Jennifer Akridge v. Alfa Mutual Insurance Company

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 22-12045
____________________

JENNIFER AKRIDGE,
Plaintiﬀ-Appellant,
versus
ALFA INSURANCE COMPANIES,

Defendant,

ALFA MUTUAL INSURANCE COMPANY,

Defendant-Appellee.

____________________
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Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:17-cv-00372-JTA
____________________

Before GRANT, ABUDU, and HULL, Circuit Judges.
HULL, Circuit Judge:
Plaintiﬀ Jennifer Akridge appeals the entry of summary
judgment for her former employer, defendant Alfa Mutual
Insurance Company, on her claim brought under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a). Akridge
contends Alfa discriminated against her by terminating her to avoid
paying healthcare costs related to her multiple sclerosis (“MS”) and
severe migraines. Akridge stresses that Alfa self insures for medical
plans.
Alfa responds that after most of Akridge’s duties became
automated, her position was no longer needed, and Alfa eliminated
it to cut business expenses. Alfa’s medical plan was administered
by a third party, BlueCross BlueShield (“BCBS”). Alfa argues there
is no evidence Alfa’s decisionmakers knew Akridge’s healthcare
costs.
Additionally, Akridge asserts that she is not required to show
her disability was a but-for cause of her termination but may
simply show it was a motivating factor. Akridge also appeals the
award of $1,918 in discovery sanctions in favor of Alfa.
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After review, and with the beneﬁt of oral argument, we
aﬃrm the grant of summary judgment in favor of Alfa and the
sanctions award of $1,918 against Akridge.
I. FACTUAL BACKGROUND
Because Akridge was the non-moving party at summary
judgment, we view the evidence in the light most favorable to her
and draw all reasonable inferences in her favor. Crane v. Lifemark
Hosps., Inc., 898 F.3d 1130, 1133-34 (11th Cir. 2018). When factual
conﬂicts arise, we must credit the non-moving party’s version.
Feliciano v. City of Mia. Beach, 707 F.3d 1244, 1252 (11th Cir. 2013).
A. Akridge’s Employment at Alfa
In 1989, Akridge began working at Alfa, an insurance
company. In 1993, Akridge was diagnosed with MS and began
suﬀering from severe migraines.
By 2015, Akridge was promoted to a strategic coordinator
position in Alfa’s auto underwriting department. Akridge’s
primary task concerned the strategic underwriting program, in
which she worked with Alfa’s agents and district managers to
identify proﬁtable policies for struggling agents.
Akridge also (1) prepared a monthly strategic underwriting
report for that program; (2) created manuals for auto and
watercraft underwriting; (3) veriﬁed proofs of insurance for
lawsuits with auto claims; (4) assisted with rate ﬁlings for the state
insurance department; and (5) taught workshops for agents and
district managers.
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By all accounts, Akridge excelled at her job, with excellent
performance reviews. In the mid-nineties, Alfa named her
employee of the year. Akridge estimated that she reduced Alfa’s
losses by $2 million in her ﬁrst nine months as coordinator of the
strategic auto underwriting program.
Alfa was self-insured and paid the healthcare costs of its
employees. Akridge estimated that it cost Alfa between
$10,000 and $12,000 per month to treat her MS and migraines.
While it was common knowledge at Alfa that Akridge had MS, no
one at Alfa ever said anything to Akridge about her healthcare
costs.
B. Guidewire
Between 2012 and 2016, Alfa developed Guidewire, a new
computer program that “changed how [Alfa] d[id] business”
because it automated certain capabilities. Among other things,
Guidewire enabled agents and district managers to access the
strategic underwriting information that Akridge previously
gathered and distributed. Alfa estimated Guidewire would cost
$90 million to develop, but it ultimately cost between $150 and
$160 million.
C. Decisionmakers and the Decision to Terminate Akridge
In 2016, Akridge’s chain of command was as follows: (1) her
immediate supervisor was Robert Plaster, Director of
Underwriting Services; (2) Plaster reported to Beth Chancey, Vice
President of Property and Casualty Operations; and (3) Chancey
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reported to Tommy Coshatt, Senior Vice President of Property and
Casualty Underwriting (collectively the “decisionmakers”).
The decisionmakers discussed eliminating Akridge’s
position for one to two weeks before her termination. They
ultimately decided to terminate Akridge because some of her
responsibilities were now automated and other responsibilities that
could not be automated were absorbed by other employees.
Akridge’s non-automated responsibilities were given “to other
people in the department that had been doing those [tasks] as well.”
Chancey testiﬁed that Alfa did not have enough spare
responsibilities to combine with these non-automated duties to
keep Akridge’s position or create a new one for her.
Regarding automation, the decisionmakers testiﬁed that
Alfa had automated the strategic underwriting program, including
the report Akridge created. Essentially, Akridge’s interaction with
agents and district managers using information from the strategic
underwriting report became an automated “pull and a self-service
functionality,” allowing agents and district managers in the ﬁeld to
access that information themselves.
Plaster, Akridge’s direct supervisor, characterized this
responsibility as the “major portion of [Akridge’s] job” that was
now automated, and that her remaining responsibilities were
“minor parts, very small.” Akridge conﬁrmed that “[w]orking with
the agents and district managers” using “data from the reports was
the majority of [her] day.” As for Akridge’s workshops, Chancey
testiﬁed that they were meant to introduce agents to the strategic
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underwriting report and were no longer needed after the agents
became familiar with the report because they could direct
questions to their supervisors. Coshatt and Plaster also testiﬁed
that Alfa increased webinars and eLearning instead of relying on
Akridge’s workshops.
Having made their decision, but prior to terminating
Akridge, the decisionmakers spoke with Susan White, who worked
in Alfa’s human resources (“HR”) department. White was not
involved in the decision to terminate Akridge. White only advised
the decisionmakers on the administrative steps of terminating
Akridge, including drafting a severance agreement and calculating
her ﬁnal paycheck. Akridge’s disabilities did not come up during
these conversations.
In December 2016, Coshatt and Plaster informed Akridge in
person that Alfa was eliminating her position eﬀective immediately
due to the expense of developing Guidewire and in the interest of
cutting business expenses companywide. During this meeting,
Coshatt and Plaster did not mention Akridge’s disabilities or
healthcare costs.
They also provided Akridge with Alfa’s standard severance
agreement and general release. Below the signature lines, the
agreement had a handwritten notation designating Scott Forrest as
who would sign on behalf of Alfa. Forrest was Alfa’s Senior Vice
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President of Human Resources and Facilities. 1 Forrest signed all
employee releases, which included a waiver for ADA claims.
Akridge did not sign the severance agreement.
After being terminated, Akridge wished to remain at Alfa,
but she did not apply to any open positions. Akridge asked Al Dees,
Vice President of Marketing, if he could create a new position for
her. Dees told Akridge that he already had created marketing
positions for two other employees from the underwriting
department whose positions were eliminated, and he could not
create another position for her. At the time of her termination,
there were no openings in the underwriting department. White on
her own reviewed openings in other departments, but she did not
think Akridge’s skills would be a good ﬁt.
D. Knowledge of Healthcare Costs
As background, here is how Alfa’s self-insurance plan
worked. Alfa paid BCBS to administer its health insurance plan.
BCBS sent Alfa a weekly bill for the total amount of Alfa’s
employees’ healthcare costs, and Alfa wired that amount to BCBS.
The BCBS bill gave a total amount of healthcare costs, did not list
individual healthcare costs by employee, and did not note high
healthcare costs, for example, if an employee had an expensive
surgery.

1 Since Akridge’s termination, Forrest has become Alfa’s Executive Vice
President of Administration.
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Forrest was the BCBS contact for Alfa. Forrest was aware of
amendments to Alfa’s health insurance plan, but he would not
know how any amendment aﬀected an individual employee. BCBS
owned another entity, Prime, which made some decisions about
drug coverage under Alfa’s health insurance plan without Alfa’s
involvement.
Alfa did not maintain information about individual
employees’ healthcare costs. Instead, BCBS stored the individual
healthcare costs of Alfa employees in a system separate from Alfa.
White testiﬁed that Holly Dean and Kate Taylor, members of Alfa’s
HR beneﬁts team, had access to the BCBS system, but White did
not have such access. In their aﬃdavits, Dean and Taylor
conﬁrmed that although they had access to the BCBS system, they
had not used this access to view any individual employee’s
healthcare costs.
Akridge contends that the true reason for her ﬁring was the
high cost of treating her MS and migraines. Akridge asserts the
fact that she was ﬁred instead of demoted or transferred within Alfa
evinces that true reason. Akridge also testiﬁed that she believed
Forrest was ultimately responsible for her termination. Akridge
stated that, as the head of HR, Forrest had access to what BCBS
paid for her healthcare costs, which Akridge contended Forrest
gave to the decisionmakers. However, Akridge admitted that she
did not know whether Forrest actually accessed her healthcare
costs and communicated them to the decisionmakers. Akridge
stated that she simply believed he did because (1) she was
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ultimately terminated and (2) her healthcare costs were higher than
the average employee.
Akridge also noted that within approximately two years
prior to her termination, Alfa once, and maybe twice, told
employees to go to the doctor only if medically necessary and that
rising healthcare costs aﬀected the healthcare premiums of all Alfa
employees. Nine months after her termination, BCBS informed
Akridge that her Consolidated Omnibus Budget Reconciliation Act
(“COBRA”)2 insurance would no longer cover her particular
migraine medication due to its cost. BCBS informed Akridge that
she would need to contact Alfa about her change in coverage.
Akridge also produced a document titled “Group
Reporting” from “BlueCross BlueShield of Alabama.” The
document lists a “billing” amount and a corresponding “payment”
amount for healthcare costs in 2009 for certain employees, but not
for Akridge. Some of the higher payments appear highlighted or
otherwise marked, including payments of $18,890, $6,501.67, and
$56,235. A $34.68 charge is also marked.
In her aﬃdavit, Dean, Alfa’s HR Beneﬁts Manager, described
a similar document from 2016 that Alfa received from BCBS. The
2016 document identiﬁed another Alfa employee with MS who was
not Akridge and that employee’s healthcare costs. Dean stated that

