2013-00150903-CU-WT

Alicia Cockrum vs. Kaiser Foundation Health Plan, Inc.

Nature of Proceeding: Hearing on Demurrer (Joinder by Kaiser Foundation Health Plan, Inc.)

Filed By: McNamara, David R.

Demurrer of The Permanente Medical Group Inc, and Joinder by Kaiser Foundation
Health Plan, Inc., to the 4th cause of action in the First Amended Complaint is
sustained without leave to amend for failure to state facts sufficient to constitute a
cause of action.

Plaintiff alleges claims arising out of her employment as a psychologist with TPMG.
Plaintiff alleges a claim against defendant Sharma, plaintiff’s former manager, for
intentional infliction of emotional distress. The Court previously overruled the demurrer
to that cause of action. (See minute order February 25, 2014.) Plaintiff alleges that
she was constructively terminated on June 25, 2013. Plaintiff had earlier made
complaints that Kaiser was not providing timely mental health appointments to patients
seeking appointments, that Kaiser was not providing protection from violent patients,
and that she was retaliated against for advocating patient care.

Plaintiff alleges she was effectively suspended from December 14, 2012 through
January 14, 2013 after an incident in which plaintiff accessed the medical records of a
patient’s relative and was thereafter subject to an investigation for violating HIPPA.
Plaintiff alleges that she was told her position with the South Sacramento Region was
eliminated in April 2013. Plaintiff went out on stress leave May 1, 2013 due to alleged
retaliatory actions by defendants. Plaintiff was on leave until August 1, 2013. Plaintiff
wrote a letter to Kaiser demanding that all investigations be removed from her records,
and stated that if defendant did not cure the actions plaintiff would consider herself to
be terminated on June 17, 2013. Plaintiff received a response from Kaiser on June 25,
2013, and considered herself terminated on that date.

Plaintiff stated in opposition to the earlier demurrer to the Complaint that she was
alleging a cause of action for Labor Code 202 only. However, her 4th cause of action
in the First Amended Complaint alleges a violation of section 201, 202, and 203. Labor
Code § 203 provides, in pertinent part that “If an employer willfully fails to pay, without
abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and
205.5, any wages of an employee who is discharged or who quits, the wages of the
employee shall continue as a penalty from the due date thereof at the same rate until
paid or until an action therefore is commenced; but the wages shall not continue for
more than 30 days. “ In ruling on the allegations of the original Complaint, the court stated that
“Plaintiff has not pleaded facts to support a claim that she was either terminated by the
employer or that she did not timely receive her pay under section 202, which applies
when an employee resigns.” (Submitted ruling dated February 25, 2014.)

In the FAC plaintiff alleges that since she was constructively terminated on June 25,
2014, Kaiser had a duty to pay her all wages earned at this time pursuant to Labor
Code 201. (FAC ¶ 102) She further alleges that on May 31, 2013 she told Kaiser that
she would “consider herself terminated” as of June 17, 2013, if they did not respond to
her May 10 letter by then. (FAC ¶ 103). She alleges that her notification to Kaiser that
she would consider herself terminated if a condition was not met is a notice of
resignation, triggering the duty to pay her wages on June 17, 2014. Thus, she is
pleading alternative theories based on an alleged termination and an alleged
resignation. Under either alternative pleading, the Court holds that a “constructive
termination” as interpreted in the FEHA cases cannot form a basis for either Labor
Code violation, which requires a date certain by which both parties are
contemporaneously aware that either a resignation or termination has occurred. Here,
there is no objective date by which Kaiser would have been aware of a duty to pay
wages. Kaiser cannot be expected to speculate as to when plaintiff would “consider
herself terminated” nor could it know that when it did not respond by June 17 and then
later wrote Plaintiff the letter on July 25, 2013 that she would consider herself
terminated on either of those dates.

The Court finds that the facts alleged, based on constructive termination, do not
support the alleged Labor Code sections as a matter of law. Because “constructive
discharge” is a doctrine that transforms what is ostensibly a resignation into a firing
(see Turner v. Anheuser Busch. Inc.. (1994) 7 Cal.4th 1238, 1244-1245), an employer
cannot be expected to apply this legal doctrine in order to comply with the Labor Code.
Although the law treats a constructive discharge as the equivalent of a dismissal, it is
accomplished indirectly. Turner, supra, 7 Cal.4th at 1245.) The Labor Code is not
intended to penalize “indirect” conduct by an employer. The employer would be denied
due process if penalties were applied in connection with a termination which only
qualifies as such under a legal doctrine. Plaintiff has not cited a single case where the
wage payment provisions of the Labor have been applied to a constructive discharge.
The Labor Code provisions were not intended to apply retroactively, i.e., after a
resignation is converted by operation of law into a termination. The unfairness of such
an application is emphasized by plaintiff’s failure to allege a single date on which she
believes her employment ended (either June 17, 2013 or June 25, 2013).

Answer to remaining counts to be filed and served on or before June 19, 2014.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 6 2013-00150903-CU-WT

Alicia Cockrum vs. Kaiser Foundation Health Plan, Inc.

Nature of Proceeding: Motion to Strike

Filed By: McNamara, David R.
Filed By: McNamara, David R.

Defendant’s Motion to Strike Punitive Damages, at paragraphs 83, 91, 98, 112, and
114(c) is denied.

Plaintiff alleges claims arising out of her employment as a psychologist with TPMG.
Plaintiff alleges a claim against defendant Sharma, plaintiff’s former manager, is for
intentional infliction of emotional distress. The Court previously overruled the demurrer
to that cause of action. (See minute order February 25, 2014.) Plaintiff alleges that
she was constructively terminated on June 25, 2013. Plaintiff had earlier made
complaints that Kaiser was not providing timely mental health appointments to patients
seeking appointments, that Kaiser was not providing protection from violent patients,
and that she was retaliated against for advocating patient care. Plaintiff alleges she
was effectively suspended from December 14, 2012 through January 14, 2013 after an
incident in which plaintiff accessed the medical records of a patient’s relative and was
thereafter subject to an investigation for violating HIPPA. Plaintiff alleges that she was
told her position with the South Sacramento Region was eliminated in April 2013.
Plaintiff went
out on stress leave May 1, 2013 due to alleged retaliatory actions by defendants.
Plaintiff was on leave until August 1, 2013. Plaintiff wrote a letter to Kaiser demanding
that all investigations be removed from her records, and stated that if defendant did not
cure the actions plaintiff would consider herself to be
terminated on June 17, 2014. Plaintiff received a response from Kaiser on June 25,
2013, and considered herself terminated on that date.

In ruling on the Original Complaint, the Court had tentatively sustained the demurrer to
the cause of action for intentional infliction of emotional distress. On submitted matter,
the Court overruled the demurrer to that cause of action. Given that the Court has
found the allegations sufficient to state a cause of action for intentional infliction of
emotional distress and the related retaliation claim, there is now a sufficient basis for
pleading purposes to allege a claim for punitive damages.

Answer to be filed on or before June 19, 2014.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.