Tanner v. Stryker Corporation of Michigan

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

TRISTAN TANNER,

Plaintiff,

v. Case No. 8:21-cv-2293-VMC-TGW

STRYKER CORPORATION

OF MICHIGAN,

Defendant.

______________________________/

ORDER

This matter is before the Court on consideration of

Defendant Stryker Corporation of Michigan’s Motion for

Summary Judgment (Doc. # 33), filed on August 18, 2022.

Plaintiff Tristan Tanner responded on September 22, 2022.

(Doc. # 37). Stryker filed a reply on October 20, 2022. (Doc.

# 40). For the reasons that follow, the Motion is granted.

I. Background

A. Mr. Tanner’s Employment

Stryker is a medical technology company that offers

products “designed to improve patient and hospital outcomes.”

(Doc. # 33-1 at 1).

Mr. Tanner began working for Stryker in November 2020,

when Stryker acquired Wright Medical, where he worked as a

Hub Material Handler II in Tampa. (Doc. # 34-1 at 17:10-16,

18:11-19:6). As a Material Handler, Mr. Tanner was

responsible for “delivering surgical equipment to hospitals

and surgical centers, retrieving and inspecting equipment

after use, tracking inventory and placing orders.” (Id. at

18:11-19:6, 60:6-62:10).

Mr. Tanner’s supervisor was Timothy Eckroad, Field

Operations Manager. (Id. at 24:3-5). Laura-Ann Egidio was Mr.

Tanner’s “HR Business Partner.” (Doc. # 33-1 at 2).

B. Stryker’s Leave Policy

With respect to its attendance policy, Stryker sorts its

employees into three categories: (1) non-exempt employees

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

non-exempt without set shifts, and (3) exempt employees. (Id.

at 1-2). Employees with set shifts are those whose shifts

“have a definitive starting and ending time[.]” (Doc. # 34-1

at 74:15-75:1).

Under the attendance policy, non-exempt employees with

set shifts accrue “occurrence points” for violating the

policy. (Doc. # 34-1 at 43-44). A non-exempt employee with

set shifts who is “absent from work without an available sick

day receives two occurrence points.” (Id. at 43; Doc. # 33-1

at 2). A non-exempt employee with set shifts who incurs five

occurrence points in a twelve-month period is subject to

termination. (Doc. # 33-1 at 2). Mr. Tanner indicated that he

was familiar with this policy. (Doc. # 34-1 at 74:15-75:1,

106:16-21).

According to Stryker’s policy, the accrual of occurrence

points “will generally result in” a verbal warning for one

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

written warning for four points, and termination for five

points. (Doc. # 34-1 at 43-44). As Mr. Tanner’s immediate

supervisor, Mr. Eckroad was responsible for giving him the

appropriate warnings under Stryker’s attendance policy. (Doc.

# 34-2 at 46:20-21). Ms. Egidio was responsible for deciding

whether to terminate Mr. Tanner for a violation of the

attendance policy. (Doc. # 33-1 at 2).

Ms. Egidio believed Mr. Tanner was a non-exempt employee

with set shifts. (Doc. # 33-1 at 3). She stated that Stryker’s

drivers had set shifts, and that Mr. Tanner, as a driver, was

a non-exempt employee. (Doc. # 34-2 at 35:10-37:5). Mr.

Eckroad stated that he believed Mr. Tanner’s work was

“customer-facing.” (Doc. 34-3 at 20:13-14, 57:18-21). Mr.

Eckroad also indicated that he thought Mr. Tanner was “an

employee for which there was a policy under which he

accumulated points[.]” (Id. at 54:18-19). Mr. Eckroad asked

Mr. Tanner to reach out to Ms. Egidio when Mr. Tanner stated

that he had exhausted his personal time off and sick leave

because “HR controls employee situations such as these.” (Id.

at 46:22).

Stryker also has a Family and Medical Leave Act policy,

under which it provides leave to eligible employees for the

birth of a child. (Doc. # 33-3 at 1-2). The FMLA policy

provides employees with twelve weeks of unpaid leave

following the birth of their child. (Doc. # 34-1 at 38). Under

the policy, “a father’s FMLA leave for the birth of his child

begins on the day of his child’s birth.” (Id. at 2). If a

father is absent from work prior to the birth of his child,

then Stryker requires the father to “use his [personal time

off]/sick days to cover these absences.” (Id.).

