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 Retaliation  Because of Fight for Abortion Training Gets Doc Million Dollar Lawsuit Settlement

A $1.4 million dollar settlement was reached last week in this important case about a doctor's advocacy for reproductive rights.

Here's the story as reported by the Center for Reproductive Rights and the Feminist Majority Foundation.

Dr. Christopher Carey served for many years as both Chief of Obstetrics & Gynecology and Director of the Obstetrics & Gynecology Residency Program at Maricopa County Hospital in Phoenix.

While in that position, Dr. Carey supported providing OB/GYN residents the opportunity to participate in abortion training if they so desired.

Carey also spoke out against the efforts of the Maricopa County Board of Supervisors and others who wanted to end those training opportunities.

As a result, Carey claimed he was harassed and retaliated against  by the Board of Supervisors and other officials who:

• carried on an eighteen month campaign to force Carey out of his position

• spread false statements which damaged his reputation

• worked to block his re-appointment to the Medical Staff
  

• conducted multiple baseless investigations

• voted to remove him from his position at the hospital

Carey was terminated from his position in September of 2004.

Carey sued alleging that his Constitutional rights were violated under the First and Fourteenth Amendments,  and that he was discriminated against because of his religious and moral beliefs.

A settlement of $1.4 million dollars was announced on May 22nd by the Center for Reproductive Rights and the firm of Weil, Gotshal & Manges which represented Dr. Carey. The case was set to go to trial on June 23rd.

In an interview after the settlement, Dr. Carey said:

I am extremely pleased with the settlement, but it’s important to remember that the shortage of abortion providers in this country is extensive.

A resident’s ability to obtain abortion training is crucial to ensuring women receive quality health care when they need it.

No doubt Dr. Carey is a real champion on this very important and controversial issue.  It's reassuring to many of us that Dr. Carey was vindicated.

In addition to the important principles concerning  quality health care, and freedom free from discrimination and retaliation,  there's a broader lesson to be learned from this case.

It was simply stated by Janet Crepps, deputy director of he U.S. Legal Program at the Center for Reproductive Rights who said:  "Personal politics have no place in medical care."

It's not often that we see cases which send this message -- let's hope it gets delivered.

 Image:blog.lib.umn.edu

            s1.causes.com

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You don't see many cases where employees have successfully sued their employers for defamation. But when there is a winner, it's likely to look like the case of Gambardella v. Apple Health Care, Inc. recently decided by Connecticut Supreme Court.  

Here's what happened in the case.   

Laurie Gambardella worked as an admissions counselor at a health care facility in Watertown, Connecticut which was owned by Apple Health Care.

A woman by the name of Eleanor O'Brien met with Gambardella concerning the admission of her aunt, Fannie Lauro, to the facility.

Fannie was admitted and Eleanor brought some of Fannie's clothing and furniture with her. Days later, Fannie had a massive heart attack and died.   

Eleanor went to the facility to retrieve some of Fannie's clothing for the funeral. 

At  that time, Eleanor  told Laurie Gambardella that she was not interested in any of Fannie's property, and that Gambardella could do whatever she wanted with it.

In keeping with Eleanor O'Brien's instructions, Gambardella:

• decided to keep two chairs for herself

• gave the nursing supervisor, Colleen Busk,  a dresser after she asked for it

• told Joseph Stolfi, the maintenance supervisor to use the remaining furniture elsewhere in the facility as needed

Stolfi told the  facility administrator, John Sweeney, what was going on and Sweeney decided to conduct an investigation. Sweeney asked Gambardella questions about the furniture.  She told Sweeney about the instructions she had received from Fannie's niece, Eleanor O'Brien.

Sweeney told Gambardella that there was a policy against accepting gifts from residents or their families. Upon learning this, Gambardella returned the two chairs.

Sweeney then contacted Eleanor O'Brien to find out if Gambardella was telling the truth. O'Brien confirmed that she did not want any of the property . She also verified that she told Gambardella to keep her aunt's property and distribute it as she saw fit.

