Cavanaugh v. Southern California Permanente Med.

• Citation: 583 F.Supp.2d 1109
• Decision Date: 10 September 2008
• Docket Number: No. CV 06-4930-GW (JTLx).,CV 06-4930-GW (JTLx).
• Parties: Eileen CAVANAUGH, Plaintiff, v. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, INC., et al., Defendants.
• Court: U.S. District Court — Central District of California

583 F.Supp.2d 1109

Eileen CAVANAUGH, Plaintiff, v. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, INC., et al., Defendants.

No. CV 06-4930-GW (JTLx).

United States District Court, C.D. California.

September 10, 2008.

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Frank A. Magnanimo, I. Benjamin Blady, Appleton Blady and Magnanimo LLP, Los Angeles, CA, for Plaintiff.

Dean A. Martoccia, Jennifer N. Sloane, Thomas R. Kaufman, Seyfarth Shaw, Los Angeles, CA, for Defendants.

STATEMENT OF REASONS Re RULINGS ON MOTIONS FOR SUMMARY JUDGMENT

GEORGE H. WU, District Judge.

I. INTRODUCTION

Plaintiff Eileen Cavanaugh ("Plaintiff"), a certified registered nurse anesthetist ("CRNA"), employed by defendant Southern California Permanent Medical Group ("SCPMC"), reported to work on June 22, 2005, apparently in an inebriated state. As a result of that incident, Plaintiff and SCPMC entered into a "Last Chance Chemical Dependency Rehabilitation Agreement" which required Plaintiff inter alia to enroll in and complete a "chemical dependency recovery program." Plaintiff purportedly failed to complete such a program and was terminated. During the relevant period, Plaintiff was a member of and represented by a union, i.e., defendant Kaiser Permanente Nurse Anesthetists Association ("KPNAA"). The KPNAA filed a grievance on Plaintiff's behalf but did not seek to arbitrate the matter.

In her First Amended Complaint ("FAC"), Plaintiff alleges causes of action for: 1) violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., 2) breach of employment contract, 3) breach of duty of fair representation against the KPNAA under 29 U.S.C. § 185 et seq.,¹ 4) breach of the implied covenant of good faith and fair dealing, and 5) failure to pay statutorily mandated wages under the Federal Fair Labor Standards Act ("FLSA").

Both sides have moved for summary judgment or in the alternative for partial summary judgment. After considering the moving, opposition, reply and supplemental briefs, the concomitant declarations and exhibits, the materials in the case file, and the oral arguments at the hearing, this Court grants Defendants' motion and denies Plaintiff's motion for the reasons stated herein and at the hearing.

II. FACTUAL BACKGROUND

A. Plaintiff's Employment as a CRNA

Plaintiff began her employment as a CRNA at SCPMC's Kaiser Permanente Hospital on Sunset Boulevard ("Sunset Facility") on or about July 25, 2001.² See FAC at ¶ 7; Fact No. 1 in Plaintiff Eileen Cavanaugh's Separate Statement of Genuine Issues of Material Fact in Opposition to Defendant Southern California Permanente Medical Group and Jeffrey A. Weisz, M.D., et al.'s Motion for Summary Judgment ("PSSGI")³; Volume I of Deposition of Eileen Cavanaugh 129:8-13, attached as Exhibit R at page 303 to Defendants' Appendix of Evidence, Volumes One and Two in Support of the Motion for Summary Judgment filed on July 11, 2007 ("7/11/07 Defendants' Appendix of Evidence"). At all relevant times, Plaintiff was represented by the KPNAA union. PSSGI, Fact No. 3. As a union member, Plaintiff's employment was governed by the "Labor Agreement between Kaiser Permanente Nurse Anesthetist Association of Southern California and Southern California Permanente Medical Group" ("Labor Agreement"). Id. Fact No. 4.

In California, a CRNA is a registered nurse who has received additional training and has been certified to provide anesthesia services. See generally the "Nurse Anesthetists Act", California Business and Professions Code §§ 2825 et seq. As noted in Bhan v. NME Hospitals, Inc., 929 F.2d 1404, 1407 (9th Cir.1991): "CRNAs are licensed to perform many of the same anesthesia services as physician anesthesia providers .... The physician providers have a medical degree and are trained to perform certain complicated procedures that nurse providers cannot perform."⁴

