Clark v. Jackson Hosp. & Clinic, Inc. (Summary)

PRACTITIONER HEALTH/ FAMILY & MEDICAL LEAVE ACT/ ADA

Clark v. Jackson Hosp. & Clinic, Inc., No. 2:12-CV-836-WKW (M.D. Ala. Sept. 23, 2013)

The United States District Court for the Middle District of Alabama granted in part and denied in part a hospital’s motion for summary judgment in a lawsuit brought by a nurse who took FMLA leave to receive drug treatment after being caught diverting Dilaudid.  The nurse claimed that the hospital violated the FMLA and ADA when it did not reinstate her employment after she returned from treatment.  The hospital argued that it could not return the nurse to her original position because of restrictions on her ability to access controlled substances and its policy of not placing employees with a history of diversion on high acuity units, where the administration of controlled substances would be frequent.  And since no other positions were available, the hospital had no choice but to terminate the nurse’s employment at the conclusion of her leave.

The court rejected the nurse’s FMLA-interference claim, noting that the nurse was not entitled to be reinstated to her position following her FMLA leave because she failed to provide medical certification of her fitness for duty.  The court allowed the nurse’s FMLA-retaliation claim to go forward, however.  The court noted that a prima facie case of retaliation required the nurse to allege that (1) she engaged in statutorily protected activity (in this case, taking FMLA leave), (2) suffered an adverse employment action (in this case, termination), and (3) the adverse employment action was causally related to the protected activity.  The fact that the nurse’s termination was temporally close to her leave was sufficient to allege the third element of the FMLA-retaliation claim.  The hospital articulated a nondiscriminatory reason for the termination (failure to submit a fitness for duty evaluation and a policy of not assigning post-diversion employees to high acuity units).  Noting that the hospital changed its reason for the employee’s termination and that original letters and conversations regarding the termination cited different reasons, the court found there was sufficient evidence that the hospital’s reasons were pretextual to send the matter to a jury for consideration of whether the hospital’s real reason for terminating the nurse was to retaliate against her for taking FMLA leave.

The court further held that it could not grant summary judgment on the ADA claim based on the application of §12114(a) (which excludes from ADA protection those who are currently engaging in the illegal use of drugs) due to a genuine issue of material fact as to whether the hospital actually terminated her based on the fact that she was using illegal drugs or for one of the many other reasons it provided over time.  Further, the court noted that the nurse would have been entitled to the ADA’s protections once she ceased the illegal use of drugs and began a rehabilitation program and, therefore, there was some dispute about whether the nurse was entitled to ADA protection at the time of her termination.