By Kathleen Kapusta, J.D.
Evidence that a nurse was suspended 18 days after filing an EEOC charge, when combined with alleged statements by an employee relations (ER) manager that she would be fired because of her complaints, “we’re sick of hearing from you,” and “she made a big mistake by going to the EEOC,” was sufficient to support her Title VII and state law retaliation claims, ruled a federal district court in Pennsylvania. Her FMLA interference claim, in which she alleged she was forced to come into work despite needing leave to take care of her sick son, also survived summary judgment as did her defamation and interference with contractual relations claims (Betz v. Temple Health Systems
, January 13, 2106, Pappert, G.).
The nurse claimed that throughout her tenure with Temple Health Systems, she had “no problems whatsoever” until she was temporarily assigned to work in a medical/surgical unit. She alleged that the other nurses in that unit constantly grabbed and touched each other inappropriately and once grabbed her “right in the back of my butt.” She claimed she was told that she was going to be fired because of her numerous complaints. After her friend was fired, she was purportedly told “if you don’t shut your mouth, you’re next because you already complained and we’re sick of hearing from you.” Despite this, she continued to complain about bullying, harassment, and intimidation.
Several months later, the employee was transferred to a different floor where she was accused of, among other things, making an error in administering medication to a patient, which she denied. While the incident was being investigated, she filed an EEOC charge. She then took a leave of absence. During the leave, she requested intermittent FMLA leave to tend to her ill son. Although the leave was approved, she was told to come into the hospital for a meeting where she was suspended because of the medication error. Terminated several weeks later, the employee brought claims under Title VII, the FMLA, and the Pennsylvania Human Relations Act, as well as common law claims for defamation and interference with prospective employment contracts.
While the 18 days between the filing of the EEOC charge and the employee’s suspension may not have been sufficient on its own to establish a prima facie case, when combined with the ER manager’s comments it was enough to shift the burden to the employer. The alleged comments were also sufficient evidence from which a factfinder could conclude that retaliation was a motivating factor in her termination. Although Temple argued that the employee’s deposition testimony about the alleged statements was self-serving and unsubstantiated, the court observed that it up to a jury to assess the employee’s credibility.
At issue on the employee’s FMLA interference claim was whether she provided sufficient notice of her intent to take leave. While it was unclear as to what notice she gave and when she provided it, the evidence showed she was out on some combination of sick leave, vacation days, and FMLA leave after filing her EEOC charge. She testified that she was only allowed to take a day or two of FMLA leave and was then told she had to return to work. To the court, the record suggested she told Temple she needed additional time to care for her son and it responded by telling her she needed to come into work. Thus, fact issues remained regarding whether the employee gave sufficient notice of her intent to take FMLA leave on the date she claimed.
As to Temple’s assertion that summoning the employee while she was on leave for a meeting that would have taken less than an hour did not constitute FMLA interference, it did not cite to any support for this proposition. Observing that the Third Circuit has made clear that “[i]n order to assert a claim of deprivation of entitlements, the employee only needs to show that he was entitled to benefits under the FMLA and that he was denied them,” the court found the question of whether Temple interfered with the employee’s FMLA benefits was a question more properly addressed by the jury.
Defamation and interference.
In support of her defamation and interference claims, the employee relied on affidavits from her sister and an acquaintance stating that they were each interested in hiring her for a nurse and that each had called Temple and were referred to a nurse recruiter who told them he would not recommend hiring her because she “had become a problem” and was a “liability.” Temple asserted that the recruiter never talked to either individual, he did not field those types of reference calls, and it did not provide employment references over the phone. It also disputed the legitimacy of their need for a reference based on their familiarity with the employee.
Pointing out that Temple elected not to depose either individual and was now asking for credibility determinations as to the truthfulness of the affidavits, the court explained that “If there are as many questions surrounding the veracity of the affidavits as Temple contends, it will have ample opportunity to exploit them when cross-examining [the individuals] at trial.”