author: GILMAN, Circuit Judge:

text:
    Rodney JONES, Plaintiff-Appellant, v. GULF COAST HEALTH CARE OF DELAWARE, LLC, a Foreign Limited Liability Corporation dba Accentia Health and Rehabilitation Center of Tampa Bay, Defendant-Appellee.
    No. 16-11142
    United States Court of Appeals, Eleventh Circuit.
    (April 19, 2017)

      Robin Mary Orosz, Wolfgang Michael Florin, Christopher David Gray, Florin Roebig, PA, Palm Harbor, FL, for Plaintiff-Appellant.
    Jeremy Chase Branning, Daniel E. Harrell, Clark Partington Hart Larry Bond & Stackhouse, Pensacola, FL, Trevor A. Thompson, Clark Partington, Tallahassee, FL, for Defendant-Appellee.
    Before ROSENBAUM, JULIE CARNES, and GILMAN, Circuit Judges.

       Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting by designation

   GILMAN, Circuit Judge:

Rodney Jones brought suit against his former employer, Gulf Coast Health Care of Delaware, LLC, doing business as Ac-centia Health and Rehabilitation Center of Tampa Bay (Accentia), under the Family Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654. Approximately a month after returning from FMLA leave to have rotator-cuff surgery on his shoulder, Jones was suspended and subsequently fired from his job as Activities Director. Jones claims that, in taking these actions, Accen-tia interfered with the exercise of his FMLA rights and later retaliated against him for asserting those rights. The district court granted summary judgment in favor of Accentia on both claims. For the reasons set forth below, we AFFIRM the judgment of the court with respect to Jones’s interference claim, but REVERSE the judgment with respect to his retaliation claim and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual background

Jones served as Activities Director for Accentia, a long-term-care nursing facility, from 2004 until he was fired in 2015. His duties included keeping up with resident charting and care plans, providing calendars for programming events, organizing volunteer programs, planning parties and outings, arranging entertainment activities for the residents, and generally overseeing his staff to ensure that these various programs were carried out. Jones’s job involved substantial desk work and planning, but his duties as Activities Director also included regular physical tasks such as unloading vehicles, decorating for parties, shopping for supplies, and traveling around the community for outreach programs. During the last two years of his employment, Jones also organized and participated in resident outings, which involved traveling around the community with residents, helping them get on and off the Accentia bus, and clearing paths for wheelchairs during these outings. Although Jones had five assistants to help him organize and execute activities, he preferred to be “hands-on” with planning and was always physically involved with setting up for volunteer events.

Jones learned in 2014 that he needed to undergo shoulder surgery in order to repair his torn rotator cuff, and that he would need to take time off from work to recover from the surgery. Accentia determined that Jones was eligible for FMLA leave and granted him time off from September 26, 2014, until December 18, 2014, so that he could undergo the surgery and fully recover. He was scheduled to return to work on December 19, 2014. But on December 18, 2014, Jones’s doctor reported that Jones would not be able to return to work and resume physical activity until February 1, 2015. The report also stated that Jones needed to continue physical therapy on his shoulder.

Despite the recommendations of Jones’s doctor and Jones’s own physical limitations, he still wished to return to his job as Activities Director at the end of his FMLA leave. Jones understood his doctor’s report to simply mean that he needed to continue physical therapy, not that he was prohibited from working entirely. He therefore asked his supervisor, Donald Daniels, to allow him to return to work on light duty. Jones wished to perform desk duty and computer work, with his staff to cover the physical aspects of his job. Daniels, however, refused to reinstate Jones as Activities Director until Jones could submit an unqualified fitness-for-duty certification, which Jones’s doctor failed to issue before the end of the FMLA period.

Jones maintains that, if Daniels had allowed him to return on light duty, Jones’s doctor would have certified him to return to work in this capacity. But because Daniels was adamant that Jones could not return to work on light duty, Jones did not ask his doctor for a light-duty certification. Jones instead requested additional time off from Accentia and was granted another 30 days of non-FMLA medical leave in order to complete his physical therapy. He felt that he was forced by Daniels into requesting this additional leave.

While on the 30 days of additional leave, Jones twice visited the Busch Gardens theme park in Tampa Bay, Florida and went on a trip to St. Martin. Jones spent his time at Busch Gardens walking around and taking pictures of the park’s Christmas decorations. He sent these pictures to his staff via text message, hoping to give them ideas for decorating Accentia’s facilities. Jones also visited his family in St. Martin for three days. He posted photos from these trips on his Facebook page, including pictures of himself on the beach, posing by a boat wreck, and in the ocean.

Jones eventually returned to work on January 19, 2015 as planned, meeting with Daniels at the beginning of the day. During the meeting, Jones presented Daniels with a fitness-for-duty certification confirming that Jones could immediately resume his job as Activities Director. Daniels responded by showing Jones the photos from Jones’s Facebook page, which depicted the trips that he had taken while on medical leave.

When Jones asked Daniels how he had obtained the photos, Daniels responded that “you can thank your wonderful staff, they just ratted you out,” but also remarked that “maybe if you’re going to have a Facebook account, you shouldn’t have it on public.” Daniels then informed Jones that “corporate” believed, based on these Facebook posts, that Jones had been well enough to return to work at an earlier point. Jones was subsequently suspended so that Daniels could investigate his conduct during medical leave. Although Jones was given an opportunity to respond to these charges in a letter, he failed to do so. Several days later, Jones’s employment was terminated.

B. Procedural background

In February 2015, Jones brought suit against Accentia in Florida state court. Jones alleged that, in suspending and later terminating him, Accentia interfered with the exercise of his FMLA rights and retaliated against him for asserting those rights. Accentia removed the action to the United States District Court for the Middle District of Florida, and subsequently moved for summary judgment on both of Jones’s claims. In February 2016, the district court granted Accentia’s motion for summary judgment, holding that Jones had failed to establish a prima facie case of either interference or retaliation under the FMLA. This timely appeal followed.

II. STANDARD OF REVIEW

We review de novo the district court’s grant of summary judgment, “viewing all the evidence, and drawing all reasonable inferences, in favor of the non-moving party.” Vessels v.-Atlanta Inde-p. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). Summary judgment is proper only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. IcL; Fed. R. Civ. P. 56(c).

III. DISCUSSION

A. The FMLA

The FMLA grants eligible employees a series of entitlements, among them the right to “a total of 12 workweeks of leave during any 12-month period” for a number of reasons, including “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)(D). To preserve and enforce these rights, “the FMLA creates two types of claims: interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act ... [,] and retaliation claims, in which an employee asserts that his employer discriminated against-him because he engaged in activity protected by the Act.” Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001) (internal citations omitted); see also 29 U.S.C. § 2615(a)-(b); 29 C.F.R. § 825.220(c). Jones brought claims against Accentia for both interference and retaliation in connection with the exercise of his FMLA rights.

B. Jones’s interference claim

The interference claim is based on Ac-centia’s refusal to allow Jones to return to work with certain physical limitations, even though two other employees with different job functions had been allowed to do so. Jones had requested on multiple occasions that he be allowed to resume his job as Activities Director on “light duty,” but he was denied such a reinstatement. Ac-centia’s response is two-fold: (1) that Jones forfeited his FMLA right to reinstatement when he requested and obtained extended medical leave at the end of his FMLA leave, and (2) that Jones failed to provide Accentia with a fitness-for-duty certification, which the company uniformly requires employees to submit before returning from FMLA leave. The district court granted Accentia’s motion for summary judgment on this issue, holding that Jones had failed to establish a prima facie case for his FMLA interference claim.

To establish a prima facie case for interference, Jones needed to “demonstrate by a preponderance of the evidence that he was entitled to the benefit denied.” See Strickland, 239 F.3d at 1207. He does not, however, “have to allege that his employer intended to deny the right; the employer’s motives are irrelevant.” Id. at 1208. Indeed, an employee returning from FMLA leave is entitled “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). Jones claims that his substantive right to reinstatement under the FMLA was violated by Accentia.. But Jones failed to show that he was actually entitled to reinstatement.

As an initial matter, the FMLA “provides for only 12 weeks of leave” and “does not suggest that the 12 week entitlement may be extended.” McGregor v. AutoZone, Inc., 180 F.3d 1305, 1308 (11th Cir. 1999). Jones’s FMLA leave began on September 26, 2014, and ended on December 18, 2014. At the expiration of his FMLA leave, Jones requested and was given another 30 days of separate medical leave. Significantly, this additional medical leave was not an extension of Jones’s FMLA leave.

Relevant caselaw suggests that an employer does not interfere with an employee’s right to reinstatement if that employee is terminated after taking leave in excess of the 12 weeks permitted by the FMLA. See Armbrust v. SA-ENC Operator Holdings, LLC, No. 2:14-CV-55-FTM-38CM, 2015 WL 3465760, at *5 (M.D. Fla. June 1, 2015) (holding that an employee did not have a claim for interference when “he was given the full twelve (12) weeks under the FMLA and his termination occurred after his FMLA leave expired”); Bender v. City of Clearwater, No. 8:04-CV-1929-T23EAJ, 2006 WL 1046944, at *11 (M.D. Fla. Apr. 19, 2006) (“Where an employee is absent for more than the protected period of time, the employee does not have a right to be restored to his prior or similar position.”). Jones argues that this line of cases is irrelevant because he requested to return to his job as Activities Director at the end of his FMLA leave, but was instead forced to request an additional 30 days of medical leave.

He was not, however, “forced” to take the additional leave; rather, he requested the 30-day extension because he was physically unable to resume his job duties at the end of his FMLA leave. But even assuming that Jones did not waive his right to reinstatement when he took additional medical leave, he has failed to establish a prima facie case for interference. In November and December 2014, Jones told his supervisor, Donald Daniels, that he wanted to return to work on light duty. As part of this light duty, Jones hoped to perform his desk-duty functions but have his assistants perform the physical aspects of his job. Daniels, however, refused to allow Jones to return to work in a diminished capacity, instead requiring him to submit a full fitness-for-duty certification before returning to work.

