Articles Posted in Workplace Discrimination/Sexual Harassment

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this employment discrimination/personal injury case and its proceedings.)

Further, Defendant’s argument that Plaintiff has no legal protection for reporting illegal practices because such reporting was an essential part of her job duties turns logic and law upside down. If Defendant’s position were accepted, it would mean that the very employee charged with reporting illegal activity would have no incentive to make a report because the employee would not be protected from retaliation for reporting the illegal conduct.

Fortunately, and not surprisingly, California law does not abandon those employees most in need of legal protection, i.e., those who by virtue of their position must report illegal activity. See e.g. Green v. Ralee Eng. Co. (1998) 19 Cal.4th 66, 79 (public policy termination claim properly stated by quality control inspector who complained about unsafe conditions on airplane despite that the quality control inspector, like Plaintiff here, was simply doing his job); Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 477 (supervisor who objects to and tries to stop sexual harassment of another employee entitled to protection from retaliation despite that supervisor had an obligation to make the report as part of basic supervisorial duties).

DISPARATE TREATMENT CLAIM

Although discovery has not been pursued with regard to this claim, Ms. Church contends that David Black (her quasi-supervisor for a period of time because her direct supervisor rarely came to work) and Mary Smith, her second-level supervisor, treated her differently than males in comparable positions.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this employment discrimination/personal injury case and its proceedings.)

Kaiser also contends that because reporting unsafe and unlawful conditions was part of Plaintiff’s job, she is precluded from raising a wrongful termination claim or Labor Code section 1102. In its desperation, Kaiser turns to federal cases around the country, including an ill considered opinion from the Eastern District of California, lacking any authority to cite to a single California case supporting the outrageous position that it can fire someone for reporting Kaiser wrongdoing. Kaiser’s argument is not only flatly wrong, it is undermined by Garcetti v. Cebellos (2006) 547 U.S. 410, 126 S. Ct.1951, in which the Court held that Labor Code violations remain actionable even to those whose job encompasses the reporting so that employees who seek to expose wrongdoing are still protected.

Exposing governmental inefficiency and misconduct is a matter of considerable significance. As the Court noted in Connick, public employers should, as a matter of good judgment, be receptive to constructive criticism offered by their employees. 461 U.S., at 149, 103 S.Ct. 1684. The dictates of sound judgment are reinforced by the powerful network of legislative enactments-such as whistle-blower protection laws and labor codes-available to those who seek to expose wrongdoing. See, e.g., 5 U.S.C. § 2302(b)(8); Cal. Govt.Code Ann. § 8547.8 (West 2005); Cal. Lab.Code Ann. § 1102.5 (West Supp.2006)

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this employment discrimination/personal injury case and its proceedings.)

The other temporal nexus which is significant is the one between Ms. Church’s termination and her December 5,2006 complaint to Stan Brown, COO of the Kaiser Medical Center, about how her chain of command, including Richard White and Charles Smith, was ineffectual in addressing workplace safety issues. Mr. Oliver responded to Ms. Church’s initial request for assistance by requiring her to go through the same chain of command, and copying Charles Smith on the email, thereby alerting Mr. Smith that Ms. Church was complaining about the ineffectiveness of the chain of command.

Mr. Oliver did nothing to investigate or prevent Ms. Church’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).

Kaiser argues that Church was terminated for legitimate reasons, cannot prove otherwise by showing that the reasons were pretext for retaliatory animus, and therefore it should prevail on summary judgment. As Church’s claim is a state law claim for retaliation, the California Court of Appeal decision in Mamou v. Trendwest Resorts Inc. (2008) 165 Cal.App.4th 686 is directly on point. As clarified by the Mamou, “while pretext” is certainly a relevant issue…the central issue…whether the evidence as a whole supports a reasoned inference that the challenged action was the product of retaliatory animus. Id. at 715 (emphasis added by counsel). At the summary judgment stage, the Court’s duty is to determine whether the employee’s evidence is too weak to sustain a reasoned inference in the employee’s favor. Id. (emphasis by court). If reasonable competing inferences may be drawn from the facts, summary judgment should be denied. Adickes v. S.H. Kress & Co., supra, 398 US at 157; Lake Nacimiento Ranch Co. v. San Luis Obispo County (9th Cir. 1987) 841 F2d 872, 875.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this employment discrimination/personal injury case and its proceedings.)

