The Eleventh Circuit Court of Appeals recently rejected an attempt by an employee to use the FMLA as a shield to prevent her termination for sleeping on the job. Feise v. North Broward Hosp. Dist., No. 15-15261, 2017 WL 1101402 (11th Cir. Mar. 24, 2017). In Feise, the employee was a nurse who took FMLA leave in August 2013 and returned to work in September. Ten days after returning to work, Feise was terminated for sleeping on the job. Feise claimed that she was terminated in retaliation for using FMLA leave.
For purposes of appeal, the Eleventh Circuit assumed that Feise could prove a basic, prima facie case of FMLA retaliation. Instead, the Court focused upon the employer’s reason for termination and Feise’s response. The reason for termination was clear — sleeping on the job. Therefore, the burden shifted to Feise to show that sleeping on the job was not the real reason for her termination.
In an attempt to meet her burden, Feise compared herself to other employees who committed misconduct, but were not fired. First, Feise claimed that a medical technician committed misconduct which was worse than sleeping on the job — abandoning supervision of an at-risk child. Yet, the Eleventh Circuit rejected that attempt: “On-the-ground determinations of the severity of different types of workplace misconduct and how best to deal with them are exactly the sort of judgments about which we defer to employers.” Second, Feise compared herself to a medical technician who was not fired for sleeping on the job. Again, the Eleventh Circuit rejected that attempt, finding that the technician produced a doctor’s excuse for sleeping on the job, and that there was a qualitative difference between a nurse (Feise) and a medical technician.
The Court found that Feise failed to meet her burden and affirmed dismissal of her FMLA retaliation claim. Feise provides two lessons for employers. First, an employer can terminate an employee, even in close proximity to protected conduct like FMLA leave. Second, to protect themselves from retaliation law suits, employers need to discipline similar employees in a similar manner. If the employer in Feise had retained other nurses who slept on the job, but terminated Feise, the outcome of the case could have been much different.