TATUM — A Rusk County man suing his former employer at a Nacogdoches County biomass plant will have his case heard by the U.S. Fifth Circuit Court of Appeals later this spring.
“Doing the right thing cost me a career,” Brandon Tatum said of his six-year, three-month employment with Southern Power Co. at its Nacogdoches Generating Plant near Cushing.
He earned more than $110,000 a year plus $20,000 in benefits, but the father of two children, ages 8 and 6, is facing financial obstacles since Southern fired him while he was on medical leave in February 2017.
He says he was fired because he blew the whistle about plant safety concerns he raised to his supervisors, company officials and federal investigators.
Tatum’s battles aren’t only with Southern.
It took two years for federal Occupational Safety and Health Administration investigators to make headway on his complaints. It also required an extensive search for a lawyer after the first attorney Tatum hired dropped him as a client without notice days before his first unemployment appeal to the Texas Workforce Commission, he said.
“After two years of fighting tooth and nail, I’m legit broke,” Tatum said. “I’ve had to appeal each and every step of the process, meaning at every level I was systematically denied.”
Attorneys for Southern Power Co. have denied Tatum’s allegations and won summary judgment in the case Aug. 7. That’s when a federal judge ruled that the Family and Medical Leave Act policy was not evidence of an employment contract between Tatum and Southern, according to court documents. Southern also argued that FMLA wasn’t afforded to employees at the Nacogdoches Generating Facility because the plant had fewer than 50 employees and the company employed fewer than 50 employees within a 75-mile radius.
Southern Power, a subsidiary of Atlanta, Georgia,-based Southern Co., has a portfolio of 48 natural gas, wind, solar and biomass generating assets, according to the company’s website.
Katherine Britton, a Dallas-area attorney representing Tatum, is appealing the decision to the U.S. Fifth Circuit Court of Appeals with a defensive doctrine known as equitable estoppel. It prevents one party from taking unfair advantage of another.
“With the equitable estoppel argument, if you meet the elements, then you’re covered,” Britton said. “And if you meet equitable estoppel ... the court will say (that) even though you’re not covered, it will give you those federal rights.”
One of those elements is that the employer has “to make a definite representation to the employee that they’re covered,” and that a company has to post in the workplace that employees are protected under FMLA, she said. A second element is that the employee had to rely on that representation.
Britton argues that Southern had a global policy for all of its employees including Tatum, and that his reliance on that representation caused him harm in the form of termination.
Tatum “in fact took FMLA in the past,” his attorney said. “At the court case phase, (Southern) brought this up ... They terminated him while he was on leave, and that’s how this all came about. That’s the third element — the detriment.”
After briefings in January, the Fifth Circuit Court of Appeals agreed to hear the case. A hearing is scheduled in June in New Orleans, Tatum said.
“When an employee gets terminated legitimately, it’s generally well documented ... just to avoid these sort of cases,” Britton said. “Brandon was one of their best people, and throughout their whole case, no one has disputed that.”
Tatum’s personality of speaking his mind is what’s at issue about the months leading up to his termination, Britton said.
“He had been raising concerns about the safety of something he was working on, and after that point, he became the black sheep and nobody wanted to work with him,” she said. “Now, all of a sudden, it’s a problem.”
In October 2016, Tatum raised safety concerns to his supervisor — Operations and Maintenance Manager Terry Jenkins — about work done at the plant’s new compressed air building because he believed contractors weren’t following American Society for Texas and Materials standards for pipe welds. Tatum said he also brought those concerns to Southern’s human resources and ethics and compliance point people and externally to the federal Occupational Safety and Health Administration.
About three months later, as Tatum continued to voice the safety issues he had raised, Jenkins told Tatum to worry about his own job and not the pipe welds, Tatum said.
It was a disputed incident, however, that led to Tatum’s first disciplinary write-up in five years with the company.
On Nov. 29, 2016, he, two colleagues and Maintenance Team Leader Chris Honeycutt were in the plant’s control room involved in a “casual and lighthearted” conversation that at one point involved a supervisor’s instruction that all operators should use a grinder with a safety guard and face shield or risk losing their jobs, according to the lawsuit.
Two weeks later, Tatum was issued a Level 1 disciplinary report for which Honeycutt described Tatum’s action as an “outburst with an attitude,” and said that Tatum suggested how to fill an empty space on the control room wall by saying, “I know what you can paint on that wall. A mural of me ... holding a grinder in the other hand with no guard on it.”
Tatum said he never made the statements alleged by Honeycutt, and that he asked Ray to consult with another person in the room during the Nov. 29 conversation. Ray later told Tatum the disciplinary report would remain as stated and would cite the statements from Tatum and the other person in the room “as being untruthful,” according to the suit.
“On December 16, 2016, Mr. Tatum called Ms. Woods to discuss the disciplinary report,” according to the lawsuit. “During that conversation, Mr. Tatum told Ms. Woods that he was concerned that the disciplinary report was written in an untruthful manner, was being used to retaliate against him because of the safety concern he raised in October 2016, which is the subject of an ongoing OSHA investigation and were done to ‘set him up’ for future disciplinary actions, which he felt management would use to justify his termination.
Tatum wanted Woods to file the complaint so that there would be a record, but Woods instead told Ray about the conversation and didn’t file Tatum’s complaint, he said.
In the weeks that followed, Tatum suffered health issues involving his blood pressure. He also noticed that another Southern employee wasn’t following the company’s clearance procedures which created another safety risk, he said.
On Jan. 20, 2017, after noticing improperly tightened Hex nuts on pipe flanges in the compressed air building, an intense conversation ensued with Ray, Tatum said. When Tatum felt tightness in his chest during the conversation, he was allowed to leave work early before a medical appointment.
Tatum was later diagnosed with hypertension, and went on medical leave the evening of Jan. 20, 2017, he said.
Two weeks later, on Feb. 1, 2017, Tatum was asked by text message to come to the plant “just to talk.” In that meeting the next day, Southern terminated Tatum’s employment and benefits on the grounds that “he failed to timely report what he believed to be an unsafe and highly dangerous work condition,” he said in the suit.
In a separate federal motion, attorneys for Southern Power denied the allegations, saying that Tatum’s FMLA claim should be dismissed because the plant nor its parent company didn’t employ 50 or more people — a threshold for companies to meet FMLA requirements.