Petition for Writ of Certiorari — Uribe v. Southern California Permanente Medical Group
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991182 JAN 1 8 2000
OFFICE OF THE CLERK
No.
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1999
LIZABETH URIBE,
Petitioner
vs.
SOUTHERN CALIFORNIA PERMANENTE MEDICAL
GROUP, a partnership; KAISER FOUNDATION
HEALTH PLAN, INC., a Corporation, KATHY SMITH,
an individual, JEFFREY SHULKIN, an individual,
RAMAH BALIBER, an individual, CAROLYN E.
GOMEZ, an individual and DOES 1 through 20
inclusive,
Respondents
On a Writ of Certiorari to
The Court of Appeal of the State of California for the
Second Appellate District, Division Five
PETITION FOR WRIT OF CERTIORARI
LAW OFFICES OF JEROME ZAMOS
Jerome Zamos Cal.St.Bar 36246
Attorneys for Petitioner
21550 Oxnard Street, Suite 300
Woodland Hills, California 91367
[818] 348-7151 (Telephone)
{818] 348-6095 (Telefax) a
“4
Lorraine Mitchell Legal Briefs
732 E. WASHINGTON BOULEVARD
LOS ANGELES, CALIFORNIA 90021-3088
(213) 747-5631 © FAX: (213) 747-5843
CONTENTS REPRODUCED FROM FURNISHED PRETYPED COPY.
QUESTIONS PRESENTED
The instant PETITION raises the following questions
of law which require review by this Court:
(1)
Can state courts give greater preclusive effect toa
judgment or order than the Federal Court which made
and entered the judgment or order in the first instance?
(2)
is a litigant in an action brought in a Federal Court
obligated to amend or supplement his or her pleadings
during the action’s pendency in the federal courts in
order to preserve claims based upon facts which occur
after the filing of his or her complaint in the federal
courts?
(3)
Can state courts deny a party to an action pending in the
federal courts the right to pursue claims under state law
which arise during the pendency of his or her federal
action?
CONSTITUTIONAL AND STATUTORY PROVISIONS'
The issues discussed in this PETITION arise under
the following laws, statutes, and constitutional provisions:
THE NSTITUTION OF THE
UNITED STATES OF AMERICA
ARTICLE III §§ 1 and 2 clause 1
Section 1 of ARTICLE IV
Section 2 of ARTICLE IV
ARTICLE VI clause 2
The Fifth Amendment
Section 1 of The Fourteenth Amendment
THE UNITED STATE DE
28 U.S.C § 1257
28 U.S.C. § 1738
29 U.S.C. § 185
: The constitutional and statutory provisions involved in the
case are Set out in full in APPENDIX "J".
ii
emer aN
42 U.S.C. § 12101
42 U.S.C. § 12102(2)(A)
THE FEDERAL RULES OF CIVIL PROCEDURE
Rule 15(d)
CALIFORNIA CODES
Government Code §§ 12926(k) through 12926 (n)
Government Code § 12940
Government Code § 12965
TABLE OF CONTENTS
QUESTIONS PRESENTED ..........++-00--
CONSTITUTIONAL AND
STATUTORY PROVISIONS ..........-.-.
TABLE OF CONTENTS ....-ccccccccccecs
APPENDIXES INCLUDED IN PETITION .......
TABLE OF AUTHORITIES ........-scecece
PETITION FOR WRIT OF CERTIORARI ......
THE STATE COURT OPINION —
UPON WHICH CERTIORARI IS SOUGHT
ORDER & JUDGMENT IN PETITIONER’S
FEDERAL LITIGATION FILED
ON JANUARY 21, 1997 2c cciccerecceccceccs
JURISDICTION .wvcccccccvesescvccsvces
BALANCING THE JURISDICTION OF STATE
AND FEDERAL COURTS UNDER
THE SUPREMACY CLAUSE CONTAINED
IN ARTICLE VE ow ccc ccccccccnsccces
iv
MANNER IN WHICH FEDERAL QUESTIONS WERE
FIRST RAISED IN THE STATE COURT ... 10
PETITIONER’S STATUS AS A DISABLED
PERSON ENTITLED TO PROTECTION ... 13
REASONS FOR GRANTING WRIT ........... 14
FACTUAL BACKGROUND OF
CLAIMS POR RELIGF oo éosccccicccus. 15
THE DENIAL OF PETITIONER’S
CONSTITUTIONAL RIGHTS ........... 19
THE UNRESOLVED CONFLICT BETWEEN
STATE AND FEDERAL LAW .......... 21
THIS COURT IS THE ONLY TRIBUNAL
WHICH IS CAPABLE OF
RENDERING A DEFINITIVE
DECISION ON THE ISSUES
RAISED BY THIS PETITION ........... 22
I. A STATE COURT SHOULD NOT BE
ALLOWED [0 GIVE GREATER
PRECLUSIVE EFFECT TO A
JUDGMENT OR ORDER THAN
THE FEDERAL COURT WHICH
sexitheiacrsce Aah SEGRE CEPOL PETE EOD 23
Hil. A LITIGANT IN A FEDERAL
COURT IS NOT OBLIGATED
TO AMEND OR SUPPLEMENT
HIS OR HER PLEADINGS TO
INCLUDE CLAIMS BASED UPON
EVENTS WHICH TAKE PLACE
AFTER THE FILING OF HIS
OR HER FEDERAL PLEADING ..... 27
il. A STATE COURT CANNOT DENY
A PARTY TO A FEDERAL ACTION
THE OPPORTUNITY TO LITIGATE
CLAIMS WHICH ARISE UNDER
STATE LAW DURING THE FEDERAL
ACTION’S PENDENCY ........... 29
CONCLUSION 2... cccccscccccccsesceces 30
vi
APPENDIXES INCLUDED IN PETITION
APPENDIX "A"
OPINION OF THE COURT OF APPEAL
FOR THE SECOND APPELLATE DISTRICT
OF THE STATE OF CALIFORNIA
ctyleseaecn inhi d te, PEERS CTT Ee eee APX-1
APPENDIX "B"
ORDER GRANTING DEFENDANTS’ MOTION
TO CONFIRM ARBITRATION AWARD
ENTERED IN THE UNITED STATES
DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA ON
PO PIE ain dig. ¢ Wino i oie os kw APX-13
APPENDIX "C"
FEDERAL ARBITRATOR'S OPINION AND
AWARD CONFIRMED BY ORDER ENTERED
IN THE UNITED STATES DISTRICT
COURT FOR THE CENTRAL DISTRICT
ER RRaPEA ys 5b odes ava ven. APX-26
vii
APPENDIX "D"
PETITIONER’S COMPLAINT FILED IN
THE SUPERIOR COURT OF THE STATE
OF CALIFORNIA FOR THE COUNTY OF
LOS ANGELES ON DECEMBER 31, 1997 APX-45
APPENDIX "E"
PETITIONER’S COMPLAINT FILED IN
THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF
CALIFORNIA ON JANUARY 21, 1997 .. APX-56
Ce Lee Co he eR te AO Cet) ner et re eee 4
APPENDIX "F"
SUPERIOR COURT ORDER ENTERED
OCTOBER 7, 1998 DISMISSING
PETITIONER’S COMPLAINT BASED UPON
THE DOCTRINE OF RES JUDICATA .. APX-66
APPENDIX "G"
COURT OF APPEAL, SECOND APPELLATE
DISTRICT OF THE STATE OF CALIFORNIA
DIVISION FIVE, ORDER AUGUST 24, 1999
DENYING PETITION FOR REHEARING APX-68
viii
APPENDIX "H"
CALIFORNIA SUPREME COURT ORDER
ENTERED OCTOBER 20, 1999 DENYING
PETITION FOR REVIEW
eee s Pe APX-69
APPENDIX "I"
REMITTITUR TO THE LOS ANGELES
COUNTY SUPERIOR COURT ISSUED
NOVEMBER 22, 1999 ............. APX-70
APPENDIX "J"
CONSTITUTIONAL PROVISIONS, STATUTES &
APPLICABLE RULES OF COURT .... APX-7]
ix
TABLE OF AUTHORITIES
CONSTITUTIONAL PROVISIONS:
The Constitution of the United
States of America:
ARTICLE HIG) wc ccc ccccecvswe ii, 8
ARTICLE in G2 cvcsce eta caeees ii, 8
Article IV § 2. ccc ccc creme vecees 26
ARTICLE IV§2 ..... 9, 26, 29, APX-72
ARTICLE VE occ cccaicasivnecceecs 11
ARTICLE VI clause 2
The Fifth Amendment
ooo 2, 9, Il, 14, 16,
18, 21, 26
The Fourteenth Amendment § 1 ... ii, 9, 16,
CODES & STATES:
The United States Code:
9US.C.§9 .......
9U.S.C.§ 13 ......
28 U.S.C. § 1257 ....
28 U.S.C. § 1257(a) ..
18-20, 27, 30, APX-72
MUR AWM ii, 26
MUS 2 oo ii, 6, 7, 15,
18, APX-14, APX-40
42 U.S.C. § 12101 et seq. .... iii, 6, 14, 15,
APX-34, APX-56, APX-58
USC. §12101 ...... APX-14, APX-73
42 U.S.C. § 12101(a)(7). ............ 13
42 U.S.C. § 12101@)Q) ............ 13
42 U.S.C. § 12102(2) ........ 13, APX-34
MUSE SUMS .. 22.25... APX-34
42 U.S.C. § 12111(9)(B) .. APX-38, APX-40
42 U.S.C. § 12111(10)(B) ....... APX-39
WO MOe A APX-62
42 U.S.C. § 12112(a) .... APX-34, APX-61
42 U.S.C. § 12112 (b)(5)(A) .... .. APX-38
California Codes:
Government Code:
§ 12900 et seq. 1, 4, 14, 21, 29, APX-49
BI i ecsa. iii, 13, 14
eee iii, APX-47, APX-76
imho, ....6.. 5... APX-17
fey ree APX-49
xi
§ 12940(f) .. ec eee e even APX-49
§ 12940(g) ... eee APX 5, APX-49
§ 12940(h)(1) «1... APX 5, APX-49
§ 12940(I) .. 2... owes APX 5, APX-50
§ 12940(k) ..... 4, 14, 20, APX-50,
APX-51, APX-52
GATES ccc cnvereerseraves iii
§ 12965(b) ......- APX-54, APX-55
RULES OF PRACTICE:
Rules of the Supreme Court of the United States
NE ROUND 0 6-0 0c b¥5 bade vad bees 8
Rules 100) . cc ccc a reveseceveess 8
WS Do vk va cea ee neal 1,8 : .
PO SLs cc cere aes nae ee eee 5
ee SOO ew ee h cece eG sakes oe I
RM SRD ice koe hoe whee eae l
OR Be Cae ct cha ivkea eens iv
The Federal Rules of Civil Procedure:
Rule 15(d) ......6-. iii, 7, 9, 16, 18, 19,
24, 25, 27, 28,
xii
4
:
CASES:
Acuna v. Regents of University of California
56 Cal.App. 639 (1997) .......... APX-9
Agarwal v. Johnson 25 Cal.3d. 932 (1979) . APX-8
Alexander v. Gardner-Denver Co.
ee oe | eae APX-22
Bazemore v. Friday
478 U.S. 385, 106 S.Ct. 3000 (1986) .... 25
Booth v. Hume Pub., Inc.
902 F.2d 925 (11th Cir. 1990) .... APX-20
City of Kenosha v. Bruno
412 U.S. 507, 93 S.Ct. 2222 (1973) ..... 2
Clark v. Bear Stearns & Co., Inc.
966 F.2d 1318 (9th Cir.1992) ... 10, APX-7
Clark v. Yosemite Community
College District 785 F.2d 781 (9th Cir. 1986) 3
Duffield v. Robertson
foe ee
1998 WL 227469 (9th Cir1998) .... APX-23
Eichman vy. Fotomat Corporation
147 Cal.App.3d 1170 (1983) APX-8, APX-10
xiii
Gamble v. General Foods Corp.
229 Cal.App.3d. 893 (1991) . APX-8, APX-9
Government Employees Ins. Co. v. Civil
133 F.3d 1220 (9th Cir.1998 en banc) APX-24
Heise v. Genuine Parts
4 AD Cases 1551 (D.C. Minn. 1995) APX-35
Johnson v. American Airlines Inc
157 Cal.App.3d 427 (1984) ....... APX-9
Koch v. Hankins
223 Cal.App.3d 1599 (1990) ...... APX-lIl
Kremer v.Chemical Construction Corp.
456 U.S. 461, 102 S.Ct. 1883 (1982) .... 2
Los Angeles Branch NAACP v. Los Angeles Unified
Sch. Dist., 750 F.2d 731 (9th Cir. 1984)
cert. denied, 474 U.S. 919,
5G6 S. C2. 267 QIGRS) os vce we tuus 25
Louisville & Nashville Ry. Co. v. Mottley
211 U.S. 149, 29 S.Ct. 42 (1908) ....... 2
Marrese v. American Academy of Orthopedic
Surgeons 470 U.S. 373,
SUS BAR. TRET Ciee o os kb 0 ce 00s 26
xiv
nee ees eee
—
5 ght
See ee pee ee
Mattson v. City of Costa Mesa
106 Cal.App.3d. 441 (1980) . APX-8, APX-11
Metropolitan Life Insurance Company v.
Christ 979 F.2d. 575 (7th Cir. 1992) .... 26
Migra v. Warren City School District Board
of Education 465 U.S. 75
Caciatheg cS, ok Ce eae 3
Montana v. United States
440 U.S. 147, 99 S. Ct. 970 CEST) cab a 23
Nealon vs. Stone 958 F.2d 584 (4th Cir. 1991) .. 25
Pattison v. Meijer, Inc.
4 AD Cases 997 (W.D.Mich. 1995) . APX-39
Preblich v. Battley 181 F.3d. 1048 (9th Cir. 1999) 2
Ridgeway v. Ridgeway
454 U.S. 46, 102 S.Ct. 49 (1981) ....... 26
S. E. C. v. First Jersey Securities
101 F. 3d 1450 (2d Cir. 1996) .3, 10, APX-7
Slater v. Blackwood
1S Cal.3d 791 (1975), 795.) ...... APX-10
Webb v. Indiana National Bank
931 F.2d 434, (7th Cir. MN 6 Ptista Sets 25
TEXTS & ARTICLES
Beard, THE ROLE OF RES JUDICATA IN
RECOGNIZING UNITARY STATUS AND
TERMINATING DESEGREGATION
LITIGATION: A RESPONSE TO THE
STRUCTURAL INJUNCTION 49 La. L. Rev.
1239, 1311 (uly 1, 9B) ow wc cwcccsccves 24
The EEOC Technical Assistance Manual
9 £046 iv vévieee cate eee APX-37
Restatement (Second) of Judgments
G2) GER cheb e tee ee te eneeve 23
4 Witkin, Cal. Procedure (3d ed. 1985)
Pleading ,§ 23 pp.66-67 ......... APX-8
xvi
No.
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1999
LIZABETH URIBE,
Petitioner
VS.
SOUTHERN CALIFORNIA PERMANENTE MEDICAL
GROUP, a partnership; KAISER FOUNDATION
HEALTH PLAN, INC., a Corporation, KATHY SMITH,
an individual, JEFFREY SHULKIN, an individual,
RAMAH BALIBER, an individual, CAROLYN E.
GOMEZ, an individual and DOES 1 through 20
inclusive,
Respondents?
*. All parties to these proceedings are listed in the caption of
the case as required under Rule 24 1.(b) of the Rules of the Supreme
Court of the United States. When the term "RESPONDENTS" is
used in the body of this PETITION it refers to all of the
DEFENDANTS in the state court litigation, when the term
RESPONDENT is used singularly it refers to the emploving entity
“SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP"
(the principal DEFENDANT in both PETITIONER'S state and
federal litigation).
PETITION FOR WRIT OF CERTIORARI
COMES NOW PETITIONER LIZABETH URIBE
and prays that a Writ of Certiorari be issued pursuant to
Rule 10(c) of the Rules of the Supreme Court of the United
States to the California Court of Appeal for the Second
Appellate District, Division 5 (hereinafter "THE
CALIFORNIA COURT OF APPEAL") in order to review
the decision rendered by that Court on August 9, 1999
(APPENDIX "A"’) denying PETITIONER’S appeal from
the order (APPENDIX "F") and judgment‘ dismissing the
complaint which she filed in the Superior Court of the State
of California for the County of Los Angeles on December
31, 1997 under the provisions of the disability provisions of
California’s Fair Employment & Housing Act (California
Government Code §§ 12900 et seq. (a copy of which is
included in APPENDIX "D" and hereinafter referred to as
“STATE COMPLAINT").
This Petition is filed on the grounds that the decision
of THE CALIFORNIA COURT OF APPEAL (APPENDIX
>. In order to conform with the page size requirements of Rule
33(c) of the Rules of the Supreme Court of the United States all
documents reproduced in the APPENDIXES have been optically
scanned and reformatted so that they comply with the font
requirements set forth in Rule 33(b) of the Rules of the Supreme
Court of the United States.
*. A judgment was entered on December 30, 1998 pursuant to
the terms of the order directing the dismissal of PETITIONER'S
STATE COMPLAINT (APPENDIX "F").
. Ce a ee a
"A") concerning the res judicata effect of the order by
United States District Judge LOURDES G. BAIRD entered
in the United States District Court for the Central District
of California on June 26, 1998 (APPENDIX "B" and
hereinafter referred to as "THE FEDERAL COURT
ORDER")* is inconsistent and in direct conflict with
decisions of Federal Circuit Courts which the California
Court refused to consider in violation of ARTICLE VI
clause 2 of the Constitution of the United States of
America‘.
In upholding the dismissal of PETITIONER’S STATE
COMPLAINT THE CALIFORNIA COURT OF APPEAL
held that even though the district court’s June 26, 1998
decision (hereinafter "THE FEDERAL ORDER") would not
have precluded the filing of her post filing state claims
under federal common law {see Kremer v. Chemical
*. A judgment was entered in the United States District Court
for the Central District of California on June 26, 1998 in accordance
with the provisions of THE FEDERAL ORDER.
*. Because the effect of a federal order or judgment upon a
litigant is a matter of federal law, a state court does not have
jurisdiction under Article V1 clause 2 of the Constitution of the
United States to ignore federal law when determining the effect of the
order or judgment. As this Court held in Louisville & Nashville Ry.