2 COBRA entitles employees to a continuation of their healthcare coverage for

a period of time post-termination. See 29 U.S.C. §§ 1161, 1163(2); Cummings v.
Wash. Mut., 650 F.3d 1386, 1389-90 (11th Cir. 2011).
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(1) the 2016 document was prepared by BCBS as part of its annual
“Renewal Analysis” and sent to Alfa; (2) Alfa did not determine
what information would be included in BCBS’s analysis; and
(3) Alfa had not requested this document.
While the three decisionmakers, Plaster, Chancey, and
Coshatt, knew of Akridge’s disabilities, each expressly denied
knowing her, or any other employee’s, healthcare costs. White and
Forrest also denied knowing any individual employee’s healthcare
costs.
E. Akridge’s Proﬀered Comparators
Akridge proﬀered several non-disabled employees who she
asserts were similarly situated to her in the underwriting
department but were not terminated. First, Akridge presented
Hillery McCaleb. Akridge and McCaleb both “worked with agents
who were not proﬁtable,” “handled manuals for [their] respective
areas[,] and worked with the state insurance department in ﬁling
the manual and changes to it.” Akridge admits, however, that
McCaleb “worked on the property/home side” of the
underwriting department, while Akridge “worked on the auto
side.”
Further, Coshatt testiﬁed that Akridge had responsibilities in
auto underwriting that Alfa automated, but McCaleb’s work in
homeowner underwriting had not become as automated.
According to Coshatt, McCaleb performed other special projects in
the homeowner underwriting department that could not be
automated.
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Second, Akridge proﬀered these ﬁve employees as
comparators: Becky Roper, Kim Byrom, Brennan Goray, Teri
Williams, and Sonya McInvale. These employees worked in the
underwriting department, but Akridge did not know their job titles
or the general work they performed.
Chancey testiﬁed that these ﬁve employees worked under
her chain of command. Chancey stated that these employees
developed and implemented Guidewire. Chancey explained that
“[w]hat [Akridge] was doing was totally diﬀerent than what this
team was doing,” and Akridge’s responsibilities with the strategic
underwriting program were automated and her remaining
responsibilities were absorbed by others. When asked whether
anything distinguished these ﬁve employees from Akridge, Coshatt
testiﬁed that Akridge’s responsibilities were automated to a greater
extent.
II. PROCEDURAL HISTORY
A. Akridge’s Amended Complaint
In her amended complaint, Akridge alleged that Alfa
violated the ADA by terminating her. Akridge claimed that Alfa
discriminated against her based on her disability by ﬁring her to
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avoid paying her healthcare costs. Akridge sought compensatory
and punitive damages, costs, and reasonable attorney’s fees.
B. Depositions and Discovery Disputes
Akridge deposed Coshatt, Chancey, and Plaster. Akridge
also deposed White twice as Alfa’s designated corporate
representative under Rule 30(b)(6). 3
After White’s ﬁrst deposition, the court determined that
White was unable to answer certain questions outlined in Akridge’s
Rule 30(b)(6) notice. 4 The court extended the discovery period to
allow Akridge to depose again a corporate representative under
Rule 30(b)(6). Alfa again designated White as its representative.
Akridge took White’s second deposition as Alfa’s Rule 30(b)(6)
representative.
Several times, Akridge moved to compel the deposition of
Scott Forrest, the head of HR. The court denied each motion. In
a sworn declaration, Forrest denied any role in Akridge’s
termination. Consequently, the court found that Forrest’s
testimony “[wa]s no more than minimally relevant” and that

3 Under the Federal Rules of Civil Procedure, a party may notice an individual

for deposition under Rule 30(b)(1), while “Rule 30(b)(6) is the principal
mechanism for deposing entities.” Consumer Fin. Prot. Bureau v. Brown, 69 F.4th
1321, 1324 n.1 (11th Cir. 2023). For brevity, we refer to these as Rule 30(b)(1)
and Rule 30(b)(6).
4 At the outset of the case, the parties consented to have a magistrate judge

