FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 29, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-12137

Non-Argument Calendar

________________________

D. C. Docket No. 06-00506-CV-T-26-MAP

RHONDA RASPANTI, 

Plaintiff-Appellant, 

versus 

FOUR AMIGOS TRAVEL, INC., 

RONALD M. SCHLOM, 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(January 29, 2008)

Before CARNES, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
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Rhonda Raspanti appeals the summary judgment in favor of her former

employer, Four Amigos Travel, Inc., and Ronald M. Schlom, and against her

complaint of retaliation under the Fair Labor Standards Act of 1938. 29 U.S.C. §

215(a)(3). The district court concluded that Raspanti failed to establish a prima

facie case of retaliatory discharge and was unable to rebut the legitimate reasons

offered by the Four Amigos for her termination. We affirm.

I. BACKGROUND

Four Amigos is a Florida corporation with its headquarters in Ft. Lauderdale,

and Ronald M. Schlom is its president. During the period relevant to Raspanti’s

complaint, Four Amigos operated call centers in Ft. Lauderdale and Largo, Florida,

that received inbound telephone calls from prospective customers inquiring about

Florida vacation packages advertised in direct mail marketing materials. Raspanti

began working for Four Amigos in the Largo center on September 1, 2001.

On July 26, 2004, two former employees sued Four Amigos for alleged

violations of the FLSA (the “Martinez lawsuit”). On April 6, 2005, Raspanti

joined the Martinez lawsuit as an opt-in plaintiff, and Four Amigos received

immediate notice of Raspanti’s participation. During the litigation, a coworker of

Raspanti, Willard Kuhn, filed an affidavit to support Four Amigos. The parties

settled the suit on September 20, 2005. 
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On October 24, 2005, Hurricane Wilma caused severe damage to the Ft.

Lauderdale location of Four Amigos. That center suffered a dramatic reduction in

phone lines, and the company reduced its direct mail marketing. The Largo

location became the operable call center for the company. The marketability of the 

Florida vacation packages also suffered due to public concern with weather

conditions. As a result, Four Amigos suffered a reduction in caller traffic and lost

two thirds of its revenue.

In response, Four Amigos decided to terminate less productive employees

or, as termed by Four Amigos, “its dead weight.” The company targeted

employees who had the three following characteristics: 1) low to moderate sales; 2)

high cancellation rates; and 3) negative attitudes. Four Amigos based the

terminations on sales and cancellation data collected over a 14-week period. More

than 94 employees were terminated or resigned within 100 days of the hurricane.

On November 28, 2005, Schlom participated in a telephone conference with

Raspanti and her coemployee Whitney Updegraff and discharged them due to their

respective low sales and high cancellation rates. According to the data collected,

Raspanti earned $3,487.50 and had a 28 percent cancellation rate, while Updegraff

earned $5,006.25 and had an 18 percent cancellation rate. Derek May, the General

Manager of the Largo call center, testified that Raspanti’s negative attitude was a
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factor in the decision to terminate her. Willard Kuhn, who also had a high

cancellation rate and negativity problems, was fired as well.

Raspanti filed suit in Pinellas County, Florida and alleged that Four Amigos

fired her in retaliation for her participation in the Martinez lawsuit. Four Amigos

removed the action to the United States District Court for the Middle District of

Florida. The district court granted summary judgment in favor of Four Amigos. 

The district court concluded that Raspanti failed to establish a causal connection

between her discharge and her protected activity and that Four Amigos provided a

legitimate nonretaliatory reason for Raspanti’s discharge, which Raspanti failed to

rebut as pretextual.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo and review the evidence in

the light most favorable to the nonmoving party. Thomas v. Cooper Lighting, Inc.,

506 F.3d 1361, 1363 (11th Cir. 2007). Summary judgment is appropriate when

there exists no genuine issue of material fact and the moving party is thereby

entitled to judgment as a matter of law. Id. Summary judgment should be awarded

“against a party who fails to make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.
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2548, 2552 (1986).

III. DISCUSSION

Raspanti challenges the conclusions of the district court that she failed to

establish either a prima facie case of retaliatory discharge under the FLSA or that

the reasons for her discharge were pretextual. When, as here, a plaintiff does not

present any direct evidence of retaliatory discharge, circumstantial evidence may

be evaluated under the burden shifting framework articulated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973). Under

that framework, the plaintiff must first establish a prima facie case of retaliation. 

Wolf v. Coca-Cola Co., 200 F.3d 1337, 1342–43 (11th Cir. 2000). The employer

then must articulate a legitimate nonretaliatory reason for the adverse employment

action. Id. If the employer meets this burden of production, then the plaintiff must

establish that the proffered reason is pretextual. Id. The record supports the

conclusions of the district court that Raspanti did not either establish a prima facie

case or establish that the reasons for her discharge were pretextual.

A. Raspanti Did Not Establish a Causal Relation Between The Protected Activity

and Discharge.

It is “unlawful for any person . . . to discharge . . . [an] employee because

such employee has filed any complaint or instituted or caused to be instituted any

proceeding under or related to this chapter.” 29 U.S.C. § 215(a)(3). A claimant
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establishes a prima facie case under Section 215(a)(3) by establishing three

elements: “(1) she engaged in activity protected under the act; (2) she subsequently

suffered adverse action by the employer; and (3) a causal connection existed

between the employee’s activity and the adverse action.” Wolf, 200 F.3d at

1342–43 (quoting Richmond v. ONEOK, Inc., 120 F.3d 205, 208–09 (10th Cir.

1997)) (internal quotation marks omitted). The parties do not dispute that the first

two elements are satisfied. We address only the final element of causation.

