Informal Counseling Counts: Eleventh Circuit Clarifies Comparator Analysis, Pretext, and FMLA “Would-Have-Fired” Defense

Case: Samuel Wilkie v. Outokumpu Stainless USA, LLC

Court: United States Court of Appeals for the Eleventh Circuit (Non-Argument Calendar; Not for Publication)

Date: November 4, 2025

Panel: Circuit Judges Jill Pryor, Brasher, and Wilson (per curiam)

Disposition: Affirmed (summary judgment for employer)

Introduction

This unpublished, per curiam Eleventh Circuit decision addresses three interrelated employment-law issues arising from a safety incident at Outokumpu Stainless USA, LLC (“OTK”) and the termination of its shift coordinator, Samuel Wilkie. Wilkie alleged disability discrimination under the Americans with Disabilities Act (ADA) and interference and retaliation (discrimination) under the Family and Medical Leave Act (FMLA). The district court granted summary judgment to OTK; Wilkie appealed, arguing that the court misapplied (1) the ADA’s McDonnell Douglas burden-shifting framework (notably the comparator requirement), (2) the “convincing mosaic” approach to circumstantial discrimination evidence, and (3) the pretext analysis for his FMLA claims.

The Eleventh Circuit affirmed. Though nonprecedential, the opinion is instructive on several recurring questions:

How role-specific duties and prior “informal counseling” can defeat comparator evidence at the ADA prima facie stage.
How the convincing mosaic framework still requires robust evidence of pretext and cannot rest on disagreements with the employer’s judgment.
How the FMLA “would-have-fired-anyway” defense can dispose of an interference claim, and how a failure to show pretext defeats an FMLA retaliation claim.

Summary of the Opinion

Facts: During a shift, a temporary contract worker reported an itchy spot on her neck to Wilkie, the Shift Coordinator, and asked to go home. Wilkie recommended she see Fire & Rescue medical personnel, but she refused because she was not an OTK employee. Wilkie then provided a topical cream and ice pack from a first-aid kit. OTK’s safety protocol required notifying the safety team and Fire & Rescue; supervisors were not to administer first aid. Wilkie had previously received informal counseling specifically instructing him not to administer first aid and to follow reporting procedures.
ADA claim (McDonnell Douglas): The court held Wilkie failed to establish a prima facie case because he did not identify any “similarly situated” comparator. Material differences included prior informal counseling unique to Wilkie and role-based reporting obligations for a Shift Coordinator. Thus, no comparator evidence could support the third prong (“treated less favorably than a similarly situated, non-disabled person”).
ADA claim (convincing mosaic): Even without comparators, a plaintiff can survive summary judgment by presenting a convincing mosaic of circumstantial evidence. Here, however, OTK articulated two legitimate, nondiscriminatory reasons for termination—violating the safety protocol by administering first aid and failing to report to Fire & Rescue—and Wilkie failed to show pretext. There was no evidence of a qualifying emergency exception and no proof he followed the alternative “Green Card” nonemergency reporting protocol.
FMLA interference: Although motive is irrelevant to interference, the claim failed because OTK established it would have terminated Wilkie regardless of any FMLA activity (supported by termination reports).
FMLA retaliation: Applying McDonnell Douglas, the court concluded Wilkie could not show pretext; the stated reasons (safety and reporting violations) were not shown to be false or a cover for discrimination.

