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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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