In addition, Eleanor O'Brien wrote a letter to Gambardella in which she stated that the property had been left for Gambardella to keep or distribute to others in her sole discretion. Sweeney received a copy of the letter.

Even though Sweeney had both oral and written proof that Gambardella was given Aunt Fannie's property, Sweeney decide to fire Gambardella for stealing the two chairs (which had been returned).

To make matters worse, when Sweeney told Gambardella that he was firing her for theft, he did so in front of a co-employee, Kate Sloan,  the director of admissions.

Other co-employees who worked at the facility also learned that  Gambardella was fired and the reason why. Not surprisingly, as things go at work, employees were gossiping about  the incident. According to the opinion in the case:

Other people, including the plaintiff's daughter, also heard that the plaintiff had been fired for taking furniture. ..

Some heard that the plaintiff was fired for taking furniture from a dead lady.

Gambardella filed a lawsuit against Apple Health Care, Waterbury Extended Care Facility and John Sweeney for defamation.

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I opened up this month's Lawyer USA to find a stunning piece about a swiped PC leading to a $17.5 million dollar verdict. From what's reported, here's what happened in the case of Trealoff v. Forest River Inc. out of the Superior Court of San Bernardino County, California.

Dallen Trealoff, an experienced RV salesman, was hired in 1995 as a sales manager by a start-up company called Forest River Inc., an Indiana based company.

Trealoff  worked out of the company's Rialto, California warehouse and was in charge of developing a sales network in eleven Western states according to a P.E.com story.

The company did not provide a computer so Trealoff used his personal laptop.     

Trealoff claimed that he:

•  was hired to help a fledgling company 

• took a pay cut in reliance on a promise that he would be compensated later at a higher rate

 According to Trealoff's lawyer, the raise never materialized:

It took him about five years to realize they were not going to give him the raise.  That's when he started to look for other employment and then they fired him.

Before Trealoff got fired, the company president Peter Liegl took Trealoff's laptop, stole the hard drive and deleted thousands of files.

During the time he worked for Forest River, Trealoff used his spare time to develop a software program which kept track of sales data. That information was on the computer as was Trealoff's personal financial information.

Trealoff got the computer back and tried to restore some of the files. None of it was usable.

Liegl claimed he took Trealoff's computer because he suspected that Trealoff was stealing company information and going to start his own company.

In 2003, Trealoff and his wife did start their own company called Eclipse Recreational Vehicles.

In 2005, Forest River was bought out by Warren Buffet's  Berkshire Hathway Inc.

Trealoff sued Liegl and Forest River alleging:

• breach of contract
• fraud
• conversion
• violation of a California statutory claim  for improperly accessing a computer without the owner's permission

Forest River counter sued alleging that Trealoff took proprietary information in order to start his own business.

It's important to note these points in the context of the case:

1. Trealoff had no written agreement with Forest River regarding the terms of his employment.
2. Forest River did not have a non disclosure agreement signed by Trealoff

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Judge Samuel Kent was appointed to the bench for life by George Bush in 1990. For almost two decades, he served as the only federal judge in Galveston, Texas where he wielded great authority and "created a culture of fear."

On Monday, Judge Kent was sentenced to 33 months in prison for obstruction of justice because he sexually harassed court employees and lied about it to judges who investigated his misconduct.

Kent is the first federal judge in history to be indicted in connection with sexual crimes. Here's the story -- and it's a big one.

Two years ago, Cathy McBroom, Judge Kent's case manager, filed a sexual harassment complaint against Judge Kent with the 5th Circuit Court of Appeals. According to the Houston Chronicle:

She said the incident that prompted her to action — though it was not the first time Kent attempted to assault her — came in March 2007 when McBroom was summoned to Kent’s Galveston chambers.

She says the judge, a foot taller and 150 pounds heavier, forced his mouth on her breast and pushed her head toward his crotch with an explicit and obscene oral order. She fled in tears.

The first incident occurred in 2003.  At that time, according to the Chronicle:

 The judge returned from lunch that day and made a bizarre request for McBroom to show him the court’s exercise room ...

