Petition for Writ of Certiorari — Doris Lapham, Petitioner v. Walgreen Co.

Supreme Court briefJun 5, 2024

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No. 23In the

Supreme Court of the United States

DORIS LAPHAM,

Petitioner,

WALGREEN CO., A FOR-PROFIT AND FOREIGN

CORPORATION, A.K.A. WALGREENS,

Respondent.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Kelly H. Chanfrau, B.C.S.

Chanfrau & Chanfrau, P.L.

701 North Peninsula Drive

Daytona Beach, FL 32118

(386) 258-7313

kelly@chanfraulaw.com

Brandon K. Breslow

Counsel of Record

Kristin A. Norse

Kynes, Markman

& Felman, P.A.

P.O. Box 3396

Tampa, FL 33601

(813) 229-1118

bbreslow@kmf-law.com

knorse@kmf-law.com

Co-Counsel for Petitioner

116724

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

The Family and Medical Leave Act makes it “unlawful

for any employer to interfere with, restrain, or deny the

exercise of or the attempt to exercise, any right” that

the Act provides in Subchapter I, which includes taking

leave. 29 U.S.C. § 2615(a)(1). Seven circuit courts have

held it is a violation of Section 2615(a)(1) to retaliate

against an employee who exercised her FMLA rights. The

Department of Labor shares that view of retaliation-forexercise claims in 29 C.F.R. § 825.220(c). The regulation

states that “employers cannot use the taking of FMLA

leave as a negative factor in employment actions, such

as hiring, promotions or disciplinary actions.” The DOL

regulation’s negative factor test is akin to a motivating

factor causation standard, and eight circuit courts apply it.

In the decision below affirming summary judgment

for Walgreens, the Eleventh Circuit held that retaliationfor-exercise claims are governed by 29 U.S.C. § 2615(a)(2)

rather than Section 2615(a)(1). Then, it concluded—based

on the language of Section 2615(a)(2)—that a heightened

but-for causation standard applied to retaliation-forexercise claims, not the motivating or negative factor test.

The questions presented are:

Whether 29 U.S.C. § 2615(a)(1) prohibits an

employer from retaliating against an employee

who has exercised her rights under the FMLA.

If 29 U.S.C. § 2615(a)(1) does support a retaliationfor-exercise claim, whether an employee must

show that her protected conduct was only a

motivating or negative factor—rather than the

but-for cause—of an adverse employment action.

RELATED PROCEEDINGS

Eleventh Circuit: Lapham v. Walgreen Co., Case No.

21-10491 (11th Cir.)

United States District Court for the Middle District

of Florida: Lapham v. Walgreen Co., Case No. 6:19-cv579-PDB-DCI (M.D. Fla.)

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . vi

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . 1

RELEVANT STATUTORY PROVISIONS . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 6

A. Factual background. . . . . . . . . . . . . . . . . . . . . . . . 6

B. Procedural background. . . . . . . . . . . . . . . . . . . . 10

REASONS FOR GRANTING THE WRIT . . . . . . . . . 12

Circuit courts are divided on the statutory

basis for a common type of FMLA retaliation

claim, and the decision below creates a

brand-new circuit split over that claim’s

causation standard. . . . . . . . . . . . . . . . . . . . . . . . 12

Table of Contents

Page

A. Circuit courts disagree over whether

a retaliation claim ex ists under

Section 2615(a)(1)’s inter ference

provision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. Contrary to the decision below, eight

circuit courts apply a motivating or

negative factor causation test to a

retaliation-for-exercise claim. . . . . . . . . . . . 17

II. The questions presented are important and

frequently recurring. . . . . . . . . . . . . . . . . . . . . . . 23

III. This case is the proper vehicle for the

Court’s review. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

IV. The Eleventh Circuit’s construction of

the FMLA is wrong. . . . . . . . . . . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STAT ES COU RT OF A PPEA LS FOR

T H E ELE V EN T H CI RCU I T, FI LED

DECEMBER 13, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A PPENDI X B — J U DGMEN T OF THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT, FILED

DECEMBER 13, 2023 . . . . . . . . . . . . . . . . . . . . . . . . 35a

A PPEN DI X C — OR DER OF T H E

UNITED STATES DISTRICT COURT

M I D DL E DI S T R IC T O F F L O R I DA

ORLANDO DIVISION, FILED OCTOBER

19, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36a

A PPEN DI X D — OR DER OF T H E

UNITED STATES DISTRICT COURT

M I DDL E DI S T R IC T OF F L OR I DA ,

ORLANDO DIVISION, FILED JANUARY

14, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69a

APPENDIX E — JUDGMENT IN A CIVIL

CA SE OF T H E U NI T ED STAT ES

DISTRICT COURT MIDDLE DISTRICT OF

FLORIDA, ORLANDO DIVISION, FILED

JANUARY 15, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . 81a

APPENDIX F — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT,

FILED FEBRUARY 6, 2024 . . . . . . . . . . . . . . . . . . 83a

TABLE OF CITED AUTHORITIES

Page

Cases:

Bachelder v. Am. W. Airlines, Inc.,

259 F.3d 1112 (9th Cir. 2001) . . . . . . . . . . . . 3, 4, 13, 15,

17-19, 23, 27, 28

Brungart v. BellSouth Telecomms., Inc.,

231 F.3d 791 (11th Cir. 2000) . . . . . . . . . . . . . 15, 16, 22

Bryant v. Dollar Gen. Corp.,

538 F.3d 394 (6th Cir. 2008) . . . . . . . . . . . . . . . . . . . . 23

California Acrylic Indus. Inc. v. N.L.R.B.,

150 F.3d 1095 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . 19

Campbell v. Gambro Healthcare, Inc.,

478 F.3d 1282 (10th Cir. 2007) . . . . . . . . . . . . . . . . . . 16

Cannon v. Univ. of Chicago,

441 U.S. 677 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Carrero-Ojeda v. Autoridad de Energia

Electrica,

755 F.3d 711 (1st Cir. 2014) . . . . . . . . . . . . . . . . . . . . . 18

Chevron USA Inc. v. Natural Resources

Defense Council, Inc.,

467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . 18, 22, 29

Comcast Corp. v. Nat’l Ass’n of AfricanAmerican Owned Media,

589 U.S. 327 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 24

vii

Cited Authorities

Page

Egan v. Del. River Port Auth.,

851 F.3d 263 (3d Cir. 2017) . . . 3, 4, 13, 15, 17, 21-23, 29

Fed. Express Corp. v. Holowecki,

552 U.S. 389 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Fry v. Rand Constr. Corp.,

964 F.3d 239 (4th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 17

Gibson v. City of Louisville,

336 F.3d 511 (6th Cir. 2003) . . . . . . . . . . . . . . . . . . . . 20

Gordon v. U.S. Capitol Police,

778 F.3d 158 (D.C. Cir. 2015) . . . . . 3, 13, 15, 23, 24, 28

Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167 (2009) . . . . . . . . . . . . . . . . . . . 5, 20-22, 24

Hall v. Bd. of Educ. of City of Chicago,

No. 14-cv-3290, 2018 WL 587151

(N.D. Ill. Jan. 29, 2018) . . . . . . . . . . . . . . . . . . . . . . . . 24

Hite v. Vermeer Mfg. Co.,

446 F.3d 858 (8th Cir. 2006) . . . . . . . . . . . . 4, 17, 20, 25

Hodgens v. Gen. Dynamics Corp.,

144 F.3d 151 (1st Cir. 1998) . . . . . 3, 4, 13, 14, 17, 18, 23

Hunter v. Valley View Loc. Schs.,

579 F.3d 688 (6th Cir. 2009) . . . . . . . . . . . . . . . 4, 17, 21

viii

Cited Authorities

Page

Jones v. Gulf Coast Health of Del., LLC,

854 F.3d 1261 (11th Cir. 2017) . . . . . . . . . . . . . . . . . . 10

K Mart Corp. v. Cartier, Inc.,

486 U.S. 281 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Lewis v. Sch. Dist. # 70,

523 F.3d 730 (7th Cir. 2008) . . . . . . . . . . . . . . . 4, 17, 20

Logue v. RAND Corp.,

668 F. Supp. 3d 53 (D. Mass. 2023) . . . . . . . . . . . . . . 24

Lorillard v. Pons,

434 U.S. 575 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Lovland v. Emps. Mut. Cas. Co.,

674 F.3d 806 (8th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 17

Meco Corp. v. N.L.R.B.,

986 F.2d 1434 (D.C. Cir. 1993) . . . . . . . . . . . . . . . 19, 28

Milman v. Fieger & Fieger, P.C.,

58 F.4th 860 (6th Cir. 2023) . . . . . . 3, 13, 14, 22, 23, 27

Murray v. UBS Sec., LLC,

601 U.S. 23 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 24

N.L.R.B. v. Burnup & Sims, Inc.,

379 U.S. 21 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . 19, 28

Cited Authorities

Page

Nat’l Credit Union Admin. Bd. v.

Nomura Home Equity Loan, Inc.,

764 F.3d 1199 (10th Cir. 2014) . . . 28, 29, 13, 14, 22, 23, 27

Nat’l Lead Co. v. United States,

252 U.S. 140 (1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Northcross v. Bd. of Ed. of Memphis City Sch.,

412 U.S. 427 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Pulczinski v. Trinity Structural Towers, Inc.,

691 F.3d 996 (8th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 20

Richardson v. Monitronics Int’l, Inc.,

434 F.3d 327 (5th Cir. 2005) . . . . . . . . . . . . . . . 4, 17, 20

Ring v. Boca Ciega Yacht Club Inc.,

4 F.4th 1149 (11th Cir. 2021) . . . . . . . . . . . . . . . . . . . . 25

Russello v. United States,

464 U.S. 16 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

Simpson v. Off. of Chief Judge of Cir. Ct.

of Will Cnty.,

559 F.3d 706 (7th Cir. 2009) . . . . . . . . . . . . 3, 13, 15, 23

Stallings v. Hussmann Corp.,

447 F.3d 1041 (8th Cir. 2006) . . . . . . . . . . . . . . . . 16, 17

Stern Produce Co. v. N.L.R.B.,

97 F.4th 1 (D.C. Cir. 2024) . . . . . . . . . . . . . . . . . . . . . 19

Cited Authorities

Page

Stokeling v. United States,

586 U.S. 73 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Surtain v. Hamlin Terrace Found.,

789 F.3d 1239 (11th Cir. 2015) . . . . . . . . . 11, 15, 16, 22

Thomas v. District of Columbia,

227 F. Supp. 3d 88 (D.D.C. 2016) . . . . . . . . . . . . . . . . 24

Thompson v. Gold Medal Bakery, Inc.,

989 F.3d 135 (1st Cir. 2021) . . . . . . . . . . . . . . . . . . . . 18

United States v. Moore,

95 U.S. 760 (1877) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

United States v. Wong Kim Bo,

472 F.2d 720 (5th Cir. 1972) . . . . . . . . . . . . . . . . . . . . 28

Univ. of Tex. Sw. Med. Ctr. v. Nassar,

570 U.S. 338 (2013) . . . . . . . . . . . . . . . . 5, 12, 21-24, 26

Woods v. START Treatment & Recovery

Ctrs., Inc.,

864 F.3d 158 (2d Cir. 2017) . . 3, 4, 13-15, 17, 21-23, 27, 29

Yashenko v. Harrah’s NC Casino Co.,

446 F.3d 541 (4th Cir. 2006) . . . . . . . . . . . . . . . . . . . . 17

Cited Authorities

Page

Statutes and Other Authorities:

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

29 U.S.C. § 157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

29 U.S.C. § 158(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 28

29 U.S.C. § 623(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

29 U.S.C. § 2601(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

29 U.S.C. § 2612(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

29 U.S.C. § 2615 . . . . . . . . . . . . 1, 3, 5, 6, 18, 22, 23, 26, 29

29 U.S.C. § 2615(a)(1) . . . . . . . . 1-4, 6, 11-19, 22-24, 26-29

29 U.S.C. § 2615(a)(2) . . . . . . . . . . 2-5, 11-17, 22-24, 26, 27

29 U.S.C. § 2615(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 27

29 U.S.C. § 2654 . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 18, 22

42 U.S.C. § 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

29 C.F.R. § 825.220(c) . . . . . . . . . . . . . . . . . . . . . 2-4, 18, 20

29 C.F.R. § 825.300(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

73 Fed. Reg. 67986 (Nov. 17, 2008) . . . . . . . . . . . . . . . . . . 2

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) . . . . . . . . . 27

PETITION FOR A WRIT OF CERTIORARI

Petitioner Doris Lapham respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW

The panel decision of the United States Court of

Appeals for the Eleventh Circuit is reported at 88 F.4th

879 and reprinted in the Appendices to the Petition (“Pet.

App.”) at 1a-34a. The relevant proceedings in the Middle

District of Florida are unpublished. The district court’s

summary judgment orders have been reprinted in the

Appendices to the Petition at 36a-80a.

JURISDICTIONAL STATEMENT

The Eleventh Circuit entered the decision below on

December 13, 2023, and judgment was entered the same

day. Pet. App. 1a, 35a. A timely filed rehearing petition

was denied in the Eleventh Circuit on February 6, 2024.

Id. at 83a-84a.

On April 22, 2024, Justice Thomas extended the time

to file a petition for a writ of certiorari from May 6, 2024,

to June 5, 2024. See Case No. 23A939. The Court has

jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

The FMLA includes distinct causes of action

for retaliation in 29 U.S.C. § 2615. The first is the

statute’s interference provision in subsection (a)(1).

Subsection (a)(1) makes it “unlawful for any employer

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

the attempt to exercise, any right provided under”

Subchapter I of the FMLA. Subsection (a)(2) and

subsection (b) protect whistleblowers. Subsection (a)(2)

states that it is “unlawful for any employer to discharge

or in any other manner discriminate against any

individual for opposing any practice made unlawful by this

subchapter.” Subsection (b) prohibits an employer from

“discharg[ing] or in any other manner discriminat[ing]

against any individual because such individual” engaged

in certain protected conduct related to a charge, inquiry,

or proceeding against the employer.

Section 2654 of the FMLA, 29 U.S.C. § 2654, directs

the Labor Secretary to “prescribe such regulations as

are necessary to carry out” Subchapters I and III of the

Act. The DOL implemented 29 C.F.R. § 825.220(c), which

states that “employers cannot use the taking of FMLA

leave as a negative factor in employment actions, such

as hiring, promotions or disciplinary actions.” In 2008,

the DOL amended § 825.220(c) to make clear it is the

FMLA’s “prohibition against interference”—subsection

(a)(1)—that “prohibits an employer from discriminating or

retaliating against an employee or prospective employee

for having exercised or attempted to exercise FMLA

rights.” See also 73 Fed. Reg. 67986 (Nov. 17, 2008)

(adopting proposed rule amendment).

