DAMAGES

Had Ms. Church remained at Kaiser she would have received increasing salary (including increased salary from promotions which were denied to her by her second level supervisor, Charles Smith and her quasi-supervisor, David Black, for thirteen (13) years until retirement with an average increase of approx. 3 %, totaling $1,262,776. Had Plaintiff received promotions, the total would be $1,528,201 assuming a salary of $95,000 a year in 2006, $1,608,632 assuming a salary of $100,000 a year in 2006, and $2,010,791 assuming a salary of $125,000 in 2006. While Ms. Church is currently working as a temporary employee for Bayer, through an agency, this is not comparable employment. She is paid $30 an hour with no benefits. Ms. Church's many other attempts at gaining employment have been unsuccessful.

Benefits lost by Ms. Church as a result of the termination are:

1) Medical and dental benefits

2) Flexible employee life ($500,000 death benefit)

3) Accidental Death Benefit

4) Long-term Disability Benefit

5) Three years build up of contribution to sick time and vacation which increases with time served.

6) The contribution to the time served would have resulted in medical benefits for life; fifteen (15) years of service gains towards retiring-employee medical benefits for life.

7) The ability to contribute to a 401K that Kaiser matched .50 on the dollar.

8) Two $1,000 reimbursements for education.

9) Bonuses of 3-5% of an employee's gross salary or $2,355 - $3,925, increasing per year of service.

In addition, Ms. Church has suffered substantial emotional distress.

EQUAL PAY ACT CLAIM

While Ms. Church worked for Kaiser, she suffered wage discrimination as defined by the state and federal Equal Pay Acts. Ms. Church's salary was very low for her position. Many others in her position were managers but she was refused that title. Plaintiff alleges that the male hired in her prior position shortly after she asked to be transferred to Sacramento was paid $6,000 more a year than she was in that same position.

Kaiser argues that the reason for the pay discrepancy was the male employee's greater qualifications but Ms. Church will testify that the qualifications which actually applied to the job in question were equal; it was the pay that was different.

CONVERSION CLAIM

At the time that Ms. Church was terminated, she was not permitted to take numerous binders of material which belonged to her. This property consisted of numerous documents regarding her personal research into compliance issues and represented numerous hours of personal work. Ms. Church later learned that Mr. White callously discarded this personal property belonging to her. In his deposition Mr. White suggested that the material might still exist in his office but Kaiser still has not returned the binders to Ms. Church. The discarding or wrongful retention of Ms. Church's material without permission constitutes conversion:

Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages. Conversion is a strict liability tort.

Further, Defendant's argument that Plaintiff has no legal protection for reporting illegal practices because such reporting was an essential part of her job duties turns logic and law upside down. If Defendant's position were accepted, it would mean that the very employee charged with reporting illegal activity would have no incentive to make a report because the employee would not be protected from retaliation for reporting the illegal conduct.

Fortunately, and not surprisingly, California law does not abandon those employees most in need of legal protection, i.e., those who by virtue of their position must report illegal activity. See e.g. Green v. Ralee Eng. Co. (1998) 19 Cal.4th 66, 79 (public policy termination claim properly stated by quality control inspector who complained about unsafe conditions on airplane despite that the quality control inspector, like Plaintiff here, was simply doing his job); Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 477 (supervisor who objects to and tries to stop sexual harassment of another employee entitled to protection from retaliation despite that supervisor had an obligation to make the report as part of basic supervisorial duties).

DISPARATE TREATMENT CLAIM

Although discovery has not been pursued with regard to this claim, Ms. Church contends that David Black (her quasi-supervisor for a period of time because her direct supervisor rarely came to work) and Mary Smith, her second-level supervisor, treated her differently than males in comparable positions.