Co. v. Mottley 211 U.S. 149, 151-152, 29 S.Ct. 42, 43 (1908) it has
a duty to make sure that the limits which are imposed upon the
jurisdiction of lower courts are not exceeded. This independent duty
to review the decision of the lower courts arises even when not raised
by the parties. [see also City of Kenosha v. Bruno 412 U.S. 507, S11,
93 S.Ct. 2222, 2225 (1973)(reversed on other grounds); Preblich v.
Battley 181 F.3d. 1048, 1054 (9th Cir. 1999)]
2
Construction Corp. 456 U.S. 461, 481-482, 102 S.Ct. 1883,
1898 (1982); Migra v. Warren City School District Board of
Education 465 U.S. 75, 104 S.Ct. 892, 897-98, 79 L.Ed.2d
56 (1984); Clark v. Yosemite Community College District
785 F.2d 781, 783 (9th Cir. 1986) and Securities and
Exchange Commission v. First Jersey Securities, Inc. 101
F.3d. 1450 (Second Cir. 1996)], state courts in California
may apply a different standard to the determination of what
constituted a cause of action and therefore are not bound to
follow federal law in determining the preclusive effect of a
judgment or order entered in a federal court (see
APPENDIX "A" pages APX 8 through APX 9 inclusive).
THE STATE COURT OPINION UPON WHICH
CERTIORARI IS SOUGHT
The decision of THE CALIFORNIA COURT OF
APPEAL (APPENDIX "A") for which review by certiorari
is sought upheld the dismissal (APPENDIX "F") of the
complaint filed by PETITIONER in the state court
(APPENDIX "D" and hereinafter referred to as "STATE
COMPLAINT") based upon the res judicata and preclusive
effect of THE FEDERAL ORDER (APPENDIX "B").
PETITIONER’S STATE COMPLAINT (APPENDIX
"D") was filed under California’s Fair Employment and
Housing Act [California Government Code § 12900 et seq.
(specifically Government Code § 12940(k)) which is
hereinafter collectively referred to as "FEHA"] as a result
of conduct which occurred after the January 21, 1997 filing
of PETITIONER’S FEDERAL COMPLAINT.
PETITIONER’S STATE COMPLAINT (APPENDIX
“D") was filed on December 31, 1997 [based upon a right to
sue letter issued by the California Department of Fair
Employment and Housing (hereinafter referred to as
"DFEH") on November 20, 1997 pursuant to California
Government Code § 12965(b)].
PETITIONER’S STATE COMPLAINT sought relief
under FEHA as a result of conduct which occurred after the
January 21, 1997 filing of her complaint in the United
States District Court for the Central District of California
(hereinafter referred to as "FEDERAL COMPLAINT" and
included as APPENDIX "E"), and particularly conduct
occurring in 1997 which RESPONDENTS used to justify
their thirty (30) day suspension of PETITIONER which
occurred in October and November of 1997.
The CALIFORNIA COURT OF APPEAL’S
unpublished opinion [APPENDIX "A"] was filed on August
9, 1999. PETITIONER filed a petition for rehearing to
THE CALIFORNIA COURT OF APPEAL based upon the
decision’s rejection of federal law (a position which neither
party had raised or discussed in either their briefs or during
the course of oral arguments). PETITIONER’S petition for
rehearing was timely filed on August 23, 1999 and denied
without comment by order dated August 24, 1999
[APPENDIX "G"]. On September 10, 1999 PETITIONER
petitioned THE CALIFORNIA SUPREME COURT for
Review of THE CALIFORNIA COURT OF APPEAL’S
August 9, 1999 decision. PETITIONER’S Petition for
Review by the California Supreme Court was denied by
ordered entered on October 20, 1999 [included in
APPENDIX “H"y’.
THE CALIFORNIA COURT OF APPEAL issued
remittitur on December 22, 1999 [APPENDIX "I"].
’, PETITIONER has calculated the ninety (90) day period
referred to in Rule 13.1. of the Rules of the Supreme Court of the
United States from the October 20, 1999 denial of review by the
California Supreme Court. Based upon that calculation the last day
for filing this PETITION is January 18, 2000.
ik ti nia
ORDER & JUDGMENT IN PETITIONER'S
FEDERAL LITIGATION FILED
ON JANUARY 21, 1997
On January 21, 1997 PETITIONER (a wheelchair-
bound licensed cytotechnologist*) filed her FEDERAL
COMPLAINT (through union counsel) seeking relief under
the Americans With Disabilities Act (42 U.S.C. § 12101 et
seq. hereinafter referred to as "THE ADA") and the Labor
Management Relations Act of 1947 (29 U.S.C. § 185
hereinafter referred to as "LMRA") through union counsel.
After the January 21, 1997 filing of PETITIONER’S
FEDERAL COMPLAINT her union counsel entered into a
stipulation with counsel for her employer (who were joined
as DEFENDANTS in her STATE COMPLAINT and
designated as RESPONDENTS herein) under which all of
the claims raised in her FEDERAL COMPLAINT were
referred to arbitration under a collective bargaining
agreement between her union and employers. The
arbitration hearing in the federal litigation brought by her
union occurred on October 27 and 31, 1997 (APPENDIX
"C" page APX. 27).
*. As the arbitrator found in the opinion confirmed by the
District Court:
Despite her Physical handicap, [PETITIONER] remains fully
able, with or without reasonable accommodation, to perform
all the essential functions of her position as she has over the
past 18 years. (APPENDIX "C" page APX. 35)
6
j
i
'
'
i
i
On March 9, 1999 the arbitrator in PETITIONER’S
federal action rendered an opinion and made an award
under the provisions of LMRA and the collective bargaining
agreement (APPENDIX "C").
On June 26, 1998 DISTRICT JUDGE BAIRD entered
an order in the United States District Court for the Central
District of California confirming the Arbitrator’s March 9,
1998 award and ordered judgment entered in conformity
with it (APPENDIX "B" which is hereinafter referred to as
"THE FEDERAL ORDER"). Because DISTRICT JUDGE
BAIRD determined that the confirmation of the Arbitrator’s
award made the closing of the federal litigation appropriate,
she held that PETITIONER could not amend her
FEDERAL COMPLAINT to include claims which arose
during the pendency of her federal action, although she
observed in footnote 5 of her order (APPENDIX "B" page
APX 25) that:
. . [P]etitioner could, of course, file a new
complaint alleging any wrongdoing not covered
by the arbitration’.
*. A judgment, incorporating the terms of arbitrator's award,
was entered the same day. An appeal from the portion of the order
entered on June 26, 1998 which denied leave to amend was not
appropriate because DISTRICT JUDGE BAIRD’S decision not to
expand the issues was within her discretion under Rule 15(d) of the
Federal Rules of Civil Procedure. Under the circumstances the
correct procedure for PETITIONER to pursue in connection with her
post filing claims was to either file a new complaint in the district
court, or continue with the state court litigation which is the subject
matter of this petition.
JURISDICTION
This Court’s jurisdiction is based upon 28 U.S.C §
1257 and Rules 10(b) and 10(c) of the Rules of the Supreme
Court of the United States as a result of the decision of the
state courts of California dismissing her STATE
COMPLAINT based upon PETITIONER’s failure to
adjudicate claims based upon events which occurred after
she had filed an earlier FEDERAL COMPLAINT in the
United States District Court for the Central District of
California.
This Court also has independent jurisdiction under
sections | and 2 of ARTICLE III of the Constitution of the
United States of America to determine whether state court
judges have exceeded the limits imposed upon them under
ARTICLE VI clause 2 of the Constitution of the United
States of America. (see discussion footnote 6 supra).
BALANCING THE JURISDICTION OF STATE AND
FEDERAL COURTS UNDER THE SUPREMACY
CLAUSE CONTAINED IN ARTICLE VI
The issues raised in this PETITION arise because [as
set forth in footnote 5 to DISTRICT JUDCE BAIRD’S
order entered on June 26, 1998 (APPENDIX "B" page APX.
25)] while PETITIONER had the right to pursue claims
which arose after the filing of her FEDERAL COMPLAINT
in the federal courts, the California Superior Court order
dismissing her STATE COMPLAINT and the August 9,
1999 Decision of THE CALIFORNIA COURT OF APPEAL
held she did not have the right to pursue those claims in the
courts of California because of the res judicata effect of
THE FEDERAL ORDER under California law.
PETITIONER maintains the position that a state
court cannot constitutionally abridge (under ARTICLE IV
§ 2 and section 1 of the Fourteenth Amendment) the rights
of any citizen of the United States who fails to take actions
in a federal court which he or she is not obligated to pursue
under federal law, or impose sanctions against a federal
litigant making appropriate elections under the Federal
Rules of Civil Procedure [(Rule 15(d)]}.
Under ARTICLE IV § 2, ARTICLE VI clause 2 and
the equal protection provisions of section 1 of the
Fourteenth Amendment to the Constitution of the United
States of America a state court does not have the
jurisdiction to redefine the effect of a discretionary pleading
motion under the provisions of the federal law.
MANNER IN WHICH FEDERAL QUESTIONS WERE
FIRST RAISED IN THE STATE COURT
The issue of PETITIONER’S right to pursue claims
based upon events which took place after her January 21,
1997 filing in the Federal Courts was first raised in response
to RESPONDENTS’ motion to dismiss her STATE
COMPLAINT which was filed in the Superior Court of the
State of California for the County of Los Angeles.
RESPONDENTS’ motion, based upon the res judicata and
preclusive effect of THE FEDERAL ORDER was granted
following a hearing held in the Superior Court on
September 24, 1998 (APPENDIX "F")"*.
The dismissal of PETITIONER’S STATE
COMPLAINT was appealed to THE CALIFORNIA
COURT OF APPEAL which upheld the Superior Court’s
dismissal in its August 9, 1999 decision (APPENDIX "A").
In briefs filed by PETITIONER in opposition to
RESPONDENTS’ motion and in support of her appeal she
argued [citing S. E. C. v. First Jersey Securities, Inc. 101
F. 3d 1450 (2d Cir. 1996) and Clark v. Bear Stearns & Co.,
Inc. 966 F. 2d 1318 (9th Cir. 1992)] that res judicata could
not be applied under federal common law to give THE
FEDERAL ORDER (and the judgment which followed) a
preciusive effect on claims based upon events which
occurred after the filing of here FEDERAL COMPLAINT.
'*, Judgment was entered pursuant to the terms of the order on
December 30, 1998.
10
In response to PETITIONER’S federal citations THE
CALIFORNIA COURT OF APPEAL observed:
[PETITIONER] relies on federal cases which
hold that where a defendant engages in
actionable conduct after a lawsuit is filed, a
plaintiff may, but need not, file a supplemental
complaint, and also hold that the doctrine of
res judicata will not be used to punish a
plaintiff who does not file such a complaint.
(citations omitted)
Those cases are of no assistance to us. The cited
holding is based on the federal courts’ use of a trans-
actional analysis for defining "cause of action" for
purposes of res judicata.
THE CALIFORNIA COURT OF APPEAL decision
violates ARTICLE VI clause 2 of the Constitution of the
United States of America which establishes the Laws of the
United States as the supreme law of the land and provides:
. . the Judges of every state shail be bound
thereby, any Thing in the Constitution or Laws
of any state to the Contrary notwithstanding".
" The language of Article VI appears to create a jurisdictional
impediment to the rejection of federal law by a state court in a
situation in which federal rule making is appropriate. (cf California
Court of Appeal decision in APPENDIX "A" page APX 7 through
APX 8). The effect of that restriction on a state court’s jurisdiction
is to give this Court jurisdiction to enforce the constitutional limit.
PETITIONER initially raised her equal protection
argument under the Fourteenth Amendment in her REPLY
BRIEF filed with THE CALIFORNIA COURT OF
APPEAL on February 16, 1999. PETITIONER’S Due
Process argument was rejected by THE CALIFORNIA
COURT OF APPEAL in its August 9, 1999 decision. As set
forth in the concluding paragraph of THE COURT OF
APPEAL’S August 9, 1999 decision the Court saw:
- no violation of constitutional guarantees of
equal protection in the application of principles of res
judicata to this case. (see APPENDIX "A" at pages
APX. 11-12 inclusive)
The choice of law issues relating to PETITIONER'S
argument that federal law should determine the res
judicata effect of a federal judgment in a state court
was not raised until THE CALIFORNIA COURT
APPEAL rejected any reference to federal law in its
August 9, 1999 decision (APPENDIX "A" at page
APX. 7). In response to the CALIFORNIA COURT
OF APPEAL’S rejection of federal case law on the
choice of law issue (which neither party had been given
a chance to fully brief) PETITIONER filed a request
for rehearing on August 23, 1999, which the Court
summarily denied on August 24, 1999 (see APPENDIX
"G").
PETITIONER’S STATUS AS A DISABLED
PERSON ENTITLED TO PROTECTION
As set forth in THE ADA:
[I]ndividuals with disabilities are a discrete and
insular minority who have been faced with
restrictions and limitations, subjected to a history
of purposeful unequal treatment, and relegated |
to a position of political powerlessness in our 7
society, based on characteristics that are beyond
the control of such individuals and resulting from
stereotypic assumptions not truly indicative of
the individual ability of such individuals to
participate in, and contribute to, society; [42
U.S.C. § 12101(a)(7)] (cf footnote 8 supra)
As set forth in THE ADA one of the purposes
Congress intended to achieve was:
{T]o provide clear, strong, consistent,
enforceable standards addressing discrimination
against individuals with disabilities (42 U.S.C. §
12101(b)(2)).
It is undisputed that PETITIONER is a disabled
person under the definitions of "disability" contained
in both FEHA [Government Code § 12926(k)] and
THE ADA [42 U.S.C. § 12102(2)] and competent to
perform the functions of a cytotechnologist (see
APPENDIX "C" at page APX 35).
13
REASONS FOR GRANTING WRIT
This PETITION should be granted because it
raises important issues concerning the rights of federal
litigants to protection under state law (including the
disability provisions of FEHA) while they are pursuing
claims under federal law in the Federal Courts.
The importance of the issues raised by this
PETITION is highlighted by the fact that the rights
which PETITIONER is seeking to protect in the courts
of California were defeated solely because THE
CALIFORNIA COURT OF APPEAL refused to given
any consideration to federal law in violation of
ARTICLE VI clause 2. In doing so THE
CALIFORNIA COURT OF APPEAL denied
PETITIONER the benefits of the disability provisions
of FEHA (Government Code § 12940(k)] during the
pendency of a suit brought on her behalf in the federal
courts by her union under THE ADA.
The public policies related to the protection of
competent disabled workers is an important part of a
congressional mandate contained in THE ADA. Those
policies (embodied in 42 U.S.C. § 12101) recognize the
need to provide competent disabled persons (such as
PETITIONER) with continuing protection. A
resolution of the issues raised by this PETITION is
therefore necessary in order to assure disabled persons
that their rights will not abridged while pursuing
claims in the federal courts.
14
FACTUAL BACKGROUND OF CLAIMS FOR RELIEF
PETITIONER filed her FEDERAL COMPLAINT on
January 21, 1997 seeking relief under THE ADA and THE
LMRA (APPENDIX "E").
The FEDERAL COMPLAINT, which was filed on
behalf of PETITIONER and her union (see APPENDIX
"E") did not seek relief under state law or damages for
anything other than lost wages under a collective bargain
agreement between her Union and her employer”.
After the filing of the FEDERAL COMPLAINT
PETITIONER has alleged that RESPONDENTS continued
to subject her to a pattern of discriminatory conduct which
culminated with her suspension in October and November
of 1997 from the position she held as a cytotechnologist in
RESPONDENTS’ North Hollywood Laboratory”.
Based upon RESPONDENTS’ post filing conduct
(which included a punitive suspension in October and
November of 1997) PETITIONER filed a new complaint of
Discrimination against RESPONDENTS with the California
“8. The resolution of PETITIONER'S claims in the FEDERAL
COMPLAINT through arbitration made no provisions for any relief
beyond that provided for under the provisions of THE LMRA and
the collective bargaining agreement between RESPONDENTS and
PETITIONER'S union. (see APPENDIX "C").
'. PETITIONER’S competency and ability to perform her
professional functions has never been an issue.
15
Department of Fair Employment and Housing (hereinafter
referred to as "DFEH") in late November of 1997.
Following the issuance of a right to sue letter by DFEH
PETITIONER filed her STATE COMPLAINT in the
Superior Court of the State of California for the County of
Los Angeles on December 31, 1997 (APPENDIX "D").
As District Judge BAIRD subsequently observed in
her order filed on June 26, 1998 the STATE COMPLAINT
(which sought only relief under California law (and made
no claims under either the ADA or LMRA) differed in four
regards from the FEDERAL COMPLAINT:
1) it names several individual Kaiser employees as
defendants in addition to Kaiser; 2) it is based
exclusively on FEHA, rather than on the ADA and
LMRA; 3) it alleges harassment and retaliation as
weil as discrimination; and 4) it alleges certain
conduct occurring later in time than the federal
Complaint, such as a thirty day suspension in October
and November of 1997 (emphasis added)"
*, This is the basis for PETITIONER’S argument
that res judicata cannot be constitutionally applied (under
ARTICLE VI clause 2 and section 1 of the Fourteenth
Amendment of the Constitution of the United States of
America) by a state court to bar claims which could not
have been raised in her FEDERAL COMPLAINT at the
time it was filed, and which a Federal District Judge
refused to allow to be included in her federal litigation in
response to a motion under Rule 15(d) of the Federal Rules
of Civil Procedure.
16
On March 9, 1999 the arbitrator who had conducted
the arbitration of the issues raised in the FEDERAL
COMPLAINT released his opinion and order in which he
determined:
The Employer [RESPONDENTS] has been violating
the Americans with Disabilities Act ("ADA") by not
allowing the grievant [PETITIONER] to have a
modified schedule from 11:00 a.m. to 7:30 p.m. (see
APPENDIX "C")"
As the remedies for the violations of the ADA the
Arbitrator determined that PETITIONER would:
1) Be allowed to work a modified schedule from
11:00 a.m. to 7:30 p.m.
2) Be paid her straight time wages and any
benefits lost between January 8, 1997 and May
1, 1997; and
3) Have the two NDAs dated January 7, 1997
removed from her file’*.
