Wynes v. Kaiser Permanente Hosps.

• Decision Date: 28 March 2013
• Docket Number: No. 2:10–cv–00702–MCE–GGH.,2:10–cv–00702–MCE–GGH.
• Citation: 936 F.Supp.2d 1171
• Parties: Rochelle WYNES, Plaintiff, v. KAISER PERMANENTE HOSPITALS, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

936 F.Supp.2d 1171

Rochelle WYNES, Plaintiff,
v.
KAISER PERMANENTE HOSPITALS, et al., Defendants.

No. 2:10–cv–00702–MCE–GGH.

United States District Court,
E.D. California.

March 28, 2013.

[936 F.Supp.2d 1174]

Ellen C. Dove, Law Offices of Ellen C. Dove, Sacramento, CA, for Plaintiff.

Candice S. Petty, Judith Droz Keyes, Davis Wright Tremaine LLP, San Francisco, CA, Randy Gainer, Davis Wright Tremaine, Seattle, WA, for Defendants.

MEMORANDUM AND ORDER
MORRISON C. ENGLAND, JR., Chief Judge.

This case arises out of the termination of Plaintiff Rochelle Wynes ¹ (“Plaintiff” or “Wynes”) by her former employer, Kaiser Foundation Hospitals ² (“Kaiser”).

The operative Second Amended Complaint (“SAC”) alleges the following causes of action against Kaiser: (1) wrongful termination in violation of the Age Discrimination in Employment Act (“ADEA”); (2) violation of Americans with Disabilities Act (“ADA”); (3) discrimination and retaliation in violation of federal and state law and public policy; (4) wrongful termination in violation of public policy; (6) breach of contract; and (7) violation of ERISA. (ECF No. 48.) The SAC also contains a cause of action for intentional infliction of emotional distress against several Kaiser management employees. ( Id.) On June 19, 2012, Defendants Kaiser, Ruby Gartrell, Luann LaMay and Henry Amos (“Defendants”) filed their Amended Answer and Counterclaim to the SAC. (ECF No. 70.)

[936 F.Supp.2d 1175]

Presently before the Court is Defendants' Motion for Summary Judgment as to each of Plaintiff's causes of action. (ECF Nos. 71, 75.) Defendants' Motion does not address their counterclaim. For the reasons that follow, Defendants' Motion will be granted in part and denied in part.³

BACKGROUND⁴

Plaintiff is an African–American registered nurse who started working at Kaiser Medical Center on Morse Avenue in Sacramento (“Kaiser–Morse”) in 1982. In 1993, Plaintiff transferred into the position of Patient Care Coordinator (“PCC”) in the Continuity of Care Department at Kaiser–Morse. Plaintiff's employment was at-will. Plaintiff worked as a PCC at Kaiser–Morse until her employment was terminated by Kaiser effective on March 18, 2009. Plaintiff was 52 years old at the time of her termination.

Plaintiff suffered a shoulder injury in 1998 and was out of the workplace for a period of time. She had additional surgeries in June of 2003 and then January 2005. After taking a leave of absence, she returned to work with physical restrictions from her physician. According to Plaintiff, her physical disability was exacerbated by hostile work environment she experienced at Kaiser–Morse. Plaintiff has described her physical disability as follows: “I suffer from an impairment that substantially limits me in the following manner: I cannot stand, sit (for long periods), bend, lift or carry heavy objects, raise [m]y right arm, etc.” (Wynes Decl., ECF No. 94 ¶ 51.)

In 2000,⁵ Plaintiff complained to Kaiser management about inadequate patient treatment. According to Plaintiff's declaration, she refused to participate in an unsafe discharge of a patient because the patient was not stable for discharge per the McMillian Robertson guidelines used by Kaiser to determine a patient's readiness for discharge. ( Id. ¶ 4D.) After Plaintiff advised the Skilled Facility Placement Department at Kaiser of the patient's continued elevated blood pressure, an unidentified Kaiser doctor became upset that Plaintiff “conveyed the information and declined to participate in the unsafe discharge.” ( Id.) Plaintiff notified Kaiser Human Recourses of the problem. ( Id.)

In 2007, Plaintiff informed her supervisor Luann LaMay that she would retire on June 30, 2007, in response to which LaMay sent a congratulatory email to Plaintiff. (ECF Nos. 94–3, 94–4.) However, Plaintiff subsequently changed her mind and informed LaMay that she would not retire. (Wynes Decl., ECF No. 94 ¶ 4A.) According to Plaintiff, LaMay physically assaulted Plaintiff trying to force her to retire. ( Id.) More specifically, LaMay “grabbed [Plaintiff's] wrist ... and dragged [her] out of the unit” “like a rag doll.” ( Id.; ECF No. 111 at 1.) Plaintiff reported the incident both to Kaiser management and to the Sacramento Sheriff's Department. (Wynes Decl., ECF No. 94 ¶ 4B.) As a result of that incident and Kaiser's alleged failure to take appropriate measures

[936 F.Supp.2d 1176]

against LaMay, Plaintiff became physically ill.

