Pardi v. Kaiser Foundation Hospitals
| Decision Date | 15 November 2004 |
| Docket Number | No. 02-16447.,02-16447. |
| Parties | Stephan PARDI, Plaintiff-Appellant, v. KAISER FOUNDATION HOSPITALS, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ellen C. Dove, Sacramento, CA, for the plaintiff-appellant.
Thomas G. Martinchek, Seyfarth Shaw, San Francisco, CA, for the defendant-appellee.
Appeal from the United States District Court for the Northern District of California; Martin J. Jenkins, District Judge, Presiding. D.C. No. CV-01-01190-MJJ.
Before: WALLACE and McKEOWN, Circuit Judges, and MOSKOWITZ, District Judge.*
Stephan Pardi appeals the district court's grant of summary judgment in favor of his former employer, Kaiser Foundation Hospitals ("Kaiser"), on four claims: (1) violation of the Americans with Disabilities Act ("ADA"); (2) intentional infliction of emotional distress; (3) interference with prospective economic advantage; and (4) breach of contract. The district court granted summary judgment for Kaiser on all claims based on a settlement agreement and release (the "Settlement Agreement"), the California litigation privilege, and failure of proof of the state claims. We affirm the judgment on the claims of intentional infliction of emotional distress, interference with prospective economic advantage, and violation of the ADA with regard to pre-Settlement Agreement acts. However, we vacate the judgment as to the claims of breach of contract and violation of the ADA and remand these claims for trial.
Stephan Pardi, a licensed respiratory care practitioner, began working at Kaiser Medical Center in Oakland, California, on April 27, 1997. Pardi informed his employer that he suffers from depression, a disability under the ADA.
Between 1997 and 1999, Pardi initiated a number of grievances through his union, Service Employees International Union Local 250 ("the union"), and filed charges with the Equal Employment Opportunity Commission ("EEOC"), alleging, among other things, that the head of the respiratory care department at Kaiser refused to comply with the agreed upon accommodations for his disability. In August 1998, Pardi requested a transfer to another facility as an accommodation for his disability under the ADA. In response, Kaiser demanded that Pardi undergo a full psychiatric evaluation, a condition that Kaiser had never imposed on any other respiratory care practitioner requesting a routine transfer. Pardi was never transferred.
During the same 1997 to 1999 time period, physicians and patients made various complaints against Pardi alleging unprofessional conduct and inappropriate comments.
Pardi was placed on paid administrative leave of absence on April 12, 1999, and on unpaid investigatory suspension on June 17, 1999, while Kaiser conducted an internal investigation into allegations of improper patient care by Pardi.
On July 12, 1999, Kaiser terminated Pardi's employment. Janet Schade, Kaiser's Director of Nursing Operations, made the decision to terminate Pardi. She notified him by letter, setting forth six charges of misconduct as grounds for his termination. Two of the charges involved time discrepancies entered on patients' charts. The other four described complaints from physicians and patients.1
Also in July 1999, a union arbitration panel heard multiple grievances brought by Pardi relating to discrimination and harassment. The arbitration concluded in Pardi's favor, resulting in a five-figure settlement from Kaiser. The record does not indicate exactly when in July the arbitration occurred or the panel rendered its decision.
After his termination, Pardi initiated an additional grievance proceeding against Kaiser through his union challenging his termination.
On July 23, 1999, Schade reported Pardi's termination to the Respiratory Care Board ("RCB"), the regulatory body that oversees the practice of respiratory care in California. Schade stated that she believed that the report was mandated by California Business and Professions Code § 3758, which requires employers to report to the RCB any suspensions and terminations for cause of respiratory care practitioners, and punishes noncompliance with a fine of up to $10,000.2 Schade claims she believed that the two charges of entering false times on patients' charts fell within the provision for "falsification of medical records." This was the only basis for her report to the RCB.
Kaiser admits that it did not have a policy of reporting all terminations of respiratory care practitioners to the RCB. As of January 21, 2002, Pardi's termination was the only one that it had reported to the RCB since January 1, 1996.
