Supervisors allege discrimination led to termination. (Nursing Law Case on Point).

CASE ON POINT: Garswood v. Henry Ford Hospital, 2002 WL 31013217 N.W.2d--MI

ISSUE: In many cases, nursing supervisors are perceived by those who serve under them as being autocratic and unfair. However, in this unusual Michigan case, two nurse-supervisors were ultimately terminated because they were overly generous in awarding both double-time and triple-time pay for additional work. This all was in violation of a hospital policy, which restricted overtime to time and one half. One nurse-supervisor was Canadian and the other nurse had taken time off to perform military duties in the National Guard. The nurses alleged that they were subjected to discrimination because of their Canadian citizenship and National Guard responsibilities. Was that the reason for their termination?

CASE FACTS: Sharon Garswood began working for Henry Ford Hospital in November 1990 as a staff nurse. She became an Assistant Nurse Administrative Manager (ANAM) of Labor and Delivery in 1993. As ANAM, Nurse Garswood was responsible for ensuring that the Labor and Delivery Unit was staffed properly and that it ran effectively. The position also required Nurse Garswood to be "on-call" 24 hours a day 7 days a week. Nurse Kathleen Naiman originally worked for Henry Ford Hospital from 1986 until 1989, when an automobile accident forced a three-year break. Nurse Naiman returned to work at the hospital and became an ANAM in 1994, apparently replacing Nurse Garswood who had been promoted to NAM. As a member of the Army National Guard, Nurse Naiman occasionally required time off to fulfill her training and active duty requirements. In the spring on 1997, Dianne Haas, the Associate Administrator of the hospital's Maternal Child Services Department, informed the ANAMs and NAMs that ANAMs could from time to time cover the NAM's administrative "on-call" duties. Haas informed the managers and their assistant that no one was to receive an administrative on-call pay for this "cover duty," and if the assistants were unwilling to accept the responsibility of being on-call she would cover on-call duty. The parties agreed that Haas informed them that ANAMs were not eligible to receive administrative on-call pay. However, while Haas was away on temporary assignment, Nurse Garswood began approving administrative on-call pay for Nurse Naiman. When Haas returned and later discovered the situation, she demanded that the parties provide "clear, succinct, unequivocal proof that Human Resources had ... changed the policy and made an exception for (Naiman) or face discipline. The nurses were unable to provide such evidence. Haas directed Nurse Garswood to discipline Naiman by "direct report." Nurse Garswood was "verbally counseled" regarding the policy violation. On July 23, 1998, Nurse Garswood was terminated. On August 13, 1998, Nurse Naiman, an active military reservist, resigned. Nurses Garswood and Naiman brought suit against the hospital alleging that they were discriminated against. Nurse Garswood maintained that she was subject to discrimination because she is Canadian. Nurse Naiman alleged that she was forced to terminate her position because she faced discrimination since she was a member of the Army National Guard and occasionally required time off in order to fulfil her training and active duty requirements. The hospital maintained that her resignation was submitted because she assisted Nurse Garswood in falsifying the hospital payroll documents in violation of hospital policy, and that she knew that a decision had been made to terminate her, and resigned. The nurses appealed.

COURT'S OPINION: The Michigan Court of Appeals affirmed the judgment of the lower court in favor of the defendants. The court held, inter alia, that the plaintiffs failed to establish that they were ever hindered, prevented, dissuaded, or threatened as alleged.

LEGAL COMMENTARY: Despite the fact that Haas expressed displeasure when apprised that Nurse Naiman was required to take one weekend off due to her military obligation, Nurse Naiman admitted that she had never been denied military leave. She had been granted at least nine military leaves prior to her termination. Further, Nurse Garswood had been directed to put Nurse Naiman on a corrective work plan for violating the hospital's vacation and on-call pay policies prior to Haas' displeasure over Nurse Naiman's having to take military leave. Coincidently, it was during that leave that Haas became aware of Nurse Naiman's complicit behavior in falsifying payroll documents so nurses could be paid "incentives" and that Nurse Naiman had been given an on-call pay--in itself violation of hospital policy--while actually working on the floor. The court observed that the nurses were guilty of falsifying payroll documents and time schedules in violation of hospital policy. This should serve as a lesson to supervisors who might be inclined to offer inducements to staff willing to work above and beyond the call of duty. Inducements must not be beyond the parameters set forth in hospital policy.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Rhode Island law firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.