While working at Kaiser-Permanente, Ms. Church made frequent complaints to upper management, including officers and managing agents such as Stan Brown, David Black, and Mary Smith, regarding the failure of Kaiser to address serious patient and staff safety issues. None of Ms. Church’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 Sacramento 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 Smith to the employees in the building.

* The loss by Richard White of Personal Air Purification Respirators given to Sacramento to protect staff and patients from airborne pathogens and would not find them.

* The lack of fit testing for N-95 respirators at the Oakland or Sacramento facilities.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this employment discrimination/personal injury case and its proceedings.)

Additionally, Ms. Church’s termination was in violation of Health and Safety Code Section 1278.5(b)(1): No health facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker of the health facility because that person has done either of the following:

(a) Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity.

(d)(1) There shall be a rebuttable presumption that discriminatory action was taken by the health facility, or by the entity that owns or operates that health facility, or that owns or operates any other health facility, in retaliation against an employee, member of the medical staff, or any other health care worker of the facility, if responsible staff at the facility or the entity that owns or operates the facility had knowledge of the actions, participation, or cooperation of the person responsible for any acts described in paragraph (1) of subdivision (b), and the discriminatory action occurs within 120 days of the filing of the grievance or complaint by the employee, member of the medical staff or any other health care worker of the facility.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this employment discrimination/personal injury case and its proceedings.)

Kaiser has a very clear national policy regarding Corrective/Disciplinary Action because it is obligated to have one.

Kaiser Permanente (KP) must comply with specific legal/regulatory standards that include, but are not limited to, those indicated by Medicare and other government program billing requirements, Guidance issued by the Centers for Medicare and Medicaid Services, the Department of Health and Human Services, the Compliance Program Guidance issued by the Office of the Inspector General, and HIPAA/Privacy and Security regulations …. KP is required to have well publicized disciplinary guidelines that demonstrate its commitment to compliance and set forth the consequences for violations of compliance mandates.

In other words, state and federal laws and regulations require that Kaiser follow its own Corrective/Disciplinary Action policy. The last paragraph of that policy states: Employees who report compliance and/or ethics concerns in good faith will not be subject to corrective/disciplinary action for doing so… Nevertheless, even assuming the truth of Kaiser’s purported reason for terminating Ms. Church, Ms. Church was terminated in violation of Kaiser’s legally mandated policy because she was terminated for printing out an improperly viewable document to show to Mr. Oliver.

In fact, both the reasons given for Ms. Church’s ultimate termination and the underlying reasons for the draft disciplinary letter which she printed from Mr. White’s screen were pretext for retaliatory action and restraint of Ms. Church’s efforts to hold the managers in charge of Environmental, Health and Safety accountable for the numerous lapses in employee and patient safety which they have countenanced while she has worked for Kaiser (first as a consultant, then as an employee). Kaiser managers expressed concerns about Ms. Church’s communication style when she would communicate that a) there were serious defects in Kaiser’s workplace safety program and b) those managers were partly or fully responsible for those serious defects.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this employment discrimination/personal injury case and its proceedings.)

Unfortunately for Kaiser’s defense, there is no policy against, or harm caused by, printing a draft work-related memorandum from her supervisor’s screen:

1) Kaiser’s Principles of Responsibility contain no language that would preclude Ms. Church from printing a letter about her that was publicly visible in an open cubicle and bringing that letter to Kaiser’s Chief Operating Officer.

2) Ms. Church’s act of printing the letter about her could not, in any way, violate Richard 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, Kaiser’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 Kaiser Permanente’s assets.

3) There is nothing in Kaiser’s Electronic Usage Policy that precluded Ms. Church from printing a visible document about her and taking it to the Chief Operating Officer of the hospital.

The violations of Kaiser’s Electronic Usage Policy were by Richard 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, Kaiser’s Electronic Assets Usage policy also states Users who identify security issues should report them immediately. In Ms. Church’s case, that line should be followed by: “…and subsequently be terminated.” (See Part 4 of 11.)

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this employment discrimination/personal injury case and its proceedings.)

WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY AND VIOLATION OF LABOR CODE SECTION 6310 (AND HEALTH AND SAFETY CODE SECTION 1278.5)

Kaiser 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 Kaiser cannot win summary judgment or summary adjudication on this claim because of the existence of disputed issues of material fact, as well as Kaiser’s incorrect interpretation of the law.

The pretextual reason given for Ms. Church’s termination was her printing of a memorandum, addressed to her and publicly viewable on her supervisor’s computer screen, regarding discipline which her supervisor, Richard White, apparently intended to impose in retaliation for her frequent complaints about the incompetence of Kaiser management and Kaiser’s many continuing safety and OSHA violations. At Ms. Church’s termination “hearing,” Mr. White also falsely claimed that Ms. Church had accessed his Lotus Notes account and printed other documents from his work computer.

Ms. Church’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 KP computer assets. These should have been the reasons for Mr. White’s termination. Ms. Church printed the draft disciplinary memorandum and brought it to COO Stan Brown because of her concern that Richard White had left it visible on his screen in an open cubicle for everyone to see, thereby violating her privacy rights as an employee.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this employment discrimination/personal injury case and its proceedings.)

Plaintiff’s Mandatory Settlement Conference Statement

Plaintiff Miranda Church, a Workplace Safety Specialist employed at Kaiser Foundation Hospital, was wrongfully terminated on January 10, 2006, in violation of public policy and Kaiser’s own employment policies. Prior to her termination, Ms. Church was treated in an abusive and discriminatory manner by her quasi-manager, David Black, and was underpaid compared to her male counterpart at another hospital within Kaiser’s Sacramento group. At the time of her termination, Kaiser failed to return personal property to her and, despite further requests, continued to keep her personal property. To compound its injuries to Ms. Church, her former supervisor has made false statements which wrongfully prevented Ms. Church from obtaining subsequent employment.

It is plaintiff’s position that, for statutory and regulatory reasons, Kaiser is obligated to follow its policies in terminating individuals who have otherwise made complaints about Kaiser’s misfeasance, malfeasance, and nonfeasance. In Ms. Church’s case, Kaiser failed to properly follow its own policies…miserably. Not only did Kaiser terminate the wrong person involved in the incident described below, but, in terminating Ms. Church, Kaiser failed to:

1) Provide any rule, guideline or policy which would indicate that the act was an offense subject to discipline or termination.

2) Provide any oral warning prior to termination.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace discrimination/personal injury case and its proceedings.)

CACI 2502 – Elements of Disparate Impact Discrimination

There was testimony at trial that the part of the sexual harassment policy that disciplines persons who make false allegations of sexual harassment is not enforced. The large majority of allegations of sexual harassment are made by women against men. This selective enforcement of the policy, therefore, has a disparate impact on men, and CACI 2502 should have been given to address this situation.

Erroneous or Misleading Instructions

An erroneous or misleading jury instruction is an error in law for which a new trial may be granted. (See Bruck v. Adams (1968) 259 Cal. App. 2d 585, 587; Mazzotta v. Los Angeles Ry. Corp. (1944) 25 Cal. 2d 165, 170, 153 P.2d 338.) An erroneous instruction given by the court to the jury is considered excepted to as a matter of law. (See Code Civ. Proc. § 647; Stoneburner v. Richfield Oil Co. (1931) 118 Cal. App. 449, 453.) An order granting a new trial for error in instructions will be affirmed if the challenged instruction was erroneous in any degree or even if it is only fairly debatable that the instruction may have been misleading. (Shaw v. Pacific Greyhound Lines (1958) 50 Cal. 2d 153, 159.)

A new trial may be granted on the ground of error in law occurring at trial when an instruction has been given that includes an incorrect or incomplete statement of law applicable to a material issue and the error was not cured by the charge as a whole or otherwise rendered harmless. (Brignoli v. Seaboard Transportation Co. (1947) 29 Cal. 2d 782, 790.)

In this case the instruction regarding defamation with respect to defendant Byrd was correct, but the special verdict form prepared by defendants was incorrect. The first question in Special Verdict Form VF-1704 Defamation Per Se and in Special Verdict Form VF-1705 Defamation Per Quod with respect to defendant Byrd asked “Did Marcia Byrd maliciously report that she was harassed by Bobby White?” There is no requirement under the law that such a report be malicious, and the forms themselves do not use that language.

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