse its discretion in denying Drago’s Rule

59 motion.

III. STANDARDS OF REVIEW

Review of an order granting summary judgment is de novo. We apply the same

legal standards that bound the district court, “viewing all facts and reasonable

inferences in the light most favorable to the nonmoving party.” See Strickland v.
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Water Works and Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1203 (11th

Cir. 2001). Summary judgment is appropriate when “there is no genuine issue as to

any material fact and . . . the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c).

The decision to alter or amend a judgment is committed to the sound discretion

of the district court. Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th Cir. 1998)

(citing O'Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992)). Therefore, this

court reviews the denial of a Rule 59 motion for an abuse of discretion. Id.

IV. DISCUSSION

FMLA Interference Claim

“Among the substantive rights granted by the FMLA to eligible employees are

the right to ‘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 ofsuch employee,’ 29 U.S.C. § 2612(a)(1), and the right following leave

‘to 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).”

Strickland, 239 F.3d at 1206. To state a FMLA interference claim, a plaintiff must

demonstrate that he was entitled, under the FMLA, to a benefit that he was denied.

See Strickland, 239 F.3d at 1207. The denial that Drago complains of is that he
Drago also complains that BSO interfered with his FMLA rights by denying his non-FMLA 1

vacation requests, which were pending before he took FMLA leave. Drago does not allege that BSO

took away any of his accrued vacation time. Rather, he complains only that BSO refused to approve

his requests for particular days off from work. The ability to take particular days of non-FMLA

vacation is not a right protected by the FMLA and thus, as a matter of law, cannot be the predicate

for a FMLA interference claim.

Indeed, because his FMLA application, signed bythe psychologist, stated that Drago did not 2

have a serious health condition and that he was able to perform his job functions, it is questionable

whether Drago was ever entitled to any FMLA leave. See 29 USC §§ 2612 (authorizing FMLA

leave due to “a serious health condition that makes the employee unable to perform the functions of

the position of such employee”), 2613(b)(4)(B) (requiring that medical certification state that “the

employee is unable to perform the functions of the position of the employee.”). However, BSO

treated Drago’s time off from work as FMLA leave.

The district court assumed, for purposes of the summary judgment, that Drago was entitled

to FMLA leave. We do the same. For the reasons stated later, Drago’s claims fail nevertheless.

9

wished to return to work on October 3, 2001, but he was prevented from doing so

until October 8, 2001. Thus, Drago contends that BSO interfered with his FMLA

rights by preventing him from returning to work for two business days.1

Having reviewed the record carefully, we conclude that Drago was not denied

any benefit guaranteed him by the FMLA. It is true that the FMLA guarantees a 2

person taking FMLA leave the ability to return to his previous position or to an

equivalent position after the leave has ended. 29 U.S.C. § 2614(a)(1). However, it

is also true that an employee taking FMLA leave must give his employer notice of the

probable duration of the condition requiring the leave. 29 U.S.C. § 2613(b)(2).

Doubtless, this is to allow the employer to plan for the absentee’s job functions to be

handled in another way during his absence and to anticipate his return. 
Drago contends (but does not provide evidence) that this provision of the FMLA does not 3

apply in his case because BSO had no uniform policy requiring fitness certifications of employees

returning from FMLA leave. But, Drago’s own testimony at depositionmay be construed to indicate

that he knew of such a policy. (R.2-55 at 65.) 

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In this case, Drago appeared at his command on October 3, 2001, FMLA

application in hand, announcing that he was returning to work that day, never having

informed anyone in BSO of the anticipated duration of his leave or the date upon

which he expected to return to work. While he was absent, Drago’s responsibilities

(significant, given that he supervised over one hundred and twenty people and that

his absence came just one week after the September 11, 2001 attacks on the United

States) had been reassigned to another captain. The BSO required himto take another

two days of leave and return to work on October 8, 2001, with a Return to Work

Authorization. This requirement did not interfere with Drago’s rights under the

FMLA. As stated above, the statute itself contemplates that an employee must give

an employer notice of the anticipated duration of the employee’s absence. And, the

FMLA allows an employer to require that an employee present a Return to Work

Authorization form before he returns from FMLA leave. See 29 C.F.R. § 825.310(f)

(“An employer may delay restoration to employment until an employee submits a

required fitness-for-duty certification.”).3
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Other record evidence provides additional support for our conclusion that BSO

was entitled to summary judgment on Drago’s FMLA interference claim. First, the

Return to Work Authorization that Drago presented, when he officially returned to

work on October 8, 2001, authorized him to return to duty on that date, not on any

earlier date. Second, when Drago returned on October 8, 2001, he was reinstated to

his prior position, without any change in rank, pay or benefits. Finally, BSO paid

Drago for all the leave that he took (including the two business days between October

3 and October 8). Drago simply offers no evidence that he suffered any damage as

a result of BSO’s requirement that he take an additional two days’ paid leave. This

court has previously held that, even where there may have been technical violations

of the FMLA, those violations are not compensable where, as here, a plaintiff has

failed to demonstrate that he suffered any “adverse employment action” for purposes

of stating a prima facie case under the statute. See Graham v. State Farm Mut. Ins.

