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1 Warren Paul Beck, State Bar #98908 Attorney at Law 1010 Second Avenue, Suite 1007 San Diego, CA (619) Fax (619) Attorney for Plaintiff KATHLEEN RENEE HOBBY 21112EEB IS Or"f ICE UIVJSMN AII: 12 Lt, t _S'UPERIOR COUI it Ali +CIEGO COUNTY. C F I - t E ew011hec1im pr FEB h BR Dep* SUPERIOR COURT FOR THE-STATE-OF CALIFORNIA COUNTY OF SAN DIEGO-CENTRAL DIVISION KATHLEEN RENEE HOBBY, vs. Plaintiff, KAISER PERMANENTE INSURANCE COMPANY, a California corporation; KAISER FOUNDATION HOSPITALS, a California corporation d.b.a. KAISER PERMANENTE SAN DIEGO MEDICAL CENTER; and DOES 1-100, inclusive, Defendants. Case No CU-W T-CTL GENERAL-JURISDICTION-- COMPLAINT FOR DAMAGES FOR WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY; VIOLATION OF CALIFORNIA HEALTH AND SAFETY CODE 18.5; AGE DISCRIMINATION IN VIOLATION OF CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT; VIOLATION OF CALIFORNIA LABOR CODE (b) Plaintiff, KATHLEEN RENEE HOBBY, alleges as follows: 1. Plaintiff, KATHLEEN RENEE HOBBY, (hereafter "HOBBY") was at all times mentioned herein, a resident of San Diego County, State of California and whose damages were incurred in San Diego County, State of California. 2. Defendant KAISER PERMANENTS INSURANCE COMPANY, (hereafter "INSURANCE") is a corporation incorporated in the State of California and at all times mentioned herein owned and continues to own defendant KAISER FOUNDATION HOSPITALS. 3. Defendant KAISER FOUNDATION HOSPITALS, (hereafter "KAISER") is a corporation incorporated in the State of California and owns several hospitals in California, one of which is doing business as KAISER PERMANENTE SAN DIEGO MEDICAL

2 CENTER which is licensed to do business as a hospital located at 4647 Zion Avenue, San Diego, California, and has employed Plaintiff HOBBY. 4. Plaintiff is informed, believes and thereon alleges that Defendants DOES through 100 were in some manner responsible for the act and injuries complained of herein and were at all relevant times representatives, employees, agents, and/or directors of Defendants and/or in some type of business relationship with Defendants. Plaintiff is ignorant of the true names and capacities of Defendants sued herein as DOES 1 through 100, inclusive, and therefore sues these Defendants by such fictitious names. Plaintiff will seek leave to amend this complaint to allege the true names and capacities of the DOE Defendants when ascertained. 5. Plaintiff is informed, believes and thereon alleges that each of the Defendants was, at all times relevant to this action, the agent, employee, representative, director and/or joint venturer of the remaining Defendants and was acting within the course and scope of that relationship and/or some other type of business relationship with Defendants. Plaintiff is further informed, believes and thereon alleges that each of the Defendants herein gave consent to, ratified, and/or authorized the acts alleged herein as to each of the remaining Defendants. 6. Plaintiff HOBBY was originally hired as a Registered Nurse in the Labor and Delivery Department for Kaiser Riverside Medical Center, which is owned by Defendant KAISER on or about December 10, She was paid at that time $17.00 per hour. 7. At the time she accepted employment with KAISER, HOBBY was employed as a Registered Nurse with the San Bernardino County Medical Center and left because KAISER had promised her better pay and better hours. 8. On or about November of 1996, HOBBY transferred from KAISER's Riverside Medical Center to KAISERPERMANENTE SANDIEGO MEDICAL CENTER, Labor and Delivery which is also owned by Defendant KAISER. She was then transferred to Labor and Delivery Triage of the same hospital in 1998 and remained in that position until she was wrongfully terminated on or about February 19,

