Doris Lapham v. Walgreen Co.

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 1 of 34

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10491

____________________

DORIS LAPHAM,

Plaintiff-Appellant,

versus

WALGREEN CO.,

a for-profit and foreign corporation,

a.k.a. Walgreens,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:19-cv-00579-PGB-DCI

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 2 of 34

2 Opinion of the Court 21-10491

____________________

Before WILSON, BRANCH, and LAGOA, Circuit Judges.

LAGOA, Circuit Judge:

Doris Lapham worked for the Walgreen Co. (“Walgreens”)

in various roles and at multiple store locations for over a decade

until April 13, 2017, when she was fired for the stated reasons of

insubordination and dishonesty. Lapham’s version of events, how-

ever, is that she was unfairly fired as a result of her requests for

leave under the Family and Medical Leave Act (“FMLA”), 29 U.S.C.

§§ 2601–54, so that she could provide care to her disabled son. Lap-

ham alleges that Walgreens both interfered with her attempts to

obtain leave in violation of the FMLA and retaliated against her for

those attempts in violation of the FMLA and Florida’s Private Sec-

tor Whistleblower Act (“FWA”), Fla. Stat. § 448.102 et seq. 1 How-

ever, the district court below ultimately granted summary judg-

ment in favor of Walgreens on all of these claims.

This appeal asks us to determine whether the district court

erred in granting summary judgment to Walgreens on these claims

and, as part of that larger inquiry, what the proper causation stand-

ard is for FMLA and FWA retaliation claims. After careful consid-

eration, and with the benefit of oral argument, we hold that the

1 Courts have referred to this law as Florida’s “private sector Whistle-Blower

Act,” Golf Channel v. Jenkins, 752 So. 2d 561, 563 (Fla. 2000), or “Whistle

Blower’s Act,” Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 947 (11th Cir.

2000)

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 3 of 34

21-10491 Opinion of the Court 3

proper causation standard for both FMLA and FWA retaliation

claims is but-for causation and that the district court correctly

granted summary judgment in favor of Walgreens on Lapham’s re-

taliation and interference claims. Accordingly, we affirm.

I. BACKGROUND

A. Factual Background

Lapham is a single mother whose son has Lennox-Gastaut

syndrome and Dravet syndrome, which are severe forms of epi-

lepsy. 2 As a result of these health issues, Lapham’s son is non-ver-

bal, uses a wheelchair, and requires a caregiver.

On November 16, 2006, Lapham was hired by Walgreens as

a service clerk. She subsequently became a photo specialist techni-

cian and then was promoted to a drug store management trainee.

In March 2012, Lapham voluntarily stepped down from her posi-

tion as a drug store management trainee to become a shift lead. 3

According to Lapham, she made this switch so that she could work

overnight shifts and have more time during the day to care for her

son. Between 2011 and 2016, Lapham requested and received

2 Lapham’s son was twenty years old as of January 23, 2020.

3 As a shift lead, Lapham was responsible for “cash handling, opening and clos-

ing the store as needed, store maintenance, department maintenance, engag-

ing with employees, engaging with customers, SIMS responsibilities, pricing

and inventory reports, cleanliness of the store, customer service, communi-

cating with other employees effectively, completing tasks assigned by the

[s]tore [m]anager or [a]ssistant [s]tore [m]anager,” and was required to “fol-

low[] Walgreens’ rules, policies, and procedures.”

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 4 of 34

4 Opinion of the Court 21-10491

intermittent FMLA leave on a yearly basis for purposes of provid-

ing care to her son.

During this timeframe, Lapham worked at Store No. 3107

in Sanford, Florida and received annual performance reviews. For

the period from September 2011 through August 2012, Lapham re-

ceived an overall performance score of 1.0 out of 5.0, which indi-

cated that she had not been achieving expectations and had some

performance issues. 4 Lapham’s performance subsequently im-

proved, and she received a score of 3.0 for the period from Septem-

ber 2013 through August 2014, 5 which indicated she was achieving

expectations, and a score of 3.2 for the period from September 2014

through August 2015. 6

On November 11, 2015, Lapham asked another employee to

receive a delivery truck by himself while she stayed at the register.

4 Lapham’s 2012 performance evaluation was completed by Walgreens store

manager Jim Matheny. Matheny included a list of complaints in his evaluation

of Lapham, noting that she, among other things, “seldom” completed assigned

projects; lied about completing tasks; did “little to nothing to help with loss

prevention”; took an “excessive amount of breaks”; regularly belittled em-

ployees “in front of customers and other employees”; and even caused at least

one other employee to quit.

5 Lapham’s 2014 performance evaluation was completed by Steven Parrish.

Parrish did not include any comments in his evaluation of Lapham.

6 Store manager Karina Kaliman completed Lapham’s 2015 performance eval-

uation. Kaliman wrote that Lapham had “shown commitment for [the] store

condition” and been “on top of the restroom[] conditions,” but could be “more

consistent on detailing” and “needs to be more consistent on [Walgreens’] pro-

grams.”

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 5 of 34

21-10491 Opinion of the Court 5

Lapham claimed during her deposition that she received permis-

sion to do this from the assistant store manager, Michael Shariff,

because she had recently broken her hip and could not lift anything

over twenty pounds. The store manager, Karina Kaliman, met

with Lapham and Shariff on November 21, 2015, to discuss the in-

cident and subsequently disciplined Lapham with a formal notice.

On October 14, 2016, Lapham received her performance re-

view for the period from September 2015 through August 2016.

Kaliman, the outgoing store manager, had completed that evalua-

tion, but the new store manager, Chad Dunlap, shared it with Lap-

ham.7 Kaliman had given Lapham an overall score of 2.3 out of

5.0, which indicated that she was only “[p]artially [a]chieving

[e]xpectations.” Kaliman had also written that Lapham “re-

spond[ed] to customer needs in [a] friendly and respectful manner”

but “need[ed] to be more proactive [in] assisting customers” and

“promoting sales.” Kaliman had also indicated that Lapham some-

times left early from day shifts, “was not consistent on finishing her

7 Dunlap overlapped with Lapham at Store No. 3107 in 2016 for approximately

“[t]wo to three months.” Dunlap never formally disciplined Lapham but did

have “coaching conversations” and “performance discussions” with her. Dun-

lap testified that Lapham was a “loyal employee” whose work performance

was “acceptable,” but also acknowledged that he had had conversations with

her regarding “communication with team members and following up on as-

signed tasks.”