Kaiser also contends that because reporting unsafe and unlawful conditions was part of Plaintiff's job, she is precluded from raising a wrongful termination claim or Labor Code section 1102. In its desperation, Kaiser turns to federal cases around the country, including an ill considered opinion from the Eastern District of California, lacking any authority to cite to a single California case supporting the outrageous position that it can fire someone for reporting Kaiser wrongdoing. Kaiser's argument is not only flatly wrong, it is undermined by Garcetti v. Cebellos (2006) 547 U.S. 410, 126 S. Ct.1951, in which the Court held that Labor Code violations remain actionable even to those whose job encompasses the reporting so that employees who seek to expose wrongdoing are still protected.

Exposing governmental inefficiency and misconduct is a matter of considerable significance. As the Court noted in Connick, public employers should, as a matter of good judgment, be receptive to constructive criticism offered by their employees. 461 U.S., at 149, 103 S.Ct. 1684. The dictates of sound judgment are reinforced by the powerful network of legislative enactments-such as whistle-blower protection laws and labor codes-available to those who seek to expose wrongdoing. See, e.g., 5 U.S.C. § 2302(b)(8); Cal. Govt.Code Ann. § 8547.8 (West 2005); Cal. Lab.Code Ann. § 1102.5 (West Supp.2006)

The other temporal nexus which is significant is the one between Ms. Church's termination and her December 5,2006 complaint to Stan Brown, COO of the Kaiser Medical Center, about how her chain of command, including Richard White and Charles Smith, was ineffectual in addressing workplace safety issues. Mr. Oliver responded to Ms. Church's initial request for assistance by requiring her to go through the same chain of command, and copying Charles Smith on the email, thereby alerting Mr. Smith that Ms. Church was complaining about the ineffectiveness of the chain of command.

Mr. Oliver did nothing to investigate or prevent Ms. Church's subsequent termination for wrongful reasons. See Coszalter v. City of Salem (9th Cir.2003) 320 F.3d 968, 977 (employee can show that complaints were a substantial motivating factor in an adverse employment action by introducing evidence regarding the proximity in time between his speech and the allegedly retaliatory action); See also Lujan v. Minagar (2004) 124 Cal.App.4th.1040, 1046 (wrongful termination under Labor Code Sec. 6310 includes preemptive retaliation against employees whom an employer fears will file workplace safety complaints).

Kaiser argues that Church was terminated for legitimate reasons, cannot prove otherwise by showing that the reasons were pretext for retaliatory animus, and therefore it should prevail on summary judgment. As Church's claim is a state law claim for retaliation, the California Court of Appeal decision in Mamou v. Trendwest Resorts Inc. (2008) 165 Cal.App.4th 686 is directly on point. As clarified by the Mamou, "while pretext" is certainly a relevant issue...the central issue...whether the evidence as a whole supports a reasoned inference that the challenged action was the product of retaliatory animus. Id. at 715 (emphasis added by counsel). At the summary judgment stage, the Court's duty is to determine whether the employee's evidence is too weak to sustain a reasoned inference in the employee's favor. Id. (emphasis by court). If reasonable competing inferences may be drawn from the facts, summary judgment should be denied. Adickes v. S.H. Kress & Co., supra, 398 US at 157; Lake Nacimiento Ranch Co. v. San Luis Obispo County (9th Cir. 1987) 841 F2d 872, 875.

While working at Kaiser-Permanente, Ms. Church made frequent complaints to upper management, including officers and managing agents such as Stan Brown, David Black, and Mary Smith, regarding the failure of Kaiser to address serious patient and staff safety issues. None of Ms. Church's complaints received any substantive response, other than her termination. The subjects of these complaints included:

* OSHA violations including concerns about frequent blood splashes and gastric juices deposited on nurses and the failure of Kaiser to install necessary OSHA required eyewash stations.

* The continued use of non-safety needles to avoid accidental punctures of staff.

* Toxicity of a new facility at Sacramento and a manager's withholding of the report of work that was being done to correct that toxicity found in the Forensic Analytical report commissioned by Charles Smith to the employees in the building.

* The loss by Richard White of Personal Air Purification Respirators given to Sacramento to protect staff and patients from airborne pathogens and would not find them.