As to her duties and functions as a CRNA at the SCPMC's Sunset Facility, Plaintiff has testified as follows.⁵ CRNAs perform tasks which regular registered nurses are not trained or allowed to do—such as apply anesthesia, intubate a patient, and/or administer a spinal or epidural block. See Volume 2 of March 15, 2007 Deposition of Eileen Cavanaugh ("Vol. 2 Plaintiff's 3/15/07 Depo.") at 278:19-279:12, attached as Exhibit S to 7/11/07 Defendants' Appendix of Evidence at pages 325-26.⁶ Plaintiff's "typical routine . . . on a given workday" (see id. 280:5-6) would begin with an initial set-up of equipment/materials, then going to the patient and interviewing him or her, reviewing the medical chart, learning what drugs the patient has already been given, and determining the nature of the patient's medical situation. Id. at 283:5-13. The patient is then taken to the operating room. The CRNA never begins without the anesthesiologist being present. Id. at 283:15-17. A discussion is held between the anesthesiologist and the CRNA, the length and nature varying with the experience and relationship of the participants.⁷ Id. at 284:2-15. After anesthesia is given and the operation begun, the anesthesiologist (who may have a number of patients to see) may leave the operating room, which means that there can be lengthy stretches of time where there is no anesthesiologist present and only the CRNA remains to monitor and/or administer the anesthesia. Id. at 291:17-292:10. The anesthesiologist may return every two or three hours and remain for a few minutes to check up on the patient and the CRNA. Id. at 291:13-21. If there was a problem while the anesthesiologist is absent from the operating room, the CRNA would "page" the anesthesiologist to return, but the CRNA would have to resolve the immediate situation because the patient could die in the interim. Id. at 293:9-295:12. During the entire surgery, the CRNA has to monitor the patient's condition for problems that could develop regarding oxygen level, fluid level, heart rate, or in response to events occurring during the surgery such as the surgeon hitting a vessel or an equipment system becoming disconnected. Id. at 292:3-293:8. In performing their duties, CRNAs utilize monitoring equipment but also have to employ their training and experience to correctly interpret the data from the machines.⁸ Id. at 298:1-305:17. When the surgery nears completion, the CRNAs must use their judgment and expertise as to when to slow down and/or turn off the anesthesia. Id. at 310:23-311:14.

"Article VIII-Hours of Work" in the Labor Agreement provides in part as follows:

802 The parties recognize the Professional nature of work performed by employees covered by this Agreement. While each full-time employee will be scheduled to work an average of eighty (80) hours biweekly, the actual daily and weekly work schedule may vary due to time requirements or specific assignments and seasonal variations in work load. The Employer agrees to provide full-time employees eighty (80) hours of pay on a biweekly basis. However, if an employee is off work on a non-compensated employee initiated absence, the employee is not guaranteed eighty (80) hours of pay. The scheduling of hours during the week shall be established by the Chief of Service, or designee. The CRNA schedule will be facility specific. * * * *

803 Where conditions require that a CRNA work beyond his or her scheduled hours, the CRNA will perform such required services without additional compensation. Conversely, where the duties of any CRNA are not required, such CRNA will be released from duty. The Employer will make every reasonable effort to provide staffing which is adequate for the expected work load.

804 Should a full-time CRNA accept a work assignment to begin prior to the start of his/her normal shift which results in the CRNA working hours additional to his/her normal scheduled shirt, or should a CRNA accept the assignment of additional hours (following the completion of all work contemplated in the first sentence of Paragraph 803 and/or Paragraph 2010) all such additional hours shall be paid at the CRNAs regular straight time hourly rate.

See page 403 of 7/11/07 Defendants' Appendix of Evidence. Effective October 2, 2004, CRNAs were paid a minimum of $9,244 per month which equals $2,133.23 per week. Id. at page 422.

Under the Labor Agreement, CRNAs can elect to participate in an Alternative Compensation Plan ("ACP") where the CRNA would receive a 20% increase in salary in lieu of certain benefits and premium/differentials such as sick leave pay and paid time off. Id. at page 423; PSSGI Fact No. 22. During the relevant times herein, Plaintiff participated in the ACP. PSSGI Fact No. 23.

B. The June 22, 2005 Incident and Its Aftermath

On June 22, 2005 at about 5:00 p.m. Plaintiff arrived at the anesthesia lounge to relieve co-worker Darrel Nooner. PSSGI Fact No. 25. Plaintiff appeared to Nooner to be slurring her speech, had a "very glazed look about her," and when standing, she was "weaving around." See Statement attached to Declaration of Darrel Nooner, Exhibit A to 7/11/07 Defendants' Appendix of Evidence at page 8. Nooner contacted Dr. Donald Marcus. Id. Dr. Marcus contacted CRNA Janice Groschen (a union steward) and Dr. Roy Bragnza to meet at his office to determine Plaintiff's condition. See Statements attached to Declaration of Dr. Donald Marcus, Exhibits E and F to 7/11/06 Defendant's Appendix of Evidence at pages 21 and 22. When Plaintiff arrived at his office at about 5:20 p.m., Dr. Marcus observed that her speech was incoherent, she knocked over items on his desk when she attempted to sit down, and the odor of alcohol was very strong on her breath. Id. Those manifestations were also observed by Groschen.⁹ See Exhibit C to 7/11/07 Defendants' Appendix of Evidence, and Statement attached to Declaration of Dr. Roy Bragnza, Exhibit B to 7/11/07 Defendants' Appendix of Evidence. Plaintiff's blood was drawn and the blood/alcohol level "came back quite high." See Exhibit F, Id. at page 22.

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