Preview
SEYFARTH SHAW LLP
Christian J. Rowley (SBN 187293)
crowley@seyfarth.com
Andrea Bednarova (SBN 250709)
abednarova@seyfarth.com
560 Mission Street, 31st Floor
San Francisco, California 94105
Telephone: (415) 397-2823
Facsimile: (415) 397-8549
Attorneys for Defendant
KAISER FOUNDATION HOSPITALS
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
ANDREI BELOROUSOU, Case No: 17CV309032
Plaintiff, DEFENDANT KAISER
FOUNDATION HOSPITALS’
RESPONSE TO PLAINTIFF’S
SEPARATE STATEMENT OF
KAISER FOUNDATION HOSPITALS; and ADDITIONAL “UNDISPUTED
DOES 1 through 50, inclusive, MATERIAL FACTS”
Defendants. Date: April 25, 2019
Time: 9:00 a.m.
Dept: 2
Action Filed: April 24, 2017
Trial Date: August 19, 2019
Plaintiff’s Separate Statement of Additional “Undisputed Material Facts” entirely fails to
comply with CRC 3.1350. It should be stricken and/or disregarded in its entirety. Kaiser
understands that the Rules of Court do not require it, as the moving party, to file a formal response
to Plaintiff’s Separate Statement, but Kaiser submits this statement to point out the most glaring
deficiencies with the numerous purportedly “undisputed material” facts set out in Plaintiff’s
statement.
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DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS
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Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting
Facts and Support Evidence: Evidence:
1. In or around 2005, Andrei Belorousou Undisputed and not material to the issues
(“Belorousou”) was hired by Kaiser raised by Kaiser’s motion. See CRC
Foundation Hospitals (“Kaiser”) to work at 3.1350(f)(3) (“The separate statement
Kaiser San Jose as an Intensive Care Unit should include only material facts and not
(“ICU”) Nurse. any facts that are not pertinent to the
disposition of the motion.”)
Exhibit A - Declaration of Andrei Belorousou in
support of Plaintiff’s Opposition to Defendant’s
Motion for Summary Judgment, or in the
alternative, Summary Adjudication (“Plaintiff’s
Dec.”), ¶ 2 (attached to Plaintiff’s Evidence In
Opposition To Defendant’s Motion For Summary
Judgment or, in the Alternative, Summary
10 Adjudication Of Issues (“Evidence in
Opposition”)).
11
2. Belorousou was a member of the California Disputed as to the statement that
12
Nurses Association and had a union contract Belorousou had a contract with Kaiser
13 with Kaiser during the entirety of his and not material to the issues raised by
employment. Belorousou’s contract covered Kaiser’s motion. See CRC 3.1350(f)(3)
14 various things such as vacation accrual, pay, (“The separate statement should include
and seniority. only material facts and not any facts that are
15
not pertinent to the disposition of the
Exhibit A - Plaintiff’s Dec., ¶ 3.
16 motion.”)
17 Belorousou did not have contract with
18 Kaiser. The contract was between Kaiser
and Plaintiff’s union, which Kaiser
19 (Kaiser’s Exhibit 18.)
20 3. As an ICU Nurse, Belorousou was required to Disputed as to the statement that
21 administer medications—both narcotic and Belorousou had discretion as to the
non-narcotic—to patients in intensive care administration of medication.
22 situations. Some of these medications
included Fentanyl, Ativan, Morphine, The practice of nursing in California is
23 Propofol, and Precedex This required governed by the Nursing Practices Act,
24 intimate knowledge of these medications, Business and Professions Code § 2700 et
their effects on the patients, and when to seq. Under section 2725 of the Business and
25 appropriately administer them. Professions Code, a Registered Nurse may
administer drugs only to “implement a
26 Exhibit A - Plaintiff’s Dec., ¶ 3.
treatment, disease prevention, or
27 rehabilitative regimen ordered by and
within the scope of licensure of a physician,
28 dentist, podiatrist, or clinical psychologist,
2
DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS
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Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting
Facts and Support Evidence: Evidence:
as defined by Section 1316.5 of the Health
and Safety Code.”
Further, Kaiser has its own policies with
respect to administration and other handling
of medications that do not allow nurses to
practice outside of the scope of their nursing
license. (UMF 28-54.)
4. It is expected that the nurse administering the Disputed as to the statement that
medication rely on his or her education and Belorousou had discretion as to the
10 training to make certain judgment calls in administration of medication.
order to provide the best care for the patient
11 in emergency situations. This is known as The practice of nursing in California is
12 situational awareness, and is necessary in governed by the Nursing Practices Act,
nursing. Business and Professions Code § 2700 et
13 seq. Under section 2725 of the Business and
Exhibit A - Plaintiff’s Dec., ¶ 4.
Professions Code, a Registered Nurse may
14 administer drugs only to “implement a
15 treatment, disease prevention, or
rehabilitative regimen ordered by and
16 within the scope of licensure of a physician,
dentist, podiatrist, or clinical psychologist,
17
as defined by Section 1316.5 of the Health
18 and Safety Code.”
19 Further, Kaiser has its own policies with
respect to administration and other handling
20
of medications that do not allow nurses to
21 practice outside of the scope of their nursing
license. (UMF 28-54.)
22
Finally, no Kaiser witness deposed by
23
Plaintiff is familiar with Plaintiff’s concept
24 of nurses’ discretion to practice medicine.
25 (Plaintiff’s Exhibit L: Slack Depo. At 62:1
26 3.)
