United States District Court, D. Oregon, Pendleton Division
OPINION AND ORDER
PATRICIA SULLIVAN UNITED STATES MAGISTRATE JUDGE.
brings this lawsuit pursuant to the Family and Medical Leave
Act (“FMLA”) 29 U.S.C. §§ 2615(a) and
its state counterpart the Oregon Family Leave Act
(“OFLA”), O.R.S. § 659A.183 against St.
Charles Health System, Inc. Defendant has moved for summary
judgment on all four of plaintiff's claims. (Docket No.
47). The parties have consented to allow a Magistrate Judge
to enter final orders and judgment in this case in accordance
with Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c).
See (Docket No. 20). Oral argument was held on
October 8, 2019. See (Docket No. 61). For the
reasons set forth below, defendant's motion is DENIED.
started working at the predecessor to St. Charles Prineville,
Pioneer Memorial Hospital, in September 1999 (“the
hospital”). First Amended Complaint ¶ 9 (Docket
No. 44) (“FAC”). Plaintiff first began in a per
diem position on the night shift and medical-surgical ward.
Ames Decl. Ex. 2 (Miller Dep. Vol. I 27:20-23); Miller Decl.
¶ 1. She later transferred to a fulltime position as an
intensive care unit (“ICU”) float nurse and then
to a “resource nurse” position. Id. at
(28:20-29:18). In the resource nurse position, plaintiff did
not “have a patient load” and instead
“cover[ed] the needs to all the hospital, [including]
all of the departments.” Id. at (29:12- 18).
Between 2006 and 2014, plaintiff regularly received positive
performance reviews. Miller Decl. Exs. 1-7. Prior to 2016,
plaintiff had “nothing in the way of discipline”
with the exception of one incident from 2002. Becker Decl.
Ex. 4 (Greene Dep. Ex. 12). In May 2016, plaintiff took FMLA
leave to care for her ailing mother in Bulgaria. Miller Decl.
¶ 8; Becker Decl. Ex. 4 (Greene Dep. Exs.
1-2). In a deposition, plaintiff testified she
was familiar with the process for applying for protected
leave. See Ames Decl. Ex. 2 (Miller Dep. Vol. I
132:5 - 18; Vol. II 282:22-283:3).
in 2015, as the hospital moved to a newly constructed
building, plaintiff transitioned to a position in the
emergency department (“ED”). Miller Decl. ¶
7. In April or May 2016, Michael Greene
(“Greene”) became the Nurse Manager of the
hospital's ED. Ames Decl. Ex. 2 (Miller Dep. Vol. I
hospital used an incident reporting system, which is referred
to by either of two acronyms: Safety Alert System
(“SAS”) or Event Management System
(“EMS”). Ames Decl. Ex. 4 (Arbitration Excerpts
21:21-22:3). Through the reporting mechanisms, hospital
employees can report patient safety concerns, with the option
of filing anonymous reports, triggering investigations
conducted by management. Id. at (22:17-22).
April through the end of July 2016, the hospital received
three such reports regarding plaintiff. On April 30, a SAS
report alleged that plaintiff took a break without first
ensuring the provider was fully informed of the treatment
plaintiff had provided. Greene Decl. Ex. 1. On May 6, a SAS
report alleged that plaintiff mishandled and mislabeled a
patient's urine sample. Greene Decl. Ex. 2. On July 10, a
caregiver sent an email concerning “a few
complaints” he had received from a doctor in the ED:
(1) plaintiff allegedly mismanaged a critical patient; and
(2) plaintiff allegedly did not know how to “hang a
propofol, ” which caused a different nurse “to
come manage the drip because [the doctor] had no faith in
[plaintiff's] ability to do it safely.” Greene
Decl. Ex. 3.
27, Greene spoke with plaintiff and provided her with a
documented “Verbal Coaching.” Greene Decl. Ex. 4.