3 9. At the time of HOBBY's termination from Defendants, she was earning between $54.00 to $56.00 per hour plus shift differential and specialty pay. 10. HOBBY's last supervisor at KAISER was Rae Swanson, Charge Nurse. She was terminated by Arlene Gibson, Department Administrator for Labor and Delivery Triage, for allegedly violating a federal law known as EMTALA (Emergency Medical Treatment and Active Labor Act). Specifically, HOBBY was accused of directing a patient on February 9, 2010, to a clinic which was not part of Labor and Delivery Triage without the patient first being given a medical screening. 11. HOBBY believes that the reason for her termination given to her by Arlene Gibson is pretextual and the actual reasons for her termination are due to her "whistleblowing" activities and age discrimination as discussed more fully below. 12. HOBBY was employed by KAISER for twenty years. In her last ten years of long term employment with KAISER, HOBBY received performance evaluations indicating 14 that she has consistently been rated as "exceeds expectations" for her assessment skills; that herratings for all categories have consistently either been "meets" or "exceeds" expectations; and that her overall performance evaluation has either been "Independent" (performed all critical core elements without supervision) or "Expert" (preceptor, teaches others, deemed independent). Therefore HOBBY was at minimum a good to excellent nurse. 13. On or about April, 2009, HOBBY had written an Unusual Occurrence Report (UOR)to KAISER online and submitted in hard copy a form named Staffing Objections. She had protested that her assignment that day was unsafe and placed her patients at risk. She did carry out her assignment under protest. Specifically, she complained that as Primary Nurse, she was not given adequate staff for acuity (short staffed);new patients were transferred or admitted to unit without adequate staff; and she was given an assignment which posed a potential threat to the health and safety of her patients. She claimed that Marites Arendon, R.N., her second level supervisor was not going to call for any help for financial reasons and HOBBY was given five patients as primary care triage nurse, apparently in violation of California Department of Health Services regulations requiring nurse to patient ratios of 1:2. 3

4 14. On or about October 25, 2009, HOBBY again had submitted online another UOR to KAISER and a Staffing Objections form protesting the her work assignment was unsafe and placed her patients at risk for the same reasons as the ones she cited in her Staffing Objections from on or about April, Again, she claimed that Marites Arendon, R.N. did not get any additional help and refused to put the department on divert which violates policy because there were no beds available. At that time, Ms. Arendon apparently responded that she was the house supervisor and did not have time. Ms. Arendon did not call for community bed availability even though HOBBY had a week pregnant patient previa bleeding and contracting; a 32 week pregnant patient with twins contracting; one patient contracting dilated to 6 cm and another patient dilated to 5 cm. There was a medical doctor order to put Labor and Delivery Triage on divert and Ms. Arendon did not comply. Triage is considered an emergency room for pregnant patients. 15. The Quality and Assurance Department made Ms. Arendon aware of HOBBY's complaint and she discussed the complaint with Plaintiff HOBBY. 16. On February 9, 2010, HOBBY had three unstable patients including 32 week triplets. Most of her shift, HOBBY had to care for between four and six patients in Triage. Labor and Delivery were full so no beds were available and Ms. Arendon refused to put the department on divert again. It is HOBBY's understanding that Ms. Arendon refused to call the on call nurse because she did not want to pay for two hours. Diane Younge-Barnes wrote a Staffing Objections report regarding this occurrence. 17. On February 10, 2010, HOBBY contacted the California Department of Public Health, Licensing & Certification Program, and spoke to Thomas McConkey to complain about the staffing issue against KAISER. The case was given Complaint Number CA HOBBY complained that KAISER was not following required staffing ratios and did not have a Patient Classification system for determining nursing care of individual patients. These deficiencies may be in violation of Title 22, Section et seq of CCR. 18. On February 13, 2010, HOBBY followed her telephone complaint with an to Thomas McConkey reiterating her concerns and stated that her charge nurse Rae Swanson, 4

