Employment Law Daily No FMLA violation shown by nurse with migraines fired for taking nap
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Wednesday, February 10, 2016

No FMLA violation shown by nurse with migraines fired for taking nap

By Dave Strausfeld, J.D. A hospital nurse who was fired after falling asleep in an unoccupied room where she had gone to deal with a migraine headache was not denied her rights under the FMLA, because although she had been approved to take intermittent leave for migraines, she had failed to notify anyone she needed to take a break, held a federal district court in Ohio, dismissing her FMLA claims on summary judgment. Also, even if she never intended to nod off, the hospital honestly believed its reason for firing her, so she could not show pretext (Lasher v. Medina Hospital, February 5, 2016, Boyko, C.). Fell asleep on the job. While working on an overnight shift, the RN began developing a migraine, so she left the room of the obstetrical patient she was monitoring, went into an unoccupied room nearby to watch the fetal monitor remotely, closed her eyes, and collapsed completely onto the bed. About 20 minutes later, a coworker noticed that the heart rate of the patient’s baby was not tracing on the monitor. After checking on the patient, the coworker searched for the RN and found her sleeping; upon being awakened, the RN said she did not realize she had fallen asleep. Because sleeping on duty was a major infraction, the RN was fired days later. The RN claimed she had a right to go into the other room briefly to deal with a migraine, because she had been approved for intermittent FMLA leave as needed if she developed migraine symptoms during her shift. She claimed that the hospital acted unlawfully in terminating her for doing so. FMLA interference. The undoing of the RN’s claim that the hospital interfered with her FMLA rights was that she neglected to inform anyone she was taking a break. She had been instructed by her supervisor that when she began to experience migraine symptoms, the proper procedure was to let the Nurse Operations Manager know she needed to remove herself for a period of time. Instead, the RN exited the patient’s room without alerting anyone at the nurses’ station or asking for assistance. Also, she never attempted to clarify her reasons over the next several days when her supervisor attempted to contact her at home, so no one knew for certain that she had been experiencing a migraine. “The FMLA does not require the Hospital to assume that the ‘illness’ that caused Plaintiff to leave her patient and lie down on the bed in a dark, unused room across the hall stemmed from an FMLA-qualifying medical condition,” the court declared. In short, the RN needed to show she gave notice of her intent to take FMLA leave, and she was unable to make this showing. FMLA retaliation. The RN’s claim of FMLA retaliation failed for a different reason: She could not prove pretext. The Sixth Circuit has adopted the “honest belief rule,” which says that so long as an employer honestly believed its proffered reason, an employee cannot show pretext even if the facts are later shown to be incorrect. The key inquiry is whether the employer “made a reasonably informed and considered decision.” Here, even though the RN denied she ever intended to take a nap, the hospital honestly believed she had violated its policy on sleeping, or at least she had not demonstrated otherwise. If the hospital had acted with an honest belief, even an incorrect one, its reason could not be a pretext for retaliation. Comparator evidence. In a further effort to show pretext, the RN relied on comparator evidence. But the coworker she chose was not a valid comparator, the court found, because her violation had nothing to do with sleeping on the job but rather with administering medication improperly. The RN and the alleged comparator were not similarly situated enough for a valid comparison to be made or for any conclusion to be drawn that the hospital applied its disciplinary policies selectively. Disability discrimination. Finally, the RN claimed she had been discriminated against based on her disability in violation of Ohio law. The court did not analyze this claim in detail, concluding simply that the same flaws that undermined her FMLA claims would necessarily defeat this claim too; in particular, she could not show that the hospital’s decision to fire her was pretextual.

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