'S. On this same date the state trial court (over PETITIONER'S
objection) stayed further proceedings on THE STATE COMPLAINT
pending final resolution of THE FEDERAL COMPLAINT.
'*. The Arbitrator’s findings were ultimately incorporated into the
final judgment entered in APPELLANT'S federal action on June 26,
1998 after the entry of THE FEDERAL ORDER (APPENDIX "B").
17
The federal arbitrator (selected by PETITIONER’S
Union and Employer in accordance with THE LMRA and
a Collective Bargaining Agreement) made no attempt to
deal with any issues raised by PETITIONER under state
law, or determine whether PETITIONER was entitled to
recover non-contractual damages based upon events
occurring after the commencement of the federal action’.
Although PETITIONER was not allowed to raise
claims based upon RESPONDENTS’ post filing conduct in
the federal action because DISTRICT JUDGE BAIRD
denied her request to file an amended complaint under Rule
IS(d) of the Federal Rules of Civil Procedure; THE
CALIFORNIA COURT OF APPEAL in its decision
affirming the dismissal of PETITIONER’S STATE
COMPLAINT held any further adjudication of those claims
were barred because of what it referred to as California's
primary rights theory (which it distinguishes from what it
characterized as the federal "transactional" approach to the
res judicata issue)".
"’, Significantly RESPONDENTS’ had not given PETITIONER
a definitive description of the nature of the thirty (30) day suspension
which was the principal basis for her claims in PETITIONER'S
STATE COMPLAINT until after the arbitration hearing was
completed.
*. It is PETITIONER'S position that the distinction between the
“transactional” and "primary rights" theory relied upon by THE
CALIFORNIA COURT OF APPEAL in giving preclusive effect to
THE FEDERAL ORDER cannot overcome the constitutional
restrictions in ARTICLE VI clause 2 and section 1 of the Fourteenth
Amendment to the Constitution of the United States of America.
THE DENIAL OF PETITIONER’S CONSTITUTIONAL
RIGHTS
Because the factual basis for the claims which are
contained in THE STATE COMPLAINT could not be
raised at the time PETITIONER filed her FEDERAL
COMPLAINT on January 21, 1997 [and DISTRICT
JUDGE BAIRD’S exercise of her discretion under Rule
15(d)""] THE CALIFORNIA COURT OF APPEAL’S
decision which PETITIONER seeks to have this court
review denied her right to have her state law claims
adjudicated by any court (thus violating her due process
rights under both the Fifth Amendment” and section 1 of
the Fourteenth Amendment to the Constitution of the
United States of America).
The effect of dismissal of PETITIONER'S STATE
COMPLAINT (APPENDIX "F") and THE CALIFORNIA
COURT OF APPEAL’S August 9, 1999 decision
(APPENDIX "A") affirming its dismissal [based upon her
failure to supplement her FEDERAL COMPLAINT
pursuant to Rule 15(d) of the Federal Rules of Civil
'*, Which appeared to be reasonable because of the pendency of
a proceeding in the state court which should have provided
PETITIONER with an opportunity to have her post filing claims
adjudicated.
* A violation of the Fifth Amendment results if DISTRICT
JUDGE BAIRD’S denial of PETITIONER’S motion under Rule 15(d)
of the Federal Rules of Civil Procedure deprived her of the right to
have her post filing claims adjudicated.
19
Procedure (which allows, but does not require a District
Judge to expand the federal action to include post filing
claims)] is to deny her the continuing protection which other
disabled persons in California are entitled to under the
provisions of California Government Code § 12940(k)
because of her status as a federal litigant.
The importance of the constitutional issue in this case
is highlighted by the fact that (as noted by THE
CALIFORNIA COURT OF APPEAL in its unpublished
decision) there appear to be no reported decision under
either state or federal law which address the extent to which
the equal protection clause under section 1 of the
Fourteenth Amendment protects the rights of litigants
during the course of litigation filed as a result of a
continuing pattern of discrimination in violation of statutes
enacted for their continuing protection.
20
THE UNRESOLVED CONFLICT BETWEEN STATE
AND FEDERAL LAW
The decision of THE CALIFORNIA COURT OF
APPEAL to ignore federal law in determining the res
judicata effect of THE FEDERAL ORDER on
PETITIONER’S right to pursue her state court remedies
under FEHA raises an important question of law under
ARTICLE VI clause 2 of the Constitution of the United
States of America which only this court can resolve.
In the absence of such a decision on the issues raised
by this petition qualified disabled litigants whose rights are
subject to protection under both state and federal law will
have no way of knowing how their rights under state law
will be affected if they (for whatever reason) elect to
proceed in the federal courts and ‘are subject to the
discretionary authority of federal judges under the Federal
Rules of Civil Procedure.
21
. EARS ee
a
i
i
3
é
Oy
Pind
THIS COURT IS THE ONLY TRIBUNAL WHICH IS
CAPABLE OF RENDERING A DEFINITIVE DECISION
ON THE ISSUES RAISED BY THIS PETITION
The issue of how a state court is to apply the doctrine
of res judicata to a decision of a federal court which declines
to deal with related claim between the litigants is one that
has never been addressed by this or any other Court in a
published opinion.
Because the issues raised in this PETITION have
never been resolved by this court or in any published
opinion by any other court, they are left to resolution by the
courts of each of the fifty states in any way they choose
(until there is a definitive and binding ruling by this court).
22
PETITIONER’S LEGAL ARGUMENTS
I.
A STATE COURT SHOULD NOT BE ALLOWED TO
GIVE GREATER PRECLUSIVE EFFECT TO A
JUDGMENT OR ORDER THAN THE FEDERAL
COURT WHICH ENTERED IT
The general principles of issue preclusion under
federal law are set forth in this Court’s decision in Montana
v. United States 440 U.S. 147, 153-154, 99 S. Ct. 970, 973
(1979) which held:
A fundamental precept of common-law adjudication,
embodied in the related doctrines of collateral
estoppel and res judicata, is that a ’right, question or
fact distinctly put in issue and directly determined by a
court of competent jurisdiction . . . cannot be disputed
in a subsequent suit between the same parties or their
privies (citation omitted)(emphasis added)”
This Court’s recitation of the general rules of
preclusion is consistent with Restatement (Second) of
Judgments § 27 (1982) which provides in comment e.:
* It is PETITIONER'S position that the issues raised in her
STATE COMPLAINT were not at issue in the federal action filed on
January 21, 1997 because in the FEDERAL ORDER filed on June
26, 1998 JUDGE BAIRD specifically declined the opportunity to
consider them when she denied PETITIONER’S motion to file a first
amended complaint which would have embodied those claims.
23
e. Issues not actually litigated. A judgment is not
conclusive in a subsequent action as to issues which
might have been but were not litigated and
determined in the prior action. There are many
reasons why a party may choose not to raise an issue,
or to contest an assertion, in a particular action.
see: Beard, THE ROLE OF RES JUDICATA IN
RECOGNIZING UNITARY STATUS AND
TERMINATING DESEGREGATION
LITIGATION: A RESPONSE TO THE
STRUCTURAL INJUNCTION 49 La. L. Rev.
1239, 1311 (July 1, 1989)
Under Rule 15(d) of the Federal Rules of Civil
Procedure PETITIONER could have raised the issues that
were the subject matter of her STATE COMPLAINT in the
action she filed in a federal court on January 21, 1997
(which she in fact attempted to do), but she was not
obligated to do so. Further, as demonstrated by DISTRICT
JUDGE BAIRD’S June 26, 1998 decision (APPENDIX "B"
at pages APX. 24-25 inclusive), the granting of leave to
amend or supplement PETITIONER’S FEDERAL
COMPLAINT was discretionary under Rule 15(d) of the
Federal Rules of Civil Procedure and therefore a federal
court is not obligated to allow the expansion of pending
claims to include post filing claims for relief.
Under well established principles of federal practice
a claim based upon new discriminatory conduct, motivated
by the same discriminatory factors, is not affected by the
24
fact that a claim based upon earlier conduct is subject to
preclusion.
see: Bazemore v. Friday 478 U.S. 385, 395-396, 106
S.Ct. 3000, 3006 (1986); Los Angeles Branch
NAACP v. Los Angeles Unified Sch. Dist., 750
F.2d 731, 739 n.9 (9th Cir. 1984), cert. denied,
474 U.S. 919, 106 S. Ct. 247 (1985)
Further a federal litigant is not given the right to
continue an illegal course of conduct during the course of
litigation commenced by an employee in the federal courts.
see: Nealon vs. Stone 958 F.2d 584, 591-593 (4th
Cir. 1991); Webb v. Indiana National Bank 931
F.2d 434, (7th Cir. 1990)
Thus under both the federal law and the recitation of
the preclusive effect of res judicata contained in the
RESTATEMENT a judgment is not conclusive in a
subsequent action as to issues which might have been
litigated [as is the case where a pleading is subject _to
supplementation under Rule 15(d)] but were not (because in
this case a federal judge declined to allow an amended
pleading to be filed). Therefore THE FEDERAL ORDER
entered in the Federal District Court on June 26, 1998
should not have been given a preclusive effect as to claims
which PETITIONER was not allowed to litigate in that
action.
This Court has previously held that a federal court
25
cannot give a state court judgment greater preclusive effect
than the state in which it was entered would give it. [see
Marrese v. American Academy of Orthopedic Surgeons 470
U.S. 373, 382, 105 S.Ct. 1327, 1333 (1985)]. It would seem
that under ARTICLE IV § 1, ARTICLE IV § 2, ARTICLE
VI clause 2 and general principles of comity, a state court
should be held to the same standard when issues of federal
law arise.
Although 28 U.S.C. § 1738 and section 1 of
ARTICLE IV of the Constitution of the United States of
America make it clear that both state and federal courts
must give full faith and credit to judgments entered in state
courts, the issue of the effect a state court must give to a
judgment entered in a federal court does not appear to have
been addressed in any published decisions which we have
been able to find (although it would appear under
ARTICLE IV § 2 that each state must give the same
benefits under federal law to its citizens as other states give
to theirs).
Under ARTICLE VI clause 2 of the Constitution of
the United States of America where state law conflicts with
federal law, state law (not federal) must give way. (see
Ridgeway v. Ridgeway 454 U.S. 46, 54, 102 S.Ct. 49, 54
(1981); Metropolitan Life Insurance Company v. Christ 979
F.2d. 575, 575 (7th Cir. 1992).
26
A LITIGANT IN A FEDERAL COURT IS NOT
OBLIGATED TO AMEND OR SUPPLEMENT HIS OR
HER PLEADINGS TO INCLUDE CLAIMS BASED
UPON EVENTS WHICH TAKE PLACE AFTER THE
FILING OF HIS OR HER FEDERAL PLEADING
In its August 9, 1999 decision of THE CALIFORNIA
COURT OF APPEAL, despite its having been provided
with a copy of JUDGE BAIRD’S FEDERAL ORDER which
describes the pleading in detail, castigates PETITIONER for
having failed to provide either it, or the trial court with a
copy of the First Amended Complaint (which is described
in THE FEDERAL ORDER (APPENDIX "A" at page APX.
11). The decision then goes on to criticized APPELLANT
for attempting to place her defense to res judicata on what
the Court refers to as "litigation strategy of her federal
court trial counsel".
What THE CALIFORNIA COURT OF APPEAL’S
decision fails to address, and what defines the issues in this
PETITION is how any court (state or federal) can, under
section | of the Fourteenth Amendment to the Constitution
of the United States of America give preclusive effect to a
judgment or order in which the tribunal entering the order
# Assuming it was a litigation strategy by PETITIONER'S union
counsel, it would appear it was appropriate under Rule 15(d) of the
Federal Rules of Civil Procedure and would not have led to the
penalty of preclusion (which is the result of THE CALIFORNIA
COURT OF APPEAL’S decision) in the Federal Courts.
27
ae SU bee
has declined to accept jurisdiction over the precluded issues.
Such a@ decision, when applied to the facts in this case
(which must recognize the manner in which Rule 15(d)
operates in the federal courts) creates a class of litigants (as
PETITIONER argued in the state courts of California) who
are denied the benefits of California’s anti-discrimination
laws based solely upon their failure (whether voluntary or
involuntary) to amend their federal pleadings under the
discretionary provisions of Rule 15(d).
In challenging what it refers to as PETITIONER'S
federal “trial strategy"~ and sanctioning her by denying
her the right to pursue her post filing claims in a California
Court THE CALIFORNIA COURT OF APPEAL fails to
explain why [given the provisions of Rule 1S(d)] the
PETITIONER’S federal counsel’s conduct, and a Federal
District Court’s refusal to allow inclusion of additional
claims based upon post filing conduct can justify a federal
litigant’s loss of her rights as a disabled person under
California law.
*. A strategy which this Court has sanctioned by approving the
adoption of Rule 15(d) of the Federal Rules of Civil Procedure.
28
A STATE COURT CANNOT DENY A PARTY TO A
FEDERAL ACTION THE OPPORTUNITY TO
LITIGATE CLAIMS WHICH ARISE UNDER STATE
LAW DURING THE FEDERAL ACTION’S PENDENCY
As pointed out above, the reason PETITIONER’S
state court claims under FEHA were not adjudicated in
THE FEDERAL ORDER because the decision by
DISTRICT JUDGE BAIRD did not to allow them to become
part of her federal claim. As a result there was no basis for
precluding the adjudication of PETITIONER’S post filing
claims in either the state courts of California, or the federal
courts if coupled with appropriate claims under federal law.
By giving a decision in a federal court greater
preclusive effect on issues which a federal judge declined to
address THE CALIFORNIA COURT OF APPEAL violated
PETITIONERS rights under well established constitutional
principals of:
(a) Due process and equal protection under
ARTICLE IV section 2 (as a citizen of
California PETITIONER was entitled to the
same protection as the citizens of other states
who file claims in Federal Courts that a federal
court declines to adjudicate);
(b) The Fifth Amendment (which requires a
determination of claims through due process in
29
the federal courts before their judgment can
preclude further litigation of the issues), and
(c) Section | of the Fourteenth Amendment which
requires a state to provide equal protection
under its laws even to citizens who are litigating
claims in federal courts (who cannot be denied
due process based up their inability to have
their claims determined in a federal court).
CONCLUSION
Because the issue raised by this PETITION involves
an analysis of how state court judges respond to litigants
who file claims in both state and federal courts, the issues
raised by this PETITION can only be determined by a
tribunal with jurisdiction to regulate both the state and
federal judicial process. Because this is the only court with
such jurisdiction review by certiorari is appropriate and
should be granted.
LAW OFFICES OF JEROME ZAMOS
Jerome Zamos
Attorneys for Petitioner
LIZABETH URIBE
ai
APPENDIX "A" [Rule 14,1(i)(i))
OPINION OF THE
COURT OF APPEAL FOR THE SECOND APPELLATE
DISTRICT OF THE STATE OF CALIFORNIA
DIVISION FIVE
(Unpublished Decision)
LIZABETH URIBE, ) B127338
Plaintiff and )
Appellant, ) (Super. Ct. No. BC 183 619)
v. )
SOUTHERN ) Court of Appeal-Second Dist
CALIFORNIA ) FILED
PERMANENTE ) AUG 09 1999
MEDICAL GROUP et) Joseph A. Lane Clerk
al., ) Deputy Clerk
Defendants and =)
Respondents. )
APPEAL from a judgment of the Superior Court of
Les Angeles County Malcom H. Mackey, Judge.
Affirmed.
Jerome Zamos for Plaintiff and Appellant.
Seyfarth, Shaw, Fairweather & Geraldson, F. Scott
Page and David Van Pelt for Defendants and
Respondents.
APX-1
In January of 1997, appeliant Lizabeth Uribe, a
laboratory cytotechnologist, sued the Southern California
Permanente Medical Group ("SCPMG") and Kaiser
Foundation Hospitals in federal court, alleging that they
were her employers and that they had violated the
Americans With Disabilities Act ("ADA") by failing to make
reasonable accommodations for her disability, post-polio
syndrome The parties to that lawsuit agreed to arbitration.
At the end of 1997, before the federal court action
was concluded, appellant filed this lawsuit under the Fair
Employment and Housing Act ("FEHA") against the
SCPMG, Kaiser Foundation Hospitals, Kaiser Foundation
Health Plan,' and several SCPMG employees, all
respondents here, alleging employment discrimination. The
lawsuit was stayed pending resolution of the federal court
action.
On March 9, 1998, the arbitrator in the federal court
action found in appellant’s favor. Appellant moved to lift
the stay in this case. Respondents opposed the motion on
the ground that the case was barred under the doctrine of
*, In the federal court lawsuit, appellant alleged that her
employer was Kaiser Foundations Hospital, Southern California
Permanente Medical Group, a single entity. In this lawsuit, she
alleged that she was jointly employed by SCPMG, Kaiser
Foundations Hospitals, and Kaiser Foundation Health Plan. In its
brief, respondents contend that appellant's employer was SCPMG.
These differences are not material to any issue on appeal, and we
refer to appellant's employer as "SCPMG”" as a matter of
convenience.
APX-2
res judicata. After lifting the stay to allow respondents to
move to dismiss on that ground, and to allow the issue to be
briefed and argued, the trial court dismissed the case on the
ground that it was barred under principles of res judicata
This appeal followed. We affirm
Factual Summary
In federal court, appellant alleged that the SCPMG had
violated the ADA by failing to adjust her work hours to
accommodate her disability. Factually, she alleged that
bathing, dressing, and otherwise preparing for work took
three hours from the time she awoke. She required
assistance with those tasks. Until January of 1997, at
appellant’s request and at the request of her union, the
SCPMG accommodated appellant by allowing her to work
from 11:00 a.m. to 7:30 p.m. In January, the SCPMG
changed the cytotechnology shifts. Appellant was notified
that as of January 6, 1997, she would be required to work
from 8:00 a.m. to 4:30 p.m. Appellant could not obtain
assistance at the early hours that shift would necessitate.
She informed the SCPMG of her difficulties, but the
SCPMG refused to alter her schedule. On January 8,
appellant received two notices of disciplinary action, one for
being late to work and one for working late. The notices
Stated that subsequent notices could result in her
termination.
Appellant sought injunctive relief, including an order
prohibiting the SCPMG from taking further disciplinary
action against her for reporting to work late, and damages
APX-3
according to proof.
