Author: Joseph L. Fink III, BSPharm, JD
A pharmacist is fired and points out that the employer may have violated public policy because she objected to activities and qualifications of pharmacy technicians assigned to assist her.
Issue of the Case
When a pharmacist is terminated from employment, and she points out that this action by the employer may have been in violation of public policy because she objected to some of the activities and qualifications of pharmacy technicians assigned to assist her, may the case proceed to trial because it presents questions of fact for a jury to address?
Facts of the Case
The pharmacist at the center of this discussion had been initially hired by a national pharmacy chain as a staff pharmacist for one of its locations in a western state and, 6 months later, was promoted to pharmacy manager (PM). She hired an individual who was a licensed pharmacy technician to assist with pharmacy operations, but later noticed that this technician had difficulty when calculating dosages for prescriptions. As a result, the pharmacist had to recalculate each prescription dosage to ensure accuracy.
At a later time, the manager of human resources for the pharmacy chain indicated to the pharmacist that she planned to hire an individual to work in the pharmacy who was not licensed as a pharmacy assistant or technician. The pharmacist/PM objected to taking this action until the person obtained appropriate licensure but still felt pressure to permit this individual to work in the pharmacy. She insisted that he work out front until he had secured the requisite licensure.
Once licensure as a pharmacy assistant had been achieved, the person started working in the pharmacy and commenced working on the chain’s on-site training program to achieve licensure as a technician. The pharmacist/PM was tasked with supervising this training, but the pharmacy was understaffed, so working with the trainee was a challenge.
The pharmacist/PM continued to feel she was being pressured by the human resources manager and subjected to undue criticism. The pharmacist/PM went so far as to use an employee hotline to file an anonymous complaint regarding the “bullying and interference.”
The pharmacy assistant succeeded in achieving licensure as a pharmacy technician and then began to notice the challenges the other technician had with dosage calculations. After returning from vacation, the pharmacist/PM was approached by the manager of the overall store operation about the calculation difficulties that the original technician was experiencing. She told the store manager that the deficient performance of the pharmacy technician was indeed adversely affecting pharmacy operations. The store manager advised the pharmacist/PM to get a book for the pharmacy technician to help improve her ability to do the required calculations.
The pharmacist/PM was later terminated from her position by the store manager with the explanation that she had engaged in gross misconduct because she had condoned or authorized the pharmacy technician to work off the clock.
The pharmacist/PM filed a lawsuit in state court alleging that she had been subjected to wrongful termination in violation of public policy. She first argued that she had not asked the pharmacy technician to work on the study book off the clock, making the stated basis for the termination false. She also advanced the allegation that her termination was substantially motivated by her efforts to ensure compliance with the statutes and regulations governing pharmacies in that state. Her final argument was that her termination was “substantially motivated by retaliation for her efforts to protect the public from harm by disallowing unlicensed personnel from working in the pharmacy and by attempting to ensure that the licensed personnel performed their job duties correctly and safely."
The defendant pharmacy chain moved to have the case transferred to federal court because the 2 parties were in different states, one of the criteria for getting into the federal court system. Once that transfer occurred, attorneys for the chain then made a motion for summary judgment. A summary judgment means that there is no genuine issue regarding any material fact and, hence, no need for a trial. Essentially, the chain was asking the federal trial court judge to end the matter right there, ruling in its favor.
The Court’s Ruling
The trial court judge denied the motion for summary judgment by the defendant pharmacy chain, meaning that the case could proceed to trial.
The Court’s Reasoning
The court concluded that the factual situation presented by the case presented several issues of fact for consideration by a jury. First, did providing the study materials to the technician with the intent that they be used to improve her job-related skills mean that the pharmacist/PM required that staff member to work off the clock? Next, given that the laws of the state prohibit unlicensed staff members from working in the pharmacy and that the pharmacist/PM resisted pressure from company officials to allow an unlicensed staff member to work in the pharmacy, it appeared that there was a clear violation of public policy, leading to the claim that the termination was wrongful. Because these factual issues were for a jury to decide, the motion for summary judgment that would have prevented these questions from reaching a jury was not granted.
Dr. Fink is professor of pharmacy law and policy and Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.