On July 4, 2007, after refusing to retire, Plaintiff was summarily reassigned to a new work station. She was also given several letters of warning, which Plaintiff claims were undeserved, was denied promotions and provided the least desirable assignments.

From February 15, 2008 until February 2, 2009, Plaintiff was on a medical leave of absence, which was allegedly caused by Kaiser's harassment of Plaintiff. In March 2008, all PCCs at Kaiser–Morse received salary increases except for Plaintiff. After the first six months of Plaintiff's leave, on September 11, 2008, Kaiser disability consultant Jeniece Thomas sent Plaintiff a letter telling her that her entitlement to a leave had expired but that Kaiser had determined it to be reasonable to accommodate her continuing disability by extending her leave through November 1, 2008, the date Plaintiff's doctor anticipated she could return. On October 27, 2008, Plaintiff's physician provided medical certification of Plaintiff's continuing disability for another month. On November 18, 2008, Plaintiff's physician again provided documentation of Plaintiff's continuing disability, with a description of the sort of restrictions he anticipated Plaintiff would require upon her return. On December 15, 2008, Thomas sent a letter to Plaintiff acknowledging receipt of her physician's documentation and extending Plaintiff's leave of absence through January 2, 2009. On December 31, 2008, Kaiser granted Plaintiff a further leave of absence through February 1, 1009.

Plaintiff returned to work as a PCC at Kaiser–Morse on February 2, 2009, with a release from her physician that she required a modified work schedule. On February 2, 2009, Continuity of Care Department Director Luann LaMay, Employee and Labor Relations Consultant Henry Amos, and Disability Consultant Jeniece Thomas met with Plaintiff to discuss the accommodation her doctor had described.

According to Plaintiff, she was not provided the necessary accommodation for her disability when she returned to work on February 2 and 3, 2009. In particular, her work station lacked adequate desk area which required Plaintiff to raise her arm in a matter that was “difficult, painful and nearly impossible.” (Wynes Decl., ECF No. 94 ¶ 44.) Plaintiff further claims that the physical set-up of the workstation, which Plaintiff had to use during her orientation on February 2, 2009, was such that she “had to stand to see the monitor, but then could not sit to be in a position to write down the pertinent information.” ( Id. ¶ 50.) Plaintiff expressed her concerns regarding the inadequate work station set-up to her supervisors. In response to Plaintiff's complaint, Defendant Ruby Gartrell advised Plaintiff to stand to take notes or “just write holding a tablet.” ( Id.; ECF No. 95–4 Ex. J; ECF No. 95–8.) Plaintiff claims that requiring her to stand up while taking notes was “not an option” in light of her disability, and that she “could not handle the pain it caused.” (Wynes Decl., ECF No. 94 ¶ 50; ECF No. 95–4 Ex. J.) According to Plaintiff, the unaccommodating physical set-up caused her back pain which resulted in her inability to return to work on February 4, 2009.

After working on February 2 and 3, 2009, Plaintiff did not report for work on February 4, 2009, and left a telephone message for Ruby Gartrell, stating that her back was “grieving” her and that she was unable to work. (SUF 14.) On February 9, 2009, Thomas sent a letter to Plaintiff stating, inter alia, that Kaiser as “able to accommodate [Plaintiff's] current work restrictions” so Plaintiff should return to work. On February 18, 2009, Plaintiff's physician informed Kaiser that

[936 F.Supp.2d 1177]

Plaintiff was unable to work at Kaiser “in any capacity” and that there was no anticipated date by which she would be able to return to Kaiser–Morse. (ECF No. 111 at 4.) However, the physician's report also stated that Plaintiff “[c]an work as discharge planning nurse for another hospital.” ( Id.)

On March 17, 2009, Thomas sent a letter to Plaintiff informing her of the termination of her employment effective March 18, 2009. Thomas stated that “given that it is not reasonable to accommodate a leave of absence indefinitely, the history of accommodation efforts thus far and due to the operational needs of the department, it is no longer reasonable to accommodate the requested extension of your leave.” (SUF 17.) Kaiser terminated Plaintiff's employment effective March 18, 2009.

From 2004 through 2009, several PCCs over the age of 50 were either terminated or retired from Kaiser–Morse, while no PCC under the age of 40 was terminated. (ECF No. 102 at 3.) According to Plaintiff, she was one of the senior PCCs who were wrongfully terminated at that time because of age, disability, race or some other discriminatory reason.

DEFENDANTS' REQUEST TO STRIKE

On January 30, 2012, the Court issued an Order striking Plaintiff's memorandum of points and authorities filed in support of her opposition to Defendants' motion for summary judgment for failure to comply with the Court's scheduling order. (ECF No. 109.) As explained in the January 30, 2012 Order, Plaintiff previously filed a 39–page memorandum, which was almost double the page limit set by the Court's scheduling order.⁶ ( Id.) The Court specifically instructed Plaintiff to file an amended memorandum not exceeding twenty pages. On February 14, 2013, Plaintiff filed an amended memorandum in opposition to Defendants' summary judgment motion. (ECF No. 110.) Plaintiff's amended 20–page...