Nursing Home Had Honest Belief that Nurse Violated Work Rule So There Was No Retaliation for Nurse’s Firing After Participation in Investigation of Home Patient Abuse

A registered nurse was employed by a nursing home. During her shift a resident died. The local police assessed the resident’s death. In relation to this event, the nursing home disciplined the nurse for failing to instruct another employee to conduct CPR on the resident and failing to notify the resident's physician.


The Ohio Department of Health investigated the resident’s death. In the course of its investigation, the nurse discussed the incident with a representative of the Ohio Department of Health. During this investigation, a question arose as to whether the expiration date on the nurse's CPR certification card had been altered. Consequently, the nursing home disciplined the nurse for violating a rule in the employee handbook and suspended her. The nurse challenged this discipline and succeeded in having her suspension revoked with back pay and the disciplinary report sealed.


Later, on a separate occasion, the nursing home disciplined the nurse for failing to follow a direct order from a supervisor in relation to shepherding a new resident through orientation.


Finally, the nursing home disciplined the nurse for improperly documenting information in a patient's medical record and a violating a safety rule. Specifically, the nursing home claimed the nurse had falsely indicated in a patient's treatment record that she had changed the patient's dressing, left a syringe by a patient's bedside during her shift, and left the medical cart unlocked. Consequently, the nursing home terminated the nurse’s employment.


The nurse sued the nursing home for retaliation under Title VII of the Civil Rights Act of 1964 and Ohio Revised Code § 3721.24(A), which prohibits retaliation for participating in a Department of Health investigation. The adverse employment actions at issue included the plaintiff's suspension, the unsealed adverse employment actions subsequent to the investigation of the resident’s death, and her termination.


The United States District Court for the Southern District of Ohio at Columbus concluded that the plaintiff established a prima facie case for retaliation. However, the court also found that the plaintiff’s termination was justified under the progressive-discipline policy. Therefore, the defendants presented evidence of a legitimate, non-retaliatory reason for firing the plaintiff. The district court then found that the plaintiff failed to show the given reason for the adverse employment action was a pretext. Specifically, she failed to present evidence that the defendants did not honestly believe in the facts underlying her disciplines and eventual termination.


The United States Court of Appeals for the Sixth Circuit affirmed the decision of the district court. The court reasoned that the state anti-retaliation statute did not protect the nurse from her employer’s heightened scrutiny in compliance with the nursing home's progressive discipline policy where that scrutiny was prompted by prior misconduct on the job rather than the protected activity of speaking with state investigators regarding the death of the nursing home resident.


In assessing the plaintiff’s pretext argument, the court applied the honest belief rule. Specifically, if an employer has an honest belief in the nondiscriminatory basis upon which it has made its employment decision, then the employee will not be able to establish pretext. The court disregarded the plaintiff’s insistence that discrepancies among witness statements about the incident in which a syringe was left by a patient's bedside during the nurse's shift warranted a finding of pretext. Instead the court concluded that inconsistencies in small details in witness statements regarding the final incident for which she was disciplined did not undermine the central finding of the nursing home's disciplinary report that the nurse was responsible for the lapse. The inconsistencies did not preclude the nursing home from having an honest belief that the nurse violated a work rule. Therefore, the nurse's violations of the nursing home's progressive discipline policy constituted a nonretaliatory reason for terminating her employment.


See: Tingle v. Arbors at Hilliard, 2012 WL 3711439 (C.A.6 (Ohio), August 29, 2012) (not designated for publication).