Did Profane Text to Boss Justify Termination?

For a long period of time, David Feeback enjoyed a prosperous tenure as an employee of a Swift Pork Company plant in Iowa.

He began as a production worker in 1988, working his way up the corporate ladder to a middle management position as a cut floor supervisor.

In 2015, when he was 60, he held the supervisor position.

Unsafe conditions alleged

In May of that year, Feeback complained to his direct supervisor, plant manager Todd Carl, about allegedly unsafe conditions on the work floor. Specifically, he said trolleys that transported hog carcasses were in such poor condition that carcasses were sliding off and endangering workers.

Feeback said the supervisor abruptly ended the conversation about the trolleys. He also says that when he raised the issue again a few weeks later, the supervisor hung up on him.

Feeback also says Carl's supervisor, general manager Troy Mulgrew, began displaying hostility toward him, including by interrupting a bathroom break.

Things got worse from there. Carl "accused Feeback of being 'asleep at the wheel' and letting his department run 'out of control.'"

On the last day of the year, things came to a head when Mulgrew called off a safety meeting Feeback had scheduled and sent employees home for the holiday.

After doing so, the general manager called Feeback and his supervisor to his office. Mulgrew "criticized Feeback at length. When Feeback tried to defend himself, Mulgrew said that 'he should be sitting there with his mouth shut and arms wide open.'"

Profane text

Later that evening, Feeback sent two text messages to the Mulgrew. The first was a simple and straightforward "F— You!," while the second said, "Believe who and what you want."

Mulgrew sent screenshots of the messages to Swift's head of human resources, who talked to Feeback about them the next morning. Feeback's explanation: He had sent the texts to the general manager by mistake; they were intended for someone else.

Why did he rescind the profane text or contact the Mulgrew to explain? In response to those questions, Feeback said he did not know how to rescind a text and had not yet seen the general manager that day to talk.

Five days later

That explanation did not fly, and five days later Swift terminated Feeback's employment, saying it did so because of the profane text.

Feeback sued, alleging age discrimination, retaliation, harassment and wrongful termination. After he dropped his retaliation claim, a trial court ruled against him on his remaining allegations.

An intermediate appeals court (Feeback v. Swift Pork Co.) then revived his age discrimination claim, saying that there was enough to keep that claim alive:

Beyond the possibility that the texts were not intended for Mulgrew and the cursory investigation, there's the company culture. Swearing was common. According to Feeback, "pretty much anything went when it came to language" and he notes over seventy-five instances when younger employees swore "at or in front of supervisors."

The district court found no discrimination because Feeback "lack[ed] [...] affirmative evidence that [...] age actually played a role in the decision to terminate his employment." We agree the record contains no comments from Carl or Mulgrew revealing discriminatory feelings toward Feeback based on his age.

High court says no go

But when the case reached the state's highest court (case), it ruled that the trial court got it right when it rejected the age bias allegation.

As to the investigation into the profane text, it said Swift "did not have much to investigate." It was undisputed that Feeback did not apologize to the general manager or explain the alleged miscommunication. He also admitted that he rarely texted the manager, which did not back his story.

Moreover, the court explained, the question was not whether Feeback sent the texts by accident; it was whether Swift honestly believed he was insubordinate. It did, the court said.

As to the alleged culture of profanity, the court said that while there was evidence that swearing was a common occurrence at the workplace, what Feeback did went a big step further.

Not the same thing

"There is a big difference between swearing around a boss and texting "F— You!" to the boss after he chewed you out," the court explained.

While there is a culture of profanity at the meatpacking plant, no other employee texted or said "F[—] You!" to the plant manager right after his negative performance review. While the plaintiff named other older employees who had been terminated over several decades, he had no direct evidence or any expert statistical analysis to show a company practice of discriminating against older workers. We hold this plaintiff lacked proof sufficient to raise a jury question on age discrimination.

The takeaway: The use of profanity by employees can support disciplinary action against them — and the fact some level of profanity is tolerated does not give employees a green light to use it on an unlimited basis without fear of disciplinary repercussions.