CEO's Hostile Remark, Suspicious Timing, Fuel Nurse's FMLA Claim

Richardson, TX (WorkersCompensation.com) – Just one more reason that company executives and supervisors should avoid hostile words; they can help fuel an FMLA discrimination case. 

That was what happened in Robles v. Eminent Med. Ctr., No. 3:20-CV-1188-L (N.D. Tex. 08/03/22), where a CEO reportedly told a supervisor that a nurse has “got to go,” just after the nurse left for the ER in severe pain.  

The employee sued her employer, alleging that it terminated her for seeking to take FMLA leave. But the medical center begged to differ: it fired the nurse, it said, not because of her FMLA leave, but because of documented, ongoing issues with her conduct and job performance, for which she had been previo`usly warned, demoted, and reprimanded.  

In fact, according to the employee’s direct supervisor, the nurse was often late, used her cell phone excessively, applied makeup and got dressed at work, and often could not be found during working hours. 

Another staff member reported that the nurse, in front of a patient, told the staff member to go change the gown of an attractive male patient, so the staff member could "see his body." 

That same day, on Dec. 6, 2019, a Friday, the medical center’s CEO told the supervisor that the nurse has "got to go." That was also the day that the nurse notified her supervisor that she had to go to the ER for urgent surgery because of severe pain. 

The medical center terminated the nurse the following Monday. 

In her lawsuit, the nurse claimed the medical center discriminated and retaliated against her for seeking to use FMLA leave. 

To establish her case, the court stated, the employee had show, among other things, that the medical center terminated her because she sought protection under the FMLA. She could then proceed with her case only if established that the medical center’s purported reason for terminating her was just a pretext. 

The court explained that while the medical center articulated a lawful reason for terminating the nurse, it wasn’t ready to close the case just yet. This was because the nurse provided evidence that the employer was motivated in part by a desire to retaliate.  

First, the court observed, the timing was suspicious; the medical center fired the nurse on the next working day after she announced she was heading for the ER. 

But the court pointed out that there was more than suspicious timing; there was the CEO’s words. The supervisor testified that on Friday, after the nurse left for the ER, the CEO told the supervisor that the nurse has "got to go." Moreover, per that testimony, the phrase did not mean that the nurse had to get going to the ER. Rather, it was a reference to ending her employment. 

“These hostile remarks and the temporal proximity of [the CEO’s] remarks to [the nurse’s] termination, taken as a whole, are sufficient to raise a genuine dispute of material fact as to whether discrimination or retaliation was a motivating factor in [the nurse’s] termination,” the court wrote. 

Accordingly, the court declined to grant the medical center summary judgment.