If a surgery center creates a new position that after a few months doesn't work out, is the facility free to lay off the person promoted to that position? Yes, as long as you have an at-will employment relationship and didn't lie or make any promises about the position, according to a California state appeals court.

The Court of Appeal of the State of California, First District, last month denied the appeal of Anna Marie Smallwood, RN, who claimed that Fremont Surgery Center Associates in the San Francisco Bay Area improperly fired her after a position created to help out a struggling director of nursing didn't work out.

In 2005 the surgery center's then administrator, Gary Charland, promoted Ms. Smallwood from recovery room manager to director of continuous quality improvement and utilization management. Mr. Charland created the position in order to take some of the workload off Director of Nursing Suzanne McAuliffe, RN, who was apparently "struggling to perform all of her tasks satisfactorily," according to court documents.

Ms. Smallwood's new job would be to figure out ways to reduce overtime and monitor continuing education for the staff. However, Ms. McAuliffe apparently became hostile and uncooperative with Ms. Smallwood once the position was created. Ms. McAuliffe said she didn't have time to train Ms. Smallwood. "At least on one occasion McAuliffe was written up for being uncooperative," according to court documents.

After a few months, the administrator decided to fire Ms. McAuliffe. Afterwards, Mr. Charland dismissed Ms. Smallwood, too, and hired a new director of nursing. Mr. Charland told the court that he never told Ms. Smallwood that her new position was dependent on Ms. McAuliffe working at the center. Ms. Smallwood apparently believed that her job was independent of Ms. McAuliffe's success. She said that she never would have taken the job if she knew that it was experimental and dependant on Ms. McAuliffe staying at the center.

Ms. Smallwood sued the surgery center in 2007 and a trial court sided with the surgery center in January 2009. Ms. Smallwood then appealed the decision, but the state appellate court upheld it in May. Based on what was presented in court, Ms. Smallwood had an at-will employment relationship with the surgery center, and she did not present sufficient evidence to make a case that the center lied about her position or tricked her into taking the job, wrote the appeals judges. "We are not persuaded by her arguments and affirm the lower court's judgment."

Kent Steinriede

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