/publications/issue/2003/2003-09/2003-09-7378

Pharmacist's Termination Violates Medical Leave Act

Author: Larry M. Simonsmeier, JD, RPh

Facts of the Case:

    Jane Doe was a staff pharmacist at a Tucson, Ariz, hospital. Several months before her termination, she complained to the hospital administrator about sexual harassment by the pharmacy manager. The hospital conducted an investigation, but Doe was unsatisfied with the response. She filed a claim of unlawful discrimination with the Arizona Civil Rights Division.

    In response to the pharmacist?s continued complaints, the hospital administrator drew up a schedule, with the pharmacy manager working mornings and Doe working afternoons, and with both parties receiving full pay. The pharmacy manager resigned a month later.

    The next day, Doe and another pharmacist at the hospital were given a posting for the manager?s position. The other pharmacist was interviewed and offered the job. The following day, Doe applied for the position but was told that her colleague had gotten the job.

    Doe and the hospital administrator proceeded to get into an argument about Doe?s schedule. She was sent home until further notice. The next day, Doe visited her physician, who found her to be distraught and put her on medical leave for 10 days.

    On the same day that Doe was consulting her physician, the hospital attempted unsuccessfully to reach her at home by telephone. The hospital sent her a termination letter the following day. The reason for termination was Doe?s alleged insubordinate refusal to agree to work the hours the hospital needed her.

    Unbeknownst to each other, while the hospital was sending the termination letter, Doe?s attorney was faxing a letter to the hospital?s corporate office stating that her physician had placed her on medical leave. Doe did not communicate directly with the hospital personnel in Tucson, who claim that they did not learn about her medical leave letter until after the termination letter was mailed. Doe brought this lawsuit claiming that her termination violated the federal Family and Medical Leave Act (FMLA).

The Court?s Ruling:

    A jury concluded that the hospital had violated federal law in discharging the pharmacist. It awarded her damages, including $44,736 in lost wages, as well as attorney?s fees. The appellate court found that the jury?s decision was not unreasonable and upheld the verdict.

The Court?s Reasoning:

    The FMLA makes it unlawful for an employer to interfere with any right under the act. A way to prove interference is to show that taking FMLA-protected leave constituted a negative factor in the decision for termination. As with most claims, the allegation can be proved by using either direct or circumstantial evidence.

    The appellate court was not willing to overrule the jury decision. Although there was conflicting testimony as well as contrary documentary evidence, the court concluded that the decision was not unreasonable. The hospital next argued that the jury?s award of $44,736 in lost wages was improper because it was based on the difference between the salary Doe would have earned had she remained with the hospital and the amount she earned working as a substitute pharmacist.

    The hospital contended that, because it could have legally terminated Doe at the end of her 10-day medical leave, it owed her only 10 days of lost wages.

    The court disagreed. It concluded that the jury could have reasonably found that Doe?s unemployment and underemployment were all attributable to the employer?s FMLA violation. Doe?s loss of wages and benefits was ongoing until she was able to find work at the same rate of pay. Larry M. Simonsmeier is Emeritus Professor of Pharmacy Law at Washington State University College of Pharmacy.


Larry M. Simonsmeier is
 Emeritus Professor of
 Pharmacy Law at
 Washington State University
 College of Pharmacy.