August through the end of December 2016, the hospital
received four additional SAS reports regarding plaintiff. On
August 31, a SAS report alleged that plaintiff failed to
properly dispose of a lorazepam syringe. Greene Decl. Ex. 5.
On November 28, a SAS report alleged that, despite being
asked to do so, plaintiff failed to repeat vital signs on a
patient and reported that she had just done “them and
they were fine.” Greene Decl. Ex. 6. On December 10,
two SAS reports were generated that alleged that plaintiff
incorrectly retrieved medicine from the hospital's
management system and that plaintiff requested a medication
that was intended for a different patient. Greene Decl. Exs.
December 19, plaintiff reported to her medical provider, in a
regularly scheduled checkup, that her mother's health
conditions were causing her increased stress. Miller Decl.
Ex. 8 at 4.
December 23, Greene spoke with plaintiff about the November
28 and December 10 incidents and followed-up by sending her
an email later that day. Ames Decl. Ex. 2 (Miller Dep. Vol. I
February 10, 2017, plaintiff received her annual review
assessing her performance from January 1, 2016, through
December 31, 2016. Miller Decl. Ex. 9. Greene assessed the
following in his portion of the review:
“Goals - ‘What you do'”
“Accountability - ‘How you do
“Accountable for keeping
“Acts professionally and receives
feedback graciously, even when it's hard to
“Acknowledges mistakes, learns from them
and constantly works to improve”
“Asks for directions when not clear about
“Caring - ‘How you do
“Personalize each interaction in the
“Treats others with respect, kindness and
“Listens and responds to others with
empathy and thoughtfulness”
“Shows appreciation to others through
words and actions”
“Teamwork - ‘How you do
“Seeks different perspectives and
“Works with others to provide a safe,
respectful healing environment”
“Offers to help others and asks for
assistance when needed”
“Acknowledges the talents and
contributions of the team”
at 6. In the “Overall Evaluation Comments”
section of the review, Greene noted that plaintiff had
“shown improvement in med scanning in 2016, ”
took “direction from the ED coordinator well,
demonstrate[d] follow-thru [sic] with assigned tasks and has
taken initiative to work with ED Coordinators on triaging
waiting room patients, ” but that she “could
communicate urgency and priorities with peers
better[.]” Id. at 8.
February 2017, four incidents were the subject of SAS reports
involving plaintiff. On February 10, a SAS report alleged
that plaintiff failed to properly order a procedure for a
patient. Greene Decl. Ex. 10. On February 11, plaintiff
self-reported that she administered aspirin to a patient with
chest pain. Greene Decl. Ex. 11. On February 18, a SAS report
alleged plaintiff discharged a patient without notifying the
patient's physician. Greene Decl. Ex. 12. On February 19,
a SAS report alleged plaintiff administered the wrong dosage
of medication to a patient. Greene Decl. Ex. 13.
becoming aware of the February incidents, Greene arranged to
meet with plaintiff. See Becker Decl. Ex. 4 (Greene
Dep. Ex. 10). On March 2, Greene met with plaintiff to
discuss the incidents; Human Resources (“HR”)
partner, Matt Oakes (“Oakes”), and
plaintiff's Oregon Nurses Association Union
(“ONA”) Representative, Courtney Niebel
(“Niebel”) also attended the meeting. Ames Decl.
Ex. 6 (Oakes. Dep. 8:8-11; 29:3-5). That same day, email
correspondence between Greene, hospital management, and HR
staff indicated that although “[t]ermination was not on
the table, ” and “remedial education &
testing” was warranted, a “final written
corrective action with a performance plan” would likely
be administered. Becker Decl. Ex. 4 (Greene Dep. Ex. 12).
testified that the purpose of the meeting was to provide
plaintiff with an opportunity to present “her side of
the story” and provide additional information to help
the hospital understand why “those events
occurred.” Ames Decl. Ex. 6 (Oakes Dep. 29:7-11). The
meeting resulted in a two-week administrative suspension.
