A medical secretary who claimed she was fired in retaliation for exercising her rights under the Family and Medical Leave Act (FMLA) lost her claim in light of evidence that she improperly examined the medical records of a patient, a federal district court ruled.
The plaintiff, who worked in a hospital’s cardiology practice, had requested—and her employer had approved—numerous periods of intermittent FMLA leave to allow her to care for her daughter, who has asthma. In July 2016, she sought authorization to take leave much more frequently than had previously been approved. The hospital approved her request on Sept. 1, 2016.
On Sept. 23, a patient of the hospital’s obstetrics and gynecology practice filed a complaint alleging that the plaintiff had obtained personal information from her medical records and was using it to harass her regarding an extramarital affair between the patient and the plaintiff’s husband. The hospital’s chief compliance officer (CCO) requested an audit trail of the computerized record system, which confirmed that the plaintiff had accessed the patient’s gynecological records five times in June and July.
The hospital’s Health Insurance Portability and Accountability Act (HIPAA) agreement, which must be signed by all staff, prohibits an employee from accessing a patient’s protected health information unless the information is essential to perform employee duties. The agreement states that a violation “may result in disciplinary action up to and including termination.”
The CCO terminated the plaintiff after securing the approval of the chief operating officer, the executive director of HR and a hospital attorney.
The plaintiff sued the hospital, alleging that her immediate supervisor interfered with the exercise of her FMLA rights and that her termination was in retaliation for her exercising those rights. The plaintiff alleged that her supervisor had given her a hard time about her need for leave, questioning her about her daughter’s illness and demanding a doctor’s note for each absence. The supervisor allegedly required the plaintiff to recertify her need for leave after five months instead of six as required by the FMLA. Despite these alleged actions, the plaintiff testified that she continued to request leave whenever needed and it was approved every time.
[SHRM members-only toolkit: Managing Family and Medical Leave]
The court found the plaintiff failed to establish that she was denied benefits to which she was entitled under the FMLA. By her own account, the employer’s purported actions did not cause her any actual harm or result in her taking less leave than she otherwise would have taken. Similarly, the plaintiff suffered no harm from being required to recertify a month earlier than she asserts was required. The court granted the hospital summary judgment on the FMLA interference claim.
Regarding the retaliation claims, the court was unconvinced by the plaintiff’s claim of proximity between the protected activity—taking FMLA leave—and the allegedly retaliatory action. The last time the plaintiff invoked the protections of the FMLA was Aug. 16, the last date on which she requested leave, which was more than six weeks prior to her termination. Further, the decision to terminate her employment was made by the CCO; the plaintiff’s supervisor, who had approved every leave request although allegedly showing hostility to them, did not participate in the decision-making.
Finally, the court noted that misconduct occurring between the dates of protected activity and an adverse employment action is an intervening event that can destroy what otherwise could be an inference of retaliation. The plaintiff’s misconduct, which under the hospital’s HIPAA policy was sufficient to justify termination, defeats any inference that the termination was caused by her previous requests to take FMLA leave, the court said.
According to the court, the hospital articulated a legitimate, nondiscriminatory reason for the termination: the alleged violation of hospital policy and HIPAA. Although the plaintiff argued that the CCO’s failure to interview her before discharging her shows that the stated reason for her termination was a pretext, this claim was insufficient to put the hospital’s stated reason for termination in dispute, the court concluded. The court granted summary judgment to the hospital on the retaliation claims.
Hernandez v. Temple University Hospital, E.D. Pa., Civ. No. 17-4381 (Jan. 8, 2019).
Professional Pointer: Even when an employer has a legitimate, nondiscriminatory basis for termination, it should allow the employee to offer an explanation prior to termination. A thorough investigation helps to ensure a fair process and avoid charges of discrimination or retaliation.
Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.
[Visit SHRM’s resource page on the Family and Medical Leave Act.]