Evaluation Rebuttal not Protected under Whistleblower Act

June 19, 2007 (PLANSPONSOR.com) - The 8th U.S. Circuit Court of Appeals has determined that a nurse sent home for insubordination due to her rebuttal to a poor performance review does not have recourse under the Whistleblower Act or the Pregnancy Discrimination Act.

Affirming a lower court’s grant of summary judgment to the employer, the appellate court agreed that there was no evidence to show that Tanya J. Fjelsta’s letter to her employer in response to a poor performance review was “for the purpose of exposing an illegality.”  

Finding that Fjelsta had discussed a questionable procedure previously with her supervisor and Zogg Dermatology was aware of the alleged violation prior to the letter, the appellate court agreed with the lower court that the purpose of Fjelsta’s letter was to “attempt to deflect the performance review’s criticism of her knowledge of sterile procedures.”

The appellate court also rejected Fjelsta’s argument that a remark made by her supervisor indicated pregnancy discrimination and proved she was dismissed for becoming pregnant. When another nurse became pregnant, the supervisor remarked, “Tanya, you better take precautions so both you girls don’t end up pregnant. We can’t have both nurses gone at the same time.”

The court said the comment expressed the self-interest of the employer, but did not indicate a discrimination toward pregnancy, nor a reaction to be expected by the employer if Fjelsta became pregnant.

Months after Fjelsta was offered a permanent position with Zogg, the group’s other full-time nurse became pregnant. At the time the pregnancy was announced, the supervisor made the comment alluded to in the lawsuit. Nearly a month later, Fjelsta told her supervisor she was also pregnant.

Two weeks later Fjelsta was given an unfavorable six-month review which questioned her adherence to sterile procedures. She submitted a letter of rebuttal to the negative review and was asked to leave for the day for insubordination. A supervisor told employees she was terminated, but the group’s medical director confirmed with Fjelsta she was not. However, instead of returning to work, Fjelsta sued her employer.

A district court granted summary judgment to Zogg and Fjelsta appealed.

The opinion in Fjelsta v. Zogg Dermatology is here .