Timing alone not enough to show hospital tech’s firing due to FMLA request

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By Joy Waltemath

By Dave Strausfeld, J.D.

A hospital technologist was unable to show he was fired because of his request for medical leave to have knee surgery, held the Third Circuit, affirming summary judgment against his FMLA claims in an unpublished decision. His only evidence of a causal connection between his leave request and his firing was close timing, and the timing was not “unduly suggestive,” so without further evidence his retaliation claim failed. He had no more success with his novel interference argument that the hospital “withheld his right to reinstatement to his position by firing him before he took leave” (Duncan v. Chester County Hospital, January 26, 2017, Fisher, M.).

Things went downhill after leave request. On February 20, 2013, a technologist in a hospital’s radiology department requested FMLA leave for knee-replacement surgery. The next day, the administrative director of the department met with him about a report that he had contaminated a sterile tray before a patient procedure. The contamination report came from the department’s principal radiologist, who did not get along with the technologist.

Several days later, on February 26, the administrative director gave the technologist a final disciplinary warning over the contamination incident, but soon withdrew the warning and replaced it with a less severe counseling. The technologist received another counseling on March 20, this time for failing to document a patient’s allergies and complete certain paperwork. From here, things went downhill quickly for him. After a tense meeting with HR in which he allegedly demonstrated a poor attitude, he was fired by letter dated March 26.

FMLA retaliation. As the technologist saw it, the hospital fired him in retaliation for requesting medical leave. But the court found no evidence of retaliation. While causation may be inferred where temporal proximity is “unduly suggestive,” here, over a month separated the technologist’s FMLA leave request from his firing.

Lacking unduly suggestive timing, the technologist could raise an inference of causation in other ways such as by showing “a pattern of antagonism” after he requested medical leave. But there was no evidence that the counselings were meant to punish him for his leave request or that they were fabricated or trumped up, or that the pivotal HR meeting was called to “antagonize him,” rather than for legitimate work reasons. In short, the record was “devoid of evidence” that the hospital retaliated against him for invoking his FMLA rights, the appeals court found.

FMLA interference. With regard to interference, the technologist put forward an unusual argument. As the court described it, he contended that the hospital “withheld his right to reinstatement to his position by firing him before he took leave.” (On an interference claim, he would not have needed to prove retaliatory intent.)

Rejecting his argument, the court declared “He’s incorrect—he held no such right.” The FMLA confers a right to reinstatement “on return from” FMLA leave. Because the technologist decided to cancel his surgery and never actually commenced his FMLA leave, “his right to reinstatement never ripened,” and the hospital “therefore could not have withheld it.”

Apart from this, the hospital was not liable for interference because even after terminating him, the hospital told him that if his knee surgery occurred on or before April 30, he would still be entitled to 12 weeks of FMLA leave with health insurance coverage, despite his termination. Thus his FMLA interference claim failed too, the appeals court held, agreeing with the lower court.

Source:: Timing alone not enough to show hospital tech’s firing due to FMLA request


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