The FMLA regulations provide that an employee returning from FMLA leave who cannot perform the essential functions of his job due to a physical condition need not be reinstated or restored to another position. 29 C.F.R. § 825.216(c) (“If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition or an injury or illness also covered by workers’ compensation, the employee has no right to restoration to another position under the FMLA.”)

In addition, an employer may lawfully require a fitness-for-duty certification without interfering with the exercise of an employee’s FMLA rights. See Drago v. Jenne, 453 F.3d 1301, 1306-07 (11th Cir. 2006) (holding that “the FMLA allows an employer to require that an employee present a Return to Work Authorization form before he returns from FMLA leave”); 29 C.F.R. § 825.313(d) (“Unless the employee provides either a fitness-for-duty certification or a new medical certification for a serious health condition at the time FMLA leave is concluded, the employee may be terminated.”). The FMLA explicitly provides for such a certification, noting that “the employer may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work.” 29 U.S.C. § 2614(a)(4).

Jones does not dispute the accuracy or applicability of these FMLA provisions, nor does he dispute the fact that Accentia required employees returning from FMLA to submit fitness-for-duty. certifications. He instead argues that Daniels interfered with the exercise of Jones’s FMLA rights by dissuading him from submitting a light-duty certification, even though he had previously allowed other Accentia employees to return to work with such certifications. Specifically, Jones points to two Accentia employees, Kristine O’Leary and Faith Turner, who submitted fitness-for-duty certifications and were permitted to return to work despite having physical limitations. Even assuming that the record supports Jones’s contention that Daniel’s dissuaded him from submitting a light-duty certification, however, he cannot show that Aecen-tia’s fitness-for-duty certification policy was violative of the FMLA.

As an initial matter, O’Leary and Turner both submitted fitness-for-duty certifications to Accentia before returning to work, which Jones failed to do. The only documentation that Jones submitted at the end of his FMLA leave was a report from his doctor stating that (1) he needed to be excused from work until February 1, 2015, at which time he could return to full physical activity, and (2) he required continuing physical therapy. But this report does not constitute a fitness-for-duty certification because it does not specify that Jones “is able to resume work.” See 29 U.S.C. § 2614(a)(4). By contrast, O’Leary submitted a fitness-for-duty certification that fully released her for immediate work. Turner was also cleared to work, although her fitness-for-duty certification indicated that she required “rests from walking.”

Jones argues that, like Turner, he wished to submit a fitness-for-duty certification that included certain physical restrictions. He also contends that, in denying him that option, Daniels failed to apply Accentia’s fitness-for-duty certification policy in a uniform fashion, as required by the FMLA. The applicable FMLA regulation defines a uniform fitness-for-duty certification policy as one that applies to “all similarly-situated employees (i.e., same occupation, same serious health condition) who take leave for such condition.” 29 C.F.R. § 825.312(a).

Whether O’Leary or Turner are proper comparators under this definition of “uniform” is a key issue in this case. First, Jones did not have the same occupation as O’Leary, a health administrator, or Turner, an admissions assistant. Although Jones’s job as Activities Director involved substantial sedentary work — such as keeping up with resident care plans, providing program calendars, arranging activities, and overseeing staff — his job was more physically demanding than those of either O’Leary or Turner. Jones was regularly required' to engage in such physical activities as unloading vehicles, decorating for parties, shopping for supplies, and traveling around the community for outreach programs. By comparison, Turner was responsible for taking calls, reviewing faxes, and completing paperwork. The only physical aspect of Turner’s job involved conducting occasional tours of the facility for prospective residents and their families.

Jones, who was recovering from rotator-cuff surgery, also failed to show that he suffered from the same serious health condition as either O’Leary or Turner, who were both recovering from foot maladies. O’Leary underwent foot surgery to remove a melanoma and was fully cleared to return to her job at the end of her FMLA leave. Upon her return to Accentia, O’Leary wore a “shoe-boot” given to her by her physician only because her regular shoes did not yet fit. Turner, on the other hand, took FMLA leave to recover from a broken foot and returned to Accentia wearing a ■ medical short boot. Her only physical limitation at work involved taking rests from walking.

By contrast, Jones’s health condition affected his shoulder and was significantly more physically limiting. The December 2014 report from Jones’s doctor stated that Jones needed additional physical therapy and should avoid physical activity until February 2015. Jones admits that his doctor did not clear him to resume his usual responsibilities as Activities Director because his shoulder injury was “too fresh.” In fact, both Jones’s doctor and his physical therapist wei'e worried that common workplace activities, such as pushing a wheelchair or lifting objects, might cause Jones’s shoulder to retear, further prolonging his recovery.

In sum, Jones has not shown that any similarly situated Accentia employee was permitted to return from FMLA leave without submitting the required fitness-for-duty certifications. O’Leary’s fitness-for duty certification did not indicate that she had any physical restrictions. And even if Turner’s fitness-for-duty certification — requiring that she take periodic rests from walking — can be construed as a light-duty certification, Jones has failed to show that either O’Leary or Turner are proper comparators. Neither one had a job as physically demanding as Jones’s, nor were their injuries as physically limiting. The record therefore does not support Jones’s claim that Accentia failed to apply its fitness-for-duty certification policy in a uniform fashion.

Because Jones likely waived his FMLA right to reinstatement by taking an additional 30 days of medical leave, because he failed to submit a fitness-for-duty certification by the end of his FMLA leave, and because the record is devoid of proof challenging Accentia’s contention that its fitness-for-duty certification policy was implemented in a uniform fashion, Jones lost the right to be reinstated after failing to comply with this policy. In sum, Jones has not shown that he was denied a benefit to which he was entitled under the FMLA. The district court therefore did not err in granting summary judgment to Accentia on Jones’s interference claim.

C. Jones’s retaliation claim

Jones also appeals the district court’s grant of summary judgment to Ac-centia on his claim of retaliation under the FMLA. He maintains that Accentia retaliated against him for taking FMLA leave when it suspended and then terminated his employment. To succeed on this claim, Jones must demonstrate that Accentia “intentionally discriminated against him in the form of an adverse employment action for having exercised an FMLA right.” See Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001). In other words, Jones must show “that his employer’s actions “were motivated by an impermissible retaliatory or discriminatory animus.’ ” Id. (quoting King v. Preferred Tech. Grp., 166 F.3d 887, 891 (7th Cir. 1999)). Jones claims on appeal that he can prove Accentia’s retaliatory intent using both direct and circumstantial evidence.

Direct evidence “reflects ‘a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.’ ” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (quoting Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999) (internal quotation marks omitted). If believed, direct evidence “proves [the] existence of [a] fact without inference or presumption.” Id. (quoting Burrell v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997)) For that reason, “ ‘only the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination.” Id. (quoting Rojas v. Florida, 285 F.3d 1339, 1342 n. 2 (11th Cir. 2002)). Jones puts forth two statements as direct evidence of retaliation: (1) Daniels’s comment that “corporate” would not like the timing of Jones’s FMLA leave during the “survey window,” and (2) Daniels’s remark that Jones was being suspended because corporate believed that he had abused and misused his FMLA leave.

Neither of these comments constitutes direct evidence of retaliation because they do not prove, without requiring an inference, that Accentia discriminated against Jones based on the exercise of his FMLA rights. A comment about the timing of Jones’s leave is not a “blatant remark” that proves discrimination, and a comment about the abuse and misuse of FMLA leave does not establish Accentia’s consideration of impermissible factors. These comments might suggest but do not prove Accentia’s discriminatory motive, so Daniels’s statements are better considered as circumstantial evidence of retaliation. See id.

Because Jones has put forth no direct evidence of retaliation, we must employ the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to analyze his retaliation claim. See Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010). “Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case by demonstrating (1) [he] engaged in statutorily protected activity, (2) [he] suffered an adverse employment decision, and (3) the decision was causally related to the protected activity.” Id. The burden shifts back to Accentia if Jones can establish a prima facie case, requiring Accentia to “articulate a legitimate, nondiscriminatory reason” for his termination. See id. Finally, if Accentia meets this burden, then Jones must show that the supposedly legitimate reason was in fact a pretext designed to mask illegal discrimination. See id. at 1244.

The district court held that Jones had failed to establish a prima facie case of retaliation under the McDonnell Douglas framework. Accentia does not dispute the court’s finding that Jones met the first two prongs of the framework’s prima facie test. That is, it agrees that Jones engaged in a protected activity by taking FMLA leave and that he suffered an adverse employment action when he was terminated. The issue on appeal therefore centers around the court’s conclusion that Jones failed to establish causation, the third prong of the McDonnell Douglas prima facie test. “To establish a causal connection, a plaintiff must show that the relevant decisionmaker was ‘aware of the protected conduct, and that the protected activity and the adverse actions were not wholly unrelated.’ ” Kidd v. Mando Am. Corp., 731 F.3d 1196, 1211 (11th Cir. 2013) (quoting Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002)). “Generally, a plaintiff can show the two events are not wholly unrelated if the plaintiff shows that the decision maker was aware of the protected conduct at the time of the adverse employment action.” Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1234 (11th Cir. 2010).

Jones points to the timing between his return from FMLA leave and his termination to prove causation. “Close temporal proximity between protected conduct and an adverse employment action is generally ‘sufficient circumstantial evidence to create a genuine issue of material fact of a causal connection.’ ” Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006) (quoting Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000)). But “temporal proximity, without more, must be ‘very close’ ” in order to satisfy the causation requirement. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)) (holding that “[a] three to four month disparity” between the statutorily protected conduct and the adverse employment action is too long to establish temporal proximity).

Although Jones and Accentia agree on these general principles, they disagree with respect to how temporal proximity should be measured. Accentia argues, and the district court agreed, that temporal proximity should be calculated from the date that Jones began his FMLA leave (September 26, 2014) until the date that he was terminated (January 23, 2015). Because nearly four months passed between these two events, the court concluded that this temporal gap was too long to establish a prima facie case of a causal connection. Jones, on the other hand, argues that the relevant time period is between the date that his FMLA leave ended (December 18, 2014) and the dates of his suspension and termination (January 19, 2015 and January 23, 2015, respectively). This one-month period, he asserts, is sufficiently close to raise an inference of a causal connection. See Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (holding that “a period as much as one month between the protected expression and the adverse action is not too protracted” to establish causation).

