By Linda C. Schoonmaker and Brian A. Wadsworth

Seyfarth Synopsis: In affirming summary judgment in favor of the defendant in an Family and Medical Leave Act (FMLA) interference and retaliation case, the Fifth Circuit reinforced the importance of documenting performance issues and following internal policies. This case serves as a good reminder for employers to continue to document performance issues and follow or, if necessary, revise internal company policies.

In Tatum v. Southern Co. Svcs, Inc., Cause No. 18-40775, the Fifth Circuit affirmed the district court’s grant of summary judgment against a former employee’s claims of interference and retaliation under the FMLA.

Plaintiff Brandon Tatum worked as an operations technician at Defendant Southern Co. Svcs. Inc.’s biomass power generation facility. As early as 2013, Southern began noting issues with his work performance. Namely, his lack of professionalism in interacting with his supervisors and colleagues. Over a number of years, Southern documented Tatum’s inappropriate behavior, which included the use of profanity, repeatedly interrupting safety meetings, and making sarcastic comments to his co-workers. When Tatum’s behavior reached a crescendo, Southern’s plant manager warned Tatum that a future confrontation with a co-worker could lead to his termination. Southern’s plant manager also contacted human resources to “discuss escalating Tatum’s discipline level.”

After this censure, Tatum attended a doctor’s appointment. Tatum learned that his blood pressure was dangerously high and his doctor instructed him to cease work until his blood pressure returned to normal. Tatum informed Southern of this instruction. Later that day, Tatum also informed Southern that he had observed a co-worker create a potentially fatal safety risk approximately one month earlier and included pictures of this risk. Tatum had previously boasted to a co-worker that these photographs of a potentially fatal security risk constituted “[j]ob security” for Tatum.

Southern subsequently informed Tatum that he was eligible for FMLA leave, but then terminated him for his failure to reform his behavior or to timely report the safety concern he raised and documented with photographs.

In affirming summary judgment in favor of Southern, the Fifth Circuit found that Southern had stated a legitimate, nondiscriminatory reason for his termination and that Tatum did not present evidence of pretext. The Court noted that Southern had provided Tatum with “years of counseling and coaching by his supervisors,” but that his behavior did not improve. In addition, he also delayed in reporting a potentially fatal safety risk for more than a month. Similarly, Tatum could not demonstrate pretext based on an assertion that two promotions during his tenure with Southern controverted Southern’s documenting of his improper behavior. To the contrary, the Court found that Southern “unsurprisingly fired him” when he “refused to correct his behavior … [or] disclose a safety concern in a timely manner.”

The Court also disagreed with Tatum’s claim that Southern denied him the same opportunities as other employees. The two other employees who also witnessed the potentially fatal safety risk only received training, not termination. Unconvinced by Tatum’s argument, the Court noted that Southern did not have to be objectively correct in assessing whether Tatum was purposely dishonest about his delay in reporting the safety violation, it only had to have a good-faith belief that dishonesty existed. Southern met this standard when one of its employee’s testified that Tatum claimed that he kept the photographs of the violation for “[j]ob security.”

Lastly, the Court looked at Southern’s internal policies and disagreed with Tatum’s argument that Southern failed to follow such policies by not “hearing his side of the story.” The Court found that there was no internal “policy guaranteeing an employee the right to be heard before termination.” To the contrary, Southern’s policies provided that it could terminate an employee “at any time for serious infractions ….” Thus, Southern did not violate any of its policies in terminating Tatum.


While the Fifth Circuit does not break any new ground in Tatum, it does reinforce a few key issues that employers should remain cognizant of:

  • Always document performance issues, even if they are not significant enough to warrant immediate action.
  • Follow relevant internal company policies and, if they are not consistent with the manner in which the company conducts business, revise and update those policies to accurate reflect the way in which the company conducts business.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.