Eleventh Circuit Adopts Higher Standard for FMLA Retaliation Claims

On December 13, 2023, the US Court of Appeals for the Eleventh Circuit (Eleventh Circuit) held in Lapham v. Walgreen Co., that to prove Family and Medical Leave Act (FMLA) retaliation or interference claims, an employee must establish that an adverse employment decision was because of an FMLA leave request, not just motivated by the request.

Plaintiff Doris Lapham worked for Walgreens in various roles and at multiple store locations for over a decade. Between 2011 and 2016, Ms. Lapham took intermittent FMLA leave to care for her disabled son. During that same period, Ms. Lapham received poor to average performance evaluations. In early 2017, Ms. Lapham was placed on a sixty-day Performance Improvement Plan, which is required for all of Walgreens’ employees who score below a certain level on performance evaluations. Around the same time, Ms. Lapham submitted a request for intermittent FMLA leave over the next 12 months, similar to her previous requests.

While the FMLA leave request was pending, Ms. Lapham’s manager discussed Ms. Lapham’s poor work performance with Walgreens’ HR, citing instances of her disregarding instructions, lying to management, and sabotaging the store. That HR discussion included a reference to the pending FMLA leave request. Walgreens’ HR instructed Ms. Lapham’s manager to properly document instances of insubordination and refrain from disciplining Ms. Lapham for any attendance issues until the FMLA leave request was approved or denied. Soon thereafter, Walgreens terminated Ms. Lapham’s employment, citing poor performance, insubordination, and dishonesty. Ms. Lapham’s FMLA leave request was denied based on the termination.

Ms. Lapham then sued her former employer, alleging FMLA retaliation and interference, arguing that her FMLA leave request was a motivating factor in Walgreens’ decision to terminate her employment. The Eleventh Circuit ruled in favor of Walgreens, finding that in order to succeed on an FMLA claim of retaliation or interference, an employee must prove the employment termination was because of the leave request (or “but-for”), not merely a motivating factor. It’s important to note that this standard differs among federal courts across the country — some courts apply a more lenient “motivating factor” standard, making it easier for employees to succeed on FMLA interference or retaliation claims.

The Lapham case serves as a good reminder to employers to have clear and consistent FMLA leave processes. Supervisors, managers, or other employer-designated agents handling FMLA leave requests must be trained to not interfere with an employee’s right to seek FMLA leave. Beginning with an employee’s initial inquiry, communications regarding leave should be documented in a way that prevents any misunderstanding between employer and employee. Especially given the varying standards for proving FMLA claims, any contemporaneous employee disciplinary actions should be reviewed with employment law counsel.

Lapham v. Walgreen Co