27 5. From approximately 2005 to approximately Disputed and not material to the issues
October 2016, Belorousou received multiple raised by Kaiser’s motion. See CRC
28 awards, promotions, and accolades 3.1350(f)(3) (“The separate statement
throughout his eleven-year career at Kaiser. should include only material facts and not
3
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Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting
Facts and Support Evidence: Evidence:
Eventually, he advanced to the rank of ICU any facts that are not pertinent to the
Registered Nurse Step IV, and was disposition of the motion.”)
considered the “go-to” nurse for clinical
advice and/or helping during challenging Belorousou’s prior performance before
medical situations. Additionally, complaints were raised about practices his
Belorousou’s performance reviews patient care is not material to the issues
consistently highlighted his leadership ability, raised in Kaiser’s motion. (UMF 28-54.)
and high-level clinical care. For example, in
March 2015, Belorousou’s performance
review indicated that he was a “role model for
other staff in the ICU,” and somebody who
“can be counted on to maintain a high
standard of accuracy and completeness when
10 writing/editing, documenting and/or
transcribing information.” Furthermore, his
11 March 2015 performance review indicated
Andrei “consistently can be counted on to
12 follow physician’s orders.”
13
Exhibit A - Plaintiff’s Dec., ¶ 5; Exhibit B –
14 March 2015 Performance Review.
15
6. Belorousou consistently worked twelve-hour Disputed and not material to the issues
16 shifts at Kaiser, and often took on extra shifts. raised by Kaiser’s motion. See CRC
Belorousou felt it was important for him to 3.1350(f)(3) (“The separate statement
17 take on these extra shifts because oftentimes should include only material facts and not
18 he was the only person willing to work these any facts that are not pertinent to the
shifts. Belorousou felt it was important for disposition of the motion.”)
19 patient care that the ICU not be understaffed,
and he stepped up to take these shifts so that Moreover, Belorousou’s claims that the ICU
20 he could ensure that it would not be. was understaffed and that he was the only
21 one willing to work lack foundation.
Exhibit A - Plaintiff’s Dec., ¶ 6. Indeed, in his declaration, Belorousou
22 claims that he complained of instances of
bypassed seniority -- that somebody
23 received extra work Belorousou thought he
24 was entitled to.
25 (Plaintiff’s Exhibit A: Belorousou Decl., ¶
78 and Plaintiff’s Exhibit II.) ¶
26
27
7. In or around 2014, Belorousou’s physician Disputed and not material to the issues
28 diagnosed him with high blood raised by Kaiser’s motion. See CRC
pressure/hypotension. Belorousou did not 3.1350(f)(3) (“The separate statement
4
DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS
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Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting
Facts and Support Evidence: Evidence:
have any problem with his blood pressure should include only material facts and not
prior to this. any facts that are not pertinent to the
disposition of the motion.”)
Exhibit A - Plaintiff’s Dec., ¶ 7.
8. In or around June and July 2015, Belorousou Disputed and not material to the issues
complained to Human Resources (“HR”) that raised by Kaiser’s motion. See CRC
he was not being paid correctly regarding his 3.1350(f)(3) (“The separate statement
overtime and vacation accrual. Belorousou should include only material facts and not
told HR Consultant Lina Slack (“Slack”) that any facts that are not pertinent to the
he was being underpaid and not correctly disposition of the motion.”)
compensated. Slack simply brushed off his
complaints and told him Kaiser would “look
into it.”
10
Exhibit A - Plaintiff’s Dec., ¶ 8.
11
9. In or around late summer 2015, Belorousou Disputed and not material to the issues
12
complained to ICU Manager Kerianne raised by Kaiser’s motion. See CRC
13 Caligiure (“Caligiure”) that nurses were not 3.1350(f)(3) (“The separate statement
being adequately educated by Kaiser should include only material facts and not
14 regarding safe patient handling, and that the any facts that are not pertinent to the
15 trainings did not meet state standards. Like disposition of the motion.”)
Slack, Caligiure simply brushed off
16 Belorousou’s complaint.
17 Exhibit A - Plaintiff’s Dec., ¶ 9.
18
10. In or around October 2015, Belorousou Disputed and not material to the issues
19 complained to Assistant Line Manager Karen raised by Kaiser’s motion. See CRC
Caruana (“Caruana”) that he was still 3.1350(f)(3) (“The separate statement
20 experiencing ongoing payroll issues and that should include only material facts and not
21 Kaiser was still incorrectly compensating any facts that are not pertinent to the
him. In response, Caruana told Belorousou disposition of the motion.”)
22 that the California Department of Justice was
actively investigating Kaiser’s payroll
23
practices. Belorousou indicated at that time
24 that he would consider contacting the
Department of Justice himself if the payroll
25 discrepancies persisted.
26
Exhibit A - Plaintiff’s Dec., ¶ 10.
27
11. In or around late 2015, Belorousou went to Disputed and not material to the issues
28 Kaiser HR manager Reza Adineh’s raised by Kaiser’s motion. See CRC
(“Adineh”) office to complain about his 3.1350(f)(3) (“The separate statement
5
DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS
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Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting
Facts and Support Evidence: Evidence:
continued payroll issues. While in his office, should include only material facts and not
Belorousou noticed his whiteboard read, any facts that are not pertinent to the
“Andrei’s issues,” which indicated to him that disposition of the motion.”)
Kaiser HR was aware of his payroll
complaints, but still were not doing anything
to correct them.
Exhibit A - Plaintiff’s Dec., ¶ 11.
12. In or around January 2016, Belorousou Disputed and not material to the issues
complained to Caligiure and Caruana that raised by Kaiser’s motion. See CRC
ICU nurses were not adequately trained or 3.1350(f)(3) (“The separate statement
certified to use the Intra-Aortic Balloon Pump should include only material facts and not
10 advanced care cardiac machine. Belorousou any facts that are not pertinent to the
informed them that there were several disposition of the motion.”)
