Fla.: Fired Employee Fails to Show More Favorable Treatment for Others

By Rosemarie Lally Dec 16, 2014

A nursing assistant fired for walking off the job failed to provide evidence that others similarly situated were treated more favorably or that her employer had an affirmative duty to provide her with information about the Family and Medical Leave Act (FMLA), a Florida federal court found, granting her employer’s motion for summary judgment on her discrimination and FMLA claims.

Diane Johnson, a black female, was employed as a certified nursing assistant by NF Chipola, LLC, which operates a skilled nursing facility. Johnson was injured when she fell on the job, but her doctor allowed her to return to work on light duty with restrictions on her left arm and left leg.

Johnson was then assigned to a variety of constantly changing light duty tasks, including kitchen duty. Her hours were reduced from 40 to 32 and she had to work weekends. On the day she received a new assignment, Johnson thought she was clear to take a lunch break at 10:30 and did so. Chipola, however, claims it had scheduled her for an 11:00 lunch period, and that she never requested permission to leave at 10:30. After an investigation, Johnson was terminated for the offense of "walking off the job." She then sued for race and gender discrimination, and FMLA interference.

To prove a prima facie case of race or gender discrimination, a plaintiff must show that (1) she is a member of a protected class; (2) she was subjected to adverse employment action; (3) her employer treated similarly situated employees who are not members of the plaintiff's class more favorably; and (4) she was qualified for the job or job benefit at issue. The court noted that only the issue of more favorable treatment being given to similarly situated employees was in dispute here.

Johnson has pointed to “absolutely no evidence” of any similarly situated employees, who are not members of her class, being treated more favorably, the court found, explaining that she had not shown any situation in which a white or male employee was not fired as a result of taking the wrong lunch break or otherwise being accused of walking off the job or some other terminable offense. Rather, Johnson has only pointed to employees of different races – one white man and two white women -- who received different treatment in being accommodated after workplace injuries. The court found the evidence irrelevant because Johnson did not suffer any adverse employment action other than her termination. Further, Chipola introduced evidence that it had recently fired a white male and two white females for abandoning their jobs — the same offense that Johnson was accused of committing.

“[E]ven if Johnson had suffered an adverse employment action because of the reduction and change in hours and the different duties, she would still fail to show that she was treated differently from similarly situated employees outside her protected class,” the court said, noting that her use of two women as examples of people treated more favorably directly contradicts her gender discrimination claims. “No reasonable juror could believe that she was terminated because of her race or gender because she wholly failed to produce any evidence that other similar employees who were not members of a protected class were not fired for similar conduct,” the court held.

Turning to the FMLA interference claims, the court noted that Johnson had failed to point to the denial of any benefit to which she had been entitled under the FMLA. She claimed only that Chipola "did not discuss the availability of FMLA leave" with her, but does not cite any authority for the proposition that Johnson had a duty to discuss FMLA options with her. The FMLA only states that "an eligible employee shall be entitled to [leave]," the court said. “There does not appear to be any affirmative duty for an employer to provide her with specific notice of her FMLA rights after suffering a workplace injury, and Johnson has not so much as attempted to point to one,” the court concluded, dismissing her claims.

Johnson v. NF Chipola, N.D. Fla., Case No. 5:14-cv-119-RS-GRJ (Nov. 26, 2014).

Rosemarie Lally, J.D., is a freelance legal writer and editor based in Washington, D.C.


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