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Paul Zimmerman
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Fired Nurse Loses Whistleblower Suit over Suspected Drug Use

A federal appeals court recently affirmed the dismissal of a whistleblower-retaliation suit against a Maine nursing home, holding that the plaintiff employee failed to prove that she was fired for telling her supervisor she believed a fellow nurse was using or stealing drugs.  (Murray v. Kindred Nursing Centers West LLC, d/b/a Kindred Transitional Care And Rehabilitation-Kennebunk, 1st U.S. Circuit Court of Appeals). 

The plaintiff was unable to overcome the employer’s reason for firing her: that she was in fact suspected of "diverting" or stealing drugs meant for patients. "Even assuming for argument's sake that [plaintiff] never actually diverted drugs," the Court held, “[Plaintiff] has proffered no evidence sufficient to support an inference that (her supervisor) was unjustified in believing that she did."

The plaintiff, a licensed practical nurse, claimed she was fired because for three months  she had reported her suspicions that a co-worker was coming to work impaired, had admitted using Xanax once before work, and had offered to "take care of" the disposing of some OxyContin tablets. The plaintiff made her fourth report to her supervisor about a week before she was terminated. 

The employer said the firing came hours after a different nurse raised concerns about an entry that the plaintiff had made in a patient's record indicating that she provided oxycodone to the patient, despite the lack of  the patient's need for pain medication. The supervisor immediately investigated, and found irregularities in the plaintiff’s documentation of when, and to whom, she said she had administered narcotics. (The plaintiff later admitted to the state's nursing board that her documentation practices violated state law and fell below professional standards.)

The court spoke powerfully in support of the employer’s decision to terminate: "Drug diversion in a nursing home is a serious matter, and – given [the employer’s] supportable findings – [plaintiff’s] discharge was not only objectively justified but also inevitable” (emphasis added).  

In the health care industry, where theft and misuse of drug products is common, employers must investigate and take action when employees bring forth concerns regarding drugs. Whistleblowing should be encouraged in employee handbooks, and employers should take whistleblowing complaints seriously and investigate them promptly. However, merely making a complaint does not forever insulate an employee from consequences for performance mistakes. This decision serves as a reminder that employees who make whistleblower complaints can be fired if they violate legitimate performance standards. As the court put it, the termination decision in this case was “supportable” by a solid investigation and thus, “inevitable.” 

Employers can take proactive steps by training their supervisors on how best to handle this delicate balance of receiving and responding to whistleblower complaints, while simultaneously ensuring that employees do not take advantage of their whistleblower status.