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Don't HR Alone #8 - The Keys to FMLA- Light Duty, Pretext, and Retaliation

Nurse fired for violating dual employment policy while on extended leave can’t advance FMLA claims

A nurse who was granted extended medical leave after her FMLA leave expired but was discharged when the hospital learned that she violated the leave policy’s prohibition against dual employment by working elsewhere without permission failed to defeat summary judgment on her FMLA interference and retaliation claims. A federal court in Maryland determined that the hospital’s denial of light duty did not constitute FMLA interference, she could not have reasonably considered herself to have been terminated at that point, and she failed to present evidence suggesting the decision to fire her due to her dual employment while on leave was pretextual.

FMLA leave for birth of child. The nurse applied for and was granted a 12-week FMLA leave, from August 6 to October 29, 2012, in anticipation of her child’s birth in August. However, she experienced pregnancy complications, was placed on bed rest, and told that her delivery date might be moved to May. She amended her FMLA request to reflect a leave period of March 23 to June 15, which was approved, and she gave birth prematurely by cesarean section on May 12.

Extended leave. Her supervisor sent her a letter on June 5, prior to the expiration of her FMLA leave, offering her the opportunity to apply for extended leave under the hospital’s leave policy, which provided coverage for medical and dental insurance during the leave period. The nurse completed a leave request form on June 9, in which she acknowledged that she reviewed and understood the contents of the policy. On June 13, her supervisor approved her leave request.

Meanwhile, her doctor provided her with a work restriction form on June 11, which stated that she required light duty for the next six weeks. She provided the form to her supervisor but was advised on June 12 that no light duty was available. On June 13, she received a job offer from another hospital where she had applied in May. She accepted that job and began work on June 18.

"Dual employment" clause. Her original hospital’s leave of absence policy stated that any employee on leave "must obtain the written consent of the manager/director of his/her department, prior to engaging in paid employment of any kind during the period of absence" and that "if the employee fails to disclose or misrepresents dual employment during leave, he/she will be terminated as having abandoned his/her position." Thus, when Johns Hopkins learned that she had taken the job without its permission, it sent her a letter on July 12 stating that she was terminated.

Not entitled to light duty. The court first determined that the nurse failed to show that the hospital interfered with her FMLA rights. It undisputedly granted both her initial and amended requests for FMLA leave, and she received the amount of FMLA leave to which she was entitled. Though she argued that its denial of her request for a light duty assignment on June 12 constituted a failure to reinstate her, she was admittedly unable to perform the essential functions of her job as a registered nurse. Because she was not entitled to an entirely different position, denial of light duty did not constitute FMLA interference.

No FMLA retaliation. No reasonable jury could conclude that she was terminated in retaliation for taking FMLA leave, the court continued, since her own conduct was completely inconsistent with her purported belief that she was terminated on June 12 and not July 12. First, though she was told on June 12 that there was no light duty assignment available for her, being denied a light duty assignment is not a termination of employment. Rather, she was encouraged to apply for extended leave so that her employer-covered health insurance could continue. She took her application for the extended leave to the hospital on June 13 to have it signed by her supervisor and then submitted it to the hospital on June 14. As a result, the hospital continued to provide health insurance for her and she also received short-term disability payments from the hospital through the month of June.

No pretext. She also failed to show that her termination on July 12 was pretextual because she had clearly violated the prohibition against taking paid employment while on leave without first obtaining her manager’s permission. She admittedly was aware of that policy yet never obtained consent to work at the other hospital while on leave. She attempted to establish pretext by noting that when she first started working at Johns Hopkins, she was also employed at another medical facility but was never told that dual employment was prohibited. However, the fact that dual employment was not prohibited while an employee was working did not imply that Johns Hopkins couldn’t prohibit its employees from taking paid employment while on a medical leave.

The court also rejected her contention that she was not aware that she had been granted an extended leave of absence until July 10, and thus her taking paid employment was not a proper ground for dismissal. Her position was inconsistent with her prior statements. For example, she referred to her request for an FMLA extension in a July 9 email to a hospital HR consultant, indicating she turned it into HR, "just so at least I and my family will have medical insurance before I get another job." That her extended leave had been approved was also evident because the hospital continued to provide her health insurance, and she must have been aware that Johns Hopkins continued to insure her.

SOURCE: Ibewuike v. Johns Hopkins Hospital, (D. Md.), No. 1:15-cv-01630-WMN, May 17, 2017.

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