He pinned her to the floor, removed her shirt and only allowed her up when she begged and then threatened to scream.

Judge Edith Jones, Chief of the Fifth Circuit Court of Appeals, oversaw the panel of judges that investigated the accusation.

Following the investigation, Judge Kent was reprimanded, suspended for four months without pay, and transferred to Houston.

It turns out the Judge Kent lied to the panel about his sexual advances involving a second employee, his secretary Donna Wilkinson.

According to the NY Times story, Kent told the panel that the extent of his advances towards Wilkerson was one kiss. The indictment said that Kent repeatedly fondled Wilkerson against her will.

Kent eventually admitted to molesting both McBroom and Wilkerson. In a deal with prosecutors in February, Kent plead guilty to obstruction of justice as his trial was scheduled to begin.

In exchange, the government agreed to drop five charges that he had repeatedly groped his secretary and his case manager, touching their genitals and breasts against their will.

The sentencing hearing was on Monday, and both women made statements.The  Chronicle reported that Ms.McBroom expressed anger over the fact that Kent attempted to portray her as an enthusiastically consensual and spurned lover:

Being molested and groped by a drunken giant is not my idea of an affair  .... I will forever be scarred because of what happened in Galveston.

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Unfortunately, lots of people are abused at work. Most of the time, there's no case. The law simply does not permit people to sue their bosses just because they're mean, and that makes sense.

But every once in awhile, the abuse is so severe and outrageous, that it constitutes a claim for intentional infliction of emotional distress.

It's not often that these claims are recognized, but  just recently one employee claimed victory in  Rothwell v. Nine Miles School District , a case that truly meets the definition of outrageous.

Here's what happened in the case. 

Debbie Rothwell was employed as a custodian for Nine Miles Falls School District for eight years. Her latest assignment was at Lakeside High School near Spokane.

One day Rothwell was called  and asked to report to her shift early. When she arrived, she found out that a student had committed suicide in the main entrance of the high school by shooting himself in the head.

Rothwell was ordered by the Superintendent to clean up the mess. When she heard the name of the suicide victim, whom she knew personally, she became extremely upset and left for 30 minutes to compose herself.

She came back and was then ordered to go through classrooms to look for bombs. The school principal accompanied her.

After she finished the bomb search, she was ordered again to clean up the suicide scene. In the midst of it,  she found a book bag. Not knowing it belonged to the victim, she began removing its contents but was then told by the police to to drop the bag and go home.

When Rothwell returned, she watched the bomb squad detonate a pipe from the book bag she had picked up and dropped earlier.  She also learned that another bomb had been detonated on the football field while she was at home. Understandably, these events shocked and frightened her.

Rothwell remained at the scene and cleaned all night long.  She was told to "make it look as if nothing had happened at the school."

According to the opinion in the case:

At approximately 2:00 a.m., Ms Rothwell resumed cleaning the suicide scene inside the school. Ms. Rothwell complied with Superinendent Green's directions to clean and dump everything at the scene, which included needles, plastic gloves, brain matter, bone bits, and blood.

She finished cleaning at approximately 4:15 a.m.  By that time, she was emotionally distraught and physically ill.

For several days thereafter, students and others brought candles and cards to the scene of the suicide. Ms. Rothwell was ordered to clean up those items each night, which was extremely emotionally disturbing to her.

As a result of these events, Rothwell became sick from post traumatic stress disorder ("PTSD").  She filed a lawsuit against Nine Miles School District and the Superintendent  for intentional and negligent infliction of emotional distress, claiming that she "suffered physical and emotional distress as a proximate result " of the District's and Superintendent's actions.

The District filed a motion asking the trial court to throw out the case on the grounds that it was barred by Washington's  workers' compensation statute.

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I love the decision of Gerving v. Opbiz, LLC which was decided by the Ninth Circuit a few days ago. Thanks to mmmglawblog for pointing it out.

