By Brandi O. Brown, J.D. Affirming summary judgment in favor of a medical employer that had fired a physician’s assistant the day after her return from FMLA leave, the Eighth Circuit ruled that the employee failed to create a dispute regarding pretext. Even before she took FMLA leave for a broken foot, the employee was on 90-day probation for her continued struggles with completing patient charts in the time period required, the court noted, and she had already run afoul of the requirements of that probation prior to beginning leave (Massey-Diez v. University of Iowa Community Medical Services, Inc., June 27, 2016, Beam, C.). Fell behind on charts. University of Iowa Community Medical Services, Inc., where the plaintiff in the lawsuit below worked as a physician assistant, had two sets of policies governing the upkeep of patient charts—its "Standards of Excellence" and the "Completion of Documentation Policy." Under the latter violations could result in three progressive levels of discipline. Although the assistant provided excellent care to patients, her compliance with requirements about updating patient records left something to be desired, according to the employer. By the fall of 2012 the employee had over 200 delinquent records and was well above the number required for noncompliance. In November her supervising physician expressed concern that her delinquency would reflect badly on her and suggested that she be placed on a probationary period. Discipline and probation. The employee received a notice of Level 1 discipline on November 30, followed by notice of Level 2 discipline the next month. She caught up on charting, but by February had fallen behind once again. In March 2013 she received a second Level 2 discipline and probationary terms were set for the employee, including a requirement that she be caught up by the end of the following week to within a certain point of currency (48 hours) and that for 90 days she stay current. The employee also received a "Counseling & Disciplinary Action Report" that stated those expectations and stated that if she was not compliant then her contract might not be renewed. Although the employee initially caught up on charting, she fell behind again in May and June. Broken foot and termination. In mid-June the employee broke her foot and took FMLA leave. While on leave, the employer directed the employee to complete work-related tasks at home. On June 26 the employee also went into the clinic for a partial day to see patients. Nevertheless, she remained behind on patient charting from pre-injury patients and was contacted several times during her leave regarding those incomplete records. She also failed to complete the records of the patients she saw on June 26. In early July her supervisors met to discuss renewal of her contract and her supervising doctor again expressed concerns about continuing as her supervising physician. The employee returned to work on July 8 and the next day was informed that her contract would not be renewed. Upon discussing the matter with her supervising physician, the physician told her that she should have worked on charting while she had been on leave. The employee filed suit against the employer, alleging violations of the FMLA. Discrimination. According to the employee the employer declined to renew her contract because she had taken FMLA leave. She contended that the employer took into account the days she was on leave in determining that she was tardy with respect to her charting. "Cases finding direct evidence of discrimination usually involve statements or actions more blatant than anything presented in this case," the court explained. Reviewing the circumstantial evidence, the court concluded that the employee failed to offer evidence of pretext. The employer argued that the employee’s contract was not renewed because of her tardy charting. First, the employee argued that the employer failed to follow its documentation policy and the disciplinary measures contained therein because she was compliant with that policy on the date she took leave. However, her argument failed to acknowledge the conditions of the probationary period that she was still under at the time. Moreover, the evidence in the record did not show that the documentation policy was even discussed during the July meeting wherein the employer determined not to renew her contract. The timing of that decision did not persuade the court to reach a contrary conclusion, given the evidence that the concerns about her charting pre-dated her leave. The employee’s non-compliance during the 90-day probationary period was undisputed. Interference. According to the employee, the employer's directives regarding work while she was on leave also violated the FMLA. The court noted, however, that the FMLA did not prohibit an employee from voluntarily accepting light duty assignments while recovering or employers from requesting periodic reports of her status and intent to return to work. Although the Eighth Circuit had not addressed this issue before, other courts had considered the question and had drawn a line of distinction between "nondisruptive communications" and required completion of "work-related tasks" or production of work product. In this case, although the employer had directed the employee to complete work-related tasks, the employer was nonetheless entitled to judgment as a matter of law because it was "uncontroverted" that the employee had never expressed reservations to her employer about working and, in fact, had sought ways to prevent depletion of her paid time off. Moreover, the employee’s decision to come in to work on June 26 was apparently on her own initiative because she had previously rejected a suggestion that she could see patients while on crutches. Although the employer’s actions "approach the line" set by other cases, the court concluded that the evidence would not permit a jury to find interference.
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