### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

- 40775

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 Bran don Tatum, and he sued. The district court dismissed , on summary judg ment , his claims of inter

ference and retaliation in violation of the Family and Medical Leave Act (“FMLA”)

. On Tatum’s appeal, w e agree and affirm. United States Court of Appeals Fifth Circuit 

### FILED July 22, 2019 Lyle W. Cayce Clerk Case: 18-40775 Document: 00515042733 Page: 1 Date Filed: 07/22/2019No. 18

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2 I. In 2011, SCS hired Tat um as an operations technician at its biomass power generation facility. Per the FMLA , SCS provide d eligible employees with job

- protected leave for certain medical reasons. Tatum took extended leave to undergo gallbladder surgery in 2012 and to participa te in drug reha

bilitation in 2015. Yet he experienced no criti cism 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
pro moted 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 k nowing 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 audien ce 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 subse quently 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 inf ractions, includ ing . . . insubordination . . . or violations of company policies.” Case: 18-40775 Document: 00515042733 Page: 2 Date Filed: 07/22/2019No. 18

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3 P lant manager Ron Ray met with Tatum later that morning to address Tatum’s recent con duct , 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 doub led 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 imme diately until Tatum’s blood pressure reached a normal range, and issued a doctor’s release from work. Tatum conveyed his doctor’s in structions 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 photo graphs as “[j]ob

secur ity.” 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 FM LA leave. T he n ext day, SCS fired him for failure to reform his behavior and to report the safety concern timely. Case: 18-40775 Document: 00515042733 Page: 3 Date Filed: 07/22/2019No. 18

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4 II. Tatum sued , alleging, inter alia , that SCS had interfered with his right to protected leave under the FMLA and had retaliated against h im 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 establis h 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 interfer ence 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

w ould 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. Th e court saw no triable issue as to whether Tatum had

reaso nably 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, fewe r 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). Case: 18-40775 Document: 00515042733 Page: 4 Date Filed: 07/22/2019No. 18

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5 discharged for a nondiscrimina tory 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 twelv e weeks of annual unpaid leave for “ a serious health condition” that prevents him from per form

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 A ct, 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 dem onstrate that “ (1) he was an eligible employee; (2) his employer was subject to FMLA req uirements; (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 p rima 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. Monitron ics Int’l, Inc. , 434 F.3d 327, 332 (5th Cir. 2005). In the absence of direct evidence of discriminatory intent, we appl y 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 Case: 18-40775 Document: 00515042733 Page: 5 Date Filed: 07/22/2019No. 18

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6 b ack 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 equit ably estop ped 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 pre ced

ing his termination, he repeatedly interrupted a company meeting and m ade a sarcastic comment over the plantwide radio to a coworker

. What’s more, he delayed reporting a potential ly 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 hi s performance was satisfactory

. 5 Additionally, Ray

able to show that an employee would not otherwise have been empl oyed 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 we re satisfied with her work”). Case: 18-40775 Document: 00515042733 Page: 6 Date Filed: 07/22/2019No. 18

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7 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 mana ger “ 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 post poned doing so until after the holidays. Id. at 401. At trial, however, the employee showed that, before his leave, his employer was “very satis fied” with his performance and told him that he “‘me[t] expectations’ in all areas.” Id

. at 402. Consequent ly, 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 Ci r. 2001)). In contrast, SCS made it clear to Tatum, over the years , that his con duct was unacceptable. His year

- end review s in 2013 and 2015 unequivo cally 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 disciplin ary warning and had later contemplated escalating it. When Tatum refused to cor rect his behavior, SCS unsurprisingly fired him , espe cially after learning that he had failed to disclose a safety concern in a timely manner.
This case is thus akin to Mauder v. Metro politan Transit Auth ority of Harris C oun ty , 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 Case: 18-40775 Document: 00515042733 Page: 7 Date Filed: 07/22/2019No. 18

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8 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 employer s “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 t reatment” 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 , ” i d . at 24 2

. 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 summ arily 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 cla im, 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. , 90 3 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 no r Finn had a com par a ble 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”). Case: 18-40775 Document: 00515042733 Page: 8 Date Filed: 07/22/2019No. 18

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9 testified that Tatum w as 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: T he 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 del ayed 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,” R ichardson , 434 F.3d at 336, Tatum has not pointed to any company policy guaranteeing an employee the right to be hea r d before ter

mination. And he does not allege

— nor can he

— that he enjoyed a cognizable property interest in continued employment. To the c ontrary, 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, t he district court thus appropriately dis missed Tatum’s claims on summary judgment.
AFFIR MED

. Case: 18-40775 Document: 00515042733 Page: 9 Date Filed: 07/22/2019