Employment Law Daily Nursing mother may have been fired due to conflict over lactation accommodations
Tuesday, December 19, 2017

Nursing mother may have been fired due to conflict over lactation accommodations

By Cynthia L. Hackerott, J.D.

Fired from her job after several months of conflict with her supervisors about whether she must use a designated lactation room to express milk, an employed nursing mother could proceed to trial on her Title VII and Connecticut Fair Employment Practices Act (CFEPA) discrimination and retaliation claims, a federal district court in Connecticut ruled. First ruling that a nursing mother’s ability to engage in nursing-related activity like expressing breast milk is subject to protection from discrimination under both Title VII and the CFEPA, the court also concluded that the plaintiff here presented factual issues to support her prima facie burden and to sufficiently cast doubt on the employer’s explanation that she was terminated because she improperly accessed the medical records of a relative of one of her coworkers (Grewcock v Yale New Haven Health Services Corp., December 12, 2017, Meyer, J.).

The defendant Yale-New Haven Health Services Corporation employed the plaintiff as a “clinical bed manager,” responsible for oversight of all patient admission, discharges, and transfer activity. Two months after giving birth in October 2013, she returned to work from maternity leave. Upon her return, she used the office she shared with a colleague to express breast milk. Her direct supervisor at the time told her that she had no problem with this situation and even permitted the plaintiff to express milk in her own office when the plaintiff’s office was occupied.

Lactation room memo. Following almost a year without incident, the employer decided to require that the plaintiff use a designated lactation room. By December 1, 2014, the plaintiff had a new direct supervisor, who forwarded to department employees an email from the director of Patient Finance and Admitting Services instructing all nursing mothers to use the hospital’s private lactation rooms due to discomfort apparently voiced by “surrounding staff.” At the time, the plaintiff was the only nursing mother in her department.

Emails to VP. Nevertheless, the plaintiff started using the hospital’s lactation rooms, but she had difficulty finding rooms that were not already occupied, and her absences took a toll on her workflow. After an incident where she was unable to fully address a situation involving the arrival of a Life Star Helicopter, the plaintiff wrote an email, on December 5, to the Vice-President of Corporate Business, who was the direct supervisor of the plaintiff’s former direct supervisor. In that email, she said she wanted to formally invoke the grievance process. Responding on the VP’s behalf, the Executive Director of HR told the plaintiff that her complaint did not fall within the scope of matters that could be grieved.

On December 8, the plaintiff again emailed the VP to stress her dissatisfaction with the policy, to request to meet with him, and to state her concern about the HR executive director’s “bias” in the handling of the issue, because the HR executive director had told her she had been “‘accommodated with breast feeding long enough and it’s time to return to business as usual.’”

The VP responded the following day, saying he would be happy to meet with the plaintiff but didn’t think it was necessary because the employer had “facilities available to meet [her] needs,” and that the employer needed to consider the needs of her coworkers. Although the plaintiff responded that she would continue to use the lactation rooms, she did not always do so, thereby upsetting her supervisors. According to the plaintiff, both her new and previous supervisors would frequently enter her office without knocking, to try to catch her expressing milk. Further, she testified that the director became hostile toward her after she attempted to file her grievance with VP.

Bathroom stall incident. At a December 23 meeting to address these issues, the director reiterated the policy that staff members who choose to express milk must utilize one of the lactation rooms. Around that time, the HR executive director told the plaintiff she was not facing a disciplinary write-up for recently expressing milk in her office. On January 23, 2015, the plaintiff resorted to using the bathroom when she had a particularly urgent need to express milk. Her direct supervisor entered the bathroom, peered through the cracks of the stall, asked the plaintiff if she was expressing milk, reiterated that she was not allowed to do so, and ordered her out of the stall. When she did not immediately emerge from the bathroom, the director, who was waiting outside, yelled at the plaintiff for pumping in the restroom. When she emerged from the bathroom, the director took her to her office to discuss the issue. Once there, the plaintiff explained why she had to use the bathroom, and she noted that other departments routinely permit nurses to express milk in offices and break rooms. Unmoved, the director responded that she did not care about plaintiff’s explanation or the fact that other departments in the hospital had a more lenient policy.

In February, the plaintiff emailed the HR executive director again to seek a more convenient accommodation and address her concerns about the bathroom stall incident. On March 3, the director, the HR executive director, and the plaintiff’s direct supervisor met to discuss these issues and it was agreed that the plaintiff could use the bathroom.

On March 24, the plaintiff electronically accessed the medical record of a relative of one of her supervisors and viewed various screens for a total of less than 20 seconds. According to the plaintiff, she did so to ascertain where the patient may need to be transferred. This patient’s chart was one of a number of charts she reviewed that evening. Although the department to which this patient was to be transferred had its own bed managers, clinical bed managers in the plaintiff’s department routinely reviewed such records. She claimed she did not surmise that the patient was related to a hospital staff member until she had accessed the file.