11 occasions he had witnessed where nurses
demonstrated their lack of understanding and
12
training using this machine and that this
13 directly endangered patient care.
14 Exhibit A - Plaintiff’s Dec., ¶ 12.
15
13. In or around January and February 2016, Disputed and not material to the issues
16 Belorousou complained to HR again raised by Kaiser’s motion. See CRC
regarding his payroll issues. Specifically, he 3.1350(f)(3) (“The separate statement
17 was not properly accruing vacation time at the should include only material facts and not
18 correct rate based on his seniority and hours any facts that are not pertinent to the
worked. This was something covered by disposition of the motion.”)
19 Belorousou’s union contract, that Kaiser did
not have the ability to alter.
20
21 Exhibit A - Plaintiff’s Dec., ¶ 13.
22 14. In or around January or February 2016, Disputed and not material to the issues
Belorousou received a call from hospital staff raised by Kaiser’s motion. See CRC
23
on his day off requesting he pick up a four- 3.1350(f)(3) (“The separate statement
24 hour shift. Prior to this call, Belorousou had should include only material facts and not
worked a string of twelve and sixteen hour any facts that are not pertinent to the
25 shifts for several days straight. However, disposition of the motion.”)
Belorousou agreed to take on the shift so that
26
Kaiser could be adequately staffed. During
27 the initial assessment of his first patient,
Caligiure forcefully pulled him aside. She
28 then accused Belorousou of selfishly
scheduling himself for only four-hour shifts,
6
DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS
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Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting
Facts and Support Evidence: Evidence:
and stated, “you just want to work hours that
are convenient for you, you do not care about
your team,” and “you just want to work when
you want, where you want, and with whom
you want!”
Exhibit A - Plaintiff’s Dec., ¶ 14.
15. Belorousou was confused by these Disputed and not material to the issues
accusations, and told Caligiure that he had raised by Kaiser’s motion. See CRC
accepted the shifts in order to alleviate 3.1350(f)(3) (“The separate statement
understaffing, and that he was flexible in should include only material facts and not
doing so. Belorousou also requested Caligiure any facts that are not pertinent to the
10 lower her voice, because at this point she was disposition of the motion.”)
screaming at him. Caligiure responded by
11 stating, “You know what, from now on, no
extra shifts for you. I will call staffing and tell
12
them you cannot be offered any more
13 overtime!”
14 Exhibit A - Plaintiff’s Dec., ¶ 15; Exhibit M –
Melcher Depo at 21:18-22:1.
15
16 16. Caligiure’s threats were clearly against Disputed and not material to the issues
Belorousou’s union agreement, because shifts raised by Kaiser’s motion. See CRC
17 are to be offered to nurses by seniority. 3.1350(f)(3) (“The separate statement
18 should include only material facts and not
Exhibit A - Plaintiff’s Dec., ¶ 16. any facts that are not pertinent to the
19 disposition of the motion.”)
20
21 17. The next day, Belorousou received multiple Disputed and not material to the issues
messages from colleagues that the hospital raised by Kaiser’s motion. See CRC
22 was short on nurses; however, he had not 3.1350(f)(3) (“The separate statement
received a call from staffing asking him to should include only material facts and not
23
come in. Belorousou called Slack to complain any facts that are not pertinent to the
24 about this, and told her that Caligiure’s disposition of the motion.”)
actions endangered patient safety and were
25 clearly retaliatory. Only after informing Slack
about the episode with Caligiure the day
26
before did he receive a call from staffing
27 asking him to come in right away for an extra
shift.
28
Exhibit A - Plaintiff’s Dec., ¶ 17.
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DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS
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Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting
Facts and Support Evidence: Evidence:
18. In or around February 2016, Caligiure Disputed and not material to the issues
confronted Belorousou regarding a reprimand raised by Kaiser’s motion. See CRC
she received from Kaiser’s Compliance 3.1350(f)(3) (“The separate statement
Office. She blamed Belorousou for the should include only material facts and not
reprimand and stated, “How about we give any facts that are not pertinent to the
you six month’s suspension and you take disposition of the motion.”)
some time off?” There was nothing he had
done up to this point to warrant a six-month
suspension. It was clear that Caligiure was
going to begin targeting Belorousou for his
complaints.
10 Exhibit A - Plaintiff’s Dec., ¶ 18.
11 19. In or around late February 2016, Belorousou Disputed and not material to the issues
began joking with fellow ICU Nurse Elena raised by Kaiser’s motion. See CRC
12
Gutierrez (“Gutierrez”) during one of their 3.1350(f)(3) (“The separate statement
13 shifts. As Gutierrez was going to the should include only material facts and not
bathroom, Belorousou told her that she would any facts that are not pertinent to the
14 have to pay to use the bathroom. This was in disposition of the motion.”)
15 reference to the fact that she still owed
Belorousou approximately $2,000 for a The only material facts are: (1) what
16 computer he bought for her using his wife’s Gutierrez reported to Slack; (2) that
discount. Belorousou admitted to the conduct; (3) the
17 reasons why Kaiser decided to discipline
18 Exhibit A - Plaintiff’s Dec., ¶ 19. Belorousou for the crash cart incident.
(UMF 3-5.)
