Kaiser Fired Pharmacy Worker for Taking Sick Time, She Says
11-23-2013 02:38:00

     STOCKTON, Calif. (CN) - When a Kaiser employee took three sick days one month and four the next, her supervisor told her she could accept a demotion or be fired, the woman claims in a lawsuit filed in San Joaquin County Superior Court.
     Joellen Burke sued Kaiser Permanente dba Kaiser Permanente Medical Group, Inc. for employment discrimination based on medical condition, wrongful termination, intentional infliction of emotional distress and negligent supervision. She sued her former supervisor, Kenneth Lee, for harassment and retaliation, intentional infliction of emotional distress and negligent supervision.
     Burke says she worked for Kaiser as a Pharmacy Clerk/Cashier from 2000 until she was fired in 2011. When she missed three days in Aug. 2011 because she had the flu, and another four days in Sept. 2011 following a car accident, Burke says she provided a valid doctor’s note both times. However, on or around Oct. 17, Kenneth Lee “called plaintiff into the office and advised plaintiff that, due to her recent absences, she would be terminated unless she agreed to resign from her full-time, benefited position and accept a demotion to a non-benefited, on-call position,” the complaint states.
     Burke declined the demotion, and was fired, she says.
     According to Burke’s complaint, she is protected by a collective bargaining agreement (CBA) which “prohibited termination at will and which required good and just cause for termination, and which also required progressive and proportional discipline such that minor disciplinary infractions, including tardiness, would not result in termination, but rather coaching and other progressively severe but proportional measures.”
     Burke’s complaint also notes “tardies of less than ten (10) minutes were common in her department, did not constitute grounds for discipline under the CBA, and were often overlooked or ignored with respect to other employees.”
     The complaint describes administrative remedies Burke says she has pursued.
     Kaiser contested Burke’s application for unemployment benefits, but “after a due process hearing before the unemployment agency, it was adjudicated that plaintiff was not guilty of serious or willful misconduct,” it says.
     “Thereafter, plaintiff is informed and believes, and thereupon alleges, that the Union grieved defendant’s termination decision, but that this grievance either remains unresolved, has been abandoned, or has not been submitted to or decided by arbitration, such that plaintiff’s termination remains intact,” it continues.
     Burke has received a Right to Sue Letter from the Department of Fair Employment and Housing, it says.
     Plaintiff seeks general and compensatory damages, prejudgment interest, special and economic damages, punitive or exemplary damages, attorney fees, costs of suit and expert witness fees. She is represented by Mark J. Alexander of Modesto, Calif.
39-2013-00303681-CU-WT-STK