Facts : Francis worked as a registered nurse at defendant Memorial General Hospital (Hospital), first in 1982 and then from April 29, 1983. On March 2, 1984, his supervisor instructed him to "float" from his regular station in the intensive care unit to the orthopedics floor. He refused because he was unfamiliar with the new floor and felt incompetent to be charge nurse there. "Floating" was an established policy at the Hospital, and Francis was aware of it when he was hired.

For his refusal to "float," Francis was suspended for two days. On his return he gave notice that he would not "float" if he felt incompetent to do so; in consequence, he was suspended indefinitely. He requested a hearing to grieve his suspension. Defendant Dennis Picard (Picard), the Hospital Personnel Director, provided Francis with a copy of the Hospital's Problem Review Procedure. Additionally, Picard offered to orient Francis to all the floors so that he would feel more comfortable "floating" as the need arose. Francis declined this offer.

Pursuant to the Problem Review Procedure, a fact finding hearing was scheduled for March 12, 1984. Francis was advised that no one from outside the hospital, not even attorneys, would be allowed to attend. Francis appeared at the hearing accompanied by his attorney. He was told that the Employee Policy Manual (Manual) limited participation in grievance hearings to employees of the Hospital and that, therefore, his attorney could not go into the hearing room with him. At that point Francis refused to proceed further with the fact finding. The suspension was made permanent, but defendant Andrews, the Hospital Administrator, sent a letter offering to reinstate Francis if he would agree in writing to comply with the administrative policies and procedures (including "floating") of the Hospital. This offer, too, Francis rejected. Instead he voluntarily terminated his employment and subsequently filed this action.

Court Decision: The trial court entered a judgment in favor of the hospital and the Supreme Court of New Mexico affirmed decision.

Francis maintains that his refusal to "float" was mandated by the ethical considerations embodied in the Nursing Practice Act. He felt that the health and safety of the orthopedic patients would be jeopardized by his incompetence if he were charge nurse on their floor. Thus, he claims that his termination was tortious, his discharge wrongful.

We do not agree that the Hospital's "floating" policy is necessarily something that "public policy would condemn." Requiring a nurse to "float" is not the kind of unlawful or serious misconduct for which recognition of the tort of wrongful discharge was intended. Moreover, the Hospital is quite correct in responding that "floating" in fact implements another important public policy, that of maintaining an adequate staff on all patient floors in a cost-effective manner.

Prior to his discharge, Francis was presented with the opportunity for orientation to floors where he might "float" in the future to overcome his feeling of incompetence. This was done in deference to his ethical scruples, yet Francis refused to find out whether he could ever become comfortable with "floating." Because he declined this deference to his scruples, he cannot complain now that he was fired for following them.

Francis v. Memorial General Hospital 104 N.M. 698; 726 P. 2d 852

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