Our circuit has yet to address this issue in a published decision. Unpublished opinions go both ways. See Penaloza v. Target Corp., 549 Fed.Appx. 844, 848 (11th Cir. 2013) (measuring temporal proximity, for purposes of an FMLA retaliation claim, as “the time period between [the plaintiffs] request for leave and her termination”). But see Diamond v. Hospice of Florida Keys, Inc., No. 15-15716, — F.3d —, —, 2017 WL 382310, at *7 (11th Cir. Jan. 27, 2017) (holding that the plaintiff, who took FMLA leave for about 13 days between March 21 and April 21, 2014 established an inference of causation for purposes of an FMLA retaliation claim when “two weeks after April 21, on May 5, she was fired”); see also Lamar v. Pilgrim’s Pride Corp., No. 3:13-CV-1101-J-34JBT, 2015 WL 5440342, at *11 (M.D. Fla. Sept. 15, 2015), appeal dismissed, No. 15-14598 (11th Cir. Mar. 31, 2016) (holding that the plaintiff, who took FMLA leave from April 12 to 15, 2013, and again on May 2, 2013, established a causal connection for the purpose of a prima facie FMLA retaliation case when his employer “terminated [him] less than two weeks after his last day of approved FMLA leave”).

The time is therefore ripe to clarify the law on this issue. We now hold that temporal proximity, for the purpose of establishing the causation prong of a prima facie case of FMLA retaliation, should be measured from the last day of an employee’s FMLA leave until the adverse employment action at issue occurs. We have previously indicated that, in the context of an FMLA interference claim, temporal proximity is measured in this way. See Evans v. Books-A-Million, 762 F.3d 1288, 1297 n.6 (11th Cir. 2014) (noting that, because a decision to reassign the plaintiff was made almost immediately upon her return from leave, “[a] reasonable fact finder could conclude that [the plaintiffs] reassignment constituted an unlawful act of interference with her FMLA right to be reinstated to her former position”).

Policy considerations also support the conclusion that temporal proximity, for the purpose of establishing the causation prong of a prima facie case of FMLA retaliation, should be measured from the last day of an employee’s FMLA leave. To hold otherwise would undermine the remedial purposes of the FMLA. In other words, measuring temporal proximity from the date that an employee first began FMLA leave would disadvantage those employees, such as Jones, who need to take the full 12 weeks of FMLA leave at one time. Because “[a] three to four month disparity between the statutorily protected expression and the adverse employment action” is considered too remote to create in inference of causation, see Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007), these employees would never be able to establish a prima facie case for FMLA retaliation based on temporal proximity. This outcome is unacceptable and contradictory to our caselaw, which establishes that the causation prong of the McDonnell Douglas prima facie test is to be interpreted broadly and “is satisfied if a plaintiff shows that the protected activity and adverse action were ‘not wholly unrelated.’ ” See Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1234 (11th Cir. 2010) (quoting Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000)).

Finally, we often look outside our circuit for guidance in crafting new precedent. But neither party has cited, and our research does not reveal, any consensus in this area of the law. Few of our sister circuits have even addressed the precise point from which temporal proximity, for the purpose of establishing the causation prong of a prima facie case of FMLA retaliation, should be measured. Moreover, those appellate courts that have directly addressed this issue have reached differing conclusions. See, e.g., Judge v. Landscape Forms, Inc., 592 Fed.Appx. 403, 410 (6th Cir. 2014) (“[W]e have measured temporal proximity from the date FMLA leave expired, not just when the employee first requested it, for the purposes of measuring temporal proximity.”); Amsel v. Texas Water Dev. Bd., 464 Fed.Appx. 395, 401-02 (5th Cir. 2012) (measuring temporal proximity, for the purpose of establishing the causation prong of a prima facie case of FMLA retaliation, from an employee’s return from FMLA leave). But see Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012) (holding that “this court looks to the date an employer knew of an employee’s use (or planned use) of FMLA leave, not the date it ended” for the purpose of determining prima facie causation in an FMLA retaliation case). These conflicting decisions primarily reinforce the need for clarification on this issue.

Despite the lack of consensus, we believe that both the caselaw within our circuit and fundamental policy concerns favor the proposition that temporal proximity, for the purpose of establishing the causation prong of a prima facie case of FMLA retaliation, should be measured from the last day of an employee’s FMLA leave. Based on this understanding of temporal proximity, Jones has met his burden of raising a genuine dispute as to whether his taking of FMLA leave and his termination were casually related.

Additional evidence, moreover, corroborates our conclusion. Jones submits that Daniels’s statements — the same ones that Jones put forth as direct evidence of retaliation — also establish a prima facie causal link between his taking of FMLA leave and his termination. We agree in part. Daniels’s comment that Jones was being suspended for abusing and misusing FMLA leave is not evidence of retaliation if Daniels can establish a good-faith basis for believing that Jones indeed abused such leave. But Daniels’s alleged comment that “corporate was not going to like the fact that [Jones] was taking FMLA leave during the ‘survey window* ” corroborates Jones’s claim that his FMLA leave and his termination were not “wholly unrelated.” See Krutzig, 602 F.3d at 1234; see also Diamond v. Hospice of Florida Keys, Inc., No. 15-15716, — F.3d —, —, 2017 WL 382310, at *7 (11th Cir. Jan. 27, 2017) (holding that the causation prong for the purpose of a prima facie FMLA retaliation claim was satisfied when the plaintiff was fired less than two weeks after her last day of FMLA leave and the “evidence of temporal proximity [was] strongly corroborated” by her supervisor’s negative comments regarding her FMLA leave). Jones has therefore raised a genuine dispute of material fact with respect to the causation prong of a prima facie case for FMLA retaliation.

Because the district court held that Jones had not established a prima facie case of retaliation, it did not complete the analysis under the burden-shifting McDonnell Douglas framework. The court, in other words, did not address Accentia’s alleged legitimate, nondiscriminatory reasons for firing Jones nor did it determine whether those reasons were pretextual. Although a remand to the district court for the consideration of these issues would normally be appropriate, such a remand is not necessary where the record is “sufficiently developed for us to decide” the issue. See Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1236 n. 5 (11th Cir. 2004). And because the record in this case so clearly demonstrates that there is a genuine dispute of material fact as to whether Accentia’s proffered reasons for Jones’s termination were pretextual, “a remand here would be a waste of time and judicial resources.” See id. We therefore move forward with the remaining steps of the McDonnell Douglas analysis.

Accentia has met its burden to produce legitimate, nondiscriminatory reasons for Jones’s termination. See Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (“[T]he employer’s burden is merely one of production; it need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997)). Accentia contends that Jones was fired because he (1) posted photos from his outings in violation of the company’s social-media policies, and (2) displayed poor judgment as a supervisor in posting these photos, even if this activity did not violate the company’s social-media policies. Jones argues, however, that these proffered reasons are pre-textual, and that he was really fired in retaliation for the exercise of his FMLA rights. Specifically, Jones argues that there is no evidence that he violated Ac-centia’s leave policies or its social-media policies. He further argues that Accentia’s proffered reasons for his termination are inconsistent and implausible.

To show pretext, Jones must “come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.” Chapman, 229 F.3d at 1024 (quoting Combs, 106 F.3d at 1528). But Jones cannot show that Accentia’s proffered reasons for terminating him were pretextual simply by “quarreling with the wisdom” of those reasons. See Brooks v. Cty. Comm’n of Jefferson Cty., 446 F.3d 1160, 1163 (11th Cir. 2006) (quoting Chapman, 229 F.3d at 1030). He may, however, establish pretext by demonstrating “such weaknesses, implausibilities, inconsistencies, incoheren-cies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” See Combs, 106 F.3d at 1538 (quoting Sheridan v. E.I. DuPont De Nemours & Co., 100 F.3d 1061, 1072 (3d Cir. 1996) (en banc)).

Jones has put forth sufficient evidence to create a genuine dispute of material fact as to whether Accentia’s reasons for terminating him were inconsistent and therefore pretextual. The formal letter sent to Jones from Accentia, terminating his employment, stated only that “As you have declined to provide any additional information, the decision has been made to terminate your employment effective immediately based on the information available.” According to Jones, the only explanation provided to him at the time that he was suspended and then terminated was that he was being fired for abusing and misusing FMLA leave by engaging in activities, posted on his Facebook page, that demonstrated his ability to have earlier returned to work.

Jones was not told when he was fired, however, that he had violated Accentia’s social-media policy or that his posts on Facebook indicated poor managerial judgment. And, during his deposition testimony, Daniels cited a myriad of additional reasons that purportedly influenced his decision to terminate Jones, including Daniels’s view that Jones unnecessarily prolonged his recovery and went on vacation when he should have been recuperating from his surgery.

Daniels could point to no company policy requiring Accentia employees to remain at home or refrain from traveling while on medical leave. Instead, Daniels maintained that Jones violated the “spirit” of medical leave — to rehabilitate and recover. Daniels also remarked that the posted photos indicated that Jones did not receive therapy for a week and that he was exceeding his medical restrictions. But a letter from Jones’s physical therapist stated that Jones was a model patient who never missed a therapy session. Daniels also acknowledged that, before terminating Jones, he was aware that Jones had never missed any therapy sessions. The evidence supporting Daniel’s claim that Jones abused medical leave by going on vacation is therefore murky at best. In fact, a jury could reasonably conclude that Daniel’s explanations are inconsistent, contradictory, and implausible.

On appeal, Accentia also argues that Jones was terminated for posting photos on Facebook that violated the company’s social-media policy, which states that employees can be terminated if their social-media posts have an adverse effect on coworkers. Daniels claimed that these posts had an adverse effect on Accentia employees because the photos were anonymously reported and because he heard gossip regarding the photos circulating throughout the workplace. Accentia maintains that these photos therefore created a morale issue among employees.

But Jones was not informed during his suspension meeting or in his termination letter that he had violated Accentia’s social-media policy. In addition, Daniels conducted no further investigation regarding the anonymous complaint, and neither he nor any other Accentia official could identify any employee who was adversely affected by Jones’s Facebook posts. Finally, there is evidence that the purpose of Ac-centia’s social-media policy, as discussed during managerial training, is to prevent employees from posting harmful or negative comments about the company’s staff or facilities. Jones’s Facebook posts were clearly far afield from this area of concern.

