30 April 2024

Court Allows Nurse Educator's Whistleblower Retaliation Claim To Move Forward Against Hospital

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A California appeals court recently allowed a nurse educator's retaliation lawsuit against her former employer to go forward.
United States Litigation, Mediation & Arbitration
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A California appeals court recently allowed a nurse educator's retaliation lawsuit against her former employer to go forward. The court found that the hospital's stated reason for the plaintiff's termination was a pretext for its retaliatory motive, and, as a result, her case should proceed to trial. The case is Johnson v. Pasadena Hospital Assn., Calif. Ct. App., No. B321794 (Dec. 28, 2023).

On January 8, 2018, the hospital hired the employee as a perioperative nurse educator to identify problems and needs for perioperative nurses who care for patients before, during, and after surgery. A job requirement was CNOR certification within 90 days of hire, or by April 8, 2018.

In March 2018, two workers reported to her that orthopedic technicians were performing tasks during surgery outside the scope of their certification. She reported this concern to her supervisor, who asked her to investigate further. The employee conducted an internal investigation and advised her supervisor that the orthopedic technicians might exceed the scope of their certifications. Per the supervisor's request, she completed a further investigation and report. The hospital ultimately required the technicians to obtain additional credentials to perform certain tasks.

Meanwhile, the employee had difficulty registering for the CNOR due to a weeks-long website malfunction. Once she could register and pay the fee, she did not hear from the exam provider for quite some time. She advised her supervisor of this issue, who reportedly told her it wouldn't be a problem. Ultimately, she heard from the exam provider on April 6, 2018, two days before her deadline, that she was scheduled to take the exam on May 5, 2018. At that time, her supervisor advised her that they had already decided to fire her for failing to take the exam within 90 days of being hired. The hospital terminated her on April 9, 2018.

In September 2018, the employee filed a whistleblower retaliation suit against the hospital. She claimed that the hospital fired her in retaliation for reporting that orthopedic technicians were performing tasks outside the scope of their certifications. The hospital claimed it terminated her for failing to take a required certification exam.

The trial court dismissed the case before trial, and the employee appealed. On appeal, the appeals court concluded that there was sufficient evidence that the hospital's legitimate reason for termination was a pretext to cover its retaliatory motive. Both the employee and her officemate testified that the supervisor had told her that taking the exam later than 90 days would not be a problem if she had a test date scheduled, which she did. Furthermore, her termination occurred close to her reporting the orthopedic technicians working outside the scope of their certifications. Therefore, the appeals court found that the trial court erred in dismissing the case before trial.

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