Kaiser Refused to Accommodate Nurse Injured at Work, She Claims
6-11-2014 01:03:00

     MARTINEZ, Calif. (CN) - After a nurse was disabled by toxic fumes at work, Kaiser refused to accommodate her, she claims in Contra Costa Superior Court.


     Lenee Short sued Kaiser Foundation Health Plan Inc., Kaiser Foundation Hospitals and The Permanente Medical Group, for disability discrimination, failure to reasonably accommodate disability, failure to engage in the interactive process, California Health and Safety Code violation, California Labor Code violations, retaliation and adverse actions.

     According to Short’s 33-page lawsuit, she and several other nurses were exposed to an unidentified toxic chemical in 2009. Mold had grown under the flooring in the allergy clinic and workers prepared the area for treatment by sealing off the vents in the room with black plastic and duct tape over a hot June weekend, Short says.

     “Plaintiff and the other nurses were told that the project would not be completed by Monday, but that it would be fine to work in the area,” the complaint states. However, the duct tape melted in the heat and the nurses “immediately began to get sick,” when they came in Monday morning, the complaint states.

     Plaintiff's symptoms included: inability to think clearly or process actions, feeling sick to her stomach, headaches, loss of balance and motor function, slurred speech and hazy/blurred vision, the complaint states.

     Afterward, Short was diagnosed with “acalculia, a disability with symptoms including difficulty performing simple mathematical tasks, such as adding, subtracting, multiplying, and even simply stating which of two numbers is larger,” the complaint states. “Plaintiff’s also has difficulty writing down numbers correctly when hearing them. Plaintiff’s disability also made it more difficult for her to quickly learn new or unfamiliar tasks,” it says.

     Short’s lawsuit says she filed a complaint about the incident with California’s Occupational Safety and Health Administration (OSHA) in Jan. 2011 and a second complaint in Feb. 2012 when she smelled “a strong gas odor coming from the landing dock.”

     According to the lawsuit, OSHA’s 2011 report described the nurses’ symptoms as “consistent with exposure to CO gas,” and its 2012 report said OSHA “could not confirm any gas or chemical.”

     Before the chemical exposure, Short's job was to provide assistance to patients at high risk for stroke and heart attacks, according to the lawsuit.

     The same month Short made her first OSHA complaint, “Kaiser began placing additional unfamiliar duties on plaintiff," such as requesting that plaintiff start performing diabetes care management for certain patients, a task that plaintiff had only briefly performed back in 2006, according to the lawsuit.

     In addition to retaliation described in her complaint, Short says that in Nov. 2012, Kaiser began repeatedly asking her doctor for “clarification” of the accommodation she needed. “Every time plaintiff’s doctor provided the clarification requested, Kaiser would request additional clarification and engage in putting plaintiff through a malicious runaround,” her complaint states.

     This clarification spelled out that Short could work a full 40-hour week but could not safely do diabetes care management for more than one patient per day, because of her inability to quickly and accurately process numbers, according to the complaint. 

     Nonetheless, Short says Kaiser’s Human Resources Disability Manager “encouraged plaintiff to lie and to have her doctor lie by providing a note saying that she was 100% fine and able to work without any accommodation."

     Short knew she was unable to provide diabetes care management due to her disability, she says.

     When she explained her concerns to the Human Resources Disability Manager, she responded that “unless she got a note saying that there was nothing wrong with her, ‘your paycheck will be cut in half’ and ‘your kids will have a really nice Christmas,’” according to the complaint.

     The next day “plaintiff was placed in the flu clinic and was forbidden from performing any other tasks besides providing flu shots. Plaintiff was banned from working more than 24 hours per week or more than three days per week. This effectively cut her paychecks in half,” according to the complaint (emphasis in complaint).

     Ultimately, in September 2013 Kaiser put Short on non-paid industrial leave of absence, according to the complaint.

     Short seeks economic and non-economic damages, special and punitive damages, declaratory relief, prejudgment interest, attorneys’ fees and costs of suit. She is represented by Charles T. Matthews of The Matthews Group in Arcadia.

MSC14-00601