Employees can’t hide behind FMLA to dodge legitimate discipline
A federal appellate court has dismissed a lawsuit brought by a worker who claimed she was fired in retaliation for taking intermittent FMLA leave. The 5th Circuit Court of Appeals ruled that Shaneika Smith was fired for the most defensible of all reasons: She treated a customer badly.
The case is Smith v. Southwestern Bell Telephone Company (No. 11-10506, 5th Cir., 2012).
In the call-center hot seat
Shaneika Smith was a customer service representative for Southwestern Bell Telephone Co. Her duties included answering customer calls and handling their complaints.
Smith received specific training on how to handle difficult customers—by maintaining a civil tone and assuring callers that their problems would be addressed. If customers became too difficult, Smith had been directed to transfer them to a designated representative or sales coach manager.
Smith took approved, intermittent FMLA leave for an undisclosed health condition, something Smith said didn’t sit well with her manager, Michael Thompson.
She said Thompson ridiculed her for taking FMLA leave and called her an “FMLA queen.” Smith said Thompson refused to give her a code necessary to apply for a promotion, allegedly telling her that if she came to work for three months without taking FMLA leave, he would give her the code.
Irate customer, angry operator
In October 2007, Smith received a call from a customer who was upset that her phone service had been disconnected. When Smith offered to transfer the call to another department, the customer got mad. Then Smith’s tone allegedly became sarcastic.
When the customer told Smith that she would make sure Smith lost her job, Smith responded, “You need to watch your mouth speaking to me.” When transferring the call to a supervisor at the customer’s request, Smith remarked, “She’s crazy”—while the customer was still on the line. Then Smith threw down her headset.
Southwestern Bell conducted an investigation into the incident and decided to fire Smith, effective Dec. 11, 2007.
After Smith filed a formal grievance challenging the decision, she was offered a last-chance agreement that would let her keep her job, but remain subject to termination for any infraction within a 36-month probationary period. When she refused to sign the agreement, Southwestern Bell offered to reduce the term of the probationary period to 18 months. Smith still refused to sign.
You know what came next
Smith filed a lawsuit alleging that she had been fired in retaliation for taking protected FMLA leave. The trial judge granted summary judgment in Southwestern Bell’s favor.
Smith appealed the decision to the 5th Circuit Court of Appeals.
The 5th Circuit noted that the FMLA “protects employees from retaliation or discrimination for exercising their rights under the FMLA.” Southwestern Bell asserted it had fired Smith for mishandling the October 2007 customer call—not because she took FMLA leave. It argued that for Smith to prevail on her FMLA retaliation claim, she had to prove that the employer’s stated reason was actually a pretext for retaliation.
The 5th Circuit agreed with the trial judge that Smith failed to rebut Southwestern Bell’s legitimate, nondiscriminatory reason for her termination.
The court found that Smith relied on uncorroborated allegations in her own affidavit to challenge the company’s stated reason. In rejecting this evidence, the court held, “ have repeatedly held that self-serving statements, without more, will not defeat a motion for summary judgment, particularly one supported by plentiful contrary evidence.”
The court also rejected Smith’s claim that Southwestern Bell maintained a culture of hostility to employees taking FMLA leave. Thompson’s alleged labeling of Smith as an “FMLA queen,” the court found, did “not demonstrate a discriminatory motivation because it targets employees who abuse FMLA leave, not those who properly exercise their rights under the FMLA.”
Thus, the 5th Circuit upheld the lower court’s decision to dismiss Smith’s FMLA retaliation suit.
Lessons for employers
According to Michael Buchanan, a shareholder in Ogletree Deakins’ Dallas office, “This decision highlights the importance of discrediting self-serving and conclusory allegations in a plaintiff’s affidavit in opposition to summary judgment. Here, the court accepted the company’s argument that the plaintiff had not articulated any facts in her affidavit that suggested that the nondiscriminatory reasons it asserted for termination were pretextual.”
Scott Brutocao, a shareholder in the firm’s Austin office, said the case shows the value of treading carefully on discipline, even when it’s clear an employee is in the wrong. Example: Offering Smith a last-chance agreement. “The court used that gesture to show that the employer harbored no animosity against the employee, and in so doing affirmed the dismissal of the case,” Brutocao said.
