White Powder

Posted on November 18, 2012 by admin

by Matt Reynolds

Former employee Kristinna Grotz can advance claims that Kaiser Hospital fired her after she complained about an alleged drug-using boss, a federal judge ruled.

As reported by Courthouse News, Grotz had nearly 10 years on the job with Kaiser Foundation Hospitals and the Permanente Group when she allegedly saw a manager using what appeared to be methamphetamine. Grotz says she saw admitting department manager Debbie Taylor with a rolled-up bill in her nose, “snorting a white powdery substance,” on the job.

Kaiser launched what Grotz claimed was a bogus investigation against Taylor, and in late 2010, Taylor allegedly retaliated against Grotz by falsely accusing her of time card fraud. Representatives with Grotz’s union, SEIU-United Healthcare Workers West, then told Grotz to sign a “last chance” agreement with false information about the time card allegations, according to the complaint. Grotz says she was fired on July 7, 2011, after she refused.

She sued Kaiser Foundation Hospitals, the Permanente Medical Group and SEIU-United Healthcare Workers West almost exactly one year later under the Labor Management Relations Act.

Kaiser and the union had tried to argue that the claims for wrongful termination and breach of duty of fair representation were time-barred, or that Grotz had failed to state a claim.
U.S. District Judge Edward Chen in San Francisco disagreed, finding that Grotz had filed her claim within the statute of limitations. ”As Ms. Grotz, the plaintiff in the case at bar, filed her suit within six months of the date she was notified that the union was abandoning her grievance, her claim was timely as to all alleged breaches that relate to her grievance,” the 17-page order states. “The grievance appealed her termination, which she alleges was retaliatory and based on false accusations of timecard fraud. … Accordingly, any alleged breach related to the UHW’s [United Healthcare Workers] representation of plaintiff with regards to the allegations of timecard fraud is related to her grievance and thus timely.”

Grotz’s fair representation claim alleges that the union failed to examine the time card records for tampering, never raised the possibility that retaliation could be in play, and pushed the inaccurate “last chance” agreement. ”Plaintiff has alleged for purposes of this motion to dismiss sufficient facts to make a claim that the UHW’s investigation of her grievance was merely perfunctory, indeed virtually nonexistent, and that its action evinced a ‘reckless disregard’ of plaintiff’s rights,” Chen wrote.

Kaiser faired better in its challenge to Grotz’s emotional distress claims. In addition to dismissing Grotz’s negligent infliction of emotional distress claim, the judge also struck parts of the claim for intentional infliction of emotional distress.

Fired for Taking Family Medical Leave

Posted on November 17, 2012 by admin

In 2010, Kathryn Sheppard filed a “wrongful discharge” complaint (under Oregon law) in federal district court against her former employer, David Evans and Associates, an architecture and engineering firm with offices across the US. Prior to her termination, Sheppard requested Family Medical Leave for a serious illness. She qualified for both Oregon Family Medical Leave and federal Family Medical Leave. Sheppard was terminated immediately after she scheduled the surgery for which she requested Family Medical Leave. Sheppard claims that her attempt to use Family Medical Leave was a substantial motivating factor for her termination, and was therefore a wrongful act in violation of public policy under Oregon law. Sheppard also claims that as a result of her termination, she lost and continues to lose wages and benefits, and suffered and continues to suffer emotional pain and a sense of degradation.

The district court dismissed Sheppard’s complaint for failure to state a claim. Sheppard then filed an amended complaint alleging the same causes of action and adding some factual details. The district court again dismissed Sheppard’s amended complaint, concluding she had “failed to plead any cause of action with sufficient factual detail to state a claim.”

Under Oregon law, an employee may bring a claim for wrongful discharge “when the discharge is for exercising a job-related right that reflects an important public policy.” Examples of “exercising a job-related right that reflects an important public policy,” include an employee filing for workers compensation, or an employee taking leave under the Oregon Family Leave Act. On September 12, 2012, the Ninth Circuit reversed the district court’s dismissal of Sheppard’s amended complaint, holding that her “allegations are sufficient to state a claim for wrongful discharge.”

Thank You, Jimmie!

Posted on November 14, 2012 by admin

Jimmie Allison was a civilian employee of Boeing Laser Technical Services, a federal contractor located on Kirtland Air Force Base. Kirtland Air Force Base is a “federal enclave”: it is located on land that New Mexico ceded to the federal government in 1952 and 1954. Since that time the federal government has exercised exclusive jurisdiction within the boundaries of the Base.

Allison was terminated by Boeing on December 31, 2007. He filed suit in state court, alleging that Boeing discharged him in retaliation for reporting corporate fraud to the Air Force. His claims were all based on state law theories—wrongful discharge, breach of implied contract, breach of covenant of good faith and fair dealing, retaliatory discharge, tort, and defamation.