* The lack of fit testing for N-95 respirators at the Oakland or Sacramento facilities.

Additionally, Ms. Church's termination was in violation of Health and Safety Code Section 1278.5(b)(1): No health facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker of the health facility because that person has done either of the following:

(a) Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity.

(d)(1) There shall be a rebuttable presumption that discriminatory action was taken by the health facility, or by the entity that owns or operates that health facility, or that owns or operates any other health facility, in retaliation against an employee, member of the medical staff, or any other health care worker of the facility, if responsible staff at the facility or the entity that owns or operates the facility had knowledge of the actions, participation, or cooperation of the person responsible for any acts described in paragraph (1) of subdivision (b), and the discriminatory action occurs within 120 days of the filing of the grievance or complaint by the employee, member of the medical staff or any other health care worker of the facility.

Kaiser has a very clear national policy regarding Corrective/Disciplinary Action because it is obligated to have one.

Kaiser Permanente (KP) must comply with specific legal/regulatory standards that include, but are not limited to, those indicated by Medicare and other government program billing requirements, Guidance issued by the Centers for Medicare and Medicaid Services, the Department of Health and Human Services, the Compliance Program Guidance issued by the Office of the Inspector General, and HIPAA/Privacy and Security regulations .... KP is required to have well publicized disciplinary guidelines that demonstrate its commitment to compliance and set forth the consequences for violations of compliance mandates.

In other words, state and federal laws and regulations require that Kaiser follow its own Corrective/Disciplinary Action policy. The last paragraph of that policy states: Employees who report compliance and/or ethics concerns in good faith will not be subject to corrective/disciplinary action for doing so... Nevertheless, even assuming the truth of Kaiser's purported reason for terminating Ms. Church, Ms. Church was terminated in violation of Kaiser's legally mandated policy because she was terminated for printing out an improperly viewable document to show to Mr. Oliver.

In fact, both the reasons given for Ms. Church's ultimate termination and the underlying reasons for the draft disciplinary letter which she printed from Mr. White's screen were pretext for retaliatory action and restraint of Ms. Church's efforts to hold the managers in charge of Environmental, Health and Safety accountable for the numerous lapses in employee and patient safety which they have countenanced while she has worked for Kaiser (first as a consultant, then as an employee). Kaiser managers expressed concerns about Ms. Church's communication style when she would communicate that a) there were serious defects in Kaiser's workplace safety program and b) those managers were partly or fully responsible for those serious defects.

A House Democrat expressed concern Wednesday about a massive Toyota recall that has led the automaker to stop manufacturing and selling vehicles linked to problems with gas pedals, signaling that Congress could soon review the massive recall.

Michigan Rep. Bart Stupak, who leads an investigative subcommittee, said his staff would meet with Toyota officials on Wednesday following the automaker's decision to suspend U.S. sales of eight of its vehicle models, including the Camry, the best-selling car in the United States. The company is also halting production at assembly lines at six North American car plants, beginning the week of Feb. 1.

"We want to find out what Toyota knows about the sudden acceleration problem with several of their vehicles and we want to know what will be done to protect consumers who are currently driving those vehicles," Stupak said in a statement.

Stupak is a senior member on the House Energy and Commerce Committee, which held high-profile hearings and pushed for new auto safety requirements following the massive recall of Firestone tires in 2000. Congress approved legislation requiring automakers and other manufacturers to provide data on deaths, injuries, consumer complaints, property damage and warranty claims.

Toyota issued a recall last week for the same eight models involving 2.3 million vehicles. It followed a separate recall of 4.2 million vehicles last year because of problems with gas pedals becoming trapped under floor mats, causing sudden acceleration. That problem was the cause of several crashes, including some fatalities. About 1.7 million vehicles fall under both recalls.

Unfortunately for Kaiser's defense, there is no policy against, or harm caused by, printing a draft work-related memorandum from her supervisor's screen:

1) Kaiser's Principles of Responsibility contain no language that would preclude Ms. Church from printing a letter about her that was publicly visible in an open cubicle and bringing that letter to Kaiser's Chief Operating Officer.

