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 proceedings.)

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) … These imperatives, as well as obligations arising from any other applicable constitutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions.

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);

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Foundation argues that Smith 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 Smith’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 court, 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.) 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. at 718.) 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.

In this case, while a jury could draw a reasoned inference that the very close proximity in time between Plaintiff’s complaints and her termination was coincidental, the jury could also draw a reasoned inference that the proximity between the two acts was evidence enough of retaliatory animus. Fisher v. San Pedro (1989) 214 Cal.App. 3d 590, 615 (one may infer retaliation by the proximity in time between protected activity and the allegedly retaliatory employment decision.)

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(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.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

In fact, both the reasons given for Ms. Smith’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. Smith’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 Foundation (first as a consultant, then as an employee).

Foundation managers expressed concerns about Ms. Smith’s communication style when she would communicate that a) there were serious defects in Foundation’s workplace safety program, and b) those managers were partly or fully responsible for those serious defects. Hospital workplace safety is governed by state and federal OSHA regulations, as well as other state and federal health regulations, and retaliation against an employee who voices concerns about violations of those regulations is a tortious violation of public policy as well as a violation of Labor Code Sec. 6310:

(a) No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following:

(1) Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative.

In addition, Ms. Smith’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.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Foundation has a very clear national policy regarding Corrective/Disciplinary Action because it is obligated to have one. Foundation Group (FG) 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 …. FG is required to have well publicized disciplinary guidelines that demonstrate its commitment to compliance and set forth the consequences for violations of compliance mandates. (See, Corrective/Disciplinary Action policy, page 1.)

In other words, state and federal laws and regulations require that Foundation follow its 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 Foundation’s purported reason for terminating Ms. Smith, Ms. Smith was terminated in violation of Foundationr’s legally mandated policy because she was terminated for printing out an improperly viewable document to show to Mr. Browne. (See Part 4 of 8.)

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(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.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Plaintiff’s Mandatory Settlement Conference Statement

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

It is Plaintiff’s position that, for statutory and regulatory reasons, Foundation is obligated to follow its policies in terminating individuals who have otherwise made complaints about Foundation’s misfeasance, malfeasance, and nonfeasance. In Ms. Smith’s case, Foundation failed to properly follow its own policies…miserably. Not only did Foundation terminate the wrong person involved in the incident described below, but, in terminating Ms. Smith, Foundation 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.
3) Provide any written warning prior to termination.
4) Determine the actual severity of the alleged violation, determine any harm to the affected employee, or determine if there was any personal gain sought by Ms. Smith.

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