Firing an employee for poor performance is nothing wrong, but apparently things aren’t always as straightforward as that. A nurse in Colorado was recently fired for this reason, but she sued, alleging that she had been fired for openly complaining about the lack of care given by the heart transplant unit of the University of Colorado Hospital, where she worked as coordinator.
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Fired for What?
The nurse was fired from her position as coordinator of the heart transplant unit by the middle of 2004, while she had become critical of the care given by the unit and started complaining in 2002. She reportedly complained about the inadequate care to nine of the hospital’s officials time and again, from her immediate boss to the president of the hospital. She then apparently witnessed a cover-up in the unit regarding a heart misallocation, or a change in the intended recipients of the transplant. She reported this externally to the United Network for Organ Sharing (UNOS) and to the Colorado State Board of Nursing as well as to a reporter.
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The Issue of Protected Free Speech
After she was fired for poor performance, the nurse claimed that it was exercising her right to protected free speech that had caused the hospital to retaliate by firing her. This seemed convincing enough, except that the proofs never substantiated this reasoning.
The nurse’s immediate supervisor who was directly responsible for her termination claimed she never knew that the nurse had complained about the hospital’s practices to external sources, removing much of the sting from the nurse’s retaliation theory. But there were more legal arguments contradicting the nurse’s accusation of protected free speech violation by the hospital.
What Protected Free Speech Really Is
A Supreme Court ruling in 2006 had claimed that complaints made by an employee as part of his/her job responsibilities cannot be classified as protected free speech. This ruling was used by a federal district court judge to establish that all the internal complaining of the nurse regarding lack of proper care to patients formed part of her work and therefore could not be brought under the right to free speech that must be protected. The external complaining of a more serious matter, though, is certainly the right of a responsible individual protected by the Constitution and not to be violated. But since the immediate supervisor claimed that she was never aware of any external complaining carried out by the nurse, the firing cannot be ruled to have been carried out in retaliation for this or having violated the nurse’s right to free speech.
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The nurse then proceeded to appeal to the 10th Circuit. Here too the appellate judges, after a thorough investigation as to whether the external complaining that amounted to protected speech played a part, were seemingly faced with evidence that poor performance was indeed the only reason that contributed to the nurse being fired. What added weight to the ruling was the fact that the nurse had not included the external complaints in the lower court dispositions.
The Verdict
So the firing of the nurse from her position as coordinator in the heart transplant unit of the University of Colorado Hospital has finally been considered a straightforward matter. The lack of evidence regarding the nurse’s external complaining having been made known to, or having influenced her superiors, contributed to the decision being made in the hospital’s favor.
