Reno v. Baird

Decision Date24 September 1997
Docket NumberNo. A075579,A075579
Citation57 Cal.App.4th 1211,67 Cal.Rptr.2d 671
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 57 Cal.App.4th 1211 57 Cal.App.4th 1211, 7 A.D. Cases 1445, 97 Cal. Daily Op. Serv. 7623, 97 Daily Journal D.A.R. 12,237 Kimberly RENO, Plaintiff and Appellant, v. Marijo BAIRD, Defendant and Respondent.

Lawless, Horowitz & Lawless, Barbara A. Lawless, Phil Horowitz, Steven J. Dow, San Francisco, for Plaintiff and Appellant.

Hoyt, Miller & Angstadt, Eric P. Angstadt, Walnut Creek, for Defendant and Respondent.

LAMBDEN, Associate Justice.

Kimberly Reno (Reno) challenges the trial court's dismissal of her claims against Marijo Baird (Baird) for medical discrimination in violation of the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.), discharge in violation of public policy, and intentional interference with business relations. (All further unspecified code sections refer to the Government Code.)

Although the Second District in Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 53 Cal.Rptr.2d 741 (Janken ) holds the FEHA exempts individual supervisors from liability for their discriminatory acts, Reno argues it is "wrongly decided." We agree with Reno. Reno, however, cannot maintain a claim against Baird for intentional interference with business relations, which we discuss in the unpublished portion of this opinion.

BACKGROUND

Reno, a licensed vocational nurse for seven or eight years, became a registered nurse in September 1991. Sometime prior to 1991, Reno had developed mucoepidermoid carcinoma, which is an aggressive malignant tumor at the junction of the hard and soft palate.

In September 1991, while Reno was working for Access Nursing, Redwood Health Care contacted Reno about employment. Redwood Health Care (Redwood Health), a nurse registry providing in-home health care services, was a "doing business as" entity for Baird Health Services, Inc. (Baird Health). (Collectively, Redwood.) Baird, a registered nurse, was the principal owner and shareholder of Redwood. (Baird Health became defunct in October 1993, when Staff Builders, Inc. bought its assets.)

Part of the job application for Redwood involved answering a health questionnaire. Reno completed the questionnaire on October 22, 1991; she checked the box indicating "no," adjacent to the question about ever having cancer or tumors.

Reno began to work for Redwood and, in February 1992, she began providing nursing respite services for Paymon Haraz (Paymon), a severely developmentally disabled infant. North Bay Regional Center (NBRC) contracted with Redwood to provide nursing services for Paymon. This was essentially Reno's sole work until she stopped working for Redwood in August 1992.

In August 1992, Reno had surgery to remove her left submandibular lymph node as a measure to try to prevent the recurrence of cancer. As a result of this surgery, Reno had a noticeable, two-inch bandage on her neck.

On August 20, 1992, Reno was wearing the bandage from her surgery when Josette V. Jacobson (Jacobson) and Jan Miller (Miller), representatives from NBRC, arrived at Paymon's home to observe Reno on duty and to evaluate her job performance. Jacobson asked Reno about the bandage. According to Reno, she said it was nothing, just a little biopsy. During this visit, Reno told Jacobson and Miller she had transported Paymon alone in her vehicle when traveling from his home in Cordelia to his physical therapy appointments in Walnut Creek.

During a supervisory conference in August 1992, Jacobson told NBRC's program manager, Jean Smart (Smart), she believed Reno had something on her neck; she surmised it indicated Reno had a test for cancer. Jacobson also told Maes, Reno's immediate supervisor at Redwood, that Reno had cancer. According to Maes, the following conversation ensued: "[Jacobson] said, 'Did you know that Kimberly Reno had cancer?' I said, 'No.' And she said, 'She told me while I was there visiting that she had cancer.' " Maes, however, could not remember exactly when the conversation occurred.

On August 24, while Reno was providing services for Paymon in his home, Paymon's mother, Ladan Haraz (Ladan), learned about the unexpected death of her brother. Ladan's husband had to leave to bring back the brother's body, and Ladan told Reno she felt unstable and unable to care for her son by herself. According to Reno, she called her immediate supervisor, Maes, and reported the above facts to her. Reno claims Maes responded that she would obtain approval for 24-hour emergency nursing respite care.