19
20 20. Gutierrez then proceeded to stick her tongue Disputed and not material to the issues
21 out at Belorousou and entered the restroom. raised by Kaiser’s motion. See CRC
Belorousou then partially blocked the 3.1350(f)(3) (“The separate statement
22 restroom door with a cart. His intent was only should include only material facts and not
to joke with Gutierrez, not physically trap her any facts that are not pertinent to the
23
in the restroom. Regardless, he removed the disposition of the motion.”)
24 cart from blocking the door, and Ms.
Gutierrez exited the restroom. The only material facts are: (1) what
25 Gutierrez reported to Slack; (2) that
Exhibit A - Plaintiff’s Dec., ¶ 20; Exhibit I – Belorousou admitted to the conduct; (3) the
26
Plaintiff’s Depo, Volume I: at 75:1-76:14 reasons why Kaiser decided to discipline
27 (attached to Evidence in Opposition). Belorousou for the crash cart incident.
(UMF 3-5.)
28
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DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS
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Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting
Facts and Support Evidence: Evidence:
21. Belorousou received a single day suspension Disputed and not material to the issues
from Kaiser for the cart incident—the first raised by Kaiser’s motion. See CRC
disciplinary action of his eleven-year Kaiser 3.1350(f)(3) (“The separate statement
career. Caligiure made the decision to should include only material facts and not
suspend me. any facts that are not pertinent to the
disposition of the motion.”)
Exhibit A - Plaintiff’s Dec., ¶ 21.
The only material facts are: (1) what
Gutierrez reported to Slack; (2) that
Belorousou admitted to the conduct; (3) the
reasons why Kaiser decided to discipline
Belorousou for the crash cart incident.
(UMF 3-5.)
10
11 22. Tara Kirk (“Kirk”) and Gutierrez had a Disputed and not material to the issues
longstanding feud in the ICU, which raised by Kaiser’s motion. See CRC
12
Belorousou was not a part of and did not 3.1350(f)(3) (“The separate statement
13 know much about. Apparently, Gutierrez felt should include only material facts and not
Belorousou was teaming up with Kirk to any facts that are not pertinent to the
14 embarrass her. disposition of the motion.”)
15
Exhibit A - Plaintiff’s Dec., ¶ 22; Exhibit K – The only material facts are: (1) what
16 Caruana Depo.: at 39:12-17 Gutierrez reported to Slack; (2) that
Belorousou admitted to the conduct; (3) the
17 reasons why Kaiser decided to discipline
18 Belorousou for the crash cart incident.
(UMF 3-5.)
19
20 23. Caligiure interviewed Kirk and Mohini Disputed and not material to the issues
21 Chand, both of whom were present during the raised by Kaiser’s motion. See CRC
cart incident. Both told Caligiure that 3.1350(f)(3) (“The separate statement
22 Belorousou was not bullying Gutierrez, there should include only material facts and not
was no cohort conspiracy against Gutierrez, any facts that are not pertinent to the
23 and that they did not realize the cart was disposition of the motion.”)
24 blocking the door.
The only material facts are: (1) what
25 Exhibit A - Plaintiff’s Dec., ¶ 23. Gutierrez reported to Slack; (2) that
Belorousou admitted to the conduct; (3) the
26
reasons why Kaiser decided to discipline
27 Belorousou for the crash cart incident.
(UMF 3-5.)
28
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DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS
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Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting
Facts and Support Evidence: Evidence:
24. Caligiure told Belorousou that the reason he Disputed and not material to the issues
was being suspended was for teaming up with raised by Kaiser’s motion. See CRC
Kirk against Gutierrez, not for the act of 3.1350(f)(3) (“The separate statement
blocking the doorway with the cart itself. should include only material facts and not
any facts that are not pertinent to the
Exhibit A - Plaintiff’s Dec., ¶ 24. disposition of the motion.”)
The only material facts are: (1) what
Gutierrez reported to Slack; (2) that
Belorousou admitted to the conduct; (3) the
reasons why Kaiser decided to discipline
Belorousou for the crash cart incident.
(UMF 3-5.)
10
11 25. Belorousou complained to Caligiure that he Disputed and not material to the issues
was simply being made a scapegoat for the raised by Kaiser’s motion. See CRC
12
mismanaged ICU and that Caligiure was 3.1350(f)(3) (“The separate statement
13 punishing him disproportionately. should include only material facts and not
any facts that are not pertinent to the
14 Exhibit A - Plaintiff’s Dec., ¶ 25. disposition of the motion.”)
15
The only material facts are: (1) what
16 Gutierrez reported to Slack; (2) that
Belorousou admitted to the conduct; (3) the
17 reasons why Kaiser decided to discipline
18 Belorousou for the crash cart incident.
(UMF 3-5.)
19
20 25. Kaiser is supposed to abide by a term known Disputed and not material to the issues
21 as “Principals of Responsibility” which raised by Kaiser’s motion. See CRC
refers, generally, to treating people fairly. 3.1350(f)(3) (“The separate statement
22 Belorousou did not feel as if he was treated should include only material facts and not
fairly during this incident. any facts that are not pertinent to the
23 disposition of the motion.”)
24 Exhibit A – Plaintiff’s Dec. ¶¶ 25, 26; Exhibit I
– Plaintiff’s Depo., Vol. I, 95:7-12 (attached to The only material facts are: (1) what
25 Evidence in Opposition). Gutierrez reported to Slack; (2) that
Belorousou admitted to the conduct; (3) the
26
reasons why Kaiser decided to discipline
27 Belorousou for the crash cart incident.
(UMF 3-5.)
