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Walgreens Leave Retaliation Case Puts Proof Level to 11th Cir.

Aug. 9, 2022, 9:55 AM

A federal appeals court in Atlanta will consider during oral argument what threshold a former Walgreen Co. worker must reach to prove the pharmacy chain retaliated against her for attempting to take time off under federal law to care for a dependent.

Doris Lapham, a single mother of a disabled child, is trying to convince the US Court of Appeals for the Eleventh Circuit to revive her lawsuit against Walgreens alleging she was fired because she sought Family and Medical Leave Act time off. The court will hear argument Wednesday.

A federal district judge in Orlando, Fla., threw out Lapham’s suit after rejecting her argument that she needed to show her request for FMLA leave was a motivating factor that contributed to the decision to sack her. Instead, the judge applied the more stringent “but-for” causation standard—meaning that the company wouldn’t have terminated her but for her leave request—and found Lapham came up short.

The case gives the Eleventh Circuit the opportunity to clarify the proper causation standard needed to prove FMLA retaliation. A decision that adopts a but-for threshold would create a circuit split that only the US Supreme Court could resolve.

‘But-for’ as Default

The high court has handed down four rulings since 2009 that set causation standards under various federal anti-bias laws, with the justices making but-for causation the default standard unless the law specifically instructs otherwise.

The court named but-for causation the standard for age bias claims under the Age Discrimination in Employment Act in 2009, retaliation claims under Title VII of the 1964 Civil Rights Act in 2013, and race discrimination claims under Section 1981 of the 1866 Civil Rights Act in 2020.

For the ADEA’s federal-sector provision, the Supreme Court held in 2020 that an employer violates the law if age was a factor in an employment decision. But that threshold is used for liability determinations, which can trigger injunctions and other forward-looking relief. Workers can only get damages and other remedies if they show age bias was a but-for cause of an adverse employment action.

Workers and employers have fought pitched court battles over the causation standards used for workplace discrimination, but the stakes aren’t as high now that fewer courts incorrectly treat a but-for cause as an extremely difficult threshold for workers to reach, said Sandra Sperino, a law professor at the University of Missouri. The Supreme Court has clarified that a but-for cause and a motivating factor aren’t that different, she said.

But-for causation “can be a sweeping standard,” events often have “multiple but-for causes,” and a worker’s race, age, or other protected category need not be the primary factor that caused an adverse employment action, the Supreme Court said in its landmark 2020 ruling that extended Title VII protections to LGBT workers.

Yet the definition of a but-for cause still comes up in litigation. Lapham argues that the judge who threw out her FMLA retaliation lawsuit against Walgreens erroneously equated it to a sole cause.

Causation Dilemma

The dispute over causation at the Eleventh Circuit arises from Lapham’s 2017 termination from a Walgreens in Daytona Beach, Fla. The company asserts she was fired for poor performance. Lapham alleged she was sacked as payback for asking for FMLA leave, as well as for complaining about the safety conditions at the store.

US District Judge Paul Byron, an Obama appointee, initially threw out Lapham’s state law claim related to safety complaints. But she presented enough evidence that her termination was driven by supervisor Lisa Shelton’s hostility toward her leave requests for her FMLA retaliation claim to survive, he said in his 2020 ruling.

However, Byron granted Walgreens’ request to reconsider and agreed with the company that he should apply the but-for causation standard.

“Although the conclusion that Shelton’s complaints were more likely motivated by FMLA hostility than Plaintiff’s performance problems would satisfy a ‘motivating factor’ causation standard, it is not enough to establish ‘but-for’ causation,” Byron said in his 2021 decision. “Plaintiff’s poor performance was an independent, non-retaliatory basis for her termination.”

Weight of Circuit Authority

Lapham appealed Byron’s ruling to the Eleventh Circuit. Judges Elizabeth Branch and Barbara Lagoa, both Trump appointees, and Judge Charles Wilson, a Clinton appointee, will hear the case, according to the Eleven Circuit clerk’s office.

Seven other circuit courts apply motivating factor or “negative factor”—which courts appear to use synonymously—for FMLA retaliation cases, Lapham said in a brief. The US Labor Department’s FMLA regulations also identify negative factor as the appropriate causation threshold, she said.

“While the Eleventh Circuit has not expressly adopted the motivating factor standard, the Court has alluded to a motivating factor standard through language requiring a plaintiff to show that employer’s actions to have been ‘motivated by an impermissibly retaliatory or discriminatory animus,’” according to Lapham’s brief.

Yet even if but-for should apply, Byron applied it incorrectly by ignoring that there can be multiple but-for causes, she said.

Lapham said she provided evidence of her supervisor’s hostility toward her leave requests, which satisfies the but-for test regardless of whether she also had performance issues.

Deliberate Choice

Walgreens argued in a brief that the Eleventh Circuit, while not expressly adopting but-for causation, has required workers to prove they faced discrimination “because” they took action protected by the FMLA.

The circuit also jointly interprets the retaliation provisions of the FMLA and Title VII, which takes the but-for causation standard under the Supreme Court’s 2013 ruling in Univ. of Tex. Sw. Med. Ctr. v. Nassar, the company said.

Taking the Eleventh Circuit’s lead, several district courts have applied but-for causation to FMLA retaliation claims, the company said. Both the text of the FMLA’s retaliation provision and Supreme Court authority support that view, it said.

“Had Congress intended to allow for a mixed-motive retaliation claim under the FMLA, it could easily have done so,” Walgreens said. “The fact remains that it did not and, in light of Nassar, that choice must be viewed as deliberate.”

Walgreens’ lawyer, Gregory Hearing of GrayRobinson PA, declined to comment through a firm spokesman. Lapham’s attorney, Brandon Breslow of Kynes Markman & Felman PA, didn’t respond to requests for comment.

The case is Lapham v. Walgreen Co., 11th Cir., No. 21-10491, oral argument 8/10/22.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Genevieve Douglas at gdouglas@bloomberglaw.com