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 6 of 34

6 Opinion of the Court 21-10491

task list,” and “need[ed] to have better communication with [the]

management team.”

Around this time, Lapham requested a transfer to a different

store location closer to her home. Walgreens granted that request

and transferred Lapham to Store No. 4423 in Daytona Beach, Flor-

ida, on January 28, 2017.

Shortly after Lapham began working at Store No. 4423, she

was placed on a sixty-day Performance Improvement Plan (“PIP”)

in accordance with Walgreens’ policy based on her 2016 perfor-

mance score.8 Lapham discussed the PIP at a meeting with the

store manager of Store No. 4423, Lisa Shelton, who had been told

about the decision to place Lapham on a PIP by the district man-

ager, Nicole Macek. Lapham also reached out to Walgreens’ Em-

ployee Relations Department (“HR”) for additional clarification on

the reason for the PIP and the overall PIP process.

Lapham claims that, around this time, she complained about

four categories of work conditions at Store No. 4423: (1) blocked

fire exits; (2) the presence of bodily fluids; (3) a cockroach infesta-

tion; and (4) an unsanitary cooler containing salmonella and bugs.

Lapham took some photographs of the conditions at Store No.

8 Under Walgreens’ policy, PIPs are required for all employees who score be-

low a certain level on performance evaluations.

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 7 of 34

21-10491 Opinion of the Court 7

4423, but never submitted any of her photographs to either Shelton

or Walgreens’ corporate office.9

On February 16, 2017, Lapham submitted an FMLA leave

request to Shelton for her signature as store manager. The request

was for intermittent FMLA leave from February 2017 through Feb-

ruary 2018 and was Lapham’s first FMLA request at Store No. 4423.

Walgreens maintains that Lapham was supposed to send the pa-

perwork directly to the Unpaid Leave Department and that Shelton

was not responsible for playing any role in the approval process.

On February 23, 2017, after waiting a week for Shelton’s signature,

Lapham complained to both Shelton and HR about the delay. Shel-

ton signed the request form that day and then sent it to HR for

approval four days later, on February 27, 2017.

On March 3, 2017, the Unpaid Leave Department mailed

Lapham a letter asking for clarification regarding the start date for

the requested leave period. Lapham never received that letter,

however, because it had been sent to her old address on file with

the Unpaid Leave Department and not her new address that she

had listed on the request form.

On March 31, 2017, Lapham asked Shelton for a day off to

take her son to a doctor’s appointment. Shelton called HR about

the single-day request and was told that Lapham did not have any

FMLA days available to use because, at that time, Lapham had not

9 These health and safety complaints are not a major feature of the parties’

arguments on appeal.

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 8 of 34

8 Opinion of the Court 21-10491

been approved for intermittent FMLA leave. Accordingly, Shelton

denied Lapham’s request for the day off, allegedly telling her that

“the [work] schedule was already up” and to “make [other] accom-

modations” for her son. Meanwhile, Shelton did not sign Lapham’s

updated FMLA leave request form that day. Lapham subsequently

learned that her FMLA leave request had been denied because she

had not provided the additional information regarding dates. Lap-

ham promptly filled out an updated FMLA leave request form for

that year, this time specifying the start and end dates (March 31,

2017, through March 31, 2018) on the form itself, 10 and gave the

form to Shelton for her signature.

On April 4 and 5, 2017, while the updated request form re-

mained unsigned, Shelton contacted HR to discuss Lapham’s work

performance. During one of those conversations, Shelton told

Amanda Miranda, an employee in HR, that Lapham was “actively

disregarding instructions,” lying to management, and “sabotaging

the store.” Miranda advised Shelton that Walgreens would support

her decision to fire Lapham if she properly documented instances

10 Lapham’s original leave request form was submitted along with a certifica-

tion from her health care provider that included specific start and end dates

for leave. Lapham generally maintains that Walgreens should not have

needed to ask for clarification as to those dates and that, by doing so,

Walgreens created an unnecessary delay.

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 9 of 34

21-10491 Opinion of the Court 9

of insubordination and reviewed everything with the district man-

ager prior to moving forward with termination.

During both of these conversations, Shelton mentioned

Lapham’s request for FMLA leave. Specifically, Shelton reported

that Lapham called out of work for two days even though her re-

quest had not yet been approved and that Lapham said she would

“take a leave” until the current manager had left and the PIP had

ended. Miranda advised Shelton to refrain from disciplining Lap-

ham for any attendance issues until the FMLA leave request was

approved or denied. Miranda also advised Shelton that, if she de-

cided to terminate Lapham, she should make it clear that the deci-

sion was based on Lapham’s poor performance and not Lapham’s

requests for leave. Miranda has since testified that it is standard

policy for HR to ask the manager in these discussions whether the

given employee has requested leave and whether there is any addi-

tional relevant information.

Following her discussions with Miranda, Shelton created a

document on April 6, 2017, containing a list of instances wherein

Lapham failed to complete assigned tasks or otherwise meet expec-

tations on April 5 and 6. Shelton claims that this was not a com-

prehensive list of instances of Lapham’s poor performance and that

Lapham generally “exaggerate[ed] the truth” about some things

and failed to perform certain tasks.

The next day, on April 7, 2017, Lapham complained to Shel-

ton about Shelton’s delay in signing her updated FMLA leave re-

quest form, which she had submitted for Shelton’s signature a

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 10 of 34

10 Opinion of the Court 21-10491

week prior. Shelton then signed it and forwarded the request to

HR that same day.

While the request was pending, Lapham called HR on April

10, 2017, to report that Shelton was retaliating against her. Mean-

while, on April 12, 2017, Ashley Williams, another shift lead at

Store No. 4423, authored a written statement in which she alleged

that, during a shift on the weekend of April 8 and 9, Lapham in-

structed other employees not to perform duties that Shelton and

the assistant store manager had assigned to them. Lapham, how-

ever, swears that Williams’s account is incorrect and denies ever

telling other employees not to do their assigned tasks.

Finally, on April 13, 2017, Lapham arrived at work and was

called into the office, where Shelton informed her that she had

been terminated. Walgreens subsequently denied Lapham’s

FMLA leave request on the basis of her termination. The company

maintains that Lapham was properly terminated for insubordina-

tion and dishonesty and that her request for FMLA leave was there-

fore properly denied.

B. Procedural History

On February 5, 2019, Lapham initiated a lawsuit against

Walgreens in the Seventh Judicial Circuit in and for Volusia

County, Florida, bringing claims under the FWA, the FMLA, and

the Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.01 et seq.