It’s a great example of  “caregiver discrimination” about which the EEOC issued a report just last week (I wrote about it : Read Carefully to Avoid Caregiver Discrimination), and it's a case in which the caregiver wins.

The case also has a very clear analysis of what kind of evidence allows a plaintiff to get to a jury in a typical gender discrimination case.  

Here’s what happened in the case.

Karen Gerving worked as a sales manager for Opbiz (Alladin Resort and Casino) until she was fired by her supervisor, Jim Lauster.

Gerving filed a lawsuit alleging gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964.

Gerving’s evidence showed that after she became a stepmother, Lauster:

• began to give her poor performance reviews

• told her that working mothers should stay at home

• told her that she would have to choose between being a mother and a sales manager

• made similar discriminatory remarks to a pregnant co-worker

• treated  Gerving differently than a male co-worker when she was reprimanded for making calls to her children while he was not

Because of the discriminatory treatment, Gerving complained to the Human Resource Deparatment. Two weeks later, an angry Lauster tried to get Gerving fired.

It turned out that Luster wasn’t able to fire Gerving until some months later when new management was in place.

In a typical discrimination case, the plaintiff can establish an inference of discrimination if she can prove:

1)   she belongs to a protected class

2)   she performed her job satisfactorily

3)   she suffered an adverse employment action

4)   she was treated differently than a similarly situated employee who does not belong to the protected class

Once the employee establishes an inference of discrimination – what’s called the prima facie case – the employer is required to "articulate a legitimate, non-discriminatory reason" for it's employment action.

If the employer does that, the employee must prove pretext – meaning that the employee presents evidence that the reason given by the employer is not believable or made-up.

In this case, Alladin said that Gerving was fired because of poor performance and because she used profanity in an argument with a co-worker.

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There's been quite a bit in the news recently about anti-Latino discrimination.

In one EEOC case out of Miami, Nordstrom agreed to a settlement of $292,500 because of a store manager's blatant prejudice.

The manager was heard to say  that she  "hated Hispanics" and that Hispanics were "lazy and ignorant."  Hispanic workers were also chastised for speaking to each other in Spanish.

The same store manager didn't like African American employees either and was known to make remarks like "I don't like Blacks" and "you're Black, you stink".

According to the EEOC:  

The employees complained to Nordstrom about the harassment, but the harassment did not stop. The . . . manager retaliated against those who complained by continuing the racially offensive comments, unfairly berating employees and citing them for alleged performance problems.

In a different  EEOC case out of Los Angeles, Skilled Healthcare Group agreed to pay $450,000 to a class of Hispanic employees who were subjected to harassment and discrimination at its nursing homes and assisted living facilities in California and Texas.

In that case, the EEOC alleged that workers were

• prohibited from speaking Spanish to Spanish speaking residents

• disciplined for speaking Spanish n the parking lot while on breaks

• given less desirable work than non-Hispanic counterparts paid less and promoted less often
  

In other news, the Southern Poverty Law Center issued an alarming report about anti-Latino discrimination in the South

The report — Under Siege: Life for Low-Income Latinos in the South — details the experiences of Latino immigrants who face increasing hostility as they fill low-wage jobs in Southern states that had few Latino residents until recent years.

According to the report, Latino workers are:

• subjected to widespread hostility, discrimination and exploitation.
• consistently cheated out of their pay
• 80% more likely to die on the job than native-born workers

The discrimination against Latina women in the workplace was particularly disturbing.. For example, 77% of the Hispanic women interviewed said sexual harassment was a major workplace problem.

 A recurring theme is the male supervisor using immigration status as leverage to coerce sexual favors from female employees. These women often have little or no idea about sexual harassment laws and have nowhere to turn.

Sadly, for a variety of reasons discussed in the report including language barriers and legal status, most victims do not seek legal recourse even though Title VII of the Civil Rights Act of 1964 prohibits sexual harassment as well as race and national origin discrimination regardless of immigration status according to most courts.

 With all of these recent stories about discrimination targeted against Latinos,  it's good news that President Obama is strongly considering a Hispanic woman for Supreme Court Justice.

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