Family Medical Leave Case Summary.

Terwilliger v Howard Memorial Hospital

When an employee is out on a valid leave under the Family and Medical Leave Act (FMLA), management may be tempted, for whatever reason, to regularly check-in with that employee to determine their status and when they might be coming back to work.

However, an employer needs to tread lightly and avoid anything that might be construed as an attempt to coerce an employee back to work. Such coercion would be considered ‘interference’ and a violation of that worker’s right under the FMLA.

While somewhat mired by the suspicious actions of the employee involved, the case of Terwilliger v Howard Memorial Hospital. should serve as a cautionary tale for employers looking to avoid FMLA violations.

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Case background

Regina Terwilliger started work for Howard Memorial Hospital as a kitchen employee and later worked as one of the four housekeepers. To perform her duties as a housekeeper, Terwilliger was given a master key that allowed her access to clean various areas of the hospital.

In November 2008, after about two years of service, Terwilliger requested FMLA leave because she required back surgery. Her submission was approved, and she underwent a procedure on January 29, 2009.

While recovering from surgery, Terwilliger’s supervisor Kim Howard called her weekly to ask when she would be coming back to work. On one occasion, Terwilliger asked if her job status was in danger and Howard told her she should come back as soon as possible.

On February 12, 2009, Terwilliger’s physician told her she could go back to work without limitations, and she did return to work four days later, having made use of 11 weeks of FMLA leave.

In October and November 2008, before Terwilliger’s leave, four employees at the hospital reported having money stolen from their locker or desk. Curiously, no money was stolen while Terwilliger was out on FMLA leave, and during some of the incidents Terwilliger was on the clock.

In an attempt to catch the thief, hospital management placed a hidden camera in a victimized employee’s desk in December 2009. On March 6, 2008, one of Terwilliger’s housekeeping co-workers was filmed opening the employee’s desk drawer, taking something out and placing that something into her pocket.

Then, on March 9, Terwilliger was filmed opening the employee desk drawer, looking into it, and then closing it. She would later argue that she was simply pulling out a trash can from behind the desk.

Regardless, the hospital fired both housekeepers on March 12. During the notification of termination meeting, the hospital’s human resources director told Terwilliger that she was being fired due to theft. The hospital would later say that Terwilliger would not have been fired if not for the theft issue.

Terwilliger then filed suit against her former employer, saying that her rights under FMLA had been interfered with via pressure to return and claiming that her termination was in retaliation for her taking FMLA leave.

The Court’s Decision on Interference

Terwilliger claimed that the hospital denied her full benefits under the FMLA because the HR director Howard pressured her to come back to work after 11 weeks of leave, one week shy of her full 12 weeks allowed under the law.

The hospital claimed that Terwilliger’s rights were not interfered with, noting that she was physically able to return to work when she came back. Therefore, Terwilliger did not return to work early, the hospital argued.

According to the letter of the law, an employer cannot interfere with or denying an employee’s leave or attempt to take leave under the FMLA. Any action that disrupts an employee from participating in protected activities is considered interference of their rights.

Terwilliger argued that she was discouraged from using the FMLA leave, as during her recovery, she felt pushed to come back to work by Howard’s weekly phone calls asking about her status. Terwilliger also noted that during one of these phone calls, she asked if her job was in danger and Howard said she should come back to work as soon as possible. Terwilliger also testified the HR director discouraged her from taking FMLA leave by telling her not to talk to anyone about the director discussing her rights with her under the FMLA.

The court decided that Terwilliger’s rights were indeed interfered with, as management’s actions would have been able to cause a ‘chilling effect’ on Terwilliger or other workers exercising their FMLA rights.

The Court’s Decision on Retaliation

With respect to the claim of retaliation, Terwilliger had the burden of proving that a factor in her termination was the exercising of her FMLA Rights.
In response to the retaliation claim, the hospital pointed out that Terwilliger was fired for a legitimate reason, suspicion of theft, and the district court agreed with this reason. However, Terwilliger could still argue that the suspicion was merely a pretext for retaliation.

In making a case for pretext, Terwilliger said the reason given for her termination actually changed: from theft to suspicion of theft.

During the termination conversation with Terwilliger, the HR director shared with her that the reason for her firing was theft of property. Terwilliger denied she committed the crime, and the videotape did not show that Terwilliger was actually stealing anything. The hospital didn’t challenge the fact that it a lacked direct proof of theft. However, the CEO, who dismissed Terwilliger, said it was obvious to him that Terwilliger would have taken money from the desk drawer if a different worker hadn’t already stolen it three days before. Additionally, Terwilliger had not been assigned to clean that particular office, and, in fact, the video was recorded before Terwilliger had clocked-in.

The court ultimately determined that the theft issue was not simply a pretext for retaliation.

What we learned

While the issue of firing Terwilliger appears to have been handled correctly, the actions of management taken during her FMLA leave were not.

The case shows that all employees, from entry-level to management, should be made aware of their rights and responsibilities under the FMLA. This means that employees on leave should know to provide a reasonable amount of status update. Also, management should be mindful of the frequency and handling of any contact with a worker on FMLA leave.


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