wrongful termination of RN

[mainegal42]

I was wrongfully dismissed from my position as an RN at a local hospital New Year's Eve 2011. I had worked there for eight years. I was falsely accused of drug diversion. The plain and honest truth is that I did not have several narcotic wastes witnessed by another nurse, as there was no one immediately in the area to assist me on several occasions. Very understaffed working place. So I wasted the medication myself down the drain, and my job went with it. Anyway, it has been almost three months now and I have not heard a thing from the NYS Board of Professions or anyone else involved in the case. I wrote them a letter requesting my status and they have not responded. My urine drug test came back totally negative. On the NYS nursing website, my license is still shown as active and registered. I don't dare interview for another RN job as it will stir the pot quickly. How long can I expect to remain in limbo? I really can't afford a lawyer, I was out of work for over a month and am now working at a job that pays half of what I used to make as a nurse.

 

[shrinkmaster]

Are you part of a union that might help?

 

[cbg]

What you have described is not a wrongful termination under the law, btw. Why do you think it was?

 

[mainegal42]

I was wrongfully accused of drug diversion. I know I was wrong not to have the wasted medication witnessed by another nurse. They think I was using the drugs or selling them. They were practically insisting that I enroll myself into a rehab program sponsored by the state for professionals. I just feel so violated that after all those years of hard work and helping others, they think of me as a common criminal.

 

[cbg]

A wrongful termination does not mean you were fired because they have a mistaken idea about what you were doing. A wrongful termination means that there is a specific law that would prohibit them from firing you for the reason they did. No law says that they can't fire you for disposing of the drugs in a way that is contrary to company policy, EVEN IF they have a mistaken idea about what you did or why you did it. Therefore, it is not a wrongful termination. In fact, since you did violate policy, the termination would stand up easily if you attempted to take legal action.

So it really comes down to the question asked by the other poster - are you a part of a union, and if so, does the termination violate the CBA? If so, you may be able to get help from the union. If not, then all you can do is file for unemployment and look for another job. This was most definitely a legal termination under the law.

 

[esteele]

I "second" the above responders. Your most straightforward possible means of seeking relief would appear to be to file a grievance pursuant to a collective bargaining agreement. OP, if you were covered under a CBA, did the union already file a grievance on your behalf? If not, why not? If so, is the union pursuing arbitration on your behalf?

Separately, I do not know whether being falsely accused of using drugs and consequently discharged would contravene city, state or federal anti-discrimination law or any other employment law. With that said, federal and state law precludes irrational employment discrimination against former substance abusers. It may be worth exploring whether these statutes would extend to circumstances in which employers discharge non-users based on unsupported suspicion of drug use. This avenue may constitute a secondary possibility for you to exploring potential redress.

 

[cbg]

With respect, particularly considering that the poster admittedly violated policy in her disposal of the drugs, I suspect that she'd have an extremely hard time making a discrimination case fly EVEN IF she could somehow stretch either state or Federal laws in that direction. Which I doubt she could.

 

[shrinkmaster]

I suspect the policy exists because of abuse issues and when she knowingly violated it a red flag came up.

 

[esteele]

I do not vigorously disagree, cbg. However, the OP was reportedly terminated for "drug diversion." As I understand it, with this allegation her employer accused her of essentially stealing drugs for personal use. In contrast, she was not apparently accused with merely "wasting" drugs during the course of her care of patients.

Consequently, I wonder whether an employee falsely accused of taking drugs has a claim under federal or local law prohibiting discrimination against former substance abusers. I do not know the answer. It may be worth the OP's time to confer with one of the hundreds of experienced lawyers in NYC to obtain a definitive answer.

While this musing is concededly likely a longshot, it does not appear that OP has many arrows in her quiver. If the CBA grievance is not an option, this longshot may be the only arrow she has left.

Based on your posts, OP, it would appear that FMLA would apply here.