Walgreens removed the action to federal court pursuant to 28

U.S.C. §§ 1331 and 1441(a) the following month.

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 11 of 34

21-10491 Opinion of the Court 11

Lapham filed the operative amended complaint on April 16,

2019. That complaint brought four claims against Walgreens: re-

taliation in violation of the FWA (Count I); retaliation in violation

of the FMLA (Count II); interference in violation of the FMLA

(Count III); and retaliation in violation of the FCRA (Count IV).

Walgreens moved to dismiss Counts I and IV, arguing that Lapham

had failed to state a claim under either the FWA or the FCRA. On

July 15, 2019, after full briefing, the district court granted in part

and denied in part the motion, dismissing only Count IV. Follow-

ing the resolution of the motion to dismiss, Walgreens filed its an-

swer. In that filing, Walgreens generally denied or claimed to lack

knowledge about Lapham’s allegations and raised seven affirma-

tive defenses.

On June 8, 2020, Walgreens filed a motion for summary

judgment, challenging all three of Lapham’s remaining claims. As

to the retaliation claims, Walgreens first argued that Lapham could

not establish a prima facie case of retaliation because she had not

engaged in any protected activity. Walgreens next argued that,

even if Lapham had engaged in any protected activity, she could

not satisfy the causation element of retaliation because she admit-

ted at her deposition that she had not raised any complaints about

employment conditions until after Shelton had already consulted

with HR about Lapham’s performance. Walgreens then argued

that Lapham could not show that its reasons for terminating her

were merely pretext for retaliation. As to the interference claim,

Walgreens argued that Lapham’s request for FMLA leave was

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 12 of 34

12 Opinion of the Court 21-10491

denied solely because she had already been terminated and thus

was no longer eligible for FMLA leave. 11

Lapham filed her response in opposition to Walgreens’ mo-

tion for summary judgment on July 15, 2020. As to the retaliation

claims, Lapham argued that her various complaints about employ-

ment conditions between February 2017 and April 2017 qualified

as protected activities. Relatedly, Lapham maintained that the tim-

ing of her complaints supports the causation element of retaliation,

since she had engaged in protected activity less than two months

before her termination. Lapham also argued that Walgreens’ rea-

sons for termination were pretextual, as evidenced by the com-

pany’s shifting and inconsistent explanations for the decision. As

to the interference claim, Lapham argued that she would have

qualified for and been granted FMLA leave had she not been

wrongfully terminated. 12 According to Lapham, Walgreens com-

mitted interference by failing to process and grant her requests for

11 In support of its motion for summary judgment, Walgreens submitted,

among other things, Lapham’s objections and verified answers to its first set

of interrogatories; a transcript of the July 12, 2019, Appellate Hearing before

the Florida Department of Economic Opportunity; transcripts of the deposi-

tions of Lapham, Dunlap, Keri Garfield, Miranda, and Shelton; and the decla-

rations of Miranda and Williams. The parties also submitted a joint stipulation

of agreed material facts.

12 In addition to the documents submitted by Walgreens, Lapham relied upon,

among other things, her performance rating history report; her formal request

for leave; the declaration of Michael Rivera, one of Lapham’s former managers

at Walgreens; and various other employment documents.

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 13 of 34

21-10491 Opinion of the Court 13

leave and by failing to provide her with a notice of her rights and

responsibilities in a timely manner.

In its reply, Walgreens asserted that the applicable causation

standard for retaliation is but-for causation and maintained that

Lapham could not make such a showing. Walgreens similarly ar-

gued that Lapham could not show that she engaged in any pro-

tected activity or that any actionable interference occurred.

In a surreply, Lapham disputed Walgreens’ contention that

but-for causation applies to FMLA retaliation claims, noting that

the Eleventh Circuit had not opined on the matter and that other

circuit courts have held otherwise. Aside from the causation issue,

Lapham generally maintained that triable issues of fact existed as

to each of her claims.

On October 19, 2020, the district court issued an order grant-

ing in part and denying in part Walgreens’ motion for summary

judgment. The district court began its analysis with the two retal-

iation claims and determined that Lapham had established a prima

facie case of FWA retaliation based only on her objections to an

alleged insect infestation and Shelton’s alleged interference with

her FMLA request, and of FMLA retaliation based on her request

for leave. In doing so, the district court concluded that Lapham

could (and did) satisfy the causation requirement by showing

merely a “close temporal proximity” between a protected activity

and an adverse action. The district court then shifted the burden

to Walgreens to proffer a legitimate, non-retaliatory reason for the

adverse action and found that the company had adequately done

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 14 of 34

14 Opinion of the Court 21-10491

so. However, the court also found that Lapham had presented suf-

ficient evidence for a reasonable jury to conclude that her termina-

tion was motivated by retaliation for requesting FMLA leave rather

than any of her documented misconduct. Thus, the court allowed

the FMLA retaliation claim (Count II) to survive in full and allowed

the FWA retaliation claim (Count I) to survive insofar as it was tied

to the request for FMLA leave. The district court then turned to

Lapham’s FMLA interference claim (Count III) and similarly con-

cluded that, because a reasonable jury could conclude that the prof-

fered reasons for Lapham’s termination were pretextual, it could

also conclude that Walgreens interfered with her FMLA rights by

terminating her and denying her request for leave.

On November 16, 2020, Walgreens filed a motion for recon-

sideration asking the district court to reconsider its causation anal-

ysis of the retaliation claims and to apply a but-for causation stand-

ard. Walgreens also asked the district court to reconsider whether

any “actual violation” of law occurred for purposes of the FWA.

According to Walgreens, these matters, if properly revisited, re-

quired the dismissal of all three claims. In response, Lapham de-

fended the summary judgment ruling and asserted that Walgreens’

rehashed arguments did not warrant reconsideration.

On January 14, 2021, the district court granted the motion

for reconsideration. Critically, the district court agreed with

Walgreens that but-for causation is the proper causation standard

for both FWA and FMLA retaliation claims in light of the Supreme

Court’s reasoning in University of Texas Southwestern Medical Center

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 15 of 34

21-10491 Opinion of the Court 15

v. Nassar, 570 U.S. 338 (2013). See id. at 351–63 (determining that

the proper standard of causation for retaliation claims under Title

VII of the Civil Rights Act of 1964 is but-for causation based on 42

U.S.C. § 2000e-3(a)’s use of the word “because”). Using the but-for

causation standard, the district court concluded that Lapham had

“fail[ed] to produce evidence that [Walgreens’] proffered reason for

her termination . . . was merely a pretext to mask its real reason

(i.e., FMLA retaliation), and that but for the latter, [Walgreens]

would not have fired her.” Relatedly, the district court also con-

cluded that Lapham had failed to establish any triable issues as to

the interference claim. Based on these determinations, the district

court instructed the clerk to enter judgment in favor of Walgreens

on all three of Lapham’s claims.

