# Tristan Tanner v. Stryker Corporation of Michigan

> Court of Appeals for the Eleventh Circuit · June 20, 2024 · 104 F.4th 1278

URL: https://www.frixlaw.com/law-library/cases/10068118

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** June 20, 2024
- **Citations:** 104 F.4th 1278
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10068118

## How later opinions describe it (automated extraction)

- applying McDonnell Douglas framework to assess employer's alleged retaliatory intent in Family Medical Leave Act claim

## Opinion text

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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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22-14188 Opinion of the Court 23

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10068118. Public record. Not legal advice.