By Tulay Turan, J.D.
Although the nurse was told at a meeting where performance issues were discussed that termination was “not on the table” and she received a suspension instead, after she requested leave, the hospital terminated her.
Denying a hospital’s motion for summary judgment on a nurse’s interference and discrimination claims under the FMLA and the Oregon Family Leave Act (OFLA), a federal district court in Oregon found there was a genuine issue as to whether the nurse’s leave request was a factor in the hospital’s decision to terminate her. While the nurse was the subject of several incident reports and had been suspended for her conduct, she was terminated one day after requesting leave to care for her mother. The temporal proximity between her leave request combined with statements from an HR representative about the nurse’s termination could lead a reasonable juror to conclude that the nurse’s leave request was a factor in her termination (Miller v. St. Charles Health System, Inc., December 16, 2019, Sullivan, P.).
The nurse started working at the predecessor to St. Charles Prineville, Pioneer Memorial Hospital, in September 1999. The hospital used an incident reporting system, known as the Safety Alert System (”SAS”) or Event Management System (”EMS”). From April through the end of July 2016, the hospital received three such reports regarding the nurse. On July 27, her manager spoke with her and provided her with a documented “Verbal Coaching.”
Written warning and request for leave. In February 2017, four incidents were the subject of SAS reports involving the nurse. On March 2, her manager, an HR representative and a union representative met with her to discuss the incidents. That same day, email correspondence between the manager, hospital management and HR staff indicated that termination “was not on the table,” but a “final written corrective action with a performance plan” would likely be administered. The meeting resulted in a two-week administrative suspension.
After the meeting, the nurse asked her manager for permission to take leave to care for her mother. The manager said she could not take leave while she was already on administrative leave. The following day, the manager completed a seven-page investigative report analyzing the February 2017 SAS reports. As a result of the report, on March 15, the nurse was issued a final written warning. At that time, she again requested leave to care for her mother. To return to work, the nurse was required to complete nine “competencies,” which she did on March 17 and 18. She requested leave beginning on March 25 for own serious health condition and leave beginning on April 7 for her mother’s condition. On March 27, the leave administrator informed her that she was eligible for leave as of the date of her request.
Termination. After another SAS incident that was reported on March 19, the hospital terminated her employment on April 5. The nurse filed four claims for relief, including interference under the FMLA and the OFLA and discrimination under the FMLA and the OFLA. The hospital filed this motion for summary judgment on all four claims.
Was notice sufficient? As an initial matter on the interference claims, the court found there was a genuine issue of material fact as to whether the nurse sufficiently supplied notice of her FMLA leave request. The nurse expressed her desire to take leave in two meetings in March 2017. To the extent her manager or others present at the meetings required more information about whether FMLA leave was being sought, they were required to inquire further.
Was leave denied? The court also found there was a triable issue of fact as to whether the nurse’s manager’s statements that she could not take FMLA leave constituted a denial of her FMLA benefits to which she was entitled. Accordingly, summary judgment was not appropriate as to her theory that she was denied leave.
Negative factor theory. Turning to the nurse’s interference claims under a theory that her FMLA leave was a factor in the hospital’s decision to terminate her (negative factor theory), the court again found summary judgment was not appropriate. The nurse asserted that during the March 2, 2017, meeting, termination was not on the table, but after she asked for leave, her manager completed the investigation and terminated her. Although the hospital asserted it terminated her employment based on performance related-issues, the court focused on the chronology of her request and her termination, rejecting the hospital’s proffered reason for the adverse employment action.
Discrimination. Likewise, on the discrimination claims, the court found summary judgment was inappropriate on the negative factor theory because a rational juror could find the hospital considered the nurse’s leave request as a factor in its decision to terminate her. Significantly, her manager’s investigation concluded on the day immediately following her leave request and then he recommended termination.
Further, the HR representative sent an email stating that his “concern is that the union or arbitrator will be able to say that her performance has taken such a dramatic dip due to her mother being sick – or that we terminated her right when she was getting ready to take protected leave.” The HR representative also made a statement at the April 5, 2017, meeting, that the nurse’s “leave was for a future date of 4/7 so [we] decided to take action now rather than waiting for you to return.” These statements, as chronicled in the notes from the nurse’s union representative and undisputed in the summary judgment record, could allow a rationale juror to conclude the nurse’s pending FMLA leave was a factor in the decision to terminate her employment. Thus, the court denied the hospital’s motion for summary judgment on the discrimination claims.
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