Lapham timely appealed.

II. STANDARD OF REVIEW

“We review [a] district court’s grant of summary judgment

de novo.” Marbury v. Warden, 936 F.3d 1227, 1232 (11th Cir. 2019).

In doing so, we “view all the evidence and draw all reasonable in-

ferences in the light most favorable to the non-moving party.”

Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir.

2014). Summary judgment is proper when the evidence, viewed in

this light, “presents no genuine issue of material fact and compels

judgment as a matter of law in favor of the moving party.” Id.

(quoting Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1307 (11th

Cir. 2013)). We may affirm a grant of summary judgment “if there

exists any adequate ground for doing so, regardless of whether it is

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 16 of 34

16 Opinion of the Court 21-10491

. . . one on which the district court relied.” Fitzpatrick v. City of At-

lanta, 2 F.3d 1112, 1117 (11th Cir. 1993).

III. ANALYSIS

On appeal, Lapham argues that the district court erred by

entering judgment in favor of Walgreens on her FMLA and FWA

retaliation claims and her FMLA interference claim. For the rea-

sons that follow, we disagree.

A. The Retaliation Claims

We begin our analysis with Lapham’s two retaliation claims.

Claims of retaliation can be supported with either direct or circum-

stantial evidence. See Pennington v. City of Huntsville, 261 F.3d 1262,

1265 (11th Cir. 2001). But when a plaintiff alleging retaliation pre-

sents only circumstantial evidence and no direct evidence, we ap-

ply the burden-shifting framework set forth by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801–05 (1973). See

McAlpin v. Sneads, 61 F.4th 916, 927 (11th Cir. 2023). This is true

for both FMLA retaliation and FWA retaliation claims. See id.

Under the McDonnell Douglas framework, the plaintiff bears

the initial burden of establishing a prima facie case of retaliation.

Id. To do so, the plaintiff must show that “(1) [s]he engaged in stat-

utorily protected [conduct]; (2) [s]he suffered an adverse employ-

ment action; and (3) there is some causal relation between the two

events.” Id. (quoting Rice-Lamar v. City of Fort Lauderdale, 853 So.

2d 1125, 1132–33 (Fla. Dist. Ct. App. 2003)). If the plaintiff makes

that initial showing, the burden next “shifts to the defendant to

proffer a legitimate reason for the adverse action” taken against the

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 17 of 34

21-10491 Opinion of the Court 17

plaintiff. Id. (quoting Sierminski v. Transouth Fin. Corp., 216 F.3d

945, 950 (11th Cir. 2000)). This responsive burden is a simple “bur-

den of production that ‘can involve no credibility assessment.’”

Flowers v. Troup Cnty., Ga., Sch. Dist., 803 F.3d 1327, 1336 (11th Cir.

2015) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509

(1993)). And if the defendant clears that “low” hurdle, see id., “[t]he

burden then shifts back to the plaintiff to prove by a preponderance

of the evidence that the ‘legitimate’ reason is merely pretext for

prohibited, retaliatory conduct,” McAlpin, 61 F.4th at 927 (altera-

tion in original) (quoting Sierminski, 216 F.3d at 950). The plaintiff,

therefore, bears the ultimate burden of persuasion. See Flowers, 803

F.3d at 1336.

At the outset, Lapham contends that the McDonnell Douglas

framework is inapplicable because the record contains direct evi-

dence of retaliation in the form of the call records and testimony

regarding the April 4 and 5, 2017, conversations between Shelton

and HR. That evidence, in Lapham’s view, clearly establishes that

Shelton “complained” about her FMLA requests and thus consti-

tutes direct evidence that Shelton possessed a “retaliatory attitude.”

This view is mistaken. The evidence relating to the April 4 and 5

conversations certainly establishes that Shelton mentioned Lap-

ham’s FMLA leave requests while discussing Lapham’s workplace

conduct (which included then-unapproved absences) with HR. At

best, this supports an inference that Lapham’s termination was con-

nected to the requests for FMLA leave, but it does not directly

show that Shelton harbored any ill will on account of the requests.

And, as Lapham implicitly concedes, the rest of the evidence in the

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 18 of 34

18 Opinion of the Court 21-10491

record is circumstantial as well. Accordingly, McDonnell Douglas

squarely applies.

Within the framework of McDonnell Douglas, Lapham con-

tends that she met her initial burden to establish a prima facie case

of retaliation and also met her subsequent burden to rebut

Walgreens’ supposed nondiscriminatory justifications for her ter-

mination. In making this argument, Lapham maintains, as she did

below, that a prima facie case of retaliation under both the FMLA

and the FWA requires merely a motivating-factor showing of cau-

sation and not a but-for showing.13 As noted, the district court ini-

tially agreed with Lapham but, on reconsideration, determined

that her retaliation claims must satisfy a but-for causation standard.

And given that we have not yet clearly articulated the causation

standard for FMLA and FWA retaliation claims, 14 this is

13 Walgreens does not now dispute that Lapham engaged in statutorily pro-

tected conduct and suffered an adverse employment action—two of the three

components of the prima facie case of retaliation. Additionally, Lapham does

not dispute that Walgreens has proffered what it claims are legitimate reasons

for her termination. Thus, the dispute before us centers around the causation

component of the prima facie case and the question of pretext.

14 On one hand, we have said that, to prove FMLA retaliation, an employee

must show that her “employer’s actions ‘were motivated by an impermissible

retaliatory or discriminatory animus.’” Jones v. Gulf Coast Health Care of Del.,

LLC, 854 F.3d 1261, 1270 (11th Cir. 2017) (emphasis added) (quoting Strickland

v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1207 (11th Cir.

2001)); Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1267–68 (11th Cir. 2008)

(same). On the other hand, we have also said that FMLA retaliation claims

arise when “an employee asserts that his employer discriminated against him

because he engaged in activity protected by the [FMLA].” Jones, 854 F.3d at

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 19 of 34

21-10491 Opinion of the Court 19

unsurprisingly one of the main points of contention between the

parties on appeal.