While Reno was still assigned to Paymon's case, Sandi L. Lafferty (Lafferty), the director of nurses at Redwood, learned about Reno's biopsy. On August 26, six days after Jacobson and Miller had observed the bandage on Reno's neck, Lafferty wrote a memorandum regarding Reno, stating NBRC requested Reno's removal from Paymon's case. At her deposition, Lafferty testified the memorandum was "to clarify an unemployment The memorandum stated NBRC did not want Reno to provide nursing services for any of its patients, and Redwood had left a message on Reno's answering machine "instructing her not to go to the Haraz's residence." It stated Redwood had removed Reno from Paymon's case for the following reasons: "1. The physician has ordered that the patient is not to transported [sic] anywhere without use of a paramedic and ambulance service. [p] Without informing the physician or Redwood Health Care, Ms[.] Reno contacted North Bay Regional Center and requested 24 hour/day RN coverage for the patient. Up to last Friday, there is nothing in Ms[.] Reno's nursing notes indicating the need for this increased coverage. Had Ms[.] Reno followed standard practice, she should have contacted her Case Manager, presented her rationale, and, if the patient's condition warranted, had the Agency contact North Bay. She did none of this, and Redwood Health was completely unaware that such a request had been made.

                thing, whatever they call 'em, that we had not terminated her, she'd been removed from the case, and why."   When asked if one purpose of the memorandum was in anticipation of a possible unemployment-insurance claim by Reno, she responded "yes."
                

"Two RNs from North Bay made a home visit to assess the patient. At that time, Ms[.] Reno mentioned that she had, on several occasions transported this unstable patient to Kaiser Hospital in Oakland, to [a] relative's home in Pinole and to a friend of the family's [sic ] who lives outside the immediate area. [p] This patient has a history of cardiac arrest--the reason for the physician's instructions concerning the use of paramedic and ambulance. However, by her own admission, Ms[.] Reno put the baby in her private car, made the trips without anyone else in the vehicle and no provision for life support. Her decision to do this clearly placed the client at risk.

"[p] ... [p] On the 24th of August, Ms[.] Reno decided to contract with the mother to provide continuous, uninterrupted 48 hours of care. There was no approval or authorization for this.... [p] It appears that Ms[.] Reno decided to provide this service, not because of any change in the patient's condition, but because the mother was reacting to the death of a brother. Although Ms[.] Reno can decide to provide emotional support to Mrs[.] Haraz as a concerned friend, she should not expect North Bay Regional to support such a relationship by paying $20 an hour under the guise of providing care for the baby...."

According to Reno, her answering machine had a message from Redwood on August 27, 1992, and she recognized Maes's voice. She claims the message stated essentially the following: " 'Kim, this is Redwood Health Care. You are not to return to work. We are under the impression that you have cancer, and we feel that a nurse with cancer is inappropriate for a nurse patient relationship.' " Reno understood the message to signify Redwood had fired her. According to Reno, she never received any further messages from Redwood about having other work for her.

Reno telephoned Baird on August 28, 1992, to discuss the August 27th message on her answering machine. Reno communicated to Baird the content of the message left on her machine; Reno also said she believed Redwood's firing her because of a cancerous condition was illegal. Baird responded she would check into the situation and get back to her. Reno stated Baird never contacted her again.

Reno's mother also testified about receiving telephone calls from Redwood in late August, although she could not remember the dates. The substance of the first telephone conversation was the following: "She asked if Kim was at home, and I said, 'No, she's not at home at this time. May I take a message?' And she said, 'Yes. You can tell Kim that unless she brings her medical records in, she does not need to come in to work.' "

Maes testified that when she could not reach Reno, she obtained the telephone numbers for Reno's mother and sister from Reno's emergency card. She said she talked to Reno's mother, but she was "75 percent" certain she did not say anything about Reno's cancer.

Maes also spoke to Paymon's mother, Ladan. According to Ladan, Maes said: Redwood had removed Reno from the case " 'because she has cancer, and until she brings some medical paper as to the results of the testing and all that, we cannot have her back on this case.' "

Ladan telephoned Jacobson (an NBRC representative). Jacobson testified the following communication occurred: "She [Ladan] was frantic.... [p] And she said something, to the best of my knowledge, to the effect: 'Josette, I just received a message from Redwood. They're pulling Kim Reno off the case because she has cancer.' [p] And I said, 'What?' It was the first I'd heard of it.... [p] ... [p] And she said, 'Jeannie Maes left a message.' "

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