The next day, the director requested an audit of who had accessed that particular patient’s chart, which revealed that 15 unique users of the system accessed the chart, including the plaintiff. While the director was conducting her inquiry into the plaintiff’s review of the patient’s chart, the plaintiff continued to press the lactation accommodation issue with the director and suggested that she may become pregnant again in the future. As part of the investigation, the plaintiff explained that it was part of her normal responsibilities to access the patient’s record, but her superiors did not agree. On April 10, she was told that the director and VP had decided to terminate her for violation of the hospital’s privacy policy and the Health Insurance Portability and Accountability Act (HIPAA). The plaintiff filed a grievance regarding her discharge, but the VP upheld it, concluding that she lacked a “bona fide business need” to access the chart as it was outside the scope of her employment.

Sex and pregnancy discrimination claims. The court first addressed whether the plaintiff’s situation was covered under Title VII and the CFEPA. Noting that the Second Circuit has yet to address whether a plaintiff’s nursing mother status is a “related medical condition” under Title VII and the PDA, the court pointed out that the Fifth and Eleventh Circuits have “sensibly” concluded that lactation is a pregnancy-related medical condition that qualifies for protection from discrimination. Moreover, nothing in Connecticut law suggests that the Connecticut Supreme Court would construe CFEPA, which has language similar to Title VII on this point, more narrowly than the federal courts to date have construed Title VII, the court concluded.

After finding that the plaintiff’s history of positive performance reviews demonstrated she was qualified for her position, the court stated that her termination was an adverse employment action. Thus, the only remaining prima facie element was whether the circumstances gave rise to an inference of discrimination. The court found that they did, observing that almost immediately after the change in the lactation policy in December 2014, tension between the plaintiff and her supervisors arose. This proximity in time, coupled with the direct involvement of a supervisor both in the lactation-related confrontations and the decision to terminate the plaintiff, was sufficient to raise an inference of discrimination.

Pretext. Moving on to the issue of pretext, the court noted the defendant’s explanation that the plaintiff was terminated for violating HIPAA and hospital policy by improperly accessing a patient chart without a business reason for doing so. The employer pointed out that the supervisors who investigated the plaintiff for accessing the patient’s chart before and after her termination concluded that there was no policy or practice that necessitated her accessing the chart in the specific circumstances involved. Moreover, a male paramedic was also terminated for accessing the same patient’s chart, and the employer engaged in pre- and post-termination investigations of the plaintiff’s grievance.

The plaintiff, however, contended that her act of viewing the chart for less than 20 seconds was within the scope of her duties and that sex-based discrimination was at least a substantial motivating factor for her discharge. She testified that, in her role as clinical bed manager, she screened for what a patient’s needs were, including patients who were in the emergency department. While the patient in question was going to be transferred to a department with its own bed managers, the plaintiff and her colleagues routinely accessed such patients’ records to assess whether they had any medical needs. The plaintiff’s coworker supported this description of the plaintiff’s duties, stating that she engaged in “the usual triaging.” In addition, two job descriptions—dated November 2010 and September 2014—stated that the position was responsible for oversight of all patient admissions, discharges and transfer activity while monitoring capacity both currently and prospectively and was “the liaison between all points of entry, [various staff], and inpatient bed resources throughout the institution.” About three months after the plaintiff’s termination, her job description was amended to exclude the department to which the patient in question was set to be transferred.

Based on this evidence, a reasonable jury could conclude that defendant’s decision to terminate the plaintiff’s employment was substantially motivated by her nursing-related activity and that the employer’s stated reason for firing her was at best incomplete. The plaintiff offered substantial arguments that what she did was within the scope of her job responsibilities and that the investigation of her access to the patient’s chart arose in circumstances of discriminatory hostility against her. It was, indeed, the director, who had been at the center of the conflict over the plaintiff’s lactation, who requested the audit of the patient’s chart that in turn led to the investigation that she spearheaded, and the director was also, at least in part, responsible for the termination decision.

Reprisal. Even though the plaintiff did not expressly allege a claim for retaliation, the court addressed it because the complaint referred to retaliation and the allegations of discrimination were intertwined with her protests to superiors about the restrictions placed on her. The plaintiff engaged in protected activities when, among other things, she made very clear her objection to enforcement of the lactation room policy against her, and she complained to the VP that the HR executive director was “biased” when telling her that she had been “‘accommodated with breast feeding long enough and it’s time to return to business as usual.’” In addition, the court concluded, citing the same reasoning as discussed when evaluating her discrimination claims, that the plaintiff presented factual issues as to whether she was discharged because of her complaints.

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