Whistleblower Protection has Requirements

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Whistleblower Protection has Requirements

Carol Skare sued her former employer, Extendicare under the Minnesota whistleblower statute claiming she was retaliated against for reporting various alleged violations of laws, regulations, and company policies. Extendicare operates nursing homes in several states. Skare was originally a nursing director and was appointed a regional nurse consultant several years into her employment. Four years later, she was appointed an interim nursing director at one particular Extendicare facility after that facility’s director of nursing was terminated.

Her Complaints

After she was appointed as an interim nursing director, Skare complained about her responsibilities and informed her supervisors that the facility did not have a legally required full-time nursing director and a licensed administrator. She also denied admission to a potential resident, because she believed the facility could not accommodate and care for a 900 pound person. While she was on vacation, however, the company approved the resident’s admission without her knowledge.

When she complained, Skare claimed she was ridiculed and afterwards that her supervisor requested “hugs” from her on three separate occasions. She also complained about company policy which expedited the admissions process for new residents if they had certain enumerated diagnoses.

Subsequently, she was made the full-time nursing director at that facility. During that time she raised concerns about the lack of physician certifications and re-certifications, discrimination in favor of Medicare patients, and concern that the facility was holding beds open for such patients while unlawfully denying beds to others.

She was also cited by the State Board of Nursing due to allegations of facility neglect during her tenure as the nursing director. Subsequently, her employer allegedly did not provide her with an attorney for the defense of her license that she believed had been promised, although she suffered no discipline as a result of the license inquiry. During her employment, she never filed any complaints with any government agencies or the company’s compliance hotline that the employees were encouraged to use for reporting violations of law.

In Court

Skare alleged that her reassignment as a nursing director was a demotion from her nursing consultant position, in retaliation of a report she had made regarding the company’s violations of the law. She also claimed that her employer had created an unbearable work environment with the intent to force her to resign. The trial court dismissed the case. On appeal, the 8th Circuit Court of Appeals held Skare had not established her case as a whistleblower because her job duties as nursing director and regional nurse consultant required her to ensure compliance with applicable laws and to expose unlawful behavior internally. Consequently, she did not become a whistleblower by “merely exercising her duties to report compliance problems at her facilities.”

Kevin McManaman

knudsenlaw.com

May 16th, 2008|Uncategorized|