Finally, Stryker has a parental leave policy. (Doc. #

33-3 at 2). Under the parental leave policy, an employee’s

leave for the birth of his child begins when “their child is

born and once the employee submits documentary proof of [his]

child’s birth[.]” (Id.). Under the parental leave policy, an

employee is entitled to six weeks of paid leave. (Id.).

Stryker’s attendance, FMLA leave, and parental leave

policies are outlined in its employee handbook. (Id. at 1-

2). Mr. Tanner received a copy of the handbook upon becoming

a Stryker employee. (Doc. # 34-1 at 74:15-76:3). He also

received “training on Stryker’s various policies,” including

the attendance policy. (Id. at 74:15-75:1).

C. Mr. Tanner’s Request for Leave

Mr. Tanner learned that his girlfriend, Amanda Shelburn,

was pregnant with his child on December 12, 2020. (Doc. # 33-

2 at 1). He informed Stryker that he expected that his

daughter would be born in the first week of August 2021. (Doc.

# 34-1 at 65:3-66:8). On June 21, 2021, Mr. Tanner told

Stryker’s myHR Leaves team, a specialist HR group, that his

girlfriend was pregnant and asked whether he qualified for

paternity leave. (Id.).

Courtney Linn, an HR Leaves Specialist, was in charge of

Mr. Tanner’s leave request. (Id. at 66:9-14). He and Ms. Linn

discussed his leave request on June 22, 2021. (Id. at 68:17-

69:5). On June 25, 2021, Ms. Linn told Mr. Tanner that he was

eligible for both parental and FMLA leave for the birth of

his child. (Id. at 69:6-23, 94:5-95:1). She also sent him a

“Notice of Eligibility & Rights and Responsibilities under

the FMLA and a request for leave form.” (Id.). Mr. Tanner was

required to complete and return the request for leave form by

July 1, 2021. (Id. at 94:5-95:1).

On July 5, 2021, Mr. Tanner emailed Ms. Linn and Mr.

Eckroad, writing that July 26, 2021, was the “‘anticipated’

start date for his leave.” (Id. at 62:11-21). He stated that

he believed his daughter would be born sometime during “the

last week of July/first week of August” and that he would be

traveling to Connecticut, where Ms. Shelburn lived, for the

birth. (Id.). On July 7, 2021, Mr. Tanner submitted his

request for leave form. (Id. at 70:8-10, 97:14-23). He

indicated on the form that his anticipated dates of leave

were July 26, 2021, to October 6, 2021. (Id.).

Ms. Linn approved Mr. Tanner’s request for FMLA and

parental leave on July 8, 2021. (Doc. # 33-3 at 3). The

“anticipated FMLA leave schedule” outlined in the designation

notice Ms. Linn sent him began July 26, 2021, and ended

October 17, 2021. (Id.). The notice also contained the

following warning: “The FMLA requires that you notify us as

soon as practicable if the dates of scheduled leave change,

are extended, or were initially unknown.” (Id.). Ms. Linn

also reminded him on several occasions that his leave would

not go into effect until his child was born. (Id.; Doc. # 34-

4 at 46:6-24).

On July 8, 2021, Mr. Tanner told Ms. Linn that he would

leave for Connecticut on July 27, 2021, and asked her how he

would be paid in the event the child’s birth was delayed.

(Doc. # 34-1 at 70:20-71:9). Ms. Linn wrote that his FMLA

“benefits apply once the baby arrives” and that if he planned

to take leave before the birth, then he was “required to just

use a sick or vacation day.” (Id. at 38). Mr. Tanner confirmed

that he understood the details of his leave. (Id.). On July

16, 2021, Ms. Linn again reminded him that his leave would

begin once his daughter was born. (Id.).

D. Mr. Tanner’s Absences Prior to the Birth

Mr. Tanner was absent a half-day on July 14, 2021, to

receive his COVID-19 vaccine. (Id. at 76:22-78:18). The

following day, he used a sick day to cover his absence due to

illness after receiving the vaccine. (Id. at 79:22-80:11).

On July 19, 2021, he emailed Ms. Egidio to tell her he

would be leaving on “[July] 26th-27th and driving up to

Connecticut” for his daughter’s birth. (Id. at 72). He stated

that “the paternity leave HR” told him to speak with Ms.

Egidio to “arrange time off prior to the birth.” (Id.). He

also wrote that “the paternity leave HR” would only be “adding

the time off from date of birth.” (Id.).

