“Temporal Disconnect” Doctrine: Eleventh Circuit Clarifies that an Employer’s Pre-Existing Decision to Terminate Bars FMLA Interference and Retaliation Liability

1. Introduction

In Linda Banks v. MarketSource, Inc., No. 23-11417 (11th Cir. July 3, 2025) (unpublished), the Eleventh Circuit confronted a familiar but thorny timeline problem: what happens when an employer decides to fire an employee, but carries out the discharge only after the employee seeks or takes leave under the Family and Medical Leave Act (FMLA)?

Linda Banks, a Black project manager suffering from chronic hypoglycemia, was placed on a Performance Improvement Plan (PIP) and—unknown to her—selected for termination on June 8, 2016. Three days later she requested two weeks of FMLA leave. MarketSource approved the leave, but four days after she returned, the company effectuated the previously-made decision and terminated her employment.

Banks sued, alleging FMLA interference and retaliation as well as race discrimination under Title VII and 42 U.S.C. § 1981. The district court granted summary judgment on both FMLA theories, and a jury rejected her Title VII claim. On appeal, the Eleventh Circuit affirmed across the board, generating a noteworthy clarification of FMLA causation principles and of the procedural limits on raising new theories at summary judgment.

2. Summary of the Judgment

FMLA Interference. An employer is not liable for interference if it can show that the termination was “wholly unrelated” to the employee’s leave. Because the decision to fire Banks pre-dated her request, the court held her termination was necessarily unrelated to her protected leave.
FMLA Retaliation. Causation fails when the protected activity occurs after the adverse decision is made. Banks thus could not demonstrate the required causal nexus.
New Theories at Summary Judgment. Banks first mentioned “intermittent leave” in her summary-judgment response. Relying on Gilmour v. Gates, McDonald & Co., the panel held that a plaintiff cannot amend her complaint through briefing; the intermittent-leave theory was therefore ignored.
Motion for New Trial (Title VII claim). The magistrate judge’s evidentiary rulings were not an abuse of discretion. Objections were untimely or the evidence was admissible for non-hearsay purposes. Any error was harmless.
Result. Summary judgment and denial of new-trial motion AFFIRMED.

3. Analysis

3.1 Precedents Cited and Their Influence

Strickland v. Water Works & Sewer Bd., 239 F.3d 1199 (11th Cir. 2001) – Provides the interference/retaliation framework and the “wholly unrelated” defense. The court relied heavily on Strickland to dispose of both FMLA claims.
Pereda v. Brookdale Senior Living Cmtys., Inc., 666 F.3d 1269 (11th Cir. 2012) – Confirms that requesting leave is protected activity. Used to identify Banks’s “protected activity,” but ultimately distinguished on causation grounds.
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312 (11th Cir. 2004) – Stands for the rule that new claims cannot be raised in summary-judgment briefing. The panel used it to exclude Banks’s intermittent-leave theory.
Hurlbert v. St. Mary’s Health Care Sys., 439 F.3d 1286 (11th Cir. 2006) – Applied Gilmour in the FMLA context. Quoted to illustrate how a new statutory basis (different subsection of § 2612) constitutes a new claim.
Moore v. Sears, Roebuck & Co., 683 F.2d 1321 (11th Cir. 1982) – Cited in the new-trial discussion for non-hearsay use of out-of-court statements to show motive rather than truth.
Flowers v. Troup County School District, 803 F.3d 1327 (11th Cir. 2015) – Recalled to show relevance of replacement evidence in a Title VII case, supporting admission of testimony about a later hire.

3.2 The Court’s Legal Reasoning

A. “Temporal Disconnect” between Decision and Leave. The court framed the dispositive issue around timing. Because MarketSource decided to terminate Banks on June 8 and she did not request leave until June 13, “the protected activity had not yet occurred,” undermining both theories.

B. Interference Claim. The “wholly unrelated” defense from Strickland applies when an employer can show an independent, non-leave-related reason for termination. The panel treated a pre-existing decision as categorically “wholly unrelated,” effectively creating a bright-line rule: once the employer’s decision is made, later FMLA activity cannot convert the discharge into interference.

C. Retaliation Claim. Retaliation requires a causal chain: protected activity → adverse action. By fixing the chain’s chronology at the date the decision is made—not the date it is implemented—the court closed the door on retaliation claims where the decision precedes the request for leave.

D. Procedural Bars. Invoking Gilmour, the panel emphasized pleading discipline. An FMLA claimant who wishes to rely on intermittent-leave rights under § 2612(b) must plead them; raising such a theory for the first time in opposition to summary judgment is a nullity.

E. Evidentiary Rulings / New Trial. The court applied a three-step plain-error/abuse-of-discretion test (citing Stephens). It found no reversible error because (1) some objections were waived, (2) purported hearsay statements were offered for non-truth purposes (motive), and (3) any violation of the pre-trial “attorney-advice” order was cured by a limiting instruction.

3.3 Potential Impact on Future Litigation

Bright-Line Timing Rule. Litigants in the Eleventh Circuit should expect courts to measure causation from the date of an internal decision, not the termination date. Plaintiffs will need evidence that the decision itself post-dates leave activity; mere temporal proximity between leave and discharge is insufficient if the decision was earlier.
Pleading Precision. Failure to plead the specific type of leave (full-time vs. intermittent) or statutory subsection (Hurlbert) can be fatal. Employers can move to strike late-introduced theories at summary judgment.
Defense Strategy. Employers should meticulously document the date and participants of termination decisions. A well-papered “decision memo” predating an FMLA request can provide a complete defense.
Trial Practice. The decision reaffirms latitude for non-hearsay uses of out-of-court statements to show motive. It also illustrates courts’ willingness to cure borderline violations with limiting instructions rather than ordering new trials.

4. Complex Concepts Simplified

FMLA Interference. Think of interference as blocking someone’s right to take protected leave or to return afterward. If the employer can prove that something other than the leave (e.g., documented poor performance) was the sole reason for discharge, there is no interference.
FMLA Retaliation. Retaliation is about punishment: did the employer act because the employee used or asked for leave? A retaliation claim fails if the adverse action was already in motion beforehand.
“Decision Date” vs. “Effective Date.” The court distinguishes between (a) when the company makes up its mind internally and (b) when the employee is actually told or separated. Only the former counts for causation.
Amending Pleadings. Under Federal Rule 15(a), if a plaintiff wants to add a new theory, she must formally amend the complaint—not slip the theory into a brief. Courts will ignore new arguments raised late.
Hearsay for Motive. An out-of-court statement is not hearsay when offered not to prove it is true, but to explain why a decision-maker acted. Example: “My boss told me John was incompetent.” If offered to show why I fired John (my motive), it is not hearsay.

5. Conclusion

Banks v. MarketSource crystallizes a “temporal disconnect” doctrine: an employer’s liability under the FMLA evaporates when the adverse decision clearly predates the employee’s request for leave. The case also reinforces procedural rigor—new statutory theories must be pled—and provides practical guidance on evidentiary boundaries at trial.

For employers, the message is to document timing. For employees and their counsel, the lesson is twofold: (1) uncover evidence that the decision was not final before the leave request, or that the purportedly “pre-decided” termination was a sham; and (2) plead every statutory basis for leave at the outset. As FMLA and Title VII litigation continues to hinge on close temporal and procedural questions, the Eleventh Circuit’s unpublished opinion—though formally non-precedential—will undoubtedly be cited for its crisp articulation of these principles.