Pursuant to a collective bargaining agreement, the
parties agreed to arbitrate the lawsuit. The parties agreed
on two of the issues to be decided, whether the SCPMG had
just cause to issue the two disciplinary notices, and the
appropriate remedy for any violation of the ADA. By
stipulation of the parties, the arbitrator framed the other
two issues after considering arguments submitted by the
parties. Those issues were whether the SCPMG had violated
the ADA, and whether the SCPMG had violated the
collective bargaining agreement.
The arbitration hearing was conducted on October 27
and 31, 1997, and the matter was submitted on January 12,
1998. The arbitrator issued, his opinion and award on
March 9, 1998. He found that the SCPMG had violated the
ADA by not allowing appellant to work from 11:00 a.m. to
7:30 p.m. The arbitrator ordered that appellant be allowed
to work that shift, that any wages and benefits she lost
while required to work the earlier shift be restored, and
that the disciplinary warnings be removed from her file.
The arbitrator did not rule on the remaining two issues,
whether the SCPMG had violated the ADA and/or the
collective bargaining agreement, finding that they were
encompassed by the findings which were made.
After the arbitrator made his award, appellant moved
for leave to file an amended complaint. She did not oppose
the SCPMG’s motion to confirm the arbitration award, but
did ask the federal court for a declaration on the effect of
APX-4
the confirmation on her state court lawsuit, and also argued
that the stipulation to arbitration did not include the ADA
claims, The court refused appellant’s request to file an
amended complaint, found that the stipulation included the
ADA claims, denied the request for declaratory relief, and
confirmed the arbitration award. The opinion notes that
“this Court expresses no opinion al this time on the possible
res judicata and/or collateral estoppel consequences of the
arbitration on the state case or any future federal case."
In her state court complaint, appellant alleged that
respondents violated Government Code section 12940,
subdivisions (f) and (g), which prohibit employers from
discriminating against employees who oppose practices
forbidden under FEHA; Government Code section 12940,
subdivision (h)(1), which prohibits employers from
harassing an employee due to the employee’s disability; and
Government Code section 12940, subdivision (i), which
makes an employees failure to take all reasonable steps
necessary to prevent harassment and discrimination an
unlawful employment practice.
Appellant’s factual allegations were that beginning in
1996, she complained to respondents about their failure to
accommodate her physical disability. These complaints
included complaints about the elimination of the 11 a.m. to
7:30 p.m. shift and complaints about difficulties she had
with workplace locations and facilities which were not
designed for use by wheelchair-bound individuals with
limited strength. As the result of her complaints, appellant
was subject to disciplinary action in the form of warnings
APX-5
and a 30-day suspension in October and November of 1997,
Also as a result of appellant’s complaints, respondents
failed to accommodate her physical disability. Appellant
sought damages for mental anguish and stress, punitive
damages, and other damages according to proof.’
In connection with the motion to dismiss, respondents
submitted the notice given to appellant concerning her
October suspension. The notice, dated November 5, 1997,
indicated that appellant was placed on investigatory
suspension on October 22 It stated that beginning in July of
1997, appellant on numerous occasions requested and
received permission to arrive at work late, and to make up
the time by working late, based on her written
representation that she had morning doctors’ appointments
for physical therapy. Investigation revealed that she did not
have doctors’ appointments. Respondents had decided
against termination, but imposed a thirty-day suspension,
based on willful misrepresentation of information
7, We grant respondents’ request that we take judicial notice of
a subsequent complaint, filed by appellant against respondents in
July of 1998. It alleges harassment and discrimination based on her
disability and in retaliation for her pursuit of her rights, under
FEHA. The factual allegations concern events beginning in December
of 1996 and continuing through 1998, including the November 1997
suspension. The trial court noted this lawsuit in its ruling dismissing
this case, finding that "plaintiff can litigate post-federal arbitration
claims under [her] new case... ." In their briefs, the parties have
informed us that the new case had been dismissed. We also grant
respondents’ request that we take judicial notice of a declaration
submitted in the federal court action.
APX-6
In her declaration in response to respondents’ motion,
appellant declared that she was required to engage in
physical therapy at home, that in July of 1997 she began to
have conflicts with her supervisor about taking time to for
those activities, resulting in written notice on October 23,
1997, that respondents were considering discipline against
her.
Discussion
Appeliant argues that res judicata does not bar this
lawsuit because the conduct complained of took place after
the federal court complaint was filed. In support, she relies
on federal cases which hold that where a defendant engages
in actionable conduct after a lawsuit is filed, a plaintiff
may, but need not, file a supplemental complaint, and also
hold that the doctrine of res judicata will not be used to
punish a plaintiff who does not file such a complaint. (S. E.
C. v. First Jersey Securities, Inc. 101 F. 3d 1450, 1464 (2d
Cir. 1996); Clark v. Bear Stearns & Co., Inc.(9th Cir.
1992) 966 F. 2d 1318.)
*Those cases are of no assistance to us. The cited
holding is based on the federal courts’ use of a trans-
actional analysis for defining "cause of action" for purposes
of res judicata. Under that analysis, "two suits constitute a
single cause of action if they both arise from the same
*transactional nucleus of facts’ [citation] .... California
follows the primary right theory of Pomeroy; i.e., a cause
of action consists of 1) a primary right possessed by the
plaintiff, 2) a corresponding primary duty devolving upon
APX-7
the defendant, and 3) a delict or wrong done by the
defendant which consists in a breach of such primary right
and duty. (4 Witkia, Cal. Procedure (3d ed. 1985) Pleading,
§ 23, pp. 66-67.) Thus, two actions constitute a single cause
of action if they both affect the same primary right. Where,
as here, an action is filed in a California state court and the
defendant claims the suit is barred by a final federal
judgment, California law will determine the res judicata
effect of the prior federal court judgment on the basis of
whether the federal and state actions involve the same
primary right. (Agarwal v. Johnson (1979) 25 Cal.3d 932,
954-955 [1.)" (Gamble v. General Foods Corp. (1991) 229
Cal.App.3d 893, 898.)
Under California law, "[i]f the same primary right is
involved in two actions, judgment in the first bars
consideration not only of all matters raised in the first suit,
but also all matters which could have been raised."
(Eichman v. Fotomat Corp. (1983) 147 Cal.App.3d 1170,
1175.)
Respondents argue that the same primary right was
at stake in both lawsuits here, characterizing that right as
the right to be free from discrimination based on disability.
Respondents cite in support Mattson v. City of Costa Mesa
(1980) 106 Cal.App.3d 441. There, the plaintiffs federal
court suit alleged that his civil rights were violated when the
defendant police officers assaulted him, wrongfully arrested
him, and took his money. On the same facts, the state court
action alleged that the police officers had negligently
assaulted, battered, and arrested plaintiff, and had
APX-8
mishandled his personal property On appeal, the plaintiff
did not contend that two lawsuits involved different primary
rights, and the Court found that the same primary right
was involved. (Id. at p. 447.)
Similarly, in Johnson v. American Airlines, Inc 1984)
157 Cal.App.3d 427, the plaintiff was a member of a class
certified for a class action lawsuit on behalf of flight
attendants who had been adversely affected by the airline’s
maternity leave policy, The litigation was decided in favor
the employees. Appellant later filed suit in the state court
challenging the airline’s maternity leave policy, Appellant
argued that the federal court action did not bar the second
action, since causes of action were different, in that the
federal action alleged violations of federal, not state, law
The Court of Appeal rejected this argument, finding that
the primary right, the right to be free from employment
discrimination based on sex, was the same in both cases.
(id. at p. 433.) Other cases have reached the same
conclusion: the right to be free of discrimination in
employment is a primary right which cannot be addressed
both in federal court, under federal antidiscrimination laws,
and in state court, under FEHA and similar laws. (Gamble
v. General Foods, supra, 229 Cal.App.3d at p. 901
{primary right to employment at stake in both federal Title
VII case based on termination of employment and state
court wrongful termination suit]; Acuna v. Regents of
University of California (1997) 56 Cal.App.4th 639, 648-649
[primary right to be free from employment discrimination
operative in federal Title VII and ADEA suit and factually
identical state court FEHA suit].)
APX-9
This case is substantially similar to those just
discussed. Although the complaint is partly phrased in
terms of discrimination based on the assertion of legal
rights, rather than discrimination based on disability, when
the factual allegations of the two complaints are examined,
it is apparent that retaliation is simply an alternate theory
based on the same facts as those raised in the federal court,
with the same primary right at stake. In the federal court,
) appellant contended that after January 6, 1997, her
disability was not accommodated with a later work shift,
and that she was disciplined when she arrived at work late
In the state court action, she alleged that respondents
continued to impose discipline when she arrived at work
late. " [T]he ’cause of action’ is based upon the harm
suffered, as opposed to the particular theory asserted by the
litigant. [Citation.] Even where there are multiple legal
theories upon which recovery might be predicated, one
injury gives rise to only one claim for relief." (Slater v.
Blackwood (1975) 15 Cal.3d 791, 795.)
Appellant’s central argument is not that different
primary rights were at stake, but that the November 1997
suspension was not litigated in the federal court suit. She
offers no legal argument on the applicable legal principle,
that res judicata applies if the matter could have been
raised in that forum (Eichman v. Fotomat Corp., supra,
147 Cal.App.3d at p. 1175), and makes no attempt to argue
that this case is governed by those cases which have found
that a federal court judgment does not have res judicata
effect because the federal court refused to hear pendent
state court claims, or did not have jurisdiction to hear a
APX-10
Pe
theory or ground for recovery. (Mattson v. City of Costa
Mesa, supra, 106 Cal.App.3d at p. 445; Koch v. Hankins
(1990) 223 Cal.App.3d 1599,1605.)
Appellant makes no showing that she asked the
federal court to decide the claims raised in the state court.
instead, she cites the federal court ruling denying her
request to file an amended complaint, and her declaration
that when she inquired about the possibility of raising t he
events which led to the November suspension in the
arbitration, her union’ advised her those matters could not
be considered. This is not sufficient.
Appellant has not provided us, or, apparently, the
trial court, with a copy of the proposed first amended
complaint in federal court. And, to the extent that new
matters were excluded from the arbitration, she has made
no showing that they were excluded for any reason other
than her stipulation to the arbitration. Appellant thus
appears to be attempting to assert the litigation strategy of
her federal court trial counsel as a defense to res judicata.
Of course, she may not do so.
Finally, appellant argues that principles of equal
protection bar the dismissal of the state court lawsuit, since
such a ruling would create a class of persons (persons with
federal lawsuits pending) who cannot receive the benefits of
state anti-discrimination laws. Appellant cites no authority
*, Appellant was apparently represented by a union lawyer in the
federal lawsuit.
APX-1}
for this argument. We see no violation of constitutional
guarantees of equal protection in the application of
principles of res judicata to this case.
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ARMSTRONG, J,
We concur:
GRIGNON, Acting PJ
GODOY PEREZ, J.
APX-12
a) Bi
ORDER GRANTING DEFENDANTS’ MOTION TO
CONFIRM ARBITRATION AWARD IN THE UNITED
STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA ENTERED
ON JUNE 26, 1998
(Unpublished Decision)
THIS CONSTITUTES NOTICE OF ENTRY
AS REQUIRED BY FRCP, RULE 77(D).
ENTERED
CLERK U.S DISTRICT COURT PILED
JUN 26 1998 CLERK U.S DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA JUN D 198
BY DEPUTY CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LIZABETH URIBE, et al) CV 97-0375 LGB (Mcx)
)
Plaintiffs, ) ORDER GRANTING
)DEFENDANT’S MOTION TO
v. ) CONFIRM ARBITRATION
) AWARD
KAISER FOUND. )
HOSP., et al. )
oe
Defendants. )
)
I. Introduction
In this case, Plaintiff Uribe ("Plaintiff"and her Union
APX-13
have sued Defendants ("Kaiser" alleging violation of the
Americans with Disabilities Act "ADA" 42 U.S.C. § 12101
et seq., and seeking an injunction in aid of arbitration
under the Labor Management Relations Act ("LMRA" , 29
U.S.C. § 185. The parties stipulated to binding arbitration,
which has resulted in an Award for Plaintiff Defendants
have filed the instant Motion to Confirm Arbitration
Award, which is not opposed, although Plaintiff seeks a
declaratory judgment defining the impact of the Award
This Motion came on regularly for hearing on June 22,
1998 Having reviewed all pertinent papers on file and
considered the arguments of counsel, and for the reasons
discussed below the Court herzcby CONFIRMS the
Arbitration Award, entering judgment thereon. This will
close the case;
accordingly, Plaintiffs request for a declaration is
DENIED.
Il. Factual and Procedural Background
The following facts are no longer disputed and are taken
from the Arbitration Opinion provided as Exhibit C to the
Kaufman Declaration, unless otherwise noted.
Plaintiff has been employed by Kaiser as a
cytotechnologist ("CT") at one of its laboratories since
March 1981. CT’s screen gynecological and other
specimens, documenting any abnormal cells that they
observe. Plaintiff has been wheelchair bound since early
childhood due to polio. As a consequence of her medical
condition, it requires approximately three and a half hours
APX-14
Ett
to get ready for work with the aid of a helper. Accordingly,
Plaintiff preferred a work starting time as late-as possible
In 1995, Plaintiff obtained a medical certification
from her Kaiser internist that she be allowed to continue
her 11:00 a 7:30 p.m. shift. In December 1996, Kaiser
informed Plaintiff that she would have to work 8:00 a.m. -
4:30 p.m., due to a reorganization of Plaintiff's department
intended to reduce processing time for the specimens. On
January 3, 1997, Plaintiff told Kaiser that requiring her to
start at 8:00 a.m. violated her rights under the ADA.
Nevertheless, Plaintiff was told that she would have to start
her new schedule on January 6, 1997 Instead, Plaintiff
reported at her usual (11:00 a.m. time. On January 7,
1997, Plaintiff was given two written warnings for coming
to work late and for leaving late (at her old 7:30 p.m time).
On January 8, 1997 an agreement was reached
allowing Plaintiff to work 11:00-4:30 without further
discipline until her request for accommodation could be
further investigated. On January 14,1997, Plaintiff filed a
grievance under the collective bargaining agreement
("CBA"). On January 21, 1997 Plaintiff filed her Complaint
in this Court. This Complaint contained two causes of
action: (1 a violation of the ADA, and (2) a request for an
injunction in aid of arbitration under the LMRA. Plaintiff
sought damages and injunctive relief.
On February 7, 1997, Plaintiff petitioned" the Court
for a temporary restraining order ("TRO"). She sought to
enjoin Kaiser from (1) imposing any work schedule on
APX-15
plaintiff Uribe other than an 11:00 a.m. to 7:30 p.m. work
schedule, and (2) taking any further disciplinary action
against Uribe, including discharge, for reporting late to
work for any work shift that is scheduled to begin prior to
11:00 a.m. At the hearing held on February 13, 1997, the
Court denied Plaintiff's request for a TRO and set the
matter for hearing on an order to show cause why a
preliminary injunction should not issue. The Court also set
a schedule for supplemental briefing.
Following the supplemental briefing, a hearing was
held on Plaintiff's OSC re: Preliminary Injunction. By
Order filed March 17, 1997, the Court denied Plaintiff's
preliminary injunction.
By Stipulation filed on April 30, 1997, the parties
agreed that:
All claims alleged in this action against
Defendants KAISER FOUNDATION
HOSPITALS, and the SOUTHERN
CALIFORNIA PERMANENTE MEDICAL
GROUP should and shall be submitted to
binding arbitration pursuant to the grievance
and arbitration provisions within the applicable
collective bargaining agreement in existence
between Defendants and Plaintiff Hospitals and
Service Employees Union, SEIU, Local 399;
and the above captioned matter should be and
shall be stayed pending resolution of that
arbitration.
:
;
APX-16 |
(Kaufman Decl. Ex. A (the Stipulation) { 1.) Based on this
Stipulation, on May 29, 1997, the Court ordered this case
removed from the Court’s active caseload.
Meanwhile, on April 17, 1997, Kaiser notified the
Union that its investigation of Plaintiffs request for
accommodation (the later work schedule) had been
completed, and that no accommodation would be made. On
April 28, 1997, Plaintiff was informed that she could begin
work either at 8:00 or at 9:00 and work a full day. Plaintiff
opted for the 9:00-5:30 schedule beginning May 1, 1997,
and continuing during the pendency of the arbitration of
her grievance and federal case.
On December 31, 1997, Plaintiff filed a Complaint in
state court under the Fair Employment and Housing Act
("FEHA", Cal Gov’t Code § 12940 et seq. This Complaint,
although in many ways similar to the Complaint in the
instant case, differs in four regards: 1) it names several
individual Kaiser employees as defendants in addition to
Kaiser; 2) it is based exclusively on FEHA, rather than on
the ADA and LMRA; 3) it alleges harassment and
retaliation as well as discrimination; and 4) it alleges certain
conduct occurring later in time than the federal Complaint,
such as a thirty day suspension in October and November
of 1997. On March 12, 1998, the state court case was stayed
pending completion of the federal case.
On March 9, 1998, the arbitrator issued his opinion
and Award, attached as Exhibit C to the Kaufman
Declaration. Therein, the arbitrator found for Plaintiff.
APX-17
The Award is as follows:
1. |The Employer has been violating the Americans
with Disabilities Act ("ADA") by not allowing
the grievant to have a modified schedule from
11:00 a.m. to 7:30 p.m.
ye For remedy, the grievant shall 1) be allowed to
work a modified schedule from 11:00 a.m. to
7:30 p.m. effective immediately, 2) be paid her
straight time wages and any benefits lost
between January 8, 1997 and May !, 1997, and
3) have the two [disciplinary warnings] dated
January 7, 1997 removed from her file.
(Kaufman decl Ex C (Arbitration opinion and Award) at
17.)
On April 7, 1998, and April 9, 1998, Plaintiff filed
two Motions in this Court: 1) Motion for Leave to File First
Amended Complaint’ and 2) Motion for Partial Summary
Judgment.’ On April 20, 1998 Defendants filed an
*, This Motion sought leave to file an amended complaint which
essentially incorporates the state case into this case. Although the
proposed 1AC relies on both FEHA and the ADA, it, like the state
complaint, adds the individual defendants, alleges harassment and
retaliation, and alleges certain wrongdoing occurring later in time
than that alleged in the original Complaint in this case.
7. This Motion sought summary adjudication of numerous
issues, including some raised only in the proposed 1AC.