On or about January 13, 2000, Kaiser, Pardi, and the union entered into a Settlement Agreement and General Release ("Settlement Agreement"). Under the terms of the Settlement Agreement, Kaiser agreed to accept Pardi's resignation and pay Pardi $130,000. In exchange, Pardi agreed to withdraw pending complaints against Kaiser with the EEOC, and to release Kaiser from all claims for conduct up to the date of the agreement and any future claims arising from any event occurring on or before the date of the Settlement Agreement.3 Pardi signed the Settlement Agreement on January 13, 2000. Kaiser's representatives signed on January 17, 2000.
On January 25, 2000, approximately six months after Kaiser had reported Pardi's termination to the RCB and less than two weeks after Kaiser had settled with Pardi, Mark Bleeker, a Senior Investigator with the Department of Consumer Affairs ("DCA"), contacted Christopher Joyce of Kaiser's Human Resources Department. Bleeker advised Joyce that he was initiating an investigation on behalf of the RCB regarding allegations that Pardi had falsified medical records and acted unprofessionally. Bleeker requested access to employment files and patient records and sent investigative subpoenas to Joyce and Deborah Booker (now Deborah Shibley), an inhouse attorney for Kaiser, in an effort to obtain information about complaints against Pardi.
On February 1, 2000, Bleeker met with Joyce at Kaiser's Oakland Medical Center. Bleeker reviewed Pardi's employment file and requested copies of certain documents. As of February 1, 2000, Pardi's employment file had not been updated to reflect his resignation rather than his termination for cause. It was not until February 9 and 11, 2000, that Joyce directed Kaiser's document management center to remove termination paperwork from Pardi's personnel file and replace it with documents indicating that Pardi's employment with Kaiser had ended through voluntary resignation.
On April 5, 2000, Shibley sent a letter to Bleeker enclosing documents she stated were responsive to the subpoena, including complaints which were not part of the investigation leading to the decision to report Pardi's termination. There is evidence that Shibley did not turn over to Bleeker medical records that could have supported Pardi's explanation of the charges that allegedly formed the basis of his termination, or the name of at least one witness favorable to Pardi whom Pardi had identified in a June 21, 1999 letter he had written to Joyce. Kaiser also did not turn over to Bleeker letters Pardi had written to his supervisors at Kaiser regarding Kaiser's harassment and failure to accommodate his disability. One such letter was dated December 29, 1997, and was sent to Schade.
Shibley never informed Bleeker that Kaiser and Pardi had reached a settlement. It is unclear when Shibley informed Bleeker that Pardi's termination had been revised to reflect voluntary resignation.
As a result of the pending investigation, the RCB temporarily suspended Pardi's certification to practice. Eventually, after requiring Pardi to undergo a psychiatric evaluation, the RCB renewed Pardi's certificate.
Beginning in early 2000, Ellen Dove, Pardi's attorney, made numerous unsuccessful attempts to obtain a letter from Shibley verifying that Pardi had been employed at Kaiser. Shibley told Dove not to contact any Kaiser employees seeking such information about Pardi.
Kaiser was similarly unresponsive to other inquiries about Pardi's employment. A prospective employer of Pardi, Dr. Calvin O'Kane, program director of the Multiple Sclerosis Society near Sacramento, California, called the new head of Kaiser's Oakland Respiratory Care Department on August 7, 2001, and the Human Resources Department on August 13, 2001, seeking information about Pardi. O'Kane never received return calls for the messages he left on both occasions. He wrote a letter addressed to Kaiser's Human Resources Department in October 2001 requesting information about Pardi. As of May 2002, he had received no reply. Without verification of Pardi's former employment, O'Kane was unwilling to offer him a position.
Kaiser contends that its personnel department had not received any inquiries, either by telephone or through correspondence, seeking employment verification about Pardi as of April 16, 2002.
The district court granted summary judgment to Kaiser on the ground that the Settlement Agreement bars Pardi's claims. The district court found that Kaiser's report to the RCB arose out of Pardi's employment with Kaiser and was therefore covered by the language of the Settlement Agreement. The district court rejected Pardi's argument that Kaiser's failure to inform him about the report to the RCB amounted to fraudulent misrepresentation, reasoning that: (1) Kaiser was obligated to make the report under California Business and Professions Code § 3758(b)(4); (2) Kaiser was not under any duty imposed by law or by the terms of the Settlement Agreement to have informed Pardi of the report; (3) Pardi was...
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