2) Ms. Church's act of printing the letter about her could not, in any way, violate Richard White's right to privacy. Mr. White has no cognizable right to privacy with regard to a work related correspondence about someone else. In fact, Kaiser's own Principles of Responsibility and Electronic Assets Usage policy make it clear that employee privacy does not extend to conduct in the work place or to the use of Kaiser Permanente's assets.

3) There is nothing in Kaiser's Electronic Usage Policy that precluded Ms. Church from printing a visible document about her and taking it to the Chief Operating Officer of the hospital.

The violations of Kaiser's Electronic Usage Policy were by Richard White:
a. He failed to prevent access to his computer.

b. He failed to "avoid leaving...business information open/accessible by employing password-activated screen savers."

And, yet, Mr. White received no discipline whatsoever. Interestingly, Kaiser's Electronic Assets Usage policy also states Users who identify security issues should report them immediately. In Ms. Church's case, that line should be followed by: "...and subsequently be terminated." (See Part 4 of 11.)

WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY AND VIOLATION OF LABOR CODE SECTION 6310 (AND HEALTH AND SAFETY CODE SECTION 1278.5)

Kaiser has filed a Motion for Summary Judgment on all claims, including the major claim for Wrongful Termination in Violation of Public Policy. For settlement purposes, it is important to recognize that Kaiser cannot win summary judgment or summary adjudication on this claim because of the existence of disputed issues of material fact, as well as Kaiser's incorrect interpretation of the law.

The pretextual reason given for Ms. Church's termination was her printing of a memorandum, addressed to her and publicly viewable on her supervisor's computer screen, regarding discipline which her supervisor, Richard White, apparently intended to impose in retaliation for her frequent complaints about the incompetence of Kaiser management and Kaiser's many continuing safety and OSHA violations. At Ms. Church's termination "hearing," Mr. White also falsely claimed that Ms. Church had accessed his Lotus Notes account and printed other documents from his work computer.

Ms. Church's termination letter referred to the following reasons for her termination: Violation of the Principle of Responsibilities, breach of confidentiality, invasion of privacy and violation of KP computer assets. These should have been the reasons for Mr. White's termination. Ms. Church printed the draft disciplinary memorandum and brought it to COO Stan Brown because of her concern that Richard White had left it visible on his screen in an open cubicle for everyone to see, thereby violating her privacy rights as an employee.

Plaintiff's Mandatory Settlement Conference Statement

Plaintiff Miranda Church, a Workplace Safety Specialist employed at Kaiser Foundation Hospital, was wrongfully terminated on January 10, 2006, in violation of public policy and Kaiser's own employment policies. Prior to her termination, Ms. Church was treated in an abusive and discriminatory manner by her quasi-manager, David Black, and was underpaid compared to her male counterpart at another hospital within Kaiser's Sacramento group. At the time of her termination, Kaiser failed to return personal property to her and, despite further requests, continued to keep her personal property. To compound its injuries to Ms. Church, her former supervisor has made false statements which wrongfully prevented Ms. Church from obtaining subsequent employment.

It is plaintiff's position that, for statutory and regulatory reasons, Kaiser is obligated to follow its policies in terminating individuals who have otherwise made complaints about Kaiser's misfeasance, malfeasance, and nonfeasance. In Ms. Church's case, Kaiser failed to properly follow its own policies...miserably. Not only did Kaiser terminate the wrong person involved in the incident described below, but, in terminating Ms. Church, Kaiser failed to:

1) Provide any rule, guideline or policy which would indicate that the act was an offense subject to discipline or termination.

2) Provide any oral warning prior to termination.

DEFENDANTS ARE NOT PREJUDICED IF THE TRIAL COURT GRANTS PLAINTIFF'S MOTION TO AMEND ACCORDING TO PROOF AT TRIAL.

In exercising its broad discretion, the court is guided by whether the opposing party will be prejudiced by the amendment. City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563.

