Peter Saucier
Peter Saucier

A Radiation Therapist in the Oncology treatment operation at Mercy Hospital violated rules requiring that she obtain signed patient waivers at the same time that her overall performance was unsatisfactory.  Supervising physicians and co-workers cataloged a number of the Therapist’s short-fallings.  A key supervising physician described to investigators at Mercy incidents of “poor job performance and altercations with co-workers.”  Romeka v. Radamerica II, (Maryland Supreme Court; August 30, 2023), slip opinion at 5.  The supervising physician described the Therapist as “toxic, rush[ed], and disrespectful.”  Id. at 4 (internal quote marks omitted).

The employer recommended that the Therapist be discharged from employment.  Internal rules at Mercy Hospital required that Human Resources investigate to confirm that discharge was warranted.  That investigation developed the information described above. The Therapist had been hired in 2001. On May 10, 2018, the supervisors decided that the Therapist “should be terminated,” and made that recommendation to Mercy. Id. at 5.  The Human Resources investigation followed, with the Therapist being interviewed on May 14 and at least by then knowing that her job was in jeopardy. Id. at 7.

On May 16, 2018, Mercy Human Resources affirmed that termination of employment was justified. On May 17, before that decision was communicated to the Therapist, she reported an alleged violation of proper patient treatment. Briefly, the Therapist asserted, from her own observation alone, that a patient was not properly positioned and immobilized.  That report, she contended, was protected activity under the Health Care Worker Whistleblower Protection Act (HCWWPA).  The decision to end her employment was given to the Therapist on May 21, 2018. Id. at 10.

Naturally, the Therapist sued to allege that she was retaliated against in violation of HCWWPA for filing a complaint, relying largely upon timing – “I filed a complaint and was fired the next business day.”  The circuit court determined that the case did not merit a trial and dismissed the case.  The Therapist’s appeal of that decision brought to bear the important issue of what a whistle blower must prove to earn a day in court.

In Romeka the pivot of contention was the burden of proof required to earn a trial.  In simple terms, the Therapist asserted that she only needed to show that her whistle blowing complaint could have been a “motivating factor” for termination of her employment.  If that could be true, she deserves a trial.  The employer’s position, as adopted by the circuit court, was that the Therapist had to show that absent her complaint the Therapist would not have been fired, the so-called “but for” test.  The undisputed facts did not allow that conclusion.

The Maryland Supreme Court well described the dispute and the positions of the parties.  Importantly, the Court cogently explained how to prove a whistle blower case in Maryland: “The answer lies in the three-step burden-shifting framework established in McDonnell Douglas.” Slip opinion at 17.  Citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Court continued, “Accordingly, we hold that under the HCWWPA, a plaintiff must prove that, but for the protected disclosure, the employer would not have taken the adverse personnel action.” Id. at 21.

Although it is dangerous to extend holdings to other statutes and cases, the Romeka decision  suggests that employers who already have determined that adverse employment action is warranted need not retreat from taking action solely because of an intervening complaint by the employee.

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