Tristan Tanner v. Stryker Corporation of Michigan

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-14188

____________________

TRISTAN TANNER,

Plaintiff-Appellant,

versus

STRYKER CORPORATION OF MICHIGAN,

Defendant- Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:21-cv-02293-VMC-TGW

____________________

Before JILL PRYOR, BRANCH, and HULL, Circuit Judges.

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2 Opinion of the Court 22-14188

JILL PRYOR, Circuit Judge:

Tristan Tanner appeals the district court’s order granting

summary judgment in favor of his former employer, Stryker

Corporation of Michigan, on Tanner’s claims for interfering with

his rights under the Family and Medical Leave Act (“FMLA”) and

for retaliation for his exercise of those rights. After careful review,

and with the benefit of oral argument, we affirm.

I. BACKGROUND

Because we are reviewing the district court’s grant of

summary judgment in Stryker’s favor, we recite the facts in the

light most favorable to Tanner and note where any facts are

disputed. See infra Part II.

A. Stryker, Tanner’s employment, and Stryker’s leave

policies

Stryker is a medical technology company that sells products

“in orthopaedics, medical and surgical, and neurotechnology and

spine designed to improve patient and hospital outcomes.” Doc.

33-1 at 1. 1 Tanner became a Stryker employee in 2020, after the

company acquired his former employer. Tanner’s position at

Stryker was “Hub Material Handler II,” which made him

responsible for “delivering surgical equipment to hospitals and

surgical centers, retrieving and inspecting equipment after use,

1 “Doc.” numbers are the district court’s docket entries.

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tracking inventory[,] and placing orders.” Doc. 45 at 1-2 (internal

quotation marks omitted). He was based out of Tampa, Florida.

Tanner’s direct supervisor was Field Operations Manager

Timothy Eckroad. Tanner’s work also was overseen by HR

Business Partner Laura-Ann Egidio.

Stryker’s employee handbook, a copy of which Tanner

received, contained an attendance policy with different rules

depending on the type of employee. Stryker had three categories

of employees for purposes of its attendance policy: (1) non-exempt

employees with set shifts, (2) customer-facing, non-exempt

employees or non-exempt employees without set shifts, and

(3) exempt employees. There is some dispute about how Tanner’s

supervisors should have classified him for purposes of the

attendance policy. It is undisputed that Tanner is not an exempt

employee, but there was confusion about whether he had set shifts

or a customer-facing job. Eckroad believed that Tanner’s job was

customer-facing. Egidio believed that Tanner was a non-exempt

employee with a set shift.

According to the employee handbook, for non-exempt

employees with set shifts, certain types of misconduct led to

accrual of “occurrence points.” Doc. 34-1 at 43. Absence from work

without taking an available leave day resulted in the accrual of two

points. The handbook specified disciplinary actions based on

accrual of occurrence points, stating, “Accumulation of occurrence

points within a rolling 12-month period will generally result in the

following disciplinary actions:” a verbal warning, for one point; a

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first written warning, for two points; a second written warning, for

four points; and termination, for five points. Id. at 43–44.

Eckroad was responsible for giving appropriate warnings to

Tanner under the attendance policy. Egidio was responsible for

deciding whether Tanner would be terminated for violating the

attendance policy.

Stryker had FMLA and parental leave policies, which were

also laid out in the employee handbook. The FMLA policy

provided Stryker employees with 12 weeks of unpaid leave and

protection from termination during the leave period. The

employee handbook stated that FMLA leave was “available to

employees who need time off . . . for childbirth or adoption and for

child bonding.” Doc. 33-3 at 5. Stryker Leaves Specialist Courtney

Linn testified that under the FMLA policy “a father’s FMLA leave

for the birth of his child begins on the day of his child’s birth. If a

father is absent prior to the birth of his child, he must use his”

personal time off (“PTO”) or “sick days to cover these absences.”

Id. at 2. Stryker’s parental leave policy provided six weeks of paid

leave upon the birth of a child. The two leave policies worked in

tandem. For example, a parent who was eligible for both types of

leave could layer his paid parental leave on top of his unpaid FMLA

leave, and as a result he would be paid for half of his FMLA leave.

B. Tanner’s request for FMLA leave

Tanner and his former girlfriend, Amanda Shelburn, were

expecting a child in the summer of 2021. In January 2021, Shelburn

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moved from Tampa to Connecticut, where she planned to have

the baby. Tanner initially believed the child to be due on August 1.

On June 21, 2021, Tanner contacted Linn to request

paternity leave for the birth of his child. Linn confirmed that

Tanner was eligible for FMLA and parental leave benefits. A few

days later, on July 5, Tanner emailed Linn and Eckroad with a

“formal[] . . . request for paternity leave starting the 26th of July.”

