Gossip, Rumor or Whistle Blowing - The Court of Appeals Decides

by Davis Brown Law Firm

[author: ]

Whistle blowing complaints have been on the rise consistently over the last several years, which has created regulatory issues, a wide array of new policies to address internal whistle blowing and retaliation. It has also created an explosion of wrongful termination claims.

It would be hard to find an area in which allegations of whistle blowing are more prevalent than in the long-term care and assisted living industry. The Department of Inspections and Appeals and other regulators have taken extremely aggressive stances regarding the rights of the alleged "whistle blower" to be free to report any alleged violations of statute/regulation and to be free from coercion, retaliation or any type of conduct which might be said to "chill" reporting.

The Iowa Court of Appeals in Karen Dorshkind v. Oak Park Place of Dubuque II, LLC, No. 2-640/11-2100 filed October 17, 2012, has taken a large step towards supporting claims of wrongful termination for "whistle blowers" who make exclusively internal whistle blowing complaints.

In this case, Ms. Dorshkind had been the marketing director for an Oak Park assisted living facility in Dubuque from April 2006 to September 2008. In April 2008, she was told she would be reporting to a new manager. This becomes important later as we track the status of the complaint that she made as a "whistle blower."

Ms. Dorshkind alleged in 2008 that two co-employees falsified the required training documents relating to the care of dementia patients. At the time, Ms. Dorshkind told two co-employees about the suspected forgery. Approximately six weeks later she told her prior supervisor of her suspicions. The case does not indicate whether Ms. Dorshkind ever contacted her current supervisor regarding these matters, or any other person in management.

When Ms. Dorshkind's prior supervisor, a Ms. Jones, was informed of these allegations, she immediately reported the matters to the Human Resources Director and a prompt investigation was undertaken. Apparently at that time the allegations were not exclusively that training documents had been falsified, but also that the co-employees were having an affair. The investigation ultimately determined that no falsification had occurred and Ms. Dorshkind was later terminated specifically for "spreading rumors regarding a false relationship between two employees, malicious statements regarding forging of documents, and false statements to a regional director about move in numbers."

A subsequent Department of Inspections and Appeals investigation in September of 2008 responding to a Complaint made regarding Oak Park concluded that some training documents had in fact been forged. Oak Park was sanctioned for this issue. Ms. Dorshkind subsequently filed suit in 2010 alleging wrongful termination.

Of critical concern here is the recognition of the Iowa Appeals Court that an internal complaint that is never made to the employee's supervisor or even within the appropriate complaint "chain of command" is an assertion creating a legally protected status. Remember, in this instance, the timeline was the complaint to co-workers complete with a discussion of an affair, a complaint to a manager who was no longer in the direct chain of command although that manager subsequently reported the issue to the appropriate person within the organization. Further, the report was not exclusively one of record forgery where a public policy might have been determined to exist but also one of sexual misconduct, affairs and other behavior giving at least the appearance that there was more there than just the concern about appropriate training and documentation of that training. If you don't report to the proper person and you mix your complaint with the "who is dating who" gossip realistically it can be argued that will delay or impede investigation.

Oak Park argued that Ms. Dorshkind's failure to report through the proper process rendered her action unprotected as a public policy violation because there is no specific public policy relating to internal complaints. This argument had previously had mixed success in other cases. However, in a separate case, Ballalatak v. All Iowa Agric. Ass'n,781 N.W.2d 272, 277 (Iowa 2010) citing to the Khort case, the Iowa Supreme Court specifically stated that, "the Court held [we] would recognize a wrongful discharge claim where an employee complains internally about safety issues to the employer." Presumably part of the argument here is that no internal complaint was made to "the employer" simply co-employees and outside of the appropriate chain of command.

Ultimately in this case, the Appeals Court found that it is a clear public policy of the State of Iowa to require certain standards in dementia care and that terminating an employee for reporting breaches internally is violation of public policy. The Complaint did make it to the appropriate person, although not immediately. It is also interesting to note that the Court determined that punitive damages would not be appropriate because prior to this time, "there has been no specific declaration by our Courts or legislature that internal whistle blowing may be protected under certain circumstances." That won't hold true next time since Plaintiffs will cite this case.

Anyone reading a legal opinion recognizes immediately that most opinions are full of loopholes and complex language trying to take into account the enormous variety of circumstances that any employer might see.  In general, however, this case illustrates the significant danger that faces employers who terminate employees who may have made a complaint which in any way would implicate "whistle blowing." Whistle blowing can encompass a wide array of things, including refusing to participate in an activity which the employee believes to be illegal, reporting the illegal activity of others, exercising a statutory right, or performing a statutory obligation. Any of these items can result in a claim of whistle blowing by the employee. If you have a whistle blower or someone who is simply just a complainer and disciplinary action seems to be appropriate, it is more beneficial to you as the employer to discipline for clear, concrete items such as absenteeism, failure to complete specific work duties and other matters than to rely on any allegation of the employee being a gossip, spreading rumors or being a pot stirrer.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Brown Law Firm | Attorney Advertising

Written by:

Davis Brown Law Firm

Davis Brown Law Firm on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.