INTRODUCTION

The FMLA g uarantees qualify ing employees

“reasonable leave … for the care of a child, spouse, or

parent who has a serious health condition.” 29 U.S.C.

§ 2601(b)(2); see also 29 U.S.C. § 2612(a)(1). Congress gave

teeth to this groundbreaking law by establishing private

rights of action against employers in 29 U.S.C. § 2615. The

questions presented concern the interpretation of Section

2615(a)(1) as the basis for a common type of retaliation

claim under the FMLA.

Ms. Lapham contends that when she was fired

for requesting FMLA leave, Walgreens violated the

interference provision of Section 2615(a)(1). Her reading

of the statute is supported by the definitive holdings of

seven circuit courts. See Milman v. Fieger & Fieger, P.C.,

58 F.4th 860, 866-67 (6th Cir. 2023); Woods v. START

Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 167 (2d

Cir. 2017); Egan v. Del. River Port Auth., 851 F.3d 263,

270 (3d Cir. 2017); Gordon v. U.S. Capitol Police, 778

F.3d 158, 161 (D.C. Cir. 2015); Simpson v. Off. of Chief

Judge of Cir. Ct. of Will Cnty., 559 F.3d 706, 712 (7th Cir.

2009); Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112,

1124-25 (9th Cir. 2001); Hodgens v. Gen. Dynamics Corp.,

144 F.3d 151, 160 n.4 (1st Cir. 1998). The Department of

Labor understands Section 2615 in the same way. See

29 C.F.R. § 825.220(c) (“The Act’s prohibition against

interference prohibits an employer from discriminating or

retaliating against an employee or prospective employee

for having exercised or attempted to exercise FMLA

rights.”).

Unlike the text of the whistleblower protections in

Section 2615(a)(2) or Section 2615(b), Section 2615(a)(1)’s

interference provision does not include an explicit but-for

causation standard. At Congress’s behest, 29 U.S.C.

§ 2654, the Department of Labor implemented an

accompanying regulation that requires an employee’s

FMLA leave or attempted leave not be a “negative

factor” in the employer’s disciplinary decision. 29 C.F.R.

§ 825.220(c).

Eight circuit courts apply a motivating or negative

factor causation standard to retaliation claims like

Ms. Lapham’s. See Woods, 864 F.3d at 169; Egan, 851 F.3d

at 273-74; Hunter v. Valley View Loc. Schs., 579 F.3d 688,

691-92 (6th Cir. 2009); Lewis v. Sch. Dist. # 70, 523 F.3d

730, 741-42 (7th Cir. 2008); Hite v. Vermeer Mfg. Co., 446

F.3d 858, 865 (8th Cir. 2006); Richardson v. Monitronics

Int’l, Inc., 434 F.3d 327, 334 (5th Cir. 2005); Bachelder,

259 F.3d at 1122-25; Hodgens, 144 F.3d at 160 n.4. Most

of those courts liken the DOL regulation’s negative

factor test to the motivating factor causation standard

that is commonplace in federal employment discrimination

statutes. See, e.g., Woods, 864 F.3d at 166; Egan, 851 F.3d

at 272; Hunter, 579 F.3d at 691-92; Lewis, 523 F.3d at

741-42; Richardson, 434 F.3d at 334.

Yet, in this case, the Eleventh Circuit held that the

motivating or negative factor causation standard does

not apply to retaliation-for-exercise claims based on the

erroneous conclusion those claims are grounded in Section

2615(a)(2). It did not look to the text of Section 2615(a)(1),

nor did it give the DOL regulation any deference or

consideration.

All of the criteria for the Court’s review are satisfied.

The Eleventh Circuit’s decision sharpened a real circuit

split over whether Section 2615(a)(1) supports a retaliationfor-exercise claim. While other circuit courts have,

incorrectly, failed to consider Section 2615(a)(1) as one of

the FMLA’s retaliation provisions, their decisions have

eluded the Court’s review. This one should not. The Eleventh

Circuit seized on the language of Section 2615(a)(2) to

reach the novel holding that a plaintiff must show the

exercise of her FMLA rights was the but-for cause of an

adverse employment action rather than a mere motivating

or negative factor. The result is a brand-new circuit split

on the law that governs retaliation-for-exercise claims.

Second, the questions presented are important. The

Court routinely hears cases to establish the elements of

discrimination and retaliation claims because those claims

are the common subject of federal litigation. See Murray

v. UBS Sec., LLC, 601 U.S. 23 (2024); Comcast Corp. v.

Nat’l Ass’n of African-American Owned Media, 589 U.S.

327 (2020); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570

U.S. 338 (2013); Gross v. FBL Fin. Servs., Inc., 557 U.S.

167 (2009). For the mine-run of retaliation-for-exercise

claims, a heightened causation standard poses a significant

evidentiary burden. These claims are typically based on

circumstantial evidence of the employer’s intent—gleaned

from fleeting derogatory comments, temporal proximity,

and past performance reviews—rather than direct

evidence of discrimination. Decisions like the one below

erect an unintended barrier to a trial on the merits.

Third, the record shows this case is the proper vehicle

for the Court to consider the questions presented about

Section 2615 and the applicable causation standard for

retaliation-for-exercise claims. The district court first

denied summary judgment under a motivating factor

causation standard that was consistent with Eleventh

Circuit precedent. It only reversed itself at Walgreens’

insistence on reconsideration, when Walgreens pressed

the argument that Ms. Lapham was required to prove

but-for causation based on inapposite case law. On appeal,

the Eleventh Circuit squarely addressed the questions

presented in this petition when it affirmed the district

court’s summary judgment order. If the Court grants

review and reverses, the district court’s final summary

judgment order must be reversed too.

Fourth and finally, the holding below is wrong. It

is based on the Eleventh Circuit’s altogether incorrect

reading of Section 2615, and a but-for causation standard

has no support in the text, structure, or history of

subsection (a)(1). Granting review here allows the Court

to swiftly correct the Eleventh Circuit’s errors.

STATEMENT OF THE CASE

A. Factual background

Ms. Lapham started working at Walgreens as a service

clerk in 2006. Pet. App. 3a. From 2012 to 2016, she was a

shift lead. Id. This position, along with annual intermittent

FMLA leave, allowed her to spend time caring for her son

Jake, who had Lennox-Gastaut syndrome and Dennox

syndrome. C.A. App. 185, 218-19, 256.1 Jake was severely

disabled, wheelchair bound, non-verbal, and unable to care

for himself. Id. at 185-86, 256.

During that time, Ms. Lapham received mixed

performance reviews. Pet. App. 3a-4a. In 2016, she had

an overall performance score of 2.3 out of 5.0. Id. at 5a.

1. Citations to “C.A. App. ___” refer to the continuously

paginated Appendix to the Initial Brief filed in the United States

Court of Appeals for the Eleventh Circuit on June 3, 2021.

Because of that review and a policy change at Walgreens,

Ms. Lapham was required to complete a performance

improvement plan (PIP) in early 2017. Id. at 6a. Even

so, Ms. Lapham’s manager testified she was a “loyal”

employee who cared about her job, was not insubordinate,

and tried to improve. C.A. App. 556.

Ms. Lapham transferred to another store in late

January 2017 so she could work closer to her home with

Jake. C.A. App. 216, 559-60. On February 16, Ms. Lapham

renewed her request for annual intermittent leave. Id. at

655-59. She was met with obvious resistance by her new

manager, Lisa Shelton.

First, Ms. Shelton waited an entire week to sign off

on the application even though federal law, 29 C.F.R.

§ 825.300(d), and Walgreens’ policy required a response

within five business days. C.A. App. 585-86, 588. Even

after Ms. Lapham complained to Ms. Shelton and

Walgreens’ corporate human resources department about

the delay, Ms. Shelton waited four more days to sign the

application so that Walgreens could process it. Id. at

216-18, 226, 655-59.

Because Ms. Lapham thought her leave application

was approved, she requested a day off on March 31 to

take Jake to the doctor. C.A. App. 242, 668. Ms. Shelton

denied the request and told Ms. Lapham to “make

accommodations.” Id. at 242. Ms. Lapham called the

human resources department that same day and learned

for the first time that she needed to resubmit her leave

application because, according to Walgreens, it needed

to include her leave start date even though the date was

on the medical certification that was submitted with the

application. Id. at 375, 548, 593, 668.

Ms. Lapham immediately filled out a renewed

application and gave it to Ms. Shelton. C.A. App. 393-94.

Ms. Shelton, again, didn’t sign it. Id. at 242-43. In the

meantime (before April 4), Ms. Lapham asked Ms. Shelton

for two days of intermittent leave to take Jake to the

hospital. Id. at 247. Ms. Shelton told Ms. Lapham to “make

accommodations” because she “already did the schedule,”

and she accused Ms. Lapham of “not doing [her] job.” Id. In

response, Ms. Lapham complained directly to Ms. Shelton

about Ms. Shelton’s refusal to sign her leave application

or to give her intermittent leave while the application was

pending. Id. at 242-43.

Ms. Shelton then, for the first time, called the human

resources department about Ms. Lapham on April 4. C.A.

App. 935. Walgreens’ own call records from that day show

Ms. Shelton made a newly minted claim that Ms. Lapham

was “[n]ot performing work and lying to leadership.” Id.

The records also note an “issue” about Ms. Lapham’s

“intermittent leave.” Id.

Ms. Shelton called the human resources department

again the next day to give five purported “examples”

of Ms. Lapham’s “performance issues.” C.A. App. 935.

They are followed by a remark about Ms. Lapham’s leave

request:

The SFL has recently applied for an intermittent

FMLA (pending approval). The SFL has

already called out for 2 days due to her FMLA

even though it is not approved yet.

The SM is calling to know for how long she

needs to put up with the behavior and if the

SM can move forward with termination or has

to wait for the end of the PIP.

Id.

Du r ing the Apr i l 5 ca ll, a human resou rces

representative told Ms. Shelton she would need to

gather evidence of purported misconduct and present

it to the district manager before Ms. Lapham could

be terminated. C.A. App. 935. The representative also

advised Ms. Shelton she should not discipline Ms. Lapham

for taking FMLA leave. Id. But just one day later, on

April 6, Ms. Shelton refused to let Ms. Lapham take a day

off when Jake’s caregiver was in the emergency room. Id.

at 243, 937.

Ms. Lapham complained again to the human resources

department and Ms. Shelton before Ms. Shelton finally

signed the renewed leave application on April 7. C.A. App.

226, 267, 394. Three days later, Ms. Lapham called human

resources to explain that Ms. Shelton was retaliating

against her and creating a hostile work environment. Id.

at 226. While the renewed application was pending with

Walgreens’ corporate office, and after Ms. Lapham’s

performance plan had been extended, Ms. Shelton

unilaterally fired Ms. Lapham on April 13 and told her it

was for insubordination. Id. at 155-57, 244-45, 270, 824-27.

This was only six days after Ms. Lapham’s last completed

FMLA leave application. Id. at 393-94.

Walgreens’ corporate representative—who was tasked

with answering the central question of why Ms. Lapham

was fired—could not identify facts substantiating claims

that Ms. Lapham was insubordinate or dishonest. C.A.

App. 896. Walgreens’ human resources department also

denied being involved in Ms. Shelton’s decision to fire

Ms. Lapham. Id. at 694, 944.

B. Procedural background

Ms. Lapham sued Walgreens for violating the FMLA

and Florida law. C.A. App. 80-92. Count II of the Amended

Complaint was for “FMLA Retaliation.” Id. at 87. In

support of that claim, Ms. Lapham pleaded that she

“exercised her rights by requesting FMLA leave” and

that Walgreens “retaliated against [her] for exercising

her FMLA rights.” Id.

Consistent with Eleventh Circuit precedent, the

central dispute at the summary judgment stage was

whether Ms. Lapham marshaled evidence for a reasonable

jury to conclude that Walgreens was “motivated by an

impermissible retaliatory … animus.” See Jones v. Gulf

Coast Health of Del., LLC, 854 F.3d 1261, 1270 (11th Cir.

2017). The district court initially sided with Ms. Lapham

and denied Walgreens’ motion for summary judgment.

Pet. App. 62a-63a. It ruled that in light of record evidence

showing that Ms. Shelton “was hostile to [Ms. Lapham’s]

attempts to exercise her FMLA rights,” a jury could find

that Ms. Shelton’s “complaints—and [Ms. Lapham’s]

resulting termination—were more likely motivated by

that hostility than [Ms. Lapham’s] work performance.”

Id. at 62a.

Walgreens then moved for reconsideration of the

initial summary judgment order because, in its view,

the district court erred when it failed to apply a but-for

causation standard to Ms. Lapham’s FMLA retaliation

claim. C.A. App. 1018-28. While that very premise was

not supported by Eleventh Circuit precedent at the time

or case law from any other circuit court, the district

court agreed with Walgreens and reconsidered its ruling.

Pet. App. 74a. It concluded that Ms. Shelton’s animus

was “more likely motivated by FMLA hostility than”

Ms. Lapham’s purported “performance problems,” but

it believed that evidence was “not enough to establish

‘but-for’ causation.” Id. at 76a. As a result, the district

court ruled that Ms. Lapham “fail[ed] to produce evidence

that [Walgreens’] proffered reason for her termination

… was merely a pretext to mask” its retaliatory motive.

Id. at 77a.

Ms. Lapham appealed, and a split panel affirmed

summary judgment against her based on a but-for

causation standard. Pet. App. 2a. Central to the panel’s

holding was its belief that FMLA retaliation claims must

be grounded in Section 2615(a)(2), not the interference

provision in Section 2615(a)(1). Id. at 19a-20a. As explained

above, subsection (a)(2) is a retaliation provision for

whistleblowers. It prohibits an employer from discharging

or discriminating against an employee “for opposing any

practice made unlawful” under the FMLA. 29 U.S.C.

§ 2615(a)(2). The panel mentioned but did not apply

Eleventh Circuit precedent that “interpret[ed] § 2615(a)(1)

to ‘provide protection against retaliation for exercising

or attempting to exercise rights under the FMLA.’” Pet.

App. 20a (quoting Surtain v. Hamlin Terrace Found., 789

F.3d 1239, 1247 (11th Cir. 2015)).

