By Cynthia L. Hackerott, J.D. A nurse who was fired from a surgical practice upon returning from several weeks of FMLA leave—purportedly violating the employer’s attendance policy two days prior to taking the leave—could go to trial on her FMLA interference claim, a federal district court in Arizona ruled. Several factual issues precluded summary judgment for the employer, including that she was discharged on the same day she returned; she was given permission to leave work from the surgeon with whom she was working; she was not admonished or otherwise disciplined for leaving early when the incident occurred; and the termination decision didn’t adhere to the employer’s attendance policy (Bachman v. Laser Spine Institute LLC , January 14, 2016, Campbell, D.). Leave, discharge. The employee, a Certified Registered Nurse Anesthetist (CRNA), left work early on November 13, 2012. She had sent a text message to her supervisor requesting permission to leave for a few hours to attend a doctor’s appointment to address an increase in blood pressure that she noticed the day before. The supervisor came to the operating room where she was working to discuss the matter, but left without explicitly approving or denying her request. When the supervisor did not return, and had not made arrangements for another CRNA to take over her immediate duties, the employee asked the physician with whom she was working for permission to attend the appointment. The physician did not object, and made arrangements for another CRNA to replace her. After briefing her replacement on the ongoing surgery, the employee left to attend her appointment. She returned a few hours later and completed her work for the day. Two days later, the employee began six weeks of medical leave to address outstanding health issues. During this leave period, she was recommended for reappointment, and granted privileges for two more years. When she returned on February 20, however, she was terminated, ostensibly based on the November 13 incident when she purportedly failed to follow company policy and abandoned her job duties. Factual issues remained. The employer did not dispute that the employee took FMLA-protected leave or that she suffered an adverse employment action immediately upon her return. Rather, it argued that it would have terminated her regardless of her FMLA leave because she violated its attendance policy. Several factual issues precluded summary judgment, however. First, the employer did not present any evidence that the employee was written up for the November 13 incident or that any of her supervisors suggested it was improper until shortly before she was terminated. Indeed, more than a month and a half after the incident, the employer reappointed her to active staff and granted her staff privileges. Policy violation questionable. Second, the evidence indicated that the employee did not, in fact, violate the attendance policy. Any unscheduled absence, including tardy arrivals and leaving early, constitutes an “occurrence” under the policy. Two occurrences in a 12-month period will result in “Documented Verbal Coaching,” three will result in a “Written Warning,” four will result in a “Final Written Warning,” and five will result in “Separation of Employment.” Thus, a single occurrence would not constitute grounds for termination. Further, even if her departure from work on November 13 could be characterized as a more serious “No call – No show,” the policy states that the first such event will result in a “Final Written Warning” and only the second would result in termination. Although “leaving work without authorization” was among 36 categories of possible infractions that could result in disciplinary action “up to and including immediate termination,” this list included such serious offenses as sexual harassment, sale of illegal drugs on the job, reporting to work intoxicated, and destruction of company property. A reasonable jury could conclude that the prospect of “immediate termination” applied to the more serious infractions, and that the detailed and precise schedule of corrective steps for absences from work would apply to the employee’s absence on the day at issue. Further, a jury could find that the employer did not follow its own schedule of escalating corrective actions in this case. Moreover, the employer did not dispute the reason she left early on November 13: to attend a doctor’s appointment to address a recently appearing medical issue; she had permission from the surgeon for whom she was working, and left only after securing and briefing a replacement; she texted her supervisor while away to apprise him of when she would return; and she returned to work later that day and completed her shift. For these reasons as well, a reasonable jury could conclude that the discharge decision was not based on a violation of policy. Suspicious employer behavior. In addition, the employee testified in her affidavit that the stated reasons for her termination, and the employer’s description of when the termination decision was made, changed over time. The facts alleged in the affidavit, which recounted a conversation she personally had with an officer of the employer, were within the scope of her personal knowledge, and could cause a reasonable jury to doubt the professed reason for the adverse decision. Finally, a reasonable jury could take into account the timing of the termination, which occurred immediately after the employee’s return from an extended FMLA leave and immediately after she informed the employer that further leave would be required.
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