conduct all proceedings under 28 U.S.C. § 636(c). Throughout, we refer to the
magistrate judge as “the court.”
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compelling his deposition was “disproportional to the needs of the
case” because Akridge could depose Plaster, Chancey, and Coshatt,
the decisionmakers.
After Akridge produced documents indicating that Forrest
had responsibilities over Alfa’s health insurance plan, the court
found that Akridge still failed to show that Forrest had knowledge
of her termination, and it denied Akridge’s ﬁnal motion to compel
Forrest’s deposition.
C. Summary Judgment and First Appeal
Ultimately, the court entered summary judgment in favor of
Alfa. The court determined that (1) none of Akridge’s comparators
were similarly situated and (2) her evidence was insuﬃcient for a
reasonable jury to infer that she was ﬁred because of her healthcare
costs. The court observed that none of Akridge’s evidence
indicated that the decisionmakers knew her individual healthcare
costs.
Akridge appealed. In that prior appeal, this Court reversed
the denial of Akridge’s motion to compel Forrest’s deposition,
vacated the summary judgment, and remanded for Akridge to take
Forrest’s deposition. Akridge v. Alfa Mut. Ins., 1 F.4th 1271,
1278 (11th Cir. 2021). We did not reach the summary judgment
issue. As to Forrest’s deposition, we explained that Forrest’s role at
Alfa and his access to health insurance information “are relevant
and thus suﬃcient to make his testimony discoverable.” Id. at 1277.
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D. Discovery Dispute on Remand and Sanctions
On remand, Akridge noticed Forrest for deposition
individually under Rule 30(b)(1) and as Alfa’s corporate
representative under Rule 30(b)(6). Alfa responded that Forrest was
available for deposition in his individual capacity, but it declined to
designate Forrest to testify as Alfa’s corporate representative under
Rule 30(b)(6).
Akridge, nonetheless, ﬁled a motion to compel Alfa to
produce Forrest for a Rule 30(b)(6) deposition and for sanctions.
Alfa countered with its own motion for sanctions.
At a hearing on the motions, the court pointed out that this
Court’s opinion in the initial appeal did not mention Rule 30(b)(6)
and that a party seeking a corporation’s deposition under that rule
could not designate the representative to testify on the
corporation’s behalf. The court denied Akridge’s motion to
compel Forrest as a Rule 30(b)(6) witness and granted in part Alfa’s
sanctions motion, awarding reasonable expenses incurred in
opposing Akridge’s motion.
E. Forrest’s Deposition
Akridge then deposed Forrest individually, who testiﬁed as
follows. He was not involved in the decision to terminate Akridge.
Rather, the Executive Vice President of each department at Alfa
was responsible for decisions to terminate or eliminate positions.
As the Senior Vice President of HR, Forrest could have eliminated
jobs or terminated an employee only if they worked in the
compensation, beneﬁts, or HR department.
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Coshatt and White told Forrest that Akridge’s position was
eliminated and that Plaster, Chancey, and Coshatt were involved in
that decision. Forrest did not ask Coshatt how much money Alfa
saved by eliminating Akridge’s salary and medical costs. Alfa did
not have a general policy of transferring employees whose
positions were eliminated to diﬀerent positions in the company.
Forrest further testiﬁed that Alfa did not maintain the
individual healthcare costs of its employees because that
information was stored at BCBS. BCBS sent Alfa the total
employee-medical costs, but this information was not broken down
by employee. Forrest was the contact for Alfa’s BCBS plan and
spoke with BCBS once a year. Forrest did not know of any health
insurance beneﬁts that were excluded from its plan by BCBS or
Alfa since 2015.
Following his promotion in 2016 to Executive Vice
President, Forrest was given responsibility over Alfa’s accounting,
ﬁnance, and investment departments. Since 2016, Alfa eliminated
(1) 10 positions in its accounting department and (2) a signiﬁcant
number of positions in the investments department, including by
closing its real estate investment department.
F. Second Summary Judgment Motion
Alfa ﬁled its second motion for summary judgment, which
the court granted. First, the court rejected Akridge’s argument that
she could pursue her ADA claim under the mixed-motive theory in
the Title VII decision of Qui v. Thomas County School District,
814 F.3d 1227 (11th Cir. 2016). The court pointed to a subsequent
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unpublished decision, Barber v. Cellco Partnership, 808 F. App’x
929 (11th Cir. 2020), in which this Court explained that the
mixed-motive theory, discussed in Qui, did not apply to ADA
actions. As a result, the court concluded that Akridge had to show
her disability was a but-for cause of her termination and not merely
a motivating factor for that decision.
Second, the court found that Akridge failed to establish a
prima facie case of disability discrimination under the ADA
because she did not present a proper comparator. The court
concluded that (1) McCaleb was not a proper comparator because
her job functions were not automated and she worked in a diﬀerent
underwriting department (homeowner underwriting) with
diﬀerent responsibilities than Akridge and (2) Roper, Byrom,
Goray, Williams, and McInvale were not proper comparators
because Akridge did not present evidence that they had job
functions similar to hers.
Third, the court noted that even if Akridge established a
prima facie case, her evidence failed to show that Alfa’s reason for
ﬁring her—that her position was no longer needed and it wished to
cut business expenses—was pretext for disability discrimination.
The court explained that each decisionmaker testiﬁed that
Akridge’s position was no longer necessary and there was no
evidence that her disability aﬀected the decision to eliminate her
position.
Fourth, the court determined Akridge’s circumstantial
evidence did not create a convincing mosaic that would allow a jury
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to infer intentional disability discrimination. The court concluded
that (1) while Akridge was ﬁred and not transferred to a new
position, she admitted she never applied to an open position at Alfa
and (2) the decisionmakers testiﬁed that they were unaware of
Akridge’s healthcare costs.
III. STANDARDS OF REVIEW
We review de novo a grant of summary judgment. See Crane,
898 F.3d at 1133-34. We also review for an abuse of discretion an
award of sanctions under Federal Rule of Civil Procedure 37. Serra
Chevrolet, Inc. v. Gen. Motors Corp., 446 F.3d 1137, 1146-47 (11th Cir.
2006).
IV. AKRIDGE’S ADA CLAIMS
The ADA bars employers from “discriminat[ing] against a
qualiﬁed individual on the basis of disability.” 42 U.S.C. § 12112(a).
On appeal, Akridge challenges the entry of summary judgment on
her claim that Alfa discriminated against her by terminating her to
avoid paying her high healthcare costs.
Akridge does not challenge the court’s ﬁnding that she
presented no direct evidence of disability discrimination.
Therefore, we examine whether she established a prima facie case.
When evaluating an ADA claim, we use the same McDonnell
Douglas burden-shifting framework that often applies in Title VII
claims. Todd v. Fayette Cnty. Sch. Dist., 998 F.3d 1203, 1215 (11th Cir.
2021); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
In the absence of direct evidence, this framework allows the
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plaintiﬀ to establish a prima facie case of disability discrimination
using circumstantial evidence. Todd, 998 F.3d at 1215. If the
employee is successful in making a prima facie case, the burden of
production shifts to the employer to articulate a legitimate,
non-discriminatory reason for its decision. Id. at 1216. The burden
then shifts back to the employee to present suﬃcient evidence
creating a genuine issue of material fact that the employer’s reason
is pretext for discrimination. Id.
An ADA plaintiﬀ establishes a prima facie case by showing
(1) she has a disability; (2) she is a qualiﬁed individual under the
ADA; and (3) the employer discriminated against her “on the basis
of disability.” See Beasley v. O’Reilly Auto Parts, 69 F.4th 744,
754 (11th Cir. 2023); 42 U.S.C. § 12112(a). Alfa does not dispute
that Akridge meets these ﬁrst two prongs, so we discuss only the
third prong.
A. But-For Causation Prong
To begin, we set forth three principles about the statutory
language “on the basis of disability” in § 12112(a) and the level of
causation it requires.
First, our Court has long understood the ADA as imposing
a “but-for” causation standard—that is, an adverse employment
action would not have occurred but for the plaintiﬀ’s disability. See,
e.g., McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1076 (11th Cir.
1996); Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1263 n.17 (11th
Cir. 2007). In 2008, however, Congress amended the ADA’s causal
language to prohibit discrimination “on the basis of disability”
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instead of “because of ” disability. See ADA Amendments Act of
2008, Pub. L. No. 110-325, § 5, 122 Stat. 3553. We have yet to
address the impact, if any, of this amendment.
Several circuits have concluded that this amended
language—“on the basis of ”—invokes but-for causation. See
Natofsky v. City of New York, 921 F.3d 337, 349 (2d Cir. 2019) (“We
ﬁnd no reason to hold that there is any meaningful diﬀerence
between ‘on the basis of,’ ‘because of,’ or ‘based on,’ which would
require courts to use a causation standard other than ‘but-for.’”);
Gentry v. E. W. Partners Club Mgmt. Co., 816 F.3d 228, 235-36 (4th Cir.
2016) (“We see no ‘meaningful textual diﬀerence’ between [‘on the
basis of ’] and the terms ‘because of,’ ‘by reason of,’ or ‘based on.’”);
Murray v. Mayo Clinic, 934 F.3d 1101, 1106 & n.6 (9th Cir. 2019)
(“We ﬁnd no meaningful textual diﬀerence in the two phrases with
respect to causation.”); Lewis v. Humboldt Acquisition Corp., 681 F.3d
312, 315, 321 (6th Cir. 2012) (en banc) (recognizing the
2008 amendments to the ADA and holding that the ADA requires
but-for cause).
Furthermore, the Supreme Court has instructed that “[t]his
ancient and simple ‘but for’ common law causation test . . . supplies
the ‘default’ or ‘background’ rule against which Congress is
normally presumed to have legislated,” including for “federal
antidiscrimination laws . . . .” Comcast Corp. v. Nat’l Ass’n of Afr.
Am.-Owned Media, 589 U.S. ----, 140 S. Ct. 1009, 1014 (2020). And
the particular phrase “on the basis of” is “strongly suggestive of a
but-for causation standard.” Id. at 1016 (quotation marks omitted);
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see also Burrage v. United States, 571 U.S. 204, 213 (2014) (“Our
insistence on but-for causality has not been restricted to statutes
using the term ‘because of.’ We have, for instance, observed that
in common talk, the phrase ‘based on’ indicates a but-for causal
relationship.” (cleaned up)).
We agree with our sister circuits and hold that the switch
from “because of ” to “on the basis of ” in the 2008 amendment to
the ADA did not change or aﬀect its but-for causation standard.
Second, we recognize that Akridge argues that she is not
required to show her disability was a but-for cause of her
termination but may simply show it was “a motivating factor.” We
disagree.
This motivating-factor causation standard located in Title
VII is distinct from, and “more forgiving” than, a but-for standard,
as “liability can sometimes follow even if [a protected trait] wasn’t
a but-for cause of the employer’s challenged decision.” Bostock v.
Clayton Cnty., 590 U.S. 644, 140 S. Ct. 1731, 1740 (2020). In contrast,
but-for causation requires an employee to show that a cause was
outcome determinative, meaning that “a particular outcome
would not have happened ‘but for’ the purported cause.” Id. at
1739.
The problem for Akridge is that the employee-friendly,
motivating-factor standard does not apply to ADA claims, as this
standard is drawn directly from the text of Title VII. See Title VII
of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, as
amended by the Civil Rights Act of 1991, Pub. L. No. 102-166,
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§ 107, 105 Stat. 1071; 42 U.S.C. § 2000e-2(m) (“[A]n unlawful
employment practice is established when the complaining party
demonstrates that race, color, religion, sex, or national origin was
a motivating factor for any employment practice . . . .”) (emphasis
added). Because the ADA does not contain similar
motivating-factor language, Akridge cannot resort to this lesser
showing. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174 (2009)
(holding “a motivating factor” causation standard did not apply to
claims brought under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 623(a), because, “[u]nlike Title VII, the
ADEA’s text does not provide that a plaintiﬀ may establish
discrimination by showing that age was simply a motivating
factor”); Comcast Corp., 140 S. Ct. at 1017-18 (declining to extend
this motivating-factor standard to claims brought under 42 U.S.C.
§ 1981 because of the distinct histories of Title VII and § 1981 and
the absence of this motivating-factor language in § 1981). 5
Even as to Title VII, the Supreme Court has pointed out that
Congress chose to place a motivating factor language in only a
subset of Title VII claims and not as to other Title VII claims, such
as retaliation, which still use but-for causation. See Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338, 353, 362 (2013).

5 For similar reasons, this Court recently held that the proper causation

standard for a retaliation claim under the Family and Medical Leave Act,
29 U.S.C. § 2615(a)(2), is but-for causation, not motivating-factor causation.
Lapham v. Walgreen Co., 88 F.4th 879, 890-893 (11th Cir. 2023).
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22 Opinion of the Court 22-12045

Notably too, when Congress added “a motivating factor”
language to Title VII, it contemporaneously amended the ADA
without including this lesser standard. See Civil Rights Act of 1991,
Pub. L. No. 102-166, §§ 107, 109, 105 Stat. 1071; see also Gross,
557 U.S. at 174 (noting Congress amended the ADEA alongside
Title VII but did not add this motivating-factor standard to the
ADEA); Comcast Corp., 140 S. Ct. at 1017-18 (noting Congress
contemporaneously amended Title VII and § 1981, “[b]ut nowhere
in its amendments to § 1981 did Congress so much as whisper
about motivating factors”). For these reasons, we hold that a
plaintiﬀ may not pursue an ADA discrimination claim by showing
“a motivating factor” causation but must show but-for causation.
To be complete, we note that Akridge relies on our decision
in Qui. But Qui was a Title VII case and had nothing to do with
the ADA. The Qui court simply explained how McDonnell Douglas
in a Title VII case was not the proper framework for evaluating
mixed-motive claims that rely on circumstantial evidence.6 Qui,
814 F.3d at 1232-33, 1236-40.