On July 20, 2021, Ms. Shelburn told Mr. Tanner that their

daughter was expected to be born on August 12, 2021. (Doc. #

33-2 at 2). Despite learning this information, on July 30,

2021, Mr. Tanner told Mr. Eckroad that he would be absent the

week of August 2, 2021, “because his daughter was expected to

be born any day that week.” (Doc. # 34-1 at 76:22-77:6, 83:1-

84:14). He told Mr. Eckroad that he would have to use his

personal time off and sick days until the birth because

“paternity leave only starts on the actual birth day.” (Id.

at 53). Mr. Tanner also acknowledged that he only had four

personal time off days left. (Id.).

Mr. Tanner left for Connecticut on August 8, 2021;

however, he was absent from work beginning on August 2, 2021,

during which time he was “planning, packing, and preparing

for the trip.” (Id. at 83:20-84:11, 86:17-23, 102:23-104:1,

105:4-8). Mr. Tanner exhausted his personal time off on August

5, 2021. (Doc. # 33-1 at 2). Between August 9 and August 12,

2021, he exhausted his remaining sick leave. (Id.). He accrued

occurrence points for absences on August 13, 16, 17, and 18,

2021, for which he did not have any available personal time

off or sick leave. (Id. at 3). Mr. Tanner did not receive

verbal or written warnings for accruing occurrence points.

(Doc. # 34-2 at 46:11-47:13).

On August 16, 2021, he emailed Ms. Linn, explaining that

he had exhausted his personal time off and sick days and

asking what he should do until his daughter was born on August

18 and his parental and FMLA leave started. (Doc. # 34-1 at

62). Ms. Linn reiterated that his FMLA and parental leave

would begin once his daughter was born and that he needed to

use his personal time off or sick leave until the birth.

(Id.). On August 18, 2021, he emailed Ms. Egidio to ask if he

could “go over the [personal time off] limit . . . to avoid

penalties[.]” (Id. at 61). Ms. Egidio replied that if Mr.

Tanner “d[id] not have time to cover [his] absence, [he would]

accrue points[.]” (Id.). Mr. Tanner responded that he would

“just take points then as nothing else I can do.” (Id.). Mr.

Tanner stated that “[HR] would have told [him] at that point

that [he] had eight points.” (Id. at 102:12-13). Stryker’s HR

system, Workday, recorded his absences. (Id. at 103:15-24).

Mr. Tanner’s daughter was born on August 19, 2021. (Doc.

# 33-2 at 2).

E. Mr. Tanner’s Termination

By August 18, 2021, Mr. Tanner had accrued eight

occurrence points; three more than the five points that could

result in termination under Stryker’s attendance policy.

(Doc. # 33-1 at 3). On August 18, Ms. Egidio decided to

terminate Mr. Tanner’s employment due to his unexcused

absences on August 13, 16, 17, and 18, 2021. (Id.). Mr.

Eckroad texted Mr. Tanner on August 19, 2021, to tell him he

had accrued eight occurrence points and to ask if he was

available for a phone call. (Doc. # 34-1 at 100:3-12, 109:1-

110:5). During a phone call on August 20, 2021, Ms. Egidio

and Mr. Eckroad informed Mr. Tanner that his employment was

terminated due to his unexcused absences. (Doc. # 33-1 at 3;

Doc. # 34-1 at 108:24-25).

F. Procedural History

Mr. Tanner initiated this action on September 28, 2021,

asserting claims for: interference with FMLA rights (Count 1)

and retaliation in violation of the FMLA (Count 2). (Doc. #

1). Stryker filed its answer on November 4, 2021, (Doc. #

14), and the case proceeded through discovery.

Now, Stryker seeks summary judgment on both counts.

(Doc. # 33). Mr. Tanner filed his response on September 22,

2022 (Doc. # 37), and Stryker replied on October 20, 2022.

(Doc. # 40). The Motion is ripe for review.

II. Legal Standard

Summary judgment is appropriate “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.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247–48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593–94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Analysis

A. Interpretation of FMLA

Mr. Tanner argues that the FMLA entitles an employee to

take leave prior to the birth of his child to ensure the

employee can actually be present for the birth. (Doc. # 37 at

8). He contends that “as a matter of statutory construction,

and common sense, the FMLA right to leave must include some

period of time before the day of the birth” or “parents would

miss the birth and lose the very benefit that the FMLA

provides.” (Id.). Mr. Tanner also states that this case “turns

on whether the FMLA prohibited Stryker from firing Tanner for

those absences.” (Id. at 7).