Doc. 34-1 at 35. He stated that his child’s “anticipated arrival is the

last week of July/first week of August” and announced that he

would be “relocating to Connecticut for the duration of [his]

requested time off.” Id.

On July 8, Linn sent Tanner a notice that he was approved

for FMLA leave and parental leave for the birth of his child. The

notice outlined Tanner’s “anticipated FMLA leave schedule,”

which ran from July 26 to October 17, 2021, and provided: “The

FMLA requires that you notify us as soon as practicable if the dates

of scheduled leave change, are extended, or were initially

unknown.” Doc. 33-3 at 8–9.

Tanner was told multiple times that his FMLA leave would

not begin until his child was born. For example, on July 9, Linn

explained to him in writing that Stryker’s FMLA and parental leave

benefits “apply once the baby arrives. Therefore if you plan on

leaving early, you are required to just use a sick or vacation day.”

Doc. 34-1 at 38. On July 16, Linn explained to Tanner in writing,

“Once the baby arrives, the leave will be effective that day and be

processed as long as I have the proof of birth.” Id.

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C. Tanner’s absences before the birth of his child and

eventual termination

By July 20, Tanner knew that the child’s due date was “going

to be closer to August 12th” than to the first of the month. Id. at 12.

Nevertheless, on Friday, July 30, he told Eckroad that he would be

absent the following week because his daughter was expected to

be born any day that week. Tanner acknowledged that (1) “HR said

the paternity leave doesn’t start till the actual birth so . . . I have to

use my PTO/sick days till that day” and (2) he had only four days

of PTO left. Id. at 53–54.

But Tanner did not leave for Connecticut immediately;

instead, he testified, between Friday, July 30, and the following

Sunday, August 8, he was “[p]lanning, packing, [and] preparing for

the trip” to Connecticut. Id. at 22. He used his four remaining days

of PTO and one day of sick leave for his absence that week.

On Sunday, August 8, Tanner left for Connecticut. Between

that date and the day the child was born (11 days later, on

August 19), Tanner spent his days “staying at the hotel” in

Connecticut and “dr[iving] around some of the neighborhoods” to

see if he could see himself relocating there sometime in the near

future. Id. at 22. He used sick leave for August 9 through 12. 2

2 Tanner did not represent that he was sick when he took this sick leave.

However, per Linn’s instructions, he was permitted to use sick leave before

the child’s birth.

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By Friday, August 13, Tanner was out of sick leave and PTO.

So, when he missed work that day, he accrued two occurrence

points under Stryker’s attendance policy. On Monday, August 16,

he emailed Linn, telling her, “I used up my PTO/sick days.

Currently in Connecticut. [Shelburn] is coming up to 42 weeks

[pregnant] and doctors are going to induce her on the 18th.” Id. at

62. He asked, “What [d]o I do till then? And will my PTO [sic] only

start on the 18th?” Id. Linn responded, for “[t]he time before your

baby arrives, you will need to work with your [manager] and HR

business partner to determine how you will take [time] off and use

your vacation/sick time.” Id. She told him, “Once the baby arrives,

you will be able to use your FMLA/Parental leave time.” Id.

Tanner did not work on August 16, and he had no remaining leave,

so he accrued another two occurrence points, bringing his total

accrued points to four.

The next day, Tuesday, August 17, Tanner emailed Egidio,

asking if she could “help . . . figure this out.” Id. at 61. He asked,

“Am I able to go over the PTO limit on this to avoid penalties and

also to try [to] maintain my basic income this week[?]” Id. Egidio

responded, “I will talk to [Eckroad] today. If you do not have time

to cover your absence, you will accrue points to cover any time off

of work. We will call you at some point to discuss. Did you get any

type of leave covered?” Id. Tanner responded, “I’ll just take points

then as nothing else I can do. Not sure why the birth leave only

starts the day you submit the birth certificate. Mother is in

Connecticut so I had to leave Florida the week she was due and of

course nothing goes to plan and she is almost 2 weeks over now.”

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Id. Tanner did not work on August 17, and he had no remaining

leave, so he accrued another two occurrence points, bringing his

total accrued points to six.

Although Shelburn’s doctor had intended to induce labor on

the following day, August 18, she went into labor naturally that

day. Tanner accrued another two occurrence points that day,

bringing his total to eight points. Shelburn gave birth on August 19.

Tanner notified Eckroad that the baby had arrived, and

Eckroad asked him “to jump on a call the following day.” Id. at 27.

