# Tanner v. Stryker Corporation of Michigan

> District Court, M.D. Florida · November 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10111545

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** November 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10111545. Public record. Not legal advice.