Whistleblowing Nurses Lose Appeal

In a recent unpublished Appellate Division case, Kimera v. Wanaque Convalescent Center, A-5119-T4 (N.J. App. Div. Sep. 19, 2014), the court upheld a grant of summary judgment in favor of the employer in a whistleblower retaliation case. The plaintiffs, who worked as nurses in a health care facility, claimed that they were fired in retaliation for complaining about events which led to the demise of a patient.

The facts of the case, as recounted by the court, indicated that the nurses raised some concerns regarding the circumstances surrounding the unfortunate event to their supervisors. They were fired several months later. During the litigation, the employer introduced evidence that the nurses were fired for disciplinary reasons, and not for their whistleblowing.

The court upheld the dismissal of the case, reasoning that the nurses had not established that they were whistleblowers within the meaning of the law. The law, as interpreted by recent case law, requires a plaintiff to identify which law, rule, regulation, public policy, or code of ethics was violated by the health care employer. These plaintiffs did not meet this burden. Moreover, the plaintiffs could not overcome the employer’s evidence of their poor job performance, which is a legitimate reason for termination.

The moral of this story is that whistleblowers should seek legal counsel and guidance very early into the process . . . even before they blow the whistle. In the absence of this advice, whistleblowers and potential whistleblowers risk losing not only their careers, but their legal claims as well.