Nurse fired for sleeping on the job can’t claim FMLA retaliation

Affirming summary judgment against an FMLA retaliation claim by a nurse fired for sleeping on the job soon after she returned from FMLA leave, the Eleventh Circuit U.S. Court of Appeals agreed with the lower court that her comparators were not sufficiently similar, and none of the other circumstantial evidence was sufficient for a reasonable jury to find that the proffered reason for her termination was pretextual.

FMLA leave. The employee began working as a nurse for a hospital in 2010. During her tenure, she had several medical issues for which she needed to take time off, including time in 2011 for surgery, eight days of FMLA leave in 2012 for respiratory problems, and three weeks in April 2013 after her respiratory problems worsened. In August 2013, she took two weeks of FMLA leave when she was hospitalized for pneumonia. During that time, the employee’s supervisor was replaced. The new supervisor knew she was hospitalized with pneumonia, but denied knowing she specifically had taken FMLA leave.

Sleeping on the job. After returning, the employee worked four consecutive 12-hour overnight shifts, followed by an early morning staff meeting. She had no time to take a break during her shift, and so took it at the end. While on break, she closed her eyes, but insisted she never fell asleep, and responded to the supervisor when she arrived for the meeting. But the supervisor maintained that she saw the employee sleeping, and that the employee was unresponsive when greeted. She requested surveillance and she claimed this confirmed the employee was asleep.

Termination. After a meeting with the supervisor and HR, the employee was fired. It was undisputed that HR knew she had taken FMLA leave. The employee complained to the employee advocacy department that she believed she was fired for taking FMLA leave. The advocate investigated, but could not determine whether the employee had been sleeping, and recommended she be reinstated. The supervisor and HR refused.

The hospital’s employee handbook prohibited sleeping during meal or rest breaks, but did not specify the punishment. HR testified that others had been fired for sleeping on the job. The employee had never been disciplined before she was fired, and had received positive reviews.

Lawsuit. The employee filed suit claiming she was fired in retaliation for taking FMLA leave. The court granted the employer’s summary judgment motion, finding her proffered comparators were not sufficiently similar, and she failed to produce circumstantial evidence from which a reasonably jury could find pretext. The employee appealed.

No similar comparators. The Court of Appeals affirmed the district court’s determination that the employee’s proffered comparators were not sufficiently similar. Although the employee asserted that one comparator had not fallen asleep, but had abandoned his post and was not fired, the court was not permitted to analyze whether one type of misconduct was objectively more egregious than another, but only whether a comparator was substantially similar. Because the employee did not argue that the comparator’s actions were nearly identical, but only more severe, he was not an appropriate comparator. The district court properly concluded that a second comparator who slept on the job but was not fired was sufficiently different because she was a technologist rather than a nurse, and she provided medical documentation that she had mistakenly taken her medicine at the wrong time, which caused her to sleep.

Insufficient evidence of pretext. The Court of Appeals also found the employee had offered no other circumstantial evidence from which a reasonable jury could conclude the hospital’s reason for firing her was pretextual. There was no evidence the hospital’s claim that it terminated her for sleeping on the job was unworthy of credence, or that retaliation was the more likely motive. The hospital believed she was sleeping on the job, which was the operative issue for the court to consider, not whether the employee actually was sleeping. The court refused to consider her previous exemplary work record, the short time during which she closed her eyes, or that her supervisor could not identify another employee fired for a similar offense, because to consider those other factors would turn the court into a “super-personnel committee.” The only factor the employee raised that the court could consider was the temporal proximity between her FMLA leave and her termination, which the court found insufficient to establish pretext.

The court rejected the employee’s claim that her supervisor’s testimony was contradictory as to whether she knew the employee had taken FMLA leave, as she produced no evidence showing the supervisor knew she had specifically taken FMLA leave. The court also rejected her contention that two emails written by her supervisor showed retaliatory motive. The first email, written to a coworker while the employee was on leave, merely discussed the need for additional staffing during the employee’s absence. The second, written to a coworker after the employee was fired, noted that they needed to watch overtime. Even taken together, these did not suggest retaliation, but merely discussed the need for additional staffing and concern about overtime.

SOURCE: Feise v. North Broward Hospital District dba Broward Health (CA-11), No. 15-15261, March 24, 2017.

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