To establish a causal relation, Raspanti had to prove that “she would not

have been fired but for her assertion of FLSA rights.” Wolf, 200 F.3d at 1343. A

plaintiff can satisfy this burden if she can prove a “close temporal proximity”

between the time her employer learned about her protected activity and her

discharge. Thomas, 506 F.3d at 1364. This standard requires that the actions be

“very close.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct.

1508, 1511 (2001) (quoting O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253

(10th Cir. 2001)). A delay of “three to four month[s]” does not suffice. Thomas,

506 F.3d at 1364.

Raspanti failed to prove a causal relation based on close temporal proximity. 

Four Amigos received notice of Raspanti’s participation in the Martinez lawsuit on

April 6, 2005, but Raspanti was not terminated until November 28, 2005, which
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was seven months and three weeks later. Raspanti’s discharge is too remote to her

protected activity to establish causation based on temporal proximity.

Raspanti asks this Court to consider the brief amount of time between the

settlement against Four Amigos in September and her discharge in November, but

we begin our calculation on the date the employer gains “knowledge of the

protected expression[.]” Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004);

see, e.g., Breeden, 532 U.S. at 273, 121 S. Ct. at 1511. Four Amigos learned about

Raspanti’s protected activity in April. The district court correctly relied on that

date to calculate the temporal proximity.

Raspanti offers other circumstantial evidence that she argues, in combination

with the proximity of her discharge, establishes a prima facie case of retaliation,

but her evidence does not support her argument. Raspanti relies on Schlom’s

comment to Derek May - made during a discussion about Raspanti while the

Martinez lawsuit was pending - that “there is a legal matter underlining this, don’t

want to touch it,” but Schlom’s comment does not support Raspanti’s complaint of

retaliation. To the contrary, Schlom’s contemporaneous remark to May that

Raspanti was “capable as hell” and instruction to deal with Raspanti’s negativity

by “try[ing] to get whatever is in [Raspanti’s] head out of her head to the best of

your ability[,]” suggested that Schlom was interested in retaining Raspanti, despite
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her participation in the lawsuit. Raspanti also relies on May’s remark to Veronica

Dallam, a previous office manager at Four Amigos, that May did not believe the

Martinez plaintiffs were entitled to relief, but this statement does not evidence that

Raspanti’s involvement in the lawsuit led to her termination. Schlom, not May,

made the final decision to discharge Raspanti. See Gupta v. Fla. Bd. of Regents,

212 F.3d 571, 589 n.20 (11th Cir. 2000). That May provided information to

Schlom that was considered in the decision to discharge Raspanti does not alter

that conclusion. See Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1356 (11th

Cir. 1999).

B. Raspanti Did Not Rebut Four Amigos’s Legitimate Reasons for Her Discharge.

Even if Raspanti had established a causal connection between her protected

activity and her discharge, she failed to prove that the reasons for her dismissal

were pretextual. Four Amigos asserted that operational damage caused by

Hurricane Wilma and the ensuing financial losses required the removal of

unproductive employees, including Raspanti. To establish pretext, Raspanti was

required to prove that “the proffered reason was not the true reason for the

employment decision . . . either . . . by persuading the court that a discriminatory

reason more likely motivated the employer or indirectly by showing that the

employer’s proffered explanation [was] unworthy of credence.” Jackson v. Ala.
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State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (quoting Tex. Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095 (1981))

(internal quotation marks omitted). “Provided that the proffered reason is one that

might motivate a reasonable employer, an employee must meet that reason head on

and rebut it.” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en

banc).

Raspanti failed to establish that the reasons given by Four Amigos were

pretextual because she did not present evidence that the company fabricated the

hurricane damage and or that the company treated her differently from similarly

situated employees. The company did not invent its business troubles. Raspanti

acknowledged that Hurricane Wilma inflicted damage to the Ft. Lauderdale center

one month before her discharge. She admitted that, for over seven months

following her participation in the Martinez litigation, she did not experience any

adverse employment action or changes in the terms or conditions of her

employment. Undisputed evidence also establishes that Four Amigos suffered

financial losses following the hurricane and that, within the 100 days following the

disaster, more than 94 individuals resigned or were terminated. Four Amigos

offered legitimate reasons for Raspanti’s dismissal, including her poor productivity

rates and negative attitude. Raspanti did not dispute that employees with better
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sales figures than hers, including coworker Updegraff, were also terminated.

Raspanti likewise did not refute the argument of the company regarding her

attitude. This reason, while subjective, serves as a legally sufficient reason for an

adverse employment decision. Chapman, 229 F.3d at 1033 (noting that “[a]ttitude

. . . and enthusiasm . . . can be vitally important” in a “job requiring continuing

interaction with the public”). Although Raspanti alleges that her negative attitude

was not cited at the time of her dismissal and is a new reason for her discharge, she

was aware, upon learning about the Schlom-May discussion held during the

Martinez lawsuit, that Schlom had directed May several months before Raspanti’s

dismissal to assist Raspanti to improve her attitude. Even if negativity was not

cited as a reason for dismissal, negativity was a contributing factor to Raspanti’s

poor performance. That it was mentioned later as an elaboration on the reasons for

her dismissal does not establish pretext. See Standard v. A.B.E.L. Servs., Inc., 161

F.3d 1318, 1332 (11th Cir. 1998). Even though Kuhn supported Four Amigos

during the Martinez litigation, he was also dismissed, in part, for his negativity.

IV. CONCLUSION

The summary judgment in favor of Four Amigos and Schlom is

AFFIRMED.