Stryker argues that the FMLA should not be interpreted

to require an employer to grant leave to an employee prior to

the day of a child’s birth in all circumstances. (Doc. # 40

at 2). Instead, Stryker contends that Congress anticipated

situations in which employees are entitled to FMLA leave prior

to the birth and that Mr. Tanner did not fit into any of those

situations. (Id. at 2-3).

The FMLA entitles an employee to leave (1) “for the birth

of their child,” and (2) “to be with the healthy newborn child

(i.e., bonding time) during the 12-month period beginning on

the date of birth.” 29 U.S.C. § 825.120(a)(1)-(2). In 29

U.S.C. § 825.120(a)(4)-(5), Congress outlines two

“[c]ircumstances [that] may require that FMLA leave begin

before the actual date of birth of a child.” 29 U.S.C. §

825.120(a)(4). First, an expectant mother may require leave

for incapacity due to pregnancy or for prenatal care. Id.

Second, “[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[.]” 29 U.S.C. §

825.120(a)(5).

Mr. Tanner cannot point to any case in which a court

adopted his preferred interpretation of the FMLA parental

leave statute. The Court will not adopt his interpretation

and determines that Stryker asserts the correct

interpretation. By outlining several situations in which

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

Congress excluded the possibility that the FMLA entitles

employees to leave prior to the birth in other circumstances.

See Dean v. United States, 556 U.S. 568, 574 (2009) (“Where

Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it

is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.”).

In 29 U.S.C. § 825.120(a)(4)-(5), Congress outlines two

situations in which an employee may be entitled to FMLA leave

prior to the birth of a child. First, an expectant mother

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

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

29 U.S.C. § 825.120(a)(4). Second, “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.” 29 U.S.C. § 825.120(a)(5). Congress also provided

leave prior to birth to employees who are adopting children.

See 29 U.S.C. § 825.121(a)(1) (“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.”). In fact, 29 U.S.C. §

825.121(a)(1) even specifies that leave for travel prior to

adoption is appropriate when an employee needs to “travel to

another country to complete an adoption.” Id. This analysis

confirms that Congress contemplated circumstances in which

FMLA leave should begin before the birth of a child and that

it purposely excluded the circumstance of an employee

traveling to the location of his child’s birth.

Mr. Tanner’s case does not fit within any of the

circumstances Congress considered worthy of FMLA leave prior

to the birth of a child. The Court appreciates that Mr. Tanner

faced a difficult situation in trying to predict when to begin

his leave when Ms. Shelburn was set to give birth in

Connecticut; however, he was not entitled to take FMLA leave

prior to the birth. Therefore, Mr. Tanner’s FMLA leave did

not begin until August 19, 2021.

B. FMLA Retaliation

Mr. Tanner claims that he was terminated for taking

protected FMLA leave, and, therefore, that he has direct

evidence that Stryker retaliated against him for taking FMLA

leave. (Doc. # 37 at 15). However, the Court has already

determined that Mr. Tanner was not entitled to take FMLA leave

prior to the birth of his child. Mr. Tanner, therefore, does

not have direct evidence of retaliation.

“Where, as here, a plaintiff alleges an FMLA retaliation

claim without direct evidence of the employer’s retaliatory

intent, [courts] apply the burden shifting framework

established by the Supreme Court in” McDonnell Douglas.

Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286,

1297 (11th Cir. 2006).

1. Prima Facie Case

“A plaintiff bringing an FMLA retaliation claim must

show that his employer intentionally discriminated against

him in the form of an adverse employment action for having

exercised an FMLA right.” Bradley v. Army Fleet Support, LLC,

54 F. Supp. 3d 1272, 1282 (M.D. Ala. 2014). “To state a prima

facie case of retaliation under the FMLA, a plaintiff must

show that (1) he engaged in a statutorily protected activity,

(2) he suffered an adverse employment action, and (3) the

adverse action was causally related to a protected activity.”

Id. “If the plaintiff makes out a prima facie case, the burden

shifts to the defendant to articulate a legitimate, non-

discriminatory reason for the adverse employment action.” Id.

Courts construe the causation element “broadly” and “a

plaintiff need only demonstrate ‘that the protected activity

and the adverse action were not wholly unrelated.’” Debe v.