APX-18
Opposition. By Minute Order dated Apri! 23, 1998, the
Court vacated the hearing date on Plaintiff's two Motions,
because 1) the case was still stayed, and thus, no other
motions should have been filed until the stay was lifted; and
2) Plaintiff failed to comply with the new Local Rule 7.4.1
which requires a "meet and confer" 20 days prior to filing
these kinds of motions
On April 28, 1998, Plaintiff filed an ex parte
Application to reinstate this case to the Court’s active
caseload, and to set a hearing on Plaintiff's two motions.
On April 29, 1998 Defendants filed an Opposition, stating
that the Court should schedule a status conference to allow
the parties to bring the Court up to date on the facts of this
case and to discuss the procedural issues remaining.
Defendants asserted that such a conference "may well serve
to resolve the issues currently in dispute.’’ (Opp. at 2.)
A telephone conference was held on May 14, 1998.
By Minute Order dated May 14, 1998, this case was
reinstated to the Court’s active caseload. The Court
determined that the first issue to be resolved was the effect
of the Arbitration Award and the stipulation to arbitrate on
this case. Consequently, the Court ordered a briefing
schedule for a Motion to Confirm the Arbitration Award.
Pursuant to this schedule, Kaiser filed the instant Motion on
May 27, 1998. Plaintiff filed a "Response" on June 8, 1998,
and Kaiser filed a Reply on June 15, 1998. A hearing was _
held on June 22, 1998. ;
APX-19
Ill. Analysis
The instant Motion seeks to confirm the Arbitration
Award’ in this case. This aspect of the Motion is
unopposed. (See Pl.s Response at 1:19-23 "At the outset
PLAINTIFF wishes to make it clear that she is not opposed
to the confirmation of the arbitration award that resulted
from the arbitration which took place pursuant to the
stipulation of counsel and the order previously entered by
this Court") Plaintiff's Response is instead devoted to
arguing over the effects of such confirmation on her state
law case and her proposed IAC in this case.
The Federal Arbitration Act "FAA"),provides,that if
the parties have so agreed, upon application to the court
within one year of the arbitration "the court must grant an
order [confirming the award] unless the award is vacated,
modified, or corrected as prescribed in (other sections of the
Act] 9 U.S.C. § 9. An agreement by the parties that the
arbitrator’s award is to be final and binding is sufficient to
invoke § 9 at least where the parties participated fully in the
arbitration process. See, e.g., Booth v. Hume Pub., Inc.,
902 F.2d 925, 929-30 (1ith Cir. 1990) (collecting cases).
In the case at bar, as described above, the parties
stipulated that "[a]ll claims alleged in this action should and
shall be submitted to binding arbitration ...." (See
Kaufman Decl Ex A (the Stipulation) { 1.) accordingly,
since neither party suggests that there are any grounds for
vacating, modifying, or correcting the Award, this Court
"must" confirm the Award pursuant to 9 U.S.C. § 9. The
APX-20
effect of such confirmation is also provided by the FAA:
The party moving for an _ order
confirming . . . an award shall, at the time
such order is filed with the clerk for the entry
of judgment thereon, also file (a variety of
documents].
The judgment shall be docketed as if it was
rendered in an action.
The judgment so entered shall have the same
force and effect, in all respects, as, and be subject to
all the provisions of law relating to, a judgment in an
action; and it may be enforced as if it had been
rendered in an action in the court in which it is
entered. 9 U.S.C. § 13.
In other words, this court’s confirmation of the
Arbitration Award results in a final judgment being entered
upon it, with the same force and effect as if this case had
proceeded to trial and had judgment entered at that point.
Although not entirely clear, Plaintiff appears to argue
that the stipulation to submit to arbitration only covered
Plaintiff's claims under the CBA, and not her statutory
claim under the ADA (See Pi’s Response at 2:7-12.) Such
contention is clearly contradicted by the plain language of
the Stipulation. The Stipulation agreed to submit to binding
arbitration "{aJj11 claims alleged in this action. . . . "
APX-21
(Kaufman Decl. Ex. A (the Stipulation) 4 1.) The
Complaint in this action alleged a violation of the ADA;
accordingly, Plaintiff's ADA claim was covered by the
Stipulation.’
Plaintiff also appears to argue that arbitration of
statutory claims is impermissible under Alexander v.
Gardner-Denver Co., 415 U.S. 36 (1974), and its progeny.
(See Pl’s Response at 6-8.) However, these cases are
inapplicable, as they involve the question of whether
arbitration of a grievance under a CEA’s antidiscrimination
provision bars a later statutory discrimination case. For
example, had Plaintiff arbitrated only her grievance under
the CBA’s antidiscrimination provision, she would then be
3. As further evidence that Plaintiff submitted not only her CBA
claim but also her ADA claim to the binding arbitration, at the
arbitration hearing Defendants, counsel stated as follows:
It is very unique for parties to agree to allow the Arbitrator
to decide an Americans with Disabilities Act. While unique, it
does occur, and it is occurring more and more. Parties are
going to this type of forum to decide those issued. But also,
just for clarity, I wanted to make sure that, on the record,
Ms. Uribe is agreeable with allowing you to decide those issues
(Kaufman Decl. Ex. D (transcript of arbitration proceedings)
Plaintiff’s counsel stated that "Yes. I have spoken with Ms. Uribe
and she is aware that is what is occurring." (id.) Plaintiff's counsel
then asked Plaintiff, "Ms. Uribe, are you in agreement that the
Arbitrator can address the Americans with Disabilities Act issues in
your case, in this arbitration?" (id.) To which Plaintiff responded,
"Yes." (id.) Thus, it could not be clearer that Plaintiff submitted her
ADA claim to the binding arbitration.
APX-22
able to litigate her ADA claim. As-explained
above, hewever, Plaintiff chose to also arbitrate her ADA
claim at the same time. As the Ninth Circuit recently stated
in holding that employers may not require employees to
agree in advance to submit future discrimination claims to
arbitration instead of litigation,
we do not, of course, mean to suggest that
Congress sought in the 1991 [Civil Rights] Act
to preclude employees from agreeing after a
claim has arisen to submit the dispute to
arbitration. Indeed, employees in many
instances may believe that arbitration is
preferable to protracted and expensive litigation
and will willingly make that choice. Because of
the legal community’s recently increased faith
in arbitration, those plaintiffs are now
"encouraged" to resolve their employment
disputes in that manner, and if they choose to
do so, they are bound by the arbitrator’s
decision. Duffield v. Robertson, F.3d 1998 WL
227469 at *17 (9th Cir. 1998).
Accordingly, Plaintiff is bound to the arbitrator’s
decision in this case, and may not relitigate the same ADA
claims that were the subject of that arbitration.
Plaintiff next argues that not all of the claims raised
by the state complaint and the proposed 1AC in this case
were part of the arbitration. This appears to be true. For
example, the claims against the individual defendants were
APX-23
not addressed by the arbitrator, since the individual
defendants were neither parties in the instant case, nor to
ee the CBA Additionally, claims based on alleged wrongdoing
occurring after the arbitration could not have been
addressed therein. Of course, this Court expresses no
opinion at this time on the possible res judicata and/or
collateral estoppel consequences of the arbitration on the
state case or any future federal cases. That is not a matter
properly before this Court at the present time.
The Court turns next to Plaintiff's request in her
Response to the instant Motion to Confirm for a declaratory
judgment "defining the scope and impact of the Arbitration
Award.” (See Pi’s Response at 8-10). Initially, the Court
notes that a "Response" to a motion to confirm Arbitration
award does not appear to be the correct way to seek a
declaratory judgment rather, an amended complaint seeking
such relief would be proper. In any event, the declaration
that Plaintiff seeks covers matters already pending in her
state court case. Essentially, Plaintiff seeks a declaration as
to the effect of the arbitration on her state law A claims.
For reasons of comity and judicial economy, this Court
declines to entertain such a request. See Government
Employees Ins. Co. v. Civil, 133 F.3d 1220, 1225 9h Cir
1998) (en banc).*
*. Plaintiff states that she has no preference as to whether her
dispute is litigated in state court or this Court, as long as she has an
opportunity to litigate somewhere. (See Pi.’s Response at 9 n.1.)
APX-24
acacia Oe ee
In summary, this Court CONFIRMS the Arbitration
Award, and enters final judgment thereon. This closes the
instant case; accordingly, Plaintiff may not amend her
Complaint in this case.‘ Since this case will be concluded,
presumably the stay of Plaintiff's state court case will be
lifted, and Plaintiff will have an opportunity to litigate that
case in state court, subject to the res judicata/collateral
estoppel effects of the judgment in the instant case as
determined by the state court. =
IV. Conclusion
For the above reasons, Defendant’s Motion to
Confirm Arbitration Award isGRANTED. The Arbitration
Award is CONFIRMED, and judgment is entered thereon.
Plaintiff's request for a declaratory judgment is DENIED
IT IS SO ORDERED.
Dated: June 22, 1998 /s/ Lourdes G, Baird _
LOURDES G. BAIRD
United States District Judge
‘, Although Plaintiff could, of course, file a new complaint
alleging any wrongdoing not covered by the arbitration.
APX-25
FEDERAL ARBITRATOR’S OPINION AND AWARD
CONFIRMED BY ORDER ENTERED IN THE UNITED
STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA
In the Matter of Arbitration ) ARBITRATOR’S
) OPINION
between: ) AND
) AWARD
SOUTHERN CALIFORNIA)
PERMANENTE MEDICAL GROUP )
)
and ) Case No. 96197
)
HOSPITAL AND SERVICE)
EMPLOYEES UNION, LOCAL 399,)
SEIU, AFL-CIO )
)
(Grievance of Lizabeth Uribe) )
Impartial Arbitrator: Fredric R. Horowitz, Esq.
Appearances:
Union an
Grievant: James Rutkowski, Esq.
Alberto O. Torrico, Esq. (on Brief)
Van Bourg, Weinberg, Roger &
Rosenfeld
Company: Carlos Zaragoza, Esq.
Senior Counsel
Hearings Held: October 27, 1997
North Hollywood, California
October 31, 1997
Panorama City, California
Submitted to
Arbitrator: January 12, 1998
This arbitration arises pursuant to the collective
bargaining agreement effective June 19, 1996 ("Agreement")
between the Southern California Permanente Medical
Group "Employer") and the Hospital Service Employees
Union, Local-399, SEIU, AFL-CIO ("Union"). The parties
concur the grievances have been processed pursuant to the
provisions of Article XVIII of the Agreement and the
matters at issue are properly in arbitration.
MATTERS AT ISSUE
The grievances filed by Lizabeth Uribe present the
following issues to be decided in arbitration:
1. Did the Employer have just cause to issue the
two NDAs to the grievant on January 7, 1997?
2. _Isthe Employer violating the Agreement by not
allowing the grievant to have a modified
schedule from 11:00 a.m. to 7:30 p.m.?
3. Is the Employer violating the Americans with
APX-27
nara al
Disabilities Act ("ADA") by not allowing the
grievant to have a modified schedule from
11:00 a.m. to%:30.p,m.? ~.
4. If yes, what is the apprupriate remedy?
The parties stipulated at the hearing on the wording
of issues no. 1 and 4 above and that the arbitrator would
have authority to decide the ADA issues in this case. The
grievant consented to having the ADA issues decided by the
arbitrator. Because the parties could not agree on the
wording of issues no. 2 and 3, the parties presented
separate statements and stipulated the arbitrator would
have the authority to frame those issues.
BACKGROUND
The grievant, Lizabeth Uribe, has been employed by
Kaiser as a Cytotechnologist ("CT") at the North Hollywood
Laboratory since March 11 1961. Approximately 40 Cts at
this location screen gynecological ("GYN") and
non-gynecological ("non-GYN") specimens, document any
abnormal cells they observe, and record their findings.
GYN specimens are pap-smears, while all other specimens
are considered non-GYN including sputum, urine, thyroid
aspiration, or bronchial aspiration. The :Cytology
Department at the North Hollywood Laboratory serves
hospital patients and out-patients from several Kaiser
facilities.
Uribe has been wheelchair bound since early
APX-28
childhood due to polio. She currently suffers from
post-polio syndrome and relapsing polychondritis which
causes swelling of the cartilage, swelling of the lower
extremities, pain in the joints, and lack of mobility,
especially when it is cold. As a result, she needs about three
and one-half hours to get ready for work. She lives only
with her elderly mother. Her daily regimen, which includes
exercise, bathing, dressing, eating, and getting in and out
of her car, is difficult and time consuming. She requires
assistance from a paid helper or, if not available, a friend
or family member. Although her hours varied over the
years, she prefers to have a starting time as late as possible.
on September 19, 1995, Uribe obtained a medical
certification from her Kaiser internist, Dr. Matthew
Schneiderman, for two requested accommodations: 1) to
continue her 11,00 a.m.-7:30 p.m. schedule because of time
needed to get ready for work and 2) extra time daily to go
to the bathroom because she needs to drink a large volume
of fluids.
In June 1995, Regional Laboratory Director Michael
O’Connell, M.D. initiated a major effort to reduce the
turnaround time of normal pap smears from the current
14-21 days to 7 days or less. After extensive e study,
management reorganized the procedures for processing
specimens in the Cytology Department. Among the changes
implemented were the work hours of various classifications
of employees. Cts had been assigned schedules ranging in
times from 6:00 a.m.-2:30 p.m. to 11:00 a.m.-7:36 p.m
In November 1996, management disseminated a bid
APX-29
preference for new schedules for Cts ranging from’ 4:30
a.m.-1:00 p.m. to 8:00 a.m.4:30 p.m. to begin in January
1997. The bid preference also showed schedules from 11:00
a.m.-7:30 p.m. for QC Technologists and Lab Assistants.
On December 5, 1996, Cytology Lab Supervisor Kathy
Smith informed Uribe she would have to accept a change
from her schedule from 11:00 a.m.-7:30 p.m. to 8:00
a.M.-4:30 p.m. Monday-Friday. Thereafter, the grievant
sought help from the Union and the Personnel Department
to retain her current schedule.
On Friday, January 3, 1997, Uribe explained to Smith
that making her start at 8:00 a.m. violated her rights under
the ADA and that any NDA would be opposed with legal
action. After checking with management, Smith informed
the grievant she would have to begin her new schedule on
Monday, January 6, 1997. The grievant, however, did not
report for work until 11:00 a.m. on the following Monday
and Tuesday Uribe remained at work on Monday until 7:30
p.m.
On Tuesday, January 7, 1997, the grievant was
handed two written warnings. One NDA was issued for
coming to work three hours late on January 6 and 7, 1997.
The other NDA was given f or not leaving work at 4:30
p.m. Monday as scheduled. on January 8, 1997, an
agreement was struck between the Union and the Employer
which allowed Uribe to work from 11:00 a.m. to 4:30 p.m.
Monday-Friday without facing further discipline until her
request for an accommodation could be further investigated
and assessed.
APX-30
On January 14, 1997, Uribe filed three grievances
alleging a violation of the Agreement and applicable
statutes. One grievance challenged the denial of the
modified work schedule, another the two NDAs, and the
third sought a remedy f or her lost wages based on the
reduction of hours, On January 21, 1997, the grievant and
the Union filed a lawsuit against the Employer in federal
court related to these claims.
Uribe obtained a letter from Dr. Schneiderman dated
January 15, 1997 requesting that Uribe be accommodated
with a schedule starting at 11:00 a.m. On January 29, 1997,
HR Consultant Carolyn Gomez wrote Dr Schneiderman for
clarification of the medical basis for any accommodation.
On February 4, 1997, Dr. Andrea Nachenberg from Kaiser
wrote a note requesting Uribe be given a later shift because
she needs several hours to get ready for work. On February
26, 1997, Dr. Schneiderman replied to Gomez that Uribe’s
pain and stiffness was worse in the early morning due to
cold temperatures and prolongs the time she needs to warm
up her muscles, joints, and soft tissues.
Meanwhile, effeciive February 1997, management
changed most CT schedules to start at 5:15 a.m., 7:00 a,m.,
8:00 a.m., or 9:00 a.m. On February 4, 1997, the grievant
-renewed her request to Smith in writing for a later start
time based on her medical condition. Uribe argued further
justification for an 11:00 a.m. schedule was presented on
the basis that some Cts were being allowed to work
overtime as late as 7:30 p.m
On April 17, 1997, HR Consultant Gomez notified the
APX-31
Union the investigation had been completed. Gomez
indicated management was not obligated under the ADA to
create a new shift for Uribe and that the time it took her to
get ready for work was not relevant to the start time.
Gomez nevertheless offered to allow the grievant to work a
full shift from 9:00 a.m.-5:30 p.m. On April 28, 1997,
Supervisor Smith informed the grievant her request for an
11:00 a.m. schedule was being denied but that she had the
option to elect a full shift beginning at either 8:00 a.m. or
9:00 a.m, The grievant opted for the schedule to begin at
9:00 a.m. effective May 1, 1997.
On April 29, 1997, the federal court litigation was
Stayed based on the agreement of the grievant, the Union
and the Employer to submit the claims against the
Employer to binding arbitration. After the parties were
unable to resolve the dispute through the steps of the
contractual grievance procedure, the matter-was duly
submitted for determination in arbitration herein
EXCERPTS FROM THE AGREEMENT
ARTICLE XXI — NONDISCRIMINATION
2101. The Employer and the Union agree that no
employee or applicant for employment shall be
discriminated against with the implementation of this
Agreement or any other terms and conditions of
employment in regard to race, color, religion, age, sex,
national origin, sexual orientation, physical or mental
handicap or veteran status.
APX-32
ARTICLE XXVI — DURATION OF AGREEMENT
2602. The Employer agrees to comply with all
applicable State and Federal laws. If any provision of this
Agreement is found to be in conflict with the laws of the
State of California or of the United States of America, the
remaining provisions of the Agreement shall remain in full
force and effect.
POSITIONS OF THE PARTIES
The Union asserts the grievant is a disabled employee
as defined by the ADA who can perform the essential duties
of her position with a reasonable accommodation of
modified work schedule. The Union claims the Employer
has failed to demonstrate an 11:00 a.m. start time poses an
undue hardship under the criteria established by the Act. It
is said other Cts are routinely allowed to work until 7:30
p.m. for a variety of personal reasons. Local 399 also
asserts a two hour delay in start time for the grievant will
have no material adverse affect on the turnaround time of
the operation. For these reasons, the Union asks the
grievant’s schedule be accommodated, she be made whole
for all lost wages between January 8, 1997 and May 1,
-1997, and the two NDAs be rernoved.
