A divided federal appellate court has ruled that a plaintiff must prove “but for” causation for a retaliation claim to survive under the Family and Medical Leave Act (FMLA). In so ruling, the court concluded that the plaintiff presented no genuine issue of material fact as a matter of law and rejected the “motivating factor” standard that has been embraced by some courts to allow the plaintiffs to survive a defendant’s motion for summary judgment in Title VII of the Civil Rights Act actions. ABA Litigation Section leaders believe that the “but for” causation standard presents challenges for plaintiffs’ counsel but recommend employers keep records of employee conduct to better withstand a retaliation claim.
In Lapham v. Walgreen Co., the plaintiff—a single mom with a son who has severe epilepsy—worked for the defendant in various service roles for over a decade beginning in 2006. Initially, the plaintiff was hired as a service clerk and had additional roles as a photo specialist technician and a management trainee. From 2011 through 2016, the plaintiff received intermittent FMLA leave on an annual basis so that she could care for her son. During that period, the plaintiff received mixed performance ratings, but mostly “poor” or “partially achieving” ratings. In late 2015, the plaintiff asked another employee to complete a task by himself, which was against company policy. The plaintiff was disciplined with a formal notice for that policy violation.
After her 2016 evaluation, the plaintiff requested a transfer to a defendant store closer to her home. At the new store, pursuant to company policy, the plaintiff was placed on a performance improvement plan (PIP) based on her 2016 “partially achieving” rating at the old store. In 2017, the plaintiff submitted an FMLA leave request and complained to the manager about the delay in responding to it. The defendant’s Unpaid Leave Department sent a clarification letter to the plaintiff about the start date of her leave request, but sent the letter to plaintiff’s old address, despite the fact that the plaintiff had provided her new address on the leave request form.
Subsequently, the plaintiff asked the store manager for a day off to take her son to a doctor’s appointment, but the manager denied her request. When the plaintiff learned that her FMLA request had been denied because she had not responded to the clarification letter—which had been sent to the wrong address—the plaintiff forthwith updated the form with the requested date. While the plaintiff’s FMLA request was pending, her manager contacted the defendant’s human resources (HR) department on several occasions and shared that the plaintiff was disregarding instructions from management. HR instructed the plaintiff’s manager that it would support firing the plaintiff if there were documented instances of insubordination and dishonesty.
After discussions with HR, the plaintiff’s manager created a record of instances when the plaintiff was dishonest and insubordinate. Around the same time, the plaintiff complained to her manager about the delay in approving her FMLA request. The manager then approved the FMLA request and sent it to HR for final approval. While the request was pending, the plaintiff called HR alleging her manager was retaliating against her by not signing the leave request in a timely manner. Soon thereafter, the manager informed the plaintiff that she was being terminated. HR then denied the plaintiff’s FMLA request on the basis that she had been terminated.
After an unsuccessful litigation in the district court on the FMLA retaliation claim, among other claims, the plaintiff appealed. The single dispositive issue in the U.S. Court of Appeals for the Eleventh Circuit was whether the district court properly relied on the U.S. Supreme Court precedent of University of Texas Southwestern Medical Center v. Nassar to conclude that “but for” causation is the proper standard for deciding a retaliation claim under the FMLA.
The appellate court began its analysis by noting that, when a plaintiff alleges retaliation based on circumstantial evidence, the McDonnell Douglas Corp v. Green burden-shifting test applies. Under McDonnell-Douglas, the plaintiff bears the burden of establishing a prima facie case of retaliation by showing (1) she was engaged in protected conduct, (2) suffered an adverse employment action, and (3) there is a cause between (1) and (2). Next, the court noted that if the plaintiff met that initial burden, then the burden shifts to the defendant to produce a legitimate reason for the employment action. If the defendant meets that production burden, says the court, then the plaintiff must show that the defendant’s proffered reason was a pretext for the adverse employment action that the plaintiff suffered.
With the prior framework established, the court then applied Nassar—which held that Title VII retaliation claims must meet a “but for” causation standard—that is, in the absence of a plaintiff’s retaliation claim, the plaintiff would not have suffered an adverse employment action. Citing dicta in Nassar, the Eleventh Circuit noted that “the default causation standard in tort law. . . has been the but for standard.” Next, the court observed that the Nassar court compared Title VII’s retaliation provision with its discrimination provision, which “expressly establishes a motivating-factor causation standard.” Quoting the relevant discrimination subsection of Title VII, the court noted the inclusion of “motivating factor” in that subsection. Therefore, said the court, Congress did not intend for retaliation claims under Title VII to be under the “motivating factor” standard, but instead the default “but for” standard.
Observing that the retaliation provision in both Title VII and the FMLA are “sufficiently similar,” the court reasoned that Nassar served as a useful guide to interpret the FMLA in that the “because of” language in both statutes speaks to “but for” causation. Finally, applying the U.S. Supreme Court precedent of Chevron v. Natural Resources Defense Council, the court rejected the plaintiff’s argument that, because the FMLA defers to the Department of Labor (DOL) on certain interpretive aspects of the FMLA, so, too, should the court. Here, the court reasoned that the first prong of the Chevron deference is not met because “Congress clearly chose to embrace the default but-for causation standard” in the FMLA, thereby making deference to DOL interpretation inapplicable.
Based on the foregoing law, the court concluded that the plaintiff suffered no retaliation as a matter of law because the plaintiff was terminated for insubordination and dishonesty. And the plaintiff, as a matter of law, could not show that she would not have been terminated “but for” her efforts to exercise her FMLA rights. In a terse paragraph, the dissenting judge would have held that genuine issues of material fact exist on the plaintiff’s retaliation claim.
“I think the court properly applied this standard due to the facts of the case and overall past precedent,” states Andrea E. Cook, Dallas, TX, cochair of the Litigation Section’s Employment & Labor Relations Law Committee. The lesson here, she counsels, is that “employers must have clear documentation when terminating an employee, particularly when there are any questions related to retaliation or if they believe a retaliation claim will arise.”
As to the “motivating factor” standard that has been adopted by other circuit courts to resolve FMLA retaliation claims, Catherine Scott, Boston, MA, cochair of the Sound Advice Subcommittee of the Section’s Appellate Practice Committee, observes that “the motivating factor test is a lesser test because an employee need only show that an adverse action ‘may’ have occurred if not for a leave.” She continues, “The ‘but-for’ standard requires an employee to show that, absent the leave of absence, the adverse action would not have been taken.” Here, the latter standard is harder to vault, especially in the typical work situation “where an employee has issues pre-dating the leave of absence,” concludes Scott.
