FIFTH CIRCUIT RULES THAT THREAT OF WORKPLACE VIOLENCE TRUMPS FMLA RETALIATION CLAIM

             

An alleged threat by a former Southwest Airlines employee “that he wished he could order a black trench coat so that he could bring his shotgun to work” was enough to derail his claim that his employer terminated him in retaliation for taking intermittent leave under the Family and Medical Leave Act (“FMLA”). 


In affirming the District Court’s grant of summary judgment in favor of Southwest, the April 18, 2018 opinion by the U.S. Court of Appeals for the Fifth Circuit agreed the airline had established a legitimate non-discriminatory reason for discharging Tate Clark, and that Clark had failed to prove that the reason was pretextual, or false.

 Clark began working for Southwest in 2001 as a customer service agent, and in 2011, he applied for and was approved for intermittent leave under the FMLA for his migraine headaches. Clark’s intermittent leave continued until his discharge, and he was never denied FMLA leave during his tenure with Southwest.

The incident that resulted in his termination took place on February 25, 2015, while he worked an early morning shift alone with a female co-worker.  On February 27, 2015, the co-worker sent the following note to her supervisors:

Hi guys, I wasn’t sure if I should share this but the more I thought about it, the more it bothered me. On Wednesday night, When Tate & I were working together, he was looking at the Lands End uniform web site. There was a picture of the trench coat and I asked him if he was going to order it. He said no, but I wish they made it in black. I asked him why and he said so he could bring in his shotgun. I told him not to joke about something like that and he just sat there chuckling. I’m not necessarily afraid, but it wasn’t the first time he referred to his guns in that manner.

 After a brief investigation, Clark was suspended on March 1, 2015, and on March 9, he was terminated for violating Southwest’s Zero Tolerance Workplace Violence Policy that prohibited threatening workplace violence.  Clark subsequently filed a lawsuit in the United States District Court for the Western District of Texas, alleging that the true reason for his termination was retaliation for taking FMLA leave.

In support of his claim, Clark argued that his taking of FMLA leave on February 27, 2015 established a connection with his March 9, 2015, termination, and he cited other incidents, including a negative workplace review, that had occurred more than a year before his termination. 

In dismissing Clark’s lawsuit, the District Court indicated that while the evidence of a causal connection between Clark’s taking of FMLA leave and his termination was weak, his claim failed because Southwest had established a legitimate, non-discriminatory reason for discharging him, and Clark could not show the airline’s reason was false.  In his deposition, Clark had testified that he had been aware of Southwest’s workplace violence policy and had received training on it. He also said he had understood that it was a “zero tolerance” policy, conceding that there was “no room” “to have any sort of excuse for that.” Clark also agreed that, if he had made it, his comment about bringing in a shotgun would have violated the policy and would have been grounds for termination.