Focused on Section 2615(a)(2), the panel deemed

Congress’s use of the word “for” in that statute as

“equivalent” to “‘because [of]’ language” that “carries

with it a but-for standard” of causation. Pet. App.

20a-21a. Against that backdrop, it concluded that the

DOL regulation—calling for a negative factor causation

test—was not owed any deference because Congress

“clearly chose to embrace the default but-for causation

standard.” Id. at 25a-26a. The panel cited as “especially

instructive” the Court’s holding in Nassar, 570 U.S. at

362, which said that a plaintiff who presses a retaliation

claim under Title VII § 2000e-3(a) must prove but-for

causation. Id. at 21a-24a. The panel majority then applied

that heightened causation standard to rule, as the district

court did, that Ms. Lapham did not show “but for her

attempts to exercise her FMLA rights, she would not have

been fired.” Id. at 26a-30a.

REASONS FOR GRANTING THE WRIT

Circuit courts are divided on the statutory basis

for a common type of FMLA retaliation claim, and

the decision below creates a brand-new circuit split

over that claim’s causation standard.

Each question presented in this petition implicates a

circuit split for the Court to resolve. The threshold issue

is whether it is Section 2615(a)(1) or Section 2615(a)(2)

that prohibits an employer from unlawfully retaliating

against an employee who has exercised her FMLA rights

by taking or requesting leave. The majority view in the

circuit courts is that this retaliation-for-exercise claim

falls under Section 2615(a)(1). The Eleventh Circuit went

with Section 2615(a)(2), which is also the law in the Fourth,

Eighth, and Tenth Circuits.

This case highlights the significance of that, now,

7-4 circuit split. The Eleventh Circuit relied on the text

of Section 2615(a)(2) to hold, as a matter of law, that

Ms. Lapham must show her request for FMLA leave

was the but-for cause of her termination rather than a

mere motivating or negative factor. Not only is a but-for

causation standard contrary to the law in eight circuits,

but the Second, Third, Fifth, and Sixth Circuits have

reached the exact opposite conclusion as the Eleventh

Circuit when they were presented with the dichotomy

at issue in this petition’s second question. Those circuit

courts applied the DOL regulation’s negative factor test.

The Eleventh Circuit’s break from its sister courts’ wellreasoned authority should be nipped in the bud.

Circuit cour ts disag ree over whether a

retaliation claim exists under Section 2615(a)(1)’s

interference provision.

In seven circuits—the First, Second, Third, Sixth,

Seventh, Ninth, and D.C. Circuits—an employee who was

punished for taking or attempting to take FMLA leave

may sue her employer for retaliation under Section 2615(a)

(1). See Milman, 58 F.4th at 866-67; Woods, 864 F.3d at 167;

Egan, 851 F.3d at 270; Gordon, 778 F.3d at 161; Simpson,

559 F.3d at 712; Bachelder, 259 F.3d at 1124-25; Hodgens,

144 F.3d at 160 n.4. The contrary view in the Fourth,

Eighth, Tenth, and (now) Eleventh Circuits is that such

a retaliation-for-exercise claim is instead controlled by

Section 2615(a)(2). As it turns out, that minority view is

unsound and has been called into question. A brief review

of this authority helps frame the conflict for the Court’s

consideration.

The Majority View. The holding that Section 2615(a)(1)

is the basis for a retaliation claim like Ms. Lapham’s has

a strong foothold in the interference provision’s broad

text. Shortly after the FMLA’s enactment in 1993, the

First Circuit was presented with its “first … occasion to

construe the [FMLA], which established important rights

that protect millions of American employees.” Hodgens,

144 F.3d at 155. In Hodgens, the plaintiff had received poor

performance reviews related to “absenteeism” that was

actually intermittent leave related to a personal medical

issue. Id. at 157-58. After the plaintiff was fired on the

same grounds, he sued for FMLA retaliation and alleged

that his termination was in response to his protected

leave. Id. at 158.

The First Circuit explained that in addition to the

FMLA’s “substantive” or “prescriptive” rights of annual

leave and reinstatement, the Act “provides protection in the

event an employee is discriminated against for exercising

those rights.” Id. at 159 (citing 29 U.S.C. §§ 2615(a)(1),

(a)(2)). Referring to those “proscriptive” provisions, the

court cited Section 2615(a)(1). Id. at 159-60. It did that

because, in its view, “discriminat[ing] against an employee

for exercising his rights under the Act would constitute

an ‘interfer[ence] with’ and a ‘restrain[t]’ of his exercise

of those rights.” Id. at 160 n.4 (quoting § 2615(a)(1)).

Other circuit courts have adopted that clear cut

reading of Section 2615(a)(1). See Milman, 58 F.4th at 867

(“Logically, an adverse employment action in response

to the exercise of (or the attempt to exercise) a statutory

right—retaliation for engaging in protected activity—is a

form of interference or restraint on the ability to exercise

that statutory right.”); Woods, 864 F.3d at 167 (“[A]dverse

employment action in the face of a lawful exercise of FMLA

rights fits comfortably within § 2615(a)(1)’s ‘interfere

with, restrain, or deny’ language.”); Egan, 851 F.3d at

270 (“Interference could also occur if an employee fears

that he or she will be retaliated against for taking such

leave.”); Simpson, 559 F.3d at 712 (“Firing an employee

to prevent her from exercising her right to return to her

prior position can certainly interfere with that employee’s

FMLA rights.”).

Circuit courts have also explained why a retaliation-forexercise claim would not neatly fall into Section 2615(a)(2)’s

opposition clause, a prohibition on discrimination “against

any individual for opposing any practice made unlawful”

under the FMLA. See Woods, 864 F.3d at 167 (“Being

fired for taking FMLA leave cannot easily be described

as ‘opposing any practice made unlawful’ by the FMLA.”);

Bachelder, 259 F.3d at 1124 (observing that subsection

(a)(2) and subsection (b) “do not cover visiting negative

consequences on an employee simply because he has used

FMLA leave” but that claim “is, instead, covered under

§ 2615(a)(1)”); see also Gordon, 778 F.3d at 162 (declining

to “resolve the adequacy of [an employee’s] claim under

§ 2615(a)(2)” when the employee advanced “her retaliation

claim under § 2615(a)(1), which contains no requirement

that she ‘oppose any practice’”).

Finally, it bears mentioning that until this case the

Eleventh Circuit recognized a retaliation claim under

Section 2615(a)(1). See Surtain, 789 F.3d at 1247 n.7;

Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791,

798 n.5 (11th Cir. 2000). In Brungart, the court was

presented with a lawsuit by the plaintiff that alleged her

termination “occurred as a result of her having requested

leave to which she was entitled under the FMLA.”

231 F.3d at 794-95. The court relied on the FMLA’s

interference provision in subsection (a)(1) to describe this

type of retaliation claim, not the whistleblower provision

in subsection (a)(2):

The statute itself uses the lang uage of

interference, restraint, denial, discharge,

and discr imination, not retaliation. But

nomenclature counts less than substance. And

the substance of the FMLA provisions as they

concern this case is that an employer may not

do bad things to an employee who has exercised

or attempted to exercise any rights under the

statute. Asking for medical leave is exercising

or attempting to exercise a right under the

statute, and being fired is a bad thing.

Id. at 798 n.5.

In Surtain, the Eleventh Circuit cited Section 2615(a)(1) as

“provid[ing] protection against retaliation for exercising

or attempting to exercise rights under the” FMLA. 789

F.3d at 1247. Consistent with the analysis in Brungart, the

court explained that a retaliation claim for “exercising or

attempting to exercise FMLA rights” is “grounded in the

Act’s prohibition against interference with an employee’s

exercise or attempted exercise of rights provided by the

Act.” Id. at 1247 n.7.

The Minority View. As mentioned, some circuit

courts have held that Section 2615(a)(2)’s opposition clause

includes retaliation claims based on the exercise of FMLA

rights. See Campbell v. Gambro Healthcare, Inc., 478 F.3d

1282, 1287 (10th Cir. 2007); Stallings v. Hussmann Corp.,

447 F.3d 1041, 1051 (8th Cir. 2006); Yashenko v. Harrah’s

NC Casino Co., 446 F.3d 541, 546 (4th Cir. 2006).

The chief problem with these cases is that they do not

explain how that reading of Section 2615(a)(2) fits with its

text. They draw an arbitrary line between subsections

(a)(1) and (a)(2) without considering their substantive

provisions. See, e.g., Yashenko, 446 F.3d at 546. Based

on that unfortunate, atextual reasoning, circuit judges

have questioned the correctness of this authority. See

Fry v. Rand Constr. Corp., 964 F.3d 239, 245 (4th Cir.

2020) (noting circuit split over interpretation of Section

2615(a)(1), stating DOL regulation “might require us,

despite Yashenko, to find that retaliation-for-exercise

claims fall under subsection (a)(1)”); Lovland v. Emps.

Mut. Cas. Co., 674 F.3d 806, 811 (8th Cir. 2012) (concluding

panel is bound by Stallings interference/retaliation

dichotomy notwithstanding contrary circuit authority).

B. Contrary to the decision below, eight circuit

courts apply a motivating or negative factor

causation test to a retaliation-for-exercise

claim.

It used to be a uniform view of the law that an

employee who alleged unlawful retaliation under the

FMLA must show that her exercise of rights was only a

motivating or negative factor in her employer’s decision to

terminate her. See Woods, 864 F.3d at 169; Egan, 851 F.3d

at 273-74; Hunter, 579 F.3d at 691-92; Lewis, 523 F.3d at

741-42; Hite, 446 F.3d at 865; Richardson, 434 F.3d at 334;

Bachelder, 259 F.3d at 1122-25; Hodgens, 144 F.3d at 160

n.4. The Eleventh Circuit’s decision to apply a heightened

but-for causation standard to a retaliation-for-exercise

claim has created a heavily lopsided circuit split against

its own ruling.

First Circuit. The First Circuit’s initial analysis of

the FMLA in Hodgens did not stop with its conclusion

that Section 2615(a)(1)’s interference provision protected

an employee from termination for taking leave. 144 F.3d

at 159-60. Based on that reading of 29 U.S.C. § 2615, the

court gave deference under Chevron USA Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984),

to the DOL regulation’s interpretation of the statute.

Id. at 160 n.4. (citing 29 C.F.R. § 825.220(c)). As part of

that deference, it applied the negative factor test as the

causation standard for the retaliation claim. Id. at 160.

The Hodgens decision is still controlling law in the

First Circuit. See, e.g., Thompson v. Gold Medal Bakery,

Inc., 989 F.3d 135, 144 (1st Cir. 2021) (“The FMLA

precludes employers from ‘us[ing] the taking of FMLA

leave as a negative factor in employment actions.’” (quoting

Hodgens, 144 F.3d at 160)); Carrero-Ojeda v. Autoridad

de Energia Electrica, 755 F.3d 711 (1st Cir. 2014) (“[T]he

FMLA and its accompanying regulations make it unlawful

for any employer to … retaliate or ‘discriminate against

employees ... who have used FMLA leave,’ such as by

‘using the taking of FMLA leave as a negative factor

in employment actions, such as hiring, promotions, or

disciplinary actions.’” (quoting § 825.220(c))).

Ninth Circuit. In Bachelder, the Ninth Circuit sharply

focused on the text of Section 2615(a)(1) to explain why

the DOL regulation—duly authorized by Congress in 29

U.S.C. § 2654—was “a reasonable interpretation of the

statute’s prohibition on ‘interference with’ and ‘restraint

of’ employee’s rights under the FMLA.” 259 F.3d at

1122-23. It did that by comparing the language used

in Section 2615(a)(1) to the statutory prohibition on

interference in the National Labor Relations Act,

which—very similar to the FMLA—makes it unlawful

for an employer “to interfere with, restrain, or coerce

employees in the exercise of the rights guaranteed” in

29 U.S.C. § 157. Id. at 1123 (citing 29 U.S.C. § 158(a)(1)).

The NLRA’s interference provision had been previously

interpreted as deterring “activity that tends to chill an

employee’s freedom to exercise his section 7 rights.”

California Acrylic Indus. Inc. v. N.L.R.B., 150 F.3d 1095,

1099 (9th Cir. 1998). That is because, as the Court has

explained, an employee’s discharge based on protected

activity “weaken[s] or destroy[s] the right [in the NLRA]

that is controlling.” N.L.R.B. v. Burnup & Sims, Inc., 379

U.S. 21, 24 (1964). 2

The Ninth Circuit then linked the “established

understanding” of these NLRA precedents to the

subsequent enactment of the FMLA’s interference

provision. Bachelder, 259 F.3d at 1124. It concluded that

the DOL regulation’s negative factor test was a reasonable

interpretation of Section 2615(a)(1) because “attaching

negative consequences to the exercise of protected

rights surely ‘tends to chill’ an employee’s willingness

to exercise those rights.” Id. Put simply, “[E]mployees

are, understandably, less likely to exercise their FMLA

leave rights if they can expect to be fired or otherwise

disciplined for doing so.” Id.

2. Since before the FMLA was enacted in 1993 until now,

federal courts have applied a motivating factor standard to NLRA

interference claims under § 158(a)(1). See, e.g., Stern Produce

Co. v. N.L.R.B., 97 F.4th 1, 12-13 (D.C. Cir. 2024); Meco Corp. v.

N.L.R.B., 986 F.2d 1434, 1436 (D.C. Cir. 1993).

Fifth, Seventh, and Eighth Circuits. The Fifth,

Seventh, and Eighth Circuits also apply a motivating

or negative factor causation standard to retaliation-forexercise claims. In the Fifth Circuit’s seminal case on the

issue, the court relied on the DOL regulation to hold that

the causation standard in “appropriate FMLA retaliation

cases” is a “mixed-motive framework.” Richardson,

434 F.3d at 334. The Seventh Circuit has said that an

FMLA retaliation claim “for taking FMLA-protected

leave” requires a “showing that the protected conduct

was a substantial or motivating factor in the employer’s

decision.” Lewis, 523 F.3d at 741-42. And the Eighth Circuit

has held that an employee proves “a causal link between

[her] exercise of FMLA rights and her termination” when

she shows “that an employer’s retaliatory motive played

a part in the adverse employment action.” Hite, 446 F.3d

at 865 (emphasis added); see also Pulczinski v. Trinity

Structural Towers, Inc., 691 F.3d 996, 1007 (8th Cir. 2012)

(citing § 825.220(c)’s negative factor test).

