Pension & Benefits News Hospital pharmacist fired for ‘policy violations’ advances FMLA retaliation claim
Thursday, March 19, 2020

Hospital pharmacist fired for ‘policy violations’ advances FMLA retaliation claim

By Pension and Benefits Editorial Staff

A staff pharmacist who suffered from migraine headaches was not deterred from taking intermittent or continuous FMLA leave, a federal district court in Massachusetts observed, finding that she failed to show she was prejudiced by her hospital employer’s alleged interference with her FMLA rights. But her FMLA retaliation claim survived summary judgment as a triable fact issue existed as to whether the stated reason for her termination—failure to comply with hospital policy—was pretextual.

Staff pharmacists for the full-service hospital were generally assigned to four different shifts—daytime, swing, evening and overnight—and all were expected to work any combination of those shifts even though the hospital did hire some staff pharmacists to work exclusively evening and overnight shifts.

FMLA leave. In November 2011, the employee began taking intermittent FMLA leave for her migraine headaches. Not only did the hospital approve at least seven subsequent intermittent leave requests, it also granted her doctor’s request in May 2012 that she not work overnight shifts for six months. The hospital renewed that accommodation six months later and the employee never again worked an overnight shift.

Request for daytime hours only. In December 2016, the employee met with HR after complaining that she had been bullied and harassed by her manager, whom she claimed made faces at her and viewed her as a "bad seed." The following month, she presented the hospital with her doctor’s recommendation that she work only daytime hours. Although her doctor opined that working daytime hours would help reduce her frequent migraines, the hospital denied her request. It claimed that because other pharmacists would be forced to absorb additional swing and evening shifts, this would create significant retention and recruitment issues and thus would be an undue hardship.

Per-diem position. Instead, the hospital offered the employee a per-diem position in which she would be scheduled after full and part-time schedules were finalized. The employee not only rejected the offer, she declined the hospital’s suggestion she take a few days to reconsider.

Policy violations. In May 2017, a hospital audit revealed that the employee was not in compliance with its program directing pharmacists to follow a certain protocol in substituting prescribed medications. According to the employee, she deviated from the program only when she believed it was in the patient’s best interests. After a meeting to discuss the audit’s findings, the employee took a week of FMLA leave. Upon her return, she was issued a written warning for "insubordination and noncompliance."

Termination. She then complained of retaliation and discrimination and a formal investigation ensued. Around the same time, she left work early due to high blood pressure without speaking to her manager as required by the hospital’s work rules policy. At the conclusion of the investigation, the hospital found nothing to support her allegations. However, it issued her another written warning for leaving work early without approval. Not long after that, she was found to be in noncompliance with the hospital’s policy requiring pharmacists to counsel patients on their medications prior to discharge. She was terminated shortly thereafter.

FMLA interference. The employee could not advance her claim alleging the hospital interfered with her FMLA rights by assigning her shifts after her doctor recommended that she be excused from work on intermittent leave in June 2017. But not only had she already been scheduled to work the shifts that allegedly interfered with her leave before she requested that leave, she was never during her tenure at the hospital deterred from taking intermittent or continuous leave, said the court, granting summary judgment to her employer.

FMLA retaliation. Finally, as to her FMLA retaliation claim, the court found the hospital offered a legitimate, nondiscriminatory reason for the employee’s termination: her noncompliance with several policies. The employee, however, argued that although other staff pharmacists failed to comply with various hospital policies, she was the only one terminated. Finding a material fact issue as to the real reason for her termination, the court denied summary judgment against this claim.

SOURCE: Gudava v. Northeast Hospital Corp. dba Beverly Hospital (D. Mass.), No. 17-12414-NMG, February 13, 2020.

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