Many employees (and some employers!) believe that remedial employment laws allow protected employees to commit workplace misconduct with impunity. As the reasoning goes, any discipline or termination would be attributed to the employee’s membership in a protected class and not to the objective misconduct at hand. Some employees even concoct complaints of statutory violations, either as a preemptive tactic when they sense that their standing is tenuous, or as a post-hoc strike suit after their termination. As yet another court recently showed, employers need not tolerate bad behavior from employees just because they are otherwise protected by employment law.
In Shinn v. FEDEX Freight, 18-3173, 2019 WL 3956511 (3d Cir. August 22, 2019), the company had recently promulgated a zero-tolerance policy regarding workplace violence. One employee stated in a public social media exchange with another employee that a third employee would “have an accident on the dock.” The plaintiff admitted that the conversation could be construed as threatening. However, he claimed that he was reassigned and then terminated because he took frequent FMLA leave.
Fedex showed that numerous employees availed themselves of FMLA leave. Moreover, the plaintiff had long availed himself of FMLA leave. Fedex had accommodated plaintiff on numerous occasions without incident, including around the time that the Facebook exchange occurred. The court held that the threatening exchange, and not any use of FMLA leave was the reason for the termination, and that no reasonable jury could believe that the concern over workplace violence was a pretext.
All employees, regardless of their status, are required to behave in the workplace. Employees cannot use employment law protections to immunize otherwise objectively bad behavior. This case shows, once again, that stalwart defense of a frivolous employment claim benefits an employer if they retain an attorney who is capable of careful statutory analysis.