Labor & Employment Law Daily Wrap Up, RETALIATION—E.D. Pa.: Nurse, criticized for tardiness when using FMLA leave to care for son, advances claims, (Oct 2, 2026)

By Todd Harrison, J.D.

There was also a genuine dispute as to whether her termination was motivated by her FLSA claims related to unpaid time for changing into scrubs prior to work.

A former hospital OR nurse can move forward with her claims alleging FMLA and FLSA retaliation, as well as her FMLA interference and FLSA unpaid wages claims, ruled a federal district court in Pennsylvania. Denying the hospital’s motion for summary judgment, the court found genuine issues of material facts on all of the claims, including evidence that the employer considered the nurse’s use of FMLA leave as a negative factor in its decision to terminate her employment and its ongoing antagonism in the face of the nurse’s complaints about uncompensated changing time. As to her FMLA interference claim, the court determined that it was a jury’s responsibility to determine whether negative comments related to her leave discouraged her from taking leave (McBride v. Chestnut Hill Hospital, LLC, No. 20-4567 (E.D. Pa. Sept. 30, 2026)).

Caregiver responsibilities. Before arriving at work in the mornings, the nurse cared for her son with autism. Due to her son’s needs, it sometimes took extra time to get him ready for school, which would occasionally result in the nurse arriving for work a few minutes late.

Morning huddle. In October 2018, the employer hired a director of surgical services to whom the nurse began reporting. Shortly after she began reporting to the director, her arrival time became a subject of dispute. Much of the dispute centered on the 7:00 a.m. morning huddle, a daily meeting to discuss the department’s needs. Nurses were expected to attend the huddle at 7:00, dressed in scrubs.

One morning that October, the nurse was reprimanded for arriving a few minutes late to the huddle. She complained to her supervisor that the 7:00 start time required her to arrive at work and change into scrubs prior to the time for which she was compensated. Her supervisor spoke to the director of HR who advised the nurse that the hospital would not pay for changing time and that she could not clock in more than seven minutes before her scheduled shift.

Attendance policy. The statement from HR was in line with the employer’s attendance policy. In addition to prohibiting employees from clocking in no more than seven minutes before the start of a shift or seven minutes after their shift had ended, the employer’s timekeeping system automatically rounded clock-in and clock-out time to the nearest quarter hour. Thus, even if an employee clocked in at 6:53 to change into scrubs and attend the morning huddle on time, the system would round up the start time to 7:00 for compensation purposes.

Intermittent FMLA leave. Around this same time, the nurse invoked her right to intermittent FMLA leave to assist her son in the mornings and to account for occasional tardiness for work. She used her intermittent FMLA leave from October 2018 through the end of her employment.

Antagonistic comments. Shortly after the nurse first used FMLA leave, HR, her supervisor, and the director met with her to discuss her use of FMLA. HR told the nurse she was not allowed to use FMLA “to be tardy.” The director made similar comments at various times, including one incident where he allegedly screamed at the nurse in front of another employee about how she could not use her FMLA to be “late” for work.

Problems related to her use of FMLA leave persisted, including critiques of the nurse for various supposed infractions without any basis in hospital policy. The director also purportedly imposed a policy requiring the nurse to provide 45 minutes advance notice whenever she would need to use FMLA in the morning, even though such a policy did not appear in the employer’s written attendance policy. The nurse attributed these comments to the employer’s frustration with her use of FMLA leave and her comments about unpaid changing time.

Attendance points. In addition, the nurse received “attendance points” based on her arrival time. These points were assessed through the hospital’s automated timekeeping system and correlated with escalated warnings and discipline. The record evidence supported the nurse’s assertion that she received attendance points she should not have received.

Complaints continue. The nurse continued to make several complaints related to her FMLA and FLSA rights, at one point submitting a written complaint regarding her use of FMLA leave and the alleged abuse by the director. She also made complaints via the employee hotline.

Termination. On March 4, 2020, the nurse reported to work but soon became ill and left work. The next day she went to urgent care and was diagnosed with the flu. She returned to work on March 17 and submitted a doctor’s note supporting her absence from March 5 through March 13. The director instructed the nurse to go home and write up a statement about the events of March 4 when she had to leave work.

Eventually, the decision was made to terminate the nurse’s employment, and there was some indication this decision was made prior to the employer finishing its review of the nurse’s actions on March 4 or obtaining the nurse’s statement. According to hospital policy, an employee who accrued 18 attendance points in a rolling nine-month period would face termination. At no time did the nurse accrue 18 attendance points, even assuming she left her March 4 shift without permission.

Subsequently, the nurse filed this lawsuit, asserting claims for FMLA and FLSA retaliation, as well as FMLA interference and FLSA unpaid wages. The court first addressed the retaliation claims.

FMLA retaliation. On her FMLA retaliation claim, the employer disputed only the causation element of the nurse’s prima facie case. It argued that the sole reason for her termination was that she left the hospital mid-shift on March 4 without authorization, and that the nurse could not show that this explanation was pretext for retaliation based on her use of FMLA leave. The court disagreed.

Viewing the evidence in favor of the nurse, the court found the record permitted an inference that her use of FMLA leave was causally connected to her termination. The nurse alleged several instances of antagonistic comments related to her leave and had shown that the employer’s articulated reason for her termination was not supported by its own attendance points system. Thus, she had established a prima facie case for FMLA retaliation.

