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David F.E. Banks, James H. Ashford, Patricia J. McHenry, Kristin S. Shigemura, and Ernest H. Nomura, Editors
Cades Schutte LLP
Vol. 12, No. 10
April 2008
FAMILY AND MEDICAL LEAVE
Delay in disciplining employee leads to allegation of FMLA violation
A nurse at a Big Island hospital took her allotted 12 weeks of Family and Medical Leave Act (FMLA) leave shortly after she violated several workplace rules during a five-week period. The hospital didn't investigate the incidents until she was already
on leave. On her first day back, she was fired. Although the hospital appeared to have good reason for the termination, the federal court in Honolulu ruled that the nurse's claim should proceed to trial because the delay in discipline raised a
question about whether she was terminated in response to her workplace misconduct or her decision to take legally protected FMLA leave.
Several workplace violations in a short time
North Hawaii Community Hospital hired Susan Chanco as a registered nurse in August 2003. In January 2005, she was verbally counseled because she:
- accidentally gave a patient too much morphine;
- failed to properly replace intravenous lines for various patients;
- failed to keep patients' rooms tidy; and
- had poor attendance.
Verbal counseling is the lowest form of
discipline at the hospital.
Beginning in February 2005, four more issues arose concerning Chanco's performance over the course of a five-week period:
- On February 1, a nurse supervisor submitted a letter to Chanco's supervisor (Sarah Riznyk), stating her concern about Chanco's poor care of patients.
- On February 3, Chanco again administered the wrong dosage of a narcotic to a patient.
- On March 7, she administered a hot compress to a patient, causing him to suffer a first-degree burn.
- Also on March 7, she improperly administered a nasal spray to the same patient, causing him to receive too much medication.
Hospital
fails to investigate until FMLA leave taken
For some reason that was never explained to the court, the hospital failed to promptly investigate or respond to the four issues concerning Chanco's performance that arose in February and early March. One week after the last of the four incidents
occurred, her supervisor took maternity leave. The nurse who assumed the supervisor's duties disciplined Chanco for a separate incident that occurred on March 15 but took no action concerning the earlier incidents.
During Riznyk's maternity leave, Chanco took 12 consecutive weeks of FMLA leave to care for her son, who was suffering from kidney failure. When her supervisor returned to work in May, Chanco was still on FMLA leave. Riznyk conducted an investigation
of the issues concerning Chanco's performance that arose in February and early March. After consulting with the hospital's HR director, she decided that Chanco should receive a final written warning for her February 3 error (administering the wrong
dosage of a narcotic) and that she should be terminated for the burn and nasal spray administration errors on March 7. Because she was still on FMLA leave, Riznyk decided to wait until her return to issue the discipline and termination.
Chanco returned from FMLA leave on July 21. Riznyk met with her and issued the final written warning and termination that same day. She told Chanco that the February and March issues weren't discussed sooner because of her maternity leave ―
even though it began one week after the last of Chanco's errors in March. Chanco filed suit, claiming that the hospital violated the FMLA by considering her leave as a negative factor in deciding how to discipline her for performance issues.
Court's analysis
The FMLA gives covered employees the right to take up to 12 weeks of leave per year for certain medical or family reasons. Employees who take FMLA leave have the right to be restored to their original position or an equivalent position when they
return from leave. The Act prohibits employers from interfering with employees' exercise of their right to take leave. To prove a claim of interference with the exercise of FMLA rights, an employee need only establish that taking the protected leave
was a negative factor in the employer's decision to discipline or terminate her.
The hospital, believing it had done nothing wrong, asked the court to dismiss the case. It claimed that it terminated Chanco solely because of her errors in patient care, not because she'd taken FMLA leave. In response, Chanco argued that if the
hospital had decided to terminate her for the February and March performance issues, it would have done so long before she returned from leave. In other words, since the hospital didn't do anything until she decided to take 12 weeks of FMLA leave, it
appeared that its decision to terminate her was in response to the leave, not her errors.
The court agreed with Chanco. In his analysis, Judge David Ezra first noted that the hospital had disciplined her in January 2005 for various performance issues. After that, however, it didn't give her any warning that she was in further trouble,
particularly that she was down to her "last straw." Everything that the hospital based its termination decision on was already known to the hospital by March 7, when Chanco burned a patient and administered too much nasal spray medication. Thus, it
learned nothing new while she was on FMLA leave, and it had no explanation for failing to take action before she went on leave.
The judge wasn't persuaded by the hospital's rationale that Chanco's supervisor was on maternity leave ― mainly because she was aware of Chanco's errors a week before going on leave. If Riznyk believed Chanco deserved to be terminated for the
February and March errors, she should have terminated her then and not waited several weeks to respond. The only thing that changed was that Chanco took FMLA leave. Therefore, the judge decided that the termination decision might have been due to the
FMLA leave. Based on that, he decided not to dismiss the case. A jury will now have to decide the issue. Chanco v. North Hawaii Community Hospital, Inc., 2008 WL 495531 (Feb. 25, 2008).
Bottom line
Once the need to discipline an employee is clear, you should promptly investigate the situation and issue the discipline. If you wait to respond, other factors may develop that make it appear ― to the employee, an administrative agency, a
judge, or a jury ― that you disciplined the employee for a different, improper reason. Moreover, an employee who realizes that she is on the verge of serious discipline may take action designed to protect herself. For example, she may complain
about unsafe working conditions, seek an accommodation under the Americans with Disabilities Act, take FMLA leave, or seek to organize coworkers simply to manufacture a retaliation or whistleblower claim in response to discipline that is actually
justified and reasonable. The longer you wait to hand out appropriate discipline, the more likely it is that the discipline will appear to be unjustified.
Copyright 2008 M. Lee Smith Publishers LLC
The contents of HAWAII EMPLOYMENT LAW LETTER are intended for general information and should not be construed as legal advice or opinion. To request further information or to comment on an article, please contact David Banks with Cades Schutte LLP at
808-521-9265 or dbanks@cades.com. Readers in need of legal advice should retain the services of competent counsel.
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