Fired Nurse With Breast Cancer Didn’t Show ADA Bias, FMLA Interference, Judge Says
By Jay-Anne B. Casuga
A Minnesota registered nurse who had breast cancer failed to show that she was fired because of a disability or her use of intermittent medical leave, a federal district court in Minnesota ruled Sept. 4 (Lichty v. Allina Health Sys., D. Minn., No. 12-00437, 9/4/13).
Granting summary judgment to Allina Health System, Judge David S. Doty of the U.S. District Court for the District of Minnesota found that the medical provider presented a legitimate, nondiscriminatory reason for firing Julie Lichty based on her alleged failure to properly document medication dispensed to patients and possible drug diversion.
The court said Lichty, in turn, did not demonstrate that those reasons were a pretext for disability bias under the Americans with Disabilities Act and the Minnesota Human Rights Act.
On a related note, the court said, Lichty’s Family and Medical Leave Act interference claim also must fail because the reasons for her discharge were “insufficiently related” to her FMLA leave.
Nurse Had Accommodations, Intermittent Leave
According to the court, Lichty worked in the Interventional Radiology Department at Mercy Hospital in Coon Rapids, Minn.
To retrieve medication, department nurses selected a patient’s name, as well as drug type and dosage, from a machine called the Pyxis. After giving the medication to patients, nurses recorded the dosage in a patient’s medication administration record. Nurses were required to dispose of any excess medication into a drain or trash bin.
Medication discrepancies appeared on “hot lists” periodically compiled by a pharmacy narcotics auditing technician. Lichty never appeared on a hot list.
Between Nov. 3, 2010, and Dec. 27, 2010, Lichty took FMLA leave to undergo surgical treatment for breast cancer. Upon her return to work in January 2011, she was restricted from lifting, pushing, or pulling more than 10 pounds. She also received approval for intermittent FMLA leave for follow-up appointments.
In February, she complained to her supervisor, Ben Anderson, that co-workers complained to her and made negative comments about her restrictions and FMLA leave. Anderson responded by informing the co-workers about their obligation to accommodate Lichty’s restrictions.
Anderson in March rated Lichty as “meets expectations” in her annual performance evaluation. That same month, another nurse, Rosemary Olson, reported to supervisors her concerns about Lichty’s medication documentation.
An investigation ensued, revealing that Lichty had 25 unresolved medication discrepancies in March. For example, Lichty allegedly “charted medication under the wrong patient,” and failed to complete medication administration records after removing drugs from Pyxis, the court recounted.
The investigation also revealed that Olson had four medication discrepancies, which eventually were resolved. Olson received no discipline, but was retrained on documentation procedures.
Allina fired Lichty in April, with the termination notice citing her alleged medication discrepancies. Anderson would later email Allina officials and state that Lichty was discharged for “possible drug diversion.”
Lichty applied for unemployment insurance, and a request for information was sent to Allina. Paula Wahlberg, a human resources employee, filled out the paperwork, writing that Lichty’s performance began declining when she returned from a leave of absence and requested light duty accommodations.
Lichty eventually brought ADA, MHRA, and FMLA claims against Allina, alleging disability discrimination, failure-to-accommodate, and interference. Allina moved for summary judgment.
Judge Finds No Direct Evidence of Bias
Granting Allina’s motion, the district court ruled that Lichty failed to present direct evidence of disability discrimination under the ADA or MHRA.
Direct evidence, it explained, “most often” includes decisionmaker comments “that reflect, without inference, discriminatory bias.”
Here, Lichty argued that Wahlberg’s responses on an unemployment insurance information request constituted such direct evidence.
The court disagreed, pointing out that Wahlberg was “only tangentially” involved in the medication investigation that led to Lichty’s discharge, and was not one of the decisionmakers who fired Lichty.
Nurse Failed to Show Pretext, Judge Says
The district court said Lichty’s ADA and MHRA claims fare no better under an indirect, burden-shifting method for proving discrimination.
Even if Lichty could establish a prima facie case of disability bias–that is, she was disabled, qualified to perform her essential job functions, and fired because of her disability–she failed to demonstrate that Allina’s proffered reasons for her discharge were pretextual, the court held.
Lichty attempted to show pretext based on her co-workers’ complaints, her favorable job performance review prior to her termination, and the poor treatment she received in comparison to similarly situated, non-disabled employees.
The court said the co-worker complaints do not prove pretext because they were “stray remarks” by non-decisionmakers.
With respect to the positive performance review, it pointed out that Anderson had not known about Lichty’s medicine discrepancies at the time he completed the evaluation. Absent knowledge of the circumstances that would eventually lead to Lichty’s discharge, Anderson’s review “is irrelevant to the pretext analysis,” the court said.
As for the argument that similarly situated, non-disabled nurses received more favorable treatment, the court observed that Lichty identified only Olson as a comparator. Litchy claimed that Olson received training and was not disciplined for her medication discrepancies.
But the court pointed out that Olson had only four discrepancies that were considered “resolved,” while Lichty had 25 “unresolved” discrepancies.
“As a result of these differences, Lichty and Olson were not similarly situated, and Allina’s different treatment of Olson is not indicative of pretext,” the court concluded.
Furthermore, the district court rejected Lichty’s final argument that Allina’s shifting discharge explanations raised an inference of pretext.
The court acknowledged that changing termination reasons may support pretext, “but only if the employer gives ‘two completely different explanations.”
Here, the court said, Allina stated that it fired Lichty for possible drug diversion and medication discrepancies. Those reasons “are closely related and not ‘completely different,’ ” the court ruled.
Accommodation, FMLA Interference Claims Fail
In addition, the district court found that Allina is entitled to summary judgment on Lichty’s failure-to-accommodate claims under the ADA and MHRA.
Allina granted Lichty her requested reasonable accommodations, which included lifting restrictions and a modified work schedule, the court said. It added that Allina also notified Lichty’s co-workers that they had to accommodate her restrictions.
“Lichty has not identified a specific request that she made that Allina failed to accommodate,” the court said.
Finally, the court held that Allina is not liable for FMLA interference because its reasons for firing Lichty were insufficiently related to her use of intermittent FMLA leave.
“As already discussed, no reasonable jury could find that Allina terminated Lichty for reasons other than the proffered reason, which was wholly unrelated to FMLA leave,” the court said. “Therefore, Lichty cannot establish that Allina interfered with her FMLA rights, and summary judgment on this claim is warranted.”
Matthew H. Morgan and Timothy C. Selander of Nichols Kaster in Minneapolis represented Lichty. Alyssa M. Toft, Sara G. McGrane, and Jessica M. March of Felhaber, Larson, Fenlon & Vogt in Minneapolis represented Allina.
Text of the opinion is available at http://www.bloomberglaw.com/public/document/Lichty_v_Allina_Health_System_Docket_No_012cv00437_D_Minn_Feb_21_.