Age Discrimination: Court Dismisses Nurse's Case.

Age Discrimination: Court Dismisses Nurse's Case.

Legal Eagle Eye Newsletter for the Nursing Profession

Whenever a minority employee or one over forty years of age is subjected to adverse employment action, and complains of discrimination, the employer must show a legitimate, nondiscriminatory reason for the adverse employment action that was taken.

Substandard job performance by the employee is the most common justification used by employers to rebut charges of employment discrimination. If the employer has a plausible justification for the adverse employment action taken against a minority or older employee, the employee can still argue that the employer's justification is only a pretext for discrimination.

In this case the nurse freely admitted she did not get a second nurse to check her insulin before giving it to the patient, and she admitted the hospital required that before insulin could be given. The nurse also could not deny a history of documentation errors that were written up in her personnel file, along with a corrective action plan that called for her termination if she did not improve. UNITED STATES COURT OF APPEALS THIRD CIRCUIT January 27, 2017

A fifty-two year-old nurse with a history of documentation errors was terminated after she failed to have a second nurse check her insulin before she gave it to a diabetic hospital patient. The nurse sued the hospital for age discrimination. The US Court of Appeals for the Third Circuit (Pennsylvania) dismissed her case.

In any legal case alleging employment discrimination one way the alleged victim can prove discrimination is by pointing out at least one other employee doing the same job as the alleged victim who is not a minority or not over forty years of age whom the employer treated less harshly for an identical disciplinary infraction. In this case the nurse pointed to a twenty-two year old nurse who was not fired after a medication error.

However, the Court said that that one isolated medication error by the younger nurse did not make the younger nurse a valid basis for comparison. The older nurse who was suing also had a history of disciplinary write-ups for other instances of substandard nursing care which, when added cumulatively to her last medication error, justified her firing. The courts are very strict in cases of alleged discrimination in the requirement that a so-called comparator employee must be similar in all relevant respects.

The nurse also argued that her firing was unjustified because she administered the insulin in full compliance with the physician's order. However, in addition to following the physician's order a nurse must also follow the nurse's employer's protocols for medication administration, the Court pointed out. To follow the hospital's protocols as she was required the terminated nurse absolutely should have had another nurse check her insulin before giving it, even though that was not expressly spelled out in the physician's order. Brasher v. Hospital, __ Fed. Appx. __, 2017 WL 383365 (3rd Cir., January 27, 2017).