6 An employee presents a Title VII claim under a “mixed-motive” theory when

she alleges both legitimate and discriminatory reasons were motivating factors
for an adverse employment action. Gross, 557 U.S. at 171; see also Quigg,
814 F.3d at 1235 (“An employee can succeed on a mixed-motive claim by
showing that illegal bias . . . was a motivating factor for an adverse
employment action, even though other factors also motivated the action.”
(quotation marks omitted)). Single-motive claims require the employee to
show that an impermissible consideration “was the true reason for the adverse
action.” Quigg, 814 F.3d at 1235.
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Third, Akridge’s reliance on Farley v. Nationwide Mutual
Insurance Co., 197 F.3d 1322 (11th Cir. 1999), is also misplaced. Our
Farley decision conﬁrmed that the ADA required “but-for”
causation. Let’s examine the context too.
In Farley, the jury found that the employer violated the ADA
when it terminated a disabled employee. 197 F.3d at 1326. The
district court had instructed the jury that discrimination could be
shown if disability was “a motivating factor.” Id. at 1330, 1333-34,
1334 n.5 (quotation marks omitted). On appeal, the defendant
employer argued that the district court erred by not instructing the
jury that disability must be the sole reason for the employee’s
termination, that is, “the motivating factor.” Id. at 1334 (quotation
marks omitted).
Under plain error review, the Farley court held that “using
‘but-for’ language would have been a clearer exposition of the law,”
but the instruction’s use of motivating factor language “d[id] not
rise to the level of a plain error so fundamental as to aﬀect the
fairness of the proceedings.” Id. (quotation marks omitted). This
was because an ADA plaintiﬀ could have more than one but-for
cause for her termination, and the employer had argued for a
sole-reason instruction.
The Farley Court explained (1) that “‘[a] motiving factor’
[wa]s synonymous with a ‘determinative factor’” or “a factor which
‘made a diﬀerence in the outcome,’” and (2) that disability must be
shown to be “a determinative, rather than the sole,
decision-making factor.” Id. (quoting McNely, 99 F.3d at 1077).
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24 Opinion of the Court 22-12045

Although Farley used the phrase “a motivating factor,” it did so in
reference to the district court’s jury instructions, not in reference
to the text of Title VII. See id. Farley never mentions Title VII’s
motivating-factor standard and does not tie the ADA’s but-for
standard to Title VII’s lower standard.
Recent Supreme Court decisions made clear that Title VII’s
motivating-factor standard is distinct from, and “more forgiving”
than, the but-for cause standard. Bostock, 140 S. Ct. at 1739-40; see
also Gross, 557 U.S. at 174 (holding a motivating-factor standard
could not apply to an ADEA claim because “the ADEA’s text does
not provide that a plaintiﬀ may establish discrimination by showing
that age was simply a motivating factor”); Comcast Corp., 140 S. Ct.
at 1017-18 (same regarding § 1981).
B. Akridge’s Prima Facie Case
With these principles, we return to whether Akridge
established the “on the basis of disability” prong of a prima facie
case under the ADA. Akridge’s claim that she was discriminated
against based on her disability-related healthcare costs is necessarily
a claim of disparate treatment. See Akridge, 1 F.4th at
1274 (characterizing Akridge’s claim in her prior appeal as one for
“disparate treatment” under the ADA). In other words, Akridge
argues that Alfa treated her diﬀerently than non-disabled
employees by terminating her due to her high disability-related
healthcare costs.
The ADA’s text “require[s] a plaintiﬀ alleging disparate
treatment to prove that [s]he was treated less favorably than a
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22-12045 Opinion of the Court 25

similarly situated, non-disabled person.” Sailboat Bend Sober Living,
LLC v. City of Fort Lauderdale, 46 F.4th 1268, 1275-76, 1278 (11th Cir.
2022) (concluding the phrase “discriminate against,” as used in
several federal antidiscrimination laws including the ADA and the
Fair Housing Act (“FHA”), 42 U.S.C. § 3604(f ), refers to diﬀerences
in treatment that injure protected individuals); see also Schwarz v.
City of Treasure Island, 544 F.3d 1201, 1216 (11th Cir. 2008) (noting
in the context of a FHA claim that, “[a]s its name suggests, a
disparate treatment claim requires a plaintiﬀ to show that [s]he has
actually been treated diﬀerently than similarly situated
non-handicapped people”).
First, Akridge presents McCaleb as a comparator. Both
worked to help unproﬁtable agents, handled manuals, and worked
with state insurance department ﬁlings. Akridge acknowledges,
however, that they worked in diﬀerent areas of underwriting;
undisputedly, McCaleb “worked on the property/home side” of
the underwriting department, while Akridge “worked on the auto
side.” Coshatt further testiﬁed that home underwriting was
automated to a lesser extent than auto underwriting, and that
McCaleb’s special projects relating to home underwriting could not
be automated.
Second, Akridge presents, as comparators, Roper, Williams,
McInvale, Byrom, and Goray. Akridge argues that these employees
worked in the underwriting department and were aﬀected by the
implementation of the Guidewire system but were demoted
instead of terminated. Akridge, however, did not know these
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26 Opinion of the Court 22-12045

employees’ job titles, and she could not generally describe the work
they performed.
On the other hand, Chancey, who was in the chain of
command for these employees, testiﬁed that (1) “[w]hat [Akridge]
was doing was totally diﬀerent than what this team was doing,”
which was working on and implementing the Guidewire system
and (2) Akridge’s job duties with the strategic underwriting
program were automated and her remaining duties absorbed by
others. Coshatt also testiﬁed that Akridge’s responsibilities were
automated to a greater extent than these employees.
We need not decide whether these diﬀerences make these
comparators insuﬃcient because Akridge’s evidence still fails to
show that Alfa’s legitimate, non-discriminatory reasons for her
termination were pretextual. We explain why.
C. Akridge’s Evidence does not Show Pretext
As background, “[w]e have made clear that an employer may
ﬁre an employee for a good reason, a bad reason, a reason based on
erroneous facts, or for no reason at all, as long as its action is not
for a discriminatory reason.” Owens v. Governor’s Oﬀ. of Student
Achievement, 52 F.4th 1327, 1338 (11th Cir. 2022) (quotation marks
omitted). In our review of an employer’s proﬀered reasons for an
adverse employment decision, we “do not sit as a super-personnel
department that reexamines an entity’s business decisions,” and we
may not “analyze whether an employer’s proﬀered reasons are
prudent or fair.” Id. (quotation marks omitted).
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22-12045 Opinion of the Court 27

Here, Alfa’s decisionmakers eliminated Akridge’s position to
reduce business expenses because her position was no longer
needed. As the decisionmakers testiﬁed, the strategic underwriting
program Akridge worked on was now automated, including the
report she created, and agents and district managers themselves
could now access that information over the computer. Akridge
conﬁrmed that “[w]orking with the agents and district managers”
using “data from the reports was the majority of [her] day.” The
decisionmakers also testiﬁed that Akridge’s workshops were meant
to introduce agents to information in the strategic underwriting
report, and that those workshops were no longer necessary and
were replaced by increased webinars and eLearning. Regarding
Akridge’s non-automated duties, Chancey testiﬁed that these
responsibilities were absorbed by other people in the underwriting
department who had already been performing those duties
alongside Akridge.
Given Alfa’s non-discriminatory reasons for her termination,
Akridge must show they were pretextual. See Todd, 998 F.3d at
1216. “A reason cannot be proved to be a pretext for discrimination
unless it is shown both that the reason was false, and that
discrimination was the real reason.” Ring v. Boca Ciega Yacht Club
Inc., 4 F.4th 1149, 1163 (11th Cir. 2021) (cleaned up). “[T]he pretext
inquiry centers on the employer’s beliefs, not the employee’s
beliefs and, to be blunt about it, not on reality as it exists outside
the decision maker’s head.” Todd, 998 F.3d at 1218.
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28 Opinion of the Court 22-12045

