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12 Jun 2021 | by devteam

Supreme Court finds no pretext, tosses Southwest Airlines worker’s FMLA suit

A dangerous joke . . . or a pretext (or cover-up) for illegal retaliation? A Southwest Airlines employee was terminated on March 9, 2015, for making a terror threat. He claimed the discharge was in retaliation for taking Family and Medical Leave Act (FMLA) leave, but the U.S. Supreme Court recently refused to hear his appeal, ending the case.

‘Leave’ note

Tate Clark, a former Southwest customer service agent, says his troubles with the popular airline began seven years ago when he requested FMLA leave for his migraines. Clark alleged that once the leave began, his supervisor gave him negative job reviews, and management and colleagues pressured him to resign.

As coworkers allegedly became more jealous of his frequent absences, Clark claimed the airline tolerated the retaliation by allowing them to leave a note for him that said “Leave.” The note was placed alongside a stack of transfer-request forms. Clark also argued to the Court that the company never took any of his complaints seriously and in-stead used pretext to get rid of him by conducting a sham investigation into the circumstances leading up to his termination.

‘Black trench coat’ comment

The Supreme Court refused to take up Clark’s case, which could have clarified the legal standards for mixed-motive FMLA retaliation lawsuits. In-stead, siding with the district court and the U.S. 5th Circuit Court of Appeals (whose rulings apply to all Texas employers), the Supreme Court said Clark had failed to show a causal connection between his FMLA leave and the airline’s decision to fire him.

More specifically, the lower court found Clark had been properly terminated for a nondiscriminatory reason. Just months before his firing, he allegedly commented to a coworker that he wanted to buy a black trench coat so he could conceal and bring a shotgun to work. The comment raised the alarm of several other employees who immediately brought it to the airline’s attention.

Clark was terminated after an internal investigation revealed he had indeed visited several online trench-coat and rifle stores on the day the comment was allegedly made.

Whom to believe in mixed-motive case?

Mixed-motive lawsuits, like the one Clark filed, usually contain evidence the employer had both lawful and discriminatory reasons for taking a particular adverse employment action. Not surprisingly, the legal standards in the cases (whether for employment discrimination or retaliation) can often seem as convoluted as the underlying facts themselves. Generally speaking, the employer has the burden to show the termination was triggered by a nondiscriminatory reason, while the employee bears the ultimate challenge to prove the offered reason was merely pretextual.

This simple-to-understand, yet hard-to-apply legal standard often gives rise to a showdown in the courtroom over a particular witness’ credibility and invites the court to scrutinize small factual details in a case in which the accusations are likely flying high and far. In Clark’s case, the Court found:

  • Southwest’s reasons were more credible;
  • The incidents Clark cited as evidence occurred nearly two years before the termination, thus weakening his argument for retaliation.
  • The airline continued to approve his FMLA leave up until the time of his firing, suggesting the decision to terminate was unrelated to his medical condition.

What this means for Texas employers

Even though Southwest was able to avoid a full hearing of the case before the Supreme Court, you should continue to take medical-leave discrimination and retaliation cases seriously. As you probably know, certain employers must provide up to 12 weeks of protected leave to eligible employees whose medical condition or family situation warrants it.

The FMLA provides that you may not retaliate against an employee for taking protected leave, but that doesn’t mean all discipline is off-limits. Instead, you should consider, as the courts did here, whether (1) any discipline has been handed down in close proximity to the protected activity and (2) the discipline would have occurred independently of any leave request. When employee misconduct is alleged, you should consider conducting a fair and impartial investigation and make diligent efforts to document and collect all evidence and testimony before making a termination decision. Finally, progressive discipline, to the extent applicable, should be followed to assuage the courts of any concerns about pretext.

If you find yourself in an employment discrimination or retaliation lawsuit, understand that it’s a time-draining and fact-intensive process. As Clark’s case shows, successfully defeating a claim often requires an employer to buckle up and pay close attention to all of the laws and facts of the employee’s allegations. For best practices in mitigating or defending against FMLA or other employment claims, please consult with your employment attorney.

This article was originally published on Texas Employment Law Letter by Jacob M. Monty, Monty & Ramirez LLP Managing Partner. For more information, please contact us online.


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