Employee Alleging Retaliation Must Present Evidence of Pretext Once the Employer Establishes a Legitimate Reason for Termination

Employee Alleging Retaliation Must Present Evidence of Pretext Once the Employer Establishes a Legitimate Reason for Termination

by Susana P. Solano, Esq.

In Lemke v. Sutter Roseville Medical Center, the plaintiff nurse was terminated due to her failure to properly document a patient’s medications and condition, monitor the condition, and refusal to assist in reviving the patient. Approximately two months prior to the event that led to her termination, she had reported several safety issues to her manager, which the plaintiff regarded as unethical and illegal. The plaintiff sued for retaliation, among other claims. The employer moved for summary judgment which the trial court granted.

In an unpublished opinion, the Court of Appeal affirmed and held that the “presumption” of retaliation does not suffice to preclude summary judgment where otherwise unrebutted or articulated legitimate reasons for termination exist. The court also rejected the plaintiff’s argument that termination was excessive and a departure from the usual procedures because the improper documentation of a patient’s condition was common. However, improper documentation was only part of the reason for the termination and the notice of termination stated the specific reasons for the termination. Finally, the plaintiff argued the investigation of the incident was improper because the manager did not interview the patient’s family, other nurses, or staff, but the court held that the plaintiff received an opportunity to explain what happened.

This case serves as a reminder to employers to be cautious when terminating an employee after he or she engages in protected activity. An employer must address performance issues in a timely fashion, conduct a thorough investigation of the reasons for termination, keep accurate and detailed records, and issue an accurate and detailed notice of termination. The plaintiff in Lemke was employed for about four months before the event that led to her termination. The outcome may have been different if she had been a long term employee and/or had performance issues that had not been addressed prior to her complaint.