Nurse Educator's Employment Retaliation Lawsuit Goes Ahead

Nurse Educator's Employment Retaliation Lawsuit Goes Ahead

A California appeals court recently permitted a nurse educator's retaliation lawsuit against her former employer to move forward, finding that the hospital's stated reason for her termination was a pretext for its retaliatory motive.


Huntington Hospital hired the plaintiff, Tamblyn Johnson, on January 8, 2018 as a perioperative nurse educator to identify problems and needs for perioperative nurses who care for patients in the surgery process. One of the requirement for this position was Certified Perioperative Nurse or “CNOR” certification within 90 days of hire, or by April 8, 2018. According to the job description, this job entailed the following:

  • Identifying problems and learning needs for perioperative nurses:

  • Bringing those issues to the attention of decision-makers; and

  • Participating in developing changes to resolve the identified problems and needs.

One of the 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.

Johnson didn’t have her CNOR certification at the time of hire. Huntington 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. Johnson signed the document memorializing that condition and other conditions of employment on December 5, 2017, about a month before her start date of January 8, 2018. This was the first time Huntington had hired a perioperative nurse educator who did not already have a CNOR certification.

Two workers told her in March 2018 that orthopedic techs were performing tasks during surgery outside the scope of their certification. She reported this to her supervisor, who asked her to do more investigation. Johnson conducted an internal investigation and advised her supervisor that the orthopedic technicians might exceed the scope of their certifications. At the supervisor's request, she completed a further investigation and report. The hospital required the techs to get additional credentials to perform certain tasks.

Johnson had trouble registering for the CNOR due to a long website malfunction. She called the exam provider multiple times and heard a recorded message that the provider was aware of issues with its website. She couldn’t, however, reach a live person to assist her. She was finally able to log in to the exam provider's website on January 31, 2018.

When she was able to register, she didn’t hear from the exam provider for some time. She let her supervisor know, who reportedly told her it wouldn't be a problem.

On March 1st, Johnson finally reached the exam provider by phone and was told her application was under "audit review." She was told she could expect a response as to her eligibility to take the exam within a week or two, at which point she could schedule the exam. Johnson informed the Hospital of this development.

On March 16, 2018, having heard nothing further on her exam application, Johnson again contacted the exam provider and asked if there was anything she could do to expedite the process. The provider said there was nothing Johnson could do.

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 told her that the Hospital had already decided to fire her for failing to take the exam within 90 days of being hired. On April 9, 2018, Huntington fired Johnson. The discharge memorandum noted the condition of employment that Johnson obtain her CNOR certification within 90 days of hire, and stated Johnson had "not demonstrated the required performance standards."

Filing the Lawsuit

In September 2018, Johnson sued Huntington for whistleblower retaliation in violation of Labor Code § 1102.5 and Health and Safety Code § 1278.5, and for wrongful termination in violation of public policy. She claimed that 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. Her complaint included a request for punitive damages.

The Hospital moved for summary judgment, arguing Johnson couldn’t establish a causal link between her termination and her report on the orthopedic technicians. The Hospital contended Johnson was fired for the legitimate reason that she didn’t get her CNOR certification within 90 days, and that she had no credible evidence that legitimate reason was pretextual. The Hospital further argued there was no evidence of oppression, fraud, or malice justifying punitive damages.

In response, Johnson argued that her evidence established triable issues, including evidence that her report and the Joint Commission complaint that followed upset the status quo and risked backlash from the surgeons, her termination happened soon after she provided her report, and the Hospital gave inconsistent explanations for why it did not extend her probationary period after she secured a CNOR exam date.

The trial court granted the Hospital’s motion. It found Johnson had established a prima facie case for retaliation based on the temporal proximity of her report and her termination, but otherwise had failed to meet her burden to defeat summary judgment.

As to the claim under Labor Code § 1102.5, the trial court found Johnson's failure to pass the CNOR exam in May 2018 or in the 2½ years since established that she would have been terminated even absent the allegedly protected conduct, and even if the Hospital had extended her probationary period. As to the claim under Health and Safety Code § 1278.5, the court summarized Johnson's cited evidence and found it failed to establish that the Hospital’s stated reason for terminating her, i.e., her failure to obtain a CNOR credential within 90 days, was pretext for a retaliatory motive. The court further found the plaintiff’s claim for wrongful termination in violation of public policy failed for the same reasons as her statutory claims. Finally, the court found the Hospital didn’t meet its burden as to the claim for punitive damages, having not addressed the factors set forth in Civil Code § 3294. However, that issue was moot given the court's ruling as to the underlying causes of action.

Johnson appealed.

The Court of Appeals’ Decision

The Second District Court of Appeals disagreed with the trial court that Johnson failed to meet her burden to defeat summary judgment on her three causes of action but agreed that the Hospital didn’t its burden to obtain summary adjudication on the issue of punitive damages.

On appeal, the appeals court found that there was sufficient evidence that the Hospital's legitimate reason for termination was a pretext to cover its retaliatory motive. When a health facility discharges an employee within 120 days of that employee reporting a concern about unsafe patient care, Health and Safety Code § 1278.5(d)(1) establishes a rebuttable presumption that discharge was retaliatory. Her termination happened near to her reporting the orthopedic techs working outside the scope of their certifications.

Both Johnson and her officemate testified that the supervisor had told her that taking the exam later than 90 days wouldn’t be a problem if she had a test date scheduled, which she did. Treh Court said that Johnson's evidence, if accepted as true, could support an inference that the Hospital was flexible on the 90-day deadline, provided she had secured a test date scheduled before the deadline, even if the test date was later.

In addition, the issue of punitive damages was no longer moot given the Court’s holding that Johnson's three causes of action survive summary judgment. The Court of Appeals agreed with the trial court that the Hospital didn’t meet its burden on this issue as the Hospital offered no evidence specific to the issue of punitive damages. Instead, it “simply pointed out” an absence of evidence on Johnson’s part. This was insufficient to shift the burden to Johnson to show the existence of triable issues.

Therefore, the Court of Appeals found that the trial court erred in dismissing the case before trial. Johnson v. Pasadena Hospital Assn. (California Court of Appeal, 2nd Appellate District 12/28/23).

Bottom Line

A plaintiff must show, through either direct or indirect evidence, that the discrimination was intentional.

California employers must be certain that when terminating or taking an adverse action against an employee they have a legitimate reason and not merely using a pretext or false reason for a firing.

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