Person writing on notes on paper.

Okay—here’s the fact pattern: Pregnant employee calls in sick with back pain, is fired four days later, and is replaced by a man.  Sounds like pregnancy discrimination and FMLA retaliation, right?  Not when you know the rest of the facts, according to a recent federal appeals court decision which upheld the employer.

Hospital employee Katie Neidigh had a history of back trouble, but was able to do her job.  After Ms. Neidigh became pregnant and her back problem flared up, she called in sick one day.  While covering Ms. Neidigh’s shift, her supervisor learned from a patient’s wife that Ms. Neidigh had yelled at her and her granddaughter during a recent visit.  The supervisor brought the incident to the attention of HR, who investigated and concluded that Ms. Neidigh had violated hospital rules that required respectful and professional treatment of patients and their families.

The supervisor and HR reviewed Ns. Neidigh’s personnel file, which contained not only a Final Written Warning that one more violation would lead to termination, but also documentation of six prior discipline issues, including (1) a warning relating to inappropriate patient care documentation; (2) a note counseling her about insubordination, (3) a report by two nursing assistants that Ms. Neidigh had been rude to them and a warning that further occurrences could result in discipline; (4) a note counseling against horseplay and wasting supplies; and (5) a written warning for attendance policy violations.  Based on the yelling incident and her disciplinary record, HR and management decided to fire Ms. Neidigh.

She sued, alleging that she was fired because of her pregnancy and because she used the Family and Medical Leave Act to cover her absence due to back pain.  But the trial court dismissed the suit after the employer laid out Ms. Neidigh’s disciplinary history, and the appeals court agreed.  The court noted that, while Ms. Neidigh had indeed been fired only 4 days after she requested FMLA leave, it was during those 4 days that the yelling incident was discovered: “Although her absence led to the discovery of the incident with Mrs. M, it was that incident, in the context of her prior violations, and not the fact that she was on leave, that led to her termination.“  Neidigh v. Select Specialty Hosp., 664 F. App’x 217, 223 (3d Cir. 2016) 

What this means to you: 

This case illustrates the importance of the Four Key Management Concepts we teach in Managing Within the Law:

  1. Be consistent. The employer followed a consistent discipline policy.
  2. Have a legitimate business reason. The appeals court said that if you can prove that you had a legitimate business reason for an employment decision, it is not illegal discrimination or retaliation.
  3. Document events. The employee’s file contained plenty of documentation of her performance and behavioral lapses.
  4. Call the experts. The supervisor worked with HR to carry out a legal termination of a deficient employee. 

Make sure your managers and supervisors have the critical information they need to manage legally and effectively. To find out more about our national HR training programs or to book a workshop, please call 800-458-2778 or email

Posted 06-18-2018

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.