FMLA: Court Rules Fired Nurse Not A Victim Of Retaliation.

FMLA: Court Rules Fired Nurse Not A Victim Of Retaliation.

Legal Eagle Eye Newsletter for the Nursing Profession

May 2017

The US Family and Medical Leave Act (FMLA) outlaws employer retaliation against an employee who exercises rights guaranteed by the Act. However, the hospital had valid grounds to fire this nurse which rule out retaliation as the hospital’s motive.

A lab tech who never took FMLA leave was not fired after being caught sleeping in the lab. However, there are significant differences between a nurse sleeping in a public area of the hospital and a lab tech sleeping in the lab. Nurses, unlike lab techs, have the responsibility to respond immediately to patients’ needs. A nurse seen sleeping on the job could undermine the public’s confidence in the hospital which has a legitimate interest in putting forth a professional image. A lab tech disciplined less harshly than a nurse is not a valid comparison for consideration in a nurse’s employment retaliation or discrimination case. There is no valid comparison possible when two different employees have significantly different job responsibilities. UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT March 24, 2017

Ten days after she returned to work from an extended Family and Medical Leave Act (FMLA) medical leave, the hospital terminated a nurse for sleeping on the job in violation of hospital rules. While she was out on leave her doctors delayed the prognosis for when she would be able to come back to work. That caused her unit managers considerable difficulty staffing her position with a temporary pediatric nurse with her level of experience while keeping her position open in her absence pending her return.

The nurse had just finished her 7:00 p.m. to 7:00 a.m. shift in the pediatrics unit. She had been too busy to take her lunch break during the night, so technically she was on her thirty-minute lunch break before clocking out at 7:30 a.m. However, she was caught sleeping in an area where a sleeping nurse would be openly visible to patients and visitors.

The US Court of Appeals for the Eleventh Circuit (Florida) dismissed the nurse’s lawsuit which alleged she was illegally fired in retaliation for taking FMLA leave. The Court acknowledged it can be a significant obstacle to an employer’s legal defense to allegations of retaliation when adverse action is taken against an employee soon, only ten days, after the alleged provocation for retaliation. However, the Court nevertheless ruled that sleeping on the job is a legitimate non-discriminatory reason to fire a nurse.

The Court ruled out the nurse’s argument that termination for a first offense is too harsh for the infraction she committed. The Court said its job in a retaliation or discrimination case is not to judge the wisdom of the employer’s action as if a court has the perspective of an expert on human resources management and can substitute its own judgment in place of the employer’s. A court only looks to see whether the employer’s action was retaliation or discrimination. The Court also ruled a lab tech who never took FMLA leave who was caught sleeping in the lab but was not fired is not a valid comparison with a registered nurse. Feise v. Hospital, __ Fed. Appx. __, 2017 WL 1101402 (11th Cir., March 24, 2017).