Employee's 'Fighting Words' Not FMLA Protected

The 9 ^th US Circuit Court of Appeals ruled in Denny v. Union Pacific Railroad that the employee’s acts in swearing at his supervisor and then offering to fight him after the FMLA denial were not protected under the leave law, Thompson.com said.

So, the appellate court ruled, the employer did not run afoul of the law when it fired the employee for his actions.   

Although a request for FMLA leave is generally protected by the statute, a three-judge 9 ^th Circuit appellate panel separated that request from the employee’s actions following the denial of his request for leave and upheld a lower court’s ruling that his insubordination was a firing offense.

Citing 9th Circuit case law, the appeals court said that an employee’s opposition 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, an employee’s insubordination and fighting words are not protected merely because the underlying subject is protected.”