FMLA Leave Requires Evidence of a “Serious Health Condition,” and Retaliation Claims Require Evidence Linking Termination to Protected Activity

Introduction

In Davenport v. Zachary Manor Nursing and Rehabilitation Center, L.L.C. (5th Cir. Aug. 5, 2026) (per curiam) (unpublished), a pro se licensed practical nurse challenged summary judgment on claims for (1) FMLA interference and (2) FMLA retaliation after she was terminated for failing to report to work when she chose to quarantine following news of a COVID-19 diagnosis at her workplace. She asserted she sought leave—at least in part—to protect and/or care for her mother.

The central issues were whether Davenport produced evidence establishing entitlement to FMLA leave (a prerequisite to an interference claim and often relevant to whether conduct is “protected activity”) and whether she produced evidence linking her discharge to any FMLA-protected activity (a prerequisite to a retaliation claim).

Summary of the Opinion

The Fifth Circuit affirmed summary judgment for the employer. On the interference claim, the court held Davenport failed to raise a genuine dispute that she was entitled to FMLA leave because she provided no competent summary-judgment evidence that her mother had a statutorily defined “serious health condition.” On the retaliation claim, the court affirmed because Davenport produced no evidence correlating her termination with her request for FMLA leave and did not rebut the employer’s evidence that she was terminated for unprotected conduct—an unapproved, non-FMLA absence.

Analysis

Precedents Cited

  • Austin v. Kroger Tex., L.P., 864 F.3d 326 (5th Cir. 2017) (per curiam): cited to support the district court’s authority to reconsider interlocutory rulings under Rule 54(b). The panel used it to reject Davenport’s argument that reconsideration of summary-judgment rulings was improper.
  • Favela v. Collier, 91 F.4th 1210 (5th Cir. 2024): cited for the appellate standard of review—summary judgment is reviewed de novo.
  • Mauder v. Metro. Transit Auth., 446 F.3d 574 (5th Cir. 2006): cited to frame FMLA structure: an “entitlement” (prescriptive) provision and a separate “proscriptive” anti-retaliation provision.
  • Harrelson v. Lufkin Indus., Inc., 614 F. App’x 761 (5th Cir. 2015) (per curiam) and Campos v. Steves & Sons, Inc., 10 F.4th 515 (5th Cir. 2021): cited for the elements of an interference claim and specifically that the plaintiff must prove entitlement to FMLA leave.
  • Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455 (5th Cir. 1998): cited for the summary-judgment evidentiary rule that a nonmovant cannot rest on pleadings and must identify specific record evidence creating a genuine dispute.
  • Richardson v. Monitronics Int’l, Inc., 434 F.3d 327 (5th Cir. 2005): cited for the prima facie elements of FMLA retaliation: protected activity, adverse action, and causal link.
  • Tatum v. S. Co. Servs., Inc., 930 F.3d 709 (5th Cir. 2019): cited for the employer’s burden in the McDonnell Douglas framework—articulating a legitimate, nonretaliatory reason once a prima facie case is made.
  • Cerda v. Blue Cube Operations, L.L.C., 95 F.4th 996 (5th Cir. 2024) and Moreno v. Dealer Integrated Servs., L.L.C., No. 25-20470, 2026 WL 1286835 (5th Cir. May 11, 2026) (per curiam): cited for the pretext step—plaintiff must produce evidence the stated reason is false and a cover for retaliation.
  • Hernandez v. Velasquez, 522 F.3d 556 (5th Cir. 2008) (per curiam): cited for the principle that an appellate court may affirm summary judgment on any ground supported by the record, enabling affirmance on lack-of-evidence grounds even if the district court emphasized a different element.
  • Decou-Snowton v. Jefferson Par., No. 24-30079, 2024 WL 4879466 (5th Cir. Nov. 25, 2024) (per curiam): cited to note an unsettled issue: the precise causation standard for FMLA retaliation in the Fifth Circuit; the panel found the dispute immaterial because Davenport offered no causation evidence under any standard.