In sum, the record indicates a number of inconsistencies and contradictions with respect to Accentia’s proffered reasons for terminating Jones. “We have recognized that an employer’s failure to articulate clearly and consistently the reason for an employee’s discharge may serve as evidence of pretext.” Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006). These inconsistencies should also be considered in conjunction with Daniel’s comment to Jones that corporate would not like the timing of his FMLA leave, as well as the temporal proximity between his return to work and his termination. See id. (noting that close temporal proximity to an employee’s protected FMLA activity and his termination “is evidence of pretext, though probably insufficient to establish pretext by itself’). When viewed in the light most favorable to Jones, the totality of the evidence establishes that there is a genuine dispute of material fact with respect to whether Ae-centia’s reasons for terminating Jones were pretextual. The district court therefore erred in granting Accentia’s motion for summary judgment on Jones’s FMLA retaliation claim.

IV. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the court with respect to Jones’s interference claim, but REVERSE the judgment with respect to his retaliation claim and REMAND the case for further proceedings consistent with this opinion.


source: Caselaw Access Project

author: O’MALLEY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Demetrius Sharron DAVIS, Defendant-Appellant.
    No. 15-13241
    United States Court of Appeals, Eleventh Circuit.
    (April 20, 2017)

      Karin Bethany Hoppmann, Susan Hollis Rothstein-Youakim, Arthur Lee Bentley, III, Shauna S. Hale, James A. Muench,
    Adam M. Saltzman, U.S. Attorney’s Office, Tampa, FL, for Plaintiff-Appellee. •
    Thomas A. Burns, Burns, PA, Tampa, FL, for Defendant-Appellant.
    Before TJOFLAT, HULL and O’MALLEY, Circuit Judges.

       Honorable Kathleen M. O’Malley, United States Circuit Judge for the Federal Circuit, sitting by designation.

   O’MALLEY, Circuit Judge:

Demetrius Sharron Davis (“Davis”) appeals from a final judgment of the district court for the Middle District of Florida entered after a jury found him guilty of: (1) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (Count One); (2) witness tampering in violation of 18 U.S.C. § 1512(b)(1) (Count Two); and (3) obstruction of justice in violation of 18 U.S.C. § 1503 (Count Three). The district court sentenced Davis to a total of one hundred twenty-one (121) months imprisonment. Davis appeals his convictions for witness tampering and obstruction of justice. After review of the record, and with the benefit of oral argument, we affirm.

I. BACKGROUND

A. Factual Background

According to the evidence at trial, on October 26, 2013, Tacarra Wilson, the mother of Davis’s three daughters, arrived home from work to find Davis on her porch. Wilson testified that she has not lived with Davis since 2006, and that they have a “rocky” relationship. Davis asked to see the girls, and Wilson told him that they were at her sister’s house. Wilson then went to her sister’s house and did not return home until roughly midnight.

When Wilson returned home, Davis was sitting on her living room couch. He called Wilson a “slimy, nasty bitch,” said “you know I want to see my girls,” and accused Wilson of lying that she had been at her sister’s house. Davis then started an argument with Wilson and said he wanted to pawn the girls’ jewelry so he could get some money.

During the argument, Davis pulled out a gun, “slammed it on the dresser,” and told Wilson to “shut the fuck up.” At that point, Wilson and Davis’s nine-year-old daughter, D.D., entered the room and saw the gun. D.D. testified that Davis attempted to hide the gun from her, and that she saw Davis grab her mother. Wilson told D.D., “Go in your room; lock your door; and go in your closet and get your phone and call the police.”

When the police officers arrived at Wilson’s home, they heard Davis angrily yelling inside. They knocked on the door and Wilson opened it. The officers saw Davis sitting on the couch in the living room. One of the officers asked Davis to step outside, while the other spoke with Wilson inside the house. Wilson told the officer talking to her that Davis had a gun and that she saw him put it in the couch when he got up. The officer found a loaded silver pistol on the couch cushion where Davis had been sitting. The officers subsequently arrested Davis, who was a convicted felon, and thus could not legally possess a gun. Davis denied that the gun was his.

On May 13, 2014, a federal grand jury returned an indictment charging Davis with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)' The district court scheduled the case for trial in October 2014 for the sole count charged in the indictment. Both Wilson and D.D. were scheduled to be witnesses at trial.

While Davis was detained prior to trial, he made several recorded calls to Wilson, who testified that she felt that Davis was trying to get her to change her story. Davis asked Wilson about the “games you going to play” and told her, “[y]ou do your part; I’m going to do mine, too.”

Davis also contacted D.D. directly. On October 7, 2014, Davis called D.D. using another detainee’s personal call identification number. In relevant part, Davis and D.D. had the following exchanges:

[Davis]: That night that happened, did you — did you see me with anything?
D.D.: No, but I seen it. I seen it on the dresser.
[Davis]: Well, you don’t need to get on the stand, ’cause that’ll make Daddy go to jail for a long time just by you saying I was in the house with it. You can’t get on — you can’t go.
D.D. I’ll—
[Davis]: That won’t help me. That will help lock me up, so never mind.
[Davis]: I called to see what you all was doing, but I want to talk to you. But, uh — the people wanted you to — they wanted you to, but I don’t want you to. That will — that ain’t good.
D.D.: You keep saying (inaudible)—
[Davis]: That’s why I have to be in a way to discuss, but — I think you old enough to understand the decisions that you make and the stuff that come out your mouth. You should know what’s wrong and what’s right, what not to say and what to say; and I don’t know — what you just told me, I asked you something just that simple, and don’t you know that will have me locked up for the rest of the time — I’ll be gone till you grown. You know, I’ll be old when I get out just by you saying what you just said, which is not true.
[Davis]: All right, I don’t even want to talk about it no more. (Inaudible) to see what you would say. But don’t worry about it. Lucky I ain’t using what’s his name to call you, cause they’ll use this conversation in court, and that shit will get me locked up. This shit have me locked away for a long time. But I know you lying though... I didn’t do that in front of y’all. But don’t worry about it.
D.D.: So I’m going to just tell people—
[Davis]: Don’t. I’m going to tell the man no, I don’t want you to talk, because you’ll fuck me up and I’d be locked up for a long time just from the stuff that you’d be saying.
But I ain’t mad at you, but I see you all chose sides and where you want me at. So, this is where you want me at. But I ain’t mad at you, though. I ain’t worried about it.
Well, I just wanted to hear your voices ... but I can’t use you now, so I guess, I’ll — I just — I’ll call y’all— well, .. .when I get out. If I beat it, I get out. If I don’t, that means I’m going away for more than 15 years. So, I guess y’all will have somebody else new to call y’all daddy, I guess, but I don’t know. I love y’all, and I’ll get at y’all when I can.
D.D.: Okay.

Based on this phone call, a federal grand jury returned a superseding indictment on October 21, 2014, adding two new charges. Count Two of the superseding indictment charged Davis with tampering with a witness in violation of 18 U.S.C. §§ 1512(b)(1) and (j), and Count Three charged Davis with obstruction of justice in violation of 18 U.S.C. § 1503.

B. District Court Proceedings

1. Pretrial Motions

Davis filed several pretrial motions that are relevant to this appeal. In particular, Davis filed: (1) a motion for a bill of particulars; (2) a motion to dismiss Counts Two and Three of the superseding indictment; and (3) a motion to continue the jury trial.

First, Davis moved for a bill of particulars to require the government to identify, in print, any statements he made that formed the basis for Counts Two and Three of the superseding indictment. The government opposed the motion on grounds that it already provided the requested information to defense counsel. The magistrate judge denied the motion, concluding that the superseding indictment set forth the alleged offenses in detail and that the government’s disclosures adequately advised Davis of the allegations against him.

Davis also moved to dismiss Counts Two and Three of the superseding indictment as multiplicitous and vindictive. Davis requested that the district court dismiss both counts or require the government to elect which count to take before a jury. With respect to multiplicity, Davis argued that the government charged him with two crimes based on identical acts. Davis also argued that the superseding indictment was vindictive because the government added the two new charges in retaliation for his refusal to cooperate with government officials who wanted him to testify against a defendant in a different case.

The district court conducted an eviden-tiary hearing on Davis’s motion. At the hearing, Davis’s father, Donald McLendon, testified that an agent wanted Davis to talk to him, but that Davis did not want to cooperate because his family might get hurt. The district court subsequently denied Davis’s motion to dismiss. United States v. Davis, No. 8:14-cr-191, 2015 WL 500531 (M.D. Fla. Feb. 4, 2015). As to multiplicity, the court found that charges under 18 U.S.C. § 1503 and 18 U.S.C. § 1512(b)(1) are not multiplicitous because they require proof of different elements. In reaching this conclusion, the court noted that both the First and Eighth Circuits agree that the elements of these two charges are not the same. Id. at *1 (citing United States v. Risken, 788 F.2d 1361, 1369 (8th Cir. 1986); United States v. LeMoure, 474 F.3d 37, 43 (1st Cir. 2006)). Turning to vindictiveness, the court explained that there is no presumption of vindictiveness where, as here, the charges are added pre-trial. Based on the evidence adduced at the hearing, the court found no actual vindictiveness on the part of the prosecution.

At Davis’s request, the district court continued the trial multiple times, and trial was finally scheduled for February 9, 2015. On January 29, 2015, Davis moved to continue the trial again, this time on grounds that the prosecution had just sent him discovery discs that included letters, videos, and seventeen hours of recorded phone calls that Davis made while he was in custody pending trial. The district court conducted an evidentiary hearing on the motion on February 3, 2015. Davis argued that, due to his mental health issues, he needed more time to review this new evidence to prepare for trial. His counsel confirmed, however, that Davis participated in each of the calls at issue. The government opposed the motion to continue because: (1) defense counsel had equivalent access to the recordings and actually had provided some of them to the government; and (2) its witnesses had to prepare twice for trial already, only to have those trial dates moved.