28
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DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS
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Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting
Facts and Support Evidence: Evidence:
26. A few weeks later, in or around February Disputed and not material to the issues
2016, Belorousou received a telephone call raised by Kaiser’s motion. See CRC
from Kirk. Kirk told Belorousou that Sandra 3.1350(f)(3) (“The separate statement
Coley (“Coley”) was lobbying people in the should include only material facts and not
ICU to tell management that Kirk was a bully any facts that are not pertinent
Preview
SEYFARTH SHAW LLP Christian J. Rowley (SBN 187293) crowley@seyfarth.com Andrea Bednarova (SBN 250709) abednarova@seyfarth.com 560 Mission Street, 31st Floor San Francisco, California 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 Attorneys for Defendant KAISER FOUNDATION HOSPITALS SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA ANDREI BELOROUSOU, Case No: 17CV309032 Plaintiff, DEFENDANT KAISER FOUNDATION HOSPITALS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF KAISER FOUNDATION HOSPITALS; and ADDITIONAL “UNDISPUTED DOES 1 through 50, inclusive, MATERIAL FACTS” Defendants. Date: April 25, 2019 Time: 9:00 a.m. Dept: 2 Action Filed: April 24, 2017 Trial Date: August 19, 2019 Plaintiff’s Separate Statement of Additional “Undisputed Material Facts” entirely fails to comply with CRC 3.1350. It should be stricken and/or disregarded in its entirety. Kaiser understands that the Rules of Court do not require it, as the moving party, to file a formal response to Plaintiff’s Separate Statement, but Kaiser submits this statement to point out the most glaring deficiencies with the numerous purportedly “undisputed material” facts set out in Plaintiff’s statement. 1 DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS 56324718v.1 Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting Facts and Support Evidence: Evidence: 1. In or around 2005, Andrei Belorousou Undisputed and not material to the issues (“Belorousou”) was hired by Kaiser raised by Kaiser’s motion. See CRC Foundation Hospitals (“Kaiser”) to work at 3.1350(f)(3) (“The separate statement Kaiser San Jose as an Intensive Care Unit should include only material facts and not (“ICU”) Nurse. any facts that are not pertinent to the disposition of the motion.”) Exhibit A - Declaration of Andrei Belorousou in support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment, or in the alternative, Summary Adjudication (“Plaintiff’s Dec.”), ¶ 2 (attached to Plaintiff’s Evidence In Opposition To Defendant’s Motion For Summary Judgment or, in the Alternative, Summary 10 Adjudication Of Issues (“Evidence in Opposition”)). 11 2. Belorousou was a member of the California Disputed as to the statement that 12 Nurses Association and had a union contract Belorousou had a contract with Kaiser 13 with Kaiser during the entirety of his and not material to the issues raised by employment. Belorousou’s contract covered Kaiser’s motion. See CRC 3.1350(f)(3) 14 various things such as vacation accrual, pay, (“The separate statement should include and seniority. only material facts and not any facts that are 15 not pertinent to the disposition of the Exhibit A - Plaintiff’s Dec., ¶ 3. 16 motion.”) 17 Belorousou did not have contract with 18 Kaiser. The contract was between Kaiser and Plaintiff’s union, which Kaiser 19 (Kaiser’s Exhibit 18.) 20 3. As an ICU Nurse, Belorousou was required to Disputed as to the statement that 21 administer medications—both narcotic and Belorousou had discretion as to the non-narcotic—to patients in intensive care administration of medication. 22 situations. Some of these medications included Fentanyl, Ativan, Morphine, The practice of nursing in California is 23 Propofol, and Precedex This required governed by the Nursing Practices Act, 24 intimate knowledge of these medications, Business and Professions Code § 2700 et their effects on the patients, and when to seq. Under section 2725 of the Business and 25 appropriately administer them. Professions Code, a Registered Nurse may administer drugs only to “implement a 26 Exhibit A - Plaintiff’s Dec., ¶ 3. treatment, disease prevention, or 27 rehabilitative regimen ordered by and within the scope of licensure of a physician, 28 dentist, podiatrist, or clinical psychologist, 2 DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS 56324718v.1 Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting Facts and Support Evidence: Evidence: as defined by Section 1316.5 of the Health and Safety Code.” Further, Kaiser has its own policies with respect to administration and other handling of medications that do not allow nurses to practice outside of the scope of their nursing license. (UMF 28-54.) 4. It is expected that the nurse administering the Disputed as to the statement that medication rely on his or her education and Belorousou had discretion as to the 10 training to make certain judgment calls in administration of medication. order to provide the best care for the patient 11 in emergency situations. This is known as The practice of nursing in California is 12 situational awareness, and is necessary in governed by the Nursing Practices Act, nursing. Business and Professions Code § 2700 et 13 seq. Under section 2725 of the Business and Exhibit A - Plaintiff’s Dec., ¶ 4. Professions Code, a Registered Nurse may 14 administer drugs only to “implement a 15 treatment, disease prevention, or rehabilitative regimen ordered by and 16 within the scope of licensure of a physician, dentist, podiatrist, or clinical psychologist, 17 as defined by Section 1316.5 of the Health 18 and Safety Code.” 19 Further, Kaiser has its own policies with respect to administration and other handling 20 of medications that do not allow nurses to 21 practice outside of the scope of their nursing license. (UMF 28-54.) 22 Finally, no Kaiser witness deposed by 23 Plaintiff is familiar with Plaintiff’s concept 24 of nurses’ discretion to practice medicine. 