Summary Judgment Granted in CA Employment Discrimination Case
Employers cannot engage in disability discrimination, deny reasonable accommodations that do not cause undue financial hardship, or retaliate against employees for taking FMLA leave. However, if an employer terminates an employee for valid, non-discriminatory reasons, an employee will have to present evidence to demonstrate that the employer's reasons were pretextual and that discrimination was the actual motive. In Wilkin v. Community Hospital of the Monterey Peninsula, Cal. Ct. App. Case No. G060420, the California Court of Appeal considered whether the trial court's order granting summary judgment was warranted when a nurse was terminated from a hospital following attendance and drug documentation issues. Factual and Procedural Background
Kimberly Wilkin, a registered nurse, began working at the Community Hospital of the Monterey Peninsula in 2005. Her work involved providing direct care to patients in the hospital's main pavilion. Some of her duties included conducting patient needs assessments, making referrals, conducting pain assessments, evaluating patients' responses to treatment, completing documentation, and following the hospital's procedures for medication administration, documentation, and management. She was supervised by Julie Clement and Diana Poudrier, the assistant department director and the department director, respectively.
Wilkin received a disciplinary notice in Nov. 2016 for poor attendance along with a warning that she could be terminated if her attendance did not improve. Before that date, she had received three notices about her attendance problems. However, her attendance continued to be poor, resulting in disciplinary notices in Dec. 2016 and Feb. 2017. In Feb. 2017, she also had a meeting with Poudrier and the hospital's assistant HR director, Jen Gilbert, about her attendance problems.
Wilkin asked for intermittent FMLA leave in March 2017 and was granted leave one to two times per month. In April 2017, Poudrier learned that Wilkin had not renewed her nursing license and suspended her. She sent a written notice to Wilkin that she would be placed on disciplinary probation upon her return to work.
Poudrier, Gilbert, and leave specialist Carol Eason sent Wilkin a letter on May 10, 2017, documenting previous attempts to reach her by phone and email. In the letter, they noted that Wilkin had failed to respond or communicate with the hospital about her frequent sick leave requests. They stated that she had called in sick without telling the hospital whether the sick leave was covered by intermittent FMLA leave or not. The letter also noted that if the leave was IFMLA leave, then Wilkin had exceeded the number of days allowed by her health care provider. They asked that Wilkin provide updated documentation from her doctor showing her need for leave from April 28 onward along with a release to return to work. The letter gave Wilkin a deadline for providing her documents of May 17. She was subsequently approved for an increase of intermittent FMLA leave of two to three times per month.
On Aug. 4, 2017, Wilkin told her supervisor that she had been the victim of a crime and needed to take time off from work to recover from the injuries she received in the assault. She then took off from work from Aug. 4, 2017, to Sept. 10, 2017, and did not receive any penalties for that period of leave. After returning to work, her attendance continued to be poor, and she had accumulated enough points in the hospital's system for her case to be sent for a termination review. Wilkin met with Poudrier and the hospital's chief HR officer, Greg Smorzewski, on Sept. 27. Poudrier and Smorzewski decided to give Wilkin one more chance to improve her attendance and did not fire her.
Wilkin received another disciplinary notice in Nov. 2017 for continued attendance problems and was suspended for one week. She was allowed to return but continued to have poor attendance in Dec. 2017. Her case was again sent to a termination review.
In Nov. 2017, Poudrier was alerted that a patient had received Narcan without appropriate documentation and found that Wilkin had failed to document it. She investigated and found other instances in which Wilkin had handled or administered drugs, including controlled substances, without documenting it. Poudrier learned that Wilkin had pulled 4 mg of morphine from the hospital's dispensing machine on July 10, 2017, and had administered 2 mg to a patient. Wilkin did not document what happened to the remaining 2 mg. Again, on Sept. 23, 2017, Wilkin pulled a 10 mg syringe from the hospital's dispensing machine and administered 4 mg to a patient but did not document what happened to the remaining 6 mg. She also pulled 2 mg of Lorazepam from the machine on Sept. 23 and administered 1 mg to a patient without documenting what happened to the remaining 1 mg.
Wilkin pulled 10 mg of morphine from the dispensing machine on Nov. 23, 2017, without a prescription from a doctor. She then documented she had given the morphine to a patient 42 minutes before she even pulled the syringe from the machine. Wilkin pulled 2 mg of morphine from the machine on Dec. 7, 2017, but did not document whether the morphine was given to a patient or what had happened to it. On Dec. 17, 2017, Wilkin pulled 1 mg of Lorazepam from the machine and did not document whether she gave it to a patient or what had happened to it. She pulled 10 mg of morphine on Dec. 21, 2017, and documented that she had administered 8 mg to a patient and discarded the remaining 2 mg in the electronic record. However, the written record only reflected that she administered 4 mg, meaning that 4 mg were not accounted for. There were several other similar discrepancies between what Wilkin entered electronically and what was in the written documentation for the administration of morphine for several patients.
