Employer Justified in Terminating Insubordinate Employee in FMLA Case

Volume 5, Issue 6
May 23, 2006

In the surprising decision of Denny v. Union Pacific Railroad Company, No. 04-35490 (9th Cir. March 9, 2006), a panel of three Ninth Circuit judges upheld a judgment in favor of an employer sued by an employee who claimed he was discharged in retaliation for requesting leave under the Family Medical Leave Act ("FMLA"). The Court agreed with the lower court's finding that the employee was terminated for swearing at and threatening his supervisor, not because he requested FMLA leave.

After awaking with severe back pain, the employee, Jeff Denny, requested the day off under his FMLA intermittent leave. His supervisor, Ben Ritter, denied the request. Denny then visited the work facility to discuss the issue with Ritter in person. At the facility, Denny and Ritter had a heated argument during which Denny swore at Ritter and suggested that they "take it outside." Denny was discharged that same day.

After a four-day trial, the district court ruled that Denny's request for medical leave was not a "negative factor" in the decision to terminate him and that the employer fired him because of his heated exchange with his supervisor, his profanity, and his statement regarding "tak[ing] it outside." The dissenting judge found that because Denny's conduct toward Ritter "stemmed directly from [his] legitimate request for leave" it was protected as oppositional conduct under the FMLA's anti-retaliation provision. The dissent argued that profanity was common in Denny's workplace and that the Court previously recognized that "the use of profanity cannot be the basis for an adverse employment decision when the profanity is in response to an employer's interference with a protected activity." The majority of the Court, however, rejected these arguments and held that employee's oppositional activity is "protected only if it is reasonable in view of the employer's interest in maintaining a harmonious and efficient operation." In other words, the Court concluded, "an employee's insubordination and fighting words are not protected merely because the underlying subject is protected."

This pro-employer ruling demonstrates that at least a portion of the Ninth Circuit Court is not willing to provide overly-broad protection to employees' oppositional conduct under the FMLA's anti-retaliation provision. Employers should be free to enforce reasonable workplace conduct rules against employees who are seeking FMLA leave, or otherwise exercising their protected rights, provided that such rules are enforced in a non-discriminatory manner.

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