Eleventh Circuit Deepens Circuit Split Over Causation Standard For FMLA Retaliation Claims

• Published date: 09 January 2024
• Subject Matter: Employment and HR, Health & Safety, Employee Benefits & Compensation, Employee Rights/ Labour Relations
• Law Firm: Proskauer Rose LLP
• Author: Mr Evandro Gigante, Laura Fant and Mallory Knudsen

On December 13, 2023, an Eleventh Circuit panel firmly established "but-for" causation as the Circuit's causation standard for Family and Medical Leave Act (FMLA) retaliation claims. Courts across the nation have adopted different standards, with the Eleventh Circuit decision only further deepening the circuit split on the topic.

Background

In Lapham v. Walgreen Co., No. 21-10491 (11th Cir. Dec. 13, 2023), an employee of Walgreens filed suit against the corporation, alleging unlawful termination based on retaliation for her FMLA leave request. The plaintiff frequently used intermittent FMLA leave to care for her son, who was diagnosed with two forms of epilepsy. The company asserted that, irrespective of her leave requests, the plaintiff continually had performance issues during her almost ten years of employment with the company. Her annual performance reviews varied, from not meeting expectations to partially meeting expectations. The company further asserted that plaintiff exhibited other performance issues, such as actively disregarding instructions, lying to management, and sabotaging the store. At one point, the plaintiff was placed on a 60-Day Performance Improvement Plan ("PIP"). About a month after being placed on the PIP, she requested intermittent FMLA leave spanning a year-long period. While the leave request was still pending, the plaintiff's manager terminated her on the stated basis of insubordination and dishonesty.

The plaintiff filed suit against Walgreens in state court, and Walgreens timely removed the case to the Middle District of Florida. The district court originally denied Walgreens' summary judgment motion and ruled that plaintiff's FMLA retaliation claim should go to trial because, applying the "motivating factor" standard, the plaintiff had presented sufficient evidence for a jury to find that her FMLA leave request was at least a motivating factor in the company's termination decision.

Walgreens filed a motion for reconsideration, arguing that the "but-for" causation standard - and not the motivating factor standard - applies to FMLA retaliation claims. On reconsideration, the district court agreed with Walgreens that but-for causation is the proper causation standard for FMLA retaliation claims in light of the Supreme Court's reasoning in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013), in which the Court held that the proper standard of...