In resolving this issue, we begin where we must: with the

text of the relevant statutes. The retaliation provision of the FMLA

provides that “[i]t shall be unlawful for any employer to discharge

or in any other manner discriminate against any individual for op-

posing any practice made unlawful by this subchapter.” 15 29 U.S.C.

1267 (emphasis added) (quoting Strickland, 239 F.3d at 1206); Pereda v.

Brookdale Senior Living Cmtys., Inc., 666 F.3d 1269, 1272 (11th Cir. 2012) (using

the same “because” language); see also Batson v. Salvation Army, 897 F.3d 1320,

1331 (11th Cir. 2018) (“At summary judgment, . . . we ask whether the evi-

dence, 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 her request for or use of FMLA leave.”).

15 Some of our sister circuits have suggested that 29 U.S.C. § 2615(a)(2) is not

the exclusive retaliation provision of the FMLA and that 29 U.S.C. § 2615(a)(1)

might be a better fit, depending on the circumstances of the case. See

§ 2615(a)(1) (“It shall be unlawful for any employer to interfere with, restrain,

or deny the exercise of or the attempt to exercise, any right provided under

this subchapter.”); see, e.g., Woods v. START Treatment & Recovery Ctrs., Inc.,

864 F.3d 158, 166–67 (2d Cir. 2017) (“We now hold that FMLA retaliation

claims like [the plaintiff’s], i.e., terminations for exercising FMLA rights by, for

example, taking legitimate FMLA leave, are actionable under § 2615(a)(1).”);

Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 160 n.4 (1st Cir. 1998) (“The

[FMLA] itself does not explicitly make it unlawful to discharge or discriminate

against an employee for exercising her rights under the Act . . . . Nevertheless,

the Act was clearly intended to provide such protection. . . . Such protection

can be read into § 2615(a)(1) . . . .”). But see Bryant v. Dollar Gen. Corp., 538 F.3d

394, 400–02 (6th Cir. 2008) (determining that § 2615(a)(2) is a source of retali-

ation claims).

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 20 of 34

20 Opinion of the Court 21-10491

§ 2615(a)(2) (emphasis added). Meanwhile, the retaliation provi-

sion of the FWA provides that “[a]n employer may not take any

retaliatory personnel action against an employee because the em-

ployee has” engaged in a specified protected activity. Fla. Stat.

§ 448.102 (emphasis added). Thus, both provisions contain either

“because [of]” language or equivalent language. 16 See For, Black’s

Law Dictionary (6th ed. 1990) (“Used in sense of ‘because of,’ ‘on

account of,’ or ‘in consequence of.’”); For, Merriam-Webster Diction-

ary, https://www.merriam-webster.com/dictionary/for (last

On some occasions, this Court has clearly divided § 2615(a)(1) and

§ 2615(a)(2), framing the former as the source of interference claims and the

latter as the source of retaliation claims. See O’Connor v. PCA Family Health

Plan, Inc., 200 F.3d 1349, 1352 (11th Cir. 2000); Strickland, 239 F.3d at 1206. On

other occasions, however, this Court has acknowledged some connection be-

tween § 2615(a)(1) and retaliation claims. See Munoz v. Selig Enters., Inc., 981

F.3d 1265, 1275, 1280 (11th Cir. 2020) (citing both § 2615(a)(1) and (2) for the

proposition that the FMLA prohibits retaliation, but later referring to

§ 2615(a)(2) as “[t]his anti-retaliation provision”); Surtain v. Hamlin Terrace

Found., 789 F.3d 1239, 1247 (11th Cir. 2015) (interpreting § 2615(a)(1) to “pro-

vide protection against retaliation for exercising or attempting to exercise

rights under the [FMLA]”). Either way, our precedent establishes that

§ 2615(a)(2) is relevant to FMLA retaliation claims; we therefore consider

§ 2615(a)(2) and its use of the word “for” when determining the proper causa-

tion standard for FMLA retaliation claims. This is consistent with the parties’

arguments.

16 Insofar as it is relevant, § 2615(b)—which governs interference with pro-

ceedings or inquiries—uses “because [of]” causation language. See id. (“It shall

be unlawful for any person to discharge or in any manner discriminate against

any individual because such individual [engaged in a specified protected activ-

ity].” (emphasis added)). There is no motivating-factor causation language

within § 2615.

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 21 of 34

21-10491 Opinion of the Court 21

visited September 27, 2023) (describing “for” as being synonymous

with “because of”). Although this kind of language does not, upon

first glance, explicitly endorse one causation standard or the other,

the Supreme Court’s decision in University of Texas Southwestern

Medical Center v. Nassar, 570 U.S. 338 (2013), indicates that this kind

of language carries with it a but-for standard.

In Nassar, the Supreme Court was faced with the task of

“defin[ing] the proper standard of causation for Title VII retaliation

claims.” Id. at 346. As relevant, Title VII’s retaliation provision

provides that “[i]t shall be an unlawful employment practice for an

employer to discriminate against any of his employees . . . because

he has opposed any practice made an unlawful employment prac-

tice by this subchapter, or because he [engaged in a specified pro-

tected activity].” 42 U.S.C. § 2000e-3(a) (emphasis added). In con-

sidering the full meaning and implications of that language with

respect to causation, the Supreme Court first noted that the default

causation standard in tort law, historically speaking, had been the

but-for standard. See Nassar, 570 U.S. at 346–47; see also Comcast

Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1014

(2020). Thus, the Supreme Court reasoned, “absent an indication

to the contrary in the statute itself,” a statute that sounds in tort is

“presumed to have incorporated” the default but-for standard. See

Nassar, 570 U.S. at 347. The Supreme Court then contrasted Title

VII’s retaliation provision, § 2000e-3(a), with its discrimination pro-

vision, 42 U.S.C. § 2000e-2(m), which expressly establishes a

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 22 of 34

22 Opinion of the Court 21-10491

motivating-factor causation standard.17 See id. at 347–57; see also

§ 2000e-2(m) (“[A]n unlawful employment practice is established

when the complaining party demonstrates that race, color, reli-

gion, sex, or national origin was a motivating factor for any employ-

ment practice, even though other factors also motivated the prac-

tice.” (emphasis added)). The absence of similar motivating-factor

language in the retaliation provision, according to the Supreme

Court, supported a but-for reading of that provision. See Nassar,

570 U.S. at 354 (explaining that, “[i]f Congress had desired to make

the motivating-factor standard applicable to all Title VII claims,”

Congress “could have inserted the motivating-factor provision as

part of a section that applies to all such claims, such as § 2000e-5,

which establishes the rules and remedies for all Title VII enforce-

ment actions”). Based on this reasoning, the Supreme Court con-

cluded that the proper causation standard for Title VII retaliation

claims is but-for causation. See id. at 362–63. And notably, in doing

so, the Supreme Court declined to defer to the interpretation of

Title VII’s retaliation provision articulated in an Equal Employ-

ment Opportunity Commission guidance manual. See id. at 360–

62.

