When Retaliation Doesn’t Pay

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When Retaliation Doesn’t Pay

Boly v. Legacy Good Samaritan Hospital and Medical Center, et al, Circuit Court for Multnomah County Oregon, Case No. 1403-03902 (2015).

In September 2015, a nurse who filed suit against her employer hospital for retaliation and wrongful termination, among other claims, received a jury verdict of $3,041,835.00, one of the highest single plaintiff employment awards in Oregon.  Upon plaintiff’s subsequent motion for attorney’s fees and costs, the court awarded an additional $839,464.76 for a total of $3,881,299.76.  The defense has appealed.

For about 25 years the plaintiff, Linda Boly, had been regarded as an exemplary employee of the defendant hospital.  However, beginning in 2005 when she began to complain to hospital personnel about patient safety concerns resulting from the hospital’s implementation of strict time standard nursing procedures, she began to receive negative employment reviews.  These continued after Ms. Boly testified about her patient safety concerns to the Oregon legislature and when she attempted to organize a nurses’ union at the hospital.  Finally, her employment was terminated in 2013.

Clearly, the jury was incensed by the hospital’s treatment of Ms. Boly.  The jury’s anger is reflected by its award of $1, 500,000.00 in punitive damages as a portion of the verdict.  Although, we don’t know what specifically inflamed the jury, it is likely that Ms. Boly’s long tenure of exemplary work was a major factor.  It is also likely that the timing of her employer’s sudden devaluation of her performance reviews, concurrent with her patient safety advocacy, was also a significant factor.  Given this timing, the hospital had a steep hill to climb to justify its hostile treatment of the plaintiff.

It is not known whether the parties attempted a pre-trial settlement of their dispute.  Too often mediation of employment disputes, including but not limited to retaliation claims, involves the attendance of employer personnel who have direct involvement in the facts and circumstances at the center of the controversy.  At times, these figures are even decision makers even though they must justify their own treatment concerning the claimant.  Often it is this dynamic that alone dooms a mediation.

Practice Tip:  When mediating an employment dispute on behalf of an employer, be sure that the decision maker(s) has the ability to objectively assess the dispute and act upon that evaluation.  On the claimant’s side, insist that an employer representative, who is removed from the immediate facts of the controversy, attend the mediation with the authority to settle.

Written by Gregg Bertram, CEO of Pacific ADR Consulting

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