Nurse's poor work Performance Outweighs Claims of Whistleblower Retaliation

Lisa Pedersen was a dialysis clinic nurse who was responsible for assessing patients, working with physicians, and administering medication to patients. Pedersen was counseled about aggression in the workplace and other performance issues, which led her to become upset and yell at her manager. During a discussion later that day, Pederson articulated, for the first time, that she had previously noticed that a box of blood samples were incorrectly packaged and that she believed them to be compromised. Pedersen then notified another manager, a customer service representative, a vice president, and an employee relations manager of the suspected compromised samples. She also advised all parties that she felt she would be retaliated against as a result of exposing the potential contamination.

Shortly after her report, a patient complained about Pedersen slapping her, and others reported that Pedersen was impersonating a clinic manager and improperly documenting patients' treatment. She was suspended, demoted, and ultimately terminated for these and other work-related mistakes and errors. 

Pedersen then filed suit against her employer alleging that she was terminated and otherwise adversely treated  in violation of the Minnesota Whistleblower Act (MWA), Minnesota Statute § 181.932, because of her report about the blood samples. The district court granted summary judgment to the employer, holding that the nurse failed to establish a prima facie case under the MWA because (1) the purported “direct evidence” of discrimination (i.e., that management had asked the nurse’s supervisor if there was a way to “get rid of” the nurse several months before her termination) was not linked to the employer’s adverse actions; and (2) the nurse’s actions were not protected activity under the MWA since management was already aware of the blood sample incident when the nurse made her complaints. 

The Eighth Circuit Court of Appeals affirmed the lower court's ruling, but reasoned that even if the nurse could make out a prima facie case, she failed to provide sufficient evidence that the employer’s reasons for taking the actions that it did (including that the nurse slapped a patient's arm, impersonated a clinic manager, inappropriately documented a patient’s treatment and failed to obtain a proper doctor’s order for the treatment of a patient) were mere pretext. 

Employers should be aware that a wide-range of “reports” to management and others may be considered protected activity under the law, and take care in taking potentially adverse actions shortly after such reports. Here, while the employer was ultimately able to prevail, it was not without substantial and protracted litigation. With questions, contact your Hinshaw employment attorney.