Red Cross Stuck With Phlebotomist’s Retaliatory Discharge Claim

On July 14, 2017, a Norfolk federal judge denied a motion to dismiss a former Red Cross employee’s claim that her employer fired her for reporting what she believed were health and safety violations committed by her supervisor.  Easterbrooks v. American Red Cross, No. 2:17cv98 (E.D.  Va. 2017). Judge Raymond Jackson ruled that plaintiff Julie Easterbrook’s claims were sufficient to state a cause of action under Virginia Code Section 40.1-51.2.1, which makes it unlawful to discriminate against an employee because he or she has “filed a health or safety complaint.”

According to the lawsuit, on or about April 1, 2015, Ms. Easterbrooks, a phlebotomist at a Red Cross collection center in Norfolk,    observed her supervisor remove “the tip off her index finger glove and place her ungloved finger in the venipuncture area, contaminating the sanitized site on two donors.”  Instead of confronting her supervisor in the presence of donors, she put a stop on the blood products, wrote a report of what she observed, and notified a different supervisor.  Six days later, she was fired, ostensibly for failing to gain control of the blood products at the time of contamination.

Easterbrooks filed a charge of discrimination with the Virginia Department of Labor and Industry (“VADOLI”), which found reasonable cause to believe that the Red Cross retaliated against Easterbrooks for making a health or safety complaint. After conciliation failed, VADOLI opted not to issue a charge, which enabled Easterbrooks to file her lawsuit.

The Red Cross moved to dismiss the lawsuit on the grounds that, according to  Virginia Code Section 40.1-3,  Section 40.1-51.2.1 “is intended to provide solely for the safety, health and welfare of employees.”  The Red Cross argued that Easterbrooks’ actions showed concern for blood products and recipients of donated blood, not  the health and safety of employees.  Judge Jackson rejected the Red Cross’s argument, finding that Easterbrooks appeared to have been motivated, at least in part, by a concern that her supervisor has exposed herself to blood borne pathogens, thereby making this a claim about the “safety, health, and welfare of employees.”

So what is the take away for employers?  In a nutshell, this case just “smelled bad.”  Taking the allegations as true (which the judge must do at the motion to dismiss stage), Easterbrooks got fired less than a week after reporting a violation of blood collection procedures. The facts were sufficiently bad that VADOLI found reasonable cause, and the employer’s proffered reason for the termination — a failure to gain control of the blood products at the time of contamination — did not seem compelling enough, by itself,  to support a termination. As we have counseled our clients time and again, when an employer fires someone very soon after they complain of discrimination or engage in other protected activity, it is unlikely that the employer can get the case dismissed on  motion.

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