Sixth Circuit. Like the Seventh and Eighth Circuits,

the Sixth Circuit initially applied the DOL regulation’s

negative factor test without any discussion of—or

argument against—the agency’s reasonable interpretation

of the FMLA. See Gibson v. City of Louisville, 336 F.3d

511, 513 (6th Cir. 2003). Then this Court decided in Gross

that the Age Discrimination in Employment Act does not

authorize mixed-motive age discrimination claims under

29 U.S.C. § 623(a)(1). 557 U.S. at 175. The decision in Gross

included a warning to courts that they “must be careful not

to apply rules applicable under one statute to a different

statute without careful and critical examination.” Id. at

174 (quoting Fed. Express Corp. v. Holowecki, 552 U.S.

389, 393 (2008)).

Enter the Sixth Circuit’s decision in Hunter, where

it read the Court’s warning in Gross as requiring the

circuit to decide anew “whether the FMLA … authorizes

claims based on an adverse employment action motivated

by both the employee’s use of FMLA leave and also other,

permissible factors.” Hunter, 579 F.3d at 691. The circuit

court concluded that such claims were valid because the

DOL regulation is a reasonable interpretation of the

FMLA and, therefore, entitled to deference. Id. at 692.

Of note, the Sixth Circuit explained that the regulation’s

“phrase ‘a negative factor’ envisions that the challenged

employment decision might also rest on other, permissible

factors.” Id.

Second and Third Circuit. After Gross and the Sixth

Circuit’s decision in Hunter, the Court decided in Nassar

that there is a but-for causation element to a retaliation

claim under Title VII § 2000e-3(a), which makes it

unlawful for an employer “to discriminate against any of

his employees ... because [an employee] has opposed any

practice made an unlawful employment practice by this

subchapter.” 570 U.S. at 362. In reaching that conclusion,

the Court deemed “causation in fact” a “default rule[]” for

workplace discrimination claims, but the rule’s application

ultimately turns on the statute’s text, structure, and

history. Id. at 346-54.

On the heels of Nassar, cases in the Second and Third

Circuits teed up the issue of whether the DOL regulation’s

negative factor test still applied to FMLA retaliation

claims that were based on the right to take leave. See

Woods, 864 F.3d at 165-69; Egan, 851 F.3d at 269-74. They

said “yes” and gave nearly identical reasoning. Woods, 864

F.3d at 169; Egan, 851 F.3d at 274.

Both circuit courts concluded that the DOL regulation’s

negative factor test applied because it was entitled to

Chevron deference, which requires silence or ambiguity

in a statute on the specific topic of the regulation and

that the regulation be a reasonable interpretation of the

law. Woods, 864 F.3d at 168-69; Egan, 851 F.3d at 272-74.

The Second Circuit read Section 2615(a)(1) as explicitly

“silent as to any test for causation.” Woods, 864 F.3d at

168. What’s more, Section 2615(a)(1) does not have the

“indicia of Congress’s intent to create ‘but for’ causation”

that were at issue in Nassar or Gross, such as “words like

‘because’ or ‘by reason of.’” Id. Instead, Congress created

a broad prohibition in Section 2615(a)(1) and directed the

Department of Labor to fill in the gaps. Id. (citing 29

U.S.C. § 2654). The Department of Labor complied when

it fashioned a regulation with a causation test found in

other federal discrimination protections instead of a but-for

standard, and that choice was reasonable. Egan, 851 F.3d

at 273; see also Woods, 864 F.3d at 169.

Eleventh Circuit. The Eleventh Circuit’s decision

below cannot be reconciled with any of the abovedescribed authority. The opinion claimed to be grounded

in the “text of the relevant provisions” of Section 2615,

but it examined only the language in subsection (a)(2)’s

whistleblower provision. Pet. App. 19a.

Worse still, the opinion did not abide by circuit

precedent that recognized a retaliation claim under

subsection (a)(1)’s interference provision. See Surtain,

789 F.3d at 1247 n.7; Brungart, 231 F.3d at 798 n.5. It

also minimized the scores of circuit court cases that

have held retaliation-for-exercise claims are based on

subsection (a)(1), not (a)(2). See Milman, 58 F.4th at

866-67; Woods, 864 F.3d at 167; Egan, 851 F.3d at 270;

Gordon, 778 F.3d at 161; Simpson, 559 F.3d at 712;

Bachelder, 259 F.3d at 1124-25; Hodgens, 144 F.3d at 160. 3

The panel’s focus on the wrong subsection of Section

2615 led it to conclude—incorrectly—that the motivating

or negative factor test did not apply to Ms. Lapham’s

retaliation-for-exercise claim because “Congress clearly

chose to embrace the default but-for causation standard.”

Pet. App. 25a-26a. That result is at odds with the text

of Section 2615(a)(1) and the circuit court decisions that

have afforded deference to the DOL regulation, even after

Nassar. See Woods, 864 F.3d at 168-69; Egan, 851 F.3d

at 272-74. The decision below did not cite another circuit

court that has reached the same holding on this issue

because none has in a published opinion.

***

The decision below waded into a real circuit split and,

in the process, created another one. Both warrant the

Court’s review.

II. The questions presented are important and

frequently recurring.

This case presents a highly consequential issue for

the litigation of FMLA retaliation claims. As explained

in Nassar, “claims of retaliation are being made with

ever-increasing frequency” and determining the “proper

3. The panel cited Bryant v. Dollar Gen. Corp., 538 F.3d

394 (6th Cir. 2008), as supporting its reading of § 2615(a)(2) as the

“relevant” retaliation provision. Pet. App. 19a-20a. But after Bryant,

the Sixth Circuit settled on the fact that a retaliatory discharge claim

for requesting FMLA leave falls under § 2615(a)(1). See Milman, 58

F.4th at 866-67.

interpretation” of the “causation standard” has a “central

importance to the fair and responsible allocation of

resources in the judicial and litigation systems.” 570 U.S.

at 358. That is likely why—in addition to Nassar and

Gross—the Court has routinely granted certiorari to

decide questions on the necessary standard of proof for

workplace discrimination or retaliation claims. See, e.g.,

Murray, 601 U.S. at 26 (deciding whether whistleblower

under the Sarbanes-Oxley Act of 2002 must prove employer

acted with retaliatory intent); Comcast, 589 U.S. at 329

(deciding whether claim for race discrimination under 42

U.S.C. § 1981 requires showing of but-for causation).

Uncertainty on the questions presented has left the

district courts in disarray for too long. See, e.g., Logue

v. RAND Corp., 668 F. Supp. 3d 53, 63 (D. Mass. 2023)

(courts “disagree[] on whether the ‘negative factor test’

continues to be viable”); Hall v. Bd. of Educ. of City of

Chicago, No. 14-cv-3290, 2018 WL 587151, at *7 (N.D. Ill.

Jan. 29, 2018) (district courts apply “differing standards”

to FMLA retaliation claims since Nassar); Thomas v.

District of Columbia, 227 F. Supp. 3d 88, 99 n.3 (D.D.C.

2016) (notwithstanding circuit decision in Gordon,

collecting cases to show “disagreement in this district

regarding whether a retaliation claim of this type arises

under” Section 2615(a)(1) or Section 2615(a)(2)). The firstof-its-kind decision below will contribute to this confusion

rather than resolve it. And the fact that the decision is

now the controlling law in three heavily populated states

(Florida, Georgia, and Alabama) should emphasize its

unfortunate impact.

The result of the decision—a heightened causation

standard—imposes a substantial barrier to recovery in

FMLA retaliation cases. More often than not, retaliation

claims turn on circumstantial evidence of an employer’s

intent because “seldom is retaliation quite so blatant.”

Ring v. Boca Ciega Yacht Club Inc., 4 F.4th 1149, 1163

(11th Cir. 2021). That reality makes a but-for causation

standard nearly impossible. Evidence of retaliatory intent

must be gleaned from an employer’s fleeting derogatory

comments, the close temporal proximity between

protected activities and an adverse employment action,

and an employee’s past performance reviews. The record

below demonstrates that even a plaintiff who can marshal

significant evidence of retaliatory intent will lose her

case at summary judgment because the employer points

to poor past performance reviews or disputed claims of

insubordination as the purported basis for termination.

That would not be the result under the motivating or

negative factor test endorsed by eight circuit courts and

the Department of Labor, which requires the plaintiff to

show that her protected activity only “played a part” in

the employer’s firing decision. Hite, 446 F.3d at 865.

III. This case is the proper vehicle for the Court’s

review.

This case’s procedural posture makes it an excellent

vehicle to decide the questions presented. As illustrated

by the district court’s summary judgment rulings, the

outcome of Walgreens’ motion for summary judgment

turned on the application of the proper causation standard.

The district court initially applied a motivating factor test

to Ms. Lapham’s retaliation claim and denied summary

judgment. Pet. App. 62a-63a. It then changed course when

Walgreens moved for reconsideration. It applied a but-for

causation standard and granted summary judgment

against Ms. Lapham on that basis. Id. at 74a-77a.

The Eleventh Circuit panel put the interpretation

of 29 U.S.C. § 2615 and the causation issue at the front

and center of its opinion. Pet. App. 2a, 18a-19a. With the

benefit of the full record and briefing by the parties, it

did not find Ms. Lapham’s motivating factor argument

waived, forfeited, or immaterial to the evidence presented

in support of her retaliation claim. The circuit court

addressed the issues at hand, albeit incorrectly. Id. at

2a, 26a.

If the Court grants review on the questions presented,

its answers impact the outcome of this case. A holding

on the first question that a retaliation-for-exercise claim

falls under Section 2615(a)(1) would warrant a remand to

the Eleventh Circuit because it applied Section 2615(a)(2).

A holding on the second question that a motivating or

negative factor causation test applies to a retaliation-forexercise claim would compel reversal of the district court’s

summary judgment order.

IV. The Eleventh Circuit’s construction of the FMLA

is wrong.

The answers to the questions presented boil down to

the text of 29 U.S.C. § 2615, as well as its structure and

history. See Nassar, 570 U.S. at 362 (looking at “text,

structure, and history of Title VII” to determine causation

standard); K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291

(1988) (“In ascertaining the plain meaning of the statute,

the court must look to the particular statutory language

at issue, as well as the language and design of the statute

as a whole.”).

The problem with the Eleventh Circuit’s decision is

that its foundation is flawed. It started with the wrong

text. The circuit court looked at subsection (a)(2) when it

should have—as seven other circuit courts have done—

focused on the interference provision in subsection (a)(1).

Contrary to the panel’s explanation, subsection (a)(2) is not

“relevant” to determining the elements of Ms. Lapham’s

retaliation-for-exercise claim when, as shown, that claim is

grounded in subsection (a)(1). See Pet. App. 20a n.15. By its

very plain language, subsection (a)(2) applies only when an

employee opposes an unlawful practice under the FMLA.

That is not the retaliation claim Ms. Lapham brought after

Ms. Shelton complained to Walgreens’ human resources

about Ms. Lapham’s FMLA leave requests, and it distorts

the text of subsection (a)(2) to shoehorn her claim into

that provision. See Woods, 864 F.3d at 167; Bachelder,

259 F.3d at 1124.

A traditional canon of statutory interpretation—

casus omissus—states that “a matter not covered is to

be treated as not covered.” See Antonin Scalia & Bryan

A. Garner, Reading Law: The Interpretation of Legal

Texts 93 (2012). This canon is crucial because it is meant

to prohibit the Eleventh Circuit from “add[ing] protections

to what (a)(2)’s text states or reasonably implies.” See

Milman v. Fieger & Fieger, P.C., 58 F.4th 860, 875 (6th Cir.

2023) (Nalbandian, J., concurring). But the circuit court

did that when it wedged Ms. Lapham’s retaliation-forexercise claim into Section 2615(a)(2)’s opposition clause,

which exists to protect whistleblowers. This misstep alone

warrants vacatur of the circuit court’s decision.

As to causation, the text of Section 2615(a)(1) supports

a motivating factor standard. Congress included an

explicit but-for causation element in subsection (a)(2)

(“for”) and subsection (b) (“because”) but not in (a)(1).

That omission is assumed to be intentional. See Russello

v. United States, 464 U.S. 16, 23 (1983) (“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.” (quoting

United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.

1972))).

Congress’s decision to omit a but-for causation element

in Section 2615(a)(1) makes sense in light of the broad

language it actually used in that provision. As mentioned,

subsection (a)(1) is nearly identical to the interference

provision in Section 158(a)(1) of the National Labor

Relations Act, see Gordon, 778 F.3d at 164-65; Bachelder,

259 F.3d at 1123, which this Court has said implicates

any employer conduct that “weaken[s] or destroy[s]” the

protected right in the NLRA, Burnup & Sims, 379 U.S. at

24. That is a broader protection than disallowing employer

conduct directly caused by the employee’s exercise of a

protected right.

Moreover, the NLRA interference provision has

been— and ha d been at the time of the FMLA’s

enactment—interpreted by federal courts as being

subject to a motivating factor causation test. See Meco

Corp. v. N.L.R.B., 986 F.2d 1434, 1436 (D.C. Cir. 1993).

It is presumed that Congress was aware of this case law

when it enacted the FMLA’s interference provision. See

Lorillard v. Pons, 434 U.S. 575, 581 (1978); Cannon v.

Univ. of Chicago, 441 U.S. 677, 699 (1974); Gordon, 778

F.3d at 165. And that drafting choice brought with it the

“old soil” of NLRA precedent. See Stokeling v. United

States, 586 U.S. 73, 80 (2019); Nat’l Credit Union

Admin. Bd. v. Nomura Home Equity Loan, Inc., 764

F.3d 1199, 1239 (10th Cir. 2014); see also Northcross

v. Bd. of Ed. of Memphis City Sch., 412 U.S. 427, 428

(1973) (two statutes sharing “similar language” and

“common purpose” is “strong indication” they “should be

interpreted similarly”).

This backdrop also reinforces the Department of

Labor’s decision to implement a regulation that explicitly

imposes the negative factor test rather than a but-for

causation standard. If the Court were to conclude that

Section 2615(a)(1) was actually silent or ambiguous as to

the causation element of a retaliation-for-exercise claim,

it should afford the DOL regulation proper deference as

a reasonable interpretation of the statute. See Chevron,

467 U.S. at 843-44; Woods, 864 F.3d at 168-69; Egan, 851

F.3d at 272-74. Even absent Chevron deference, the DOL

regulation is entitled to “great weight,” Nat’l Lead Co. v.

United States, 252 U.S. 140, 145-46 (1920), and “respectful

consideration,” United States v. Moore, 95 U.S. 760, 763

(1877). The Eleventh Circuit erred when it did not give

any weight to the DOL regulation because it considered

the wrong subsection of 29 U.S.C. § 2615.

