In this month’s case, a court must choose whether to accept a hospital’s explanation that a nurse was fired for violating the Health Insurance Portability and Accountability Act (HIPAA) or let a jury decide whether the hospital’s action was merely a pretext for firing the nurse for taking advantage of the Family Medical Leave Act (FMLA).

Ms N had been experiencing increasing personal and professional difficulties over the past 2 years. Although life had never been easy for the 53-year-old nurse, in the 2 years since a new supervisor was brought on in the hospital emergency department (ED) where she worked, things had taken a definite turn for the worse.

Ms N had been working at the hospital for close to 13 years. Shortly after she began, her toddler son was diagnosed with autism. His condition turned out to be severe, and he required constant care. After a few years, the stress of the situation became too much for the marriage, and Ms N’s husband left. Although Ms N’s mother was able to help to some extent, caring for her son was difficult. He would go through periods of insomnia and have gastrointestinal problems, but his inability to communicate made helping him challenging. Over the past 7 years, Ms N had been using FMLA leave intermittently to care for her son when he was having an episode. She was always careful to request the FMLA time properly, and she was glad to have that option to take time off when her son needed care.

Two years ago, a new supervisor, Ms S, was hired to manage the ED nursing team. Ms S was in her early 30s, single, and career-driven. Ms S had strong feelings about how the ED should be run, including a belief that it should be staffed by “younger, energetic” nurses. Ms N, in her 50s and one of the oldest nurses in the ED, felt uncomfortable about comments she heard Ms S make to others, and she began documenting these occurrences.

“The ED is a place for young nurses, not old nurses, and this taking of family leave is not going to be tolerated,” was one comment Ms N heard her supervisor make to another employee. Ms S also clearly had a problem with Ms N’s use of FMLA time and began referring to FMLA leave as “mental health breaks.” Ms S told Ms N that she may have “gotten away with” using FMLA time with her previous supervisor, but “you won’t get away with it with me.” When speaking to other younger nurses, the supervisor referred to older nurses like Ms N as “old farts” and “old women” and even said to Ms N, “I know you’re getting older and you have problems with your memory, so you may need to write this down.”

Work began to feel oppressive to Ms N, yet she continued to work and use FMLA as needed. That fall, her son was having significant difficulties that required Ms N to take FMLA time intermittently in September, October, and November. When Ms N returned after the November FMLA leave, Ms S loudly announced, “Anybody with family leave, you’re going.”

Two weeks later, Ms N was approached by the sister of a patient who was asking for information on her sibling’s condition. The patient’s nurse was not available, so Ms N spoke to the patient and requested permission to access the medical record and share some information with the patient’s sister. The patient, an elderly woman, agreed. Ms N, however, neglected to note this in the patient’s chart. She filled the sister in on the patient’s condition and finished her shift.

Two weeks later, Ms N was fired. She was told that the patient complained that private information about her condition had been shared by Ms N without the patient’s permission, which constituted a HIPAA violation. Ms N tried to protest that she had received permission from the patient, but because she hadn’t noted this in the chart, she was terminated from her position.

Ms N hired an attorney and explained the situation, including showing the attorney the list of comments the supervisor had been making.

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“I believe that the alleged HIPAA violation was just a pretext to fire you,” said the attorney. “It sounds as though you were really fired for your age and for your use of FMLA.”

The attorney filed a lawsuit against the hospital, alleging wrongful termination. The hospital made a motion for summary judgment, asking the court to dismiss the case against it. After looking at all the evidence before it in the light most favorable to the nonmoving party (Ms N), the court agreed with Ms N that there was sufficient evidence for a jury to be able to decide if the HIPAA violation was really a pretext for firing Ms N due to her age or use of FMLA time. The court sent the case for a jury trial on this issue.