(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY AND VIOLATION OF LABOR CODE SECTION 6310 (AND HEALTH AND SAFETY CODE SECTION 1278.5)
Foundation has filed a Motion for Summary Judgment on all claims, including the major claim for Wrongful Termination in Violation of Public Policy. For settlement purposes, it is important to recognize that Foundation cannot win summary judgment or summary adjudication on this claim because of the existence of disputed issues of material fact, as well as Foundation’s incorrect interpretation of the law.
The pretextual reason given for Ms. Smith’s termination was her printing of a memorandum, addressed to her and publicly viewable on her supervisor’s computer screen, regarding discipline that her supervisor, Scott Dawson, apparently intended to impose in retaliation for her frequent complaints about the incompetence of Foundation management and Foundation’s many continuing safety and OSHA violations. At Ms. Smith’s termination hearing Mr. White also falsely claimed that Ms. Smith had accessed his Lotus Notes account and printed other documents from his work computer.
Ms. Smith’s termination letter referred to the following reasons for her termination: Violation of the Principle of Responsibilities, breach of confidentiality, invasion of privacy and violation of FG computer assets. (These should have been the reasons for Mr. White’s termination.) Ms. Smith printed the draft disciplinary memorandum and brought it to COO Oliver Browne because of Ms. Smith’s concern that Sam White had left it visible on his screen in an open cubicle for everyone to see, thereby violating her privacy rights as an employee. The act of leaving the draft disciplinary memorandum visible for everyone to see violated Foundation’s Principles of Responsibility, breached Ms. Smith’s right to confidentiality of her personnel records, violated her right to privacy, and was a violation of Foundation’s Electronic Assets Usage policy. Instead of properly discharging Sam White for his multiple violations of policy, Foundation, in violation of its own anti-retaliation policy, retaliated against Ms. Smith for complaining about Mr. White’s egregious violation of her confidentiality and privacy and terminated Ms. Smith instead.
Unfortunately for Foundation’s defense, there is no policy against, or harm caused by, printing a draft work-related memorandum from her supervisor’s screen:
1) Foundation’s Principles of Responsibility contain no language that would preclude Ms. Smith from printing a letter about her that was publicly visible in an open cubicle and bringing that letter to Foundation’s Chief Operating Officer.
2) Ms. Smith’s act of printing the letter about her could not, in any way, violate Sam White’s right to privacy. Mr. White has no cognizable right to privacy with regard to a work related correspondence about someone else. In fact, Foundation’s own Principles of Responsibility and Electronic Assets Usage policy make it clear that employee privacy does not extend to conduct in the work place or to the use of Foundation’s assets.
3) There is nothing in Foundation’s Electronic Usage Policy that precluded Ms. Smith from printing a visible document about her and taking it to the Chief Operating Officer of the hospital.
The violations of Foundation’s Electronic Usage Policy were by Sam White:
a. He failed to prevent access to his computer.
b. He failed to avoid leaving…business information open/accessible by employing password-activated screen savers.
And, yet, Mr. White received no discipline whatsoever. Interestingly, Foundation’s Electronic Assets Usage policy also states Users who identify security issues should report them immediately. In Smith’s case, that line should be followed by …and subsequently be terminated. (See Part 3 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.