By Joshua A. Rodine and Katie Farr

Seyfarth Synopsis: The United States Court of Appeals for the Eleventh Circuit affirmed a district court’s decision that “but-for” is the proper causation standard for FMLA retaliation claims addressed within the burden-shifting framework. The Eleventh Circuit’s decision acknowledges that it potentially creates a Circuit split over the threshold a plaintiff must meet to unlawful retaliation in a case based on circumstantial evidence. The “but-for” standard is a higher threshold than the “motivating factor” standard applied by other Circuits. Lapham v. Walgreen Co.

Case Background

Doris Lapham was a long-term employee of Walgreen Co. After having taken intermittent leave under the Family and Medical Leave Act (FMLA) for a number of years to care for her severely epileptic son, she was terminated for insubordination and dishonesty.

Lapham claimed that her termination was unlawful in a number of ways: (1) Walgreens allegedly interfered with Lapham’s attempts to take leave to care for her disabled son during her final year of employment; (2) Walgreens allegedly terminated Lapham because she requested and took FMLA leave; and (3) Walgreens allegedly fired Lapham for reporting potential violations of Florida law (i.e., retaliation). At Walgreens’s request, the district court applied the “but-for” causation standard to the retaliation claim—i.e., Lapham had to show that she would not have been terminated but-for her requesting leave. The district court granted Walgreens’s motion for summary judgment, concluding that there were no disputes of material fact as to the bases for Lapham’s termination (i.e., insubordination and dishonesty), and an absence of evidence of pretext.

The Court’s Decision

The Eleventh Circuit Court of Appeals dismissed all of Lapham’s claims. The Court’s decision focused on the causation element of Lapham’s retaliation claims, specifically whether she was required to demonstrate that her protected activities (i.e. taking leave or reporting Walgreens’ violations of Florida law) were the “but-for” cause for her termination (as opposed to a “motivating factor”). In other words, did Lapham have to prove that her protected activity was the primary reason for her termination.

After reviewing the statutory language applicable to the particular claims asserted—as well as analogous retaliation claims under Title VII—the Court declined to adopt the less stringent “motivating factor” causation standard. The Court followed prior U.S. Supreme Court pronouncements that in the absence of a contrary standard within a statute’s language, the court should presume that statute incorporates a “but-for” standard. Unlike Title VII’s discrimination provisions, which expressly include “motivating factor” language, the FMLA’s anti-retaliation provisions contain no such language. Therefore, reasoned the Court, the appropriate standard was but-for.

Lapham was unable to demonstrate “but-for” causation because, Walgreens presented undisputed legitimate, non-retaliatory, reasons for firing Lapham (i.e., insubordination and dishonesty). Specifically, Walgreens produced testimony regarding specific instances in which Lapham was insubordinate or otherwise failed to meet expectations, including call logs for her manager’s discussions with HR, and multiple performance reviews prepared by different managers establishing that, on multiple occasions, Lapham failed to complete her assigned tasks.

Best Practices for Employers At first glance, the primary significance of the Eleventh Circuit’s Lapham decision is for an employer’s attorneys; i.e., it makes clear that plaintiffs will have to satisfy a more onerous burden to avoid summary adjudication of FMLA retaliation claims. But what the decision really illustrates is the importance for employers to maintain documentation of legitimate, non-retaliatory, reasons for what might be construed as adverse employment actions.