The Defendants will not be prejudiced if the trial court were to grant Plaintiff's Motion to Amend According to Proof at Trial, as the Defendants have been placed on notice of Plaintiff's elder abuse contentions as to both Dr. Green and Dr. Black as set forth in Plaintiff's Complaint, First Amended Complaint, and Second Amended Complaint.

This case was filed on September 22, 2006, wherein the Plaintiff had asserted a cause of action against Dr. Green and Dr. Black for Elder Abuse and Willful Misconduct. Defendants' Demurrer and Motion to Strike Plaintiff's Second Amended Complaint was not heard and ruled upon until September 4, 2007. Therefore, the Defendants had one year to conduct discovery on Plaintiff's contentions for Elder Abuse and Willful Misconduct.

Further, the Defendants have been provided all of Dr. Brown's opinions regarding Dr. Green and Dr. Black, including his opinions on elder abuse relating to the two defendants.

The Plaintiffs have made their intentions clear to the Defendants immediately after the deposition of Dr. Brown that based on Dr. Brown's deposition testimony, the Plaintiffs intended to request the Trial Court to amend Plaintiff's operative complaint to include a cause of action for Elder Abuse and Willful Misconduct against Defendants Dr. Green and Dr. Black and to include a prayer for punitive damages according to proof.

Based on the above conduct, in Dr. Brown's opinion, Dr. Black committed elder abuse, and testifies as follows:

Q: Okay. Other than the failure to adequatley monitor, as you've characterized it, the scrotal condition, are you critical of Dr. Black for any other aspect of his care of this patient that you believe fell below the standard of care?

A: Well, in Dr. Black's case, to be honest with you, I don't feel that he just fell below the standard of care. I know there are legal terms for elder abuse. I'm aware of what those terms are, in terms of a conscious, you know, disregard for the patient, his care and safety. And, honestly, I really think that this does fall under that category.

And I don't say that lightly; I'm a doctor myself. But the thing that troubles me is that Dr. Black, unlike Dr. Green - Dr. Black actually did look at the man's scrotum and was aware that there was a problem there, and yet he sat on that problem for several days, and then sat on it for an additional five days, even after requesting urology consultation.
So, to me, it showed a - just an extreme deviation from the standard of care that would fall into the elder abuse category, if you're going to use a legal term for it.

That's my - - what claims are being made and not made, I'll leave that to you folks. But I know there are issues of elder abuse here, and what I had told Mr. Moran was that if there was a case where elder abuse would be applicable, it would certainly be with Dr. Black's care in this case.

MOTION FOR LEAVE TO AMEND TO CONFORM TO PROOF MAY BE MADE AT ANY TIME DURING TRIAL.

A motion for leave to amend to conform to proof may be made at any time during trial, so long as a judgment has not yet been entered. Union Bank v. Wendland (1976) 54 Cal.App.3d 393, 400-401.

The statutes authorizing amendment of pleadings are construed liberally so that cases might be tried upon their merits in one trial where no prejudice to the opposing party or parties is demonstrated. Rainer v. Community Mem. Hosp. (1971) 18 Cal.App.3d 240, 254. There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding. Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945. This liberal policy applies even to amendments requested during trial. However, the matter rests in the trial court's sound discretion and is subject to appellate review only for abuse of discretion. Consilidated World Investments, Inc. v. Lido Preferred, Ltd. (1992) 9 Cal.App.4th 373, 383.

Dr. Brown testified in his deposition that Dr. Black failed to adequately monitor Mr. Hernandez during his admission at East Los Angeles Doctor's Hospital, which led to delayed definitive treatment of Mr. Hernandez's scrotal cellulitis, which ultimately became an abscess. He further testifies that Dr. Black was aware of Mr. Hernandez's scrotum, but didn't monitor it properly and waited for a very long period of time before requesting a urology consultation. Mr. Hernandez was admitted into East Los Angeles Doctor's Hospital on January 3, 2006, but Dr. Black did not request a urology consultation until January 13, 2006.