Earlier this year, EmployNews reported a decision where an employer legitimately terminated an employee for verbally abusive behavior during an EEOC mediation. This was not deemed retaliatory, but the article cautioned employers against taking disciplinary action when involved in a legal dispute with a current employee, especially when such action is based on the employee's reaction to the legal process itself. This cautionary advice is confirmed by a new decision from the Fifth Circuit Court of Appeals, which rejected an employer's assertion that an employee's reaction to FMLA paperwork requests justified his termination.

In Ion v. Chevron USA, Inc., the plaintiff had been experiencing workplace stress, and was referred to the company's EAP. The counselor recommended that the employee be placed on FMLA leave, and he was asked to fill out FMLA paperwork. According to the employer, the plaintiff was angry and disgruntled when faced with this request, and engaged in "passive/aggressive harassment" of the human resource and clinical staff. Chevron terminated him, noting poor work performance, although the written notice did not mention the FMLA incident.

The Fifth Circuit reversed a grant of summary judgment for the employer. The court said that there were legitimate factual questions as to whether the employer would have fired the plaintiff even if he never requested FMLA leave. The Fifth Circuit noted the vague reasoning provided with respect to the incident, as well as its absence from the formal termination paperwork provided to the employee.

Employees often become frustrated when faced with HR procedural requirements, or when told that the company will not agree to certain requests. Due to the possibility of retaliation or interference claims, employers should tolerate some employee expression of anger or frustration with this process without considering this grounds for disciplinary action. Employers should only consider serious responses such as termination in circumstances where the employee's reaction becomes so uncivil or violent that no reasonable company would be expected to tolerate it.