The district court then asked the government to identify which of the new calls it intended to use at trial. The prosecutor identified two segments of a single call, one that was two minutes long, and another that was 45 seconds long. The district court denied Datis’s requested continuance, finding that adequate time remained for defense counsel to review the new discovery, particularly given that Davis was a participant in the conversations. The court also pointed out that the discovery had been available to defense counsel before the production about which Davis complained.

2. Trial

The district court conducted a three-day jury trial, beginning on February 9, 2015. During jury selection, because he identified only two of the 37 jurors in the venire as African American, Davis argued that the venire was unfairly discriminatory, allegedly in violation of the Fifth, Sixth, and Fourteenth Amendments as well as the Jury Selection and Service Act, 28 U.S.C. § 1861. The district court denied the motion, finding that Davis failed to make a prima facie showing that the jury venire did not reflect a fair cross-section of the community.

The district court also overruled Davis’s motion to strike Juror 14 for cause. During voir dire, Juror 14 indicated that his son was a law enforcement officer, but stated that it would not impact his ability to serve as a fair and impartial juror. Later, however, Juror 14 told the court that he would probably give a law enforcement officer’s testimony more weight. When the government questioned him further, Juror 14 stated that he would have no problem finding that a law enforcement officer was not being truthful, and that he would listen to each ■ witness impartially and follow the judge’s instructions. The district court overruled Davis’s objection to Juror 14, and Davis declined to exercise a peremptory challenge.

At trial, Davis moved to admit a letter Wilson wrote to him expressing anger over his relationships with other women. The district court excluded the letter as hearsay and as lacking adequate foundation. The court advised Davis’s counsel that he could use the letter on cross-examination of Wilson for impeachment purposes, but could not have Wilson read the letter into the record. Wilson subsequently testified, consistent with the contents of the letter, that she was angry with Davis at the time she wrote it.

After he rested his case, Davis moved for judgment of acquittal on all three counts of the superseding indictment. The district court denied the motion. As to Count One — possession of a firearm after having been convicted of a felony — the court pointed out that the parties had stipulated that Davis was a convicted felon on the date in question. The court explained that: (1) “at best, there is some conflicting evidence” regarding whether Davis “knowingly possessed the firearm, either actual possession or constructive possession;” ánd (2) “when there is conflicting evidence, the issue belongs to the trier of fact.” On Count Two — witness tampering — the district court found that a jury could reasonably conclude that Davis attempted to corruptly persuade D.D. based on the audiotape of Davis’s conversation with her. On Count Three — obstruction of justice — the district court stated that, based on that conversation, a reasonable juror could conclude that “Davis knowingly and corruptly tried to influence, obstruct, or impede the due administration of justice in the judicial proceeding.” The court thus denied Davis’s motion, finding that the evidence was sufficient to sustain a conviction on each of the counts of the indictment.

3. Jury Verdict and Sentencing

After a three-day trial, the jury found Davis guilty on all three charges. The district court entered judgment on July 2, 2015. The court subsequently sentenced Davis to 121 months imprisonment, which was at the low-end of the sentencing guidelines. Defense counsel indicated that Davis had no objections to that sentence.

Davis now appeals his obstruction of justice and witness tampering convictions. Although there is some debate about whether Davis’s notice of appeal was timely, the government does not raise timeliness as a reason not to review the case. The parties agree that we have jurisdiction over Davis’s appeal under 28 U.S.C. § 1291. See United States v. Lopez, 562 F.3d 1309, 1313 (11th Cir. 2009) (“Because the deadline in Rule 4(b) for filing a notice of appeal in a criminal case is not grounded in a federal statute, we hold that it is not jurisdictional.”).

II. DISCUSSION

Davis raises several issues on appeal, challenging numerous pretrial and trial decisions, as well as the sufficiency of the evidence. Davis argues that the district court erred when it concluded that the witness tampering and obstruction of justice charges were not multiplicitous and vindictive, and that the evidence at trial was insufficient to convict him under either charge. Davis also argues that the district court abused its discretion or otherwise erred when it: (1) denied his motion for a bill of particulars; (2) denied him a continuance before trial; (3) denied his motion to strike the venire panel; (4) overruled his objection to Juror 14; and (5) excluded the letter from his ex-girlfriend. We address each argument in turn.

A. Denial of Davis’s Motion to Dismiss the Superseding Indictment

Davis argues that the district court erred when it denied his motion to dismiss the superseding indictment on multiplicity and vindictiveness grounds. As explained below, we disagree.

1. Multiplicity

“An indictment is multiplicitous if it charges a single offense in more than one count.” United States v. Woods, 684 F.3d 1045, 1060 (11th Cir. 2012). A multiplici-tous indictment “violates double jeopardy principles by giving the jury more than one opportunity to convict the defendant for the same offense.” United States v. Jones, 601 F.3d 1247, 1258 (11th Cir. 2010).

“Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature ... intended that each violation be a separate offense.” United States v. Smith, 532 F.3d 1125, 1128 (11th Cir. 2008) (quoting Williams v. Singletary, 78 F.3d 1510, 1512 (11th Cir. 1996)). If the legislative intent is unclear, we apply the “same elements” test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). We have recognized that the Blockburger test “is one of statutory interpretation in which we examine the elements of each offense to determine whether Congress intended to authorize cumulative punishments.” United States v. Williams, 527 F.3d 1235, 1240 (11th Cir. 2008). Under that test, two offenses are different for double jeopardy purposes “if each ‘requires proof of an additional fact which the other does not.’ ” Smith, 532 F.3d at 1128 (quoting Cole v. United States Dep’t of Agric., 133 F.3d 803, 805 (11th Cir. 1998)). In other words, “if an offense requires proof of an element that the other offense does not, we need look no further in determining that the prosecution of both offenses does not offend the Fifth Amendment.” United States v. Hassoun, 476 F.3d 1181, 1186 (11th Cir. 2007). We review a multiplicity decision for an abuse of discretion, but review the appellant’s double jeopardy arguments de novo. United States v. Ford, 784 F.3d 1386, 1392 (11th Cir. 2015).

a. Legislative History

Davis contends that the multiplicity analysis here turns on legislative intent and that Congress did not intend simultaneous prosecution under 18 U.S.C. §§ 1503 and 1512. Our review begins with an inquiry into whether Congress intended to authorize cumulative punishment when it enacted the criminal statutes at issue. Hassoun, 476 F.3d at 1185. To ascertain Congress’s intent, we look to the language of the statutes themselves and to the legislative history. Id.

Before 1982, 18 U.S.C. § 1503 was entitled “Influencing or injuring officer, juror or witness generally,” and prohibited influencing or intimidating “any witness ... grand or petit juror, or [court] officer” in the discharge of his duty. United States v. Wesley, 748 F.2d 962, 963 (5th Cir. 1984). Section 1503 also included a residual clause prohibiting anyone from obstructing or attempting to obstruct the “due administration of justice.” Id.

In 1982, Congress enacted the Victim and Witness Protection Act (“VWPA”) and removed from § 1503 all references to witnesses. At the same time, Congress enacted 18 U.S.C. § 1512, which focuses specifically on “tampering with a witness, victim or an informant.” Victim Witness Protection Act, Pub. L. No. 97-291, §§ 4(a), (c), 96 Stat. 1248, 1249-1253 (Oct. 12, 1982). Congress did not remove the residual clause of § 1503 in its 1982 amendments, however, and courts have read that provision to encompass the corrupt persuasion of witnesses. See United States v. LeMoure, 474 F.3d 37, 41 (1st Cir. 2007).

As relevant here, the “omnibus” or “residual” clause of § 1503 makes it unlawful to “corruptly or by threats or force, ... influence[ ], obstruct! ], or impede! 1, or endeavor! ] to influence, obstruct, or impede, the due administration of justice.” 18 U.S.C. § 1503(a). Section 1512(b)(1) makes it unlawful to “knowingly use[] intimidation, threaten! ], or corruptly persuade! ] another person, or attempt! ] to do so, or engage! ] in misleading conduct toward another person, with intent to — -(1) influence, delay, or prevent the testimony of any person in an official proceeding.” 18 U.S.C. § 1512(b)(1).

Although Davis raised the issue of multiplicity in his motion to dismiss, he did not make any arguments to the district court regarding legislative history and did not raise the issue in his opening brief on appeal. In his reply brief, however, Davis argues that Congress intended that intimidation and witness tampering would only be prosecuted under § 1512 — not § 1503. In support of this proposition, Davis relies on two Second Circuit decisions: United States v. Hernandez, 730 F.2d 895 (2d Cir. 1984), and United States v. Masterpol, 940 F.2d 760 (2d Cir. 1991).

In Hernandez, the Second Circuit held that, by enacting the VWPA in 1982, “Congress intended that intimidation and harassment of witnesses should thenceforth be prosecuted under § 1512 and no longer fall under § 1503.” 730 F.2d at 899. In reaching this conclusion, the court explained that Congress removed from § 1503 all references to witnesses and enacted § 1512 to provide “more extensive protection for witnesses and others.” Id. at 898. For example, while § 1503 “proscribed influencing witnesses by corruption, threats, or force, § 1512 extends as well to intimidation and harassment, thereby establishing a lower threshold of criminal activity.” Id.

In Masterpol, the Second Circuit reaffirmed Hernandez and rejected the government’s attempts to read it narrowly. Masterpol, 940 F.2d at 763. The government argued that, after Hernandez, non-coercive witness contacts, “including corrupt efforts to urge witnesses to make false statements,” were still covered by § 1503’s omnibus clause. Id. (noting that the government’s “limiting construction of Hernandez has been accepted by other circuits and by district courts in this Circuit”). The Second Circuit found that Congress’s 1988 amendment to § 1512(b), which added “corruptly persuades” to the list of prohibited acts, was evidence that Congress intended to remove witnesses entirely from the scope of § 1503. Id.

