(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
While working at Foundation North Side, Ms. Lane made frequent complaints to upper management, including officers and managing agents such as Oliver Browne and Ethan Jones, regarding the failure of Foundation to address serious patient and staff safety issues. None of Ms. Smith’s complaints received any substantive response, other than her termination. The subjects of these complaints included:
* OSHA violations including concerns about frequent blood splashes and gastric juices deposited on nurses and the failure of Kaiser to install necessary OSHA required eyewash stations.
* The continued use of non-safety needles to avoid accidental punctures of staff.
* Toxicity of a new facility at Richmond and a manager’s withholding of the report of work that was being done to correct that toxicity found in the Forensic Analytical report commissioned by Charles Smythe to the employees in the building.
* The loss by Sam White of Personal Air Purification Respirators given to Roseville to protect staff and patients from airborne pathogens and would not find them.
* The lack of fit testing for N-95 respirators at the Roseville facility.
* The placement of tuberculosis patients in non-quarantined rooms, in the general patient population and released back out into the general population, including a 14-year-old child who had tuberculosis and whose mother was a Registered Nurse and whose father came contact with about 500 people daily. Those patients that were quarantined were placed in isolation rooms many of which did not work because air exchange testing had not been performed on an annual basis as is required. In another instance, in 2006, a tuberculosis patient was released by a Registered Nurse to get on a bus and released into the general population.
* The use of a toxic substance, Cidex, in unventilated rooms, a practice which endangered staff.
The temporal nexus between Ms. Smith’s last complaint in December 2005 regarding toxic fumes from the use of Cidex in an unventilated room being used as a Pulmonary Lab, the unjustified disciplinary letter of December 28, 2005, and Ms. Smith’s termination on January 10, 2006 is compelling. Rather than address any of Ms. Smith’s concerns, management found an opportunity to terminate her and took it, in violation of not only foundation’s anti-retaliation policy but also its Dispute Resolution Program which was never followed once in response to a health or safety concern raised by Ms. Smith. That an employer’s actions were caused by an employee’s engagement in protected activities may be inferred from the proximity in time between the protected action and the allegedly retaliatory employment decision. Ray v. Henderson (9th Cir. 2000) 217 F.3d 1234, 1244.
The other temporal nexus which is significant is the nexus between Ms. Smith’s termination and her December 5,2005 complaint to Oliver Browne, COO of the Roseville Medical Center, about how her chain of command, including Sam White and Ethan Jones, was ineffectual in addressing workplace safety issues. Mr. Browne responded to Ms. Smith’s initial request for assistance by requiring her to go through the same chain of command, and copying Ethan Jones on the email, thereby alerting Mr. Jones that Ms. Smith was complaining about the ineffectuality of the chain of command. Mr. Browne did nothing to investigate or prevent Ms. Smith’s subsequent termination for wrongful reasons. See Coszalter v. City of Salem (9th Cir.2003) 320 F.3d 968, 977 (employee can show that complaints were a substantial motivating factor in an adverse employment action by introducing evidence regarding the proximity in time between his speech and the allegedly retaliatory action); See also Lujan v. Minagar (2004) 124 Cal.App.4th.1040, 1046 (wrongful termination under Labor Code Sec. 6310 includes preemptive retaliation against employees whom an employer fears will file workplace safety complaints). (See Part 6 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.