25 (Plaintiff’s Exhibit L: Slack Depo. At 62:1 26 3.) 27 5. From approximately 2005 to approximately Disputed and not material to the issues October 2016, Belorousou received multiple raised by Kaiser’s motion. See CRC 28 awards, promotions, and accolades 3.1350(f)(3) (“The separate statement throughout his eleven-year career at Kaiser. should include only material facts and not 3 DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS 56324718v.1 Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting Facts and Support Evidence: Evidence: Eventually, he advanced to the rank of ICU any facts that are not pertinent to the Registered Nurse Step IV, and was disposition of the motion.”) considered the “go-to” nurse for clinical advice and/or helping during challenging Belorousou’s prior performance before medical situations. Additionally, complaints were raised about practices his Belorousou’s performance reviews patient care is not material to the issues consistently highlighted his leadership ability, raised in Kaiser’s motion. (UMF 28-54.) and high-level clinical care. For example, in March 2015, Belorousou’s performance review indicated that he was a “role model for other staff in the ICU,” and somebody who “can be counted on to maintain a high standard of accuracy and completeness when 10 writing/editing, documenting and/or transcribing information.” Furthermore, his 11 March 2015 performance review indicated Andrei “consistently can be counted on to 12 follow physician’s orders.” 13 Exhibit A - Plaintiff’s Dec., ¶ 5; Exhibit B – 14 March 2015 Performance Review. 15 6. Belorousou consistently worked twelve-hour Disputed and not material to the issues 16 shifts at Kaiser, and often took on extra shifts. raised by Kaiser’s motion. See CRC Belorousou felt it was important for him to 3.1350(f)(3) (“The separate statement 17 take on these extra shifts because oftentimes should include only material facts and not 18 he was the only person willing to work these any facts that are not pertinent to the shifts. Belorousou felt it was important for disposition of the motion.”) 19 patient care that the ICU not be understaffed, and he stepped up to take these shifts so that Moreover, Belorousou’s claims that the ICU 20 he could ensure that it would not be. was understaffed and that he was the only 21 one willing to work lack foundation. Exhibit A - Plaintiff’s Dec., ¶ 6. Indeed, in his declaration, Belorousou 22 claims that he complained of instances of bypassed seniority -- that somebody 23 received extra work Belorousou thought he 24 was entitled to. 25 (Plaintiff’s Exhibit A: Belorousou Decl., ¶ 78 and Plaintiff’s Exhibit II.) ¶ 26 27 7. In or around 2014, Belorousou’s physician Disputed and not material to the issues 28 diagnosed him with high blood raised by Kaiser’s motion. See CRC pressure/hypotension. Belorousou did not 3.1350(f)(3) (“The separate statement 4 DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS 56324718v.1 Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting Facts and Support Evidence: Evidence: have any problem with his blood pressure should include only material facts and not prior to this. any facts that are not pertinent to the disposition of the motion.”) Exhibit A - Plaintiff’s Dec., ¶ 7. 8. In or around June and July 2015, Belorousou Disputed and not material to the issues complained to Human Resources (“HR”) that raised by Kaiser’s motion. See CRC he was not being paid correctly regarding his 3.1350(f)(3) (“The separate statement overtime and vacation accrual. Belorousou should include only material facts and not told HR Consultant Lina Slack (“Slack”) that any facts that are not pertinent to the he was being underpaid and not correctly disposition of the motion.”) compensated. Slack simply brushed off his complaints and told him Kaiser would “look into it.” 10 Exhibit A - Plaintiff’s Dec., ¶ 8. 11 9. In or around late summer 2015, Belorousou Disputed and not material to the issues 12 complained to ICU Manager Kerianne raised by Kaiser’s motion. See CRC 13 Caligiure (“Caligiure”) that nurses were not 3.1350(f)(3) (“The separate statement being adequately educated by Kaiser should include only material facts and not 14 regarding safe patient handling, and that the any facts that are not pertinent to the 15 trainings did not meet state standards. Like disposition of the motion.”) Slack, Caligiure simply brushed off 16 Belorousou’s complaint. 17 Exhibit A - Plaintiff’s Dec., ¶ 9. 18 10. In or around October 2015, Belorousou Disputed and not material to the issues 19 complained to Assistant Line Manager Karen raised by Kaiser’s motion. See CRC Caruana (“Caruana”) that he was still 3.1350(f)(3) (“The separate statement 20 experiencing ongoing payroll issues and that should include only material facts and not 21 Kaiser was still incorrectly compensating any facts that are not pertinent to the him. In response, Caruana told Belorousou disposition of the motion.”) 22 that the California Department of Justice was actively investigating Kaiser’s payroll 23 practices. Belorousou indicated at that time 24 that he would consider contacting the Department of Justice himself if the payroll 25 discrepancies persisted. 26 Exhibit A - Plaintiff’s Dec., ¶ 10. 27 11. In or around late 2015, Belorousou went to Disputed and not material to the issues 28 Kaiser HR manager Reza Adineh’s raised by Kaiser’s motion. See CRC (“Adineh”) office to complain about his 3.1350(f)(3) (“The separate statement 5 DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS 56324718v.1 Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting Facts and Support Evidence: Evidence: continued payroll issues. While in his office, should include only material facts and not Belorousou noticed his whiteboard read, any facts that are not pertinent to the “Andrei’s issues,” which indicated to him that disposition of the motion.”) Kaiser HR was aware of his payroll complaints, but still were not doing anything to correct them. Exhibit A - Plaintiff’s Dec., ¶ 11. 