The majority of circuits — including this one — disagree with the Second Circuit and have held that the omnibus clause of § 1503 continues to cover witness tampering. United States v. Moody, 977 F.2d 1420, 1424 (11th Cir. 1992) (concluding that § 1503 “is broad enough to cover such proscribed acts against witnesses”); United States v. Kenny, 973 F.2d 339, 342 (4th Cir. 1992) (“The fact that § 1512 more specifically addresses improper conduct involving a witness does not preclude application of § 1503.”); United States v. Branch, 850 F.2d 1080, 1082 (5th Cir. 1988) (“The general obstruction of justice statute, 18 U.S.C. § 1503, was amended in 1982 and all reference to ‘witnesses’ was deleted. On the face of the language remaining in the statute, however, threatening a witness is covered.”); United States v. Tackett, 113 F.3d 603, 607 (6th Cir. 1997) (“We agree with the majority of these courts that § 1503 continues to prohibit witness tampering.”); United States v. Rovetuso, 768 F.2d 809, 824 (7th Cir. 1985) (“[I]t is entirely proper to charge defendants under § 1503 with interfering with the due administration of justice when the conduct of the defendant relates to tampering with a witness.”); United States v. Risken, 788 F.2d 1361, 1367-68 (8th Cir. 1986) (finding that § 1512 was intended to provide greater protection to witnesses, but that witness tampering is also punishable under § 1503); United States v. Lester, 749 F.2d 1288, 1295 (9th Cir. 1984) (finding that Congress did not intend “to restrict the coverage of section 1503 over imaginative methods of witness tampering not set forth in section 1512”).

In Moody, this court specifically held that § 1503 is broad enough to encompass witness tampering. 977 F.2d at 1424. We explained that the 1982 amendment to § 1503 left untouched the omnibus clause which makes it a criminal offense to “corruptly or by threats or force ... influence[ ], obstruct ], or impede! ], or endeav- or! ] to influence, obstruct, or impede, the due administration of justice.” Id. And, we expressly joined “the majority of circuits in holding that § 1512 is not the exclusive vehicle for prosecution for witness tampering.” Id. (collecting cases). In doing so, we rejected the Second Circuit’s approach in both Hernandez and Masterpol. Id. Pursuant to our decision in Moody, therefore, witness-related conduct remains punishable under the omnibus clause of § 1503. At oral argument, counsel for Davis suggested that these cases — including Moody — are distinguishable on grounds that many of them pre-date or otherwise do not discuss the 1988 amendment of 18 U.S.C. § 1512 to include corrupt persuasion within the conduct proscribed by that section. Davis maintains that this amendment provides further evidence that Congress intended to remove witness tampering from § 1503 by addressing a perceived gap in the coverage of § 1512. In other words, that by broadening the scope of § 1512, Congress removed any need for residual coverage under § 1503.

But our sister circuits have held that witness tampering may be charged under § 1503, even after the 1988 amendment. Kenny, 973 F.2d at 343 (rejecting the argument that the 1988 amendment of § 1512 was “a clear indication” that § 1512 “was the sole statute covering the corruption of witnesses”); Tackett, 113 F.3d at 610-11 (discussing the legislative history of the 1988 amendment and concluding that the omnibus clause of § 1503 continues to prohibit witness tampering); United States v. Maloney, 71 F.3d 645, 659 (7th Cir. 1995) (finding that witness- tampering falls under both §§ 1503 and 1512, even after the 1988 amendments); United States v. Ladum, 141 F.3d 1328, 1338 (9th Cir. 1998) (discussing the legislative history of the 1988 amendment and concluding that the “amendment of § 1512 did not affect the reach of § 1503” and that “the omnibus clause of § 1503 continues to prohibit witness tampering”).

In Kenny, for example, the Fourth Circuit acknowledged that the 1988 amendment was passed to cover a perceived gap in the statute for acts which did not involve coercive conduct. 973 F.2d at 343. As noted, Congress added the phrase “or corruptly persuades” to cover “noncoercive witness tampering.” Id. The court found, however, that- the 1988 amendment made no change to the omnibus clause of 18 U.S.C. § 1503, and therefore does not “preclude its general application to acts that obstruct justice.” Id.

Similarly, in LeMoure, the First Circuit examined the statutory text and the legislative history and rejected the Second Circuit’s “restrictive view.” 474 F.3d at 40-41. In relevant part, the court noted that, when Congress amended § 1512 to coyer non-coercive witness tampering, Senator Biden explained that the amendment was:

intended ... merely to include in section 1512 the same non-coercive influence that was (and is) found in section 1503. It would permit prosecution of such conduct in the Second Circuit, where it is not now permitted, and would allow such prosecutions in other circuits to be brought under section 1512 rather than under the catch-all provision of section 1503.

Id. at 41 (quoting 134 Cong. Rec. S17,369 (1988) (statement of Sen. Biden)). Given this legislative history, and because Congress left § 1503’s omnibus clause intact, the court concluded that § 1503 “continues to cover witness tampering.” Id at 40.

We agree, and hold that witness tampering remains punishable under § 1503. Although we did not discuss the 1988 amendment in Moody, we did expressly reject the Second Circuit’s decision in Masterpol. Moody, 977 F.2d at 1424 (citing Hernandez and Masterpol and stating that “we expressly reject the position taken by the Second Circuit”). In doing so, we noted that Masterpol construed the 1988 amendment to § 1512 as evidence of Congress’s intent to remove witnesses from § 1503. Id. By disagreeing with that approach, we considered and rejected the precise argument Davis now asserts. Consistent with our decision in Moody, we conclude that the residual clause of § 1503 was not amended in 1988, and remains broad enough to cover proscribed acts against witnesses.

Having determined that Congress intended to authorize prosecution of witness-related conduct under either statute, we turn to the parties’ primary debate on appeal: whether cumulative punishments under 18 U.S.C. § 1503’s omnibus clause and 18 U.S.C. § 1512(b)(l)’s witness tampering provision satisfy the Blockburger test.

b. Blockburger Test

On appeal, Davis argues that the obstruction of justice and witness tampering charges were multiplicitous because they “have essentially identical elements.” Appellant Br. 54. The government responds that 18 U.S.C. § 1503 and 18 U.S.C. § 1512(b)(1) protect different interests and therefore focus on different elements. The government’s argument is well-taken.

To convict a defendant under 18 U.S.C. § 1503’s omnibus clause, the government must show that he “(1) corruptly or by threats, (2) endeavored, (3) to influence, obstruct, or impede the due administration of justice.” United States v. Silverman, 745 F.2d 1386, 1392 (11th Cir. 1984) (citation omitted); United States v. Brand, 775 F.2d 1460, 1465 (11th Cir. 1985) (same). To convict a defendant of witness tampering under 18 U.S.C. § 1512(b)(1), the government must prove that: (1) the defendant knowingly used intimidation, physical force, or threats against another person; and (2) this conduct was intended to “influence, delay, or prevent the testimony of any person in an official proceeding.” 18 U.S.C. § 1512(b)(1); United States v. Lara, 181 F.3d 183, 200 (1st Cir. 1999).

Although we have not addressed the precise question of whether prosecuting a defendant for obstruction of justice under 18 U.S.C. § 1503 and for witness tampering under 18 U.S.C. § 1512(b)(1) is multi-plicitous, our sister circuits have concluded that they are not because they require proof of different elements. See Risken, 788 F.2d at 1369 (“We also hold that appellant’s conviction under both § 1512 and § 1503 is not multiplicious in violation of the double jeopardy clause of the fifth amendment.”); United States v. LeMoure, 474 F.3d 37, 43 (1st Cir. 2007) (rejecting a multiplicity challenge on grounds that § 1503 and § 1512(b)(1) are different offenses under Blockburger); United States v. Wesley, 748 F.2d 962, 963-65 (5th Cir. 1984) (rejecting a multiplicity challenge as contrary to the “plain words of the statute” and as a “misinterpret[ation of] the legislative history behind § 1512”).

We agree. We have explained that § 1503 “forbids interferences with the due administration of justice, i.e., judicial procedure.” United States v. Brenson, 104 F.3d 1267, 1275 (11th Cir. 1997) (quoting Silverman, 745 F.2d at 1393). Consistent with this approach, other circuits have found that “[p]roof of a violation of § 1503 requires proof of the defendant’s knowledge of a pending judicial proceeding, which is expressly not an element of a violation of § 1512.” Risken, 788 F.2d at 1369; LeMoure, 474 F.3d at 43 (“[S]ection 1503 as read by the Supreme Court requires an attempt to obstruct a pending judicial proceeding, ... no such requirement of a pending proceeding exists in section 1512.”); United States v. Matthews, 505 F.3d 698, 708 n.3 (7th Cir. 2007) (same). Indeed, § 1512(f) provides that, for purposes of this section, “an official proceeding need not be pending or about to be instituted at the time of the offense.” 18 U.S.C. § 1512(f)(1). Other circuits have also found that, although § 1512(b)(1) “requires proof that one intend to ‘influence, delay, or prevent ... testimony of any person,’” § 1503 does not. LeMoure, 474 F.3d at 43 (quoting § 1512(b)(1)). The elements of the two charges are, thus, not the same.

Davis argues that this analysis is “not sound” and that the charges are the same because § 1512 “implicitly requires proof of knowledge of a pending judicial proceeding.” Appellant Br. 54-55. Davis cites no authority for this proposition, and his “implicit requirement” approach is inconsistent with Blockburger. As we have explained, the Blockburger test requires that we “examine only the elements themselves; if an offense requires proof of an element that the other offense does not, we need look no further in determining that the prosecution of both offenses does not offend the Fifth Amendment.” Hassoun, 476 F.3d at 1186.

Applying this framework, we conclude that the witness tampering and obstruction of justice charges in the superseding indictment were not multiplicitous. “Each charge is proscribed by a separate statutory provision and the facts necessary to one are not necessary to the other.” United States v. Maggitt, 784 F.2d 590, 599 (5th Cir. 1986). Accordingly, Davis’s prosecution and subsequent conviction on both counts was not multiplicitous and did not constitute double jeopardy.

