In a recent decision by the Federal Court of Appeals for the Seventh Circuit, the Court found no discrimination where a hospital fired a nurse suspected of drug use and theft, even though the employee requested FMLA leave while under investigation but before termination.
Wendy Lohmeier (“Lohmeier”) worked as a nurse for Gottlieb Memorial Hospital (the “Hospital”). The Hospital found that morphine had been wrongly taken from its ICU. At the same time, staff observed that Lohmeier avoided eye contact, struggled to keep her eyes open and slurred her speech. Later during that same shift, staff found that there had been a second wrongful taking of fentanyl.
Supervisors subjected Lohmeier to a fitness for duty exam which showed signs of intoxication. Lohmeier asked to leave the Hospital because she could not complete her charts as directed. The Hospital placed her on suspension when she left. The Hospital conducted an additional investigation and confirmed that Lohmeier likely stole fentanyl and morphine and had been under the influence at work. Before the Hospital reached the decision to terminate Lohmeier, she submitted FMLA paperwork. She also grieved her termination but was unsuccessful. The Hospital processed Lohmeier’s FMLA paperwork but ultimately denied her leave because of her termination.
This case provides a framework for how employers should handle FMLA when used by employees to avoid discipline and termination. Lohmeier likely knew that the Hospital was going to terminate her employment when she submitted the FMLA paperwork. By filing the leave paperwork, Lohmeier brought herself into the protection of the FMLA, which makes it unlawful to discriminate or retaliate against an employee for using a right protected by the statute. The Hospital denied Lohmeier’s leave because it fired her for intoxication and drug theft. The Hospital had started the discipline process before the FMLA request; it had suspended Lohmeier and conducted an investigation. Because of this, the Court held that the timing of the termination could not support a FMLA retaliation or interference claim. The case is helpful to employers because it holds that an employer may terminate an employee for documented performance issues even if the employee avails themselves to FMLA after the employer starts the disciplinary process and has taken some documents steps toward disciplining or terminating the employee.