In its turn, the Employer contends the ADA does not
mandate a special schedule to be created for Uribe from
11:00 a.m.-7:30 p.m. The Employer maintains the evidence
APX-33
does not show a special shift was needed because of her
disability and, in any event, the ADA does not require an
employer to create a new shift. It is said the request for a
special schedule would also create an undue hardship on the
Employer because slides processed in the last two hours
could not be released until the following day. Kaiser further
asserts a request to create a special shift is beyond the scope
of the Agreement and that the NDAs were issued for just
cause. Accordingly, the Employer urges the grievances and
claims at issue be denied.
OPINION
The Americans with Disabilities Act, 42 U.S.C.
§12101, et seq., prohibits an employer from discriminating
against a qualified individual with a disability because of
such disability in regard to hiring, advancement, discharge,
compensation, training, or other terms, conditions, and
privileges of employment. 42 U.S.C. §12112(a). The ADA
defines disability as a physical or mental impairment which
substantially limits one or more of major life activities of
the individual. 42 U.S.C. §12102(2). A qualified individual
with a disability is one who, with or without reasonable
accommodation, can perform the essential functions of the
position. 42 U.S.C. §12111(8), In order to establish a prima
facie case of discrimination under the ADA, the grievant,
Cytotechnologist Lizabeth Uribe, must show the following:
1) she is a disabled person within the meaning of the Act;
2) she is a "qualified individual" as defined in the Act; and
3) she suffered an adverse employment action because of
her disability once a prima facie-case is established, the
APX-34
burden shifts to the Employer to demonstrate a reasonable
accommodation was not available. Heise v. Genuine Parts,
4 AD Cases 1551, ’1561 (D.C. Minn. 1995).
There is no dispute the grievant is a disabled person
within the meaning of the ADA. She has been wheelchair
bound-since childhood from the ravages of polio and is
unable to walk or easily perform a variety of routing
physical tasks. Her disability thus substantially limits one or
more of the major life activities
Nor is there any disagreement in this proceeding the
grievant is a qualified individual with a disability under the
Act. Despite her Physical handicap, she remains fully able,
with or without reasonable accommodation, to perform all
the essential functions of her position as she has over the
past 18 years.
The parties are divided, however, whether Uribe has
suffered an adverse job action because of her disability. The
Union asserts the extended time it takes her to get ready for
work each morning due to her disability makes it
unreasonably difficult for her to begin work before 11:00
a.m. The employer maintains an accommodation is not
required by the ADA because the time it takes the grievant
to get ready for work is not related to her start time. A
review of the evidence at arbitration, on balance, supports
the position of the Union.
The record reflects the grievant endures a formidable
daily routine in order to get ready for work. The regimen
APX-35
na ae ew
takes about three and one half hours to complete from the
time she wakes up to arriving at the work site. Uribe always
awakens with stiff, swollen joints and muscles. It takes 20
minutes to slowly move her hands, arms and legs and
message her joints until she can transfer from bed to a
chair. In the winter, according to the grievant, the process
can take 10 minutes longer due to cold temperatures. Uribe
next drinks a large glass of water due to kidney stones. This
causes her to spend 15 to 20 minutes going to the bathroom.
The grievant then needs 30 to 40 minutes to shower. The
warm water is part of her therapy. .
Uribe prepares her own breakfast eats, and needs
another 60 to 75 minutes to groom and get dressed. She
uses a bedpan during this process. to save time. Next, the
grievant must do exercises’ on a special machine
(flexaciser") for 30 to 45 minutes as directed by her doctors
to combat atrophy After spending another 20 to 25 minutes
in the bathroom Uribe needs 5 to minutes to get in her van.
Her drive takes 20 to 25 minutes and then she is ready to
clock in for work at the Laboratory.
According to the grievant an 8:00 a.m or 9:00 a.m.
Start time means an assistant would have to come at 5:30
a.m or 6:00 a.m in the past Uribe has normally been able
to have someone come from 8:00 a.m. to 11:00 a.m., but
she has not been able to find anyone who can consistently
arrive earlier. The grievant cannot rely on her mother who
is now 83, for all the assistance she requires. Uribe also
maintains if she wakes up too early, the colder temperatures
increase the time and difficulty it takes to get ready due to
APX-36
her medical condition. For these reasons, the Union argues
an 8:00 a.m or 9:00 a.m. start time places an undue
hardship on the grievant because of her disability
The Employer correctly contends the obligation under
the ADA to provide a reasonable accommodation applies
only to accommodations that are needed because of the
disability. The EEOC Technical Assistance Manual at 111-4
provides: :
not apply to accommodate ions that a disabled person
may request for some other reason (emphasis in
original).
In this case the Employer argues the request for an
accommodation purely personal and not related to her
employment. The Employee claims her arduous routine at
home is not materially affected by the starting time of her
shift and that personal assistants are available at, any hour
from private agencies. The Employer cites 15 requests by
the grievant in 1996 to begin work earlier than 11:00 a.m.
for reasons including doctor appointments and Union
business. Because personal convenience is not job-related
the Employer asserts the accommodation sought by Uribe
is based on factors apart from the working environment
and therefore falis beyond the reach of the ADA.
On balance, however, there is sufficient evidence in
this case to establish a nexus between her disability and the —
APX-37
starting time of her shift. It is recognized the grievant is
able to come to work before 11:00 a.m. and the doctor
notes presented at arbitration citing older temperatures in
the early morning do not alone supply compelling medical
support for her request. Nor does her understandable
preference to avoid the extra expense of hiring personal
assistants through an agency serve as a valid basis for an
accommodation. Nevertheless the reality remains her
covered disability which confines her to a wheelchair and
adversely affects her joints and muscles makes getting ready
for work a long and arduous process is the primary cause
for the hardship in starting work every day at 8:00 a.m. or
9:00 a.m. The extra hours and effort she needs to get
ready are not required for individuals who do not have her
medical disability. In light of the cumulative hardships
which would enure from an early morning report time, the
cushion of an 11:00 a.m. schedule is seen as warranted
under the unique circumstances presented. Accordingly a
prima facie case of discrimination is established in this case.
The burden thus shifts to the Employer to show a
reasonable accommodation is not available
The ADA does not require an accommodation which
"would impose an undue hardship on the operation of the
business of the covered entity." 42 U.S.C. $12112(b)(5)(A).
Reasonable accommodation may include "job restructuring,
part time or modified work schedule and other similar
accommodations for individuals with disabilities. 42 U.S.C.
$12111(9)(B). Undue hardship means generally "an action
requiring significant difficulty or expense" when considered
in light of the following factors:
APX-38
(1) the nature and cost of the accommodation
needed under this chapter;
(2) the overall financial resources of the facility or
facilities involved in the provision of the reasonable
accommodation; the number of persons employed at
such. facility; the effect on expenses and resources, or
the impact otherwise of such accommodation upon the
operation of the facility;
Fe
(3) the overall financial resources of the covered
entity; the overall size of the business of a covered
entity with respect to the number of its employees;
the number, type, and location of its facilities;
(4) the type of operation or operations of the
covered entity, including the compositions of the
covered entity, including the composition, structure,
and functions of the work force of such entity; the
geographic separateness, administrative, or fiscal
relationship of the facility or facilities in question to
the covered entity; and
(5) the impact of the accommodation on the
operation on the ability of other employees to
perform their duties and the impact an the facility’s
ability to conduct business. 42 U.S.C. §12111(10)(B).
The Employer correctly contends the ADA does not
require that a new shift be created for a disabled
individual. Pattison v. Meijer, Inc., 4 AD Cases 997 (W.D.
APX-39
Mich. 1995). An employer is also not required to make an
accommodation which would create a new position, bump
‘another employee, promote the disabled person, or violate
the rights of another employee under a collective bargaining
agreement. Id. at 999. Under this case authority, it is clear
the ADA does not obligate the Employer to create a new
shift merely to accommodate the grievant’s disability.
But the ADA does provide that a reasonable
accommodation include a modified work schedule. 42
U.S.C. $12111(9)(B). In case, the evidence demonstrates a
modification of the grievant’s work schedule by two hours
from 9:00 a.m.-5:30 p.m. to 11:00 a.m.-7:30 p.m would not
materially change her shift, bump another person, or
violate the rights of any other member of the bargaining
unit. The laboratory remains open until 7:30 p.m., there is
supervision present, and other Cts are routinely permitted,
albeit on a temporary basis, to remain until that hour to
perform their regular duties. Quality Control Technologists
and Lab Assistants are also present in the laboratory
working regular schedules until 7:30 p.m. There is no
showing allowing Uribe to work during those two hours
after 5:30 p.m. would have any effect on the work of other
employees or cause any material disruption in the facility.
The Employer asserts a change in Uribe’s schedule by
two hours would cause an undue hardship on the operation.
Yet the Cytology Department at North Hollywood processes
between 40,000 and 50,000 specimens every month. Most
(85%-90%) are paj-smears. Flow charts indicate there are
dozens of steps taken from collection of specimens by
APX-40
physicians, packaging and storage, delivery to the lab,
sorting labeling and data entry, preparation and
distribution to Cts, reading by Cts, checking by quality
control, review by a pathologist more data entry, until the
appropriate release of results to physicians and patients
Turnaround data shows 14 days in December 1996, 8 days
in March 1997, and a steady increase to 14 days later in the
year.
Specimens delivered to the North Hollywood facility
remain at the location for several days. Once the slides are
initially processed batches containing GYN and non-GYN
specimens are delivered to Cts to be read for signs of
pathology. All atypical and abnormal! specimens identified
by Cts must be reviewed by Quality Control and then a
pathologist. For quality assurance purposes, about 10% of
the normal specimens must also be reviewed by Quality
Control. The results of the tests may then be released to the
physicians and patients.
Beginning in 1995, the Employer has instituted a
variety of changes to reduce turnaround for GYN specimens
and critical non GYN specimens. One of those goals was to
have all specimens handled by Cts to be released to
providers the same day. The purpose of the schedule
changes in January 1997 for Cts and other laboratory
workers was to facilitate this goal. Management staggered
the work hours of Cts and QC so that all slides read by Cts
would have the chance of being reviewed and released the
same day.
APX-41
Ye -
ee
The record demonstrates, however, management has
yet to -come close to realizing the goal of releasing all
specimens the same they are processed by Cts for a variety
of reasons. An increased volume of specimens without
sufficient personnel to process those specimens has left a
large segment of slides unprocessed by Cts every day. Data
processing problems have contributed to the delays. Under
existing procedures, slides completed by Cts after 5:00 p.m.
are not able to be reviewed by Quality Control the same
day. In addition, a high portion of the slides completed by
Quality Control are not able to be reviewed by -a
pathologist until the following day. Because state law
prohibits Cts and QC personnel from reading more than 80
slides in any one day, there is little management can do to
reach it same day goal without a major reduction in the
volume of work or significant increase in staffing.
Assuming the grievant reads 10 slides per hour, a two
hour change in her schedule would affect no more than 20
specimens a day. Give the large volume of specimens which
presently do not get released the same day, it cannot be
found a modification of her schedule would have any
appreciable affect on the size of the backlog. The fact other
CT are permitted at times to work until 7:30 p.m.
underscores the reality of the goal of a one day turnaround
from reading by Cts to release is no achievable in the
foreseeable future. Accordingly, under all the
circumstances, a finding an 11:00 a.m. start time for the
grievant constitutes an undue hardship on the Employer
within the meaning of the ADA cannot presently be
established.
APX-42
Having determified the Employer has been violating
the ADA by no allowing Uribe to work a modified schedule
from 11:00 a.m.-7:30 p.m. the discussion will turn to the
appropriate remedy. The grievant was issued two warning
letters on January 7, 1997 after management refuse to
accommodate her request for a modified schedule because
of he disability. From January 8, 1997 until May 1, 1997,
her hours were restricted to 11:00 a.m.-4:30 p.m. daily
while her request for a accommodation was being
investigated and assessed by management Thereafter, she
has worked a full schedule from 9:00 a.m.-5:30 p.m For
remedy, Uribe should be permitted to work a modified
schedule from 11:00 a.m.-7:30 p.m. effective immediately,
be restored the straight time wages and any benefits lost
between January 8, 1997, and May 1 1997, and have the
two NDAs removed from her file. Because the remedy for
the ADA violation encompasses the relief sought by the
other two grievances at issue, there is no need to address
the claims related to just cause or the violations of the labor
agreement advanced by the Union in this proceeding.
In conclusion, a review of the entire record at
arbitration demonstrates the Employer violated the ADA by
not granting Uribe a modification of her schedule from 8:00
a.m.-4:30 P.m. or 9:00 a.m 5:30 p.m. to 11:00 a.m.-7:30
p-m. on balance, there was sufficient evidence to show the
request for a later start time was based on the grievant’s
disability and the accommodation would not constitute an
undue hardship on the Employer in light ofthe operations
-of the Cytology Department at the North Hollywood facility
under the existent circumstances. The appropriate remedy
APX-43
for this discrimination is determined. to be the modification
of her schedule as requested, the restoration of wages and
any benefits lost, and the removal of two NDAs from her
file. An award consistent with these findings will follow.
AWARD
1. The Employer has been violating the Americans
with Disabilities Act ("ADA") by not allowing
the grievant to have a modified schedule from
11:00 a.m. to 7:30 p.m.
2. For remedy, the grievant shall 1) be allowed to
work a modified schedule from 11:00 a.m to
7:3.0 p.m. effective immediately, 2) be paid her
straight time wages and any benefits lost
between January 8, 1997 and May 1, 1997, and
3) have the two NDAs dated January 7, 1997
removed from her file.
DATED: March 9, 1998
Santa Monica, California
—/s/ Fredric R. Horwitz _
FREDRIC R. HOROWITZ, Arbitrator
APX-44
PETITIONER’S COMPLAINT FILED IN THE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES ON
DECEMBER 31, 1997°
FILED
December 31, 1997
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
LIZABETH URIBE ) Case No. BC 195299
Plaintiff, ) COMPLAINT FOR
v. ) DAMAGES AS A RESULT
SOUTHERN CALIFORNIA ) OF HARASSMENT BASED
PERMANENTE MEDICAL ) UPON PHYSICAL
GROUP, a partnership, ) DISABILITY AND
KAISER FOUNDATION ) RETALIATION FOR
HOSPITALS, anon profit ) COMPLAINTS OF
corporation, KAISER )DEFENDANTS VIOLATION
FOUNDATION HEALTH _ ) OF CALIFORNIA’S FAIR
PLAN, INC., a Corporation, ) EMPLOYMENT AND
KATHY SMITH, JEFFREY ) HOUSING ACT
SHULKIN, and DOES 1 )[Gov.Code §§ 12940(a),(f),(g)
through 20 inclusive, ) (h)(),@.(k) and 12965(b)}
Defendants )
*. The complaint has been downloaded from an ASCI disc and
reformatted to comply with the font and page size requirements set
forth in Rule 33(b) of the Rules of the Supreme Court of the United
States. Exhibits referred to in the complaint are also not included in
this appendix.
APX-45
COMES NOW PLAINTIFF LIZABETH URIBE
(hereinafter “"PLAINTIFF"), and for her cause of action
against DEFENDANTS and each of them alleges as follows:
1. PLAINTIFF is now, and has at all times during
the course of her employment by DEFENDANTS been a
resident of the County of Los Angeles, State of California,
and each of the events set forth herein took place within the
County of Los Angeles, State of California.
2.PLAINTIFF is now, and has at all times during the
course of employment by DEFENDANTS been physically
disabled and required to use a wheelchair as a result of the
effects of her prior affliction with poliomyelitis, and the
current effects of what has become known as "post polio
sequel”.
3.PLAINTIFF is informed, and based upon such
information believes that DEFENDANT SOUTHERN
CALIFORNIA PERMANENTE MEDICAL GROUP
(hereinafter "THE MEDICAL GROUP") is now, and was
a partnership organized for the purposes of facilitating the
operation of various health care facilities within the County
of Los Angeles, State of California as part of a joint venture
with the remaining institutional DEFENDANTS named
herein.
4.PLAINTIFF is informed, and based upon such
information believes that DEFENDANT KAISER
FOUNDATION HOSPITALS (hereinafter “KAISER
FOUNDATION") is now, and was at all times herein
APX-46
mentioned a non profit Corporation authorized and doing
business within the State of California, ‘County of Los
Angeles in conjunction with the other institutional
DEFENDANTS named herein.
5.PLAINTIFF is informed, and based upon such
information believes that DEFENDANT KAISER
FOUNDATION HEALTH PLAN, INC. (hereinafter "THE
HEALTH PLAN") is now, and was at all times herein
mentioned a corporation authorized and doing business
within the State of California, County of Los Angeles in
conjunction with the other institutional DEFENDANTS
named herein.
6.PLAINTIFF is employed jointly by DEFENDANTS
SOUTHERN CALIFORNIA PERMANENTE MEDICAL
GROUP, KAISER FOUNDATION HOSPITALS and
KAISER FOUNDATION HEALTH PLAN, INC.
(hereinafter jointly referred to as "THE KAISER GROUP")
as a cytotechnologist at THE KAISER GROUP'S North
Hollywood Reference Laboratory.
7.PLAINTIFF is informed, and based upon such
information believes that individual DEFENDANTS
KATHY SMITH, JEFF SHULKIN, RAMAH BALIBER,
and CAROLYN E. GOMEZ are individual residents of the
County of Los Angeles, California who aided and abetted
the management of THE KAISER GROUP in the
harassment of PLAINTIFF in retaliation for her complaints
of its violation of her rights under Government Code §
12940,
APX-47
8.PLAINTIFF is ignorant of the true names and
capacities of DEFENDANTS sued herein as DOES 1
through 20, inclusive, and therefore sues these
DEFENDANTS by such fictitious names. PLAINTIFF will
pray leave of this court to amend this complaint to allege
the true names and capacities when ascertained.
9. PLAINTIFF is informed and believes, and
thereon alleges, that each of the DEFENDANTS herein was,
at all times relevant to this action, the agent, employee,
representing partner, or joint venturer of the remaining
DEFENDANTS and was acting within the course and scope
of that relationship. PLAINTIFF is further informed and
believes, and thereon alleges, that each of the
DEFENDANTS herein gave consent to, ratified, and
authorized the acts alleged herein to each of the remaining
DEFENDANTS.