Now, to be sure, Nassar concerned Title VII—a different

statute from the ones at issue here. Thus, when looking to Nassar

17 The Supreme Court also compared Title VII’s retaliation provision to the

language of the provisions enacted by the Age Discrimination in Employment

Act of 1967 and the Americans with Disabilities Act of 1990. See Nassar, 570

U.S. at 349–51, 354–57.

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 23 of 34

21-10491 Opinion of the Court 23

for guidance on how to interpret the FMLA and the FWA, “we

‘must be careful not to apply rules applicable under one statute to

a different statute without careful and critical examination.’” Gross

v. FBL Fin. Servs., Inc., 557 U.S. 167, 174 (2009) (quoting Fed. Express

Corp. v. Holowecki, 552 U.S. 389, 393 (2008)). With that in mind, the

retaliation provisions of both the FMLA and the FWA are suffi-

ciently similar to the retaliation provision of Title VII for Nassar to

be especially instructive. Critically, all three provisions use “be-

cause [of]” language or an equivalent. See 42 U.S.C. § 2000e-3(a);

29 U.S.C. § 2615(a)(2); Fla. Stat. § 448.102; see also Burrage v. United

States, 571 U.S. 204, 212–13 (2014) (“Where there is no textual or

contextual indication to the contrary, courts regularly read phrases

like ‘results from’ to require but-for causality. . . . Our insistence on

but-for causality has not been restricted to statutes using the term

‘because of.’”). And all three provisions were enacted against the

historic, default but-for causation standard. 18 See Nassar, 570 U.S.

at 346–47; Comcast, 140 S. Ct. at 1014. Moreover, at least with

18 Many district courts within this Circuit have determined, based on Nassar,

that the applicable causation standard for FMLA retaliation claims is the “but-

for” standard. See, e.g., Jimenez-Ruiz v. Sch. Bd., No. 8:18-CV-01768, 2020 WL

434927, at *8 n.4 (M.D. Fla. Jan 28, 2020); Garrard v. Wal-Mart Stores, Inc., No.

8:15-cv- 2476, 2016 WL 11491316, at *4 (M.D. Fla. Nov. 7, 2016); Jones v. Allstate

Ins. Co., 281 F. Supp. 3d 1211, 1219 (N.D. Ala. 2016), aff’d, 707 F. App’x 641

(11th Cir. 2017); Sparks v. Sunshine Mills, Inc., No. 3:12-cv-02544, 2013 WL

4760964, at *17 n.4 (N.D. Ala. Sept. 4, 2013), aff’d, 580 F. App’x 759 (11th Cir.

2014). Those rulings are consistent with our precedent, which has endorsed

construing the FMLA’s retaliation provision in the same manner as Title VII’s.

See Munoz, 981 F.3d at 1280.

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 24 of 34

24 Opinion of the Court 21-10491

respect to the FWA, we are bound to follow Nassar because that is

what the only Florida appellate court to address this issue did. See

Chaudhry v. Adventist Health Sys. Sunbelt, Inc., 305 So. 3d 809, 817

(Fla. Dist. Ct. App. 2020) (“Nassar requires the use of a ‘but for’ ra-

ther than a ‘motivating factor’ causation standard when analyzing

claims under [the FWA].”); see also Nunez v. Geico Gen. Ins. Co., 685

F.3d 1205, 1210 (11th Cir. 2012) (“Absent a clear decision from the

Florida Supreme Court on [an] issue, ‘we are bound to follow de-

cisions of the state’s intermediate appellate courts unless there is

some persuasive indication that the highest court of the state

would decide the issue differently.’” (quoting McMahan v. Toto, 311

F.3d 1077, 1080 (11th Cir. 2002))).

Despite the parallels to Title VII’s retaliation provision, Lap-

ham insists that at least the FMLA’s retaliation provision is mean-

ingfully distinguishable because the FMLA elsewhere delegates au-

thority to the Department of Labor (“DOL”), which has endorsed

a “negative factor” causation standard for retaliation claims. This

is in reference to 29 U.S.C. § 2654, a provision of the FMLA that

states that “[t]he Secretary of Labor shall prescribe such regulations

as are necessary to carry out” other portions of the FMLA, and 29

C.F.R § 825.220(c), a DOL regulation that interprets the FMLA to

mean that “employers cannot use the taking of FMLA leave as a

negative factor in employment actions.” (Emphasis added). In light

of these authorities, Lapham contends that we ought to defer to

the DOL and read the FMLA’s retaliation provision as departing

from the default but-for causation standard.

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 25 of 34

21-10491 Opinion of the Court 25

When deciding whether to defer to an agency’s interpreta-

tion of its own enabling statute, we are required to apply the two-

step framework set forth by the Supreme Court in Chevron v. Natu-

ral Resources Defense Council, 467 U.S. 837 (1984). 19 Under that

framework, we first ask “whether Congress has directly spoken to

the precise question at issue.” Id. at 842. If Congress has, “that is

the end of the matter,” for we “must give effect to the unambigu-

ously expressed intent of Congress.” Id. at 842–43. If Congress has

not, we then proceed to ask “whether the agency’s answer is based

on a permissible construction of the statute,” id. at 843, or in other

words, “whether the agency’s construction is ‘rational and con-

sistent with the statute,’” Sullivan v. Everhart, 494 U.S. 83, 89 (1990)

(quoting NLRB v. Food & Com. Workers, 484 U.S. 112, 123 (1987)).

Thus, we defer to an agency’s interpretation of a statute only when

Congress has not directly spoken on the precise question at issue

and the agency’s interpretation is rational and consistent with the

statute.

In this case, Lapham’s deference argument fails at the first

step of the Chevron framework. Applying the reasoning of Nassar,

by writing the FMLA’s retaliation provision to include the equiva-

lent of “because [of]” language (and no other causation language),

Congress clearly chose to embrace the default but-for causation

19 This is true at least for the time being.

See Loper Bright Enters. v. Raimondo,

143 S. Ct. 2429 (2023) (granting certiorari to consider “[w]hether the Court

should overrule Chevron or at least clarify that statutory silence concerning

controversial powers expressly but narrowly granted elsewhere in the statute

does not constitute an ambiguity requiring deference to the agency”).