In late Dec. 2017, Poudrier decided that Wilkin needed to be terminated. She informed Wilkin on Jan. 5, 2018, by telephone that Wilkin needed to attend an employment termination meeting on Jan. 8, 2018. Wilkin told Poudrier that she was requesting a reasonable accommodation to allow her to take a medical leave of absence. Since Wilkin requested a reasonable accommodation, the hospital determined that she would be suspended for one week after the Jan. 8 meeting while the hospital investigated. Following the investigation and meeting, Poudrier decided to terminate Wilkin based on her poor attendance and her controlled substances documentation issues. The hospital gave Wilkin a termination notice at a meeting on Jan. 16, 2018, and reported its concerns about her controlled substances documentation to the Board of Registered Nursing.
Wilkin filed a lawsuit against the hospital, alleging disability discrimination, retaliation, failure to engage in an interactive process, failure to provide a reasonable accommodation, violation of the FMLA, and wrongful termination. The hospital filed a motion for summary judgment for each count and submitted copies of Wilkin's deposition testimony, the disciplinary notices, records of her controlled substance documentation discrepancies, and emails sent to and from Wilkin. Wilkin opposed the motion for summary judgment.
The trial court granted the hospital's motion for summary judgment at the hearing. It noted that Wilkin had failed to present evidence that the reasons given by the hospital for her termination or pretextual and stated that Wilkin had the burden of proof to demonstrate pretext. Wilkin filed an appeal.
Issue: Whether Wilkin presented enough evidence to show the hospital's reasons for terminating her were pretextual so that a triable issue of material fact remained?
On appeal, Wilkin argued that she had presented enough evidence to show that the hospital's stated, non-discriminatory reasons for firing her were pretextual in her opposition to the summary judgment motion. She pointed to the deposition testimony excerpts she had submitted of herself, Poudrier, Gilbert, and others.
Rule: In California, the plaintiff must first present a prima facie case of discrimination before the burden shifts to the defendant employer to present evidence of non-discriminatory reasons for termination. The burden then shifts back to the plaintiff to present evidence showing that the reasons given for termination are pretextual in nature.
California follows the burden-shifting rule under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this rule, a plaintiff claiming disparate discrimination must first present evidence of a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to present evidence that its reasons for terminating the employee were non-discriminatory in nature and otherwise valid. If the defendant meets its burden, the burden shifts back to the plaintiff to present evidence that the reasons given by the defendant were pretextual and discriminatory.Analysis
The court first noted that the plaintiff had filed an appeal before the issue was appealable because she based it on the court's order without waiting for the court to issue the judgment. However, the court of appeal still decided to consider the case in the interest of justice.
The court looked at the evidence in light of the McDonnell Douglas burden-shifting standard. It noted that summary judgment is only appropriate when there is no issue of triable fact remaining for a jury to decide and that defendants must present evidence showing that the plaintiffs will not be able to prove an element of a cause of action.
The hospital presented evidence showing that it terminated Wilkin based on her long history of attendance problems and her problematic documentation of her handling and administration of controlled substances. The court found that the hospital met its burden of presenting evidence that its reasons for terminating Wilkin were valid and non-discriminatory.
The court then considered whether Wilkin had presented sufficient evidence to show that the hospital's stated reasons for firing her were pretextual and that she was actually terminated for a discriminatory reason. Wilkin pointed to issues with the hospital's timekeeping system, but the hospital presented evidence that each issue had been corrected. Wilkin argued that the hospital terminated her in January instead of granting her request for additional FMLA leave in retaliation. However, the court found that her documentation and attendance issues had been thoroughly investigated and well-documented and that the hospital's decision to terminate her did not violate the FMLA or any other law.Conclusion
The court affirmed the trial court's decision to grant the hospital's motion for summary judgment. The hospital was granted its costs on appeal.Consult an Experienced Employment Lawyer
Proving that you were fired for a discriminatory reason can be complex. If you think that you were terminated from your job because of your protected characteristics, you should talk to an experienced employment lawyer at the law firm of Steven M. Sweat, APC. We can review your case and help you understand whether or not it might have legal merits. Call us today at 866.966.5240.Resources