State Farm Mut. Auto. Ins., 860 F. App’x 637, 639 (11th Cir.

2021) (citing Shotz v. City of Plantation, Fla., 344 F.3d

1161, 1180 n.30 (11th Cir. 2003)). A plaintiff can establish

a causal connection by showing a close temporal proximity

between his employer’s discovery of the protected activity

and the adverse action, but the temporal proximity must be

“very close.” Thomas v. Dejoy, No. 5:19- cv-549-TKW-MJF, 2021

WL 4992892, at *10 (N.D. Fla. July 19, 2021).

Regarding the prima facie case, Stryker argues that Mr.

Tanner cannot establish causation for his termination. (Doc.

# 33 at 14). It contends that Mr. Tanner engaged in an

intervening act of misconduct – violating the attendance

policy – after he requested leave, thereby eliminating any

temporal inference between Mr. Tanner’s request for leave and

his termination. (Id. at 14-15).

A reasonable jury could find that Mr. Tanner has

established that his termination was causally related to his

use of FMLA leave. Mr. Tanner was terminated on August 20,

2021, the day after he started his FMLA leave. The close

temporal proximity between when he began his leave and when

he was terminated is likely enough to establish causation in

this case. Hurlbert v. St. Mary's Health Care Sys., Inc., 439

F.3d 1286, 1298 (11th Cir. 2006) (“Close temporal proximity

between protected conduct and an adverse employment action is

generally sufficient circumstantial evidence to create a

genuine issue of material fact of a causal connection.”

(internal quotation omitted)).

However, regardless of whether Mr. Tanner can establish

causation, he cannot state a prima facie case of retaliation.

2. Non-Retaliatory Reason and Pretext

Even if Mr. Tanner could establish a prima facie case of

retaliation based on his termination, Stryker has produced

legitimate, non-discriminatory reasons for those actions and

Mr. Tanner has not shown a genuine issue of material fact

regarding pretext.

Mr. Tanner was terminated for violating the attendance

policy when he was absent from work on August 13, 16, 17, 18,

2021, after he had exhausted his personal time off and sick

leave. “The FMLA does not insulate an employee who has

requested medical leave from being terminated for poor

performance. So long as the employer would have taken the

same action it did regardless of the request for leave, there

is no statutory violation.” Gamba v. City of Sunrise, 157 F.

App’x 112, 113 (11th Cir. 2005). Under Stryker’s attendance

policy, Mr. Tanner’s accrual of occurrence points was a valid

reason for termination. See Hayes v. Voestalpine Nortrak,

Inc., 185 F. Supp. 3d 1314, 1322 (N.D. Ala. 2016) (citing

Earl v. Mervyns, Inc., 207 F.3d 1361 (11th Cir. 2000))

(“[T]here is no FMLA violation where an employee is discharged

after repeated infractions of a detailed attendance policy”).

Stryker has shown that it terminated Mr. Tanner after repeated

unexcused absences in violation of the attendance policy.

Thus, Stryker has met its burden of producing a legitimate,

non-discriminatory reason for its actions.

The burden now shifts to Mr. Tanner to show pretext. “A

legitimate nondiscriminatory reason proffered by the employer

is not a pretext for prohibited conduct unless it is shown

that the reason was false and that the real reason was

impermissible retaliation or discrimination.” Worley v. City

of Lilburn, 408 F. App’x 248, 251 (11th Cir. 2011) (citing

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)).

“If the proffered reason is one that might motivate a

reasonable employer, a plaintiff cannot merely recast the

reason, but must meet it ‘head on and rebut it.’” Id. (quoting

Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000)).

Thus, to show pretext, an employee must demonstrate “such

weaknesses, implausibilities, incoherencies, or

contradictions in the employer’s proffered legitimate reasons

for its action that a reasonable factfinder could find them

unworthy of credence.” McCann v. Tillman, 526 F.3d 1370, 1375

(11th Cir. 2008) (quoting Cooper v. Southern Co., 390 F.3d

695, 725 (11th Cir. 2004)).

Mr. Tanner has not presented sufficient evidence of

pretext. He has not rebutted that he was terminated for his

unexcused absences on August 13, 16, 17, and 18, 2021. He

argues that he was not subject to the attendance policy and

that Stryker failed to follow its procedure for attendance

policy violations. (Doc. # 37 at 19-21). He also argues that

the temporal proximity between his use of FMLA leave and

termination is sufficient to establish pretext. (Id. at 21).

