Nurse Sees Much of Suit Against Kaiser Tossed

     SAN FRANCISCO (CN) – A federal court dismissed most of a nurse’s sexual harassment and discrimination lawsuit but not her claim that Kaiser failed to accommodate a workplace injury.
     Julieta Ludovico sued Kaiser Permanente aka The Permanente Medical Group, Inc. (TPMG) in 2012 alleging 15 causes of action including age and race discrimination, sexual harassment, retaliation, and failure to accommodate and engage in the interactive process.
     U.S. District Judge Edward M. Chen wrote in Friday’s ruling that the parties stipulated to dismiss the race and age discrimination claims in May 2014, leaving ten causes of action still in dispute. Kaiser sought summary judgment to dismiss them all, Judge Chen wrote.
     In her lawsuit, Ludovico said an x-ray technician named Kevin grabbed her shoulder and said he would shove his tongue down her throat a few times and she would like it. She reported the incident right away, according to her lawsuit.
     Later that year, she injured her neck, shoulder, arm and back while moving a heavy patient who fainted on her, she said.
     Ludovico claimed Kaiser did not adequately accommodate either of her subsequent disabilities – a mental disability caused by Kevin’s behavior and a physical disability arising from her workplace injury. She also claimed Kaiser retaliated against her for complaining about the harassment and non-accommodation.
     In his ruling Chen wrote that Kaiser suspended Kevin for two days and held a meeting between Ludovico, Kevin, managers of both their departments and representatives of both their unions. Among them they agreed to restrictions on Kevin’s contact with Ludovico, but did not agree to fire or transfer Kevin, according to the ruling.
     The ruling cites a Kaiser HR employee’s declaration that Ludovico later asked for Kevin to be transferred or fired, or alternatively that she herself be transferred to a different facility. In a footnote, the ruling states, “In the moving papers, TPMG asserts it would have been a violation of a collective bargaining agreement to subject Kevin to further adverse employment actions.”
     In granting Kaiser’s motion for summary judgment on the sexual harassment claim, the court found the single incident did not meet the standard for severe and pervasive harassment, in part because Kevin was not Ludovico’s supervisor. The ruling also did not affirm Ludovico’s claim of retaliation or failure to accommodate her mental disability.
     “Plaintiff does not provide any evidence to support her contention that transferring or firing Kevin was justified. Ultimately, plaintiff was placed on medical leave while her job remained open. Courts have recognized that unpaid medical leave may constitute a reasonable accommodation under the ADA … Finally, plaintiff stated that if Kevin could not be transferred, she wanted to be transferred to a different facility … She was offered, and accepted, a position with a different facility in June 2010. In short, plaintiff’s alleged mental disability was in fact accommodated,” the ruling states.
     In its consideration of Ludovico’s physical disability discrimination claim, the court said, “Plaintiff’s claim that TPMG failed to reasonably accommodate her or engage in the good faith interactive process appear problematic. There are numerous facts in the record that are inconsistent with her claim. For example, TPMG placed plaintiff on industrial leave and her position was held open for months while she treated with her physicians; and, as noted, unpaid medical leave may constitute a reasonable accommodation.”
     However, “whether a specific accommodation was ‘reasonable’ and whether an employer engaged in a good faith interactive process with a disabled employee are traditional questions of fact,” it continues.
     “Taking the record and all possible inferences in the light most favorable to plaintiff, a jury could conclude that TPMG failed to sufficiently take the initiative with plaintiff through a good faith interactive process to determine whether any reasonable accommodation would have allowed her to return to work,” the ruling says.
     “The court cannot conclude, as a matter of law, that TPMG met its statutory duty to engage in a good faith interactive process with plaintiff in order to arrive at a reasonable accommodation,” the court wrote, denying Kaiser’s motion for summary judgment on the accommodation cause of action.
     However, the court found “plaintiff has failed to point to any evidence that would support a jury finding of retaliatory animus.”
     The court also denied Kaiser’s motion to dismiss Ludovico’s request for punitive damages.

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