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Evans v. Thomas Jefferson University

Commonwealth Court of Pennsylvania

December 4, 2013

Bernadette Evans, Appellant
v.
Thomas Jefferson University and Mary Katz Vandegrift

Argued: October 10, 2013

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION

JAMES GARDNER COLINS, Senior Judge

This matter is an action brought under the Whistleblower Law[1] by plaintiff Bernadette Evans (Evans) against her former employer, Thomas Jefferson University (TJU), and the program director of TJU's addiction clinic where she worked, Mary Kate Vandegrift (Vandegrift) (collectively, Defendants). Evans alleged that TJU's termination of her employment in November 2010 was in retaliation for a report that she made concerning Vandegrift in March or April 2010. She appeals from an order of the Philadelphia County Court of Common Pleas (trial court) granting summary judgment in favor of Defendants. For the reasons set forth below, we affirm.

Section 3(a) of the Whistleblower Law provides:
No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee's compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste.

43 P.S. § 1423(a).[2] The Whistleblower Law provides a civil cause of action to employees for violations of its provisions. Section 4 of the Whistleblower Law, 43 P.S. § 1424. To prove a cause of action for wrongful discharge under the Whistleblower Law, the plaintiff must show both a protected report of wrongdoing or waste and a causal connection between that report and the discharge. O'Rourke v. Commonwealth, 566 Pa. 161, 171, 778 A.2d 1194, 1200 (2001); Golaschevsky v. Department of Environmental Protection, 554 Pa. 157, 161-63, 720 A.2d 757, 758-59 (1998); Gray v. Hafer, 651 A.2d 221, 225 (Pa. Cmwlth. 1994), aff'd without op., 542 Pa. 607, 669 A.2d 335 (1995).

Evans, a licensed practical nurse, was hired by TJU in July 2008 as a dispensing nurse at TJU's Maternal Addiction Treatment Evaluation and Research Program (MATER). (Evans Dep. at 17-19, 21, Reproduced Record (R.R.) at 141a-142a; Defendants' Summary Judgment Motion ¶6, R.R. at 4a; Plaintiff's Surreply in Response to Defendants' Motion for Summary Judgment (Plaintiff's Surreply) ¶6, R.R. at 77a.) ¶U's employee policies list as grounds for discharge "inconsiderate treatment in the care of patients, " "[i]nterfering with the work performance of another employee [or] threatening, intimidating or coercing another employee, " and "[o]ther misconduct." (TJU Policy No. 113.03.01, R.R. at 240a-241a, 243a; Plaintiff's Surreply ¶5, R.R. at 77a.)

Prior to the report that Evans made concerning Vandegrift, she received two evaluations. A January 2009 competency evaluation marked her as "Needs Improvement" in tone of patient interactions and stated: "some patients have reported that Bernadette's tone is harsh when giving feedback or direction. Addressed [with] Bernadette." (1/09 Competency Evaluation, Supplemental Reproduced Record (Supp. R.R.) at 14b.) Evans' June 2009 annual performance evaluation gave her an overall rating of "Outstanding" and ratings of "Highly Effective" and "Outstanding" in all categories other than "Respect/Customer Service" and "therapeutic engagement of patients." (6/09 Employee Performance Evaluation, R.R. at 215a-219a.) In those two categories, Evans received a rating of "Effective, " and the evaluation noted that she "[a]lways acts for patient safety and their best interest (her methods are occasionally misinterpreted as harsh, even though her feedback is critical needed!!)" (Id., R.R. at 216a) (emphasis in original). Evans' supervisor, Jeneane Burke, told Evans in conjunction with this June 2009 evaluation that some patients thought that she was "harsh" toward them. (Evans Dep. at 19, 95-96, R.R. at 141a, 160a.) Burke also told Evans, outside of this evaluation, that patients had complained that Evans was rude and disrespectful to them. (Evans Dep. at 97-98, 102, R.R. at 161a-162a.) Evans admitted that there were "plenty of incidents" of patient complaints because the patients "are just complaining clients" who "complain whenever they don't get their way." (Evans Dep. at 102, 112-13, R.R. at 162a, 164a-165a.)