5 R.N. had constantly argued with Ms. Arendon that increased staffing for the unit was essential and Ms. Arendon's response was in favor of saving money. 19. As a result of the filing of HOBBY's complaint, the Licensing & Certification Program made an unannounced visit to KAISER on February 16, On February 17, 2010, HOBBY was given a two day suspension by Arlene Gibson pursuant to an investigation as to whether HOBBY violated EMTALA as described infra. 21. Plaintiff HOBBY alleges on information and belief that the rule that a patient must be seen in 30 minutes pursuant to EMTALA has never been followed prior to her termination. 22. KAISER was never cited by the government for violating any EMTALA law in regards to any incident pertaining to HOBBY's employment with KAISER. 23. HOBBY was 53 years old at the time of her termination from KAISER and she was replaced by a person who was under 30 years old and less qualified than HOBBY. 24. HOBBY was paid at the top of KAISER's wage scale for nurses at the time of her termination The patient that presented herself on February 9, 2010, that allegedly was not given a medical screening within 30 minutes did not file any complaints. 26. Prior to the HOBBY'S termination, KAISER had not terminated anyone for allegedly violating policy regarding EMTALA.. HOBBY's UOR online complaint and Staffing Objections dated October 25, 2009, and her complaint to the California Department of Public Health were made within 120 days of her termination by KAISER. FIRST CAUSE OF ACTION (Violation of California Health & Safety Code 18.5). Plaintiff HOBBY realleges paragraphs 1 through of her Complaint and 26 incorporates them by reference herein as if fully set forth. 29. Defendant KAISER is a Health Care Facility as defined in California Health and Safety Code 1250 and California Health & Safety Code 18.5 et seq. prohibits a health 5

6 care facility from discriminating or retaliating in any manner against an employee or staff member because that employee presented a grievance, complaint, or report relating to the care, services, or conditions of that facility to the medical staff of the facility or to any governmental entity. It is a rebuttable presumption of retaliation if the staff or owner of the facility had knowledge of the employee's actions and discriminatory treatment occurs within 120 days. 30. Several times within the statute of limitations preceding her termination, and at least on two occasions within 120 days preceding her termination, Plaintiff HOBBY complained to KAISER and the California Department of Public Health, about poor, unsafe, unlawful and inappropriate patient care by Defendant KAISER. 31. In retaliation for such complaints, Defendants placed HOBBY on suspension, in violation of California Health and Safety Code Defendants claimed that HOBBY, by lawfully criticizing Defendants and advocating for the rights and safety of patients, HOBBY violated employer policy regarding EMTLA. 32. On or about February 19, 2010, Defendants in violation of California Health and Safety Code 18.5, retaliated against HOBBY for her complaints by terminating her employment. 33. As a result of Defendants unlawful conduct, HOBBY has been compelled to retain legal counsel, and is entitled to reasonable attorney's fees and costs of suit, pursuant to California Health and Safety Code As a proximate result of Defendants' conduct, Plaintiff has suffered harm, including lost earnings and other employment benefits, humiliation, embarrassment, and mental anguish, all to her damage in an amount in excess of $25,000, the actual amount to be proven at trial. 35. Defendants committed the acts alleged herein maliciously, despicably, fraudulently, and oppressively, with the wrongful intention of injuring Plaintiff, from an improper and evil motive amounting to malice, and a conscious disregard of Plaintiff's rights. Plaintiff is thus entitled to recover punitive damages from the Defendants and each of them, in an amount A

7 according to proof. SECOND CAUSE OF ACTION (Violation of California Labor Code (b) 36. Plaintiff HOBBY realleges paragraphs 1 through 35 of her Complaint and incorporates them by reference herein as if fully set forth. 37. California Labor Code et seq. provides that an employer may not retaliate against any employee for disclosing information to a government or law enforcement agency when the employee has reasonable cause to believe that a violation of or noncompliance with a state or federal statute, regulation, or rule occurred. 38. Defendants violated California Labor Code (b) when placing HOBBY on suspension and then terminating her after she made a complaint to the California Department of Public Health as described infra. 39. An injured employee can sue the employer for damages pursuant to California Labor Code As a result of Defendants unlawful conduct, HOBBY has been compelled to retain legal counsel, and is entitled to reasonable attorney's fees and costs of suit, pursuant to California Labor Code 1105 et seq. 41. As a proximate result of Defendants' conduct, Plaintiff has suffered harm, including lost earnings and other employment benefits, humiliation, embarrassment, and mental anguish, all to her damage in an amount in excess of $25,000, the actual amount to be proven at trial. 42. Defendants committed the acts alleged herein maliciously, despicably, fraudulently, and oppressively, with the wrongful intention of injuring Plaintiff, from an improper and evil motive amounting to malice, and a conscious disregard of Plaintiff's rights. Plaintiff is thus entitled to recover punitive damages from the Defendants and each of them, in an amount according to proof. 43. As a result of Defendants' conduct, Plaintiff is also entitled to a civil penalty of $25,000 to be assessed individually against each person who has violated this section. 2