Tanner asked Eckroad if “this [is] about points,” and Eckroad

affirmed that it was. Id. at 28. Tanner believed he was going to get

a warning. Also that day, he emailed Linn a photo of the baby and

said, “My manager text[ed] me that I’m already at 8 points. So not

sure what to do at this point.” Id. at 63–64. Linn responded, “If your

baby was born today, that means your FMLA/parental leave kicks

in and therefore you are job protected.” Id. at 63.

Although it is undisputed that Tanner had notice that he had

been accruing occurrence points and that his manager wished to

speak with him about the points he had accrued, he was not given

an oral or written warning pursuant to the attendance policy.

Stryker Manager Norma Barber, who was responsible for creating

Stryker’s leaves-of-absence policies, testified that she believed

Tanner was entitled to “fair warning” that his job was in peril. Doc.

34-5 at 17.

The call on August 20 was attended by Tanner, Eckroad, and

Egidio. Only Egidio spoke. Tanner testified that she said,

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“Congratulations on the birth of your child,” and “Effective today,

. . . you’re no longer with Stryker,” or “You’re terminated from

your position.” Doc. 34-1 at 27. Egidio told Tanner “that his

employment was terminated due to his unexcused absences.” Doc.

33-1 at 3; see Doc. 34-1 at 27 (Tanner acknowledging that he

thought Egidio “might have touched on unexcused absence.”).

Egidio testified that she did not make any decisions about Tanner’s

employment, including the decision to terminate him, based on his

request for or use of FMLA leave.

D. Tanner’s FMLA lawsuit

Tanner sued Stryker for interference with FMLA rights

(Count 1) and FMLA retaliation (Count 2). At the close of

discovery, Stryker moved for summary judgment on both counts.

The district court granted Stryker’s motion. The court first

explained that Tanner was not entitled to take FMLA leave for his

absences before his child’s birth. “By outlining several situations in

which employees are entitled to leave prior to the birth of a child,

[like an exception for a pregnant parent whose ‘condition makes

her unable to work,’ 29 C.F.R. § 825.120(a)(4),] Congress excluded

the possibility that the FMLA entitles employees to leave prior to

the birth in other circumstances.” Doc. 45 at 14. And “Tanner’s case

does not fit within any of the circumstances Congress considered

worthy of FMLA leave prior to the birth of a child.” Id. at 15. 3

Recognizing that “Tanner faced a difficult situation in trying to

3 Although the district court attributed these exceptions to Congress, they

appear instead in regulations promulgated by the Department of Labor.

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predict when to begin his leave,” the court concluded that he

nonetheless “was not entitled to take FMLA leave prior to the

birth.” Id. Thus, the court found, as a matter of law Tanner’s FMLA

leave “did not begin until August 19, 2021.” Id.

Given this conclusion, the court rejected Tanner’s

retaliation and interference claims. As to FMLA retaliation, the

court explained that Tanner had no direct evidence of retaliation

because he was not entitled to take or was not on FMLA leave

when the termination decision was made. Turning to

circumstantial evidence of retaliation, the district court concluded

that Tanner had made out a prima facie case of retaliation—he had

engaged in protected activity, suffered an adverse employment

action, and had evidence of causation because he was terminated a

day after he began his FMLA leave. But, the court determined,

Stryker had “produced legitimate, non-discriminatory reasons” for

terminating Tanner (his accrual of eight occurrence points), and

Tanner had “not shown a genuine issue of material fact regarding

pretext.” Id. at 18.

As to interference, the district court concluded that Stryker

had “established its affirmative ‘same decision’ defense.” Id. at 26.

That is, “Stryker could have terminated Mr. Tanner for accruing

eight occurrence points due to repeated unexcused absences,

regardless of whether he was about to begin FMLA leave.” Id. at

27.

This is Tanner’s appeal.

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II. STANDARD OF REVIEW

“We review the district court’s grant of summary judgment

de novo, applying the same legal standards as the district court.”

Batson v. Salvation Army, 897 F.3d 1320, 1325 (11th Cir. 2018).

“Summary judgment is appropriate only ‘if the movant shows that

there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.’” Id. at 1326 (quoting

Fed. R. Civ. P. 56(a)). We must draw all reasonable inferences in

favor of the non-movant. Id. However, “a mere scintilla of

evidence in support of the nonmoving party will not suffice to

overcome a motion for summary judgment.” Young v. City of Palm

Bay, 358 F.3d 859, 860 (11th Cir. 2004).

III. DISCUSSION

The FMLA provides eligible employees with 12 weeks of

(typically unpaid) “leave during any 12-month period . . . [b]ecause

of the birth of a son or daughter of the employee and in order to

care for such son or daughter.” 29 U.S.C. § 2612(a)(1)(A). The

FMLA protects an employee’s job while he is on leave by

establishing his right to be restored to the position he held when

his leave began (or an equivalent position). See id. § 2614(a)(1)(A)–

(B).