12. In or around January 2016, Belorousou Disputed and not material to the issues complained to Caligiure and Caruana that raised by Kaiser’s motion. See CRC ICU nurses were not adequately trained or 3.1350(f)(3) (“The separate statement certified to use the Intra-Aortic Balloon Pump should include only material facts and not 10 advanced care cardiac machine. Belorousou any facts that are not pertinent to the informed them that there were several disposition of the motion.”) 11 occasions he had witnessed where nurses demonstrated their lack of understanding and 12 training using this machine and that this 13 directly endangered patient care. 14 Exhibit A - Plaintiff’s Dec., ¶ 12. 15 13. In or around January and February 2016, Disputed and not material to the issues 16 Belorousou complained to HR again raised by Kaiser’s motion. See CRC regarding his payroll issues. Specifically, he 3.1350(f)(3) (“The separate statement 17 was not properly accruing vacation time at the should include only material facts and not 18 correct rate based on his seniority and hours any facts that are not pertinent to the worked. This was something covered by disposition of the motion.”) 19 Belorousou’s union contract, that Kaiser did not have the ability to alter. 20 21 Exhibit A - Plaintiff’s Dec., ¶ 13. 22 14. In or around January or February 2016, Disputed and not material to the issues Belorousou received a call from hospital staff raised by Kaiser’s motion. See CRC 23 on his day off requesting he pick up a four- 3.1350(f)(3) (“The separate statement 24 hour shift. Prior to this call, Belorousou had should include only material facts and not worked a string of twelve and sixteen hour any facts that are not pertinent to the 25 shifts for several days straight. However, disposition of the motion.”) Belorousou agreed to take on the shift so that 26 Kaiser could be adequately staffed. During 27 the initial assessment of his first patient, Caligiure forcefully pulled him aside. She 28 then accused Belorousou of selfishly scheduling himself for only four-hour shifts, 6 DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS 56324718v.1 Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting Facts and Support Evidence: Evidence: and stated, “you just want to work hours that are convenient for you, you do not care about your team,” and “you just want to work when you want, where you want, and with whom you want!” Exhibit A - Plaintiff’s Dec., ¶ 14. 15. Belorousou was confused by these Disputed and not material to the issues accusations, and told Caligiure that he had raised by Kaiser’s motion. See CRC accepted the shifts in order to alleviate 3.1350(f)(3) (“The separate statement understaffing, and that he was flexible in should include only material facts and not doing so. Belorousou also requested Caligiure any facts that are not pertinent to the 10 lower her voice, because at this point she was disposition of the motion.”) screaming at him. Caligiure responded by 11 stating, “You know what, from now on, no extra shifts for you. I will call staffing and tell 12 them you cannot be offered any more 13 overtime!” 14 Exhibit A - Plaintiff’s Dec., ¶ 15; Exhibit M – Melcher Depo at 21:18-22:1. 15 16 16. Caligiure’s threats were clearly against Disputed and not material to the issues Belorousou’s union agreement, because shifts raised by Kaiser’s motion. See CRC 17 are to be offered to nurses by seniority. 3.1350(f)(3) (“The separate statement 18 should include only material facts and not Exhibit A - Plaintiff’s Dec., ¶ 16. any facts that are not pertinent to the 19 disposition of the motion.”) 20 21 17. The next day, Belorousou received multiple Disputed and not material to the issues messages from colleagues that the hospital raised by Kaiser’s motion. See CRC 22 was short on nurses; however, he had not 3.1350(f)(3) (“The separate statement received a call from staffing asking him to should include only material facts and not 23 come in. Belorousou called Slack to complain any facts that are not pertinent to the 24 about this, and told her that Caligiure’s disposition of the motion.”) actions endangered patient safety and were 25 clearly retaliatory. Only after informing Slack about the episode with Caligiure the day 26 before did he receive a call from staffing 27 asking him to come in right away for an extra shift. 28 Exhibit A - Plaintiff’s Dec., ¶ 17. 7 DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS 56324718v.1 Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting Facts and Support Evidence: Evidence: 18. In or around February 2016, Caligiure Disputed and not material to the issues confronted Belorousou regarding a reprimand raised by Kaiser’s motion. See CRC she received from Kaiser’s Compliance 3.1350(f)(3) (“The separate statement Office. She blamed Belorousou for the should include only material facts and not reprimand and stated, “How about we give any facts that are not pertinent to the you six month’s suspension and you take disposition of the motion.”) some time off?” There was nothing he had done up to this point to warrant a six-month suspension. It was clear that Caligiure was going to begin targeting Belorousou for his complaints. 10 Exhibit A - Plaintiff’s Dec., ¶ 18. 11 19. In or around late February 2016, Belorousou Disputed and not material to the issues began joking with fellow ICU Nurse Elena raised by Kaiser’s motion. See CRC 12 Gutierrez (“Gutierrez”) during one of their 3.1350(f)(3) (“The separate statement 13 shifts. As Gutierrez was going to the should include only material facts and not bathroom, Belorousou told her that she would any facts that are not pertinent to the 14 have to pay to use the bathroom. This was in disposition of the motion.”) 15 reference to the fact that she still owed Belorousou approximately $2,000 for a The only material facts are: (1) what 16 computer he bought for her using his wife’s Gutierrez reported to Slack; (2) that discount. Belorousou admitted to the conduct; (3) the 17 reasons why Kaiser decided to discipline 18 Exhibit A - Plaintiff’s Dec., ¶ 19. Belorousou for the crash cart incident. (UMF 3-5.) 