Jottings By An Employer's Lawyer

Monday, November 15, 2004

The Employee Tar Baby - When You Just Can't Let Go

That's what the folks at Kaiser Permanente must be thinking of their dealings with their former respiratory therapist, Stephan Pardi. He first raised claims of disability discrimination because of depression, and harassment when his supervisor refused to carry out the agreed to accommodations. Following a 2 year battle with numerous grievances, he was finally terminated. But on his way out, he first won a "five figure" award from an arbitrator for his discrimination and harassment claims, and then filed a charge of discrimination with the EEOC because of his termination. That charge ultimately resulted in a $130,000 settlement with Pardi, which included the agreement that his termination would be converted to a resignation.

But unknown to Pardi, the hospital had reported his termination to the Respiratory Care Board. The Board commenced its investigation just as his termination claim was being settled. The settlement occurred on January 13. Unfortunately, but not too surprisingly, just over 2 weeks later on February 1, when the investigator showed up, his file had not been corrected to show resignation rather than termination. Yep, you guessed it, a new cause of action.

Although Kaiser prevailed in the district court, today, the 9th Circuit reinstates some of that claim, finding both a breach of the settlement agreement, by not correcting the file soon enough, and certain post-settlement conduct that was actionable as retaliation. The retaliatory acts:
Kaiser failed to: (1) promptly delete Pardi’s termination for cause from its records, engaging in protected activity” and amount to actionable retaliation under this Court’s (2) inform the DCA investigator about the Settlement Agreement, (3) turn over to the investigator medical records that would tend to exculpate Pardi, and (4) turn over to the investigator evidence of Pardi’s history of complaints against Kaiser. And the Court's conclusion -- these acts are “reasonably likely to deter employees from expansive view of adverse employment actions. Pardi v. Kaiser Permanente (9th Cir. 11/15/04) [pdf].
You have to figure however these remaining claims get resolved, that Kaiser Permanente will probably be looking over there shoulder for Mr. Pardi for

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