8 1 THIRD CAUSE OF ACTION (Age Discrimination in Violation of California Fair Employment and Housing Act) 44. Plaintiff HOBBY realleges paragraphs 1 through 43 of her Complaint and incorporates them by reference herein as if fully set forth. 45. The California Fair Employment and Housing Act (FEHA) protects the right of all persons to seek, obtain, and hold employment without discrimination based on age. (See California Government Code sections including but not limited to section (a). 46. Defendants have violated FEHA by disparate treatment of Plaintiff based on her age (53) as alleged more specifically in paragraphs 23 and 24 of this Complaint. 47. HOBBY timely filed charges of discrimination based on age with the United States Equal Employment Opportunity Commission(EEOC) who in turned cross filed with the California Department of Fair Employment and Housing (DFEH) against Defendant KAISER. HOBBY automatically received a right to sue letter from the California Department of Fair Employment and Housing in that DFEH closed her case on the basis of "processing waived to another agency". A copy of said right to sue letter regarding Defendant KAISER is attached hereto as "Exhibit A" and is incorporated herein as if fully set forth. 48. Plaintiff subsequently requested a right to sue letter from the EEOC which was mailed by the EEOC on January 23, A copy of said right to sue letter regarding Defendant KAISER is attached hereto as "Exhibit B" and is incorporated herein as if fully set forth. 49. As a proximate result of Defendants' conduct, Plaintiff has suffered harm, including lost earnings and other employment benefits, humiliation, embarrassment, and mental anguish, all to her damage in an amount in excess of $25,000, the actual amount to be proven at trial. 50. Defendants committed the acts alleged herein maliciously, despicably, fraudulently, and oppressively, with the wrongful intention of injuring Plaintiff, from an improper and evil motive amounting to malice, and a conscious disregard of Plaintiffs rights. Plaintiff is thus 8

9 1 2 entitled to recover punitive damages from the Defendants and each of them, in an amount according to proof. FOURTH CAUSE OF ACTION (WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY) 51. Plaintiff HOBBY realleges and incorporates by reference paragraphs 1 through 50 of this Complaint as if fully set out. 52. The California Fair Employment and Housing Act (FEHA) protects the right of all persons to seek, obtain, and hold employment without discrimination based on age. (Government Code section (a) et sq. 53. The FEHA embodies fundamental, substantial, and well established public policies of the State of California. In suspending and terminating Plaintiff HOBBY and treating her disparately based on her age, Defendants violated the fundamental, substantial, and well established public policies embodied in FEHA. 54. An employer may not discharge or discriminate against employees who complain about unsafe working conditions in their workplace (California Labor Code section 6310). As stated infra, Plaintiff HOBBY complained about the unsafe working conditions related to the health and welfare of her patients to the California Department of Public Health and to her employer, Defendant KAISER. 55. Defendants violated California Labor Code 6310 when placing HOBBY on suspension and then terminating her as a result of her complaints about unsafe working conditions to the California Department of Public Health and to Defendant KAISER described infra. 56. In suspending and terminating Plaintiff HOBBY in retaliation for reporting unsafe working conditions to the California Department of Public Health and to Defendant KAISER, Defendants violated the fundamental, substantial, and well established public policies embodied in California Labor Code California Labor Code et seq. provides that an employer may not retaliate against any employee for disclosing information to a government or law enforcement agency 4