19 20 20. Gutierrez then proceeded to stick her tongue Disputed and not material to the issues 21 out at Belorousou and entered the restroom. raised by Kaiser’s motion. See CRC Belorousou then partially blocked the 3.1350(f)(3) (“The separate statement 22 restroom door with a cart. His intent was only should include only material facts and not to joke with Gutierrez, not physically trap her any facts that are not pertinent to the 23 in the restroom. Regardless, he removed the disposition of the motion.”) 24 cart from blocking the door, and Ms. Gutierrez exited the restroom. The only material facts are: (1) what 25 Gutierrez reported to Slack; (2) that Exhibit A - Plaintiff’s Dec., ¶ 20; Exhibit I – Belorousou admitted to the conduct; (3) the 26 Plaintiff’s Depo, Volume I: at 75:1-76:14 reasons why Kaiser decided to discipline 27 (attached to Evidence in Opposition). Belorousou for the crash cart incident. (UMF 3-5.) 28 8 DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS 56324718v.1 Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting Facts and Support Evidence: Evidence: 21. Belorousou received a single day suspension Disputed and not material to the issues from Kaiser for the cart incident—the first raised by Kaiser’s motion. See CRC disciplinary action of his eleven-year Kaiser 3.1350(f)(3) (“The separate statement career. Caligiure made the decision to should include only material facts and not suspend me. any facts that are not pertinent to the disposition of the motion.”) Exhibit A - Plaintiff’s Dec., ¶ 21. The only material facts are: (1) what Gutierrez reported to Slack; (2) that Belorousou admitted to the conduct; (3) the reasons why Kaiser decided to discipline Belorousou for the crash cart incident. (UMF 3-5.) 10 11 22. Tara Kirk (“Kirk”) and Gutierrez had a Disputed and not material to the issues longstanding feud in the ICU, which raised by Kaiser’s motion. See CRC 12 Belorousou was not a part of and did not 3.1350(f)(3) (“The separate statement 13 know much about. Apparently, Gutierrez felt should include only material facts and not Belorousou was teaming up with Kirk to any facts that are not pertinent to the 14 embarrass her. disposition of the motion.”) 15 Exhibit A - Plaintiff’s Dec., ¶ 22; Exhibit K – The only material facts are: (1) what 16 Caruana Depo.: at 39:12-17 Gutierrez reported to Slack; (2) that Belorousou admitted to the conduct; (3) the 17 reasons why Kaiser decided to discipline 18 Belorousou for the crash cart incident. (UMF 3-5.) 19 20 23. Caligiure interviewed Kirk and Mohini Disputed and not material to the issues 21 Chand, both of whom were present during the raised by Kaiser’s motion. See CRC cart incident. Both told Caligiure that 3.1350(f)(3) (“The separate statement 22 Belorousou was not bullying Gutierrez, there should include only material facts and not was no cohort conspiracy against Gutierrez, any facts that are not pertinent to the 23 and that they did not realize the cart was disposition of the motion.”) 24 blocking the door. The only material facts are: (1) what 25 Exhibit A - Plaintiff’s Dec., ¶ 23. Gutierrez reported to Slack; (2) that Belorousou admitted to the conduct; (3) the 26 reasons why Kaiser decided to discipline 27 Belorousou for the crash cart incident. (UMF 3-5.) 28 9 DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS 56324718v.1 Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting Facts and Support Evidence: Evidence: 24. Caligiure told Belorousou that the reason he Disputed and not material to the issues was being suspended was for teaming up with raised by Kaiser’s motion. See CRC Kirk against Gutierrez, not for the act of 3.1350(f)(3) (“The separate statement blocking the doorway with the cart itself. should include only material facts and not any facts that are not pertinent to the Exhibit A - Plaintiff’s Dec., ¶ 24. disposition of the motion.”) The only material facts are: (1) what Gutierrez reported to Slack; (2) that Belorousou admitted to the conduct; (3) the reasons why Kaiser decided to discipline Belorousou for the crash cart incident. (UMF 3-5.) 10 11 25. Belorousou complained to Caligiure that he Disputed and not material to the issues was simply being made a scapegoat for the raised by Kaiser’s motion. See CRC 12 mismanaged ICU and that Caligiure was 3.1350(f)(3) (“The separate statement 13 punishing him disproportionately. should include only material facts and not any facts that are not pertinent to the 14 Exhibit A - Plaintiff’s Dec., ¶ 25. disposition of the motion.”) 15 The only material facts are: (1) what 16 Gutierrez reported to Slack; (2) that Belorousou admitted to the conduct; (3) the 17 reasons why Kaiser decided to discipline 18 Belorousou for the crash cart incident. (UMF 3-5.) 19 20 25. Kaiser is supposed to abide by a term known Disputed and not material to the issues 21 as “Principals of Responsibility” which raised by Kaiser’s motion. See CRC refers, generally, to treating people fairly. 3.1350(f)(3) (“The separate statement 22 Belorousou did not feel as if he was treated should include only material facts and not fairly during this incident. any facts that are not pertinent to the 23 disposition of the motion.”) 24 Exhibit A – Plaintiff’s Dec. ¶¶ 25, 26; Exhibit I – Plaintiff’s Depo., Vol. I, 95:7-12 (attached to The only material facts are: (1) what 25 Evidence in Opposition). Gutierrez reported to Slack; (2) that Belorousou admitted to the conduct; (3) the 26 reasons why Kaiser decided to discipline 27 Belorousou for the crash cart incident. (UMF 3-5.) 28 10 DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL UNDISPUTED FACTS 56324718v.1 Plaintiff’s Additional Undisputed Material Defendant’s Response and Supporting Facts and Support Evidence: Evidence: 26. A few weeks later, in or around February Disputed and not material to the issues 2016, Belorousou received a telephone call raised by Kaiser’s motion. See CRC from Kirk. Kirk told Belorousou that Sandra 3.1350(f)(3) (“The separate statement Coley (“Coley”) was lobbying people in the should include only material facts and not ICU to tell management that Kirk was a bully any facts that are not pertinent