Detailed Analysis

Precedents Cited and Their Role

Summary Judgment Standard. Anthony v. Georgia, 69 F.4th 796 (11th Cir. 2023), and Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997), set the de novo review and “genuine dispute of material fact” standard. The panel emphasized the obligation to view the evidence in the non-movant’s favor yet require evidence sufficient for a reasonable jury verdict.
ADA Framework. Akridge v. Alfa Ins. Co., 93 F.4th 1181 (11th Cir. 2024), confirms use of McDonnell Douglas for ADA claims without direct evidence. The plaintiff must show (1) disability, (2) qualification, and (3) discrimination “on the basis of” disability—often tested through comparators.
Comparator Standard. Lewis v. City of Union City, 918 F.3d 1213 (11th Cir. 2019) (en banc), supplies the “similarly situated in all material respects” paradigm: same basic conduct, same policy, same supervisor, and similar employment/disciplinary history.
Convincing Mosaic. Tynes v. Fla. Dep’t of Juv. Just., 88 F.4th 939 (11th Cir. 2023), and Akridge endorse an alternative path: a plaintiff can survive summary judgment with a convincing mosaic of circumstantial evidence (e.g., suspicious timing, better treatment of similarly situated colleagues, and pretext evidence), even without a comparator.
Pretext Requirements. Kidd v. Mando Am. Corp., 731 F.3d 1196 (11th Cir. 2013), and Chapman v. AI Transp., 229 F.3d 1012 (11th Cir. 2000), require plaintiffs to confront proffered reasons “head-on” rather than dispute their wisdom. Silvera v. Orange County Sch. Bd., 244 F.3d 1253 (11th Cir. 2001), articulates the “weaknesses, implausibilities, inconsistencies” test. Phillips v. Legacy Cabinets, 87 F.4th 1313 (11th Cir. 2023), underscores that employers may act for good, bad, mistaken, or no reasons—so long as not discriminatory.
FMLA Doctrines. Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199 (11th Cir. 2001), delineates interference and retaliation claims; retaliation adopts McDonnell Douglas. Lapham v. Walgreen Co., 88 F.4th 879 (11th Cir. 2023), recognizes an employer’s complete defense to interference where it shows the employee “would have been terminated anyway,” regardless of FMLA use.

Legal Reasoning Applied

1) ADA Discrimination via McDonnell Douglas

The crux was the third prima facie element—less favorable treatment than a similarly situated, non-disabled comparator. Applying Lewis, the panel highlighted two material distinctions that doomed Wilkie’s comparators:

Prior informal counseling: Wilkie had been specifically counseled not to administer first aid and to follow the reporting chain. No cited comparator had this counseling and then engaged in the same conduct. The court treated that counseling as part of Wilkie’s disciplinary history, notwithstanding his argument that OTK’s progressive discipline policy should exclude it. Because OTK relied on that counseling “as a significant factor” in termination, it materially distinguished Wilkie from others.
Role-based policies and supervisory duties: As a Shift Coordinator, Wilkie was subject to heightened reporting responsibilities; most proposed comparators were not subject to the same reporting obligations, further undermining similarity.

Without a valid comparator, Wilkie failed the prima facie case. The court therefore affirmed summary judgment on the McDonnell Douglas track.

2) ADA Discrimination via a “Convincing Mosaic”

The court reiterated that a missing comparator is not fatal if a convincing mosaic exists. But OTK articulated two legitimate, nondiscriminatory reasons:

Wilkie personally administered first aid contrary to safety protocol (especially proscribed for supervisors).
He failed to report the injury to Fire & Rescue as required.

Wilkie attempted to show these reasons were pretextual by arguing:

Emergency exception: He argued a recognized carve-out for on-the-floor aid during emergencies. The record supported that such an exception exists conceptually, but there was no evidence that this was an emergency (e.g., life-threatening bleeding or incapacity). Thus, the exception did not apply.
Green Card protocol: He maintained that nonemergencies need not be reported to Fire & Rescue and could be handled via the Green Card process. But he showed no evidence that he followed the Green Card protocol either.

Under Kidd/Chapman/Silvera, contesting the wisdom of OTK’s rules or its judgment was insufficient. Wilkie did not expose inconsistencies or contradictions suggesting OTK’s reasons were “unworthy of credence.” Phillips further insulated OTK’s decision-making, absent discriminatory motive. With no pretext, the mosaic failed.

3) FMLA Interference and Retaliation

The court separated the two FMLA theories:

Interference: Motive is irrelevant, but the employer prevails by showing it would have taken the same action anyway. Relying on contemporaneous termination documentation, the court held OTK would have terminated Wilkie for the safety/reporting violations regardless of his FMLA leave. Lapham’s defense therefore defeated the interference claim.
Retaliation (discrimination): Applying McDonnell Douglas, the court found Wilkie could not show pretext for the same reasons noted in the ADA analysis. The legitimate reasons were unrebutted; hence, summary judgment was proper.

