Labor & Employment Law Daily ‘Exemplary’ hospital employee fired for ‘stealing’ time by clocking in at home proceeds with gender bias, retaliation, leave-related claims
Friday, August 28, 2020

‘Exemplary’ hospital employee fired for ‘stealing’ time by clocking in at home proceeds with gender bias, retaliation, leave-related claims

By Brandi O. Brown, J.D.

She claimed that she clocked in because she was doing work at home, while also utilizing approved FMLA time to deal with disabled son, and that the employer, who accused her of ‘stealing’ time, nevertheless retained and promoted a male employee who had admitted to stealing.

A federal district court in California denied, in its entirety, a motion for summary judgment sought by an employer against a female hospital director’s claims under the FEHA for gender discrimination, gender harassment, retaliation, wrongful discharge, and CFRA leave-related violations. The employee alleged multiple instances of differential treatment between her and male employees, up to and including the circumstances under which she was fired. She also presented evidence that she reasonably believed she was exercising her FMLA/CFRA rights on the mornings she worked from home while tending to her autistic son. The court also denied the employer’s motion with respect to punitive damages (Wasche v. Orchard Hospital, August 21, 2020, England, M., Jr.).

Required to jump through hoops for raise. After six years working for the employer, during which time she received several promotions, the employee sought a recently vacated director position. She was given the position and promoted, but was told by the new CEO she would only receive the same pay as her predecessor if she obtained additional certifications. She got the additional certifications and eventually received the raise. However, around the same time a less-qualified male employee was also promoted but he was not required to obtain additional certifications. According to the employee, she complained about this differential treatment, to no avail. She also alleged that the CEO withheld resources from her, while at the same time providing additional resources to male directors.

Reclassification and work from home. Approximately one year after she took the director position, the employee’s job, along with the jobs of all other female directors, were reclassified as non-exempt by the employer. She claims that the job could not be performed within the course of regular work hours, which meant that she also worked from home. She also did some work at home at times, usually in the morning, because of her autistic child’s behavioral issues. Her supervisor, who was aware of the situation, suggested that she apply for FMLA leave but also told her not to worry and to “just do what you got to do.”

Thereafter, she took what she understood to be intermittent FMLA leave and, on her supervisor’s advice, managed her time as she saw fit. Her FMLA leave request ultimately was approved, but HR told her she could not work from home and would have to use PTO. Her supervisor, however, told her to keep doing what she was doing and testified that she knew the employee took intermittent FMLA leave to care for her son some mornings.

Fired for “stealing.” However, things came to an abrupt halt when one morning someone was looking for the employee and could not find her, even though she had clocked in. The manager who was looking for her later saw her arrive to work and reported it. The employee confirmed that she would clock in while at home some mornings while she was working or checking emails, after which she would drop her son at school and then drive to work. Although her supervisor testified she did not believe the employee was lying and that, if it had been up to her the employee would still be working at the hospital, the employer, on the decision of the CEO, nevertheless fired her for “stealing,” citing a “zero tolerance” policy. The employee brought suit. The employer moved for summary judgment. It was denied in its entirety.

Gender discrimination claims survive. First, with regard to the employee’s gender discrimination claim under the FEHA, the court rejected the employer’s arguments regarding adverse action and causation. The employee alleged that the male CEO expected her to perform work that was above par, based on the fact that she was female, that he ignored her when she raised concerns, that he denied her the resources to do her job while approving resources for departments headed up by male employees, and by reclassifying female employees as non-exempt. She also alleged that her pay raise when she was given the director position was delayed because of her gender. The court identified several clearly adverse employment actions in her claim, including the denial of equivalent pay and job status, withholding of necessary resources, and termination.

Evidence of causation. Regarding causation, a trier of fact could reasonably conclude that the adverse actions the employee alleged were based on her gender. She presented evidence that she was more than qualified for the raise without the need for additional credentials. With respect to the classification as non-exempt, which was applied only to female directors, the court noted that the employee subsequently received a job description that confirmed her needed to be available on a 24-hour basis, which runs counter to the non-exempt classification.

Furthermore, alongside that evidence of animus, there was evidence tying the employee’s termination to her gender. During her eight years of employment she had been an “exemplary employee,” had a record clear of any disciplinary proceedings, and, according to the record before the court, seemed to have “been working around the clock without compensation in any event.” Nevertheless she was summarily fired for “‘stealing’ a small sum of money. Meanwhile a male employee who lost his pharmacy license and could no longer do his job for the hospital as a pharmacy tech because he had stolen thousands of narcotics from his previous employer, a charge that he admitted, was simply transitioned into another role, and later was even promoted.

Accordingly, the employer’s motion for summary judgment, including a claim for punitive damages, was denied.

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