On December 13, 2023, an Eleventh Circuit panel firmly established “but-for” causation as the Circuit’s causation standard for Family and Medical Leave Act (FMLA) retaliation claims. Courts across the nation have adopted different standards, with the Eleventh Circuit decision only further deepening the circuit split on the topic.
Background
In Lapham v. Walgreen Co., No. 21-10491 (11th Cir. Dec. 13, 2023), an employee of Walgreens filed suit against the corporation, alleging unlawful termination based on retaliation for her FMLA leave request. The plaintiff frequently used intermittent FMLA leave to care for her son, who was diagnosed with two forms of epilepsy. The company asserted that, irrespective of her leave requests, the plaintiff continually had performance issues during her almost ten years of employment with the company. Her annual performance reviews varied, from not meeting expectations to partially meeting expectations. The company further asserted that plaintiff exhibited other performance issues, such as actively disregarding instructions, lying to management, and sabotaging the store. At one point, the plaintiff was placed on a 60-Day Performance Improvement Plan (“PIP”). About a month after being placed on the PIP, she requested intermittent FMLA leave spanning a year-long period. While the leave request was still pending, the plaintiff’s manager terminated her on the stated basis of insubordination and dishonesty.
The plaintiff filed suit against...
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