Terminated RN Could Not Show Hospital’s Reasons For Her Discharge Were Pretextual

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Dec 22, 2021

Kimberly Wilkin began working at the Community Hospital of the Monterey Peninsula (Hospital) as a registered nurse in 2005.

In November 2016, Wilkin received a written disciplinary notice for poor attendance after receiving three courtesy warnings that she could be disciplined if her attendance did not improve.  Over the next 14 months, Wilkin’s attendance continued to be poor.  While Wilkin requested and received intermittent family leave under the Family and Medical Leave Act (“FMLA”) and other medical leave during this time, her absences exceeded the frequency of FMLA-protected intermittent leave that her healthcare provider had estimated.  Wilkin was repeatedly counseled that her attendance issues could result in her termination.

In November 2017, a director was asked to investigate whether a patient received medication without supporting documentation, in violation of Hospital policy.  The director found that Wilkin had failed to properly document her handling and administration of Narcan to the patient.  During her investigation, the director found numerous incidents when Wilkin signed off on the administration of medication, including controlled substances, but failed to properly document each administration.  For example, Wilkin used a system override function to pull syringes of morphine, some without a written physician’s order, and failed to document how much, if any, was either given to the patient or discarded.

The director subsequently terminated Wilkin’s employment in late December for failure to accurately document her handling and administration of controlled substances and ongoing attendance issues. However, after Wilkin requested a reasonable accommodation in the form of a medical leave of absence, the Hospital determined that Wilkin would not be immediately discharged.  After further investigation, on January 16, 2018, Wilkin received written notice she was being terminated.  That day, the Hospital also filed a complaint with the Board of Registered Nursing regarding Wilkin’s handling and administration of controlled substances.

Wilkin then sued the Hospital, alleging her discharge: was disability discrimination, retaliation, and otherwise violated the Fair Employment and Housing Act (FEHA); resulting in the unlawful denial of medical leave and violation of the California Family Rights Act (CFRA) and the FMLA, and was wrongful termination in violation of public policy.  The trial court entered judgment in the Hospital’s favor, finding that Wilkin did not produce any evidence showing the Hospital fabricated its reasons for her termination.

Wilkin appealed, and the California Court of Appeal affirmed the trial court. California courts use a three-stage burden-shifting test to analyze FEHA discrimination and retaliation claims.  Under this test, the employee must first establish the essential elements of the claims.  If the employee can do so, the burden shifts back to the employer to show that the allegedly discriminatory or retaliatory action was taken for a legitimate, non-discriminatory, and non-retaliatory reason.  If the employer meets this burden, the presumption of discrimination or retaliation disappears and the employee then has the opportunity to attack the employer’s legitimate reason as pretextual.

The court found that the Hospital produced evidence that it terminated Wilkin’s employment because she: 1) repeatedly failed to properly document the administration of patient medication and the discarding of unused medication; and 2) was chronically absent over the prior 14 months.

At Wilkin’s deposition, for example, she admitted that she had failed to comply with the Hospital’s drug handling policy and she acknowledged she had administered a drug to a patient for nearly an hour before she retrieved the drug from the medication dispensing machine. In addition, the Hospital produced evidence of Wilkin’s long history of attendance problems including disciplinary notices issued in November 2016, December 2016, February 2017; meetings in September and November 2017 to discuss the ongoing concerns; and many warnings to improve her attendance.  Thus, the court found the Hospital met its burden of presenting non-discriminatory and non-retaliatory reasons for Wilkin’s termination.

Further, the court concluded that Wilkin failed to present any evidence that the Hospital’s stated reasons for terminating her employment were either false or pretextual as required under the burden-shifting framework.  It was undisputed Wilkin had attendance issues unrelated to any disability or health condition, and that she violated the Hospital’s policy regarding the documentation and handling of patient medication.  The court rejected each of Wilkin’s arguments to the contrary.  The Hospital never denied Wilkin’s FMLA leave; it corrected any mistakes it discovered in Wilkin’s timekeeping records, and the director met with Wilkin to discuss the documentation issues before terminating her employment.

For these reasons, the court concluded that the trial court properly granted summary judgment to the Hospital on Wilkin’s discrimination and retaliation claims.  It also affirmed the trial court’s ruling with respect to Wilkin’s other claims.  Specifically, it found she could not maintain claims for failure to accommodate or failure to engage in the interaction process because requesting that she be placed on a medical leave of absence instead of being discharged for violation of the Hospital’s policies does not qualify as a reasonable accommodation under California law. Further, because the court found in the Hospital’s favor regarding her discrimination and retaliation claims, Wilkin could not establish a “failure to prevent” cause of action. Finally, Wilkin could not offer any evidence that the Hospital’s decision to discipline her and terminate her employment was because of her CFRA and/or FMLA leave.

Wilkin v. Cmty. Hosp. of the Monterey Peninsula (2021) 71 Cal.App.5th 806.


The Hospital was able to establish its reasons for terminating Wilkin’s employment were not motivated by discrimination given Wilkin’s admitted violations of Hospital policy, and the amount of counseling and discipline Wilkin received over the course of a 14-month period. In addition, the Hospital was able to distinguish Wilkin’s protected absences from her unprotected ones. This level of documentation is required to avoid a retaliation-for-protected-activity claim.

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