Here, Akridge’s evidence fails to create a genuine factual
dispute that Alfa’s reasons for ﬁring her were both false and that
the true reason was her high healthcare costs. See Ring, 4 F.4th at
1163. Crucially, while the decisionmakers and Forrest knew of
Akridge’s disabilities, her evidence does not show that anyone, and
certainly not the decisionmakers or Forrest, knew her speciﬁc
individual healthcare costs—the basis she provides for Alfa’s alleged
discrimination. See Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d
1270, 1275 (11th Cir. 2002) (recognizing “[a]n empty head means
no discrimination” (quotation marks omitted)); see also Silvera v.
Orange Cnty. Sch. Bd., 244 F.3d 1253, 1262 (11th Cir. 2001)
(“Discrimination is about actual knowledge, and real intent, not
constructive knowledge and assumed intent.”).
Each of the three decisionmakers, plus Forrest and White,
testiﬁed that they were unaware of Akridge’s healthcare costs.
White did not have access to the BCBS system and the other HR
representatives to give testimony—Forrest, Dean, and Taylor—
stated that they had not become aware of Akridge’s healthcare
costs through Alfa’s access to the BCBS system.
To show pretext, Akridge relies on this evidence: (1) the
decisionmakers and others at Alfa knew of her disabilities;
(2) Forrest had access to her healthcare costs; (3) the 2009 BCBS
document had high healthcare costs marked; (4) she was
terminated instead of being transferred to a new position; (5) her
COBRA insurance stopped covering her particular migraine
medication nine months after her termination; (6) once, and maybe
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22-12045 Opinion of the Court 29

twice, in the last two years of her employment, Alfa instructed
employees to go to the doctor only when medically necessary and
that medical costs aﬀected all employees; (7) her proﬀered
comparators were not terminated; and (8) Alfa did not produce any
written documents about its decisionmaking to terminate her.
Yet viewing this record evidence in the light most favorable
to her, Akridge still oﬀers only conjecture or speculation that
(1) Forrest, or someone else in Alfa’s HR department, used their
access to BCBS’s system to view Akridge’s individual healthcare
costs; (2) this information was then actually given to the
decisionmakers; and (3) the decisionmakers ﬁred her based on this
information. Such “[s]peculation does not create a genuine issue of
fact; instead, it creates a false issue, the demolition of which is a
primary goal of summary judgment.” Cordoba v. Dillard’s, Inc.,
419 F.3d 1169, 1181 (11th Cir. 2005) (quotation marks omitted); see
also Martin v. Fin. Asset Mgmt. Sys., Inc., 959 F.3d 1048, 1054 (11th
Cir. 2020) (holding evidence of a conversation between a
decisionmaker and a senior HR oﬃcial after plaintiﬀ’s protected
conduct but before her termination did not rebut the
decisionmaker’s denial of knowledge about the protected conduct,
as “[e]vidence that the HR manager ‘could have told’ is not the
same thing as evidence that she ‘did tell’”).
While Akridge’s brief does not mention the 2016 BCBS
report, we note that report identiﬁed the individual healthcare
costs of another employee with MS, but not her costs. Even this
2016 report fails to show knowledge of Akridge’s healthcare costs
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30 Opinion of the Court 22-12045

or to connect Akridge’s healthcare costs to her ﬁring. Moreover,
the only record evidence about this 2016 report is Dean’s aﬃdavit.
Dean, a beneﬁts manager in Alfa’s HR department, stated that Alfa
had not requested this speciﬁc information, and BCBS supplied it
in a yearly analysis in which BCBS, not Alfa, determined what to
include. At most, this 2016 report reveals the unremarkable fact
that BCBS could provide Alfa, a self-insured company, information
about an individual employee’s healthcare costs. It does not show
that anyone at Alfa actually accessed Akridge’s individual
healthcare costs, passed them along to the decisionmakers, and that
Akridge was terminated on that basis. Instead, the decisionmakers
all denied knowing Akridge’s healthcare costs or ever accessing
them.
Akridge’s evidence also does not show that Alfa’s
non-discriminatory reasons for her termination were false—i.e.,
that her position was not automated, that others were not able to
absorb her non-automated duties, or that Alfa did not wish to
reduce business expenses. See Ring, 4 F.4th at 1163. The
decisionmakers testiﬁed that the majority of Akridge’s duties were
automated and that her non-automated duties were absorbed by
others, including those who already shared those duties with her.
The decisionmakers explained that Akridge’s trainings and
workshops were no longer necessary and that her primary
responsibility as coordinator of the strategic underwriting
program was automated too. Alfa’s interest in reducing expenses
is supported by the overbudgeted development of Guidewire.
Alfa’s eﬀorts to reduce expenses is evidenced by Alfa’s elimination
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22-12045 Opinion of the Court 31

of (1) two senior loss control representative positions in 2015,
(2) three underwriting department positions in 2018 due to
automation, (3) ten accounting positions since 2016, and (4) its
entire real estate investment department.
In sum, even if Akridge established a prima facie case using
comparators, record evidence does not create a factual issue that
Alfa’s non-discriminatory reasons for ﬁring her were both false and
pretext for disability discrimination.
D. No Convincing Mosaic
Although Akridge failed to show that Alfa’s reasons for her
termination were false and pretextual, a “plaintiﬀ will always
survive summary judgment if [s]he presents . . . a convincing
mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination.” Lewis v. City of Union City, 934 F.3d
1169, 1185 (11th Cir. 2019) (second alteration in original)
(quotation marks omitted); see also Tynes v. Fla. Dep’t of Juv. Just.,
88 F.4th 939, 946-47 (11th Cir. 2023). As set forth earlier, the
inference to be drawn by a jury must be that the employee’s
disability was a but-for cause of the employer’s intentional
discrimination. See Comcast Corp., 140 S. Ct. at 1014-15 (noting
while the materials a plaintiﬀ may rely upon to show but-for
causation change as a case progresses from complaint to trial, her
burden to show but-for causation “remains constant”); Bailey v.
Metro Ambulance Servs., Inc., 992 F.3d 1265, 1274 (11th Cir. 2021)
(stating a party “mistakenly” argued that but-for cause was “not a
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32 Opinion of the Court 22-12045

precondition under the convincing mosaic model” (quotation
marks omitted)).
A plaintiﬀ’s mosaic may be made up of, among other things,
(1) “suspicious timing, ambiguous statements . . . , and other bits
and pieces from which an inference of discriminatory intent might
be drawn”; (2) systemically better treatment of similarly situated
employees; and (3) evidence that the employer’s justiﬁcation is
pretextual. Lewis, 934 F.3d at 1185. Here too, Akridge’s evidence is
insuﬃcient to survive summary judgment.
Tellingly, the timing of relevant events in this case is
anything but suspicious. Akridge worked at Alfa in 1993 when she
was diagnosed with MS, and she stated that “in the earlier years,
shots needed for MS could cost [her] insurance [as] much as $11,000
per month.” Signiﬁcantly, Alfa continued to employ Akridge for
decades, funding the cost of her healthcare for decades too.
Similarly, Akridge draws speculation about a change in her
COBRA coverage nine months after her termination. Again, if
Alfa’s aim was to ﬁre Akridge to rid itself of her healthcare costs, it
is hard to understand why Alfa would wait nine months—and
continue to pay $10,000 to $12,000 per month or $90,000 to
$108,000 total—before changing her COBRA coverage. Cf. Thomas
v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (noting
that, in the context of retaliation claims, a three-to-four-month gap
between protected conduct and an adverse employment action
could not, standing alone, establish a causal connection).
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22-12045 Opinion of the Court 33

In addition, the only potentially ambiguous statements in
the record are that within the two years prior to Akridge’s
termination, Alfa once, or maybe twice, told employees to go to
the doctor only if medically necessary and that rising healthcare
costs aﬀected the premiums of all employees. These companywide
statements about rising healthcare costs and the general nature of
self-insured businesses are too far removed from Akridge’s ﬁring in
time and scope for a jury to infer discriminatory intent. See Lewis,
934 F.3d at 1185. This is especially true given the absence of any
comments, ambiguous or otherwise, to Akridge or others about
her healthcare costs.
Certainly, in a convincing-mosaic case, we may consider
relevant evidence about similarly situated employees, even if those
employees are not “strict comparator[s]” at the prima facie stage.
Jenkins v. Nell, 26 F.4th 1243, 1250-51 (11th Cir. 2022); see also Tynes,
88 F.4th at 947 (“[I]t is possible that her comparators were
insuﬃcient to establish a prima facie case yet still relevant to the
ultimate question of intentional discrimination.”). Yet, we
conclude that a reasonable jury could not infer discriminatory
intent based on the fact that Akridge’s proﬀered comparators were
not terminated because (1) Akridge had diﬀerent job duties; (2) her
duties were automated to a greater extent; and (3) Alfa eliminated
a signiﬁcant number of other positions, including several in the
underwriting department and the elimination of its entire real
estate investment department.
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34 Opinion of the Court 22-12045

