In September 2015, a nurse who filed suit against her employer hospital for retaliation and wrongful termination, among other claims, received a jury verdict of $3,041,835.00, one of the highest single plaintiff employment awards in Oregon. Upon plaintiff’s subsequent motion for attorney’s fees and costs, the court awarded an additional $839,464.76 for a total of $3,881,299.76. The defense has appealed.
For about 25 years the plaintiff, Linda Boly, had been regarded as an exemplary employee of the defendant hospital. However, beginning in 2005 when she began to complain to hospital personnel about patient safety concerns resulting from the hospital’s implementation of strict time standard nursing procedures, she began to receive negative employment reviews. These continued after Ms. Boly testified about her patient safety concerns to the Oregon legislature and when she attempted to organize a nurses’ union at the hospital. Finally, her employment was terminated in 2013.
Clearly, the jury was incensed by the hospital’s treatment of Ms. Boly. The jury’s anger is reflected by its award of $1,500,000.00 in punitive damages as a portion of the verdict. Although, what specifically inflamed the jury isn’t entirely clear, it is likely that Ms. Boly’s long tenure of exemplary work was a major factor. It also appears that the timing of her employer’s sudden devaluation of her performance reviews, concurrent with her patient safety advocacy, was a significant factor. Given this dubious timing, the hospital had a steep hill to climb to justify its hostile treatment of the plaintiff.
In a conversation with Ms. Boly’s Portland attorney, Mick Seidl, I learned that before trial the parties participated in a court sponsored settlement conference. Post trial, an unsuccessful mediation conducted under Oregon appellate court procedures occurred. Given that post judgment continues to accrue on the jury verdict, the defendant hospital may regret not settling at mediation.
Too often mediation of employment disputes, including but not limited to retaliation claims, involves the attendance of employer personnel who have direct involvement in the facts and circumstances at the center of the controversy. Often it is this dynamic that alone dooms a mediation, although it may or may not have contributed to the failed Boly mediation.
Practice Tip: When mediating an employment dispute on behalf of an employer, be sure that the decision maker(s) has the ability to objectively assess the dispute and act upon that evaluation. On the claimant’s side, insist that an employer representative, who is removed from the immediate facts of the controversy, attend the mediation with the authority to settle.
Gregg Bertram, M.A. J.D. LL.M is CEO of Pacific ADR Consulting and one of this country’s most experienced and versatile mediators. He may be reached at [email protected].
A HARSH PENALTY FOR
EMPLOYER RETALIATION
Mediation Spotlight: Boly v. Legacy Good Samaritan Hospital and Medical Center, et al, Circuit Court for Multnomah County Oregon, Case No. 1403-03902 (2015).
By Gregg Bertram M.A., J.D., LL.M.