Boeing removed the case to federal court and moved for summary judgment, asserting that these causes of action (except for defamation) are not available for conduct occurring on Kirtland Air Force Base under the “federal enclave” doctrine. The district court granted partial summary judgment in favor of Boeing on all of Allison’s employment claims on the ground that those causes of action were not recognized by New Mexico courts prior to 1954. The defamation claim was dismissed, the district court entered final judgment in favor of Boeing, and the Tenth Circuit later affirmed.

The Trials of Dr. Grubb

Posted on November 12, 2012 by admin

On November 1, 2012, the Viriginia Supreme Court ruled that an employee may sue her manager or supervisor — in addition to her employer — on a state law claim of wrongful discharge in violation of public policy.

Angela VanBuren was employed as a nurse by Virginia Highlands Orthopedic Spine Center from December 2003 to March 2008. Soon after she joined Virginia Highlands, VanBuren was subjected to sexual harassment by her supervisor, Virginia Highlands’ owner Dr. Stephen Grubb. He would “hug her, rub her back, waist, breast and other inappropriate areas, and attempt to kiss her.” Although VanBuren told Dr. Grubb that his sexual advances were “offensive” and “unwelcome,” he continued to pursue her. In May 2006, while the two were travelling for business, Dr. Grubb went to VanBuren’s hotel room and “began rubbing her back, waist, breast and hair while stating that he loved her.” VanBuren broke free of his embrace and told him that “she was not going to have sex with him,” that “he was a married man,” and that “he needed to leave.”

Dr. Grubb’s sexual harassment continued after VanBuren’s marriage in 2007. Dr. Grubb tried to “console” VanBuren regarding her subsequent marital problems. His “consoling” entailed “encouraging [her] to leave her husband and then proceeding to hug, kiss, and grope her.” VanBuren “continued to insist that [Dr. Grubb's] advice and sexual advances were unwelcomed and offensive.”In March 2008, Dr. Grubb again suggested during a closed-door meeting that VanBuren leave her husband so that she “could accept his love for what it was and what it could be.” A few days later, Dr. Grubb called VanBuren into his office and asked whether she planned to stay with her husband. When she responded in the affirmative, he fired her. He then offered her roughly a month’s severance pay to remain silent about the sexual harassment. Dr. Grubb gave no other explanation for terminating VanBuren’s employment with Virginia Highlands.

In March 2010, VanBuren filed 1) a gender discrimination claim against Virginia Highlands under Title VII of the Civil Rights Act of 1964 and 2) a wrongful discharge claim against Virginia Highlands and Dr. Grubb. As to the wrongful discharge claim, she alleged that she had been discharged from Virginia Highlands because she had refused to engage in criminal conduct — specifically, a) adultery and b) open and gross lewdness and lasciviousness. Accordingly, she contended that her discharge violated public policy.

The Virginia Supreme Court had never squarely addressed whether a wrongful discharge claim can be brought against an individual employee — as opposed to an employer — but the issue was certified to the Court by the United States Court of Appeals for the Fourth Circuit (VanBuren had initially filed suit in federal court). Here, VanBuren was fired because she would not give in to Grubb’s unlawful demands. As Grubb was her supervisor and owner of the company, the Court concluded that, if her allegations are proven, he too should be subject to liability, just as he would be had he engaged in any other tortious conduct.

In an opinion by Justice Leroy F. Millette, Jr., the Virginia Supreme Court stated that “the purpose of the wrongful discharge tort — namely, the deterrence of discharge in violation of public policy — is best served if individual employees in a position of power are held personally liable for their tortious conduct. Employer-only liability would be insufficient to deter wrongful discharges, as this case clearly demonstrates.” Further, the Court concluded that “Virginia recognizes a common law tort claim of wrongful discharge in violation of established public policy against an individual who was not the plaintiff’s actual employer but who was the actor in violation of public policy and who participated in the wrongful firing of the plaintiff, such as a supervisor or manager.”

In response to the suit, Grubb left Virginia Highlands, the medical practice he himself started, and joined another healthcare provider. “If the Court does not recognize individual liability in such cases, there may be nothing to prevent other business owners from following this model in an attempt to avoid liability.”

Nevertheless, the Court “recognize[d] the concern that supervisors will be hesitant to rightfully discharge at-will employees for fear of suit. We believe, however, that the extremely narrow nature of wrongful discharge actions, and the requirement that the defendant employees’ personal actions be shown to have violated the relevant public policy, provides sufficient protection from the overuse of wrongful discharge claims.”