Timing Alone Is Not Enough to Prove FMLA Retaliation

A short period of time between leave taken under the Family and Medical Leave Act (FMLA) and a subsequent disciplinary action does not prove the two are related, according to the 8th U.S. Circuit Court of Appeals.

The plaintiff worked as a surgical assistant for St. Luke’s Episcopal-Presbyterian Hospitals from 1995 until her termination in March 2015. She frequently used FMLA leave with no negative consequences from October 2012 until March 10, 2014, when she received a warning for failing to respond to messages on her cellphone and pager.

St. Luke’s documented eight other work performance issues, ranging from failure to follow on-call policy to mislabeling a syringe during a surgery. The syringe contained medication rather than the saline solution the surgeon needed for a flush. On three occasions, the plaintiff received written warnings and was counseled that additional occurrences could lead to her termination.

On March 9, 2015, less than seven months after receiving a final warning, the plaintiff became contaminated after touching a nonsterile object during a complicated surgical procedure. Two nurses in the operating room later reported that the plaintiff broke sterility rules by walking into the sterile area twice while contaminated. During the procedure, the plaintiff also left the operating room to use the restroom for an extended length of time without informing the surgeon. By the time she returned, an additional employee allegedly was assisting with the procedure. The plaintiff was fired the same day.

The plaintiff denied that she entered the sterile area while contaminated. She admitted that she was gone from the operating room for at least 15 minutes but denied that another person entered the room to assume her role.

The plaintiff believed that the complaints about her work performance were due to her increased use of FMLA leave. According to the plaintiff, one of her co-workers said that she “needed to watch herself” over her FMLA use. A supervisor also asked the plaintiff whether she could schedule her personal doctor’s appointments during off-duty hours. The plaintiff thought she was being treated more harshly than other employees for what she claimed were mostly minor infractions.

The plaintiff sued, claiming that St. Luke’s retaliated against her for exercising her rights under the FMLA. For evidence, she relied on the length of time between her FMLA leave and the disciplinary actions and her termination, and her allegation that the hospital treated more leniently other employees who did not elect to exercise their FMLA rights.

The district court ruled for St. Luke’s, and the appeals court was unpersuaded by the plaintiff’s arguments. As for the timing of her FMLA requests and subsequent disciplinary action, the court noted that the plaintiff took frequent leave from October 2012 through March 2014 with no repercussions. In addition, St. Luke’s documented her performance issues and provided her with several written warnings for them.

As for the plaintiff’s other evidence of retaliation, the appeals court decided that it was not actionable under the FMLA without proof of direct, tangible harm. The mistreatment she alleged, including the double standard and stray comments, constituted petty slights or minor annoyances and did not give rise to an FMLA claim, according to the appeals court.

The court was unpersuaded by her belief that she was singled out for her FMLA use. Her evidence could not overcome the well-documented, legitimate reasons provided by St. Luke’s for her disciplinary warnings and termination. The court affirmed judgment for St. Luke’s.

Beckley v. St. Luke’s Episcopal-Presbyterian Hospitals, 8th Cir., No. 18-2643 (May 16, 2019).

Professional Pointer: A well-documented, legitimate reason for taking disciplinary action against an employee is the key to defeating a claim of retaliation under the FMLA.