Tatum v. Southern Company Services, Incorporated
Opinion
Southern Company Services, Inc. ("SCS"), fired Brandon Tatum, and he sued. The district court dismissed, on summary judgment, his claims of interference and retaliation in violation of the Family and Medical Leave Act ("FMLA"). On Tatum's appeal, we agree and affirm.
I.
In 2011, SCS hired Tatum as an operations technician at its biomass power generation facility. Per the FMLA, SCS provided eligible employees with job-protected leave for certain medical reasons. Tatum took extended leave to undergo gallbladder surgery in 2012 and to participate in drug rehabilitation in 2015. Yet he experienced no criticism or disciplinary action for his medical absence. Instead, he was recognized as a "valuable" employee with "strong technical expertise" and "knowledge ... in power generation." SCS promoted him in 2013 and 2016.
Unfortunately, however, Tatum struggled to interact with his colleagues and supervisors in a professional manner. His 2013 year-end review noted that his performance "[n]eed[ed] [i]mprovement" and that he "could benefit by knowing his audience a little better." His 2015 evaluation likewise gave him a performance rating of "Needs Improvement." Specifically, it found that Tatum "use[d] ... profanity on multiple occasions," and it again advised him to "be aware of his audience and the language he chooses to use."
Despite years of training and counseling, Tatum continued the same inappropriate behavior. In November 2016, he repeatedly interrupted a safety meeting and received a disciplinary warning. 1 Although he agreed to "[i]dentify and resolve [the] issues that led" to the infraction, Tatum subsequently shared at an employee meeting the Bible story in which Jesus said, "He that is without sin among you, let him first cast a stone." John 8:7. On January 20, 2017, Tatum made a sarcastic remark over the plantwide radio to a coworker, who reported the incident to the immediate supervisor, Nicole Jackson.
*712 Plant manager Ron Ray met with Tatum later that morning to address Tatum's recent conduct, including Tatum's insistence that certain pipe welds had been improperly tested. Ray reminded Tatum "that the problem was not with Tatum's concerns for safety, but with his approach" in confronting his colleagues. Instead of apologizing, Tatum doubled down in defending his conduct. Promising to "do whatever was necessary to get [Tatum's] attention" and to "maintain him as an employee," Ray warned Tatum that he would be terminated if he had another confrontation with a coworker. After the meeting, Ray contacted human resources to discuss escalating Tatum's discipline level.
Meanwhile, Tatum attended a doctor's appointment, where he admitted that he was "very apprehensive" about "recent issues that could terminate his employment." Finding Tatum's blood pressure to be dangerously high, his health care provider prescribed medication, instructed him to cease work immediately until Tatum's blood pressure reached a normal range, and issued a doctor's release from work. Tatum conveyed his doctor's instructions to Jackson, who gave him permission to return home and forwarded the requisite FMLA paperwork to his residence.
Later that evening, Tatum texted Jackson to inform her that, on or around December 17, 2016, he and coworker Mark Finn had observed a potentially fatal safety risk created by coworker Wayne Goodman. Tatum included three photographs taken while the work was still in progress. On January 23, 2017, Finn reported that Tatum had boasted of taking the photographs as "[j]ob security." Jackson admonished Finn for not relaying Tatum's comments earlier, and Jackson counseled Goodman on how to avoid such work-related risks.
On February 1, 2017, Tatum received an email from human resources, informing him that he was eligible for FMLA leave. The next day, SCS fired him for failure to reform his behavior and to report the safety concern timely.
II.
Tatum sued, alleging, inter alia , that SCS had interfered with his right to protected leave under the FMLA and had retaliated against him for taking such leave. In his motion for partial summary judgment, Tatum conceded that he was not actually covered by the FMLA. 2 But he contended that SCS was equitably estopped from asserting a non-coverage defense and that he was entitled to judgment as a matter of law on his interference claim.
SCS likewise sought summary judgment. It posited that because Tatum had failed to establish reasonable and detrimental reliance on a definite representation of FMLA eligibility, SCS was not equitably estopped from raising a non-coverage defense. See Minard , 447 F.3d at 359. Furthermore, even if Tatum could make a prima facie case of interference or retaliation under the FMLA, SCS maintained it had fired him for a legitimate, non-discriminatory reason. In response, Tatum submitted an affidavit in which he averred-for the first time-that had he known he was ineligible for FMLA protection, he would not have taken medical leave or would have returned to work sooner.
