Sometimes an employee who is released from service for good cause complains that the real reason for the employer’s decision is retaliation for her attempt to protect the public. “I’m a whistleblower!” the disgruntled former employee proclaims. “Look at all the terrible misconduct the employer was trying to cover up!”
The courts look carefully at such a call to alarm, as the federal district court in Rhode Island recently did. A magistrate judge issued a report and recommendation that eventually became the decision of the court. The court’s decision warrants careful attention because it illustrates that so-called whistleblowing may be all fury without any sound, signifying nothing.
“Tegan” was a registered nurse at Lifespan’s Miriam Hospital in Providence. She began working at the hospital in 1991 and was promoted four times. Her last review, in December 2014, was positive. As of February 2015, she supervised other nurses in two settings, a cardiovascular procedural care and endoscopy unit (PCU) and the cardiac catheterization and EP laboratory (cath lab). Starting in December 2014, she reported directly to “Everly,” a hospital director. A few months later, in March 2015, Everly began receiving complaints about Tegan.
The initial complaints, in March, April, and June 2015, came from five nurses in the PCU, who complained to Everly that Tegan was “never around,” “not visible on the unit,” “disengaged,” “not supportive of staff,” “had not held a staff meeting in years,” and was not “collaborative on the unit’s issues.” The complaints also came from the hospital’s senior vice president, who described Tegan as a “barrier to change,” and the hospital’s site risk manager, who told Everly that Tegan was unresponsive to phone calls.
In June, Everly met with her supervisor, the chief nursing officer, and they modified Tegan’s schedule from four 10-hour shifts to five 8-hour shifts. Everly believed the change would help Tegan improve her visibility and performance. Tegan later claimed that the schedule change was an adverse action in retaliation for two whistleblowing complaints.
In July, eight nurses Tegan supervised in the PCU complained about her general lack of communication, lack of staff support, and even yelling, bullying, and unfair treatment. The most generous among them described her as “rushed” and “overwhelmed.”
After receiving the second wave of complaints in July, Everly met with her supervisor again and then with the hospital’s vice president for HR. They decided to discharge Tegan because, among other performance issues, she had plainly lost the confidence of her staff.
At no time during the meeting did they discuss either of the two so-called whistleblowing complaints Tegan later alleged as the basis for her termination. On July 27, Everly informed Tegan that she was being discharged based on performance issues raised by hospital employees.
The so-called fraud. The nurse practitioners and physician assistants who worked in the hospital’s cath lab receive an established salary and serve on assigned shifts. They are exempt from the Fair Labor Standards Act’s (FLSA) protections and therefore had a long-standing practice of leaving when their replacements were ready and patient care was complete. As a result, they typically worked fewer hours than their shifts required, a practice squarely approved by the manager who preceded Tegan.
Tegan also gave the OK to employees recording hours based on their assigned shift rather than the hours they actually worked. In April 2015, however, she reported the practice to Everly, and by May 1, Everly had changed it, directing the clinical leader of the group to require staff to remain for their entire shift and record all time based on the hours they actually worked.
The so-called unsafe recovery practice. Tegan also claimed that in May 2015, she “discovered” an unsafe practice of having patients recover from cardiac catheterization “on the floor” rather than in the PCU, with the critical care unit (CCU) as the backup location.
In fact, hospital staff had reviewed the matter extensively in 2014, and on June 9, 2015, a clinical manager broached the subject again in an e-mail to the hospital’s administrative director and others (but not Tegan). Tegan was copied on a subsequent e-mail and was therefore brought into the discussion later that day. Even then, her one comment wasn’t a report that the practice violated the law but an observation that there “had been no further discussion” of the plan to use the floor and the CCU for patient care since 2014.
No Sound—At Any Frequency
To establish that she was protected under the Rhode Island Whistleblowers’ Protection Act, Tegan had to show that (1) she engaged in protected whistleblowing, (2) she suffered an adverse action after engaging in the protected conduct, and (3) her protected conduct was the reason for the adverse action (i.e., they were “causally related”).
Protected conduct includes reporting a violation of the law, either past or imminent, that was in fact unlawful or that the employee reasonably believed was unlawful. The law that was violated must be an identifiable federal, state, or local law or regulation.
The court dismissed Tegan’s case on summary judgment, meaning it found that, even when it viewed all the evidence in the light most favorable to her, it wasn’t sufficient for a jury to find that she was terminated because she was a whistleblower. Let’s look at why the court made that decision.
Hours of salaried employees. Even if Tegan believed the nurse practitioners and physician assistants were committing “fraud” or a “crime,” that belief wasn’t “objectively reasonable.” There was no violation of any law, and she knew or should have known it. Her after-the-fact claim during her deposition that she thought the employees were committing criminal larceny wasn’t reasonable because a person in her position, with her training and experience, should have understood that a salaried employee who leaves before the end of a set shift with the approval of his manager hasn’t committed a crime.
Tegan couldn’t rebut the hospital’s argument that the reason it decided to terminate her employment was its loss of confidence in her after 15 different people lodged numerous complaints about her job performance. The remaining basis on which she attempted to build her case—that her report of the alleged fraud in April was close in time to the decision to terminate her in July—simply wasn’t sufficient to overcome the hospital’s nondiscriminatory reason for ending the employment relationship.
Recovery location of catheterization patients. Tegan didn’t make a “report” about unlawful activity within the meaning of the whistleblower law. The undisputed evidence was that the topic of the location of recovering patients was widely and openly discussed in 2014, and an employee other than Tegan raised the matter again in June 2015. Tegan’s claim that she expressed concern to Everly about the matter in May 2015 didn’t satisfy the legal standard for a “report” under the law. A report must involve something beyond passing along a workplace concern. Instead, a protected whistleblower must report a violation of an identifiable law.
At any rate, the temporal proximity between Tegan’s vague report in May and her termination in July wasn’t sufficient to put the matter in front of a jury.
The court made some important and helpful points about the nature of evidence in an employment case. Tegan argued that the court should ignore the hospital’s reliance on the numerous complaints her subordinates made to Everly, which the hospital offered as its nondiscriminatory reason for terminating her.
She claimed the complaints not only were inaccurate but also were inadmissible hearsay (out-of-court statements). The court noted that it’s well-established that courts can consider statements demonstrating what motivated an employer to take action against an employee. Those statements aren’t hearsay because they aren’t offered for their truth but instead to show why the employer acted.
There was no evidence that Everly disbelieved the complaints she received about Tegan. Thus, Tegan’s effort to dispute the complaints, the court said, was really nothing more than an argument that the decision was “unfair” or “unwise.” A court’s job is not to second-guess an employer’s decision to end the employment of a person deemed to be a “poor performer.”
As always, the takeaway is simple: Be fair and thorough when you end someone’s employment. Strong documentation of meetings in which various persons provide input (meaning they can be witnesses) is the best practice.