Legal Background

Summary judgment is when one side asks the court to dismiss the case, claiming that there is no dispute about facts, and that the law clearly entitles the moving party to win. FMLA allows employees to take up to 12 weeks of leave per year for various purposes, including caring for a family member. The Act prohibits an employer from preventing or interfering with an employee taking FMLA time and from discriminating against or discharging an employee for using such leave. After looking at all the evidence, the court concluded that, based on the facts, a jury could reject the hospital’s claim of a HIPAA violation and find that the hospital intentionally discriminated against Ms N based on her age and her use of FMLA. Thus, the court could not dismiss the case and had to send it to a jury where Ms N will be able to make her claim against the hospital.

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Protecting Yourself

While Ms N was proactive in terms of taking notes about the comments and remarks that were made toward her and about older nurses and family leave, she should have been equally proactive in noting that she had gotten permission from the patient to share personal information. By not making that note, Ms N made it easy for the hospital to establish a pretext to fire her. She essentially gave the hospital the ammunition it was using.

However, her careful documentation of the comments made by her supervisor will be crucial in trying to convince the jury that she was fired due to her age and her use of FMLA rather than for a HIPAA violation. As with most cases, taking good notes is the best legal protection in almost all circumstances.

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Ms Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, NY.


US Department of Labor.  FMLA e-tools.  Wage and Hour Division. Accessed November 15, 2018.