Co., 193 F.3d 1274, 1284 (11th Cir. 1999). Quite simply, in this case, no interference

with FMLA rights occurred. Therefore, summary judgment was appropriately

granted for BSO on Drago’s FMLA interference claim.
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FMLA, ADEA, and FCRA Retaliation Claims

In order to state claims for discriminatory retaliation, a plaintiff must present

evidence that: (1) he engaged in statutorily protected conduct; (2) he was adversely

affected by an employment decision; and (3) there was a causal connection between

the statutorily protected conduct and the adverse employment decision. See

Strickland, 239 F.3d at 1207 (“a plaintiff bringing a [FMLA] retaliation claim faces

the increased burden of showing that his employer’s actions ‘were motivated by an

impermissible retaliatory or discriminatory animus.’”) (citing King v. Preferred

Technical Group, 166 F.3d 887, 891 (7th Cir.1999)); Hairston v. Gainesville Sun

Pub. Co., 9 F.3d 913, 919 (11th Cir. 1993) (ADEA and Title VII retaliation) (citing

Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir.1993)); see also Harper

v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1389-90 (11th Cir. 1998) (FCRA claims

are analyzed using the same analytical framework as Title VII). Only after the

plaintiff makes this prima facie case of discriminatory retaliation does the burden

shift to the defendant to rebut the presumption of retaliation by producing legitimate

reasons for the adverse employment action. See Hairston, 9 F.3d at 919. “‘If the

defendant carries this burden of production, the presumption raised by the prima facie

case is rebutted,’ and ‘drops from the case.’” Id. (quoting Texas Dep’t of Community

Affairs v. Burdine, 450 U.S. 248, 255 n.10, 101 S. Ct. 1089, 1095 n.10 (1981)).
13

It is undisputed that Drago’s demotion constitutes an adverse employment

decision. Regarding the statutorily protected activity in which he allegedly engaged,

Drago does not allege that he was demoted for taking FMLA leave. Rather, he

contends that his demotion was retaliation for: (1) his verbal complaints to his

superiors that they violated the FMLA by refusing to allow him to return to work for

two working days beyond the date on which he wished to return to work, and (2) his

written EEO complaint which he maintains “opposed” BSO’s refusal to allow him to

return to work for two days beyond the date on which he desired to return and in

which he complained that he suffered age discrimination. (R.1-1, ¶¶ 33, 36, 41.) We

assume for purposes of this appeal (but explicitly do not decide) that Drago’s verbal

and written complaints constitute statutorily protected activity under the FMLA, the

ADEA, and the FCRA. Even so, all Drago’s claims of retaliation fail as a matter of

law because he has failed to present sufficient evidence that the adverse employment

action he alleges (his demotion) was causally linked to the only protected activities

in which he alleges he engaged (the verbal complaints to his superiors and the written

EEO complaint).

The only evidence Drago has cited to support the causation element of his

retaliation claims is that he was demoted approximately three months after
Drago attempts to augment his thin evidence of causation with argument that his superiors’ 4

anger with him for leaving his command without telling anyone, their threats to fire him if he did so

again, and (on September 21, 2001) their disapproval of his vacation requests (in part because he had

been out on FMLA leave) evidence the fact that they did not respect his FMLA rights. At most,

these facts demonstrate Drago’s superiors’ frustration that he failed to communicate on September

18 that he was leaving his command (for FMLA or other reasons) and their decision that BSO could

not afford for him to be away from the command on the holiday dates he had requested. They are

not relevant to show a causal connection between any complaint Drago made (verbally on October

3 or in writing on October 8) and his ultimate demotion.

14

complaining to his superiors and filing his EEO complaint. We have previously held 4

that, in the absence of any other evidence of causation, a three and one-half month

proximity between a protected activity and an adverse employment action is

insufficient to create a jury issue on causation. Wascura v. City of South Miami, 257

F.3d 1238, 1248 (11th Cir. 2001). We are not persuaded that three months (only two

weeks less than the time we discussed in Wascura) is sufficiently proximate to show

causation. 

Additionally, Drago is unable to present a jury question regarding causation

because the record evidence is overwhelming that BSO contemplated demoting him

before he ever complained that BSO was interfering with his FMLA rights. Drago

himself admitted that, as early as April 2001 (five months before he went out on

FMLA leave), Frey considered demoting Drago for performance-related reasons. We

hold that, in a retaliation case, when an employer contemplates an adverse

employment action before an employee engages in protected activity, temporal
15

proximity between the protected activity and the subsequent adverse employment

action does not suffice to show causation. C.f. Cotton v. Cracker Barrel Old Country

Store, Inc., 434 F.3d 1227, 1232 (11th Cir. 2006) (citing Clark County School Dist.

v. Breeden, 532 U.S. 268, 272, 121 S. Ct. 1508, 1510-11 (2001)). 

Because he fails to present sufficient evidence of causation, Drago fails to

present a prima facie case of discriminatory retaliation. Therefore, each of his

retaliation claims fails as a matter of law.

Rule 59(e) Motion

Drago’s Rule 59 motion sought amendment of the judgment based on two

arguments: (1) that the district court made clearly erroneous factual findings in its

order granting summary judgment, and (2) that the district court committed error by

granting summary judgment for BSO without requiring BSO to file a statement of

facts opposing Drago’s summary judgment motion. The district court denied the

motion. 

We agree with the district court that the arguments in Drago’s motion are

meritless and therefore hold that the district court did not abuse its discretion in

denying the motion.
Defendants maintain that the Broward County Sheriff’s Office is not a legal entity. Given 5

our disposition of the case, we need not address that question. 

16

V. CONCLUSION

For the reasons stated above, the judgment of the district court is affirmed.

5

AFFIRMED.