The U.S. Court of Appeals for the Eleventh Circuit recently weighed in on the circuit-splitting debate over the proper causation standard for Family and Medical Leave Act (“FMLA”) retaliation claims. In a win for employers, the Eleventh Circuit held that the proper standard is the heightened “but-for” causation standard, rather than the “motivating factor” causation standard, leading it to affirm the district court’s grant of summary judgment in favor of defendant Walgreen Co. (“Walgreens”) against plaintiff Doris Lapham (“Lapham”) on her FMLA retaliation claim.
Background
Lapham worked for Walgreens in various roles at multiple store locations, beginning in 2006. Throughout her employment with Walgreens, Lapham exhibited a pattern of poor performance. Between 2011 and 2016, she requested and received intermittent FMLA leave on a yearly basis to provide care to her son, who suffers from severe epilepsy and requires a caregiver.
Beginning in 2017, when Lapham moved to a new store location, she again applied for intermittent FMLA leave., Due to administrative errors and some delays on the part of her manager, Walgreens did not approve her request for weeks, and as a result, denied her request for days off under the FMLA while her application was pending approval. Simultaneously, Lapham continued to perform poorly and her manager met with human resources to discuss possible termination. Finally, on April 13, 2017, a shift lead at Lapham’s store provided a written statement in which she alleged that during a shift on the weekend of April 8 and 9, Lapham instructed other employees not to perform duties that the store manager and the assistant store manager had assigned to them. Walgreens terminated Lapham for insubordination and dishonesty that same day.
Lapham thereafter filed suit, bringing multiple claims, including a retaliation claim under the FMLA. Walgreens moved for summary judgment on this claim. The district court denied the motion, finding that Lapham had presented sufficient evidence for a reasonable jury to conclude that her termination was motivated by retaliation for requesting FMLA leave, rather than any of her documented misconduct. Walgreens moved the district court to reconsider its causal analysis of the FMLA retaliation claim and to apply a “but-for” causation standard instead of a motivating factor standard. The district court granted Walgreens’ motion for reconsideration, and entered judgment in favor of Walgreens on the FMLA retaliation claim. Lapham’s appeal followed.
The Decision
On appeal, Lapham argued that within the McDonnell Douglas framework applicable to her FMLA retaliation claim, she met her initial burden to establish a prima facie case of retaliation and subsequent burden to rebut Walgreens’ supposed nondiscriminatory justifications for her termination because both require merely a “motivating-factor” showing of causation, rather than a “but-for” showing. In other words, Lapham argued that to show causation, she merely had to show her requests for FMLA leave contributed to Walgreens’ decision to terminate her, and that she had done so successfully.
The Eleventh Circuit disagreed. First, the court looked to the text of the FMLA, and found that it contained “because of” language, or equivalent language: “It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2) (emphasis added). Next, the court looked to the Supreme Court’s decision in University of Texas Southwestern v. Nassar, 570 U.S. 338 (2013), for guidance on how to interpret this language. While Nassar concerned Title VII, the court found the FMLA to be sufficiently similar to Title VII for Nassar to be especially instructive. Both statutes use “because of” language or equivalent language, and were enacted against the historic, default “but-for” causation standard. The Eleventh Circuit determined that because the Supreme Court held that the “but-for standard applied to Title VII, the same standard should be applicable to the FMLA.
After establishing “but-for” causation as the correct standard for FMLA retaliation claims, the court elaborated on what it entails, explaining that it “is established whenever a particular outcome would not have happened ‘but for’ the purported cause.” Thus, it directs the court to change one factor at a time and see if the outcome changes. “If it does, the isolated factor is a but-for cause. And if it does not, the isolated factor is not a but-for cause, and all of the other factors, taken together, are sufficient.”
In other words, Lapham would have to show that Walgreens fired her because she attempted to exercise her FMLA rights by eliminating performance concerns from the fact pattern, thereby isolating her protected activity as the only factor, and proving that Walgreens would have still terminated her. The court concluded that Lapham failed to do so, specifically holding that she failed to produce sufficient evidence showing that Walgreens’ proffered reasons for her termination were merely pretext for retaliation and that, but for her attempts to exercise her FMLA rights, Walgreens would not have fired her.
Employer Takeaways
The correct causation standard for retaliation claims has long been a topic of debate among the circuits. The Eleventh Circuit’s holding that the heightened “but-for” standard applies is a win for employers, as it is much more difficult for an employee to prove an employer would not have taken adverse action against them but for their protected activity, than to prove retaliatory animus merely contributed to the employer’s decision to take adverse action against the employee. Nonetheless, the law in different circuits varies and every retaliation case is different, so employers should proceed with caution and consult with counsel when faced with a situation that could potentially create a retaliation claim.
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