10. PLAINTIFF is informed, and based upon such
information believe that DEFENDANTS are currently, and
have at all times herein mentioned been aware of her
physical disabilities and their individual and collective
obligation not to harass or take steps to interfere with her
ability to perform in the work place or take actions which
make it more difficult to perform as a result of her physical
disabilities and functional limitations.
11. The claims which are the subject matter of this
action arise solely, and exclusively under the iaws and
constitution of the State of California, as set forth in Article
I section 1 and the California Fair Employment Act
APX-48
(California Government Code §§ 12900 et seq., hereinafter
referred to as "FEHA").
12. Under the provisions of Government Code §
12940(a) it is illegal for any employer within the State of
California:
because of . . . physical disability . . . to
discriminate against the person in compensation or in
terms, conditions or privileges of employment.
13. Under California Government Code § 12940(f)
it is an unlawful employment practice for an employer or
person to:
discharge, expel, or otherwise discriminate against
any person because the person has opposed any
practices forbidden under [Government Code §
12940] . .
14. Under the provisions of Government Code §
12940(g) it is illegal for any person to aid, abet, incite,
compel, or coerce the doing of any of the acts forbidden
under this part, or to attempt to do so.
15. Under the provisions of Government Code §
12940(h)(1) it is illegal for any employer, or any other
person within the State of California:
- because of physical disability. . . to
harass an employee or applicant. . . if the
APX-49
entity, or its agents or supervisors, knows or ;
should have known of this conduct and fails to ;
take immediate and appropriate corrective |
action.
16. Under the provisions of California Government
Code § 12940(i) DEFENDANTS, and each of them were at
all times herein mentioned obligated to:
. . take all reasonable steps necessary to prevent
discrimination and harassment from occurring.
17. Under the provisions of Government Code §
12940(k) it is illegal for any employer or any other entity
within the State of California:
. to fail to make reasonable accommodation for
the known physical or mental disability of an
applicant or employee. .
FIRST CAUSE OF ACTION
FOR DAMAGES RESULTING FROM DEFENDANTS’
VIOLATION OF GOVERNMENT CODE
§§ 12940(f),(g),(h)(1) & (i)
18. PLAINTIFF incorporates by this reference all
of the allegations contained in paragraphs 1 through 17
from above, and by this reference incorporates said
allegations as part of this FIRST CAUSE OF ACTION.
APX-50
19. At various times during 1996 PLAINTIFF made
a series of complaints to her supervisor KATHY SMITH,
and various other members of THE KAISER GROUP’S
management, including individual DEFENDANTS JEFF
SHULKIN, RAMAH BALIBER, CAROLYN E. GOMEZ
and DOES 1 through 20 inclusive concerning their failure
to take steps to accommodate her physical disability under
the provisions of Government Code § 12940(k) and her
problems in getting to work in the morning because of the
rigors associated with getting dressed and handling other
personal needs in the morning.
20. PLAINTIFF is informed, and based upon such
information believes that at the time PLAINTIFF made her
complaints to the individual DEFENDANTS named herein
concerning their failure to comply with their obligations
under Government Code § 12940(k) they were aware that
through the years she had been able to deal with her
physical disabilities, and perform her functions as a
cytotechnologist because of flexible work schedules, and her
ability to adapt to a late morning starting time.
21. PLAINTIFF is informed, and based upon such
information believes that despite the fact that starting time
of the shifts for cytotechnologist has no effect upon the
volume of slides an individual is able to generate (that
number being fixed by law), DEFENDANTS eliminated the
11:00 am to 7:30 pm shift to which PLAINTIFF had
previously been assigned, while continuing to allow non-
handicapped cytotechnologist to work overtime hours as late
as 7:30 pm in order to pick up extra compensation.
APX-51
22. PLAINTIFF is further informed, and based
upon such information believes that as a result of her
ongoing complaints about the threatened change of shifts,
and her attempts to bring to DEFENDANTS’ attentions the
difficulties she was having, not only with the revised work
hours, but with her ability to enter the reference laboratory
and use necessary facilities which were not designed for use
by wheel chair bound persons with limited strength, her
concerns were largely ignored and she was subjected to
disciplinary action in the form of retaliatory warnings and
a thirty day suspension in October and November of 1997
because she was late to work as a result of her need to deal
with her physical disability and personal needs before
coming to work.
23. PLAINTIFF is informed, and based upon such
information believes that DEFENDANTS were aware when
they changed her work schedule in early 1997 that because
of her physical disabilities, and the restrictions her physical
disability placed upon her, that forcing her to get up three
hours earlier in the morning would cause major disruptions
in her ability to function.
24. PLAINTIFF is further informed, and based
upon such information believes that DEFENDANTS’ failure
to make any attempt to accommodate her physical
disabilities, and their ultimate imposition of sanctions
against her when she was unable to fully adapt to the
change in her work schedule, was a direct result of her
prior complaints about their unwillingness to comply with
Government Code § 12940(k) made during 1996.
APX-52
25. PLAINTIFF is further informed, and based
upon such information believes that each of the
DEFENDANTS named herein, with knowledge of the
hardships they were imposing upon PLAINTIFF as a result
of her physical disability, aided and abetted the
management of THE KAISER GROUP in the ongoing
harassment of PLAINTIFF which they knew, or should
have known was being pursued in violation of Government
Code §§ 12940(a), (f), (h)(i), (i) and (k).
26. Asa proximate result of the conduct of THE
KAISER GROUP and the individual DEFENDANTS named
herein in violation of Government Code §§ 12940(f), (g),
(h)(1), (i) and (k) PLAINTIFF has suffered general damages
(in excess of the jurisdictional threshold of this Court)
resulting from the mental anguish and stress caused by the
harassment to which she was subjected over the twelve
months preceding the filing of the complaints with the
California Department of Fair Employment and Housing
pursuant to the provisions of Government Code § 12965
(copies of which are collectively attached hereto as Exhibit
"A" and hereinafter referred to as "THE FEHA
COMPLAINTS").
27. As a result of her filing of THE FEHA
COMPLAINTS with the California Department of Fair
Employment & Housing November 19, 1997, NOTICES OF
CASE CLOSURE and PLAINTIFF'S right to sue, copies of
which are attached hereto as Exhibit "B" were issued on
November 29, 1997.
APX-53
28. PLAINTIFF is informed, and based upon such
information believes that all of the conduct of the
management of THE KAISER GROUP referred to herein
was pursued maliciously and oppressively in reckless
disregard of the PLAINTIFF’S rights under the
constitution, laws and statutes of the State of California,
entitling PLAINTIFF to recover punitive or exemplary
damages in such an amount in excess of $25,000.00 as the
trier of fact in this action may deem appropriate.
29. This action has been commenced, and is being
pursued by PLAINTIFF under the _ provisions of
Government Code § 12965(b), as a result of which
PLAINTIFF is entitled to recover an amount equal to all
damages shown by proof at the time of trial plus reasonable
attorney fees and costs incurred in pursuing his claims in
this action.
WHEREFORE, PLAINTIFF prays judgment against
DEFENDANTS, and each of them, as follows:
1. For general damages, in an amount in excess of
the threshold for this Court’s jurisdiction, according to
proof;
2. For compensatory damages according to proof,
including damages for the mental pain and anguish
experienced by PLAINTIFF;
3. For special damages in a sum be determined at the
time of tria! herein;
APX-54
5. For punitive damages in an amount appropriate to
punish DEFENDANTS and deter others from engaging in
similar misconduct;
6. For reasonable attorney’s fees incurred by
PLAINTIFF pursuant to Government Code § 12965(b);
7. For costs of suit incurred by PLAINTIFF; and
8. For such other and further relief as the court
deems proper.
LAW OFFICES OF JEROME ZAMOS
By:___/s/Jerome Zamos
Jerome Zamos, Attorneys for
LIZABETH URIBE
APX-55
NDIX "E" v
PETITIONER'S COMPLAINT FILED IN THE UNITED
STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA
ON JANUARY 21, 1997
FILED
January 21, 1997
Office of the Clerk
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LIZABETH URIBE; and ) Case No.97-0375 GB(Mcx)
HOSPITAL AND SERVICE )
EMPLOYEES UNION, ) COMPLAINT FOR
LOCAL 399, ) INJUNCTIVE RELIEF
Plaintiffs, ) AND DAMAGES
v ) {Americans with
KAISER FOUNDATION Disabilities Act, 43 USC §§
HOSPITALS, SOUTHERN _) 12101, et seq.; and Labor
CALIFORNIA Management Relations Act,
PERMANENTE MEDICAL ) 29 Use § 185]
GROUP, )
Defendants, )
1. This is an action brought by Plaintiffs against
Defendant Kaiser for alleged violation of the American with
Disabilities Act, 42 USC §§ 12101, et seq. and Labor
’. The complaint has optically scanned from a copy and
reformatted to comply with the font and page size requirements set
forth in Rule 33(b) of the Rules of the Supreme Court of the United
States.
APX-56
Management Relations Act, 29 USC 185. Plaintiff seeks
injunctive relief, damages, attorneys’ fees and costs.
y & Plaintiff Lizabeth Uribe is a laboratory
technologist who has worked for Defendant Kaiser for over
15 years and is a member of the collective bargaining unit
covered by the contract negotiated between Kaiser and
Service Employees Union, Local 399, AFL-CIO (hereinafter
"Union" or "Local 399). Plaintiff Uribe is
wheelchair-bound and is disabled as defined under the
Americans with Disabilities Act (hereinafter "ADA"). Ms.
Uribe’s disability requires that she receive assistance from
another person to bathe, dress, and otherwise prepare for
work each day. She drives herself to and from work using
a vehicle equipped with a wheelchair lift and the entire
process of preparing for and reporting to work requires
approximately three hours each day.
3. The laboratory where Piaintiff is assigned operates
from 4:30 a.m. until 7:30 p.m. Until January 6, 1997,
Defendant Kaiser accommodated Plaintiff's condition by
permitting her to work a shift from 11:00 a.m. until 7:30
p.m. However, beginning January 6, 1997, Plaintiff was
notified that henceforth she would be required to work a
shift beginning at 8:00 a.m. and ending at 4:30 p.m. It has
proven impossible for Plaintiff to obtain the personal
assistance she requires as early as 5:00 a.m. and she has
already received two (2) notices of disciplinary action from
Defendant for reporting late to work with a directive that
subsequent notices would result in her termination.
APX-57
i aR IN tt
4. The ADA’s_ provisions for reasonable
accommodations require a reasonable adjustment of
Plaintiff's hours within the operational hours of the
laboratory and if Defendant should not make such
adjustment and continue on its present disciplinary course,
Plaintiff will be terminated and will suffer irreparable harm
through, inter alia, loss of essential income and loss of
health insurance coverage. In light of her condition and
handicap, i.e. she is wheelchair-bound, it is unlikely
Plaintiff could find other employment if terminated by
Defendant Kaiser.
|
FIRST CAUSE OF ACTION
(ADA 42 USC § 12101, et seq.)
5. Defendant Kaiser Foundation Hospitals, Southern
California Permanente Medical Group (hereinafter
"Kaiser"), incorporated under the laws of the State of
California, is engaged in an industry affecting commerce,
and is an employer and covered entity under the ADA §§
12111(2) and (5).
6. Plaintiff Lizabeth Uribe is a licensed
Cytotechnologist who has been employed by Defendant
Kaiser for over 15 years and is a "qualified individual with
a disability" as defined under ADA § 12111(8).
7. Plaintiff is a licensed Cytotechnologist and works
at the Defendant’s Sherman Way laboratory along with
approximately other Cytotechnologist, 7. Quality Control
Technologists, 11 Laboratory Assistants and 3 Cyto
APX-58
Pro-Techs. Plaintiff is also qualified, and on occasion works
as, a Quality Control Technologist.
8. Plaintiff suffers from the disability of polio. As a
result of this disability, Plaintiff requires the aid of a
personal assistant to bathe and dress in the morning as well
as assistance in preparing food. Plaintiff drives her own
vehicle to work but depends on an electrical wheelchair lift
to enter and exit her vehicle. The entire process of
preparing for and reporting to work requires
approximately three hours.
9. Plaintiff has obtained this assistance in the past
through the help of family, friends, or individuals hired by
Plaintiff to assist her, who do so at a minimal cost; and the
cost of obtaining such service from commercial entities,
even if such service were available as early as 5:00 a.m., is
prohibitive to Plaintiff.
10. After repeated requests by Plaintiff and after the
filing of a grievance by the Union, on or about October
1995, the Defendant did accommodate Plaintiff Is disability
by adjusting her work schedule to permit her to report to
work at 11:00 a.m. and work until the lab closed at 7:30
p.m.
11. Between October and December 1996, the
Defendant made some changes in the organization of the
Sherman Way Lab, but the lab still operates- from 4:30
a.m. to 7:30 p.m. and still provides the same services to the
Defendant’s various medical facilities using the same
APX-59
personnel.
12. On or about January 3, 1997, Plaintiff was
informed that beginning January 6, 1997, the start time of
her work shift would change from 11:00 a.m . to 8:00 2m.
and Plaintiff would not be permitted to work beyond 4:30
p.m.
13. To report at this new starting time, Plaintiff
would have to obtain the aid of a personal assistant as early
as 5:00 o’clock a.m. and she is unable to obtain such
assistance at that time of the day.
14. On or about January 8, 1997, Plaintiff received
two separate notices of disciplinary action, one for reporting
to work late on January 6, 1997 and one for working
beyond 4:30 p.m. on January 6, 1997.
15. These notices of disciplinary action further state
that "any further incidence of tardiness or failure to follow
policies and procedures may result in further disciplinary
action up to and including termination".
16. Despite Plaintiff is representations to Kaiser that
she cannot obtain the necessary assistance in order to report
to work at 8:00 a.m., and despite requests by Ms. Uribe
and the Union that Plaintiff's schedule be returned to the
11:00 a.m. starting time, Defendants have failed to agree to
such a change and have indicated that further discipline
would be imposed should Plaintiff not report at 8:00 a.m.,
on time, on any day after January 24, 1997.
APX-60
17. Section 12112(a) of the ADA provides in pertinent
part that:
"No covered entity shall discriminate against a
qualified individual with a disability because of
the disability of such individual in regard to. .
-discharge of employees, employee
compensation, job training, and other terms,
conditions and privileges of employment."
. 18. Subsection (b) of that same provision further
provides:
"As used in subsection (a) , the term
"discriminate" includes:
(5) (A) not making reasonable accommodations
to the known physical or mental limitations of an
otherwise qualified individual with a disability who is
an applicant or employee, unless such covered entity
can demonstrate that the accommodation would
impose an undue hardship on the operation of the
business of such covered entity;"
19. Plaintiff alleges that the Defendant's refusal to
allow her to continue to commence work at 11:00 a.m. or
some other reasonable time later than 8:00 a.m. constitutes
a failure to make reasonable accommodations to her known
physical limitations and that such accommodation in shift
change could be made without undue hardship on the
operation of the laboratory where Plaintiff works.
APX-61
20. Kaiser’s failure to make this reasonable
accommodation by arranging a shift change constitutes
unlawful discrimination under Section 12112 of the ADA.
I]
SECOND CAUSE OF ACTION
(Injunction in Aid of Arbitration)
21. Hospital and Service Employees Union, Local 399,
is certified as the bargaining representative under the
National Labor Relations Act for various classifications of
employees employed by Defendant Kaiser, including
Plaintiff Uribe’s classification.
22. Plaintiff Local 399 and Defendant Kaiser have
entered into a collective bargaining agreement, which
agreement covers the job classification held by Plaintiff
Uribe and which also includes the following
non-discrimination clause:
x Lil - NON MIN
“The Employer and the Union agree that no employee
or applicant for employment shall be discriminated
against with the implementation of this Agreement or
any other terms and conditions of employment in
regard to race, color, religion, age, sex, national
origin,sexual orientation, physical or mental handicap
or veteran status."
23. The collective bargaining agreement between
Plaintiff Local 399 and Kaiser also contains a binding
APX-62
grievance and arbitration procedure and Local 399 has filed
a grievance on behalf of Plaintiff Uribe alleging Kaiser has
violated, inter alia, the non-discrimination clause by its
failure to reasonably accommodate Plaintiff Uribe’s physical
limitations.
24. In the normal course of events,completing the
grievance steps called for in the contract, moving the matter
to arbitration and scheduling an arbitration will take
several months.
25. Despite the filing of this grievance, Plaintiffs are
informed that Defendant intends to proceed with requiring
Plaintiff Uribe to begin work at 8:00 a.m. and to continue
disciplining her, up to and including discharge, should she
be unable to report by 8:00 a.m.
26. If Defendant is permitted to proceed with
continued discipline and discharge of the Plaintiff, such
action will occur before this matter is addressed by an
arbitrator to remedy the situation will be impaired and the
effectiveness of the arbitration proceedings undermined.
27. Should Kaiser be permitted to proceed with the
discharge of Plaintiff prior to arbitration, Plaintiff Uribe
will suffer irreparable harm in that she will not only lose
her exclusive source of income by which she supports
herself but also will lose her health insurance benefits which
accompany her employment and which are essential to her.
APX-63
28. Public policy favors arbitration and absent
injunction, the arbitration process in this case will be
seriously undermined, -while on the other hand maintaining
the status quo pending arbitration will avoid disastrous
disruption of Plaintiff Is life while imposing relatively
minor, if any, hardship on Kaiser.
29. Plaintiffs Local 399 and Uribe have no plain,
speedy, or adequate remedy at law.
WHEREFORE, Plaintiffs request that the Court
grant the following relief:
1. That the Court find that the Defendant's failure
to Plaintiff Uribe a later starting time for work constitutes
illegal discrimination under the ADA.
2. That this Court, upon consideration of this
Complaint, the accompanying Points and Authorities, and
supporting declarations and the exhibits filed herewith,
issue a temporary restraining order and/or order to show
cause prohibiting Defendant Kaiser from:
a. Imposing any work schedule upon Plaintiff Uribe
other than an 11:00 a.m. -to 7:30 p.m.;
b. Taking any further disciplinary action against
Plaintiff, including discharge, for reporting late to work for
any work shift that is scheduled to begin prior to 11:00 a.m.
