Complaints about Practitioner's Job Skills, not Dog Bite-related FMLA leave, Caused Firing

Grand Rapids, MN (WorkersCompensation.com) – Documenting coworkers’ complaints about an employee can sometimes help an employer rebuff an FMLA discrimination claim from a fired worker. 

The fact that several paraprofessionals complained about a mental health practitioner in Dulinksi v. North Homes, Inc., No. 20-cv-2207 (SRN/LIB) (D. Minnesota 08/16/22), strongly indicated that her employer fired her because of her work performance, not her neurological condition. 

The mental health coordinator worked for a children’s services nonprofit that placed mental health practitioners within school systems. 

In September 2018, the practitioner’s dog jumped up and bit her. This forced her to hyperextend her neck, resulting in double vision and pain. Eventually, her physician diagnosed Chiari Malformation, Type I, a brain condition that can cause a variety of neurological issues.  

The practitioner began requesting intermittent FMLA leave. Meanwhile, the paraprofessionals with whom she worked lodged complaints with their school. They complained, for instance, that the practitioner seemed unprepared for her skills training sessions, made "negative comments" and would "put the child or children back into negative thinking" by bringing up past behaviors that had already been addressed, and wore unprofessional clothing. 

The school system informed the non-profit it no longer wished to use the practitioner’s services. The non-profit terminated the practitioner’s job. 

Twice bitten – first by her dog, and then by the employer that fired her -- the practitioner sued her employer for FMLA discrimination. She pointed out, in part, that the non-profit had treated other employees more favorably by applying progressive discipline, rather than simply terminating them. 

The court explained that to proceed with her case, the practitioner needed to show that the non-profit’s basis for firing her – complaints from the school system – was pretextual. One way that an employee can show pretext is by identifying other employees who were similarly situated but were treated more favorably.  

That’s a tough standard to meet, the court stated—at least in states under the authority of the 8th U.S. Circuit Court of Appeals (Arkansas, Iowa, Missouri, Minnesota, Nebraska, South Dakota, and North Dakota). In the 8th Circuit, the comparator employees must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing characteristics. 

Here, although the other individuals to whom the practitioner compared herself were also mental health practitioners who worked under the same supervisor, the court pointed out that there was no evidence that they engaged in the same misconduct.  

“Specifically, there is no evidence that they caused unrest with the [paraprofessionals] at their respective schools, that they intentionally pushed students ‘over the edge,’ that they made therapists ‘feel uncomfortable,’ that they made negative comments to the students, or that they wore inappropriate clothing,” the court wrote.  

Further, there was no evidence that the schools where the comparator employees worked had emailed or called the nonprofit indicating that they wanted those employees removed from their programs. Consequently, under 8th Circuit precedent, those practitioners were not similarly situated. Thus, the court held, no reasonable juror could infer from the nonprofit’s use of progressive discipline with those employees that it terminated the practitioner due to her disability. 

The court granted the nonprofit summary judgment on the practitioner’s FMLA discrimination claim. 

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