Labor & Employment Law Daily Negative reactions to nurse’s lactation breaks, cat’s paw theory support Title VII claims
Friday, September 28, 2018

Negative reactions to nurse’s lactation breaks, cat’s paw theory support Title VII claims

By Lorene D. Park, J.D.

Denying summary judgment on a nurse anesthetist’s claim that she was discriminated against because of her status as a breastfeeding female, a federal district court in Illinois pointed to evidence that she received high praise until after she returned from maternity leave and started taking breaks to express breast milk. The employee received negative comments about her breaks and allegedly was constructively discharged for not properly monitoring a code-blue pager, which was a duty she had never been given before and for which she received no training. Under the cat’s paw theory, evidence of the department chief’s animus could be imputed to the review board that decided she should be terminated. Her retaliation claim survived based on the same evidence, but her FLSA claim failed because she conceded the alleged interference with her lactation breaks caused no damages (Safrithis v. Shulkin, September 25, 2018, Dow, R., Jr.).

The employee was a certified registered nurse anesthetist (CRNA) at a VA medical center in Chicago. She was assigned to provide anesthesia services to patients during surgery and was required to stay at a patient’s bedside during the entire procedure to monitor the patient. To take a break, a CRNA had to find coverage by an attending physician, resident, or other CRNA.

High praise before maternity leave. In 2014, the employee learned she was pregnant. It was high risk due to her age and hypertension but when she asked the chief of anesthesiology to work offsite less frequently, he refused and said she should “be able to do everything like everybody else.” She later took her maternity leave and returned in January 2015. She had received “high satisfactory” ratings and the chief described her as “very conscientious,” as giving “number one priority” to patients, and “competent,” but things changed after her return from maternity leave.

Breaks to pump breast milk. When she returned, the employee planned to take breaks every two hours to pump breast milk for her baby. She used the locker room or the CRNA office, both of which had locked doors but no sink. The VA campus had a dedicated lactation room, but the employee found it to be too far from the anesthesia department, though the VA did open one in her building in April. She was paid for the time she spent pumping breast milk.

Negative reaction to breaks. According to the employee, she experienced discrimination and harassment because she was a breastfeeding female. Her first day back, she asked for a break to pump milk and a doctor said ok because she had “not done anything all day.” Another CRNA testified that her afternoon pumping was an inconvenient time for attendings and some of the doctors were frustrated with it. Indeed, the employee testified that one doctor would ask how she could be reached, told her to alert the group when she went to pump, and pounded on the door while she was pumping breastmilk to ask what she was doing and whether she had to pump at that time. On March 24, she wrote the chief a letter complaining about that same doctor, who had asked her to relieve another CRNA for a break and reacted negatively when she said she needed to go pump instead. When she finished 30 minutes later, the other CRNA no longer needed a break.

Code-blue pager incident. If a patient went into cardiac or respiratory arrest, a code-blue pager would sound an alarm so a representative from anesthesia would immediately respond (along with representatives from other departments). The individual responsible for the code-blue pager must immediately respond and if her tour of duty ends for the day, must physically hand the pager to another staff member so it is always covered. Though the employee had never been responsible for holding the pager or received training on it, on March 30, one of the attending physicians told the resident holding the code-blue pager to give it to the employee because the resident was needed to assist with a surgery. At some point later, the employee spoke to the attending by phone about another matter and overheard comments indicating the surgery was done, so she believed he and the resident would be returning to the anesthesia department soon. A bit later, feeling she could no longer wait to pump, she put the pager in the resident’s room and left to pump breast milk. The physician found the code-blue pager completely unattended.

Resignation in lieu of termination. In May, the chief sent an email to the entire anesthesiology group regarding phones that were provided to all staff and stated that all attending physicians, CRNAs, and techs were to have them active and on their person during their tours of duty. About a week later the employee told the chief and other doctors she would not bring her phone in while pumping because it was a stressor that made it hard to express milk. Later in May and again in June, the employee was unreachable by physicians on her phone because she was expressing milk. In the June incident, the doctor then texted the employee on her personal phone and the employee allegedly had trouble expressing milk and had to stop pumping as a result.

Thereafter, the chief of the department and other physicians discussed the code-blue pager and other incident and a summary review board was convened to review her conduct. The chief reported three incidents of misconduct, including the refusal to carry her phone while on break, the pager incident, and the refusal to take over for another CRNA to give him a break. The board, which was made up of four individuals who the employee did not know, sustained only the allegation that she failed to properly hand off the code-blue pager. As to that one charge though, it risked the health and safety of patients and was sufficient to warrant separation. She was given the option to resign instead, and she did so in June. She later sued.

No damages, so no FLSA claim. Granting summary judgment against the employee’s FLSA Section 207 claim, which alleged that the employer interfered with her ability to take lactation breaks, the court explained: “Section 216(b) of the FLSA establishes the mechanism for private enforcement of Section 207, but it limits a plaintiff’s recovery to unpaid wages and overtime.” Here, the employee effectively conceded that she cannot show such damages.

Discrimination and retaliation claims proceed. Summary judgment was also granted against any allegation of sexual harassment independent of the employee’s alleged constructive discharge, because she did not include sexual harassment in her EEOC charge and it was not “like or reasonably related” to the claims in her charge. However, she raised triable questions of fact on her Title VII discrimination and retaliation claims, so the motion was denied on those.

Constructive discharge. The court found that based on the evidence, a reasonable jury could infer the employee’s internal complaints and status as a breastfeeding female caused her to be constructively discharged. Before she returned from maternity leave she received positive reviews and even when she returned she had the highest workload of all CRNAs and handled the most complex cases. She also presented evidence indicating that coworkers thought highly of her.

Still, the employee repeatedly complained that she was being harassed over her breast milk breaks. Days after her complaint about the June incident when a doctor texted her personal phone and interrupted her lactation, it appeared that the chief and attending physicians began collecting information regarding the March incident involving the code-blue pager and the review board was convened days after that. That same month, one of the attending doctors told the employee “we just want to get rid of you” and “we don’t want you here anymore.” Given all of this, a jury could find the department chief’s initiation of the summary review board, which resulted in the employee’s constructive discharge, was motivated by discriminatory or retaliatory animus.

Suspicious timing suggested pretext. While the chief testified that abandoning the code-blue pager in March was dereliction and grounds for board review, the court noted that he waited until June to request review, and in the meantime, had signed documents to reappoint the employee. If the code-blue pager incident was as serious as now argued, the court would have expected him to request the board review immediately, not months later. This raised triable issues on pretext.

Cat’s paw theory. Because the chief was not the ultimate decisionmaker, the court considered whether any discriminatory or retaliatory animus on his part could be attributed to the members of the summary review board. Relying on the cat’s paw theory, the employee identified sufficient evidence for a reasonable jury to find that the department chief’s action was “a causal factor of the ultimate employment action.” Specifically, the summary review board’s review of the employee’s conduct was initiated by the chief and was based on his input, including his stated concern that her performance was a patient-safety issue related to the code-blue pager incident. For these reasons, summary judgment was denied on the discrimination or retaliation claims.

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