10 when the employee has reasonable cause to believe that a violation of or noncompliance with a state or federal statute, regulation, or rule occurred. 58. Defendants violated California Labor Code (b) when placing HOBBY on suspension and then terminating her after she made a complaint to the California Department ofpublic Health as described infra and violated the fundamental, substantial, and well established public policies embodied in California Labor Code (b). 59. California Health & Safety Code 18.5 et seq. prohibits a health care facility from discriminating or retaliating in any manner against an employee or staff member because that employee presented a grievance, complaint, or report relating to the care, services, or conditions of that facility to the medical staff of the facility or to any governmental entity. 60. Several times within the statute of limitations preceding her termination, and at least on two occasions within 120 days preceding her termination, Plaintiff HOBBY complained to KAISER and the California Department of Public Health, about poor, unsafe, unlawful and inappropriate patient care by Defendant KAISER. 61. In retaliation for such complaints, Defendants placed HOBBY on suspension and then terminated her in violation of California Health and Safety Code 18.5et seq. 62. By suspending and then terminating HOBBY, Defendants violated the fundamental, substantial, and well established public policies embodied in California Health & Safety Code 18.5 et seq. 63. As a proximate result of Defendants' conduct, Plaintiff has suffered harm, including lost earnings and other employment benefits, humiliation, embarrassment, and mental anguish, all to her damage in an amount in excess of $25,000, the actual amount to be proven at trial Defendants committed the acts alleged herein maliciously, despicably, fraudulently, and oppressively, with the wrongful intention of injuring Plaintiff, from an improper and evil motive amounting to malice, and a conscious disregard of Plaintiffs rights. Plaintiff is thus entitled to recover punitive damages from the individual Defendants and each of them, in W

11 an amount according to proof. PRAYER FOR RELIEF WHEREFORE, PLAINTIFF HOBBY prays for relief as follows: FOR THE FIRST CAUSE OF ACTION 1. For back pay, front pay, and all other special damages according to proof; 2. For general damages to compensate Plaintiff for emotional distress, pain and suffering, and loss of enjoyment of life; 3. For punitive damages as allowed by law; 4. For prejudgment interest; 5. For attorney fees pursuant to the California Health & Safety Code For costs of suit incurred; and 7. For such other and further relief as the Court may deem just and proper. FOR THE SECOND CAUSE OF ACTION 1. For back pay, front pay, and all other special damages according to proof, 2. For general damages to compensate Plaintiff for emotional distress, pain and suffering, and loss of enjoyment of life; For punitive damages as allowed by law; 4. For prejudgment interest; 5. For attorney fees pursuant to the California Labor Code (b); 6. For costs of suit incurred; 7. For civil penalties of $25, to be assessed individually against each person who has violated California Labor Code (b); 8. For such other and further relief as the Court may deem just and proper. FOR THE THIRD CAUSE OF ACTION 1. For back pay, front pay, and all other special damages according to proof; 2. For general damages to compensate Plaintiff for emotional distress, pain and suffering, and loss of enjoyment of life; 3. For punitive damages as allowed by law; 11

12 4. For prejudgment interest; 5. For attorney fees pursuant to the California Fair Employment and Housing Act; 6. For costs of suit incurred; and 7. For such other and further relief as the Court may deem just and proper. FOR THE FOURTH CAUSE OF ACTION 1. For back pay, front pay, and all other special damages according to proof; 2. For general damages to compensate Plaintiff for emotional distress, pain and suffering, and loss of enjoyment of life; 3. For punitive damages as allowed by law; 4. For prejudgment interest; 5. For costs of suit incurred; and 6. For such other and further relief as the Court may deem just and proper. Dated: February 12, 2012 vi/1q arrenaubeck, AUTO for- amtl KATHLEEN RENEE HOBBY L2