First, Mr. Tanner argues that he was not an employee

subject to the attendance policy. (Id. at 18). He argues,

based on Mr. Eckroad’s testimony, that he was a customer-

facing employee who did not accrue points under the attendance

policy. (Id. at 19; Doc. # 34-3 at 20:13-14, 57:18-21). He

also states that Ms. Egidio has made inconsistent statements

regarding whether she was the one who decided to terminate

him. (Doc. # 37 at 21). He points to Ms. Egidio’s deposition

testimony, where she states that Mr. Eckroad was responsible

for giving warnings to Mr. Tanner for his unexcused absences.

(Doc. # 34-2 at 46:20-21). In her declaration, Ms. Egidio

states that she was responsible for deciding to terminate Mr.

Tanner. (Doc. # 33-1 at 2).

Ms. Egidio’s statements in her deposition and her

declaration are not inconsistent. In her deposition, Ms.

Egidio states that Mr. Eckroad was responsible for issuing

warnings prior to termination. In her declaration, she states

that she was responsible for making the final decision to

terminate Mr. Tanner. Ms. Egidio’s statements indicate that

she and Mr. Eckroad played different roles in the enforcement

process. They do not indicate that she has been inconsistent

about whether she was responsible for deciding to terminate

Mr. Tanner.

Ms. Egidio believed that Mr. Tanner was a non-exempt

employee with set shifts subject to the attendance policy.

(Id.). She stated that Stryker’s drivers have set shifts and,

therefore, are non-exempt employees. (Doc. # 34-2 at 35:10-

37:5). According to Ms. Egidio, the decision to terminate Mr.

Tanner was because of his unexcused absences. (Id. at 3). Mr.

Eckroad, on the other hand, stated that he believed Mr.

Tanner’s work was “customer-facing.” (Doc. 34-3 at 20:13-14,

57:18-21). He did not make this statement in the context of

discussing whether Mr. Tanner was subject to the attendance

policy. In fact, Mr. Eckroad indicated that he thought Mr.

Tanner was “an employee for which there was a policy under

which he accumulated points[.]” (Id. at 54:18-19).

Mr. Tanner does not present any facts that call into

question Ms. Egidio’s good faith belief. Even assuming Ms.

Egidio was mistaken about whether Mr. Tanner was subject to

the attendance policy, her mistake does not constitute

evidence of pretext. See Hudson v. Blue Cross Blue Shield of

Ala., 431 F. App’x 868, 869 (11th Cir. 2011) (“An employer

who fires an employee under the mistaken but honest impression

that the employee violated a work rule is not liable for

discriminatory conduct.” (citation omitted)); Hayes v. Deluxe

Mfg. Operations LLC, No. 16-cv-2056, 2018 WL 1461690, at *20

(N.D. Ga. Jan. 9, 2018) (“Pretext means more than a mistake

on the part of the employer; pretext means a lie, specifically

a phony reason for some action.”).

Second, Mr. Tanner argues that Stryker failed to follow

the attendance policy. (Doc. # 37 at 20). He argues that

Stryker did not follow its own attendance policy when it

failed to give him verbal or written warnings when he accrued

occurrence points, and he argues this is evidence that

Stryker’s given reason for terminating him was pretextual.

(Id.).

The deviation from the attendance policy is not

sufficient evidence of pretext. While Stryker did not give

Mr. Tanner the exact warnings laid out in the attendance

policy, he did receive actual notice that he was accruing

points. Ms. Egidio told Mr. Tanner that he would “accrue

points” if he was absent after he exhausted his personal time

off and sick leave. (Doc. # 34-1 at 61). Mr. Tanner could

also see that he was accruing absences through Workday, a

common HR system software. (Id. at 103:15-24). Finally,

Stryker’s attendance policy states that the “[a]ccumulation

of occurrence points within a rolling 12-month period will

generally result in the following disciplinary actions . . .”

(Id. at 43) (emphasis added). The policy indicates that the

warnings are discretionary. As such, Stryker’s failure to

give the warnings is not evidence of pretext. See Ritchie v.

Indus. Steel, Inc., 426 F. App’x 867, 873 (11th Cir. 2011)

(“Nevertheless, if management has discretion as to whether to

follow the discipline policy, then a failure to follow the

policy does not show pretext.”).