The district court denied Tatum's motion and granted summary judgment for *713 SCS. Noting that Tatum had filed the affidavit "only after [SCS had] underscored the lack of evidence showing his detrimental reliance," the court disregarded portions of the declaration as conclusional, unsubstantiated, and otherwise a sham. The court saw no triable issue as to whether Tatum had reasonably and detrimentally relied on SCS's representation of FMLA eligibility. Even accepting Tatum's "self-serving" statements of reliance, the court held that he had failed to show any resulting detriment because he had been discharged for a nondiscriminatory reason unrelated to his request for FMLA leave. The court therefore dismissed his FMLA claims, finding that SCS was not equitably estopped from asserting a non-coverage defense. Tatum appeals.
III.
The FMLA grants "an eligible employee" up to twelve weeks of annual unpaid leave for "a serious health condition" that prevents him from performing the functions of his job.
See
In the absence of direct evidence of discriminatory intent, we apply the
McDonnell Douglas
framework to determine the reason for an employee's discharge.
See
Caldwell
,
Tatum avers that the district court erred in holding that SCS was not equitably estopped from asserting a non-coverage defense. Assuming, arguendo , that equitable estoppel applies and that Tatum can establish a prima facie case of interference or retaliation, summary judgment is still warranted because SCS articulated a legitimate reason for his discharge. 4 After years of counseling and coaching by his supervisors, Tatum continued to behave inappropriately toward his managers and coworkers. In the two months preceding his termination, he repeatedly interrupted a company meeting *714 and made a sarcastic comment over the plantwide radio to a coworker. What's more, he delayed reporting a potentially fatal safety risk for over a month.
The burden thus shifts back to Tatum to raise a genuine dispute of material fact regarding pretext.
See
Shirley v. Precision Castparts Corp.
,
Tatum's reliance on
Arban
is misplaced. In
Arban
, a company averred that it had decided to fire an employee before he took medical leave but had postponed doing so until after the holidays.
In contrast, SCS made it clear to Tatum, over the years, that his conduct was unacceptable. His year-end reviews in 2013 and 2015 unequivocally stated that his performance "[n]eed[ed] [i]mprovement" and reminded him to "be aware of his audience and the language he chooses to use." Before Tatum ever sought FMLA leave, Ray had already issued him a disciplinary warning and had later contemplated escalating it. When Tatum refused to correct his behavior, SCS unsurprisingly fired him, especially after learning that he had failed to disclose a safety concern in a timely manner.
This case is thus akin to
Mauder v. Metropolitan Transit Authority of Harris County
,
Tatum next invokes
Caldwell
in claiming that SCS denied him the same opportunities afforded to other employees. In
Caldwell
,
Even accepting that Tatum was well-intentioned in waiting to disclose the safety concern, SCS had ample cause to terminate him. "For the purposes of an FMLA claim, what matters is not whether [an employer] was objectively correct about [an employee's] dishonesty, but whether it had a good-faith belief that dishonesty existed, and that such belief was the basis for the termination."
DeVoss v. Sw. Airlines Co.
,
Lastly, Tatum chides SCS for denying him a chance to explain why he delayed reporting the safety risk. He declaims that SCS unfairly suspected him of wrongdoing and terminated him without hearing his side of the story. Although "[a]n employer's failure to follow its own policies may be probative of discriminatory intent,"
Richardson
,
For these reasons, the district court thus appropriately dismissed Tatum's claims on summary judgment.
AFFIRMED.
Although SCS "employs a progressive approach to discipline, each step need NOT be utilized." The discipline meted out "depends on the severity or surrounding circumstances of the infraction," and "[e]mployees may be terminated at any time for serious infractions, including ... insubordination ... or violations of company policies."
Tatum was not covered because he had worked at a site at which, or within seventy-five miles of which, fewer than fifty workers were employed.
See
Richardson
,
"Summary judgment must be affirmed if it is sustainable on any legal ground in the record" even if the rationale was "rejected or not stated by the district court."
S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA
,
See
Caldwell
,
Mauder
,
Reference
- Full Case Name
- Brandon L. TATUM, Plaintiff-Appellant, v. SOUTHERN COMPANY SERVICES, INCORPORATED, Defendant-Appellee.
- Cited By
- 41 cases
- Status
- Published