The FMLA makes it unlawful for employers “to interfere

with, restrain, or deny the exercise of or the attempt to exercise,

any right provided under [the FMLA].” Id. § 2615(a)(1). We have

recognized that the FMLA prohibits employers both from

interfering with employees’ rights under the FMLA (interference

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claims) and from retaliating against employees for exercising their

rights under the FMLA (retaliation claims). See Strickland v. Water

Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1206 (11th

Cir. 2001); 29 C.F.R. § 825.220(c) (stating that the FMLA “prohibits

an employer from discriminating or retaliating against an

employee or prospective employee for having exercised or

attempted to exercise FMLA rights”).

Tanner argues that the district court erred in concluding that

he was not entitled to FMLA leave in the days before his child’s

birth. He asserts that the FMLA must be read to cover pre-birth

leave; otherwise, its benefits would be rendered a nullity. Because

he was entitled to and had invoked FMLA leave on the days for

which Stryker assessed him occurrence points based on his absence

from work, he argues, he has direct evidence of FMLA retaliation

and interference. Alternatively, he argues that he has

circumstantial evidence of both FMLA violations.

We first address whether Tanner’s absences before the birth

of his child fall within the FMLA’s leave benefits. Because we

conclude that they do not, we next analyze whether he has

provided circumstantial evidence of retaliation and interference

such that he can avoid summary judgment. There too, we

conclude that he has not.

A. The FMLA’s coverage for Tanner’s absences

According to Tanner, the “critical legal issue” in this case is

whether “the FMLA provide[s] protected leave to an employee ‘for

the birth of a child’ before the child is born.” Appellant’s Br. 22. The

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answer to that question is a qualified “yes.” It is also too broad a

question for the facts at issue here. The question in this case is quite

narrow: does the FMLA provide an expectant parent who is neither

pregnant nor married to a pregnant spouse with pre-birth leave so

that he may await the child’s birth away from work? Again, it is

undisputed that during the four days he was not working and for

which he claims entitlement to FMLA leave, Tanner was in

Connecticut waiting for the child to be born. The answer to that

question, which is informed by the “yes” answer to the first, is

“no.”

Congress authorized the Department of Labor (“DOL”) to

issue regulations implementing the FMLA. 29 U.S.C. § 2654. The

DOL regulations state that “[b]oth parents are entitled to FMLA

leave for the birth of their child.” 29 C.F.R. § 825.120(a)(1). The

regulations further provide that “[b]oth parents are entitled to

FMLA leave to be with the healthy newborn child (i.e., bonding

time) during the 12-month period beginning on the date of birth.

An employee’s entitlement to FMLA leave for a birth expires at the

end of the 12-month period beginning on the date of the birth.” Id.

§ 825.120(a)(2).

As to the first question—whether the FMLA provides pre-

birth leave—it does. “Circumstances may require that FMLA leave

begin before the actual date of birth of a child.” Id. § 825.120(a)(4).

“The expectant mother is entitled to FMLA leave for incapacity

due to pregnancy, [or] for prenatal care.” Id.; see id. (“An expectant

mother may take FMLA leave before the birth of the child for

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prenatal care or if her condition makes her unable to work.”). “A

spouse is entitled to FMLA leave if needed to care for a pregnant

spouse who is incapacitated or if needed to care for her during her

prenatal care.” Id. § 825.120(a)(5). 4

Elsewhere in the regulations, the DOL has provided pre-

birth leave for adoptive and foster parents. “Employees may take

FMLA leave before the actual placement or adoption of a child if

an absence from work is required for the placement for adoption

or foster care to proceed.” Id. § 825.121(a)(1). “For example, the

employee may be required to attend counseling sessions, appear in

court, consult with his or her attorney or the doctor(s) representing

the birth parent, submit to a physical examination, or travel to

another country to complete an adoption.” Id.

Tanner argues that the FMLA covered the days he was

absent from work and for which he accrued points because “those

four absences were necessary if he was to be there for the birth of

his daughter.” Appellant’s Br. 23. But Tanner’s claim of entitlement

to pre-birth FMLA leave does not fit within any of the exceptions

enumerated in the DOL regulations. So Tanner’s argument leads

to the second question: whether the FMLA provided him, an

expectant parent who was neither pregnant nor married to a

pregnant spouse, with pre-birth leave so that he could await the

child’s birth in Connecticut.

4 Tanner is not a spouse under this provision, and he does not argue that he

should be entitled to its benefits per se.