As to pretext, the court again noted a “troubling pattern of antagonism” related to her use of FMLA leave. Further, a reasonable factfinder could also view the hospital’s treatment of her purported shift abandonment on March 4 as inconsistent with its own written attendance policy. Thus, there was evidence from which a jury could disbelieve the employer’s proffered explanation for the nurse’s termination, which at this stage was sufficient to defeat a motion for summary judgment.

FLSA retaliation. Turning to the nurse’s claim for FLSA retaliation, the employer again disputed a causal relationship between the nurse’s invocation of her rights and the decision to terminate her employment. The employer also asserted that she could not satisfy her burden under the McDonnell Douglas framework.

According to the employer, the only FLSA-protected activity engaged in by the nurse was her complaint about changing time in October 2018, and there could be no causal connection between this complaint and her subsequent termination in March 2020 because the two events were not close in time. The employer also asserted there was no “ongoing antagonism” due to this singular FLSA complaint.

Here, the court agreed with the employer that the temporal gap cut against the nurse’s causation argument. However, the court noted that the nurse did not need to show temporal proximity to establish causation. Further, the hospital’s argument ignored the ongoing antagonism that was supported by the record.

Again taking the facts in the light most favorable to the nurse, her objection to the 7:00 huddle and the related uncompensated changing time requirement was an ongoing subject of conversation and tension, explained the court. Moreover, the nurse testified that the employer made numerous negative comments to her in response to her FLSA complaints. Accordingly, the nurse demonstrated enough ongoing antagonism to establish the causation prong for a prima facie case of FLSA retaliation.

Pretext. Shifting the burden to the employer to proffer a legitimate reason for its termination decision, it pointed to the nurse’s alleged shift abandonment on March 4. In addition, the employer cited a non-precedential Third Circuit decision for the proposition that the nurse could not discredit its explanation because her subjective view of whether she had permission to leave on March 4 was irrelevant. Mimi Ma v. Westinghouse Elec. Co., LLC, 559 F. App’x 165 (3d Cir. 2014). The court was not convinced.

Unlike in Ma, there was more to the nurse’s case than self-serving statements about the quality of her job performance, said the court. And a reasonable jury could disbelieve the employer’s proffered explanation even if it found the nurse did not have permission to leave her shift on March 4, as the employer’s attendance points system contemplates that an employee could abandon a shift without losing their job. Thus, the nurse had put forth enough evidence for a reasonable factfinder to conclude that the explanation of a single shift abandonment was pretext for termination causally connected to the nurse’s FLSA complaints.

FMLA interference. Next, the court addressed the nurse’s claim for FMLA interference. According to the employer, it never denied the nurse any FMLA benefit to which she was entitled. However, the court noted that FMLA interference encompasses more than outright denials of FMLA benefits.

Several instances were alleged by the nurse wherein the employer discouraged her use of FMLA leave, including the issuance of attendance points for time when the nurse validly used leave and when it told her she could not use her leave “to be tardy.” A factfinder could also find FMLA interference if they found the nurse was terminated in retaliation for using her FMLA leave.

In addition, the court was unconvinced by the employer’s reliance on an automated system that assessed attendance points to distance itself from this claim. “An employer cannot avoid liability for FMLA interference by virtue of allowing an automated system to commit the interference instead of directly interfering itself,” said the court.

Unpaid wages. Finally, the court considered the nurse’s FLSA claim for unpaid wages. The employer challenged this claim on several grounds, none of which persuaded the court. First, it contended that the nurse never measured the amount of time it took her to change into scrubs, and thus had no evidence that she ever worked “off the clock.” However, the court noted that the employer’s records would show when the nurse clocked in prior to her shift to change into scrubs, thus making the amount of “off the clock” time easily ascertainable.

Next, the employer argued that because the nurse alleged that she was retaliated against for changing into scrubs “on the clock,” she had no proof that she performed any “off the clock” work for which she was not compensated. The court explained that while there was evidence the nurse sometimes changed into scrubs after clocking in, that did not establish that she always did so.

The employer then proceeded to assert the bulk of its argument around its timekeeping policies and practices, contending that its “neutral” rounding system precluded the nurse from stating a claim for unpaid wages. In this instance, the court noted that the general propriety of a rounding system was not at issue, and a factfinder could conclude that such a presumption was inapplicable because the employer’s system prohibited employees from ever recording more than seven minutes before or after a shift.

Lastly, the employer made an “offsetting” argument, contending the nurse was over-compensated compared to the time she actually worked. However, any alleged “overpayments” were a function of the employer’s rounding system, observed the court, and the employer did not point to any case law “suggesting that a rounding system that happens to inure to an employee’s benefit for time worked during her shift absolves the employer of paying the employee for time she worked outside her scheduled shift.” Accordingly, a reasonable factfinder could find in favor of the nurse on this claim as well, concluded the court.

The case is No. 20-4567.

Judge: Surrick, R.

Attorneys: Kimberly H. Ashbach (Law Offices of Kimberly H. Ashbach) for Pamela McBride. Wade D. Albert (Stevens & Lee) for Chestnut Hill Hospital, LLC.

Companies: Chestnut Hill Hospital, LLC

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