The Court should grant certiorari to correct the

Eleventh Circuit’s mistaken interpretation of Section 2615.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

Kelly H. Chanfrau, B.C.S.

Chanfrau & Chanfrau, P.L.

701 North Peninsula Drive

Daytona Beach, FL 32118

(386) 258-7313

kelly@chanfraulaw.com

Brandon K. Breslow

Counsel of Record

Kristin A. Norse

Kynes, Markman

& Felman, P.A.

P.O. Box 3396

Tampa, FL 33601

(813) 229-1118

bbreslow@kmf-law.com

knorse@kmf-law.com

Co-Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STAT ES COU RT OF A PPEA LS FOR

T H E ELE V EN T H CI RCU I T, FI LED

DECEMBER 13, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A PPENDI X B — J U DGMEN T OF THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT, FILED

DECEMBER 13, 2023 . . . . . . . . . . . . . . . . . . . . . . . . 35a

A PPEN DI X C — OR DER OF T H E

UNITED STATES DISTRICT COURT

M I D DL E DI S T R IC T O F F L O R I DA

ORLANDO DIVISION, FILED OCTOBER

19, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36a

A PPEN DI X D — OR DER OF T H E

UNITED STATES DISTRICT COURT

M I DDL E DI S T R IC T OF F L OR I DA ,

ORLANDO DIVISION, FILED JANUARY

14, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69a

APPENDIX E — JUDGMENT IN A CIVIL

CA SE OF T H E U NI T ED STAT ES

DISTRICT COURT MIDDLE DISTRICT OF

FLORIDA, ORLANDO DIVISION, FILED

JANUARY 15, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . 81a

APPENDIX F — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT,

FILED FEBRUARY 6, 2024 . . . . . . . . . . . . . . . . . . 83a

Appendix

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT, FILED DECEMBER 13, 2023

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

Before Wilson, Branch, and Lagoa, Circuit Judges.

Lagoa, Circuit Judge:

Dor is Lapham worked for the Walg reen 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, however, is that

Appendix A

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. Lapham 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 Sector

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

However, the district court below ultimately granted

summary judgment 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 standard is for FMLA

and FWA retaliation claims. After careful consideration,

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

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 retaliation and interference

claims. Accordingly, we affirm.

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)

Appendix A

I. BACKGROUND

A. Factual Background

Lapham is a single mother whose son has LennoxGastaut syndrome and Dravet syndrome, which are

severe forms of epilepsy. 2 As a result of these health

issues, Lapham’s son is non-verbal, 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 technician and then was promoted to a

drug store management trainee. In March 2012, Lapham

voluntarily stepped down from her position 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 intermittent FMLA leave on a yearly basis

for purposes of providing care to her son.

During this timeframe, Lapham worked at Store No.

3107 in Sanford, Florida and received annual performance

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 closing the store as needed, store maintenance,

department maintenance, engaging with employees, engaging

with customers, SIMS responsibilities, pricing and inventory

reports, cleanliness of the store, customer service, communicating

with other employees effectively, completing tasks assigned by

the [s]tore [m]anager or [a]ssistant [s]tore [m]anager,” and was

required to “follow[] Walgreens’ rules, policies, and procedures.”

Appendix A

reviews. For the period from September 2011 through

August 2012, Lapham received an overall performance

score of 1.0 out of 5.0, which indicated that she had not been

achieving expectations and had some performance issues.4

Lapham’s performance subsequently improved, and she

received a score of 3.0 for the period from September

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. Lapham claimed during her

deposition that she received permission to do this from

the assistant store manager, Michael Shariff, because she

had recently broken her hip and could not lift anything

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 employees “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 evaluation. 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’] programs.”

Appendix A

over twenty pounds. The store manager, Karina Kaliman,

met with Lapham and Shariff on November 21, 2015, to

discuss the incident and subsequently disciplined Lapham

with a formal notice.

On October 14, 2016, Lapham received her performance

review for the period from September 2015 through

August 2016. Kaliman, the outgoing store manager, had

completed that evaluation, but the new store manager,

Chad Dunlap, shared it with Lapham.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 “respond[ 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 sometimes left early from day shifts, “was not

consistent on finishing her 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, Florida, on January 28, 2017.

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. Dunlap 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 assigned tasks.”

Appendix A

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 performance 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

manager, Nicole Macek. Lapham also reached out to

Walgreens’ Employee 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 infestation; and (4) an unsanitary

cooler containing salmonella and bugs. Lapham took some

photographs of the conditions at Store No. 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 February 2018 and

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

8. Under Walgreens’ policy, PIPs are required for all

employees who score below a certain level on performance

evaluations.

9. These health and safety complaints are not a major feature

of the parties’ arguments on appeal.

Appendix A

Walgreens maintains that Lapham was supposed to send

the paperwork 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. Shelton 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 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]

accommodations” 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. Lapham promptly

filled out an updated FMLA leave request form for that

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

Appendix A

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 remained 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 of insubordination and reviewed

everything with the district manager 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 request 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 Lapham for

any attendance issues until the FMLA leave request

was approved or denied. Miranda also advised Shelton

that, if she decided to terminate Lapham, she should

make it clear that the decision was based on Lapham’s

10. Lapham’s original leave request form was submitted along

with a certification 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.

Appendix A

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 additional 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 expectations on April 5 and 6.

Shelton claims that this was not a comprehensive 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 Shelton about Shelton’s delay in signing her updated

FMLA leave request form, which she had submitted for

Shelton’s signature a 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. Meanwhile, 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 instructed

other employees not to perform duties that Shelton and the

assistant store manager had assigned to them. Lapham,

however, swears that Williams’s account is incorrect

and denies ever telling other employees not to do their

assigned tasks.

10a

Appendix A

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 insubordination and dishonesty

and that her request for FMLA leave was therefore

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.

Lapham filed the operative amended complaint

on April 16, 2019. That complaint brought four claims

against Walgreens: retaliation 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. Following the resolution

of the motion to dismiss, Walgreens filed its answer. In

that filing, Walgreens generally denied or claimed to lack

11a

Appendix A

knowledge about Lapham’s allegations and raised seven

affirmative 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 admitted 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 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’

motion for summary judgment on July 15, 2020. As to

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 depositions of Lapham,

Dunlap, Keri Garfield, Miranda, and Shelton; and the declarations

of Miranda and Williams. The parties also submitted a joint

stipulation of agreed material facts.

12a

Appendix A

the retaliation claims, Lapham argued that her various

complaints about employment conditions between

February 2017 and April 2017 qualified as protected

activities. Relatedly, Lapham maintained that the timing

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’ reasons for termination

were pretextual, as evidenced by the company’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 committed interference by failing to process

and grant her requests for 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 argued that Lapham could not show

that she engaged in any protected 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

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.

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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 granting in part and denying in part Walgreens’

motion for summary judgment. The district court

began its analysis with the two retaliation 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, nonretaliatory reason for the adverse action and found that

the company had adequately done so. However, the court

also found that Lapham had presented sufficient evidence

for a reasonable jury to conclude that her termination

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

concluded that, because a reasonable jury could conclude

that the proffered reasons for Lapham’s termination

were pretextual, it could also conclude that Walgreens

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Appendix A

interfered with her FMLA rights by terminating her and

denying her request for leave.

On November 16, 2020, Walgreens filed a motion for

reconsideration asking the district court to reconsider its

causation analysis of the retaliation claims and to apply

a but-for causation standard. 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, required

the dismissal of all three claims. In response, Lapham

defended 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 v.

Nassar, 570 U.S. 338, 133 S. Ct. 2517, 186 L. Ed. 2d 503

(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 concluded that Lapham had failed to establish any

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Appendix A

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 inferences 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 . . . one

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

Atlanta, 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 reasons that follow, we

disagree.

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Appendix A

A. The Retaliation Claims

We begin our analysis with Lapham’s two retaliation

claims. Claims of retaliation can be supported with either

direct or circumstantial evidence. See Pennington v.

City of Huntsville, 261 F.3d 1262, 1265 (11th Cir. 2001).

But when a plaintiff alleging retaliation presents only

circumstantial evidence and no direct evidence, we apply

the burden-shifting framework set forth by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 801-05, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (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 statutorily protected

[conduct]; (2) [s]he suffered an adverse employment

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 plaintiff. Id. (quoting Sierminski v. Transouth Fin.

Corp., 216 F.3d 945, 950 (11th Cir. 2000)). This responsive

burden is a simple “burden 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, 113 S.

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Appendix A

Ct. 2742, 125 L. Ed. 2d 407 (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

(alteration 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 evidence 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 constitutes 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 Lapham’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 connected 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 record

is circumstantial as well. Accordingly, McDonnell Douglas

squarely applies.

Within the framework of McDonnell Douglas,

Lapham contends that she met her initial burden to

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Appendix A

establish a prima facie case of retaliation and also met

her subsequent burden to rebut Walgreens’ supposed

nondiscriminatory justifications for her termination. 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 motivatingfactor showing of causation and not a but-for showing.13

As noted, the district court initially 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

13. Walgreens does not now dispute that Lapham engaged

in statutorily protected 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 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

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Appendix A

is 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 opposing any

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

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

Batson v. Salvation Army, 897 F.3d 1320, 1331 (11th Cir. 2018)

(“At summary judgment, . . . we ask whether the evidence, viewed

in the light most favorable to the non-moving party, establishes

as a matter of law that the employer would have terminated the

employee regardless of 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 retaliation claims).

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Appendix A

provision of the FWA provides that “[a]n employer may

not take any retaliatory personnel action against an

employee because the employee 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, MerriamWebster Dictionary, https://www.merriam-webster.com/

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 between

§ 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 “provide

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 causation standard for FMLA

retaliation claims. This is consistent with the parties’ arguments.

16. Insofar as it is relevant, § 2615(b)—which governs

interference with proceedings 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 activity].”

(emphasis added)). There is no motivating-factor causation

language within § 2615.

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Appendix A

dictionary/for (last 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, 133 S. Ct. 2517, 186

L. Ed. 2d 503 (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

practice by this subchapter, or because he [engaged in

a specified protected activity].” 42 U.S.C. § 2000e-3(a)

(emphasis added). In considering 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, 206 L. Ed. 2d 356 (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 butfor standard. See Nassar, 570 U.S. at 347. The Supreme

Court then contrasted Title VII’s retaliation provision,

§ 2000e-3(a), with its discrimination provision, 42 U.S.C.

§ 2000e-2(m), which expressly establishes a motivating-

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Appendix A

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, religion, sex, or national origin was a

motivating factor for any employment practice, even

though other factors also motivated the practice.”

(emphasis added)). The absence of similar motivatingfactor 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 enforcement actions”). Based on this

reasoning, the Supreme Court concluded that the proper

causation standard for Title VII retaliation claims is butfor 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

Employment 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 for guidance on how to interpret the

FMLA and the FWA, “we ‘must be careful not to apply

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.

23a

Appendix A

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, 129 S. Ct. 2343, 174

L. Ed. 2d 119 (2009) (quoting Fed. Express Corp. v.

Holowecki, 552 U.S. 389, 393, 128 S. Ct. 1147, 170 L. Ed.

2d 10 (2008)). With that in mind, the retaliation provisions

of both the FMLA and the FWA are sufficiently similar

to the retaliation provision of Title VII for Nassar to be

especially instructive. Critically, all three provisions use

“because [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,

134 S. Ct. 881, 187 L. Ed. 2d 715 (2014) (“Where there is

no textual or contextual indication to the contrary, courts

regularly read phrases like ‘results from’ to require butfor 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,

18. Many district courts within this Circuit have determined,

based on Nassar, that the applicable causation standard for FMLA

retaliation claims is the “butfor” standard. See, e.g., Jimenez-Ruiz

v. Sch. Bd., No. 8:18-CV-01768, 2020 U.S. Dist. LEXIS 13752,

2020 WL 434927, at *8 n.4 (M.D. Fla. Jan 28, 2020); Garrard v.

Wal-Mart Stores, No. 8:15-cv-2476, 2016 U.S. Dist. LEXIS 201298,

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 U.S. Dist. LEXIS 125756, 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.

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Appendix A

570 U.S. at 346-47; Comcast, 140 S. Ct. at 1014. Moreover,

at least with 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’

rather 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 decisions 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, Lapham insists that at least the FMLA’s

retaliation provision is meaningfully distinguishable

because the FMLA elsewhere delegates authority 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.

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Appendix A

When deciding whether to defer to an agency’s

interpretation of its own enabling statute, we are required

to apply the twostep framework set forth by the Supreme

Court in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837,

104 S. Ct. 2778, 81 L. Ed. 2d 694 (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 unambiguously 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 consistent with the statute,’” Sullivan v.

Everhart, 494 U.S. 83, 89, 110 S. Ct. 960, 108 L. Ed. 2d 72

(1990) (quoting NLRB v. Food & Com. Workers, 484 U.S.

112, 123, 108 S. Ct. 413, 98 L. Ed. 2d 429 (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 equivalent of “because [of]”

19. This is true at least for the time being. See Loper Bright

Enters. v. Raimondo, 143 S. Ct. 2429, 216 L. Ed. 2d 414 (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”).

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Appendix A

language (and no other causation language), Congress

clearly chose to embrace the default but-for causation

standard. And because Congress did so, we cannot defer

to the DOL’s contrary interpretation. See Hylton v.

United States AG, 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 unambiguously expressed

intent of Congress.’” (quoting Barton v. United States AG,

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

For these reasons, we hold that the proper causation

standard for FMLA and FWA retaliation claims is but-for

causation. Our next task, then, is to determine whether

Lapham has raised any triable 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 purported cause.” Bostock v. Clayton County, 140 S.

Ct. 1731, 1739, 207 L. Ed. 2d 218 (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 sufficient. 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

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Appendix A

component of the employee’s initial, prima facie showing

requirement and also shapes the subsequent burdens

of both the employer (i.e., to proffer a legitimate 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 pretext 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

justification 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 meaningfully rebut them. 20 Alvarez v.

20. To be sure, Lapham has broadly denied “engag[ing] in

any ‘insubordination,’” failing to complete assigned tasks, and

“ma[king] up excuses not to do tasks.” But Lapham has also

acknowledged that, on some occasions, her assigned 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

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Appendix A

Royal Atl. Devs., Inc., 610 F.3d 1253, 1266 (11th Cir. 2010)

(quoting Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th

Cir. 2000) (en banc)).

