An employee bringing a retaliation claim under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-54 must prove that the retaliation was the but-for cause of termination. Lapham v. Walgreen Co., 2023 WL 8609244 (11th Cir. 2023).
Doris Lapham, an employee of Walgreens for almost ten years, sought leave under FMLA so that she could take care of her disabled son. During her tenure at Walgreens, Lapham had mixed performance reviews, ranging from low to average performance. After one particular incident, Walgreens put Lapham on a performance improvement plan. Lapham subsequently asked for and received a transfer to a new store. Lapham submitted an FLMA request, through her manager, shortly after the transfer. The department responsible for FMLA requests sent Lapham a letter asking for clarification of her request, but Lapham did not receive it because the letter was sent to an old address. After Lapham did not provide the clarification, Walgreens denied the request. Lapham discovered that her request had been denied, and she submitted a new one, again through her manager. While that request was pending, her manager contacted HR to discuss Lapham’s performance, indicating that Lapham was disregarding instructions, lying to management, and sabotaging the store. Walgreens terminated Lapham and then denied her FMLA leave request.
Lapham brought suit in state court in Florida. Walgreens removed the case to federal court. Lapham’s claims consisted of retaliation in violation of the Florida Private Sector Whistleblower Act (“FWA”), retaliation in violation of FMLA, interference in violation of FMLA, and retaliation in violation of the FCRA. Walgreens moved for summary judgment on the FWA and FMLA claims. The district court held that the proper standard for determining causation for retaliation claims is but-for causation and granted summary judgment on the FMLA and FWA claims. Lapham appealed.
In an opinion written by Judge Lagoa and joined by Judge Wilson and Judge Branch, the court, splitting from other circuits, held that but-for causation is the causation standard for FMLA and FWA retaliation claims. Starting with the text of the FMLA statute, the court emphasized that the retaliation provision provides that it is unlawful for any employer to discharge or discriminate against any individual “for opposing any practice made unlawful by this subchapter.” The court explained that the Supreme Court’s decision in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013) indicates that this type of language carries with it a but-for standard. Lapham argued that the Department of Labor provided for a more lenient standard, and thus the court should defer to that standard. The court disagreed, holding that Congress had spoken by using language indicating that but-for causation was required, so courts could not defer to an agency’s contrary interpretation.
The court then analyzed whether Lapham raised any triable issue of fact as to her retaliation claims. The but-for test, the court held, requires courts to change one thing at a time and see if the outcome changes. If the outcome changes, the isolated factor is a but-for cause. The court held that Lapham failed to produce sufficient evidence showing that Walgreen’s proffered reasons for termination were pretext for retaliation. Walgreens provided evidence that Lapham was terminated for subordination and dishonesty, and Lapham did not provide any evidence to refute Walgreen’s claims. The court therefore affirmed the district court’s grant of summary judgment in favor of Walgreens.