2. Vindictiveness

Next, Davis argues that the addition of the witness tampering and obstruction of justice charges were vindictive. According to Davis, the prosecutor added the new charges in retaliation for his refusal to cooperate with government officials to testify against a defendant in another case who was charged with racketeering and murder. Although Davis concedes that the district court correctly found no presumption of vindictiveness here because the government filed the superseding indictment prior to trial, he maintains that the court should have found that the new charges were actually vindictive. We review a district court’s decision denying a motion to dismiss an indictment as vindictive for abuse of discretion. United States v. Kendrick, 682 F.3d 974, 981 (11th Cir. 2012).

“A prosecutor may seek a superseding indictment at any time prior to a trial on the merits, ... so long as the purpose is not to harass the defendant.” United States v. Barner, 441 F.3d 1310, 1315 (11th Cir. 2006) (citation omitted). As a general rule, if a prosecutor has probable cause to believe that a defendant committed a crime, “the courts have no authority to interfere with a prosecutor’s decision to prosecute.” Id. A superseding indictment adding new charges that increases the potential penalty “would violate due process if the prosecutor obtained the new charges out of vindictiveness.” Id. In this context, vindictiveness “means the desire to punish a person for exercising his rights.” Id We have explained that a “prosecutor’s charging decision does not impose an improper ‘penalty’ on a defendant unless it results from the defendant’s exercise of a protected legal right, as opposed to the prosecutor’s normal assessment of the social interests to be vindicated by the prosecution.” United States v. Taylor, 749 F.2d 1511, 1514 (11th Cir. 1985) (per curiam).

Here, the government added two new counts in the superseding indictment — Counts Two and Three — based on Davis’s conduct that occurred after the initial indictment, but before trial. The Supreme Court has recognized that the addition of charges while preparing for trial generally does not give rise to a presumption of vindictiveness because, “[i]n the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution.” United States v. Goodwin, 457 U.S. 368, 381, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). In these circumstances, where the charges were added pre-trial, a defendant must prove actual vindictiveness by showing “objectively that the prosecutor’s charging decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do.” Id at 384, 102 S.Ct. 2485.

After conducting an evidentiary hearing, the district court concluded that' Davis failed to prove actual vindictiveness. Davis, 2015 WL 500531, at *2. In reaching this conclusion, the court found that, even after it added Counts Two and Three to the superseding indictment, the government remained interested in Davis’s cooperation. The court further found that the violations alleged in Counts Two and Three postdated the original indictment, “which objectively rebuts any claim of vindictiveness.” Id.

Davis argues that the new charges were added to punish him for not cooperating and that he had a protected right not to cooperate. Davis cites no authority suggesting that the government cannot use the threat of prosecution to encourage cooperation, and courts that have considered this issue have concluded otherwise. See United States v. Williams, 47 F.3d 658, 662 (4th Cir. 1995) (“A prosecutor’s threat to bring a more severe indictment if the defendant refuses to cooperate does not amount to vindictiveness as long as the defendant, should he refuse to cooperate, is not treated worse than he would have been if no plea bargain had been offered.”); United States v. Long, 823 F.2d 1209, 1211 (7th Cir. 1987) (noting that the government may penalize a refusal to cooperate and that “it is difficult to see how the mere allegation that Long was disadvantaged by refusing to cooperate could, without more, suffice to show ‘vindictiveness’ ”); United States v. Boss, 652 F.2d 36, 38 (10th Cir. 1981) (“When the party refuses to cooperate, prosecution, based upon probable cause to believe the defendant committed the crime charged, does not present [a] likelihood of vindictiveness”).

In any event, as noted, the district court found that the new charges were added based on Davis’s post-indictment conduct, which rebutted any claim that the addition of the charges was vindictive. See United States v. Suarez, 263 F.3d 468, 480 (6th Cir. 2001) (“If the prosecution can show that the additional charges were not brought earlier because they were based on new evidence, it will successfully rebut a showing of vindictiveness.”). We find no error in that conclusion, and Davis does not challenge it on appeal. Accordingly, the district court did not abuse its discretion in rejecting Davis’s vindictiveness claim.

B. Sufficiency of the Evidence

Davis asserts that, even if he could be charged under both § 1503 and § 1512, there was insufficient evidence to support either conviction. We disagree.

We review de novo whether the evidence was sufficient to sustain a criminal conviction. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). In doing so, “we view the evidence in the light most favorable to the government and draw all reasonable inferences and credibility determinations in favor of the jury’s verdict.” Kendrick, 682 F.3d at 981. “[T]he ultimate question is whether a reasonable trier of fact could have found guilt beyond a reasonable doubt.” Id. at 984.

The evidence presented at trial was sufficient to enable the jury to find Davis guilty of obstruction of justice and witness tampering beyond a reasonable doubt. The transcript of Davis’s call to D.D. on October 7, 2014 demonstrated that Davis corruptly tried to influence his pending trial by using persuasion to prevent witness testimony in violation of both 18 U.S.C. § 1503 and § 1512(b)(1). During that call, Davis asked D.D. what she planned to tell the jury. When D.D. said that she would say that she saw the firearm, Davis told her: “you don’t need to get on the stand, ’cause that’ll make Daddy go to jail for a long time” and “I don’t want you to.” When D.D. started to say that she was “going to just tell people ...” Davis cut her off, saying: “Don’t ... I don’t want you to talk, because you’ll fuck me up.”

On appeal, Davis argues that, because D.D. testified that she did not feel threatened by Davis, and told the jury that she did not feel that her father “was pressing her to lie or not testify,” the evidence against him was “fatally undermined.” Appellant Br. 65-66. But the relevant inquiry is not whether D.D. actually felt threatened. Instead, the focus of § 1503 is on the defendant’s “specific intent” to “do some act or acts which tend to impede or influence, obstruct, or impede the due administration of justice.” Knight v. United States, 310 F.2d 305, 307 (5th Cir. 1962). It is well established that a § 1503 offense “is complete when one corruptly endeavors to obstruct or impede the due administration of justice; the prosecution need not prove that the due administration of justice was actually obstructed or impeded.” Silverman, 745 F.2d at 1395 (emphasis in original).

Section 1512(b)(1) prohibits the use of intimidation, threats, or corrupt persuasion of a person and the “attempt[ ] to do so.” 18 U.S.C. § 1512(b)(1). We have said that “whether a communication is a threat is a question of fact to be left to the jury.” United States v. Matthews, 431 F.3d 1296, 1310 (11th Cir. 2005) (quoting United States v. Taylor, 972 F.2d 1247, 1252 (11th Cir. 1992)). “If a reasonable recipient, familiar with the context of the communication, would interpret it as a threat, the issue should go to the jury.” Id. (citation omitted).

Based on the October 7, 2014 phone call, a reasonable jury could find that Davis endeavored to impede the administration of justice by attempting to influence D.D. not to speak with law enforcement and not to testify. Regardless of whether D.D. actually felt threatened, the jury was free to conclude that Davis knowingly used corrupt persuasion that was intended to prevent D.D.’s testimony. Viewed in the light most favorable to the government, we conclude that the evidence was sufficient to support the jury’s verdict as to both obstruction of justice and witness tampering.

C. Motion for a Bill of Particulars

Davis argues that the district court erred in denying his motion for a bill of particulars. We review the district court’s denial of a motion for a bill of particulars for abuse of discretion. United States v. Colson, 662 F.2d 1389, 1391 (11th Cir. 1981). To show an abuse of discretion, a defendant must establish that he actually was surprised at trial and that the denial of the request for a bill of particulars prejudiced his substantial rights. Id

The purpose of a bill of particulars is “to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense, to minimize surprise at trial, and to enable him to plead double jeopardy in the event of a later prosecution for the same offense.” United States v. Warren, 772 F.2d 827, 837 (11th Cir. 1985). A bill of particulars may not be used “to obtain a detailed disclosure of the government’s evidence prior to trial.” United States v. Perez, 489 F.2d 51, 71 (5th Cir. 1973). Importantly, a defendant is not entitled to a bill of particulars where the information sought has already been provided by other sources, such as the indictment and discovery. United States v. Martell, 906 F.2d 555, 558 (11th Cir. 1990).

On appeal, Davis argues that the district court abused its discretion when it denied his request for a bill of particulars and that he was “actually surprised at trial.” Appellant Br. 52. The government responds that the superseding indictment specifically informed Davis of the charges against him under 18 U.S.C. §§ 1503 and 1512(b)(1) and identified the conduct that violated those provisions: Davis’s call to D.D. on October 7, 2014.

The district court did not abuse its discretion in denying Davis’s motion for a bill of particulars because the superseding indictment provided the specific information sought. Count Two of the superseding indictment provided that, on or about October 7, 2014, Davis “encouraged witness D.D. not to speak with federal law enforcement officers or prosecutors regarding the prosecution of the defendant, and attempted to prevent and dissuade witness D.D. from testifying at the trial of the defendant.” Likewise, Count Three provided that, on or about October 7, 2014, Davis “knowingly and corruptly endeavor[ed] to influence, obstruct, and impede the due administration of justice in a judicial proceeding” by knowingly encouraging witness D.D. to not speak with federal law enforcement officers or prosecutors regarding the prosecution of the defendant, and endeavor[ed] to prevent and dissuade witness D.D. from testifying at the trial of the defendant.” Accordingly, Davis had knowledge of the specific conduct that gave rise to these charges.

Davis argues that he was surprised at trial when the government introduced additional jail calls beyond the October 7, 2014 call. But Davis concedes that those calls were included in the pretrial discovery the government provided, were identified at the hearing on Davis’s motion for a continuance, and were conversations in which he participated. For these reasons, we conclude that the district court did not abuse its discretion in denying Davis’s motion.

D. Denial of Davis’s Motion for a Continuance

Next, Davis argues that the district court erred in denying his request for a continuance before trial. “Denial of a continuance is within the broad discretion of the district court and will not be overturned unless the denial is arbitrary or unreasonable.” Fowler v. Jones, 899 F.2d 1088, 1093-94 (11th Cir. 1990). In reviewing a denial of a request for a continuance under the abuse of discretion standard, the Eleventh Circuit considers several factors, including the “diligence of the party requesting the continuance,” judicial economy, fairness to the parties, including their witnesses, and the “extent to which appellant might have suffered harm as a result of the denial.” Id. at 1094.