Instead, Lapham simply chalks her termination up

to retaliation while pointing to several pieces of evidence

that, taken together, fail to create a genuine issue of

fact on the issue. For instance, Lapham points to the

evidence that Shelton brought up Lapham’s FMLA leave

requests during the April 4 and 5, 2017, discussions 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 managers 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

banc) (“What matters in this inquiry is what the employer in good

faith believes the employee to have done, not whether the employee

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

Lapham’s testimony is not sufficient by itself to create a genuine

issue of material fact on this issue. Nor is it accompanied by any

other evidence that creates 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

29a

Appendix A

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 original 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 proximity 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 Lapham’s

first argument is that Shelton’s delays were not so

unreasonable as to indicate a retaliatory motive. And the

issue with Lapham’s second argument is that, generally

speaking, a close temporal proximity between requesting

leave and being terminated is not sufficient to establish

pretext in the absence of other, meaningful 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 itself”). Ultimately, considering the

circumstances, these timing arguments do not expose any

genuine issues of material fact.

your job and you are not doing your job.” Lapham characterizes

these statements as “hostile and discriminatory comments,”

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 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).

30a

Appendix A

In sum, Lapham has failed to adequately show that

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

insubordination and dishonesty) were merely pretext

for retaliation 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-AMillion, 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)).

31a

Appendix A

Unlike retaliation claims, a plaintiff bringing an

interference claim is not required to make any showing

regarding the employer’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

approved 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 alleges that

24. Critically, the burden of establishing this affirmative

defense is greater than the burden at the second step of the

McDonnel Douglas framework for retaliation claims, where the

employer must merely articulate a legitimate, nondiscriminatory

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.

32a

Appendix A

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 transportation 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 appointments. Because Lapham has not offered any

explanation of how the denial of certain days off produced

a harm that is remediable 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

insubordination 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 reviews prepared by different

managers establishing that, on multiple occasions,

Lapham failed to complete her assigned tasks. And

rather than meaningfully rebut this evidence, Lapham

33a

Appendix A

has conceded 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 interference claim.

IV.

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

of summary judgment in favor of Walgreens.

AFFIRMED.

34a

Appendix A

Wilson, Circuit Judge, dissenting:

I agree with the majority that the proper causation

standard for both Family Medical Leave Act (FMLA) and

Florida Whistleblower Act (FWA) retaliation claims is

but-for causation. But I would hold that there are genuine

issues of material fact that preclude 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

dissent.

35a

Appendix B OF THE UNITED

APPENDIX B — JUDGMENT

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT, FILED DECEMBER 13, 2023

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

JUDGMENT

It is hereby ordered, adjudged, and decreed that the

opinion issued on this date in this appeal is entered as the

judgment of this Court.

Entered: December 13, 2023

For the Court: David J. Smith, Clerk of Court

36a

C THE UNITED

APPENDIX C —Appendix

ORDER OF

STATES DISTRICT COURT MIDDLE DISTRICT

OF FLORIDA ORLANDO DIVISION,

FILED OCTOBER 19, 2020

UNITED STATES DISTRICT COURT MIDDLE

DISTRICT OF FLORIDA ORLANDO DIVISION

Case No: 6:19-cv-579-Orl-40DCI

DORIS LAPHAM,

Plaintiff,

WALGREEN CO.,

Defendant.

ORDER

This cause comes before the Court on Defendant’s

Motion for Summary Judgment (Doc. 33 (the “Motion”)),

filed June 8, 2020. Plaintiff responded in opposition (Doc.

46), Defendant replied (Doc. 53), and Plaintiff filed a surreply (Doc. 58). Upon consideration, the Motion is due to

be granted in part and denied in part.

BACKGROUND1

This case arises out of Plaintiff Doris Lapham’s

employment with Defendant Walgreen Co., where

1. Unless otherwise noted, these facts come from the

Statement of Stipulated Facts. (Doc. 45).

37a

Appendix C

Defendant allegedly retaliated against Plaintiff for her

engagement in various protected activities under state

and federal law. (Doc. 13).

Defendant initially hired Plaintiff as a Service Clerk at

Store No. 3107 in November 2016. Plaintiff later became

a Photo Specialist Technician, and eventually received a

promotion to Drug Store Management Trainee. However,

she voluntarily stepped down from the latter position to

become a Shift Lead in March 2012. As a Shift Lead,

Plaintiff’s responsibilities included cash handling, opening

and closing the store, store maintenance, department

maintenance, engaging with employees, engaging with

customers, pricing and inventory reports, maintaining

cleanliness of the store, completing tasks assigned by the

Store Manager or Assistant Store Manager, as well as

following Defendant’s rules, policies, and procedures.

Plaintiff is the only caregiver for her disabled son.

(Id. ¶ 18). Due to her son’s condition, Plaintiff qualifies for

intermittent leave under the Family Medical Leave Act,

29 U.S.C. §§ 2601–54 (“FMLA”). Defendant maintains

a policy governing requests for leave under the FMLA.

Throughout her employment with Defendant, Plaintiff

applied for and received FMLA leave approximately

seven times. 2

At the end of 2016, Plaintiff’s Store Manager, Chad

Dunlap, delivered her performance evaluation for that

2. Under the FMLA, eligible employees are entitled to a

total of 12 workweeks of leave during any 12-month period. Due

to the 12-month time limit, eligible employees must periodically

refile for FMLA benefits. See 29 U.S.C. § 2612.

38a

Appendix C

year, which Plaintiff signed and acknowledged. 3 Plaintiff

scored a 2.3 out of 5.0. Defendant’s policies require

employees who score below a certain level on performance

evaluations to be placed on a Performance Improvement

Plan (“PIP”). Based on her 2016 performance evaluation,

Plaintiff’s District Manager, Nicole Macek (“Macek”),

placed Plaintiff on a sixty-day PIP. In early 2017, Plaintiff

transferred to Store No. 4423. Shortly thereafter, Plaintiff

had a meeting with her new Store Manager, Lisa Shelton

(“Shelton”), to discuss the PIP. Plaintiff also called

Employee Relations for additional clarification on the

reason for her PIP and the overall PIP process. (Doc. 39-4).

During her tenure at Store No. 4423, Plaintiff alleges

that she complained about four categories of unsafe and/or

unlawful conditions: (1) blocked fire exits; (2) the presence

of bodily fluids; (3) an infestation of cockroaches in the

pharmacy; and (4) an unsanitary cooler that contained

salmonella and “bugs.” (Doc. 13, ¶ 24). Around the same

time, Plaintiff’s FMLA benefits were due to expire, causing

Plaintiff to refile for intermittent leave. Plaintiff alleges

that Shelton refused to process her paperwork, Defendant

failed to respond to her request for leave, and Shelton

later denied a request for an FMLA day off. (Id. ¶¶ 25–29).

Plaintiff complained to Shelton and Employee Relations

about these alleged FMLA violations. (Id.).

On April 13, 2017, Defendant terminated Plaintiff’s

employment. Defendant claims Plaintiff was terminated

3. The evaluation had been completed by Plaintiff’s former

Store Manager, Karina Kaliman. (Id.).

39a

Appendix C

for insubordination and dishonesty, whereas Plaintiff

claims she was terminated in retaliation for her complaints

about store conditions and for requesting FMLA leave.

Plaintiff’s Amended Complaint alleges: (1) retaliation in

violation of Florida’s Private Whistleblower’s Act, Fla.

Stat. § 448.102 (the “FWA”); (2) retaliation in violation of

the FMLA; and (3) FMLA interference. (Doc. 13).4

Defendant now moves for summary judgment on all

counts.

II. STANDARD OF REVIEW

To prevail on a summary judgment motion, the movant

must show “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); see also Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must

“view the evidence and all factual inferences therefrom

in the light most favorable to the non-moving party, and

resolve all reasonable doubts about the facts in favor of

the non-movant.” Davila v. Gladden, 777 F.3d 1198, 1203

(11th Cir. 2015) (quoting Carter v City of Melbourne, 731

F.3d 1161, 1166 (11th Cir. 2013) (per curiam)). “An issue

of fact is ‘material’ if, under the applicable substantive

law, it might affect the outcome of the case. An issue of

fact is ‘genuine’ if the record taken as a whole could lead

a rational trier of fact to find for the nonmoving party.”

Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014).

4. The Court dismissed Plaintiff’s claim under the Florida

Civil Rights Act. (Doc. 24).

40a

Appendix C

“A mere ‘scintilla’ of evidence supporting the opposing

party’s position will not suffice; there must be enough of a

showing that the jury could reasonably find for that party.”

Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160,

1162 (11th Cir. 2006) (quoting Walker v. Darby, 911 F.2d

1573, 1577 (11th Cir. 1990)).

III. DISCUSSION

FWA Retaliation—Prima Facie Case

To establish a prima facie case for FWA retaliation,

Plaintiff must allege that: (1) she engaged in a protected

activity; (2) she suffered an adverse employment action;

and (3) there was a causal connection between the two

events. See McShea v. Sch. Bd. of Collier Cnty., 58 F. Supp.

3d 1325, 1346 (M.D. Fla. 2014). The establishment of a

prima facie case creates a rebuttable presumption of

unlawful retaliation. See Castro v. Sch. Bd. of Manatee

Cnty., 903 F. Supp. 2d 1290, 1302 (M.D. Fla. 2012).

Protected Activity

To satisfy the first prong, Plaintiff must show that

she objected to or refused to participate in: (1) an illegal

activity, policy, or practice of her employer; (2) an illegal

activity of anyone acting within the legitimate scope of

their employment; or (3) an illegal activity of an employee

that has been ratified by the employer. See McIntyre v.

Delhaize Am., Inc., No. 8:07-CV-2370, 2009 WL 1039557,

at *3 (M.D. Fla. Apr. 17, 2009).

41a

Appendix C

The parties dispute the proper standard for what

constitutes an “illegal” activity, policy, or practice.

Plaintiff contends that she must merely show a good faith,

objectively reasonable belief that Defendant was violating

the law, citing Aery v. Wallace Lincoln- Mercury, LLC,

118 So. 3d 904, 916 (Fla. 4th DCA 2013). Defendant argues

for a higher standard, requiring Plaintiff to show that she

objected to an actual violation of law, or that she refused to

participate in an activity that would have been an actual

violation of law, citing Kearns v. Farmer Acquisition

Co., 157 So. 3d 458, 465 (Fla. 2d DCA 2015). The Florida

Supreme Court has not resolved this apparent conflict

between Florida’s district courts of appeal. Accordingly,

this Court must attempt to predict how the Florida

Supreme Court would apply the law. 5

5. Plaintiff disputes the existence of a circuit split. The

Kearns opinion ultimately held that the plaintiff’s allegations

would have satisfied either the “actual violation” standard or the

“reasonable belief” standard. Therefore, Plaintiff contends that

the court’s discussion of the issue was merely dicta, and Aery is

the only controlling precedent. Several courts have agreed with

this assessment. See, e.g., Thomas v. Tyco Int’l Mgmt. Co., 262

F. Supp. 3d 1328, 1340 n.6 (S.D. Fla. 2017); Burns v. Medtronic,

Inc., No. 8:15-CV-2330, 2016 WL 3769369, at *5 (M.D. Fla. July

12, 2016). However, the dicta/holding distinction is not dispositive.

“Regardless of whether the Second District application of the

‘actual violation’ standard in Kearns was dicta, its rejection of

Aery is sufficient to create a conflict in the interpretation of the

FWA among Florida’s district courts of appeal.” Graddy v. WalMart Stores E., L.P., 237 F. Supp. 3d 1223, 1227 (M.D. Fla. 2017)

(citing Hawkins v. Williams, 200 So. 2d 800, 801 (Fla. 1967) (“[O]

biter dictum [is] sufficient to create a conflict in decisions necessary

to invoke [the Florida Supreme Court’s] jurisdiction.”)).

42a

Appendix C

In deciding Defendant’s Motion to Dismiss, this Court

previously held that Aery’s “reasonable belief” standard

controls in FWA cases. (Doc. 24, p. 5 n.3). However,

the Court now believes that the issue warrants further

consideration. Upon reflection, the Court is persuaded

that Kearns has the better handle of the issue than Aery.

Although the FWA “should be construed liberally in favor

of granting access to the remedy,” Irven v. Dep’t of Health

& Rehab. Servs., 790 So. 2d 403, 405 (Fla. 2001), “[t]he first

principle of statutory construction is that legislative intent

must be determined primarily from the language of the

statute,” Golf Channel v. Jenkins, 752 So. 2d 561, 564 (Fla.

2000). When statutory language is plain and unambiguous,

there is no need for judicial interpretation. Id.

The FWA’s protections apply when an employee

“[o]bjected to, or refused to participate in, any activity,

policy, or practice of the employer which is in violation of a

law, rule, or regulation.” FLA. STAT. § 448.102(3) (emphasis

added). This provision is clearly triggered when an

employer acts “in violation of” the law, but the text is silent

regarding the employee’s subjective belief. Extending the

FWA to encompass alleged or suspected violations of law

requires the Court to find ambiguity where none exists.

Moreover, comparison of the FWA to other whistleblower

statutes suggests that the Florida Legislature’s word

choice was intentional. The public whistleblower act

specifically provides protections for employees who report

“[a]ny violation or suspected violation of any federal,

state, or local law, rule, or regulation.” Id. § 112.3187(5)

(a). This contrast suggests that the legislature can—and

43a

Appendix C

will—articulate whether statutory protections inure based

on actual or merely suspected violations of law.6

Following a similar textual analysis, the Kearns court

bolstered this interpretation by explaining how an “actual

violation” standard better aligns with the policy goals of

the FWA:

To expand the statutory language of the

FWA further to provide protection for every

employee’s reasonable belief would be to run

afoul of the plain language of the statute and

to expand beyond recognition this limited rule

which simply allows employees to shed light on

their employer’s conduct, which is in violation

of a law, rule or regulation, without fear of

retaliation. Allowing for the expanded reading

of the statute [the plaintiff] proposes would

place an onerous burden on the employer to

anticipate all of its conduct that an employee

may reasonably believe is proscribed by a law,

rule or regulation. Even if the employer knows

the conduct is perfectly legitimate, it would be

6. The Kearns court also referenced another subsection of

the FWA, which protects employees who provide information to

a “government agency . . . conducting an investigation . . . into an

alleged violation of a law . . . by an employer.” 157 So. 3d at 464–65

(quoting FLA. STAT. § 448.102(2)). The Court is less convinced

that this distinction supports an “actual violation” standard.

Section 449.102(2) contemplates a government investigation in

medias res. During an ongoing investigation, there can only be

alleged violations of law.