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 26 of 34

26 Opinion of the Court 21-10491

standard. And because Congress did so, we cannot defer to the

DOL’s contrary interpretation. See Hylton v. U.S. Att’y Gen., 992

F.3d 1154, 1158 (11th Cir. 2021) (“[I]f Congress has written clearly,

then our inquiry ends and ‘we must give effect to the unambigu-

ously expressed intent of Congress.’” (quoting Barton v. U.S. Att’y

Gen., 904 F.3d 1294, 1298 (11th Cir. 2018))).

For these reasons, we hold that the proper causation stand-

ard for FMLA and FWA retaliation claims is but-for causation. Our

next task, then, is to determine whether Lapham has raised any tri-

able issue of fact as to her retaliation claims in light of the McDonnell

Douglas framework and its incorporation of the but-for causation

standard. See Flowers, 803 F.3d at 1336.

As relevant, but-for causation “is established whenever a

particular outcome would not have happened ‘but for’ the pur-

ported cause.” Bostock v. Clayton County, 140 S. Ct. 1731, 1739

(2020). Thus, the but-for test “directs us to change one thing at a

time and see if the outcome changes.” Id. If it does, the isolated

factor is a but-for cause. And if it does not, the isolated factor is not

a but-for cause, and all of the other factors, taken together, are suf-

ficient. See id.; see also Burrage, 571 U.S. at 211 (describing a but-for

cause as a “straw that broke the camel’s back”). To be clear, single

events often “have multiple but-for causes,” so the but-for standard

can be quite “sweeping,” depending on the circumstances. Bostock,

140 S. Ct. at 1739. For purposes of McDonnell Douglas, this but-for

standard demarcates the causation component of the employee’s

initial, prima facie showing requirement and also shapes the

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 27 of 34

21-10491 Opinion of the Court 27

subsequent burdens of both the employer (i.e., to proffer a legiti-

mate reason sufficient to justify the termination) and the employee

(i.e., to show that the reason proffered by the employer is pre-

textual).

With this understanding, we agree with the district court

that Lapham has failed to produce sufficient evidence showing that

Walgreens’ proffered reasons for her termination were merely pre-

text for retaliation and that, but for the retaliation, Walgreens

would not have fired her. Walgreens maintains that Lapham was

terminated for insubordination and dishonesty, and that justifica-

tion is consistent with Shelton’s testimony during this litigation as

well as what she reported to HR on April 4 and 5, 2017. It also is

consistent with Lapham’s performance reviews from previous

years, in which other managers (i.e., not Shelton) reported that

Lapham had performance and communication issues and failed to

complete her assigned tasks on multiple occasions. And Lapham

has failed to “meet [Walgreens’ justifications] head on” and mean-

ingfully rebut them. 20 Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253,

20 To be sure, Lapham has broadly denied “engag[ing] in any ‘insubordina-

tion,’” failing to complete assigned tasks, and “ma[king] up excuses not to do

tasks.” But Lapham has also acknowledged that, on some occasions, her as-

signed tasks were not completed. She blames those instances on Shelton’s

directions to “do something else.” In addition to being somewhat equivocal,

this testimony does not directly address what matters: whether Shelton and

Walgreens had a good-faith belief that Lapham sometimes improperly failed

to complete assigned tasks. See Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d

1121, 1149 (11th Cir. 2020) (en banc) (“What matters in this inquiry is what the

employer in good faith believes the employee to have done, not whether the

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 28 of 34

28 Opinion of the Court 21-10491

1266 (11th Cir. 2010) (quoting Chapman v. Al Transport, 229 F.3d

1012, 1030 (11th Cir. 2000) (en banc)).

Instead, Lapham simply chalks her termination up to retali-

ation while pointing to several pieces of evidence that, taken to-

gether, fail to create a genuine issue of fact on the issue. For in-

stance, Lapham points to the evidence that Shelton brought up

Lapham’s FMLA leave requests during the April 4 and 5, 2017, dis-

cussions with HR about her alleged performance issues. But the

fact that Shelton mentioned Lapham’s then-pending FMLA leave

requests to HR does not raise any red flags given that, according to

Miranda, it is standard practice at Walgreens for HR to ask manag-

ers about FMLA leave requests during these sorts of conversations.

Lapham also points to evidence that, on multiple instances before

April 4, 2017, Shelton denied Lapham’s informal requests to change

the schedule so that she could take specific days off. However, this

evidence carries minimal weight considering that Lapham’s official

requests for FMLA leave had not yet been approved by HR at the

time of these informal requests to Shelton.21

employee actually engaged in the particular conduct.”). For these reasons,

Lapham’s testimony is not sufficient by itself to create a genuine issue of ma-

terial fact on this issue. Nor is it accompanied by any other evidence that cre-

ates a genuine issue.

21 According to Lapham, when Shelton denied the requests for specific days

off, she said “[n]o, the schedule is already up,” “make other accommodations,”

and “[y]ou need to be able to do your job and you are not doing your job.”

Lapham characterizes these statements as “hostile and discriminatory com-

ments,” but, in truth, they do not rise to the level required to support a claim

of retaliation. Cf. Jones, 854 F.3d at 1270–71, 1275–76 (finding a genuine issue

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 29 of 34

21-10491 Opinion of the Court 29

Lapham’s only other notable evidence of retaliation pertains

to the timing of her FMLA leave requests. Lapham contends that

the fact that Shelton took eleven days to sign and submit her origi-

nal 2017 leave request form and then seven days to sign and submit

her updated 2017 leave request form is evidence of a retaliatory

motive on the part of Shelton. Lapham also contends that the prox-

imity in time between the final submission of her updated 2017

leave request (April 7, 2017) and her termination (April 13, 2017) is

further evidence of a retaliatory connection. The issue with Lap-

ham’s first argument is that Shelton’s delays were not so unreason-

able as to indicate a retaliatory motive. And the issue with Lap-

ham’s second argument is that, generally speaking, a close tem-

poral proximity between requesting leave and being terminated is

not sufficient to establish pretext in the absence of other, meaning-

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

1286, 1298 (11th Cir. 2006) (noting that a close temporal proximity

of “no more than two weeks, under the broadest reading of the

facts,” would “probably” be “insufficient to establish pretext by it-

self”). Ultimately, considering the circumstances, these timing ar-

guments do not expose any genuine issues of material fact.

