Can a Whistleblower Claim Involve Public Safety?

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A former Walmart pharmacist was awarded $31.2 million dollars by a jury in federal court in New Hampshire after a trial concerning her whistleblower and discrimination claims. Maureen McPadden claimed that constant employee turnover in her pharmacy and hiring of inexperienced workers put the public at risk. After her internal complaint about the issue and a complaint to a state official, McPadden was fired.

The lawsuit was filed in 2014, and the jury decided the case in January. McPadden alleged that Walmart “negligently trained and supervised the pharmacy staff” in the Seabrook, New Hampshire store where she worked, reported the Consumerist. She believed she was fired in November 2012, after working for Walmart for 13 years, because she reported unsafe practices and privacy violations and because of her gender and her medical leave.

The jury found that McPadden had been discriminated against because of her sex and for reporting violations of privacy and pharmacy safety laws in violation of New Hampshire’s whistleblower protection law. The jury found that Walmart didn’t retaliate against the plaintiff for requesting a medical leave.

Allegations That Walmart Punished McPadden for Reporting Public Safety Concerns

Can a Whistleblower Claim Involve Public Safety

McPadden claimed that in the two years leading up to her firing, the following facts occurred:

  • Thirteen pharmacy employees either quit, were transferred, or were fired, and Walmart left the positions vacant or hired new and inexperienced replacement workers.
  • The constant turnover, understaffing, and lack of experience created a serious threat to the safety of patients and resulted in regulatory violations regarding the safe practice of pharmacy.
  • McPadden contacted the Chief Compliance Investigator for the New Hampshire Board of Pharmacy in 2011 because “too many mistakes were occurring” in the pharmacy and the public’s health was at risk due to the lack of properly trained staff.
  • McPadden brought her complaint to the district manager for her area in August 2012, but nothing was done to correct the problems.
  • Later that month, a “serious dispensing error occurred” in the pharmacy for which McPadden’s boss, the pharmacy manager, initially blamed McPadden, though McPadden was later found to not be responsible. The manager was at fault, and the incident was the third time he provided the wrong medication to a customer.
  • The stress of the situation and the lack of support from Walmart got to the point where McPadden lost 18 pounds and suffered from headaches, gastrointestinal symptoms, anxiety, and depression. McPadden stated that she needed prescription medication to sleep.
  • McPadden’s physician advised her to take a two-week medical leave in September. When she came back to work, she discovered that a pharmacy technician had accessed her private health information and had told others working there about McPadden’s use of prescription sleep medication.
  • McPadden reported this unauthorized disclosure of her private medical data, which violated federal medical privacy law, to the district manager. The technician was given a job in loss prevention at the store and was not fired or transferred. McPadden alleged that the store didn’t investigate her claim that the technician had violated her privacy rights.
  • McPadden was fired in November 2012. Walmart stated the reason was that she lost a key to the pharmacy. She admitted she lost the key but claimed she followed the proper protocol and immediately reported it missing.

keysAt trial, McPadden presented evidence that some male pharmacy employees had also lost their keys but kept their jobs. She argued that under Walmart’s policies, she only should have received a warning. Walmart contended that the two people who decided McPadden should be fired were unaware of her complaints about safety in the pharmacy, so they could not have retaliated against her because of them.

The parties disputed whether McPadden had been coached due to performance issues once (her position) or twice (Walmart’s position). Under Walmart’s policies, the company would have a much stronger argument that the firing was justified if McPadden had been coached twice.

The jury sided with McPadden and awarded her $164,093 in back pay, $558,392.87 in front pay, $500,000 in compensatory damages, and $15 million in punitive damages for the federal and state discrimination claims. In March, Walmart asked the judge to overturn the verdict.

Lawsuit Survived an Earlier Motion for Summary Judgment

pillsEarlier in the case, Walmart sought to have the case dismissed through a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

  • The purpose of a summary judgment motion is to have the judge dismiss the entire case, or at least some of its legal claims, when the pretrial evidence shows “no genuine dispute as to any material fact” and the party filing the motion is entitled to judgment as a matter of law.
  • A fact is “material” if it potentially affects the outcome of the lawsuit. A dispute over a fact is “genuine” if the positions on the issues by the parties are supported by conflicting evidence.

When making a decision on a motion for summary judgment, the judge must look at the evidence “in the light most favorable to the non-moving party and resolve all reasonable inferences in that party’s favor,” according to an order in response to that motion.

In November 2015, taking McPadden’s statements as true, the judge issued the following ruling:

  • “While her evidence in support of those discrimination claims is thin, it is sufficient to avoid summary judgment.”
  • The judge wasn’t too impressed with the evidence supporting McPadden’s whistleblower claim either. “Again, while the evidence supporting plaintiff’s discrimination claim is not particularly compelling, it is sufficient, if fully credited by a jury, to support a conclusion that she was fired in retaliation for having done something that public policy would encourage: reporting potential safety issues in the pharmacy.”

Summing It Up

The key issues in this case were as follows:

  • Whistleblower or retaliation cases are based on the allegation that the plaintiff took some protected action and was punished for it. The plaintiff needs to show some evidence that the person taking the negative action (in this case, firing) knew about the protected action. Here, Walmart claimed the people making that decision didn’t know, but the jury found otherwise.
  • In discrimination cases, if the plaintiff did something wrong (like losing a key to the pharmacy), that’s not the end of the case if the plaintiff can show others not in the plaintiff’s protected class (in this case, males) were treated better (they were not fired) or the defendant ignored its own disciplinary policies. In this case, the parties disputed whether the policies were followed, but the jury found for McPadden.
  • Motions for summary judgment are very common. The judge deciding the motion should give a fair amount of leeway to the plaintiff so he or she can avoid having a case dismissed at this stage and have material, genuinely disputed factual issues resolved at trial. If a lawsuit withstands such a motion, a defendant may be more open to settlement negotiations to avoid the costs of a trial and potential exposure to a verdict in the plaintiff’s favor.

At Spiggle Law, we can help you understand the nuances of whistleblower protection laws as they apply to you and your situation. If you decide to pursue a claim, we can be your advocates and advisors from the initial consultation to the final resolution. Contact us today to learn more about our team and to schedule a consultation.