44a

Appendix C

left with the Hobson’s choice of terminating

the employee and defending suit against the

employee’s reasonable belief or allow[ing] the

employee to refuse to meet the requirements

of the job with no consequence. In apparent

recognition of this dilemma the legislature

declined to include in the relevant section of

the Act this protection for employees.

157 So. 3d at 465 (quoting White v. Purdue Pharma, Inc.,

369 F. Supp. 2d 1335, 1338– 39 (M.D. Fla. 2005)). Based

on a plain reading of the FWA and the above reasoning,

the Court is convinced that the Florida Supreme Court

would adopt the “actual violation” standard articulated in

Kearns, rather than Aery’s “reasonable belief” standard.

See also Smith v. Psychiatric Solutions, Inc., 358 F. App’x

76, 78 (11th Cir. 2009) (applying FWA and holding that

“the district court correctly applied the actual violation

standard as opposed to the good faith belief standard”).7

That said, the Court declines to read the FWA more

rigidly than the text requires. Although the employer’s

conduct must in fact be unlawful, the statute does not

demand that an employee have detailed, substantive

knowledge of the law being violated. Employees have no

obligation to provide their employers with statutory or

case law citations to support complaints of illegal conduct.

Aery, 118 So. 3d at 916 (“By immediately and repeatedly

reporting this matter to his superiors and describing

7. “Unpublished opinions are not controlling authority and are

persuasive only insofar as their legal analysis warrants.” Bonilla v.

Baker Concrete Const., Inc., 487 F.3d 1340, 1345 (11th Cir. 2007).

45a

Appendix C

these acts as ‘against the law,’ [the plaintiff] created a

sufficient prima facie showing to satisfy [the first prong of

an FWA claim].”). As discussed, the employee’s subjective

understanding of the law is irrelevant under the statute—if

the employer’s conduct is unlawful, then FWA protections

apply. Cf. Purdue v. Westpoint Home, Inc., 5:07cv192, 2008

WL 11462844, at *4 (N.D. Fla. Jan 31, 2008) (“The claim is

either viable, or it is not.”). To be sure, the employee must

eventually indicate the particular law, rule, or regulation

upon which her claim rests. But workaday employees need

not have intimate knowledge of relevant authorities before

asserting their rights under the FWA. 8

To summarize, the first prong of an FWA retaliation

claim requires that the employee object to or refuse

to participate in actually unlawful employer conduct,

although the employee need not specify the precise law

being violated. Having thus framed the applicable law, the

Court now turns to Plaintiff’s alleged protected activities.

8. Defendant also argues that the Amended Complaint’s

failure to make specific reference to laws, rules, or regulations

“deprived Defendant of the ability to defend against claims based

on such alleged violations and left the Court without any ability

to evaluate the same.” (Doc. 33, p. 18). “A complaint need not

specify in detail the precise theory giving rise to recovery. All

that is required is that the defendant be on notice as to the claim

being asserted against him and the grounds on which it rests.”

Hamilton v. Allen-Bradley Co., 244 F.3d 819, 823 (11th Cir. 2001).

Plaintiff’s Amended Complaint provides ample factual allegations

for Defendant and the Court to assess whether Defendant acted

unlawfully. (See Doc. 13, ¶ 24).

46a

Appendix C

The A mended Complaint alleges that Plaintiff

complained about four categories of health and safety

violations: (1) blocked fire exits; (2) the presence of bodily

fluids; (3) an infestation of cockroaches in the pharmacy;

and (4) an unsanitary cooler that contained salmonella

and “bugs.” (Doc. 13, ¶ 24). The Amended Complaint also

alleges that Plaintiff objected to Defendant’s FMLA

violations. (Id. ¶ 28). The Court will address each category

in turn.

First, Plaintiff alleges that she “complained about fire

code violations and hazards relating to doorways being

blocked.” (Doc. 46, p. 14). Specifically, she complained

that the store’s back doors were obstructed by boxes.

(Doc. 34, 134:25–135:13). She further claims that Shelton

directed her not to remove the boxes from the doorways,

so the condition remained for “a few days.” (Id. 137:15–

138:4). Regulations promulgated by the Occupational

Safety and Health Administration (“OSHA”) dictate that

“[e]xit routes must be free and unobstructed. No materials

or equipment may be placed, either permanently or

temporarily, within the exit route.” 29 C.F.R. 1910.37(a)

(3).9 Therefore, objections to unlawfully obstructed exit

routes would constitute protected activity.

Second, Plaintiff claims that she reported “unsafe

bodily fluids including urine and feces in the Store (sink

of a bathroom), and all over the walls.” (Doc. 46, p. 8).

Plaintiff attempted to call a third-party cleaning company

9. “Each employer shall comply with occupational safety and

health hazards promulgated under this chapter.” 29 U.S.C. § 654(a)

(2) (emphasis added).

47a

Appendix C

to remedy the situation, but Shelton directed Plaintiff

to “have one of the employees” do so instead. (Doc. 34,

143:4–8). Plaintiff refused, claiming “it’s dangerous”

because “you can get sick.” (Id. 144:17–25). Plaintiff does

not elaborate on the safety hazard posed by cleaning the

bathroom, nor does she allege that management denied a

request for personal protective equipment. Nonetheless,

she wanted “professionals” to “come in with a machine

. . . masks, suits and chemicals to clean.” (Id. 145:3–6).

These allegations fail to suggest that Defendant acted

unlawfully. To date, Plaintiff has not identified a “law,

rule, or regulation” that obligates employers to hire

third-party cleaning companies or forbids the delegation

of such tasks to employees. See FLA . STAT. § 448.102(3).

At best, Plaintiff refers to Defendant’s Exposure Control

Plan, which directs employees to “[avoid] contact with

blood and [other potentially infectious material]; create

work order ticket to dispatch biohazard clean-up vendor

to handle and dispose of.” (Doc. 51-17, p. 3).10 However,

even assuming that Defendant’s failure to “dispatch a

biohazard clean-up vendor” constitutes a violation of

internal company policies, such violations do not warrant

FWA protection. See Villaman v. United Parcel Serv.,

Inc., No. 18-cv-21377, 2019 WL 922704, at *5 (S.D. Fla.

Feb. 8, 2019) (discussing the “well-established authority

10. The Court notes that the Exposure Control Plan also

states that Personal Protective Equipment “is provided to team

members at no cost” and directs employees to “wear appropriate

gloves when it is reasonably anticipated that there may be hand

contact with blood or [other potentially infectious material], and

when handling or touching contaminated items and surfaces.”

(Id. at p. 4).

48a

Appendix C

in Florida that an employee’s complaint about a violation

of company policy does not constitute protected activity”).

Accordingly, Plaintiff’s complaints regarding bodily fluids

do not constitute protected activity under the FWA.

Plaintiff’s third and fourth categories of health and

safety violations pertain to insects. Specifically, Plaintiff

complained about a “bug (infestation) in the Pharmacy,

stockroom, break rooms and office and that there were

roaches, ants and gnats ‘in all locations.’” (Doc. 46, p.

7).11 Under Florida law, “Any establishment at which

prescription drugs are stored, warehoused, handled, held,

offered, marketed, or displayed must . . . Be free from

infestation by insects, rodents, birds, or vermin of any

kind.” FLA . STAT. § 499.0121. Accordingly, objections to

an insect infestation would constitute protected activity

under the FWA.

Lastly, the Amended Complaint alleges that Plaintiff

objected to FMLA violations. (Doc. 13, ¶ 28). As discussed in

more detail below, Plaintiff’s evidence presents a question

of fact regarding Defendant’s procedural violations of the

FMLA’s notice and processing requirements. Plaintiff

11. In addition to insects, Plaintiff also claims that she

saw (and complained about) “salmonella” in the cooler. Plaintiff

recognizes that salmonella is “a bacteria,” but makes the puzzling

claim that she saw it with her naked eye. (Doc. 34, 13:13–17)

(Plaintiff describing Salmonella as a “small bug with the two legs,

and it’s more like a clear or white type”). Salmonella bacteria are

microorganisms that can only be seen under a microscope. Cf. Ctrs.

For Disease Control & Prevention, Serotypes and the Importance

of Serotyping Salmonella (2020).

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testified that she objected to these violations to Shelton and

Employee Relations. (Doc. 34, 160:16–161:3). If proven,

such objections would constitute protected activity under

the FWA.

Finally, the Court must address two FWA claims that do

not appear in the Amended Complaint. For the first time,

Plaintiff now argues that she objected to “trash mixing

with food in the back of the Store” and “rats in the Store’s

compound.” (Doc. 46, p. 7). Even if such objections were

protected activities, they cannot form the basis for new

FWA claims at this stage of litigation. “Despite the liberal

pleading standard for civil complaints, plaintiffs may not

raise new claims at the summary judgment stage.” White

v. Beltram Edge Tool Supply, Inc., 789 F.3d 1199, 1200

(11th Cir. 2015) (internal quotations omitted); Gilmour

v. Gates, McDonald & Co., 382 F.3d 1312, 1314 (11th Cir.

2004). Here, the Amended Complaint does not mention

trash, rats, or any objections thereto. If proven, such

allegations could support independent retaliation claims

under the FWA. Therefore, Plaintiff’s alleged objections to

trash and rats constitute “an additional, separate” basis for

relief and a “fundamental change” in the nature of the case.

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

1286, 1297 (11th Cir. 2006). Having proceeded through

discovery without filing a Second Amended Complaint,

Plaintiff may not assert new FWA claims in response to

a Motion for Summary Judgment. Id.

In sum, blocked fire exits, insect infestations, and

FMLA interference are actual violations of law. Therefore,

an employee’s objection to such conditions/conduct would

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constitute a protected activity under the FWA. To the

extent that Plaintiff cites these objections as grounds for

an FWA retaliation claim, she satisfies the first prong.

Adverse Employment Action

Discharge of an employee constitutes an adverse

employment action under the FWA. Fla. Stat. § 448.101(5).

The parties do not dispute that Defendant terminated

Plaintiff’s employment on April 13, 2017. (Doc. 45, ¶ 18).

Thus, the second prong is satisfied.

Causation

Courts construe the causation requirement broadly

so that “a plaintiff merely has to prove that the protected

activity and the . . . adverse action are not completely

unrelated.” Higdon v. Jackson, 393 F.3d 1211, 1220 (11th

Cir. 2004) (quoting Olmstead v. Taco Bell Corp., 141 F.3d

1457, 1460 (11th Cir. 1998)). A plaintiff can satisfy this prong

of the prima facie case by providing evidence that her

employer knew of the protected activity and that there

was a close temporal proximity between this awareness

and the adverse action. Id.

A “close t empora l prox i m it y ” i s “su f f icient

circumstantial evidence of a causal connection for

purposes of a prima facie case.” Id. The Eleventh Circuit

has suggested that a two-month period between a

protected activity and a subsequent adverse employment

action will support a reasonable inference of causation.

See Embry v. Callahan Eye Found. Hosp., 147 F. App’x

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819, 831–32 (11th Cir. 2005); but see Higdon, 393 F.3d at

1221 (holding that a three-month period was too protracted

to infer causation). That said, “[I]n a retaliation case,

when an employer contemplates an adverse employment

action before an employee engages in protected activity,

temporal proximity between the protected activity and

the subsequent adverse employment action does not suffice

to show causation.” Drago v. Jenne, 453 F.3d 1301, 1308

(11th Cir. 2006) (emphasis added).

Here, Defendant produced evidence that Shelton

contemplated terminating Plaintiff as early as April 5,

2017. (Doc. 51-5). On that date, Shelton spoke to Amanda

Miranda, an Employee Relations Manager for Defendant.

During that phone call, Shelton reported that Plaintiff

“continues to have performance issues as she is not

completing work and is actively disregarding instructions

and sabotaging the store” (Id.).12 Shelton provided several

examples of Plaintiff’s poor performance and asked “how

long she needs to put up with the behavior and if [Shelton]

can move forward with termination.” (Id.). Although

Plaintiff was not actually terminated until April 11, this

conversation establishes that Defendant contemplated

Plaintiff’s termination on April 5. Accordingly, Plaintiff

cannot demonstrate causation for protected activities

engaged in after April 5. See Drago, 453 F.3d at 1308.

12. The April 5 phone call was a follow-up to a call Shelton

made to Employee Relations the day before. During the initial

“intake” call, Shelton complained that Plaintiff was “having

several issues,” including “[n]ot performing work and lying to

leadership.” Id.

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Plaintiff produced evidence to support the following

timeline of protected activities: (1) on February 23, Plaintiff

complained to Shelton and Employee Relations that

Shelton would not sign and submit her FMLA request;

(2) on March 11, Plaintiff complained to Shelton about an

alleged insect infestation; (3) on March 30, Plaintiff made

another complaint to Shelton about the alleged infestation;

and (4) on March 31, Plaintiff made one more complaint to

Shelton about her refusal to process and sign Plaintiff’s

FMLA request. (Doc. 34, 160:21–22, 264:9–13; Doc. 519, ¶ 9). These alleged incidents of protected activities

occurred fewer than two months before Plaintiff ’s

termination. Accordingly, the “close temporal proximity”

between these protected activities and the adverse

employment action is “sufficient circumstantial evidence

of a causal connection for purposes of a prima facie case.”

Higdon, 393 F.3d at 1220.

Plaintiff also complained about her FMLA requests

on April 7 and April 10, and first complained about the

obstructed exit routes on April 11. (Doc. 34, 361:12–14,

197:12–14; 201:5–7). These incidents occurred after April

5, when Defendant contemplated terminating Plaintiff for

performance-related reasons. Accordingly, these incidents

do not suffice to show causation. See Drago, 453 F.3d at

1308.

Conclusion

Plaintiff established a prima facie case for FWA

retaliation based on her objections to an alleged insect

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infestation and Shelton’s alleged interference with her

FMLA request. Defendant is entitled to summary

judgment on the FWA claims based upon blocked fire

exits, bodily fluids, trash mixing with food, and rodents.

B. FMLA Retaliation—Prima Facie Case

“To prove FMLA retaliation, an employee must show

that [her] employer intentionally discriminated against

[her] for exercising an FLMA right.” Martin v. Brevard

Cnty. Pub Sch., 543 F.3d 1261, 1267–68 (11th Cir. 2008).

Absent direct evidence of retaliatory intent, courts apply

the burden-shifting framework articulated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). To establish a

prima facie case for FMLA retaliation, the plaintiff must

show that: (1) she engaged in an activity protected by the

FMLA; (2) she suffered an adverse employment action;

and (3) the employer’s decision was causally connected to

the protected activity. Martin, 543 F.3d at 1267–68.