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Where a case turns on the interpretation of a statute, we

begin “with the words of the statutory provision.” Harris v. Garner,

216 F.3d 970, 972 (11th Cir. 2000) (en banc). “In interpreting written

law, our duty is to determine the ordinary public meaning of the

provision at issue.” Heyman v. Cooper, 31 F.4th 1315, 1319 (11th Cir.

2022) (internal quotation marks omitted). “The canons of

construction often play a prominent role in that endeavor, serving

as useful tools to discern that ordinary meeting.” Id. (internal

quotation marks omitted); see United States ex rel. Hunt v. Cochise

Consultancy, Inc., 887 F.3d 1081, 1089 (11th Cir. 2018) (same). “In

considering the text, we bear in mind that a provision that may

seem ambiguous in isolation is often clarified by the remainder of

the statutory scheme.” Hunt, 887 F.3d at 1088 (alteration adopted)

(internal quotation marks omitted). “We construe regulations in

much the same way we interpret statutes, so we start with the

text—and, if we find it clear, we end there as well.” Young v. Grand

Canyon Univ., Inc., 980 F.3d 814, 818 (11th Cir. 2020) (internal

quotation marks omitted). 5

The FMLA provides leave and job protection “[b]ecause of

the birth of a son or daughter of the employee and in order to care

for such son or daughter.” 29 U.S.C. § 2612(a)(1)(A). The United

5 We recognize that the United States Supreme Court is poised to address the

scope of agency deference in Loper Bright Enterprises v. Raimondo, No. 22-451.

Neither party here argues that the DOL regulations are not due deference—

rather, both sides contend that the regulations make their respective positions

clearly correct. We therefore need not address any possible impact of Loper

Bright on our caselaw or await a decision in that case before deciding this one.

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States Supreme Court has repeatedly explained that “the ordinary

meaning of ‘because of’ is ‘by reason of’ or ‘on account of.’” Univ.

of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 350 (2013) (citing Gross

v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009)); see Bostock v. Clayton

Cnty., 590 U.S. 644, 656 (2020) (same). “In the language of law, this

means that . . . [the] ‘because of’ test incorporates . . . but-for

causation.” Bostock, 590 U.S. at 656 (citing Nassar, 570 U.S. at 346).

Here, then, the FMLA’s text plainly provides that “the birth

of” a child triggers leave and job protection. 29 U.S.C.

§ 2612(a)(1)(A); see Pereda v. Brookdale Senior Living Cmtys., Inc., 666

F.3d 1269, 1274 (11th Cir. 2012) (“It is axiomatic that the delivery

of a child is necessary in order for FMLA leave to actually

commence.”). As we explained, the DOL regulations provide

enumerated exceptions to this rule. Where a scheme “includes

particular language in one section . . . but omits it in another

section,” we generally presume that the omission is intentional and

purposeful. United States v. Pate, 84 F.4th 1196, 1202 (11th Cir. 2023)

(en banc) (internal quotation marks omitted); see Young, 980 F.3d at

818. Here, we presume based on the regulations’ express inclusion

of exceptions for pre-birth leave under certain specified

circumstances that other circumstances—like Tanner’s—are not so

excepted.

Thus, we hold that the days Tanner spent awaiting the birth

of his child in Connecticut—the days for which he accrued

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occurrence points for unexcused absences—were not FMLA-

eligible. 6

Tanner makes several arguments to the contrary based on

the DOL’s regulations, but we are unconvinced. First, he says, the

regulations state that parents are entitled to FMLA leave “for the

birth of the child,” 29 C.F.R. § 825.120(a)(1), and the ordinary

meaning of “for,” as opposed to, for example, “from,” or “at,”

suggests no temporal limitation on the leave provision. This

regulation, however, “cannot be read in isolation.” Pereda, 666 F.3d

at 1274. It must be read alongside the others and the FMLA’s text.

Id.; see Hunt, 887 F.3d at 1089. Read in context with the FMLA’s

“because of” text and the enumerated exceptions for pre-birth

leave, “for the birth of the child” cannot be understood to remove

all temporal limitations on leave before a child’s birth.

Second, Tanner argues that the regulations draw a

distinction between leave for bonding time, which cannot begin

until “the date of the birth,” 29 C.F.R. § 825.120(a)(2), and leave

“for the birth of” a child, id. § 825.120(a)(1), which contains no

express temporal limitation. He asserts that the omission of a

temporal limitation in subparagraph (a)(1) indicates that it does not

have one. Third, and relatedly, Tanner argues that because

6 We need not decide whether the birth of Tanner’s child—and therefore his

FMLA leave—began on August 18, when Shelburn went into labor, or on

August 19, the day she gave birth. Even before that day, Tanner had accrued

six occurrence points—one more point than would generally result in

termination under Stryker’s attendance policy.

