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Nachiem v. State6/27/2005
e complaints she believed to be protected speech, or which acts of Dr. Singh she believed to be actionable. Nachiem's response included the filed grievances, but because she did not cite them in her argument related to this claim, her response must be regarded as conclusory.
Nachiem argues that her speech, because it was directed at the care of vulnerable adults in a state-operated residential facility, is protected by the First Amendment. Complaints involving suspected abuse of care facility residents raise an issue of public concern and are thus protected by the First Amendment. See White, 131 Wn.2d at 11-12.
Assuming for the sake of argument that Nachiem sufficiently identified Dr. Singh's actionable conduct as being her decision to demote Nachiem for making complaints about Anderson, and that she sufficiently identified those complaints as being the alleged protected speech, it is questionable whether those complaints come within the ambit of constitutional protection. The defendants argue that they do not because they focused on Anderson's shortcomings as a co-worker rather than abuse of residents. For the most part, the defendants are correct. Nachiem's grievances to the Fircrest management and the Nursing Care Quality Assurance Commission alleged inappropriate professional behavior by Anderson (loud and intrusive manner, does not take direction well, does not take responsibility); and poor practice techniques by Anderson (uses own method of recording vital statistics that is difficult for rest of staff to understand, makes it difficult to obtain accurate clinical information regarding patient condition). But her grievances also alleged 'unsafe nursing practice' by Anderson and another licensed practical nurse (mishandling of IVs and feeding tubes, inaccurate diagnosis and treatment of patients without consulting the nurse supervisor or physician, not following patient feeding instructions). Because the tenor of White is to err on the side of preventing abuse, and inferences on summary judgment must be drawn in favor of the non-moving party, we cannot say as a matter of law that the grievances are not protected speech.
Nevertheless, as discussed below in connection with the retaliation claim, Nachiem's response to the motion for summary judgment failed to establish that her grievances against Anderson were a substantial or motivating factor in the adverse employment decisions taken by Dr. Singh. Because of the lack of proof of this element of her prima facie case, the trial court did not err in dismissing the civil rights claim on summary judgment. We need not reach the further defense that Dr. Singh was entitled to qualified immunity.
RETALIATION CLAIM
Nachiem brings her retaliation claim under two separate statutory provisions. RCW 70.124 mandates reporting of abuse or neglect of state hospital patients, and RCW 74.34 mandates that employees of care facilities report abuse, neglect, financial exploitation, or abandonment of vulnerable adults. Both statutes provide to whistleblowers who are subjected to workplace reprisals the remedies found in RCW 49.60.
It is the employee's burden to make out a prima facie case of retaliation. Milligan v. Thompson, 110 Wn. App. 628, 638, 42 P.3d 418 (2002). To make out a prima facie case of retaliation, Nachiem must show that she engaged in a statutorily protected activity, that the Department took adverse employment action against her, and that there is a causal link between the protected activity and the adverse action. Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 862 991 P.2d 1182 (2000).
Ordinarily, an employee is forced to establish the prima facie case 'by circumstantial e
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