Here, Plaintiff engaged in protected activity by

requesting intermittent leave to care for her disabled son,

and she was terminated shortly thereafter. The temporal

proximity between Plaintiff’s request and her termination

is sufficient evidence of causation. See Higdon, 393 F.3d

at 1220.

Thus, Plaintiff established a prima facie case of FMLA

retaliation.

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IV. FWA and FMLA—Burden Shifting

Courts address FWA and FMLA retaliation claims

using the same burden-shifting framework. “Once

the prima facie case is established, the employer must

proffer a legitimate, non-retaliatory reason for the

adverse employment action.” Rice–Lamar v. City of Fort

Lauderdale, 853 So. 2d 1125, 1133 (Fla. 4th DCA 2003);

Martin, 543 F.3d at 1267–68. “The employer’s initial

showing, just as the plaintiff’s, is a low bar to hurdle.”

Flowers v. Troup Cnty., Ga., Sch. Dist., 803 F.3d 1327, 1336

(11th Cir. 2015). Once the employer advances a legitimate,

nondiscriminatory reason for the adverse employment

action, “the plaintiff’s prima facie case is rebutted and

all presumptions drop from the case.” Id. At that point,

“[t]he plaintiff bears the ultimate burden of proving by a

preponderance of the evidence that the reason provided

by the employer is a pretext for prohibited, retaliatory

conduct.” Rice–Lamar, 853 So. 2d at 1133. The “defendant

is entitled to summary judgment if the plaintiff does not

proffer sufficient evidence to create a genuine issue of

material fact as to each of the defendant’s articulated

reasons.” Chapman v. AI Transp., 229 F.3d 1012, 1024–25

(11th Cir. 2000).

Legitimate, Non-Retaliatory Reason

Defendant argues that it “terminated Plaintiff’s

employment for clear violations of [Defendant’s] policies,

i.e., her refusal to complete tasks, instructing others not to

complete their tasks, and being dishonest when questioned

about the same.” (Doc. 33, p. 23). Defendant produced

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detailed documentation that these performance issues

predated and motivated Plaintiff’s termination. (See Doc.

51-5). Such evidence, if believed by the trier of fact, would

support a finding that Defendant terminated Plaintiff

for legitimate, non-retaliatory reasons. Cf. St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). Accordingly,

Defendant has met its burden of production and rebutted

the presumptions raised by Plaintiff’s prima facie case.

B. Pretext

Plaintiff must now introduce “significantly probative

evidence” showing that Defendant’s stated reasons for

her termination were actually a pretext for unlawful

retaliation. Brooks v. Cnty. Comm’n of Jefferson Cnty.,

446 F.3d 1160, 1163 (11th Cir. 2006). A plaintiff can

demonstrate pretext in two ways: (1) by showing that the

legitimate, nonretaliatory reason should not be believed;

or (2) by showing that, in light of all of the evidence,

retaliatory reasons more likely motivated the decision

than the proffered reason. See Standard v. A.B.E.L.

Servs., Inc., 161 F.3d 1318, 1332 (11th Cir. 1998).13 “In other

13. “When a plaintiff chooses to attack the veracity of the

employer’s proffered reason, the inquiry is limited to whether the

employer gave an honest explanation of its behavior.” Kragor v.

Takeda Pharms. Am., Inc., 702 F.3d 1304, 1310–11 (11th Cir. 2012).

An employer “may terminate an employee for a good or bad reason

without violating federal law.” Damon v. Fleming Supermarkets

of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999). “Federal courts

do not sit as a super-personnel department that reexamines an

entity’s business decisions.” Elrod v. Sears, Roebuck & Co., 939

F.2d 1466, 1470 (11th Cir. 1991). Likewise, courts may not question

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words, the plaintiff has the opportunity to come forward

with evidence, including the previously produced evidence

establishing the prima facie case, sufficient to permit a

reasonable factfinder to conclude that the reasons given

by the employer were not the real reasons for the adverse

employment decision.” Combs v. Plantation Patterns, 106

F.3d 1519, 1528 (11th Cir. 1997). If the plaintiff cannot meet

this burden, then summary judgment should be entered

in the defendant’s favor. Chapman, 229 F.3d at 1037.

Plaintiff first argues that Defendant’s “shifting”

and “inconsistent” explanations for her termination

are evidence of pretext. (Doc. 46, p. 17). A plaintiff may

demonstrate pretext by “revealing such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in [the employer’s] proffered legitimate

reasons for its actions that a reasonable factfinder could

find them unworthy of credence.” Springer v. Convergys

Customer Mgmt. Grp., Inc., 509 F.3d 1344, 1348 (11th Cir.

2007). Pointing out an employer’s “shifting reasons” for the

adverse action is also an acceptable method of establishing

pretext. See Tidwell v. Carter Prods., 135 F.3d 1422, 1428

(11th Cir. 1998). That said, the mere fact that an employer

offers an additional reason for the employment decision

will not suggest pretext if both reasons are consistent. Id.

Plaintiff’s argument on this point is not entirely clear.

Her analysis proceeds as follows:

“whether employment decisions are prudent or fair.” Damon, 196

F.3d at 1361.

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Defendant now contends Defendant fired

[Pla inti ff ] for insubordination and she

“sabotaged the performance of the store”

because she “refused to complete tasks” by

[Shelton] and [the Assistant Store Manager]

and “directed others not to complete tasks.”

Again, the [Corporate Representative] could

not identify any facts supporting any of these

reasons (and did not identify “sabotaging the

store” as a reason), and Shelton could provide

very little specifics if any, other than [Plaintiff]

was forgetful on a weekend and forgot what

time the store closed. Another inconsistency

is within Defendant’s Federal EEOC Position

Statement, which is devoid of any allegation that

[Plaintiff] was dishonest, and makes the false

statement that, “in the months leading to her

separation of employment, [Plaintiff] received

numerous admonishments related to her defiant

behavior” which is just false.

(Doc. 33, p. 17) (internal citations omitted). None of

these examples suggest that Defendant’s reasons for

terminating Plaintiff are new or inconsistent. Shelton’s

phone calls to Employee Relations on April 4 and 5

indicate that Plaintiff’s performance issues included

“actively disregarding instructions,” “sabotaging the

store,” and “lying to leadership.” (Doc. 51-5). These

explanations predate Plaintiff’s termination and mirror

the explanations offered now. Defendant notes that

“[a]lthough different terminology has been used, the core

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issue underlying Plaintiff’s termination has always been

the same. Plaintiff violated Defendant’s Standards of

Conduct by disregarding her supervisor’s instructions,

lying about her reasons for doing so, and sabotaging the

performance of the store.” (Doc. 53, p. 2).14 The Court

agrees. Plaintiff fails to demonstrate that Defendant’s

justifications for her termination have changed.

Next, Plaintiff attempts to show pretext by arguing

that Defendant deviated from its established policies.

A plaintiff may “show pretext by demonstrating that

the employer did not follow its normal procedures in

terminating [her] employment.” Ritchie v. Indus. Steel,

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

added). According to Plaintiff, “Defendant violated its

own FMLA, OSHA, Discipline, Discrimination, and

Discipline [sic] policies.” (Doc. 46, p. 18). Several of these

alleged health and safety violations were unrelated to

Plaintiff’s termination, and therefore have no bearing on

a pretext inquiry. To the extent that Defendant deviated

from established discipline policies, such deviations

“can be evidence of pretext.” Ritchie, 426 F. App’x at 873

(quoting Morris v. City of Chillicothe, 512 F.3d 1013, 1020

(8th Cir. 2008)). However, “if management has discretion

14. Plaintiff also argues that Shelton testified during a

Reemployment Assistance Appeal Hearing that she made the

termination decision on April 5 (Doc. 41, 10:22–24), but later

testified that she could not remember the specific date (Doc. 38,

212:18). Even if these statements were inconsistent, they do not

speak to the underlying reason for Plaintiff’s termination.

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Appendix C

as to whether to follow the discipline policy, then a failure

to follow the policy does not show pretext.” Id.15

Here, Defendant’s Discipline Policy states that it “does

not alter the nature of at- will employment, and does not

entitle team members to progressive disciplinary action

in any particular case.” (Doc. 34-3, p. 40). Furthermore,

“[T]eam members observed to have serious and/or

sustained performance that is below the company’s

performance expectations may be subject to immediate

termination of employment, with or without prior

discipline or performance improvement plan.” (Id.).

Because Defendant reserved the right to terminate

employees without cause and without a PIP, an immediate

termination cannot be considered a “deviation” from

the Discipline Policy. Moreover, the Court notes that

Defendant did in fact apply progressive discipline as

outlined by the policy. Plaintiff had been on a PIP when she

was terminated—and her placement on the PIP occurred

before she engaged in any activities protected by the FWA

or FMLA. This pretext argument fails.

Finally, Plaintiff argues that “Shelton’s complaints

about [Plaintiff’s] FMLA within 10 days before [sic]

her firing show pretext.” (Doc. 46, p. 18). “Language

15. See also Morris, 512 F.3d at 1020 (holding that failure

to follow discipline policy could not establish pretext where the

employer reserved the right to fire at-will employees without prior

written warning); Fane v. Lock Reynolds, LLP, 480 F.3d 534, 541

(7th Cir. 2007) (holding that failure to follow a discipline policy could

not established pretext where the policy contemplated immediate

termination for certain offenses).

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Appendix C

not amounting to direct evidence, but showing some

[discriminatory] animus, may be significant evidence of

pretext once a plaintiff has set out the prima facie case.”

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir.

2004). As far as the Court can discern,16 Plaintiff appears to

reference Shelton’s statements to Employee Relations that

“[Plaintiff] requested an intermittent leave and is calling

in frequently” and “[Plaintiff] has recently requested an

intermittent FMLA (pending approval). [Plaintiff] has

already called out for 2 days due to her FMLA even though

it is not approved yet.” (Doc. 51-5). Presumably, Plaintiff

believes these statements suggest resentment for her use

of FMLA leave, which in turn suggests that the detailed

record of her workplace misconduct was pretextual at best

and fabricated at worst. The Court is not entirely convinced

by this line of reasoning. Reporting Plaintiff’s attempts to

take FMLA leave before she received approval does not

imply a complaint about Plaintiff seeking FLMA leave in

general. In isolation, the former does not give rise to a

reasonable inference of pretext.17

That said, the Court must consider “all of the evidence”

in the light most favorable to Plaintiff. Standard, 161 F.3d

at 1332. In addition to Shelton’s statements to Employee

16. Plaintiff’s discussion on this point makes no citation to

the record. (See Doc. 46, p. 18).

17. Defendant cites to case law suggesting that “a supervisor’s

comments concerning his frustration with FMLA is insufficient

to establish pretext.” Meyer v. Lincare Inc., No. 2:12-cv-754, 2013

WL 5657449, at *9 (M.D. Ala. Oct. 16, 2013). The Court disagrees with

this reasoning. An employer’s outward animus for the exercise of FMLA

rights is highly probative of pretext.

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Relations, Plaintiff’s testimony suggests an ongoing

conflict with Shelton regarding FMLA leave. Plaintiff first

submitted her FMLA paperwork to Shelton on February

16, 2017. (Doc. 34, 165:24).18 On February 23, Plaintiff

complained to Shelton and Employee Relations because

Shelton had not submitted the paperwork to Defendant’s

Unpaid Leave Department. (Doc. 34, 160:16 –161:3).

Although Shelton signed the paperwork on February

22, and Macek signed on February 23, Shelton did not

fax the paperwork to the Unpaid Leave Department

until February 27. (Doc. 36-1, p. 47). This paperwork

did not include the specific leave dates requested, so

the Unpaid Leave Department sent a letter to Plaintiff

requesting additional information; however, “[t]hat letter

was inadvertently sent to Plaintiff’s address on file with

the Unpaid Leave Department, rather than the address

listed on her request for leave.” (Doc. 33, p. 11). Plaintiff

did not discover that the Unpaid Leave Department had

not approved her FMLA request until March 31. Plaintiff

filled out a second request for FMLA leave that same

day, but Shelton did not sign and submit the request

until April 7. (Doc. 34-3, p. 2). In the interim, Shelton

denied Plaintiff’s requests for FMLA leave, telling her to

“[m]ake accommodations for your son because I already

18. Shelton testified that she is not responsible for approving

or evaluating employees’ FMLA requests. (Doc. 38, 229:11–13).

However, she also testified that “generally if an employee is filling

out FMLA, I help them from start to finish. And I would make

sure everything is signed and, of course, as needed, the district

manager’s signature. So I’d have to get that. And then, generally

speaking, I’d fax it then to the—the number listed, and then I don’t

know what happens from there.” (Id., 119:4–11).

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did the schedule. You need to do your job and you are

not doing your job.” (Doc. 34, 384:16–21). Shelton told

Plaintiff that any such absences would be “unexcused.”

(Doc. 51-6).

Shelton’s complaints about Plaintiff’s workplace

misconduct (i.e., insubordination, dishonesty, “sabotage)

appear to have been the animating force behind

Defendant’s decision to terminate Plaintiff’s employment.

A reasonable factfinder could infer from the above

chain of events, combined with Shelton’s statements to

Employee Relations and their close temporal proximity

to Plaintiff’s termination, that Shelton was hostile to

Plaintiff’s attempts to exercise her FMLA rights. If so,

a reasonable factfinder could also conclude that Shelton’s

complaints—and Plaintiff’s resulting termination—were

more likely motivated by that hostility than Plaintiff’s

work performance. Accordingly, Plaintiff has presented

enough evidence to create an issue of fact regarding

pretext.19

To summarize, Defendant rebutted Plaintiff’s prima

facie case of FWA and FMLA retaliation with evidence

that Plaintiff was terminated for insubordination,

dishonesty, and “sabotag ing” the store. Plaintiff

failed to present evidence that these leg itimate,

nonretaliatory reason should not be believed—that is,

she did not meaningfully dispute the underlying record of

19. However, the Court emphasizes that this holding is

limited to Plaintiff’s FMLA-related claims. Plaintiff offered no

evidence to suggest that retaliation against her objections to an

alleged insect infestation had any influence on her termination.

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her workplace misconduct—but she did present sufficient

evidence for a reasonable jury to infer that FMLA

retaliation more likely motivated the termination decision

than her misconduct.

Thus, Defendant’s Motion for Summary Judgment

on Count I (FWA Retaliation) is granted in part. To the

extent that Plaintiff asserts a

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