3. Damages according to proof.
APX-64
4. That the Court award Plaintiff's costs of suit and
attorneys fees incurred herein and that the court make an
award of such other and further relief as appears just and
proper.
DATED: January_21 , 1997.
Respectfully submitted,
VAN BOURG, WEINBERG, ROGER & ROSENFELD
By__/s/James Rutkowski
JAMES RUTKOWSKI
ALBERTO 0. TORRICO
Attorney for Plaintiffs
APX-65
, wie
SUPERIOR COURT ORDER
ENTERED OCTOBER 7, 1998
DISMISSING PETITIONER'S COMPLAINT BASED
UPON THE DOCTRINE OF RES JUDICATA
ORIGINAL FILED
OCT. 07, 1998
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
LIZABETH URIBE ) Case No. BC 195299
Plaintiff, )
v. ) Assigned to
SOUTHERN CALIFORNIA ) Hon. Malcolm H. Mackey
PERMANENTE MEDICAL )
GROUP, a partnership, ) [PROPOSED] ORDER
KAISER FOUNDATION YGRANTING MOTION TO
HOSPITALS, anon profit) DISMISS
corporation, KAISER )
FOUNDATION HEALTH _ ) Date: September 24, 1998
PLAN, INC., a Corporation, ) Time: 8:30 a.m.
KATHY SMITH, JEFFREY ) Dept: 84
SHULKIN, and DOES | )
through 20 inclusive,
Defendants
— ee ee
On September 24, 1998, this matter came on for
hearing before this Court on its 8:30 a.m. calendar, the
Honorable Malcolm H. Mackey presiding. The parties
appeared and argued through counsel.
This Court, having read and considered the moving
and responding papers and all arguments presented, and
the matter having been duly heard,
IT IS HEREBY ORDERED:
Defendant's Motion to Dismiss Action, As Barred
by Res Judicata is granted. This action is hereby
dismissed with prejudice, and all claims arising out of the
allegations contained in Plaintiff's Complaint are barred
by res judicata.
Dated: Oct. 07, 1998
MALCOLM H, MACKEY
JUDGE OF THE LOS ANGELES
COUNTY SUPERIOR COURT
APX-67
Y rw" "
COURT OF APPEAL, SECOND APPELLATE
DISTRICT OF THE STATE OF CALIFORNIA
DIVISION FIVE, ORDER AUGUST 24, 1999 DENYING
PETITION FOR REHEARING
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION: §
DATE: August 24, 1999
Jerome Zamos
21550 Oxnard St., Ste 300
Woodland Hills, CA 91367
Lizabeth Uribe
Vv.
Southern California Permanente
Medical Group, et al.,
B127338
Los Angeles County No. BC183619
THE COURT:
Petition for rehearing denied.
APX-68
NDIX "H" le 14.1.(i)(i
CALIFORNIA SUPREME COURT ORDER
ENTERED OCTOBER 20, 1999
DENYING PETITION FOR REVIEW
Second Appellate District, Division Five, No. B127338
$082055
IN THE SUPREME COURT OF CALIFORNIA
LIZABETH URIBE, Appellant ere ED
v. OCT 20, 1999
Robert Wandruff, Clerk
SOUTHERN CALIFORNIA DEPUTY t—~™
PERMANENTE MEDICAL
GROUP, Et al., Respondent
Appellant's petition for review is DENIED.
/ or
Chief Justice
APX-69
eno sl apa
P "I" [Rul ‘
REMITTITUR TO THE LOS ANGELES COUNTY
SUPERIOR COURT ISSUED NOVEMBER 22, 1999
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
JOSEPH A. LANE, CLERK
DIVISION: §
Los Angeles County Superior Court
111 North Hill Street
4 Los Angeles, CA 90012
4 Lizabeth Uribe
v.
Southern California Permanente
Medical Group, et al.,
B127338
Los Angeles County No. BC183619
***REMITTITUR***
I, Joseph A. Lane, Clerk of the Court of Appeal of
the State of California, for the Second Appellate District,
do hereby certify that the attached is a true and correct
copy of the original order, opinion or decision entered in
the above-entitled case on August 9, 1999 and that this
order, opinion or decision has now become final.
Respondent to recover costs on appeal.
Witness my hand and the seal of the Court
affixed at my office this
Nov 22, 1999
Joseph A. Lane, Clerk
by:
Deputy Clerk
APX-70
Section 1. Judicial Power, Tenure and Compensation
Section 2, Clause 1. Jurisdiction of Courts:
CONSTITUTIONAL PROVISIONS, STATUTES &
APPLICABLE RULES OF COURT
ARTICLE III §§ 1 and 2 clause 1
Section 1. The judicial Power of the United States,
shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to
time ordain and establish. The Judges, both of the
Supreme and inferior Courts, shall hold their
Offices during good Behaviour, and shall, at stated
Times, receive for their Services, a Compensation,
which shall not be diminished during their
Continuance in Office.
Section 2. The judicial Power shall extend to all
Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States. and
Treaties made, or which shall be made, under their
Authority;—to all Cases affecting Ambassadors,
other public Ministers and Consuls;—to all Cases of
admiralty and maritime Jurisdiction:—to
Controversies to which the United States shall be a
Party;—to Controversies between two or more
States;—between a State and Citizens of another
State;—between Citizens of different
APX-71
States;—between Citizens of the same State claiming
Lands under Grants of different States, and
between a State, or the Citizens thereof, and
foreign States, Citizens or Subjects.
ARTICLE IV § 1
Full Faith and Credit shall be given in each
State to the public Acts, Records, and judicial
Proceedings of every other State. And the
Congress may by general Laws prescribe the
Manner in which such Acts, Records and
Proceedings shall be proved, and the Effect
thereof.
ARTICLE IV § 2
The Citizens of each State shall be entitled to
all Privileges and Immunities of Citizens in the
several States.
ARTICLE VI clause 2
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.
APX-72
Bib GL ae he
Fifth Amendment
No person shall be. . . deprived of life,
liberty, or property, without due process of
law; nor shall private property be taken for
public use, without just compensation.
section I of the Fourteenth Amendment
All persons born or naturalized in the United States.
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they
reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens
of the United States nor shall any State. . . deny to
any person within its jurisdiction the equal protection
of the laws.
THE UNITED STATES CODE
28 U.S.C. § 1257
(a) Final judgments or decrees rendered by the highest
court of a State in which a decision could be had. may be
reviewed by the Supreme Court by writ of certiorari where
the validity of a treaty or statute of the United States is
drawn in question or where the validity of a statute of any
State is drawn in question on the ground of its being
repugnant to the Constitution, treaties, or laws of the
United States, or where any title, right, privilege, or
APX-73
immunity is specially set up or claimed under the
Constitution or the treaties or statutes of, or any
commission held or authority exercised under, the United
States.
28 U.S.C. § 1738
§ 1738. State and Territorial statutes and judicial
proceedings; full faith and credit
The Acts of the legislature of any State, Territory, or
Possession of the United States, or copies thereof, shall be
authenticated by affixing the seal of such State, Territory or
Possession thereto.
The records and judicial proceedings of any court of
any such State, Territory or Possession, or copies thereof,
shall be proved or admitted in other courts within the
United States and its Territories and Possessions by the
attestation of the clerk and seal of the court annexed, if a
seal exists, together with a certificate of a judge of the court
that the said attestation is in proper form.
Such Acts, records and judicial proceedings or copies
thereof, so authenticated, shall have the same full faith and
credit in every court within the United States and its
Territories and Possessions as they have by law or usage in
the courts of such State, Territory or Possession from which
they are taken.
APX-74
*
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29 U.S.C. § 185(a)
Suits by and against labor organizations
(a) Venue, amount, and citizenship
Suits for violation of contracts between an employer and
a labor organization representing employees in an
industry affecting commerce as defined in this chapter, or
between any such labor organizations, may be brought in
any district court of the United States having jurisdiction
of the parties, without respect to the amount in
controversy or without regard to the citizenship of the
parties.
42 U.S.C. § 12101
§ 12101. Findings and purpose
(a) Findings
The Congress finds that--
(1) some 43,000,000 Americans have one or more physical
or mental disabilities, and this number is increasing as
the population as a whole is growing older;
(2) historically, society has tended to isolate and segregate
individuals with disabilities, and, despite some
improvements, such forms of discrimination against
individuals with disabilities continue to be a serious and
APX-75
pervasive social problem;
(3) discrimination against individuals with disabilities
persists in such critical areas as employment, housing,
public accommodations, education, transportation,
communication, recreation, institutionalization, health
services, voting, and access to public services;
(4) unlike individuals who have experienced
discrimination on the basis of race, color, sex, national
origin, religion, or age, individuals who have experienced
discrimination on the basis of disability have often had no
legal recourse to redress such discrimination;
(5) individuals with disabilities continually encounter
various forms of discrimination, including outright
intentional exclusion, the discriminatory effects of
architectural, transportation, and communication
barriers, overprotective rules and policies, failure to
make modifications to existing facilities and practices,
exclusionary qualification standards and criteria,
segregation, and relegation to lesser services, programs,
activities, benefits, jobs, or other opportunities;
(6) census data, national polls, and other studies have
documented that people with disabilities, as a group,
occupy an inferior status in our society, and are severely
disadvantaged socially, vocationally, economically, and
educationally;
(7) individuais with disabilities are a discrete and insular
APX-76
minority who have been faced with restrictions and
limitations, subjected to a history of purposeful unequal
treatment, and relegated to a position of political
powerlessness in our society, based on characteristics that
are beyond the control of such individuals and resulting
from stereotypic assumptions not truly indicative of the
individual ability of such individuals to participate in,
and contribute to, society;
(8) the Nation’s proper goals regarding individuals with
disabilities are to assure equality of opportunity, full
participation, independent living, and economic
self-sufficiency for such individuals; and
(9) the continuing existence of unfair and unnecessary
discrimination and prejudice denies people with
disabilities the opportunity to compete on an equal basis
and to pursue those opportunities for which our free
society is justifiably famous, and costs the United States
billions of dollars in unnecessary expenses resulting from
dependency and nonproductivity.
(b) Purpose
It is the purpose of this chapter—
(1) to provide a clear and comprehensive national
mandate for the elimination of discrimination against
individuals with disabilities;
APX-77
(2) to provide clear, strong, consistent, enforceable
standards addressing discrimination against individuals
with disadilities;
(3) to ensure that the Federal Government plays a central
role in enforcing the standards established in this chapter
on behalf of individuals with disabilities; and
(4) to invoke the sweep of congressional authority,
including the power to enforce the fourteenth amendment
and to regulate commerce, in order to address the major
areas of discrimination faced day-to-day by people with
disabilities.
42 U.S.C. § 12102(2)(A)
As used in this chapter:
(2) Disability
The term "disability" means, with respect to an
individual
(A) a physical or mental impairment that
substantially limits one or more of the major life
activities of such individual;
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FEDERAL RULES OF CIVIL PROCEDURE
Rule 15(d)
Rule 15, Amended and Supplemental Pleadings
(d) Supplemental Pleadings. Upon motion of a party
the court may, upon reasonable notice and upon such
terms as are just, permit the party to serve a
supplemental pleading setting forth transactions or
occurrences or events which have happened since the
date of the pleading sought to be supplemented.
Permission may be granted even though the original
pleading is defective in its statement of a claim for
relief or defense. If the court deems it advisable that
the adverse party plead to the supplemental pleading,
it shall so order, specifying the time therefor.
CALIFORNIA GOVERNMENT CODE SECTIONS
Government Code §§ 12926(k) through 12926(m)
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As used in this part in connection with unlawful practices,
unless a different meaning clearly appears from the context:
(k) "Physical disability" includes, but is not limited to, all
of the following:
(1) Having any physiological disease, disorder,
condition, cosmetic disfigurement, or anatomical loss
that does both of the following:
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(A) Affects one or more of the following body
systems: neurological, immunological,
musculoskeletal, special sense organs,
respiratory, including speech organs,
cardiovascular, reproductive, digestive,
genitourinary, hemic and lymphatic, skin, and
endocrine.
(B) Limits an individual’s ability to participate
in major life activities.
(2) Any other health impairment not described in
paragraph (1) that requires special education or
related services.
(3) Being regarded as having or having had a disease,
disorder, condition, cosmetic disfigurement,
anatomical loss, or health impairment described in
paragraph (1) or (2).
(4) Being regarded as having, or having had, a
disease, disorder, condition, cosmetic disfigurement,
anatomical loss, or health impairment that has no
present disabling effect but may become a physical
disability as described in paragraph (1) or (2).
It is the intent of the Legislature that the definition of
"physical disability" in this subdivision shall have the same
meaning as the term "physical handicap" formerly defined
by this subdivision and construed in American National Ins.
Co. v. Fair Employment & Housing Com. (1982) 32 Cal. 3d
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603. However, "physical disability" does not include
conditions excluded from the federal definition of
“disability” pursuant to Section 511 of the Americans with
Disabilities Act of 1990 (42 U.S.C., Sec. 12211).
Additionally, for purposes of this part, the unlawful use of
controlled substances or other drugs shall not be deemed,
in and of itself, to constitute a physical disability.
(!) Notwithstanding subdivisions (i) and (k), if the definition
of "disability" used in the Americans with Disabilities Act
of 1990 (Public Law 101-336) would result in broader
protection of the civil rights of individuals with a menta!
disability or physical disability, as defined in subdivision (i)
or (k), or would include any medical condition not included
within those definitions, then that broader protection or
coverage shall be deemed incorporated by reference into,
and shall prevail over conflicting provisions of, the
definitions in subdivisions (i) and (k).
(m) "Race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
marital status, sex, age, or sexual orientation" includes a
perception that the person has any of those characteristics
or that the person is associated with a person who has, or
is perceived to have, any of those characteristics.
(n) "Reasonable accommodation" may include either of the
following:
(1) Making existing facilities used by employees
readily accessible to, and usable by, individuals with
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disabilities.
(2) Job restructuring, part-time or modified work
schedules, reassignment to a vacant position,
acquisition or modification of equipment or devices,
adjustment or modifications of examinations, training
materials or policies, the provision of qualified
readers or interpreters, and other similar
accommodations for individuals with disabilities.
Government Code § 12940
It shall be an unlawful employment practice, unless based
upon a bona fide occupational qualification, or, except
where based upon applicable security regulations established
by the United States or the State of California:
(a) For an employer, because of the race, religious creed,
color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, or sex of any
person, to refuse to hire or employ the person or to refuse
to select the person for a training program leading to
employment, or to bar or to discharge the person from
employnent or from a training program leading to
employment, or to discriminate against the person in
compensation or in terms, conditions or privileges of
employment.
(1) Nothing in this part shall prohibit an
employer from refusing to hire or discharging
an employee with a physical or mental
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disability, or subject an employer to any legal
liability resulting from the refusal to employ or
the discharge of an employee with a physical or
mental disability, where the employee, because
of his or her physical or mental disability, is
unable to perform his or her essential duties
even with reasonabie accommodations, or
cannot perform those duties in a manner that
would not endanger his or her health or safety
or the health and safety of others even with
reasonable accommodations.
(2) Nothing in this part shall prohibit an
employer from refusing to hire or discharging
an employee who, because of the employee’s
medical condition, is unable to perform his or
her essential duties even with reasonable
accommodations, or cannot perform those
duties in a manner that would not endanger the
employee’s health or safety or the health or
Safety of others even with reasonable
accommodations. Nothing in this part shall
subject an employer to any legal liability
resulting from the refusal to employ or the
discharge of an employee who, because of the
employee’s medical condition, is unable to
perform his or her essential duties, or cannot
perform those duties in a manner that would
not endanger the employee’s health or safety or
the health or safety of others even with
reasonable accommodations.
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(3) Nothing in this part relating to
discrimination on account of marital status
shall do either of the following:
(A) Affect the right of an employer
to reasonably regulate, for reasons
of supervision, safety, security, or
morale, the working of spouses in
the same department, division, or
facility, consistent with the rules
and regulations adopted by the
commission.
(B) Prohibit bona fide health plans
from providing additional or
greater benefits to employees with
dependents than to those employees
without or with fewer dependents.
(4) Nothing in this part relating to
discrimination on account of sex shall affect the
right of an employer to use veteran status as a
factor in employee selection or to give special
consideration to Vietnam era veterans.
(b) For a labor organization, because of the race, religious
creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, marital status, or sex
of any person, to exclude, expel or restrict from its
membership the person, or to provide only second-class or
segregated membership or to discriminate against any
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person because of the race, religious creed, color, national
origin, ancestry, physical disability, mental disability,
medical condition, marital status, or sex of the person in the
election of officers of the labor organization or in the
selection of the labor organization’s staff or to discriminate
in any way against any of its members or against any
employer or against any person employed by an employer.
(c) For any person to discriminate against any person in the
selection or training of that person in any apprenticeship
training program or any other training program leading to
employment because of the race, religious creed, color,
national origin, ancestry, physical disability, mental
disability, medical condition, marital Status, or sex of the
person discriminated against.
(d) For any employer or employment agency, unless
specifically acting in accordance with federal equal
employment opportunity guidelines and regulations
approved by the commission, to print or circulate or cause
to be printed or circulated any publication, or to make any
non-job-related inquiry, either verbal or through use of an
application form, which expresses, directly or indirectly,
any limitation, specification, or discrimination as to race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital
Status, or sex, or any intent to make that limitation,
specification or discrimination. Except as provided in the
Americans with Disabilities Act of 1990 (Public Law
101-336) [FN1] and the regulations adopted pursuant
thereto, nothing in this subdivision shall prohibit any
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employer from making, in connection with prospective
employment, an inquiry as to, or a request for information
regarding, the physical fitness, medical condition, physical
condition, or medical history of applicants if that inquiry or
request for information is directly related and pertinent to
the position the applicant is applying for or directly related
to a determination of whether the applicant would endanger
his or her health or safety or the health or safety of others.
(e) For any employer, labor organization, or employment
agency to harass, discharge, expel, or otherwise
discriminate against any person because the person has
made a report pursuant to Section 11161.8 of the Penal
Code, which prohibits retaliation against hospital employees
who report suspected patient abuse by health facilities or
community care facilities.
(f) For any employer, labor organization, employment
agency, or person to discharge, expel, or otherwise
discriminate against any person because the person has
opposed any practices forbidden under this part or because
the person has filed a complaint, testified, or assisted in any
proceeding under this part.
(g) Fo
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