Employer May Have Violated ADA and FMLA Rights of Employee in Terminating Her Under Discipline Policy

Nancy Haley worked as a Registered Nurse for Community Mercy Health Partners doing business as Springfield Regional Medical Center (hereinafter SRMC).  She began there in June of 1978.  In November 2009, she was diagnosed with breast cancer and underwent two surgical procedures.  She took approximately five and a half weeks of FMLA leave during this time period and returned to work on January 18, 2010.

SRMC had a progressive discipline policy which involved discipline pursuant to “Corrective Action.”  There were four steps in the Corrective Action process, the first of which was an oral warning.  The second step involved a written warning, the third a “final warning,” and the last led to termination.

In the summer of 2009, SRMC issued a written warning because Haley missed pages while she was on call.  She did not initially respond to the hospital’s page, was called at home, and arrived at the hospital 37 minutes after the initial page on June 2, 2009.  A similar incident occurred a month later.

SRMC placed Haley on level three discipline on November 9, 2009 for two incidents involving patient “site marking,” which required marking the site of surgery for the surgeon.  On October 9, 2009, Haley took an unmarked patient in the operating room.

Haley used several FMLA days in 2010 for her serious health condition.  The last FMLA day was April 16, 2010.

On February 12, 2010, Haley’s husband was transported to SRMC with a serious heart condition.  Haley contacted SRMC regarding her inability to work her shift that day and the next two days. SMRC marked her absence on February 12, 2010 as unexcused.

Three days after returning from her April 16, 2010 FMLA leave, SRMC terminated her employment.  Haley’s absence on February 12, 2010, when she was with her husband, was listed as one of the three unexcused absences on the Corrective Action form completed in support of her termination.  Her three unexcused absences along with 11 instances of tardiness were listed as the reasons for placing her at the final termination stage.

Haley sued for violations of her FMLA and ADA rights.  She argued that her cancer condition was covered under the ADA. The court said, “Haley’s cancer was a physiological condition affecting multiple body systems and was treated by a mastectomy, resulting in an anatomical loss.  It unquestionably qualifies as an impairment under the ADA.”

Next, the court considered whether that impairment substantially limited a major life activity with reference to the Americans with Disabilities Act Amendment Acts of 2008.  “A major life activity may also include ‘the operation of a major bodily function’ such as ‘’normal cell growth.’” The court added:

A reasonable jury could conclude that Haley was disabled under the ADA, and therefore fulfills the first element of her prima facie claim  She was obviously disabled when the cancer was active, as it substantially limited the major life activity of normal cell growth.  In addition, the cancer substantially limited the major life activity of her work.  Haley took extensive time off for surgery and recuperation between the end of November 2009 and January 18, 2010, during which time she could not work at all.

The Court noted that it does not matter that the cancer was in remission at the time her employment was terminated.  She was still covered under the ADA.

SRMC argued that Haley said in her deposition before trial that she did not consider herself disabled.  The court said that Haley’s own statements “are not particularly probative of the determination of whether she is disabled under the ADA, which is a legal definition quite distinct from the colloquial meaning of ‘disabled.’”  The Court held that Haley made out a prima facie case and therefore denied SRMC’s motion for summary judgment, leaving the matter for the jury to decide.

On the FMLA issue, the court held that a jury “could reasonably conclude that Haley gave sufficient and timely notice that FMLA leave might apply to her absence on February 12, 2010, because SRMC knew of it the day it occurred and it concerned her husband’s serious medical condition.”  The court said that a reasonable jury could conclude that SRMC denied her FMLA leave by categorizing her February 12, 2010 absence as unexcused.

This case is a reminder to employers to fully analyze FMLA and ADA considerations before making termination decisions, even if there is a specific step-plan of discipline in place. The case may be found at Haley v. Community Mercy Health Partners, 2013 U.S. Dist. LEXIS 11193 (January 28, 2013).