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§ 825.120(a)(2) covers bonding time after the child is born,

subparagraph (a)(1) would entirely overlap with (a)(2) and

therefore be superfluous if it did not cover time before the child

was born.

We disagree. To start, Tanner’s reading of the regulations is

inconsistent with the text of the statute. Section 2612(a)(1) of the

FMLA, for example, states that “an eligible employee shall be

entitled to a total of 12 workweeks of leave during any 12-month

period.” 29 U.S.C. § 2612(a)(1). Section 2612(a)(2) then clarifies that

“[t]he entitlement to leave” for the birth of a child or to care for a

newborn child “shall expire at the end of the 12-month period

beginning on the date of such birth.” Id. § 2612(a)(2). Read in

conjunction, these sections of the FMLA make clear that the 12-

month period for the birth of a child starts with the birth and ends

12 months immediately thereafter.

Even under the text of the regulations, Tanner’s argument

fails. Again, subparagraph (a)(1) of the relevant regulation states

that “[b]oth parents are entitled to FMLA leave for the birth of their

child.” 29 C.F.R. § 825.120(a)(1). The next subparagraph, (b)(2),

provides:

Both parents are entitled to FMLA leave to be with

the healthy newborn child (i.e., bonding time) during

the 12-month period beginning on the date of birth.

An employee’s entitlement to FMLA leave for a birth

expires at the end of the 12-month period beginning

on the date of the birth. If state law allows, or the

employer permits, bonding leave to be taken beyond

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this period, such leave will not qualify as FMLA leave.

. . . Under this section, both parents are entitled to

FMLA leave even if the newborn does not have a

serious health condition.

Id. § 825.120(a)(2). Tanner’s argument about the temporal

limitation in (a)(2) would be correct only if we construe it and (a)(1)

as separate silos. But they are not. Pereda, 666 F.3d at 1274. Read in

tandem, these two subparagraphs provide that FMLA leave is

available to both parents for the birth of their child and define

parameters around that leave. True, there is some overlap between

the two subparagraphs. But “[l]anguage in two separate

[subparagraphs] of a regulation isn’t superfluous merely because it

overlaps.” Young, 980 F.3d at 820. Here, subparagraph (a)(2)

contains much more information than (a)(1) does, qualifying the

scope of the leave that (a)(1) generally provides.

Fourth, Tanner argues that the FMLA should be construed

broadly in favor of employees and insists that the DOL regulations’

express provision for pre-birth leave under specified circumstances

should not be read to limit pre-birth leave under other

circumstances. Although the FMLA undoubtedly was enacted “to

entitle employees to take reasonable leave . . . for the birth or

adoption of a child,” it also was intended “to balance the demands

of the workplace with the needs of families” and to “accomplish

[these] purposes . . . in a manner that accommodates the legitimate

interests of employers.” 29 U.S.C. § 2601(b)(1)–(3). As we explained

above, we must presume that the DOL intentionally omitted the

type of pre-birth leave Tanner advocates. Pate, 84 F.4th at 1202; see

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20 Opinion of the Court 22-14188

Young, 980 F.3d at 818. That decision is consistent with the FMLA’s

purpose: accommodating employees and employers.

Fifth, and finally, Tanner argues that reading the FMLA and

its implementing regulations to exclude coverage for the days he

spent waiting for his child to be born would “lead to

incomprehensible and unjust results.” Appellant’s Br. 31. Several of

the examples he provides, however, could be covered by the

FMLA. He argues that under our interpretation of the FMLA, a

mother’s “extended labor” would not be covered. Id. He also

argues that a pregnant woman in New York who, three days before

her due date, is asked to attend a five-day conference in California,

would not be permitted to invoke FMLA leave to avoid the travel.

Not so: the regulations expressly provide for pre-birth leave for a

person who is unable to work because of pregnancy. 29 C.F.R.

§ 825.120(a)(4). Both situations would be covered.

We have little doubt that some people and families who

would benefit from FMLA leave are denied its benefits because its

reach and scope is limited. See, e.g., 29 C.F.R. § 825.104(a)

(excepting from FMLA altogether almost any employer who

employs fewer than 50 employees). And we are sensitive to the

hardship Tanner faced in trying to guess when his child would be

born and manage his remaining leave in the meantime. But, for the

reasons we have explained, we reject his reading of the statute and

regulations. The days he spent in Connecticut waiting for his child

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to be born were not covered under FMLA.7 Thus, he has no direct

evidence that his termination was in violation of FMLA’s

protections.

We next address Tanner’s retaliation and interference claims

based on circumstantial evidence.

B. Tanner’s FMLA retaliation claim

Where an employee alleges FMLA retaliation without direct

evidence of an employer’s retaliatory intent, “we apply the burden

shifting framework established in” McDonnell Douglas Corp. v. Green.

