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Tatum v. Southern Company Services, Inc.

United States Court of Appeals, Fifth Circuit

July 22, 2019

BRANDON L. TATUM, Plaintiff-Appellant,

          Appeal from the United States District Court for the Eastern District of Texas

          Before SMITH, WIENER, and ELROD, Circuit Judges.

          JERRY E. SMITH, Circuit Judge

         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.


         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]den-tify 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.

         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.


         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 ...

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