As we already explained, Akridge also failed to present
evidence indicating that Alfa’s reasons for her ﬁring were
pretextual. At bottom, there was no genuine factual dispute that
the decisionmakers did not have access to, and did not have
knowledge of, Akridge’s individual healthcare costs. “Evidence
that [Alfa’s] HR [department] ‘could have told’” the decisionmakers
about Akridge’s healthcare costs “is not the same thing as evidence
that [the HR department] ‘did tell.’” See Martin, 959 F.3d at 1054.
In short, Akridge has failed to present evidence that “would
allow a jury to infer intentional [disability] discrimination.” See
Lewis, 934 F.3d at 1185. Thus, we aﬃrm the entry of summary
judgment on Akridge’s disparate-treatment claim.
E. Reasonable Accommodation Claim
In her amended complaint, Akridge also claimed that Alfa
failed to reasonably accommodate her disability. The court
granted summary judgment on her reasonable-accommodation
claim because she abandoned it by failing to reference or support
that claim in her brief opposing summary judgment.
On appeal, Akridge presents arguments on the merits of her
reasonable-accommodation claim, but she does not challenge the
trial court’s abandonment ﬁnding. Akridge thus has forfeited any
challenge to this abandonment ﬁnding, and we decline to consider
merits-based arguments she failed to raise below. See Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (holding
a party abandons an issue by failing to raise it on appeal); Feldman
v. Am. Dawn, Inc., 849 F.3d 1333, 1344 (11th Cir. 2017) (“We will not
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22-12045 Opinion of the Court 35

consider arguments raised for the ﬁrst time on appeal.”).
Accordingly, we aﬃrm the entry of summary judgment on
Akridge’s reasonable-accommodation claim.
V. SANCTIONS
The court denied Akridge’s motion to compel Alfa to
produce Forrest for a Rule 30(b)(6) deposition, but she does not
challenge this ruling on appeal. Akridge contests only the court’s
separate order awarding sanctions to Alfa for having to respond to
Akridge’s motion about Rule 30(b)(6).
A party seeking discovery, like Akridge, may ﬁle a motion to
compel a discovery response. FED. R. CIV. P. 37(a). If a motion to
compel is denied, the court must award reasonable expenses to the
opposing party unless “the motion was substantially justiﬁed or
other circumstances make an award of expenses unjust.” FED. R.
CIV. P. 37(a)(5)(B). The court found that Akridge’s motion to
compel Forrest to testify as a Rule 30(b)(6) witness was not
substantially justiﬁed and awarded $1,918 in sanctions. That $1,918
award was strictly limited to Alfa’s reasonable expenses in opposing
Akridge’s motion to compel Forrest’s Rule 30(b)(6) deposition. On
appeal, Akridge’s challenge is to the award of any sanctions, not to
the particular amount imposed.
Akridge has shown no error or abuse of discretion in that
ruling. First, nothing in our opinion in Akridge’s prior appeal
suggested she could seek Forrest’s deposition under Rule 30(b)(6).
See Akridge, 1 F.4th 1271. Our opinion nowhere cites Rule 30(b)(6).
See generally id. Instead, our Court explained that Forrest’s roles at
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36 Opinion of the Court 22-12045

Alfa and his corresponding access to information were “relevant
and thus suﬃcient to make his testimony discoverable.” Id. at 1277
(emphasis added).
Second, the text of Rule 30(b)(6) provides that “[t]he named
organization,” here Alfa, “must designate one or more oﬃcers,
directors, or managing agents, . . . or other persons who consent to
testify on its behalf.” FED. R. CIV. P. 30(b)(6). Alfa’s choice of White
as the designated Rule 30(b)(6) representative was not challenged
or at issue in the prior appeal. Akridge raised only whether Forrest
could be deposed. In her reply brief in that prior appeal, Akridge
conﬁrmed that she “speciﬁcally requested, pursuant to Rule
30(a)(1), to question . . . Scott Forrest. . . . This discovery is allowed
by Rule 30(a)(1), and should have been permitted by the District
Court.”
Under the particular procedural history of the case,
Akridge’s motion to compel Forrest’s appearance as a Rule 30(b)(6)
witness, ﬁled after the prior appeal, was not substantially justiﬁed.
VI. RESPONSE TO DISSENT IN PART
One ﬁnal matter. Our colleague joins our majority opinion
except for its causation holding. Respectfully, as to causation, our
colleague’s dissent misstates our holding, and her discussion of “a
motivating factor” causation rests on faulty citations and ﬂawed
analysis.
To begin, the majority opinion holds that “a plaintiﬀ may
not pursue an ADA discrimination claim by showing ‘a motivating
factor’ causation but must show but-for causation.” Maj. Op. at 24.
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However, the dissent misreads our holding as requiring that an
ADA claimant “must prove that her disability was the ‘but-for’
reason for an adverse employment action[.]” Dissent Op. at 1
(emphasis added). This is not our holding, nor could it be.
As the Supreme Court and this Court have made clear, there
can be multiple but-for causes of an adverse employment action.
See Bostock, 140 S. Ct. at 1739 (“Often, events have multiple but-for
causes.”); Farley, 197 F.3d at 1334 (“[W]e simply require that a
disability be shown to be a determinative, rather than the sole,
decision-making factor.”); see also Schwarz v. City of Treasure Island,
544 F.3d 1201, 1212 n.6 (11th Cir. 2008) (“[P]laintiﬀs claiming
intentional discrimination under the [Rehabilitation Act (“RA”)]
must show that they were discriminated against ‘solely by reason of
[their] disability,’ but the ADA requires only the lesser ‘but for’
standard of causation.” (citation omitted)). Because there can be
more than one but-for cause for an adverse employment action, an
ADA claimant need only show that her disability was one such
cause, i.e., one “determinative . . . decision-making factor.” See
Farley, 197 F.3d at 1334.
The dissent also misreads our precedent as holding “that ‘but
for’ causation means the same thing as ‘a motivating factor’
causation standard.” Dissent Op. at 5 (citing McNely, 99 F.3d at
1073, 1076). McNely never discussed motivating-factor causation.
See generally McNely, 99 F.3d 1068. Instead, the McNely court held
that the ADA imposed a “but-for” causation standard, and that an
ADA claimant need not show her disability was the sole cause of
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38 Opinion of the Court 22-12045

an adverse employment action. Id. at 1073-74, 1076 (“[W]e hold
that the ADA imposes liability whenever the prohibited motivation
makes the diﬀerence in the employer’s decision, i.e., when it is a
‘but-for’ cause.”). McNely’s characterization of but-for cause under
the ADA—i.e., a cause that made the diﬀerence in the outcome—
is consistent with how the Supreme Court in Bostock described
but-for causation and is at odds with how it described the
motivating-factor standard.
As we explained above, the Supreme Court in Bostock
clariﬁed that but-for causation and motivating-factor causation are
distinct standards. See Maj. Op. at 22 (citing Bostock, 140 S. Ct. at
1740). But-for causation means that a particular cause was
“outcome determinative.” Id. But the motivating-factor causation
standard is “more forgiving” than but-for causation, as “liability can
sometimes follow even if [a protected trait] wasn’t a but-for cause
of the employer’s challenged decision.” Id. (quoting Bostock, 140 S.
Ct at 1740).
Second, the dissent miscites several circuits as applying a
motivating-factor causation standard to ADA claims. See Dissent
Op. at 4-5 (citing Oehmke v. Medtronic, Inc., 844 F.3d 748, 756 (8th Cir.
2016); EEOC v. LHC Grp., Inc., 773 F.3d 688, 702 (5th Cir. 2014); C.G.
v. Pa. Dep’t of Educ., 734 F.3d 229, 236 n.11 (3d Cir. 2013); Katz v. City
Metal Co., 87 F.3d 26 (1st Cir. 1996); Pedigo v. P.A.M. Transp., Inc.,
60 F.3d 1300 (8th Cir. 1995)). However, none of these decisions are
on point.
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22-12045 Opinion of the Court 39

For example, in Oehmke, the Eighth Circuit assumed,
without deciding, that motivating-factor causation applied to an
ADA claim because the employer was entitled to summary
judgment under either a motivating-factor or but-for causation
standard. 844 F.3d at 757 n.6 (“[B]ecause we agree with the district
court that Medtronic is entitled to summary judgment even under
the less restrictive mixed-motive causation standard, we decline to
address this important question at this time.”).
The dissent’s reliance on another Eighth Circuit decision,
Pedigo, is misplaced, given that it predates Oehmke, the
2008 amendments to the ADA, and the Supreme Court’s decisions
in Gross and Comcast Corporation. See 60 F.3d 1300. More recently,
the Eighth Circuit noted “the potential eﬀect of Gross on [its]
interpretation of the ADA,” but has yet to decide that impact. See
Oehmke, 844 F.3d at 757 n.6; see also Pulczinski v. Trinity Structural
Towers, Inc., 691 F.3d 996, 1002 (8th Cir. 2012) (“We have our doubts
about the vitality of the pre-Gross [ADA] precedent.”).
The Third Circuit’s decision in C.G. also provides no
support. That decision never uses the words “motivating factor.”
See generally C.G., 734 F.3d 229. Instead, in the C.G. footnote our
colleague cites, the Third Circuit distinguished between sole
causation under the RA and but-for causation under the ADA.
734 F.3d at 236 n.11. And the Third Circuit’s characterization of
causation under the ADA is consistent with but-for causation, not
motivating-factor causation: “The existence of an alternative
cause, however, may not necessarily be fatal to an ADA claim so
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40 Opinion of the Court 22-12045

long as disability played a role in the . . . decisionmaking process
and . . . had a determinative eﬀect on the outcome of that process.” Id.
(emphasis added) (quotation marks omitted); see Bostock, 140 S. Ct.
at 1739 (characterizing a but-for cause as outcome determinative).
We recognize that in Katz, the First Circuit did characterize
the causation element of an ADA claim as requiring that a claimant
show her “disability was a motivating factor in [the employer’s]
decision to ﬁre [her].” 87 F.3d at 33. However, the Katz court did
not discuss but-for causation or the motivating factor language
found in Title VII. See generally id. More importantly, Katz was
issued before the 2008 amendments to the ADA and the Supreme
Court’s decision in Gross. And since Katz, the First Circuit has
found Gross persuasive, and it characterized Katz’s use of
“motivating factor” as “loose language” and dicta. See Palmquist v.
Shinseki, 689 F.3d 66, 74-75 (1st Cir. 2012) (declining, in light of
Gross, to “transplant” Title VII’s motivating-factor causation
standard to the RA).
That leaves only the Fifth Circuit’s decision in LHC Group.
But that case also did not discuss the motivating-factor language
found in Title VII, whether but-for cause applied, or Gross. See
generally LHC Grp., 773 F.3d 688. Additionally, the dissent reads too
much into LHC Group’s passing reference to a “motivating factor.”
See id. at 702. The Fifth Circuit describes the “motivating factor
test” under the ADA as whether discrimination “play[ed] a role in
the employer’s decision making process” and had “a determinative
inﬂuence on the outcome.” Pinkerton v. Spellings, 529 F.3d 513,
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22-12045 Opinion of the Court 41