Legal Reasoning

1) Interference: entitlement requires evidence, not allegations

The court treated the interference claim as turning on a threshold requirement: Davenport had to show she was entitled to FMLA leave. The statutory leave right at issue—leave to care for a parent—requires that the parent have a “serious health condition.” The court emphasized that “serious health condition” is a defined term (inpatient care or continuing treatment by a health care provider), and Davenport produced no competent evidence satisfying that definition. Her allegation that her mother was “sick” was not enough at summary judgment under Ragas v. Tenn. Gas Pipeline Co..

The court also rejected Davenport’s suggestion that she had provided “discharge summaries,” noting she failed to corroborate the assertion with competent summary-judgment evidence. With no evidence of a qualifying condition, she could not raise a genuine dispute of material fact, and summary judgment was proper.

2) Retaliation: even an arguably protected request must be tied to the discharge

For retaliation, the panel applied the prima facie framework from Richardson v. Monitronics Int’l, Inc. and noted the McDonnell Douglas burden-shifting sequence (with Tatum v. S. Co. Servs., Inc. for the employer’s legitimate-reason step and Cerda v. Blue Cube Operations, L.L.C. / Moreno v. Dealer Integrated Servs., L.L.C. for the pretext step). The district court had disposed of the claim on the first element (no protected activity), reasoning Davenport failed to prove entitlement to leave.

On appeal, Davenport reframed the protected activity as “asking to use FMLA leave” to quarantine, rather than taking leave. The Fifth Circuit did not need to decide the protected-activity question on that framing because the record failed at a more basic point: Davenport produced no evidence connecting the termination to the leave request, and she did not rebut the employer’s evidence that she was fired for unprotected conduct—an unapproved absence after being warned she was expected to report. Relying on Hernandez v. Velasquez, the court affirmed on this record-based ground.

The court additionally noted that the causation standard in the circuit is unsettled (Decou-Snowton v. Jefferson Par.), but the dispute was academic here because Davenport offered no causation evidence at all.

Impact

  • Evidence discipline at summary judgment in FMLA cases: The decision reinforces that plaintiffs must present admissible evidence of each statutory prerequisite—particularly “serious health condition”—and cannot rely on pleadings or unsubstantiated assertions about medical records.
  • Quarantine-related absences are not automatically FMLA-protected: An employee’s desire to quarantine (even for a family member’s protection) does not, without evidence of a qualifying condition and statutory fit, establish FMLA entitlement.
  • Retaliation claims require a concrete link: Even if a request for leave could be framed as protected activity, plaintiffs must still produce evidence that the adverse action was because of that activity and must be prepared to rebut a documented, non-FMLA reason for termination (here, a “no call/no show” type absence).
  • Unsettled causation standard remains unresolved: The panel again avoided choosing among causation standards because the evidentiary failure was complete—suggesting future litigants must build causation proof sufficient to matter under any plausible standard.

Complex Concepts Simplified

  • FMLA “interference” vs. “retaliation”:
    • Interference focuses on whether the employee was denied an FMLA right (like leave) to which she was entitled.
    • Retaliation focuses on whether the employer punished the employee for using or attempting to use FMLA rights.
  • “Serious health condition”: Not just being “sick.” The statute requires evidence of either inpatient care or continuing treatment by a health care provider.
  • Summary judgment evidence: At this stage, the nonmoving party must point to record evidence (documents, sworn testimony, admissible medical records, etc.), not merely allegations in the complaint.
  • McDonnell Douglas burden shifting (retaliation): If the employee makes a basic showing (prima facie case), the employer must provide a legitimate reason; then the employee must show that reason is a pretext (not the real reason).
  • Rule 54(b) reconsideration: A district court can revise certain non-final orders before final judgment; it is not locked into an initial ruling.

Conclusion

Davenport underscores two practical rules in Fifth Circuit FMLA litigation: (1) interference claims collapse without competent evidence establishing statutory entitlement—especially proof of a family member’s “serious health condition”; and (2) retaliation claims require evidence that the adverse action was connected to protected activity and must overcome unrebutted evidence of a non-FMLA reason for termination. Even amid unresolved questions about the precise causation standard for FMLA retaliation, the decision signals that plaintiffs must first clear a foundational evidentiary threshold: proof, not conjecture.