FMLA Articles

Swearing and other poor behavior undermine employee’s FMLA claim


Misbehavior need not be accepted

Phil, a tenured employee, had been recognized as a valuable employee and was promoted a couple times. Unfortunately, however, Phil struggled to interact with his colleagues and supervisors in a professional manner. In a couple of his later reviews, his performance was noted as needing improvement. Specifically, the latest review indicated that Phil used profanity on multiple occasions.

Despite subsequent years of training and counseling, Phil continued the same inappropriate behavior, including interrupting a safety meeting, quoting the Bible regarding casting the first stone, and making a sarcastic remark over the plantwide radio to a coworker. Soon after discussing his latest behavior, Phil had a doctor’s appointment where he admitted he was apprehensive about the future of his employment with the company. The doctor found Phil’s blood pressure to be dangerously high and took him off work. He was given FMLA paperwork and was subsequently informed that he was eligible for FMLA leave.

He was fired the following day for failing to improve his behavior, and he sued. Phil argued that the company interfered with his FMLA rights and retaliated against him for taking the leave (the FMLA double-whammy). Although Phil was not actually eligible for FMLA leave (he did not work at a site with at least 50 company employees within 75 miles), he claimed that, because the company told him he was eligible, it could not go back on its word.

The company, on the other hand, argued that, even if Phil could make an FMLA case, he was fired for a legitimate, non-discriminatory reason — his behavior.

Another issue in the situation involved Phil having taken photos of a potentially fatal workplace safety risk, but not sharing them with others for over a month; not until he was on the verge of termination; keeping them for “job security,” so he told a coworker. The court sided with the employer, and found that, after years of counseling and coaching, Phil continued to behave inappropriately. The company had made it clear to Phil over the years, that his conduct was unacceptable. His performance reviews reflected this. He had been given a disciplinary warning. The delay of reporting the safety issue was one of the last straws.


While it can seem like employees often have the upper hand in a situation when FMLA leave is involved, employers need not tolerate poor performance or even bad behavior. Having well-documented evidence of the performance or behavior and any actions taken in relation to it, can help support an argument that an employee was destined for termination regardless of any FMLA leave requested or taken.

It also pays to ensure that performance reviews reflect reality, particularly if an employee is having some issues. If this company had not recorded Phil’s struggles, the court could have taken a different stance, and we’d be relating a very different story outcome.

Tatum v. Southern Company Services, Inc., Fifth Circuit Court of Appeals, No. 18-40775, July 22, 2019.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


The J. J. Keller LEAVE MANAGER service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA and leave requirements.