519 (5th Cir. 2008) (quotation marks omitted). That standard is
but-for causation. See Bostock, 140 S. Ct. at 1740.
Third, the dissent mistakenly relies on the ADA’s
incorporation of diﬀerent Title VII provisions to support its adding
“a motivating factor” language to the ADA’s text. Dissent Op. at 3.
This ignores that several circuits have expressly held that
while the ADA incorporates some Title VII provisions, it does not
incorporate the motivating-factor causation standard found in Title
VII under § 2000e-2(m). See Natofsky v. City of New York, 921 F.3d
337, 349 (2d Cir. 2019) (“Notably absent from [the ADA’s
incorporation provision], however, is § 2000e-2(m).”); Gentry v. E.
W. Partners Club Mgmt. Co., 816 F.3d 228, 234 (4th Cir. 2016)
(“[W]hile [the ADA] incorporates Title VII’s ‘Enforcement
provisions’ in § 2000e-5, it does not incorporate the ‘Unlawful
employment practices’ in § 2000e-2[(m)].”); Lewis v. Humbolt
Acquisition Corp., 681 F.3d 312, 319 (6th Cir. 2012) (en banc) (“That
Congress did not incorporate § 2000e-2 into the ADA ought to give
a court pause before doing so itself.”); Murray v. Mayo Clinic,
934 F.3d 1101, 1104-07 (9th Cir. 2019) (holding the ADA did not
incorporate the motivating-factor standard from Title VII); cf.
Palmquist, 689 F.3d at 73-74 (holding the RA, which also
incorporates part of Title VII, simply “borrows its remedial
scheme from Title VII, but it does not borrow the
[motivating-factor] causation standard set out in section
2000e-2(m). Instead, the [RA] borrows the causation standard from
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42 Opinion of the Court 22-12045

the [ADA],” which has “language [that] contrasts sharply with the
‘motivating factor’ standard used in section 2000e-2(m).”).
In addition, as explained above, these circuits held that, after
the 2008 amendments to the ADA, but-for causation applies to
ADA claims, even though the amendments changed “because of ”
to “on the basis of.” See Maj. Op. at 21; Natofsky, 921 F.3d at 349;
Gentry, 816 F.3d at 235-36; Murray, 934 F.3d at 1106 & n.6; Lewis,
681 F.3d at 315, 321.
The dissent also misses the fact that the motivating-factor
standard does not apply to all Title VII claims, much less to ADA
claims. The Supreme Court’s decision in Nassar is instructive. In
Nassar, the Supreme Court held that but-for causation, not
motivating-factor causation, applies to Title VII retaliation claims.
570 U.S. at 362. Noting the structure of Title VII, the Supreme
Court stated that Congress chose to place the motivating-factor
language only in a section pertaining to status-based
discrimination, not retaliation. Id. at 353. In characterizing Title
VII’s structure, the Supreme Court stated that, “[i]f Congress had
desired to make the motivating-factor standard applicable to all
Title VII claims”—and as relevant here, applicable to ADA claims
through its partial incorporation of Title VII—“it could have
inserted the motivating-factor provision as part of a section that
applies to all such claims, such as § 2000e-5.” Id. at 354.
Finally, the dissent relies on legislative history to support
applying motivating-factor causation in ADA cases. Dissent Op. at
5-6. “But we should not, cannot, and do not use legislative history
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22-12045 Opinion of the Court 43

to get around the plain meaning of a statute’s text.” Nesbitt v.
Candler Cnty., 945 F.3d 1355, 1361-62 (11th Cir. 2020) (“[I]t is better
to analyze a statute than it is to psychoanalyze Congress.”). Here,
the plain text of the ADA requires a claimant to show that an
employer made an adverse employment decision “on the basis of ”
her disability. 42 U.S.C. § 12112(a). Our colleague contends that
“[l]ater amendments to the ADA further underscore that Congress
sought to retain the ‘motivating factor’ causation standard.”
Dissent Op. at 4. Yet the 2008 amendments to the ADA did not add
“motivating factor” language. Rather, the amendments changed
“because of ” to “on the basis of.” See ADA Amendments Act of
2008, Pub. L. No. 110-325, § 5, 122 Stat. 3553.
If Congress intended to retain, clarify, or add the
motivating-factor standard to the ADA, it could have simply added
that language, like it did in its 1991 amendments to Title VII. See
Civil Rights Act of 1991, Pub. L. No. 102-166, §§ 107, 109, 105 Stat.
1071. Instead, and in direct contrast to Title VII, Congress chose to
not add the motivating-factor language to the text of the ADA. We
presume this choice was intentional, and we decline to add
language to the ADA that Congress chose not to include. See Gross,
557 U.S. at 174 (“When Congress amends one statutory provision
but not another, it is presumed to have acted intentionally.”).
VII. CONCLUSION
We aﬃrm the grant of summary judgment in favor of Alfa
and the sanctions award of $1,918 against Akridge.
AFFIRMED.
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22-12045 ABUDU, J., Concurring and Dissenting in part 1

ABUDU, Circuit Judge, concurring in part and dissenting in part:
I join in the Majority’s opinion affirming the district court’s
grant of summary judgment in favor of Defendant Alfa Mutual In-
surance Company and the sanctions award against Plaintiff Jennifer
Akridge. I write separately because I disagree with the Majority’s
holding that a plaintiff bringing a claim pursuant to the Americans
with Disabilities Act of 1990 (“ADA”) and its subsequent amend-
ments must prove that her disability was the “but for” reason for
an adverse employment action as opposed to the disability being a
motivating factor. The ADA’s purpose and language, especially its
incorporation of Title VII of the Civil Rights Act of 1964’s (“Title
VII”) enforcement mechanism, all lead to the conclusion that the
ADA forbids adverse employment decisions motivated, even in
part, by a plaintiff’s disability. For this reason, I respectfully dissent
in part.
I. THE ADA’s HISTORICAL BACKGROUND AND
CONNECTION TO TITLE VII
As originally enacted, Title I of the ADA provided as follows:
No covered entity shall discriminate against a
qualified individual with a disability because of
the disability of such individual in regard to job
application procedures, the hiring, advance-
ment, or discharge of employees, employee
compensation, job training, and other terms,
conditions, and privileges of employment.
See Americans with Disabilities Act, Pub. L. 101-336, Title I, § 102,
July 26, 1990, 104 Stat. 331 (codified at 42 U.S.C. § 12112(a) (1994)).
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2 ABUDU, J., Concurring and Dissenting in part 22-12045

