Nurse Educator Can Proceed with Whistleblower Retaliation Claim Against Hospital

Takeaway: Where there was evidence that a hospital’s stated reason for firing a nurse educator—that she failed to take a required certification exam on time—was a pretext to cover the hospital’s retaliatory motive, the employee’s retaliation claim could go to trial.

A nurse educator who claimed a Pasadena, Calif., hospital terminated her for reporting that orthopedic technicians were performing tasks outside the scope of their certifications can go forward with her retaliation lawsuit, a California appeals court recently ruled.

The hospital submitted evidence that it fired the nurse educator because she failed to pass a certification exam within 90 days, a condition to which she agreed when hired. The nurse educator, however, submitted evidence that she had been told she could take the exam after the 90-day deadline so long as she had a test date scheduled, which she did. Therefore, the appeals court said, because there was a question as to whether the hospital’s stated reason for firing the employee was pretextual, the trial court erred in dismissing the lawsuit before trial.

The employee was hired on Jan. 8, 2018, as a perioperative nurse educator, a position focused on identifying problems and learning needs for perioperative nurses—those who treat patients before, during and after surgery—and bringing those issues to the attention of decision-makers.

A listed job requirement for the perioperative nurse educator position was CNOR certification, a credential for perioperative nurses. To obtain this credential, an individual must pass an examination on patient safety and best practices in a perioperative setting. The employee did not have CNOR certification at the time of hire. The hospital therefore imposed as a condition of employment that she obtain CNOR certification within 90 days of her date of hire, i.e., by April 8, 2018.

At some point in or around March 2018, two hospital workers reported concerns to the employee that orthopedic technicians were performing tasks during surgeries that were outside the scope of their certifications. The employee shared the concerns with her supervisor on or about March 20, 2018.

The supervisor met with the chief nursing officer and then got back to the employee, asking her to look into the matter. The employee conducted an internal investigation and on March 23, 2018, reported that orthopedic technicians indeed might be performing tasks outside the scope of their certifications. After receipt of this report, the nursing supervisor asked the employee to continue her investigation, research the applicable credentialing requirements, and prepare a compliance report.

The employee did so, and upon completion of the report, the hospital decided to require its orthopedic technicians to obtain additional credentials so that they could perform certain tasks.

Problems with Scheduling Exam

In January 2018, the month of her hire, the employee attempted to apply for the CNOR exam, but glitches on the exam provider’s website prevented her from logging in to apply. She called the exam provider multiple times but was not able to log in to the exam provider’s website until Jan. 31, 2018.

On that same day, the employee’s supervisor e-mailed her, asking for the scheduled date for her CNOR exam. She explained the situation and said that she would be scheduling her exam date in February.

Although the employee now had access to the provider’s website, she did not have the money to pay the $395 exam fee until she received her paycheck on Feb. 2, 2018. She submitted her application and paid the exam fee on Feb. 5, 2018.

By mid-February 2018, the employee had yet to hear from the exam provider as to the status of her application. She informed her supervisor of the situation. On April 6, 2018, two days before the expiration of the 90-day deadline set forth in the employee’s conditions of employment, the exam provider notified the employee she was scheduled to take the exam on May 5, 2018.

The employee explained the situation to her supervisor, who, according to the employee and her officemate who overheard the conversation, said that she understood and it shouldn’t be a problem. The supervisor, however, stated that by the time the employee informed her on April 6 of the May 5 test date, the decision had already been made to terminate the employee for failing to take the exam within 90 days. On April 9, 2018, the hospital fired the employee.

Legal Action

In September 2018, the employee sued the hospital for whistleblower retaliation. She alleged her termination for purportedly not taking the CNOR exam within 90 days was pretextual, and the hospital actually fired her in retaliation for her reporting the orthopedic technicians performing tasks outside the scope of their certifications.

The trial court dismissed the lawsuit before trial, and the employee appealed.

Although the hospital offered a legitimate reason for the employee’s termination, there was evidence that the stated reason was pretext to cover the hospital’s retaliatory motive, the appeals court concluded.

In addition to the employee’s testimony—supported by her officemate—that she was told taking the test late would not be a problem as long as she had a test date scheduled, there was the temporal proximity between the employee complaining about the technicians and her termination, the court noted.   

Therefore, the lower court should not have dismissed the claim before trial, the appeals court concluded.

Johnson v. Pasadena Hospital Assn., Calif. Ct. App., No. B321794 (Dec. 28, 2023).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.