Objecting Nurse Fired
10 years of litigation follows dismissal
Orange County, California, U.S.A.
The case of nurse Karen Kelly illustrates the kind of exhausting
litigation that conscientious objectors may encounter when pursuing
wrongful dismissal claims against large employers with 'deep pockets.'
Her story is told in the following news reports filed at critical points
as the case proceeded. [Administrator]
Kelly Case Ends in Non-suit
Lifeline, Vol. XI, No. 1 (Spring, 2002)
Life Legal Defense Foundation
Reproduced with permission
Nurse Karen Kelly's lawsuit against Orange County
ended abruptly when federal judge Terrence Hatter granted the County's
motion for directed verdict just after Karen's attorneys, Tom and Liz
Nigro, finished presenting her case at trial. Granting the motion
prevented the case from going to the jury, which appeared to view
Karen's case more favorably than the judge did.
In 1995, Karen sued Orange County for retaliation and wrongfully firing
her from her job as a nurse at juvenile facilities because she refused to
schedule abortions and provide offensive Planned Parenthood-style "safe-sex"
instruction to children. The case was made more difficult by the fact that,
when fired, Karen was still within the probationary period of a new
employee; essentially, the County could fire her for no reason, although not
for a discriminatory reason.
The trial began on April 2, when Judge Hatter informed the attorneys that
each side would have only ten hours to present its case to the jury,
including, but not limited to opening statements, direct examination of
witnesses, cross-examination of opposing witnesses, and closing arguments.
The parties had estimated that the trial would take at least three weeks, so
the court's order slashed this time by about75%.While each side had the same
allotment of time, this superficially equitable handicapping failed to take
into account that only one party, Karen, had the burden of proof. And the
result of that imbalance was made clear when the judge granted the County's
motion for nonsuit on the grounds that Karen had failed to present enough
evidence to support her case.
Karen testified that after she informed her supervisor that she could not
perform duties which violated her religious beliefs, the supervisor, rather
than making a reasonable accommodation as required by law, embarked on a
course of harassment designed to break Karen down. This included subjecting
Karen to the taunts of co-workers, repeatedly threatening to fire her if she
continued to refuse, and finally transferring her to another shift at a
different facility, thus imposing a severe strain on Karen that led to
medical problems. At the second facility, Karen was not properly oriented
for her different and increased job responsibilities, nor did she have the
specialized training required for the position, thus reinforcing the point
that the transfer was intended to cause Karen to fail and give in to her
employers' demands or be terminated.
The jury also heard from a highly-qualified expert witness who testified
that Karen's work was within the standard of care expected of nurses, and
that, in the areas the County specifically criticized after Karen's forced
transfer, her work performance was at a level to be expected based on her
limited training for the new position.
Because of the severe time limits imposed by the judge, Karen's testimony
was shortened, as was that of her witnesses. In spite of the time limits,
the court refused to allow the use of deposition testimony of one of Karen's
supervisors who recently became unavailable to testify at trial, but who had
testified: "I don't care what her beliefs are, she was expected to do her
job. "Thus, the most significant direct evidence of discriminatory animus
was excluded at trial. Nonetheless, the six-man, one-woman jury appeared
sympathetic to her plight, to the point that some were crying during her
testimony. The judge, however, appeared to have the opposite reaction.
Finally, on April 10, when Tom Nigro rested his case with less than an
hour remaining for both cross-examining the last defense witnesses and his
closing argument, the County moved that the case be dismissed on the grounds
that Karen had failed to meet her burden of showing that the County had
fired her because of her religious beliefs.
The court held there was no question regarding the sincerity of Karen's
religious beliefs, nor that Karen was a probationary employee who could be
fired for no reason, but not for a discriminatory reason. However, the court
found she had produced insufficient evidence that she was fired for a
"I believe we put on a strong case in spite of the time limitation," said
Liz Nigro. "We were disappointed with several of the court's evidentiary
rulings, and shocked when he granted the County's motion for directed
verdict, taking the case away from the jury. After litigating this case for
five years, it would have been easier for us, and Karen, to accept a defeat
from the jury." Karen, the Nigros, and LLDF attorneys are evaluating the
prospects of an appeal.
1 Ironically, in a similar case in Santa Ana, Karen
Kelly v. Universal Care, the federal district court judge denied the
defendant's motion for summary judgment, holding that Karen had provided
sufficient evidence of discriminatory intent. This matter was recently
settled under confidential terms.