Pension & Benefits News Years of unprofessional behavior despite supervisor’s counseling was legitimate reason for employee’s discharge
Wednesday, August 7, 2019

Years of unprofessional behavior despite supervisor’s counseling was legitimate reason for employee’s discharge

By Pension and Benefits Editorial Staff

Affirming summary judgment in an employer’s favor, the Fifth Circuit agreed that an operations technician who was terminated after taking FMLA leave could not proceed with his interference and retaliation claims where, after years of counseling and coaching by his supervisors, he continued to behave inappropriately and had also delayed reporting a potentially fatal safety risk for over a month.

Valuable employee, but unprofessional. The employee began working for Southern Company Services in 2011. He took FMLA leave in 2012 and 2015 without incident. He was recognized as a valuable employee, and the company promoted him in 2013 and 2016. However, the employee struggled to interact with his colleagues and supervisors in a professional manner. Both his 2013 and 2015 year-end reviews noted his performance needed improvement. In 2016, he repeatedly interrupted a safety meeting and received a disciplinary warning. In 2017, he made a sarcastic remark over the plantwide radio to a coworker who reported it to the supervisor. The plant manager met with the employee later that morning to address his recent conduct and warned him he would be terminated if he had another confrontation with a coworker. After the meeting, the plant manager contacted HR to discuss escalating the employee’s discipline level.

Doctor’s instructions: cease work. While he was having these work issues, he went to a doctor where he admitted he was "very apprehensive" about "recent issues that could terminate his employment." Finding the employee’s blood pressure to be dangerously high, the doctor prescribed medication and instructed him to cease work immediately until his pressure reached a normal range. He obtained a release from work and conveyed his doctor’s instructions to his supervisor, who gave him permission to return home and forwarded the requisite FMLA paperwork to his residence. Later that evening, the employee texted his manager to inform her that, on or around December 17, 2016, he and a coworker had observed a potentially fatal safety risk created by another coworker.

Summary judgment for employer. On February 1, 2017, the employee received an email 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 employee sued, alleging FMLA interference and retaliation claims. In his motion for summary judgment, he conceded he was not actually covered by the FMLA, but he contended SCS was equitably estopped from asserting a noncoverage defense. The district court denied the employee’s motion and granted summary judgment for SCS, finding there was no triable issue as to whether the employee had reasonably and detrimentally relied on SCS’s representation of FMLA eligibility.

Even accepting the employee’s "self-serving" statements of reliance, the court held he had failed to show any resulting detriment because he had been discharged for a nondiscriminatory reason unrelated to his request for leave. The district court dismissed his FMLA claims, finding SCS was not equitably estopped from asserting a noncoverage defense. The employee filed this appeal.

Legitimate reason for discharge. Moreover, even assuming equitable estoppel applied and the employee could establish a prima facie case of interference or retaliation, the court found summary judgment for SCS was warranted because it articulated a legitimate reason for his discharge. After years of counseling and coaching by his supervisors, he continued to behave inappropriately toward his managers and coworkers. During the two months preceding his termination, he repeatedly interrupted a company meeting and made a sarcastic remark over the plantwide radio. Moreover, he delayed reporting a potentially fatal safety risk for over a month.

Failed to show pretext. Next, the burden shifting back to the employee to show SCS’s reason for terminating him was pretext, the court found the employee failed to carry that burden. The court rejected his reliance on a Sixth Circuit case where the employee showed that, before his leave, his employer was very satisfied with his performance, and there was an inference the employee would not have been fired absent his taking of leave. Here, SCS made it clear to the employee, over the years, that his conduct was unacceptable. Before he ever sought FMLA leave, the plant manager had already issued him a disciplinary warning and had later contemplated escalating it. When the employee refused to correct his behavior, SCS unsurprisingly fired him.

Instead, the court found the employee’s case was akin to its decision in Mauder v. Metropolitan Transit Authority of Harris County, where it found no evidence of retaliation where the employee had received several reprimands regarding his attitude and availability and was terminated when his performance did not improve. "In much the same way, [the employee’s] ‘termination should not and did not take him by surprise.’ Indeed, before requesting FMLA leave, [the employee] acknowledged to his doctor that ‘recent issues . . . could terminate his employment.’"

Differential treatment of coworkers. The court also rejected the employee’s reliance on its decision in Caldwell v. KHOU-TV, where the employer did not apply its disciplinary policy evenhandedly to the plaintiff. Such disparate treatment created a question of fact as to pretext, especially because the employer’s explanation for discharging the plaintiff had transformed over time. Here, the employee argued he followed protocol in waiting to verify that a safety violation had occurred before reporting it a month later. The other coworkers who witnessed the violation merely received coaching, but the employee was discharged.

Although he argued that such differential treatment was evidence of pretext, the court disagreed, finding SCS had ample cause to terminate him. While it discharged only the employee, the other two coworkers did not have a comparable record of unprofessional conduct in the workplace. In fact, the supervisor testified that he was the only employee she supervised who exhibited such behavior. In addition, unlike the employer’s rationale in Caldwell, SCS’s explanation for terminating him had not changed. The decision was based on his failure to improve his interactions with people and to timely report a potential safety concern. Therefore, the court found the district court appropriately dismissed the employee’s claims on summary judgment.

SOURCE: Tatum v. Southern Co. Services, Inc., (CA-5), No. 18-40775, July 22, 2019.

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