Davis argues that it was arbitrary or unreasonable for the district court to deny his requested extension because: (1) the government disclosed four new discovery discs, which included dozens of phone calls that required days of review; and (2) he was diagnosed with mental disabilities that affected his ability to review that discovery and prepare for trial. As to the first issue, the district court made specific fact findings that Davis does not challenge on appeal. The court found that Davis participated in the phone calls, the calls were equally available to his defense team, and the government significantly narrowed the relevant portions of the discs disclosed to just two segments of a single call. As to the second issue, the district court considered Davis’s claims regarding his mental health, and found that Davis failed to explain how his mental health rendered him unable to review the portions of the phone calls at issue.

We conclude that the district court did not abuse its discretion in denying Davis’s motion for a continuance. Because the recordings at issue were equally available to defense counsel, Davis’s lack of diligence weighed against him. Although the government disclosed four new discovery discs, it identified the only portions of those discs that it intended to use at trial. There also was evidence that another continuance would inconvenience the government’s witnesses. Most importantly, however, Davis has failed to show that he was prejudiced or otherwise suffered any harm as a result of the court’s decision denying a continuance. Again, we find that the trial court acted within its broad discretion in proceeding to trial as scheduled.

E. Denial of Davis’s Objection to the Venire

Davis next challenges the district court’s decision overruling his objection to the composition of the venire. Specifically, Davis argues that the jury selection process violated his Equal Protection rights under the Fifth Amendment and the Jury Selection and Service Act, 28 U.S.C. § 1861 (“JSSA”) because the jury venire had an insufficient number of African Americans. The district court found that Davis failed to establish a prima facie case that the jury venire did not reflect a fair cross-section of the community. “We review de novo constitutional challenges to jury selection processes.” United States v. Grisham, 63 F.3d 1074, 1077 (11th Cir. 1995).

At the outset, Davis concedes that he failed to set forth a prima facie case under the Sixth Amendment, which “guarantees a criminal defendant the right to be indicted and tried by juries drawn from a fair cross-section of the community.” Id. at 1078. To establish a prima facie violation of the fair cross-section requirement, a defendant must show: “(1) that the group alleged to be excluded is a distinctive group in the community, (2) that representation of the group in venires is not fair and reasonable in relation to the number of such persons in the community, and (3) that the underrepresentation is due to systemic exclusion of the group in the jury-selection process.” Id. “To analyze whether African Americans were fairly and reasonably represented in the jury pool, we compare the difference between the percentage of African Americans in the population eligible for jury service and the percentage of African Americans in the pool.” United States v. Carmichael, 560 F.3d 1270, 1280 (11th Cir. 2009). Under Eleventh Circuit precedent, “[i]f the absolute disparity between these two percentages is ten percent or less, the second element is not satisfied.” Id. (quoting Grisham, 63 F.3d at 1078-79).

Because the census showed that the percentage of African Americans eligible for jury service was 12.1 percent, and the venire was 5.4 percent African American, Davis acknowledges that the absolute disparity is less than 10 percent. Davis further admits that he failed “to marshal ‘evidence showing that the underrepresen-tation in this case was due to systematic exclusion of African-Americans.’ ” Appellant Br. 59, n.2 (quoting United States v. Clarke, 562 F.3d 1158, 1163 (11th Cir. 2009)).

We have recognized that the prima facie tests for an equal protection claim and a fair cross-section claim are “virtually identical.” Machetti v. Linahan, 679 F.2d 236, 241 (11th Cir. 1982). To establish an equal protection violation in the jury selection context, the defendant must show “(1) that he or she is a member of a group capable of being singled out for discriminatory treatment; (2) that members of this group were substantially underrepresented on the venire; and (3) that the venire was selected under a practice providing an opportunity for discrimination.” Grisham, 63 F.3d at 1081 (quoting Cunningham v. Zant, 928 F.2d 1006, 1013 (11th Cir. 1991)). While a fair cross-section claim focuses on the representativeness of the jury venire, “the focus of an equal protection claim is whether members of a discrete group have been intentionally denied the opportunity to serve on a jury.” Id. If the defendant sets forth a prima facie case, the burden shifts to the government “to dispel the inference of intentional discrimination.” Id.

Davis states that, “[b]ased on the showing he made at trial, ... his Fifth Amendment and statutory rights have been violated.” Appellant Br. 61. But Davis points to no evidence in the record suggesting that there was any intentional discrimination in the jury selection process. Although Davis cites the publicly-available website that provides jury selection information for the Middle District of Florida, he fails to identify anything about the jury selection process that could be considered “not racially neutral” or “susceptible to abuse as a tool of discrimination.” United States v. Perez-Hernandez, 672 F.2d 1380, 1387 (11th Cir. 1982) (“[I]n order to complete the presumption of discrimination raised by the statistical evidence, the defendant must show that the selection procedure is not racially neutral or is susceptible to abuse as a tool of discrimination.”).

Davis also argues that the venire violated the JSSA, which provides that “all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.” 28 U.S.C. § 1861. The JSSA requires that each district court “devise and place into operation a written plan” to protect this right. 28 U.S.C. § 1863(a). “By its terms, the JSSA provides remedies only for a ‘substantial failure to comply’ with its requirements.” Carmichael, 560 F.3d at 1277 (quoting 28 U.S.C. § 1867(d)). A JSSA violation is “substantial” if it “frustrates one of the three principles underlying the Act: (1) random selection of juror names; (2) from a fair cross-section of the community; and (3) use of objective criteria for determination of disqualifications, excuses, exemptions, and exclusions.” Id.

Davis fails to present evidence or argument with respect to any of these three principles, and his concession that he cannot establish a cross-section violation precludes him from satisfying the second prong. Davis is therefore not entitled to a remedy under the JSSA. Accordingly, we conclude that the district court properly rejected Davis’s challenge to the venire.

F. Objection to Juror 14

Davis also argues that the district court erred in refusing to dismiss Juror 14 for cause after initial and rehabilitative questioning. “The decision whether to excuse a juror for cause is entrusted to the discretion of the trial judge.” United States v. Tegzes, 715 F.2d 505, 509 (11th Cir. 1983) (citation omitted). We have recognized that “there are few aspects of a jury trial where we would be less inclined to disturb a trial judge’s exercise of discretion than in ruling on challenges for cause in empaneling of a jury.” Id.

Davis admits that it is “unlikely [he] preserved any error regarding his cause challenge to Juror 14 because he failed to exercise all his peremptory challenges, request additional challenges, or move to discharge the venire panel and begin anew.” Appellant Br. 61. After the district court rejected Davis’s for-eause challenge to Juror 14, counsel for Davis declined to exercise any additional peremptory challenges and accepted the jury as presently constituted. Davis had several peremptory challenges remaining and could have used one to remove Juror 14. Because he failed to do so, Davis cannot argue that he suffered any harm due to the court’s denial of his for-cause challenge. See Heflin v. United States, 223 F.2d 371, 377 (5th Cir. 1955) (“If any error was committed in overruling the two challenges of jurors for cause, clearly there was no prejudice shown, since the record does not show that appellant [used] all of the 10 peremptory challenges to which he was entitled.”). In any event, Juror 14 indicated to the judge that he would follow the court’s instructions when weighing and evaluating the testimony, and the trial court was in the best position to determine Juror 14’s ability to be a competent juror. We find no abuse of discretion in the court’s decision denying the challenge for cause.

G. Exclusion of Evidence

Finally, Davis argues that the district court erred in preventing him from introducing a letter Wilson wrote to him into evidence. As noted, after Wilson testified about Davis’s possession of the firearm, defense counsel' moved to introduce a letter Wilson wrote to Davis after he was arrested. The government objected based on relevance and lack of foundation. Defense counsel explained that the letter was necessary to establish Wilson’s bias — that she was angry with Davis and had reason to get him arrested. The district court sustained the government’s objection, finding that defense counsel could use the letter to cross-examine Wilson, but could not have her read the letter into the record. Wilson then testified that she was angry with Davis when she wrote the letter and that she and Davis had been arguing at that time about their respective relationships with other people.

We review evidentiary rulings for an abuse of discretion. United States v. Suarez, 601 F.3d 1202, 1215 (11th Cir. 2010). “Even if the district court abused its discretion by admitting or excluding evidence, the conviction must be affirmed unless the defendant can meet its burden of demonstrating that substantial rights were affected by the error.” Id. (quoting United States v. Saget, 991 F.2d 702, 709 (11th Cir. 1993)).

Davis argues that the district court abused its discretion by excluding Wilson’s letter because it was relevant to demonstrate her state of mind. Although Wilson subsequently admitted her anger, Davis argues that her testimony did not render the exclusion of the letter harmless. But the district court permitted defense counsel to use the letter during cross-examination and Wilson testified, consistent with its contents, that she was, in fact, angry with Davis at the time of his arrest. Defense counsel had an opportunity to cross-examine Wilson using the letter and Davis has not shown that the jury lacked sufficient information to assess Wilson’s credibility. See United States v. Leavitt, 878 F.2d 1329, 1339 (11th Cir. 1989) (“A court may restrict cross-examination so long as the jurors receive sufficient information to assess the credibility of the witness.”). The district court did not abuse its discretion in refusing to admit Wilson’s letter into evidence.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s final judgment.

AFFIRMED.

      . Davis also asks this court to "confirm” the reasonableness of his sentence. As the government points out, however, Davis does not challenge his sentence on appeal. Indeed, he concedes that the court "correctly calculated his guidelines range, considered the 18 U.S.C. § 3553(a) factors, sentenced him within the maximum penalties at the low end of his guideline range, and understood it had discretion to depart or vary downward below that range.” Appellant Br. 66-67. Because Davis does not challenge any part of his sentence, we need not address this issue.

      . When § 1512 was enacted in 1982, it dealt only with the use or threat of force against a witness. As discussed below, Congress added a ban on corrupt persuasion in a 1988 amendment. Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7029(c) (1988).

      . This court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

      . Davis filed a supplemental letter brief arguing that this concession was "incorrect because criminal defendants need not take such actions to preserve a cause objection for appeal.” Because we conclude that reversal is not warranted on the merits, we need not address this issue further.