In approximately March or April 2010, Evans refused to administer methadone to a patient because she believed that the patient was intoxicated based on her observations of the patient's condition and her familiarity with the patient. (Evans Dep. at 41-43, 51, R.R. at 147a, 149a.) It was MATER's policy that methadone should not be given to a patient if the patient is intoxicated because of the danger of overdose or drug interactions. (Burke Dep. at 59, R.R. at 203a; Evans Dep. at 26-28, R.R. at 143a.) When Evans refused to provide methadone and requested a urine sample, the patient became angry, used profanity and went to complain to Vandegrift, the MATER program director. (Evans Dep. at 43-45, 54, R.R. at 147a-148a, 150a.) Vandegrift did not believe that the patient appeared intoxicated and sent clinic director Colleen Maguire to ask Evans to medicate the patient. (Evans Dep. at 45-46, 54, R.R. at 148a, 150a.) Evans told Maguire that she would not administer methadone to the patient. (Evans Dep. at 46-47, R.R. at 148a.) Maguire went back to Vandegrift and returned, stating that she, Maguire, would medicate the patient. (Evans Dep. at 47, R.R. at 148a.) Evans dispensed the methadone to Maguire and Maguire administered the methadone to the patient. (Evans Dep. at 47-49, R.R. at 148a-149a.) Maguire was a registered nurse. (Complaint ¶16, Supp. R.R. at 28b; Vandegrift Dep. at 45, Supp. R.R. at 35b.) Maguire medicated the patient because Vandegrift told her to do so, but Evans did not know whether or not Maguire thought that the patient was intoxicated. (Evans Dep. at 46-47, 58-64, 70, R.R. at 148a, 151a-152a, 154a.) Vandegrift was not a nurse. (Vandegrift Dep. at 45, Supp. R.R. at 35b.)

After Maguire left, Evans called Burke and reported what had happened. (Evans Dep. at 48-50, R.R. at 148a-149a.) A meeting attended by Burke, Evans, Vandegrift and Maguire was held a few days later. (Evans Dep. At 46, 52, R.R. at 148a-149a.) Vandegrift stated at the meeting that she spoke to the patient and was familiar with the patient, and that the patient did not appear to her to be intoxicated. (Evans Dep. at 54, 65, R.R. at 150a, 153a.) Vandegrift also stated that the patient said that Evans was rude to her, was prejudiced against white people and treated addicts differently. (Evans Dep. at 45-46, R.R. at 148a.) Evans stated at the meeting that she knew the patient from a previous clinic, that she knew the patient "was high, " and that she felt that it was "for [the patient's] safety not to medicate her." (Evans Dep. at 54, R.R. at 150a.) After the meeting, Evans thought that Vandegrift changed how she acted toward her, and that Vandegrift began acting unfriendly and critical of her. (Evans Dep. at 67-68, 70-84, R.R. at 153a-157a.) Evans did not feel that anyone at MATER acted hostile toward her other than Vandegrift. (Evans Dep. at 78-79, R.R. at 156a.) Evans also felt that Vandegrift acted rude or hostile to at least four other MATER employees. (Evans Dep. at 153-57, R.R. at 175a-176a.)

On April 22, 2010, Evans received a warning concerning her behavior toward patients. (Evans Dep. at 98-100, R.R. at 161a; Notification of Warning, R.R. at 223a.) The warning stated that "we are receiving multiple complaints that you are being rude and disrespectful when interacting with some patients at the dispensing window, " and that "[i]t is not acceptable to treat any patients without dignity and respect." (Notification of Warning, R.R. at 223a.) Burke was the person who issued the warning and made the decision to issue the warning, although she consulted with Vandegrift before it was written out. (Notification of Warning, R.R. at 223a; Burke Dep. at 61-63, R.R. at 203a-204a.) Evans was not sure whether this warning was issued before or after her report about Vandegrift. (Evans Dep. at 98-99, R.R. at 161a.)

On May 27, 2010, subsequent to her report about Vandegrift, Evans received her annual Employee Performance Evaluation for the period June 2009 to June 2010. (6/10 Employee Performance Evaluation, R.R. at 224a-230a.) In this evaluation, her overall score dropped from "Outstanding" to "Effective." (Id., R.R. at 229a.) Many of her ratings were lower than in her previous evaluation. (Id., R.R. at 225a-226a.) All of the ratings, however, were "Effective" or better, except in the categories of "Respect/Customer Service, " "Management Support, " and "Therapeutic engagement of patients, " in which she was rated as "Needs Improvement." (Id.) The evaluation noted that Evans needed to "gain self-awareness of how her feedback to patients is interpreted as too harsh by patients." (Id., R.R. at 225a.)

On August 12, 2010, Burke issued a formal disciplinary warning to Evans concerning an additional patient complaint. (Formal Warning #1, R.R. at 231a; Evans Dep. at 117-19, R.R. at 166a.) This warning was given because a patient reported that Evans had spoken to her in a negative tone of voice and that Evans changed the requested urine screen from "unsupervised" to "supervised" as a result of the negative interaction between her and the patient. (Formal Warning #1, R.R. at 231a.) Evans disputed that her tone of voice toward the patient was negative, but ...


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