13 STATE OF CAUF0i1M1A - Sure Jnd ConWmer Semoes Apaney DEPARTMENT OF FAIR Ei vr &LOYMENT & HOUSING (SEE ADDRESS CHECKED BELOW) ARNOLD SCHK'AAZ14EGC;Z11, C -a= TTY jr ( Stockdale Hwy-, Suite 215 Bakersfield, CA (661) Carlos Zaragoza, Senior Counsel EEOC Number: KAISER PERMANENTE 393 East Walnut Street/Walnut Ctr. Kathleen Hobby v. Kaiser Permanent San Pasadena, CA Medical Center Date April 8, 2010 C 1320 E. Shaw Avenue. Suite 150 Fresno, CA NOTICE TO COMPLAINANT AND RESPONDENT R/S 1055 West Seventh Street, Suite 1400 Los Angeles. CA Clay Street. Suite Oakland. CA M (510) This is to advise you that the above-referenced complaint is being referred to the California Department of Fair Employment and Housing (DFEH) by the U.S. Equal Employment Opportunity Commission (EEOC). The complaint will be filed in accordance with California Government Code section This notice constitutes service pursuant to Government Code section No response to the DFEH is required by the respondent. CU E 2000 '0- Street, Suite 120 Sacramento, CA ) The EEOC will be responsible for the processing of this complaint. DFEH will not be conducting an investigation into this matter. EEDC should be contacted directly for any discussion of the charge. DFEH is closing its case on the basis of "processing waived to another agency." D L^ A 1350 Front Street, Suite 1063 San Diego, CA ) North First Street, Suite 480 fl G San Jose, CA ( U K NOTICE TO COMPLAINANT OF RIGHT-TO-SUE Since DFEH will not be issuing an accusation, this letter is also your right-to-sue notice. According to Government Code section 12965, subdivision (b), you San Francisco District Otfice may bring a civil action under the provisions of the Pair Employment and 1515 Clay Street. Suite 701 Housing Act against the person, employer, labor organization or employment Oakland, CA (510) agency named in the above-referenced complaint. The lawsuit may be filed in a State of California Superior Court. Government Code section 12965, subdivision (b), provides that such a civil action must be brought within one year from the date of this notice. Pursuant to Government Code section 12965, subdivision (d)(1), this one-year period will be toiled during the pendency of the EEOC's investigation of your complaint. You should consult an attorney to determine with accuracy the date by which a civil action must be 2101 East Fourth Street, Suite 255-B Santa Ana, CA 905 filed. This right to file a civil action may be waived in the event a settlement 1714) agreement is signed. Questions about the right to file under federal law should be referred to the EEOC. The DFEH does not retain case records beyond three years after a complaint is filed. Remember: This Right-To-Sue Notice allows you to file a private lawsuit in State Court. Sincerely, JENNIFER L. HARLAN Del)uty Director, Emplovment

14 . EEOC Form 161-B (11/09) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION To: Kathleen Hobby 6373 Birchwood Street San Diego, CA NOTICE OF RIGHT TO SUE (ISSUED ON REQUEST) From: San Diego Local Office 555 W. Beech Street Suite 504 San Diego, CA On behalf of person(s) aggrieved whose identity is CONFIDENTIAL (29 CFR (a)) EEOC Charge No NOTICE TO THE PERSON AGGRIEVED: EEOC Representative Deborah A. Barnes, Investigator Telephone No. (619) (See also the additional information enclosed with this form.) Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), or the Genetic Information Nondiscrimination Act (GINA): This is your Notice of Right to Sue, issued under Title VII, the ADA or GINA based on the above-numbered charge. It has been issued at your request. Your lawsuit under Title VII, the ADA or GINA must be filed in a federal or state court WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost. (The time limit for filing suit based on a claim under state law may be different.) 0 More than 180 days have passed since the filing of this charge. Less than 180 days have passed since the filing of this charge, but I have determined that it is unlikely that the EEOC will be able to complete its administrative processing within 180 days from the filing of this charge. The EEOC is terminating its processing of this charge. The EEOC will continue to process this charge. Age Discrimination.in Employment Act (ADEA): You may sue under the ADEA at any time from 60 days after the charge was filed until 90 days after you receive notice that we have completed action on the charge. In this regard, the paragraph marked below applies to your case: X The EEOC is closing your case. Therefore, your lawsuit under the ADEA must be filed in federal or state court WITHIN 90 DAYS of your receipt of this Notice. Otherwise, your right to sue based on the above-numbered charge will be lost. 0 The EEOC is continuing its handling of your ADEA case. However, if 60 days have passed since the filing of the charge, you may file suit in federal or state court under the ADEA at this time. Equal Pay Act (EPA): You already have the right to sue under the EPA (filing an EEOC charge is not required.) EPA suits must be brought in federal or state court within 2 years (3 years for willful violations) of the alleged EPA underpayment. This means that backpay due for any violations that occurred more than 2 years (3 years) before you file suit may not be collectible. If you file suit, based on this charge, please send a copy of your court complaint to this office. Enclosures(s) I 2, (Date Mailed) cc: Caroline Smith Ortiz, Esq. Warren P. Beck 31 Wiley Court WARREN BECK LAW Danville, CA Second Avenue, Suite 1007 San Diego, CA Re: Hobby v. Kaiser 1 I'A