Batson, 897 F.3d at 1328–29. “To establish a prima facie case of

retaliation under [the FMLA], an employee must demonstrate

(1) that she engaged in statutorily protected conduct, (2) that she

suffered an adverse employment action, and (3) that a causal

connection exists between the two.” Id. at 1329. “Once the

employee has established a prima facie case, the burden shifts to

the employer to articulate a nondiscriminatory reason for the

adverse action.” Id. “If the employer does so, the burden shifts back

to the employee to demonstrate that the employer’s proffered

7 Congress’s decision to emphasize post-birth leave is not as harsh as it may

seem at first blush. As a practical matter, Tanner had several months’ warning

to prepare for his child’s birth, and as of July 30, Tanner had four days of PTO

and five days of sick leave for pre-birth absences. However, rather than saving

and using his leave for Connecticut, where Shelburn was, Tanner used his four

PTO days and one sick leave day (between July 30 and August 8) to stay in

Florida without working, where he packed and planned the trip. This is not to

criticize Tanner, but to point out that he had almost two workweeks of leave

to use for his pre-birth absences.

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22 Opinion of the Court 22-14188

reason was pretextual by presenting evidence sufficient to permit a

reasonable factfinder to conclude that the reasons given by the

employer were not the real reasons for the adverse employment

decision.” Id. (internal quotation marks omitted).

The district court concluded that Tanner had met his burden

to demonstrate a prima facie case of retaliation, and we can assume

that the court’s conclusion was correct. See Krupa v. Landsafe, Inc.,

514 F.3d 1153, 1156 (11th Cir. 2008) (making assumptions in a

plaintiff’s favor and addressing why, even given those assumptions,

summary judgment in favor of a defendant was warranted). Thus,

we need only address whether Stryker articulated a

nondiscriminatory reason for terminating Tanner and, if so,

whether he has created a genuine issue of material fact as to

pretext.

Tanner argues that Stryker has failed to articulate a

nondiscriminatory reason for his termination. He asserts that he

was “already under the protection of the FMLA” on August 13

through 18 “to ensure his presence at the birth” of his child and that

his termination “for absences that the FMLA protected” was not

legitimate. Appellant’s Br. 42–43. But, as we explained, the FMLA

did not cover Tanner’s absences.

Alternatively, Tanner argues he established that Stryker’s

proffered reason for terminating him was pretextual. He points to

evidence that Eckroad believed him to be in a “customer-facing”

position and therefore not subject to the point-based attendance

policy, Stryker’s failure to provide him a warning before his

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termination as contemplated by the attendance policy, and the

close temporal proximity between the start of his FMLA leave and

his termination.8 None of these persuades us that Tanner has

offered evidence creating a genuine issue of material fact as to

pretext.

Tanner is right that Eckroad believed him to be in a

customer-facing position. But that is not the whole story. Eckroad

also believed that Tanner was subject to the occurrence-points

attendance policy. More importantly, the evidence shows that

Eckroad was not responsible for the decision to terminate Tanner

for unexcused absences. That decision fell to Egidio, who believed

that Tanner was subject to the policy. Tanner characterizes

Egidio’s belief as “implausible,” but his only evidence for this

purported implausibility is a single reference in an employee

evaluation, which Eckroad—not Egidio—completed, regarding

Tanner’s interaction with “customers.” Appellant’s Br. 45–46

(citing Doc. 34-3 at 6). Tanner has produced no evidence that Egidio

believed Tanner to be customer-facing or otherwise not subject to

the attendance policy. And even if Eckroad was right and Egidio

8 Tanner also argues, for the first time on appeal, that he can show pretext

because of two “additional inconsistenc[ies]” in Stryker’s evidence of why he

was terminated. Appellant’s Br. 50. First, he says, he requested and was denied

the opportunity to take online training courses while waiting in Connecticut

for the birth of his child so that he would not accrue further unexcused

absences. Second, he says, Stryker failed to offer him discretionary personal

leave to cover his otherwise unexcused absences. Because Tanner failed to

raise these arguments in the district court, we do not consider them here.

Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).

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24 Opinion of the Court 22-14188

was wrong about the nature of Tanner’s job, “[a]n employer who

fires an employee under the mistaken but honest impression that

the employee violated a work rule is not liable for discriminatory

conduct.” Damon v. Fleming Supermarkets of Fla., 196 F.3d 1354, 1363

n.3 (11th Cir. 1999).

