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Hospital firing of tardy nurse justified by lack of FMLA communication

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A hospital was justified in firing a nurse who was two minutes late for her shift because she had failed to inform her employer she was taking intermittent Family Medical Leave Act leave, says a federal appeals court in upholding dismissal of an FMLA case.

Kathleen Norton worked at Bay City, Michigan-based McLaren Bay Special Care, an acute long-term care hospital, for about 17 years, according to Wednesday's ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati in Kathleen Norton v. LTCH dba McLaren Bay Special Care et al.

In early 2013, Ms. Norton received three written reprimands for excessive absenteeism and tardiness, which was defined as clocking in more than one minute late for a scheduled shift, and understood she risked losing her job if she committed additional infractions, according to the ruling.

In May 2013, Ms. Norton began to suffer “vestibular” migraines, experiencing symptoms such as extreme dizziness, vertigo, nausea, vomiting, headaches and sensitivity to light, according to the ruling.

After her condition prevented her from working for two weeks, she applied for and received intermittent FMLA leave, but was still required to call the hospital's family leave call center at least two hours before her scheduled shift before taking time off. Ms. Norton called the center at least once in June or July, according to the ruling.

Ms. Norton arrived two minutes late for her July 14 shift without calling the call center in advance and claimed she was unable to anticipate her late arrival, according to the ruling. She said she was suffering from symptoms caused by her condition, but did not discuss this with a manager or human resources representative.

At a July 18 meeting, she said she was late because she was waiting for a babysitter to arrive, according to notes taken by a hospital consultant. She was terminated at the end of that meeting.

Ms. Norton filed suit, charging the hospital had interfered with the exercise of her FMLA rights and retaliation. The U.S. District Court in Bay City granted the hospital summary judgment dismissing the case, and a three-judge panel unanimously upheld that ruling.

Ms. Norton's “silence on and after July 14 deprived (the hospital) of an adequate basis for determining whether the FMLA covered her late arrival,” said the unanimous three-judge panel of the 6th Circuit in dismissing the interference charge. In dismissing the retaliation charge, the ruling said Ms. Norton cannot show that the hospital “applied its attendance and disciplinary policies selectively.”

Last year, a federal court refused to dismiss an FMLA violation claim by a Boeing Co. employee who was terminated after she attempted to take FMLA leave for her migraines, stating there is evidence the company discriminated against her.