See Id. at (29:18-21). After the meeting, plaintiff
asked Greene for permission to “take leave to care for
[her] mother in Bulgaria” and that she was
“prepared to take leave immediately[.]” Miller
Decl. ¶ 16. In response to her request, Greene said that
she could not take leave while she “was already on
administrative leave.” Id. at ¶ 17. The
hospital's handbook directs supervisors to “work
with Human Resources and designated third party leave
administrator in providing [FMLA] leaves of absence.”
Miller Decl. Ex. 11.
following day, March 3, Greene completed a seven-page
investigative report analyzing the February 2017 SAS
reports. Becker Decl. Ex. 5 (Greene Dep. Ex. 13);
see also Greene Decl. Ex. 15. Greene concluded that
plaintiff “failed to follow standard work”
procedures as shown in the February 10, 11, 18, and 19 SAS
Reports. Becker Decl. Ex. 5 (Greene Dep. Ex. 13 at 1-7). He
recommended termination. Id. at 7.
result of Greene's investigative report, plaintiff,
Greene, Oakes, and Niebel met on March 15 and plaintiff was
issued a final written warning. Ames Decl. Ex. 6 (Oakes Dep.
30:5- 14). In order to return to work, plaintiff was to be
monitored by an assigned nurse leader for two shifts and was
required to complete nine “competencies.” Ames
Decl. Ex. 2 (Miller Dep Vol. I, Dep. Ex. 6). During the
meeting, plaintiff “made a request for leave to care
for her mother[.]” Miller Decl. ¶ 20. Greene
instructed plaintiff the date of her next shift and that she
“needed to complete two competencies before taking
March 17 and 18, plaintiff successfully completed her
competencies. Miller Decl. ¶ 21; Ames Decl. Ex. 6 (Oakes
Dep. 45:2-8). Plaintiff then asked Greene “for
permission to take leave to care for [her] mother, ” to
which Greene directed plaintiff to contact human resources.
Miller Decl. ¶ 21. Plaintiff “attempted to contact
human resources multiple times between March 18 and March 24,
2017, including leaving voicemails and requesting return
phone calls.” Id. at ¶ 22. On March 24,
an HR employee contacted plaintiff about her request for
leave and plaintiff contacted the hospital's third-party
leave contractor, Unum. Id. at ¶ 23. Plaintiff
requested leave beginning March 25 for her “own serious
health condition.” Miller Decl. Ex. 13 at 2. On March
27, Unum informed plaintiff that she was eligible for leave
“[a]s of the date of [her] request, ” pending
certification. Id. at 7. Plaintiff also requested
beginning April 7 for her “parent's serious health
condition.” Miller Decl. Ex. 13 at 1. Unum similarly
informed plaintiff, on March 27, that she was eligible for
leave “[a]s of the date of [her] request, ”
pending certification.” Id. at 3.
March 19, the day after completing her competencies, Greene
wrote in a SAS report that plaintiff failed to follow a
physician's order in removing a catheter. Greene Decl.
Ex. 16 On March 26, a SAS report alleged that plaintiff left
the door to the medication management system unlocked and
unattended. Id. Based on these incidents, the
hospital elected to take disciplinary action. Ames Decl. Ex.
6 (Oakes Dep. 45:9-15).
April 3, plaintiff, Greene, Oakes, and Niebel met to discuss
the SAS reports “to get an understanding of
[plaintiff's] side of the story.” Id. at
(Oakes Dep. 46:3-10); see also Notice of Discharge
at 1. In plaintiff's Notice of Discharge, plaintiff
disputed Greene's account of the March 19 incident and
stated the catheter “fell out.” Ames Decl. Ex. 2
(Miller Dep. Ex. 7 at 4) (“Notice of Discharge”).
The Notice of Discharge also includes an incident, undated,
alleging that plaintiff sent a lab ...