Finally, Mr. Tanner argues that the “extremely close

temporal proximity” between his FMLA usage and his

termination is evidence of pretext. (Doc. # 37 at 19). He

cites Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364

(11th Cir. 2007), in support of his argument. (Id.) Cooper

Lighting, however, indicates that temporal proximity is

relevant for the purpose of establishing causation – not

pretext. See Id. (“The burden of causation can be met by

showing close temporal proximity between the statutorily

protected activity and the adverse employment action.”).

Temporal proximity alone is insufficient evidence of pretext.

See Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121,

1138 (11th Cir. 2020) (“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.”).

In short, despite his arguments on this issue (Doc. # 37

at 19-21), Mr. Tanner has not rebutted Stryker’s legitimate,

non-discriminatory reason for terminating him.

While Mr. Tanner is clearly dissatisfied with Stryker’s

treatment of him, it is not the Court’s place to question the

wisdom of an employer’s decision. See Damon v. Fleming

Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir.

1999) (“We are not in the business of adjudging whether

employment decisions are prudent or fair. Instead, our sole

concern is whether unlawful discriminatory animus motivates

a challenged employment decision.”). The Court merely reviews

whether an employer’s decision was motivated by retaliation.

Here, Mr. Tanner has not created a genuine issue of material

fact as to that question.

Summary judgment is therefore granted to Stryker on Mr.

Tanner’s FMLA retaliation claim, Count 2.

C. FMLA Interference

As for Count 1, “[t]o establish an FMLA interference

claim an employee must demonstrate by a preponderance of the

evidence that he was denied a benefit to which he was

entitled.” Bradley v. Army Fleet Support, LLC, 54 F. Supp. 3d

1272, 1277 (M.D. Ala. 2014) (citing Pereda v. Brookdale Senior

Living Communities, 666 F.3d 1269, 1274 (11th Cir. 2012)).

“In addition to showing interference, a plaintiff must show

that she has been prejudiced by the FMLA violation in some

way.” Diamond v. Hospice of Fla. Keys, Inc., 677 F. App’x

586, 592 (11th Cir. 2017).

Stryker was required to give Mr. Tanner notice of his

eligibility to take FMLA leave within five business days of

his request for leave. 29 C.F.R. § 825.300(b)(1). Mr. Tanner

received the paperwork necessary to process his request for

FMLA leave four days after he first gave Stryker notice of

his need for leave (Doc. # 34-1 at 65:3-66:8, 69:6-23, 94:5-

95:1). Stryker approved his leave request one day after he

submitted the necessary request for leave form. (Id. at 70:8-

15, 97:14-23). Therefore, there is no claim that Stryker

interfered with Mr. Tanner’s request for leave.

The Court assumes without deciding, for the reasons

discussed in the previous section, that Mr. Tanner can

establish an FMLA interference claim due to the close temporal

proximity between the beginning of his FMLA leave and his

termination. However, Stryker is not liable because it

established its affirmative “same decision” defense.

Plaintiff’s request for or use of FMLA leave did not

insulate him from termination for reasons unrelated to his

FMLA activity. See Batson v. Salvation Army, 897 F.3d 1320,

1331 (11th Cir. 2018) (“It is well settled that where, as

here, an interference claim ‘is based on an employee’s

termination, . . . 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.’”). Ms. Egidio decided to terminate Mr.

Tanner for accruing eight occurrence points. The company’s

handbook clearly stated the attendance policy. (Doc. # 34-1

at 43-44). Employees received training on the policy, and Mr.

Tanner was aware of the point system. (Id. at 74:15-75:1).

Stryker kept track of absences and employees could view them

in Workday (Id. at 103:15-24), indicating that Stryker had a

uniform policy regarding unexcused absences. Therefore,

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.

Summary judgment is therefore granted to Stryker on Mr.

Tanner’s FMLA interference claim, Count 1.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Stryker Corporation of Michigan’s Motion for

Summary Judgment (Doc. # 33) is GRANTED.

(2) The Clerk is directed to enter judgment in favor of

Defendant Stryker Corporation of Michigan and against

Plaintiff Tristan Tanner on both counts of the

complaint.

(3) Thereafter, the Clerk is directed to terminate all

pending deadlines and CLOSE the case.

DONE and ORDERED in Chambers in Tampa, Florida, this

30th day of November, 2022.

tins Yr. Hnendey Cree

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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