Worker Fired After FMLA Time Off Was Approved Loses His Claim

​A technician at a power company who was fired for past conduct one day after the company told him he was eligible for leave under the Family and Medical Leave Act (FMLA) did not have a valid FMLA claim, the 5th U.S. Circuit Court of Appeals held.

In 2011, Southern Company Services (SCS) hired the plaintiff as an operations technician at its biomass power generation facility. In keeping with the FMLA, SCS provided eligible employees with job-protected leave for certain medical reasons. During the latter part of the plaintiff's employment, however, the plant did not have a legal obligation to provide FMLA leave because it did not employ 50 or more employees within a 75-mile radius of the plant.

In 2012 and 2015, the plaintiff took stretches of FMLA leave and was still recognized as a valuable employee with strong technical expertise and knowledge in power generation. SCS promoted him in 2013 and 2016; however, over time, SCS counseled the plaintiff to interact more professionally with his colleagues and supervisors. His 2013 year-end review noted that his performance needed improvement. In his 2015 evaluation, his performance was likewise rated "needs improvement." The evaluation also noted his repeated use of profanity, and he was cautioned to be aware of his audience and choice of language.

In November 2016, the plaintiff repeatedly interrupted a safety meeting and received a disciplinary warning. On Jan. 20, 2017, the plaintiff made a sarcastic remark over the plantwide radio to a co-worker, who reported the incident to his immediate supervisor. The plant manager met with the plaintiff that morning to address his recent conduct and safety concerns, including the plaintiff's insistence that certain pipe welds had been improperly tested.

The plant manager informed the plaintiff that the problem was not with his concerns for safety, but with his approach in confronting his colleagues. Instead of apologizing, the plaintiff defended his conduct. The plant manager promised to do whatever was necessary to get the plaintiff's attention and to maintain him as an employee, and warned the plaintiff that he would be fired if he had another confrontation with a co-worker. The plant manager contacted human resources to discuss escalating the plaintiff's discipline level.

The plaintiff went to a doctor's appointment and admitted that he was apprehensive about recent issues that could end his employment. His doctor found his blood pressure to be dangerously high, prescribed medication, instructed him to take a leave of absence and issued a doctor's release from work. The plaintiff conveyed his doctor's instructions to his supervisor, who gave him permission to return home and then forwarded the FMLA paperwork to his residence.

Later that evening, the plaintiff texted his supervisor to inform her that in December 2016, he and a co-worker had observed a potentially fatal safety risk created by another co-worker. The plaintiff included three photographs taken while the work was still in progress. The plaintiff reportedly boasted of taking the photographs as "job security."

On Feb. 1, 2017, the plaintiff received an e-mail from HR informing him that he was eligible for FMLA leave. The next day, SCS fired him for failure to reform his behavior and to timely report the safety concern.

The plaintiff sued, alleging that SCS had interfered with his right to protected leave under the FMLA and retaliated against him for taking such leave. SCS sought summary judgment because the plaintiff was not covered by the FMLA and because it had fired the plaintiff for a legitimate, nondiscriminatory reason. The district court denied the plaintiff's motion and granted summary judgment for SCS.

[SHRM members-only toolkit: Managing Family and Medical Leave]

On appeal, the plaintiff argued that the plant manager promised to do whatever was necessary to get his attention and warned that he would be fired if he had another confrontation. Yet, once he requested medical leave, his manager discharged him even though he never had another such conflict. SCS also denied him a chance to explain why he delayed reporting the safety risk.

The 5th Circuit found that the plaintiff's conduct was an inappropriate interaction with co-workers and response to safety risks, part of a pattern of conduct issues raised by the company under its disciplinary policies. It thus upheld the district court's grant of summary judgment to SCS.

Tatum v. Southern Company Services Inc., 5th Cir., No. 18-40775 (July 22, 2019).

Professional Pointer: Employers should warn employees that any misconduct of any type following discipline may result in termination. An employee may misunderstand that a different type of misconduct will not necessarily lead to termination.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

[Visit SHRM's resource page on the Family and Medical Leave Act.]