September 2013

By: Phoebe A. Taurick, Esq. & James B. Sherman, Esq.

In Lichty v. Allina Health Systems, a Minnesota federal court ruled that a nurse with breast cancer could not show that she was terminated because of her disability or her use of medical leave. Even though her breast cancer qualified her for protection under both the ADA and the FMLA, her employer did not run afoul of these statutes when it terminated her after discovering numerous medication dispensation discrepancies.

The plaintiff returned from an extended medical leave to undergo cancer-related surgery with light-duty restrictions, and remained on intermittent medical leave for follow-up appointments and for days when she experienced severe pain. The plaintiff reported to her supervisor that other employees were complaining about needing to accommodate her light-duty restrictions.

During this time period, the plaintiff came under investigation for discrepancies in medication dispensation. She was found to have twenty-five unresolved discrepancies during one month. In contrast, two other nurses who were audited were found to have zero discrepancies and four resolved discrepancies, respectively. The plaintiff was terminated for these discrepancies, and for “possible drug diversion,” and sued under the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA).

The court held that the plaintiff could not overcome her employer’s reason for terminating her-the numerous discrepancies in her dispensation of medications, which they suspected may be due to drug diversion. As this reason is not sufficiently related to her rights under the ADA or FMLA, it was a legitimate reason for termination.