In sum, Lapham has failed to adequately show that

Walgreens’ proffered reasons for her termination (i.e.,

of material fact as to retaliation where the supervisor made comments that

“corporate would not like the timing of [the employee’s] FMLA leave” and

that the employee was being suspended because corporate believed that he

had abused and misused his FMLA leave).

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 30 of 34

30 Opinion of the Court 21-10491

insubordination and dishonesty) were merely pretext for retalia-

tion and that, but for her attempts to exercise her FMLA rights, she

would not have been fired. 22 Accordingly, the district court did not

err in granting summary judgment to Walgreens on Lapham’s

FMLA and FWA retaliation claims.

B. The Interference Claim

We turn next to Lapham’s FMLA interference claim. To

succeed on such a claim, a plaintiff must prove that she was “denied

a benefit to which [she] was entitled under the FMLA,” 23 McAlpin,

61 F.4th at 927 (quoting Schaaf v. Smithkline Beecham Corp., 602 F.3d

1236, 1241 (11th Cir. 2010)), and that, as a result, she was prejudiced

in some way that is “remediable by either ‘damages’ or ‘equitable

relief,’” Ramji v. Hosp. Housekeeping Sys., LLC, 992 F.3d 1233, 1241

(11th Cir. 2021) (quoting Evans v. Books-A-Million, 762 F.3d 1288,

1296 (11th Cir. 2014)).

22 Lapham separately contends that the district court failed to afford proper

weight to evidence postdating the April 5, 2017, phone call, which (according

to Lapham, at least) also goes to causation. To be clear, we have considered

this argument and the evidence Lapham cites in support, and none of it moves

the needle.

23 An employee does not have to expressly assert his right to take FMLA leave

in order to be entitled to it but must at least provide notice that is “sufficient

to make the employer aware that the employee needs FMLA-qualifying leave,

and [of] the anticipated timing and duration of the leave.” Cruz v. Publix Super

Mkts., Inc., 428 F.3d 1379, 1383 (11th Cir. 2005) (quoting 29 C.F.R.

§ 825.302(c)).

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 31 of 34

21-10491 Opinion of the Court 31

Unlike retaliation claims, a plaintiff bringing an interference

claim is not required to make any showing regarding the em-

ployer’s motives. See McAlpin, 61 F.4th at 927 (“The ordinary rule

is that the employer’s ‘motives are irrelevant to an interference

claim’ . . . .” (quoting Batson v. Salvation Army, 897 F.3d 1320, 1331

(11th Cir. 2018))). In cases where the alleged interference was the

decision to terminate an employee, however, the employer “may

defend against a[n] FMLA interference claim by establishing that

the employee would have been terminated anyway.” 24 Id.; see also

Spakes v. Broward Cnty. Sheriff’s Off., 631 F.3d 1307, 1310 (11th Cir.

2011) (“If an employer demonstrates that it would have discharged

an employee ‘for a reason wholly unrelated to the FMLA leave, the

employer is not liable’ under the FMLA for damages for failure to

reinstate.” (quoting Strickland, 239 F.3d at 1208)).

Here, Lapham alleges that, had Walgreens promptly ap-

proved the original leave request that she submitted in February

2017 rather than seek clarification and cause further delay, it “may

have avoided both Shelton’s refusal to provide [Lapham] days off

to care for [her son] and . . . her later firing in April of 2017 due to

Shelton’s continued and growing FMLA animus.” Lapham thus

24 Critically, the burden of establishing this affirmative defense is greater than

the burden at the second step of the McDonnel Douglas framework for retalia-

tion claims, where the employer must merely articulate a legitimate, nondis-

criminatory reason. See 411 U.S. at 802. Here, to defeat an interference claim

based on a termination, the employer must point to evidence persuading the

court of the independent reason for the termination. See Spakes, 631 F.3d at

1310; McAlpin, 61 F.4th at 933–34.

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 32 of 34

32 Opinion of the Court 21-10491

alleges that she experienced two harms as a result of Walgreens’

interference: (1) the denial of certain days off and (2) termination

of her employment.

Insofar as Lapham’s interference claim is based on the denial

of certain days off, Lapham has failed to produce evidence showing

that she suffered any remediable prejudice. Lapham has not, for

example, shown that she incurred expenses when obtaining trans-

portation for her son to and from medical appointments on the

days for which she had requested but was denied time off. Nor has

she shown that she incurred expenses by rescheduling those ap-

pointments. Because Lapham has not offered any explanation of

how the denial of certain days off produced a harm that is remedi-

able by either damages or equitable relief, her interference claim

fails to the extent that it is based on those denials.

Meanwhile, insofar as Lapham’s interference claim is based

on her termination, Walgreens has successfully met its burden of

showing that Lapham truly was terminated for the stated reason of

insubordination. Walgreens has done so by producing, among

other things: Shelton’s testimony about Lapham’s work conduct;

Shelton’s log of specific instances wherein Lapham exhibited insub-

ordination or otherwise failed to meet expectations; the call logs

for Shelton’s discussions with HR on April 4 and 5, 2017; Miranda’s

testimony about those discussions; and multiple performance re-

views prepared by different managers establishing that, on multiple

occasions, Lapham failed to complete her assigned tasks. And ra-

ther than meaningfully rebut this evidence, Lapham has conceded

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 33 of 34

21-10491 Opinion of the Court 33

that she sometimes did not complete her assigned tasks but simply

blamed those failures on her supervisors’ instructions. On this

record, Walgreens has met its burden in establishing its defense

that Lapham was terminated for a reason wholly unrelated to the

FMLA.

We therefore conclude that the district court did not err in

granting summary judgment to Walgreens on Lapham’s FMLA in-

terference claim.

IV.

For these reasons, we affirm the district court’s grant of sum-

mary judgment in favor of Walgreens.

AFFIRMED.

USCA11 Case: 21-10491 Document: 59-1 Date Filed: 12/13/2023 Page: 34 of 34

1 WILSON, J., Dissenting 21-10491

WILSON, Circuit Judge, dissenting:

I agree with the majority that the proper causation standard

for both Family Medical Leave Act (FMLA) and Florida Whistle-

blower Act (FWA) retaliation claims is but-for causation. But I

would hold that there are genuine issues of material fact that pre-

clude summary judgment on all of Doris Lapham’s claims—both

her FMLA and FWA retaliation claims and her FMLA interference

claim. Thus, I would reverse the district court. I respectfully dis-

sent.