 

[cbg]

The key word is "former" drug abusers. I do not see any way the protections can be stretched to cover someone who disposed of drugs improperly and is believed by her employers because of it to be a current user. Current usage is not covered.

I have some experience with this, having once researched with not one, not two, but three different attorneys (for my own protection) whether or not under these same laws I could fire someone who came to work under the influence on multiple occasions.

Where are you seeing FMLA?

 

[shrinkmaster]

I think we still need to OP to come back and tell us if OP is part of a Union.

 

[cbg]

I don't disagree. But I'm completely lost as to how FMLA comes into this.

 

[esteele]

Opps!!! The above FMLA sentence is a typo! That sentence belongs to separate response in another post.

With respect to the disability protection claim, I would defer to your research in this regard. I have not undertaken such research.

However, it strikes me as peculiar a clean and sober former substance abuser could maintain a viable disability discrimination claim if her employer terminates her based on the mistaken belief she was currently using drugs while an employee with no substance abuse history could not maintain a similar cause of action to challenge a similar false allegation by her employer.

 

[cbg]

I'm having a hard time getting past the point that by her own admission, the poster DID violate policy in the way she disposed of the drugs. Barring a union contract that says otherwise, she could quite legally be fired for that alone. It does not appear to me that she was fired BECAUSE they think she was using drugs; she was fired BECAUSE she did not follow policy in how she disposed of them. That they are mistaken about HOW she actually disposed of them does not wipe out the fact that BY HER OWN ADMISSION she violated policy (and possibly law - I'm not clear as to whether having a witness is statutory or policy) in how she DID dispose of them. Even if she didn't do it the way they think, she still didn't do it the way she was supposed to. I'm finding it a real stretch, given that particular fact pattern, to come up with even a weak discrimination claim.

 

[mainegal42]

Thank you all so much for your comments and thoughts, it's the most info I've gotten out of anyone since this whole mess happened three months ago. And no, unfortunately I am not part of a union. I was wondering if anyone knows what the statute of limitations is for filing charges against a nurse in New York State? I haven't heard boo out of anyone in over three months, nerve wracking to say the least.

 

[army judge]

I don't think your license will be revoked or suspended.
The employer seems to have reacted on mere suspicion.
Unless you admitted to the behavior (other than in yoyr posts, which you might wish to redact), you potentially have some type of action against your former employer.
What action?
It depends on what exact reason you were given for your dismissal.
You couldn't hurt yourself by discussing your options with an attorney.
The initial consultation is normally provided at no cost to you.
It would be wise to gave at least three different consultations with three good, local labor or employment lawyers.

 

[esteele]

Cbg, if OP was fired for "wasting" narcotics during the course of treating patients, then she would not appear to have any recourse.

However, if her employer actually discharged her for using drugs, then she may have a potential right to challenge this false allegation, as discussed above. If the employer has already committed in writing (e.g., written response submitted to unemployment; statement to the nursing regulatory agency) that it terminated her for using drugs, it will have a hard time defending itself in a subsequent legal proceeding by offering an alternative factual explanation for its actions.

OP, you can likely go online to determine if there is a statute of limitations for the regulatory agency to take action against you based on the statement submitted by your former employer. FWIW, I would suspect that if you have tested negative for drugs the regulatory agency will not ultimately take severe action against you. Mishandling drugs is a far cry from taking or misappropriating drugs.

 

[cbg]

However, if her employer actually discharged her for using drugs, then she may have a potential right to challenge this false allegation, as discussed above. If the employer has already committed in writing (e.g., written response submitted to unemployment; statement to the nursing regulatory agency) that it terminated her for using drugs, it will have a hard time defending itself in a subsequent legal proceeding by offering an alternative factual explanation for its actions.

I can see where she would have the right to challenge unemployment or a licensing issue IF they have made such as statement as you suppose (although I don't see where the poster claims they have). I STILL, however, do not see how she could challenge the termination.