Impact and Practical Implications

Although unpublished, the decision offers clear, practice-oriented lessons within the Eleventh Circuit:

Comparator rigor under Lewis: Plaintiffs must align comparators not only on conduct and policy but also on role-specific duties and disciplinary history. Supervisory responsibilities and prior counseling can be decisive. Employers should document counseling—formal or informal—because it can become a material “disciplinary history” differentiator.
“Informal counseling” can matter: Even if internal policy suggests informal counseling is not “discipline,” courts may treat it as part of the employee’s disciplinary history if the employer relies on it when taking action. Plaintiffs should be prepared to show comparators with the same counseling history, or attack the employer’s reliance as inconsistent.
Convincing mosaic still turns on pretext: The mosaic is not a free-form bypass around pretext. Plaintiffs must marshal concrete inconsistencies or contradictions in the employer’s stated reasons. Mere disagreements with the employer’s judgment or policy preferences will not suffice.
Safety policies and supervisory roles: Violations tied to safety protocols, especially by supervisors, carry heavy weight. Arguments about hypothetical exceptions (e.g., “emergency” exceptions) must fit the factual record. Documentation of an actual emergency is crucial.
FMLA “would-have-fired-anyway” defense: Employers should maintain contemporaneous documentation linking termination decisions to non-FMLA-reasons. Such records can be outcome-determinative for interference claims.
Retaliation claims require evidence beyond timing: Even if FMLA activity is proximate in time to termination, plaintiffs must still show the proffered reasons are false and that the true reason was retaliatory.

Complex Concepts Simplified

McDonnell Douglas framework: A three-step burden-shifting test for discrimination claims without direct evidence. The plaintiff must first show a prima facie case; the employer then must articulate a legitimate, nondiscriminatory reason; finally, the plaintiff must prove that reason is a pretext for discrimination.
Comparator evidence: To show discriminatory treatment, plaintiffs often compare themselves to similarly situated colleagues. Under Lewis, comparators must be “materially similar,” including similar conduct, same rules, same supervisor, and similar disciplinary history.
Convincing mosaic: An alternative path to trial using circumstantial evidence (e.g., suspicious timing, patterns of better treatment, and pretext) that collectively supports an inference of discriminatory intent. It still requires persuasive evidence—especially of pretext.
Pretext: Demonstrating that the employer’s stated reason is not the real reason. This requires direct confrontation of the proffered reason, typically by showing inconsistencies or implausibilities, not merely disputing business judgment.
FMLA interference vs. retaliation: Interference focuses on whether an FMLA benefit was denied, regardless of motive, but the employer can defeat it by proving it would have taken the same action anyway. Retaliation targets intent—punishing the employee for using FMLA leave—and employs McDonnell Douglas and a pretext analysis.
“Green Card” protocol (case-specific): The employer’s internal reporting track for nonemergency incidents. If invoked as an alternative to emergency reporting, the record must show it was actually followed.
Per curiam and non-argument calendar: A per curiam decision is issued by the court without a named author; a non-argument calendar case is decided on the briefs without oral argument. “Not for publication” means it is nonprecedential but can be persuasive.

Conclusion

The Eleventh Circuit’s decision in Wilkie v. OTK affirms several bedrock principles in ADA and FMLA litigation while offering useful, case-specific guidance:

Comparator analysis under the ADA is rigorous; role-based duties and prior counseling can render seemingly similar colleagues not “similarly situated” in all material respects.
The convincing mosaic route remains viable in theory but fails without compelling pretext evidence. Courts will not second-guess the wisdom of safety rules or disciplinary judgments absent indications of discriminatory motive.
Under the FMLA, the “would-have-fired-anyway” defense can cleanly defeat an interference claim when supported by contemporaneous documentation, and retaliation claims falter without proof that stated reasons are false and a cover for discrimination.

For plaintiffs, Wilkie underscores the importance of gathering comparators truly aligned on role, policy exposure, supervision, and disciplinary history, and of producing concrete inconsistencies in the employer’s rationale. For employers, it highlights the value of well-communicated safety protocols, targeted supervisory counseling, and careful documentation tying termination decisions to nondiscriminatory reasons. Though unpublished, the opinion offers a clear roadmap for litigants navigating ADA comparator disputes, mosaic-based arguments, and FMLA defenses in the Eleventh Circuit.