BRANDON L. TATUM, Plaintiff-Appellant,
SOUTHERN COMPANY SERVICES, INCORPORATED, Defendant-Appellee.
from the United States District Court for the Eastern
District of Texas
SMITH, WIENER, and ELROD, Circuit Judges.
E. SMITH, Circuit Judge
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
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
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."
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. 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.
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
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.
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.
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.
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. But he contended that SCS was
equitably estopped from asserting a ...