Dentons Digest
On June 20, 2024, in Tanner v. Stryker Corp. of Michigan, No. 22-14188 (11th Cir.), the U.S. Court of Appeals for the Eleventh Circuit unanimously affirmed the District Court for the Middle District of Florida’s order granting summary judgment in favor of the employer. The Eleventh Circuit held that the Family and Medical Leave Act (“FMLA”) does not provide protected pre-birth leaves for non-pregnant, non-spousal soon-to-be parents. This decision defines the contours of the FMLA’s protections for pre-birth leave and serves as a reminder that company policies apply equally to all employees, including those that are pre-leave.
Case Background
Tristan Tanner sued his former employer, Stryker Corporation of Michigan (“Stryker”) – a medical technology company – for interference with his FMLA rights and FMLA retaliation. Stryker employed Tanner as a material handler; he was responsible for, among other things, delivering surgical equipment to hospitals and surgical centers. Id. at 2-3. Tanner was based out of Florida. Id. at 3.
Stryker’s employee handbook included a progressive discipline policy/procedure. Id. Absence from work without taking an available leave day resulted in the accrual of two “occurrence points.” Id. The accumulation of occurrence points in a rolling 12-month period generally resulted in a verbal warning for 1 point, a written warning for 2 points, a second written warning for 4 points, and termination for 5 points. Id. The employee handbook also included FMLA and parental leave policies. Id. at 4. The company’s FMLA policy provided employees with twelve weeks of protected, unpaid leave. Id. Under the policy, and consistent with the FMLA, a father’s FMLA leave for the birth of the child begins on the day of his child’s birth, and a father who is absent from work prior to the birth of his child must use his personal time off or sick days to cover his absences. Id.
During Tanner’s employment, Tanner’s girlfriend became pregnant and permanently moved from Florida to Connecticut. Id. at 4-5. In June 2021, Tanner requested paternity leave starting July 26, 2021, anticipating that his child would be born during the last week of July/early August. Id. He also told the company that he would be relocating to Connecticut for the duration of his requested time off. Id. The company approved Tanner’s FMLA request and advised Tanner on several occasions that his FMLA leave would not begin until his child was born, and that he would need to use sick or vacation days to cover any leave before the birth. Id.
By July 20, 2021, Tanner learned that the child’s due date would be closer to August 12; however, on July 30, 2021, he told his supervisor that he would be absent the following week because he expected the birth of his child. Id. at 6. From July 30 to August 8, Tanner used his four remaining days of PTO and one sick leave for his absence. Id. On August 8, Tanner left for Connecticut to await the birth of the baby. Id. He used sick leave from August 9-12. Id.
By August 13, Tanner had exhausted all of his paid leave. Id. at 7. As Tanner continued to miss work, he accrued occurrence points under Stryker’s attendance policy. Id. By August 18, 2021, Tanner had accrued 8 occurrence points. On August 19, 2021, Tanner’s baby was born. Id. at 8. The following day, Stryker terminated Tanner’s employment due to the accrual of occurrence points because of his unexcused absences. Id. at 9.
The district court granted summary judgment in Stryker’s favor. Id. The court held that Tanner was not entitled to take FMLA leave for the absences before his child’s birth, and that, as a matter of law, his FMLA leave did not begin until August 19, 2021. Id. at 9-10. The district court explained that “Congress excluded the possibility that the FMLA entitles employees to leave prior to birth” in certain circumstances and that “Tanner’s case did not fit within any of the circumstances Congress considered worthy of FMLA leave prior to the birth a child.” Id. at 9.In terms of Tanner’s FMLA retaliation claim, the district court found that Tanner had no direct evidence of retaliation because he was not entitled to take or was not on FMLA leave when the termination decision was made. Id. at 10.Further, the court found that Stryker produced a legitimate, non-discriminatory reason for Tanner’s termination – the accrual of eight occurrence points – and Tanner had not shown that this reason was pretextual. Id. In terms of Tanner’s interference claim, the district court found that Stryker had established its “affirmative same decision defense,” that is “Stryker could have terminated [] Tanner for accruing eight occurrence points due to repeated unexcused absences, regardless of whether he was about to begin FMLA leave.” Id.
Tanner appealed the district court’s decision to the Eleventh Circuit.
Eleventh Circuit Ruling
The Eleventh Circuit affirmed the district court’s ruling. The Eleventh Circuit held that the plain language of the FMLA covers pre-birth leaves of absence for (1) pregnant people who cannot work and their spouses if needed to care for them, and (2) adoptive and foster parents in certain circumstances. The panel explained that because Tanner was not the pregnant person nor the spouse of a pregnant person, the FMLA did not cover his pre-birth leave.
The Eleventh Circuit further explained that “[t]he FMLA provides leave and job protection ‘[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter.’” Id. at 15. Thus, the Court explained, FMLA coverage is triggered by the birth of a child, and the days that Tanner spent “awaiting the birth of his child,” for which he accrued occurrence points for unexcused absences, were not FMLA-eligible. Id. at 16-17.
The panel also rejected several of Tanner’s arguments that Stryker’s reason for his termination was pretextual. For example, the panel rejected Tanner’s argument that the close temporal proximity between the start of his FMLA leave and his termination is evidence of pretext. The panel explained that Tanner needed more than temporal proximity to show pretext.
Key Takeaways for Employers
Tanner v. Stryker clarifies a relatively straightforward rules of law: the FMLA does not mandate that all persons are covered by pre-birth leave nor does it excuse employees from complying with company policies that are consistent with the FMLA. Employers should continue to consistently apply their company discipline policies to all employees, including those that are pre-leave.