Congress enacted the ADA to correct an omission in the categories
of protected classes enumerated in Title VII. 42 U.S.C. §
12101(a)(4) (explaining Congress enacted the ADA, in part, because
“unlike individuals who have experienced discrimination on the ba-
sis of race, color, sex, national origin, religion, or age, individuals
who have experienced discrimination on the basis of disability have
often had no legal recourse to redress such discrimination”).
In 1989, the Supreme Court decided Price Waterhouse v. Hop-
kins, 490 U.S. 228 (1989), which interpreted the causation standard
for Title VII by defining the statutory phrase “because of.” For con-
text, Title VII states that it is unlawful for an employer to discrimi-
nate against an employee “because of such individual’s race, color,
religion, sex, or national origin.” Id. at 240 (citing 42 U.S.C. §§
2000e-2(a)(1),(2)). In interpreting that statutory section, a plurality
of the Supreme Court held that where a plaintiff proved her mem-
bership in a protected class played “a motivating part” in an adverse
employment action, i.e., there were mixed motives that played into
the decision, the plaintiff had established that the action was “be-
cause of” the protected class in violation of the statute. Id. at 250.
In response to Price Waterhouse and similar Supreme Court
cases decided around that time, Congress amended Title VII to ex-
plicitly allow for a mixed-motive standard of causation. See Title
VII of the Civil Rights Act of 1964, Pub. L. No. 88 352, 78 Stat. 241,
as amended by the Civil Rights Act of 1991, Pub. L. No. 102 166, §
107, 105 Stat. 1071; 42 U.S.C. § 2000e-2(m) (“[A]n unlawful employ-
ment practice is established when the complaining party
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22-12045 ABUDU, J., Concurring and Dissenting in part 3

demonstrates that race, color, religion, sex, or national origin was
a motivating factor for any employment practice, even though other
factors also motivated the practice.”) (emphasis added). Congress
explained its twin aims behind the amendments: (1) “to respond to
recent Supreme Court decisions by restoring the civil rights protec-
tions that were dramatically limited by those decisions[;]” and (2)
“to strengthen existing protections and remedies available under
federal civil rights laws. . . .” H.R. REP. NO. 102-40 at 1 (1991), re-
printed in 1991 U.S.C.C.A.N. 694, 694.
Congress enacted the ADA shortly thereafter and crafted the
statute’s causation standard using the “because of” language. See
Americans with Disabilities Act, Pub. L. 101-336, Title I, § 102, July
26, 1990, 104 Stat. 331 (codified at 42 U.S.C. § 12112(a) (1994)). It
also incorporated by reference Title VII’s “powers, remedies, and
procedures” linking the two statutes. See 42 U.S.C. § 12117(a). No-
tably, the ADA contains no other enforcement or remedies provi-
sions besides those explicitly incorporated from Title VII, see id.;
42 U.S.C. § 2000e-5, and the Title VII remedies section specifically
incorporates a plaintiff’s ability to proceed under mixed-motive
causation, 42 U.S.C. § 2000e-5. This incorporation matters. Given
Price Waterhouse’s holding, Congress’s codification of the motivat-
ing factor language, the Title VII Amendments, and the ADA link-
ing the two statutes, it is clear that plaintiffs need not establish “but
for” causation in ADA cases and must only meet the “motivating
factor” test.
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4 ABUDU, J., Concurring and Dissenting in part 22-12045

Later amendments to the ADA further underscore that Con-
gress sought to retain the “motivating factor” causation standard.
See ADA Amendments Act of 2008, Pub. L. No. 110-325, § 5, 122
Stat. 3553 (codified as amended at 42 U.S.C. §§ 12101-12213 (2009))
(“ADAAA”). The ADAAA reads, in relevant part, “No covered en-
tity shall discriminate against a qualified individual on the basis of
disability in regard to job application procedures, the hiring, ad-
vancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of employ-
ment.” 42 U.S.C. § 12112(a) (emphasis added).
Before and after the ADAAA amendments, our sister circuits
applied and continue to apply a “motivating factor” standard in
ADA cases. See, e.g., Oehmke v. Medtronic, Inc., 844 F.3d 748, 756-57
(8th Cir. 2016) (“We apply a mixed-motive causation standard [to
ADA claims], allowing claims based on an adverse employment ac-
tion that was motivated by both permissible and impermissible fac-
tors” (citing Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th
Cir. 1995)); EEOC v. LHC Grp., Inc., 773 F.3d 688, 702 (5th Cir. 2014)
(explaining that under the ADA, “discrimination need not be the
sole reason for the adverse employment decision . . . [so long as it]
actually play[s] a role in the employer’s decision making process
and ha[s] a determinative influence on the outcome”) (alterations
in original) (citation and internal quotation marks omitted)); Katz
v. City Metal Co., 87 F.3d 26, 33 (1st Cir. 1996) (explaining that the
third element of a prima facie case under the ADA is to show “that
[plaintiff’s] disability was a motivating factor in [the employer’s] de-
cision to fire him”); see also C.G. v. Pa. Dep’t of Educ., 734 F.3d 229,
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22-12045 ABUDU, J., Concurring and Dissenting in part 5

236 n.11 (3d Cir. 2013) (explaining that the existence of “an alterna-
tive cause” for an adverse employment action “may not necessarily
be fatal to an ADA claim so long as disability ‘played a role in the .
. . decision[]making process and . . . had a determinative effect on
the outcome of that process’” (citation omitted)). Moreover, even
though our Circuit has used the “but for” language in ADA cases
with respect to causation, our application of that language has been
to find in a plaintiff’s favor “whenever the prohibited motivation
ma[de] a difference in the employer’s decision.” See McNely v. Ocala
Star-Banner Corp., 99 F.3d 1068, 1076 (11th Cir. 1996) (“When Con-
gress enacted the ADA, it did so against the backdrop of recent Su-
preme Court employment discrimination case law that interpreted
the phrase ‘because of’ not to mean ‘solely because of.’ We think
Congress knew what it was doing . . . .”). Thus, we held that “but
for” causation means the same thing as “a motivating factor” cau-
sation standard. Id.
Congress amended the ADA with this tapestry in mind. Leg-
islative history shows that the purpose of the amendment was not
to disturb the original causation standard that had been appropri-
ately interpreted by our Circuit and other circuits, but to decrease
debate about what constitutes a disability. 1

1 The bill amends Section 102 of the ADA to mirror the structure of

nondiscrimination protection in Title VII of the Civil Rights Act of
1964, changing the language of Section 102(a) from prohibiting dis-
crimination against a qualified individual ‘with a disability because of
the disability of such individual’ to prohibiting discrimination against
a qualified individual ‘on the basis of disability.’ This more direct
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6 ABUDU, J., Concurring and Dissenting in part 22-12045

Congress passed the ADA and ADAAA “to provide a clear
and comprehensive national mandate for the elimination of dis-
crimination against individuals with disabilities.” 42 U.S.C. §
12101(b)(1). It also intended to “provide clear, strong, consistent,
and enforceable standards addressing discrimination against indi-
viduals with disabilities.” Id. § 12101(b)(2). Strong and enforceable
standards are ones that deter discrimination, not condone it. Rais-
ing the bar to a “but for” causation standard is contrary to the stat-
ute’s direct link to Title VII, historical context, legislative history,
and purpose. Thus, mixed-motive causation applies to ADA and
ADAAA claims.
II. AKRIDGE’S ADA CLAIM STILL FAILS
Even under the “motivating factor” test, Akridge still has not
met her burden of proving that her disability was a consideration
in Alfa’s decision to terminate her employment.

language, structured like Title VII, ensures that the emphasis in ques-
tions of disability discrimination is properly on the critical inquiry of
whether a qualified person has been discriminated against on the basis
of disability, and not unduly focused on the preliminary question of
whether a particular person is even a ‘person with a disability’ with
any protections under the Act at all.
H.R. Rep. No. 110-730, pt. 1, at 6 (2008); see also 154 Cong. Rec. S8840-01
(Sept. 16, 2008) (Senate Statement of Managers) (explaining that recent Su-
preme Court decisions had the impact of lower courts finding “that an indi-
vidual’s impairment did not constitute a disability” and never reaching the
more salient question of whether unlawful discrimination had occurred).
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22-12045 ABUDU, J., Concurring and Dissenting in part 7

Because Alfa moved for summary judgment, we review the
district court’s decision de novo and draw all reasonable inferences
in Akridge’s favor. Sutton v. Wal-Mart Stores E., LP, 64 F.4th 1166,
1168 (11th Cir. 2023). Under the mixed-motive framework that ap-
plies to Akridge’s ADA claim, she must prove that: (1) her termina-
tion was an adverse employment action; and (2) her disability was
a motivating factor in her termination. See Quigg v. Thomas Cnty.
Sch. Dist., 814 F.3d 1227, 1239 (11th Cir. 2016) (ruling that the
McDonnell Douglas burden-shifting framework does not apply to
mixed-motive claims). Akridge bears the burden to prove her case
by a preponderance of the evidence. Id. at 1329. At issue here is
the second prong of that framework—whether Akridge demon-
strated that her multiple sclerosis and the related employer-funded
healthcare costs were a motivating factor in Alfa’s decision to ter-
minate her. See id. She did not.
Because the evidence supports a finding that none of the de-
cision makers were aware of her healthcare costs, she cannot rely
on that as a basis for her ADA claim. Although three of the indi-
viduals who played a role in Alfa’s decision to terminate her knew
about her multiple sclerosis, there was no evidence showing that
any of them knew about Akridge’s—or any other employee’s—
healthcare costs. She also did not present any evidence showing or
genuinely questioning whether the head of human resources had
any access to her healthcare costs. Furthermore, Alfa employed
Akridge for twenty-seven years, and she had multiple sclerosis for
twenty-three of those years. In Akridge’s own words, Alfa had no
problem paying for her multiple sclerosis medications “over the
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8 ABUDU, J., Concurring and Dissenting in part 22-12045

course of th[ose] years.” Given these material facts and the other
evidence fleshed out in the Majority Opinion, Akridge did not meet
her burden.
III. CONCLUSION
Congress, through the ADA’s “motivating factor” standard
recognized the reality that many employees with disabilities face—
that an employer may have or manufacture multiple reasons to fire
someone, but if one of those reasons is related to a person’s disabil-
ity, the employer’s behavior is unlawful. Nevertheless, Akridge’s
ADA claim still cannot survive.

Jennifer Akridge v. Alfa Mutual Insurance Company

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