Tanner further argues that even if he was subject to the

occurrence-points attendance policy, Stryker failed to follow the

policy by issuing him no warnings for accruing occurrence points,

and “an employer’s deviation from its own standard procedures

may serve as evidence of pretext.” Hurlbert v. St. Mary’s Health Care

Sys., Inc., 439 F.3d 1286, 1299 (11th Cir. 2006). We see two

problems with Tanner’s argument. First, the attendance policy did

not require warnings; rather, it stated only that warnings

“generally” would be given. Doc. 34-1 at 43–44. And second, even

accepting Tanner’s argument that he should have been given a

warning under the attendance policy, it is undisputed that Eckroad

was responsible for giving warnings and Egidio was responsible for

the decision to terminate him.9 So, even if Eckroad deviated from

9 Tanner suggests that this evidence is disputed. He argues that, by concluding

as we do that Eckroad was responsible for discipline short of termination and

Egidio was responsible for termination, the district court “engaged in an

improper interpretation of competing facts.” Appellant’s Br. 49. The evidence

he cites, however—testimony from Eckroad and Egidio about their respective

managerial roles—does not create any disputed issue of fact as to who was

responsible for his termination. Eckroad never suggested that he was

responsible for the decision regarding Tanner’s termination. In fact, he

testified that he did not make the decision and that Egidio did because “[s]he

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the policy, Egidio did not, and there is no evidence that Egidio

worked with Eckroad on the decision to terminate Tanner. This

division of responsibilities may have been a poor way of managing

Tanner’s employment, but it does not provide evidence of pretext.

See Damon, 196 F.3d at 1363 n.3 (“An employer may fire an

employee for a good reason, a bad reason, a reason based on

erroneous facts, or for no reason at all, as long as its action is not

for a discriminatory reason.” (emphasis and internal quotation

marks omitted)).

Finally, Tanner asserts that the close temporal proximity

between the start of his FMLA leave and his termination is

evidence of pretext. “While close temporal proximity between the

protected conduct and the adverse employment action can

establish pretext when coupled with other evidence, temporal

proximity alone is insufficient.” Gogel v. Kia Motors Mfg. of Ga., Inc.,

967 F.3d 1121, 1137 n.15 (11th Cir. 2020) (en banc). Without other

evidence that could be coupled with the temporal proximity in this

case, there is no genuine issue of material fact as to pretext. See

Young, 358 F.3d at 860 (explaining that a party must put forth more

than a mere scintilla of evidence to avoid summary judgment).

We therefore affirm the district court’s grant of summary

judgment in Stryker’s favor on Tanner’s FMLA retaliation claim.

was overseeing us.” Doc. 34-3 at 12–13. And although Egidio testified that

Eckroad was responsible for some disciplinary actions, she maintained that she

was responsible for any decision regarding termination.

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26 Opinion of the Court 22-14188

C. Tanner’s FMLA interference claim

We reject Tanner’s FMLA interference claim for the same

reasons that we reject his retaliation claim. “To prove FMLA

interference, an employee must demonstrate that he was denied a

benefit to which he was entitled under the FMLA.” Martin v.

Brevard Cnty. Pub. Schs., 543 F.3d 1261, 1266–67 (11th Cir. 2008).

“An employee need not allege that his employer intended to deny

the right; the employer’s motives are irrelevant.” Id. at 1267

(internal quotation marks omitted). “Where the claim is based on

an employee’s termination, however, . . . an employer may

affirmatively defend against the claim by establishing that it would

have terminated the employee regardless of [his] request for or use

of FMLA leave.” Batson, 897 F.3d at 1331 (citing Martin, 543 F.3d at

1267). “At summary judgment, then, the analyses for an FMLA

interference claim based on an employee’s termination and an

FMLA retaliation claim are essentially the same.” Id. “[W]e ask

whether the evidence, viewed in the light most favorable to the

non-moving party, establishes as a matter of law that the employer

would have terminated the employee regardless of [his] request for

or use of FMLA leave.” Id. Where an employee presents evidence

from which a reasonable jury could conclude that his employer’s

proffered reasons for his termination were pretext, he “likewise

raises a genuine dispute of material fact as to whether [he] would

have been terminated regardless of [his] request for FMLA leave.”

Id. at 1331–32.

Here, however, Tanner has presented no evidence from

which a reasonable jury could find that Stryker’s reason for his

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termination—his accrual of more than five occurrence points

under the attendance policy before he began his FMLA leave—was

pretext. So, as with his retaliation claim, summary judgment in

Stryker’s favor was appropriate, and we affirm.

IV. CONCLUSION

We acknowledge the distress Tanner surely felt when he lost

his job the day after his child was born. Nonetheless, he has offered

no evidence from which a reasonable jury could conclude that his

former employer engaged in FMLA retaliation or interference. We

therefore affirm the district court’s grant of summary judgment in

Stryker’s favor.

AFFIRMED.