    Case: 18-40775   Document: 00515042733    Page: 1   Date Filed: 07/22/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                          United States Court of Appeals

                               No. 18-40775
                                                                   Fifth Circuit

                                                                 FILED
                                                             July 22, 2019
                                                            Lyle W. Cayce
                                                                 Clerk
BRANDON L. TATUM,

                                         Plaintiff–Appellant,

versus

SOUTHERN COMPANY SERVICES, INCORPORATED,

                                         Defendant–Appellee.




                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 inter-
ference and retaliation in violation of the Family and Medical Leave Act
(“FMLA”). On Tatum’s appeal, we agree and affirm.
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                                      No. 18-40775
                                             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 reha-
bilitation 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.


       1 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.”
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                                 No. 18-40775
      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 con-
duct. 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 ter-
minated 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 Jack-
son, 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 poten-
tially 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 ear-
lier, 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.

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                                      No. 18-40775
                                            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 repre-
sentation 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 judg-
ment for 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 eligi-
bility. 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



       2 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 29 U.S.C. § 2611(2)(B); see
also Minard v. ITC Deltacom Commc’ns, Inc., 447 F.3d 352, 353 (5th Cir. 2006).
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                                       No. 18-40775
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 perform-
ing the functions of his job. See 29 U.S.C. § 2612(a)(1)(D). An employer may
not interfere with the exercise of any right provided under the Act, nor may it
“discharge . . . any individual for opposing any practice made unlawful by” the
Act. Id. § 2615(a). To make a prima facie case of interference, a plaintiff must
demonstrate that “(1) he was an eligible employee; (2) his employer was subject
to FMLA requirements; (3) he was entitled to leave; (4) he gave proper notice
of his intention to take FMLA leave; and (5) his employer denied him the
benefits to which he was entitled under the FMLA.” Caldwell v. KHOU-TV,
850 F.3d 237, 245 (5th Cir. 2017). And a prima facie case of retaliatory dis-
charge requires that an employee show “(1) [he] engaged in a protected activity,
(2) the employer discharged [him], and (3) there is a causal link between the
protected activity and the discharge.” Richardson v. Monitronics Int’l, Inc.,
434 F.3d 327, 332 (5th Cir. 2005).

      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, 850 F.3d at 245; Richardson, 434 F.3d at 332. Once
an employee propounds a prima facie case of interference or retaliation, “the
burden shifts to the employer to articulate a legitimate, nondiscriminatory
reason for the adverse employment action.” 3 Thereafter, “the burden shifts



      3   Richardson, 434 F.3d at 332; see also 29 C.F.R. § 825.216(a) (“An employer must be
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                                       No. 18-40775
back to the employee to show by a preponderance of the evidence that the
employer’s articulated reason is a pretext for discrimination.” Richardson,
434 F.3d at 332–33.

       Tatum avers that the district court erred in holding that SCS was not
equitably estopped from asserting a non-coverage defense. Assuming, argu-
endo, 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 in-
appropriately toward his managers and coworkers. In the two months preced-
ing his termination, he repeatedly interrupted a company meeting 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 mate-
rial fact regarding pretext. See Shirley v. Precision Castparts Corp., 726 F.3d
675, 683 (5th Cir. 2013). He fails to carry that burden. Citing Arban v. West
Publishing Corp., 345 F.3d 390, 402 (6th Cir. 2003), he first contends that
SCS’s explanation is disingenuous because the company was well aware of his
alleged interpersonal problems but did not decide to fire him until after he took
medical leave. According to Tatum, the fact that SCS promoted him in 2013
and 2016 indicates that his performance was satisfactory. 5 Additionally, Ray



able to show that an employee would not otherwise have been employed at the time re-
instatement is requested in order to deny restoration to employment.”).
       4 “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, 315 F.3d 533, 537–38 (5th Cir. 2003).
       5 See Caldwell, 850 F.3d at 244 (noting that a pay raise made at a time when an em-
ployee’s “performance was apparently lacking” suggests that “her supervisors were satisfied
with her work”).
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                                  No. 18-40775
committed to “do whatever was necessary to get [Tatum’s] attention” and
warned that he would be terminated if he had another confrontation. Yet
Tatum posits that once he requested medical leave, his manager “d[id] an
about face” and fired him even though he never had another such conflict.

      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. Id. at 401. At trial, however, the
employee showed that, before his leave, his employer was “very satisfied” with
his performance and told him that he “‘me[t] expectations’ in all areas.” Id.
at 402. Consequently, the Sixth Circuit held that the timing of the employer’s
decision “could lead a fact finder to infer that the employee would not have
been fired absent h[is] taking of leave.” Id. (quoting Kohls v. Beverly Enters.
Wis., Inc., 259 F.3d 799, 806 (7th Cir. 2001)).

      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, 446 F.3d 574 (5th Cir. 2006). There, we found no evidence of
retaliation where an employee had “received a handful of reprimands . . . re-
garding his attitude and availability” and had been terminated “[w]hen his
performance and attitude did not improve.” Id. at 584–85. In much the same


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                                      No. 18-40775
way, Tatum’s “termination should not and did not take him by surprise.” 6
Indeed, before requesting FMLA leave, Tatum acknowledged to his doctor that
“recent issues . . . could terminate his employment.”

       Tatum next invokes Caldwell in claiming that SCS denied him the same
opportunities afforded to other employees. In Caldwell, 850 F.3d at 244, the
employers “had a practice of consulting with employees who were performing
their jobs inadequately” but refused to apply that policy evenhandedly to the
plaintiff. We concluded that such “disparate treatment” created “a material
question of fact as to pretext,” id., especially because the employers’ explana-
tion for discharging the plaintiff “ha[d] transformed over time,” id. at 242.
Tatum insists that he followed protocol in waiting to verify that a safety viola-
tion had occurred before reporting Goodman’s workmanship a month later on
January 20.       But whereas Goodman and Finn—who also witnessed the
incident—merely received coaching, Tatum was summarily discharged. He
urges that such differential treatment is therefore evidence of pretext.

       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., 903 F.3d 487, 492 (5th Cir. 2018). SCS had a good-
faith reason for firing Tatum, given Finn’s account that Tatum had held onto
photographs of the potential safety violation as “[j]ob security.” Moreover,
though SCS discharged only Tatum, neither Goodman nor Finn had a compar-
able record of unprofessional conduct in the workplace.                 In fact, Jackson


       6 Mauder, 446 F.3d at 585; see also Richardson, 434 F.3d at 336 (observing no evidence
of retaliation where an employee was fired for his “long history of attendance problems”).
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                                     No. 18-40775
testified that Tatum was the only employee she supervised who exhibited such
behavior. And unlike the employer’s rationale in Caldwell, SCS’s explanation
for terminating Tatum has not changed: The decision was based on his failure
to “improve the manner in which he dealt with people” and “to timely report
. . . a potential safety concern.”

      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, 434 F.3d at 336, Tatum has not pointed to
any company policy guaranteeing an employee the right to be heard before ter-
mination. And he does not allege—nor can he—that he enjoyed a cognizable
property interest in continued employment. To the contrary, SCS’s discipline
policy provides that “[e]mployees may be terminated at any time for serious
infractions, including . . . insubordination . . . or violations of company policies.”
SCS therefore adhered to company policy in firing Tatum after he had refused
to conduct himself professionally and had delayed reporting the safety concern.

      For these reasons, the district court thus appropriately dismissed
Tatum’s claims on summary judgment.

      AFFIRMED.




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