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Terminated RN Could Not Show Hospital’s Reasons For Her Discharge Were Pretextual
Kimberly Wilkin began working at the Community Hospital of the Monterey Peninsula 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. The Hospital repeatedly counseled Wilkin that her attendance issues could result in her termination.
In November 2017, a hospital director investigated whether a patient received medication without supporting documentation, in violation of hospital policy. The director found that Wilkin had failed to document her handling and administration of the medication to the patient properly. During her investigation, the director found numerous incidents when Wilkin signed off on the administration of medication, including controlled substances, but failed to document each administration appropriately. 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 given to the patient or discarded.
The director subsequently terminated Wilkin’s employment in late December for failure to document her handling and administration of controlled substances accurately and ongoing attendance issues. However, after Wilkin requested a reasonable accommodation in the form of a medical leave of absence, the Hospital determined not to immediately discharge Wilkin. After further investigation, on January 16, 2018, the Hospital terminated Wilkin and filed a complaint with the Board of Registered Nursing regarding Wilkin’s handling and administration of controlled substances.
Wilkins then sued the Hospital, for disability discrimination and retaliation in violation of the Fair Employment and Housing Act (FEHA); unlawful denial of medical leave, and violation of the California Family Rights Act (CFRA) and the Family and Medical Leave Act (FMLA); and 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 document the administration of patient medication and the discarding of unused medication properly; 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. In addition, the Hospital produced evidence of Wilkin’s long history of attendance problems including, disciplinary notices issued in November 2016, December 2016, and February 2017; meetings in September and November 2017 to discuss performance concerns; and many warnings that she would be disciplined if her attendance did not improve. 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/CFRA 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 interactive 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 (Cal. Ct. App. Oct. 26, 2021) 2021 WL 5371427.
Here, the employer 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 employer was able to distinguish Wilkin’s protected absences from her unprotected ones. This level of documentation is necessary to help defend against a retaliation-for-protected-activity claim.