David S. Barmak Health Care Law Blog on Lawyers.com

Freedom of Speech v. Employment
Retaliation: The Refusal to Provide Oxygen for a Patient in
Distress

IMAGINE
an aide is asked by a nurse to increase the oxygen level for a patient in
distress at a nursing home. The aide says to the nurse: "I'm not allowed to
increase the oxygen levels on patients; it's not in my job description to do
that, only a nurse can do that." The nurse is irritated and yells at the aide to
turn up the oxygen now before the patient crashes! The aide adjusts the oxygen
even though she believes it is against the State Board of Nursing standards to
do so. At the same time, the nurse sets up a blood pressure monitor for the
patient. The aide asks to change positions with the nurse because blood pressure
monitoring setup is in her job description. The nurse adamantly refuses. The
patient screams at the aide, "What's your problem? Are you going to let me die?"
The aide storms out of the room.

The
aide immediately writes a letter and mails it to the State Board of Nursing. In
the letter, the aide describes the incident in which she is asked by the nurse
to increase the oxygen level for a patient in distress. The aide describes the
incident as part of a "hostile environment" that she faces daily at the nursing
home. The aide also says that she believes that "following the rules" while
providing care is important and that, no matter what the nurses tell her, she
will continue to follow state guidelines for Certified Nursing Assistants. The
aide sends a copy of the letter to the nursing home's Director of Nursing.

Four
days later, the Assistant Director of Nursing and the registered nurse involved
in the incident meet with the aide. The aide is reminded that (1) oxygen is not
a dangerous drug; (2) she needed to follow the nurses' instructions; and (3) she
had signed a competency sheet that acknowledged the use of oxygen within the job
description of a Certified Nursing Aide. The aide's employment is terminated for
insubordination based on her initial refusal of the nurse's request to turn up
the oxygen.

The
aide hires a lawyer to file a lawsuit for wrongful termination based upon
retaliation. She argues in court that she contacted the state Board of Nursing
because she "wanted to speak out as a citizen of the state" based on her concern
about providing safe patient care in accordance with the Board of Nursing's
guidelines. She also argues that her termination was based upon unlawful
retaliation that flowed from the letter she wrote, thereby violating her First
Amendment right to free speech. The nursing home argues that the aide was fired
for insubordination, not for sending the letter to the state Board of Nursing,
and that the aide sent the letter in anticipation of and to defend against the
expected termination of her employment.

First Amendment Protected Speech and
Retaliation

Would
a court find that the aide, in sending the letter to the Board of Nursing,
engaged in "constitutionally protected" activity - activity protected by the
free speech clause of the First Amendment? No.

The
most important part of the test that a court uses to determine if the First
Amendment protects the speech of employees is whether or not the speech involves
matters of public concern. Not all employee speech is protected, only speech
that may be considered as relating to issues of political, social, or other
concern to the community. In addition, a court must determine whether the
involved speech more closely resembles an employee's complaints regarding her
superior's actions and her own responsibilities as an employee than a citizen's
speaking out on a matter of public decision making.

In
this aide's situation, a court would most likely find that the letter sent by
the aide complaining about the nursing home's failure to follow a specific care
protocol does not rise to the level of a matter of public concern, such as a
hospital failing to discharge its responsibilities in a timely or acceptable
manner. A court would find that the aide's letter reflected her disagreement
with her supervising nurse's decision and individual treatment decision and was
not a matter of public concern.

The
letter, which focused on the aide's claimed "hostile work environment" included
only vague allegations of the nurse's failure to follow procedures. Perhaps a
court would rule differently if the letter alleged broad violations of unsafe
conditions that threatened many of the residents' health or a systemic failure
of all of the nurses to provide adequate care, instead of whether or not an aide
is allowed to change oxygen levels under the Board of Nursing's regulations. A
court would find that the aide wrote the letter in anticipation of a
disciplinary proceeding and that the aide based her comment upon her personal
observations of how her supervising nurse was carrying out her duties. Bottom
line: the aide was complaining about the nurse's incompetent management of the
aide during patient care.

If a court were to find that a "matter of public concern"
were present, a court would apply the balance of the test and would find for the
nursing home. This is because a greater interest exists in allowing nurses to
provide emergency care for patients, than in allowing aides to disagree over
what care is pertinent to which job description.

A
court would also find that the letter written by the aide was pursuant to the
aide's official duty as an aide and that she was not speaking as a citizen for
First Amendment purposes; therefore, the United States Constitution does not
insulate her communication from employer discipline. The aide's letter was
directly related to what she perceived to be her official duty and whether the
directions she was given by the supervising nurse fell within her job
description. The nursing home, as the employer, considered her letter
inappropriate and imposed discipline. In conclusion, the aide's letter would not
be shielded under the First Amendment freedom of
speech.

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