Kaiser Whistleblower Case Steams Forward
By WILLIAM DOTINGA
Courthouse News Service
May 09, 2013
SAN FRANCISCO (CN) - The Permanente Medical Group must face a former employee's claim that she was fired after complaining about sub-standard care, a federal judge ruled.
Mirabel Ortiz claims that The Permanente Medical Group-a division of Kaiser Permanente-fired her after she raised concerns that the way managers handled the orthopedics department harmed patients. Kaiser claimed it terminated Ortiz for committing "personal improprieties," according to Ortiz's first amended complaint.
As a member of SIEU-UHW, Ortiz says collective bargaining agreements between Kaiser and the union mandate a progressive discipline process, which hospital officials failed to follow. She filed suit in San Mateo County court against TPMG and her manager, Cindy Lambdin, claiming wrongful termination, retaliation for whistleblowing and breach of employment contract as well as infliction of emotional distress.
Earlier this year, Kaiser successfully moved the action to federal court since many of Ortiz's claims involve breaches of a collective bargaining agreement. The healthcare giant then sought to dismiss the action for non-suit.
And while U.S. District Judge Susan Illston found that Ortiz failed to follow procedural grievance requirements under the collective bargaining agreement-by Ortiz's own admission-enough questions exist as to whether Kaiser retaliated for protesting unsafe conditions for the action to move forward.
"The first amended complaint alleges that plaintiff 'protested about the unsafe and unhealthy working conditions at her place of employment, including complaints that defendant Lambdin was running the orthopedics department in such a way as to be harmful to patients, among other things.'" Illston wrote. "The court concludes that plaintiff has alleged facts that add up to more than a sheer possibility that defendants discharged plaintiff in retaliation for making complaints."
Illston rejected Kaiser's claim that Ortiz failed to follow administrative procedure in pursuing her whistleblower action, namely by failing to file a grievance with the labor commissioner. She noted that the permissive legislative language of the statute and four examples in case law do not impose such restrictions on allegations of labor code violations.
Though Illston found Ortiz's claims of infliction of distress are tied to her failed contract claim, the wrongful discharge claim connects Kaiser's alleged whistleblower retaliation and should be tried.
Ortiz can amend her complaint to cure deficiencies in the contract action, Illston concluded.