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Gardner v. Select Specialty Hospital Little Rock

December 12, 2005



brings this action alleging that defendant violated his rights under the Family Medical Leave Act ("FMLA") and the Arkansas Civil Rights Act ("ACRA") when he was discharged. Plaintiff has filed a motion for partial summary on his FMLA claim.

Plaintiff is a licensed practical nurse (LPN) who worked for defendant. In April, 2004, plaintiff was diagnosed as suffering from Hepatitis C. Hepatitis C is a chronic, long-term illness that infects the liver. Plaintiff also suffered from depression and his physician, Dr. Holland, had prescribed Lexapro for the depression. Plaintiff was also diagnosed with cirrhosis, a condition where the liver has been damaged and attempts to heal itself, which results in scars on the liver. Because of liver malfunction, the liver does not metabolize and produce enough stable glucose in the bloodstream to keep the blood sugar elevated to a level that gives the body nutritional fuel on which to operate, causing the brain to be hazy and the body to be weak. This condition is called hypoglycemia. Plaintiff received treatment for his ailments, although there is a question as to how often he visited the doctors and the type of treatment he received.

Plaintiff worked the 7:00 p.m to 7:00 a.m. shifts on Friday, Saturday and Sunday evenings. On Friday, July 16, 2004, plaintiff went to work. Later that evening, plaintiff asked his supervisor at the time, Al Holden, for permission to leave to take care of some business at home. Holden initially denied the request because he could not find anyone to fill in for plaintiff at that hour. Later, plaintiff asked if it would be acceptable for his girlfriend, Peggy Butler, also a nurse to complete his shift. Holden approved of that. Sometime closer to midnight, plaintiff asked if he could take a 30-minute break to take care of his business. Holden permitted plaintiff to leave for a thirty minute lunch break., however, he did not give permission for plaintiff to remain off for the remainder of his shift unless he found a replacement to work for him. Butler could not work for plaintiff.

Plaintiff went home, ate some food and then proceeded to return to work. According to plaintiff, as he was driving back to work, he became dizzy, and felt detached, so he pulled over and passed out around Park Plaza Mall. This occurred sometime around 2:30 and 3:00 a.m. Plaintiff called Butler, and had her bring him home.

Butler took a reading of plaintiff's blood sugar which was very low; she then gave him some glucose tablets to raise his blood sugar. Plaintiff did not return to work. He states that he called Holden between 4:00 a.m. and 6:00 .a.m. It is somewhat unclear what plaintiff told Holden, although plaintiff and Holden agreed that plaintiff did mention something about blood sugar. Holden believed he knew that plaintiff had Hepatitis C. He also was aware that Hepatits C could affect glucose levels. Furthermore, Holden stated that plaintiff looked pale the evening of July 16th.

When plaintiff called in, Holden told plaintiff that he had already spoken with Kathleen Steinbeck, Director of Clinical Services at defendant's Little Rock facility, and that plaintiff should not come back to work until he had a chance to meet with Steinbeck. Steinbeck told plaintiff he was suspended from work pending further investigation of his absence on July 16-17.

Steinbeck reviewed plaintiff's personnel file prior to the decision to terminate plaintiff. In the file is an earlier e-mail from Eula Mitchell, the Human Resources Director at the facility, which questions whether plaintiff should be placed on FMLA leave. Mitchell states the e-mail was only in response to noticing that plaintiff had missed three consecutive shifts and was not in response to any particular illness.

Also in the file are a May 8, 2004, note from Dr. Holland, excusing plaintiff from work and a call-in by plaintiff requesting leave from May 14 to May 16, 2004 because of "sick-liver."

According to plaintiff, Butler had called Dr. Holland after the July 16th episode. Plaintiff contends that Dr. Holland told plaintiff to stay off work until Monday when Dr. Holland could see him. Plaintiff saw Dr. Holland on July 19th, although he is unsure of whether it was before or after the meeting when he was terminated. Dr. Holland stated that he would talk to Steinbeck about what happened and explain that plaintiff had suffered an episode of hypoglycemia and that he was not able to do anything about it. Holland states that he spoke to Steinbeck; Steinbeck denies ever talking to Holland.

Additionally, Butler left a note dated July 19th for Steinbeck concerning the events of July 16-17, explaining what happened and stating that plaintiff had not intentionally abandoned his patients. It is unclear whether Steinbeck received or considered the note prior to the decision to terminate plaintiff.

Plaintiff met with Steinbeck and Mitchell on July 19th. What occurred at the meeting is in dispute. The termination form stated that plaintiff was terminated for "patient abandonment." Steinbeck and Mitchell state that plaintiff was terminated for leaving his job and not returning. Plaintiff contends that during the meeting he asked if there was any kind of leave he could take because he needed his insurance. Defendant denies that plaintiff mentioned anything about his medical condition or requested any type of leave.

Plaintiff contends that he is entitled to partial summary judgment on liability for his claims of wrongful discharge and the failure to reinstate under the FMLA.

The FMLA entitles an employee to take up to twelve weeks of leave during a twelve-month period due to "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). After completing FMLA leave, the employee is entitled to be restored to his or her position, or an equivalent one. 29 U.S.C. § 2614(a)(1).

Plaintiff suffers from hepatitis, depression, cirrhosis and hypoglycemia. These are long-term illnesses, which have required treatment by a physician, and according to plaintiff, episodically incapacitate him. Defendant disputes that plaintiff suffers from a "serious medical condition." It states that plaintiff did not have difficulty performing his job duties prior to July 16th; his physician did not place any restrictions on him, and he did not take any medication for the disease.*fn1 Defendant further argues that there is a question of fact as to whether ...

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