Case 2:21-cv-04471 Document 1 Filed 05/28/21 Page 1 of 13 Page ID #:1
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`BRIAN S. ARBETTER (SBN 159816)
`ba@sedbetter.com
`SEDDIGH ARBETTER LLP
`6121 Sunset Boulevard
`Los Angeles, CA 90028
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`(917) 267-8033
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`Attorneys for Plaintiff
`PATRICIA MAYBERRY
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`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`PATRICIA MAYBERRY, an
`individual,
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`Plaintiff,
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`vs.
`PROVIDENCE HOLY CROSS
`MEDICAL CENTER, a California
`corporation; PROVIDENCE HEALTH
`& SERVICES, a Washington
`corporation; PROVIDENCE HEALTH
`SYSTEM - SOUTHERN
`CALIFORNIA, a California
`corporation; and DOES 1 through 50,
`inclusive,
`
`Defendants.
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`CASE NO.
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`COMPLAINT FOR:
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`1. EMPLOYMENT DISCRIMINATION
`ON THE BASIS OF AGE IN
`VIOLATION OF U.S. AGE
`DISCRIMINATION IN
`EMPLOYMENT ACT;
`2. EMPLOYMENT DISCRIMINATION
`ON THE BASIS OF GENDER/SEX IN
`VIOLATION OF US TITLE VII;
`3. EMPLOYMENT RETALIATION IN
`VIOLATION OF US TITLE VII;
`4. BREACH OF IMPLIED
`EMPLOYMENT CONTRACT;
`5. BREACH OF IMPLIED COVENANT
`OF GOOD FAITH AND FAIR
`DEALING;
`INTENTIONAL INFLICTION OF
`6.
`EMOTIONAL DISTRESS;
`7. NEGLIGENT INFLICTION OF
`EMOTIONAL DISTRESS; AND
`8. BREACH OF FIDUCIARY DUTY FOR
`DEFINED CONTRIBUTION BENEFIT
`PLAN AND CONTRACT.
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`DEMAND FOR JURY TRIAL
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`COMPLAINT
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`DAAR & NEWMAN, PLC
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`Case 2:21-cv-04471 Document 1 Filed 05/28/21 Page 2 of 13 Page ID #:2
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`COMES NOW Plaintiff Patricia Mayberry (“Mayberry”) and alleges as follows:
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`THE PARTIES
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`Plaintiff Mayberry is, and at all material times was, an individual resident of
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`1.
`California.
`Defendant Providence Holy Cross Medical Center (“Providence Holy
`2.
`Cross”) is, and at all material times was, a corporate entity organized under the laws of
`and authorized to do business in California with its primary headquarters located at 15031
`Rinaldi Street, Mission Hills, CA 91345.
`Defendant Providence Health & Services (“Providence Health”) is, and at
`3.
`all material times was, a corporate entity organized under the laws of Washington and
`registered to do business in California with its primary headquarters located at 1801 Lind
`Avenue SW, Renton, Washington 98057-3368.
`Defendant Providence Health System - Southern California (“Providence
`4.
`SoCal”) is, and at all material times was, a corporate entity organized under the laws of
`and authorized to do business in California with its primary headquarters located at 4180
`West 190th Street, Torrance, California 90504-5513.
`The true names and capacities, whether individual, corporate, associate or
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`otherwise, of the defendants DOES 1 through 50, inclusive, and each of them, are
`unknown to Mayberry, who therefore sues said defendants by said fictitious names.
`When the identities and capacities of DOES 1 through 50, inclusive, become known to
`Mayberry, she will amend her Complaint. The term “Defendants,” as used herein, shall
`include each of said fictitiously-named defendants and Providence Holy Cross,
`Providence Health and Providence SoCal.
`6. Mayberry is informed and believes, and thereon alleges, that certain other
`defendants were the agents, employees and representatives of certain of the remaining
`defendants, and were at all times acting within the purpose and scope of said agency and
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`COMPLAINT
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`Case 2:21-cv-04471 Document 1 Filed 05/28/21 Page 3 of 13 Page ID #:3
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`employment, and each said defendant has ratified and approved the acts of its agents,
`employees and representatives, and that each actively participated in, aided and abetted, or
`assisted one another in the commission of the wrongdoing alleged in this Complaint.
`Each of the Defendants employs more than twenty (20) employees, and at
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`all relevant times did so.
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`JURISDICTION AND VENUE
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`This Court has venue and jurisdiction over this dispute because it arises in
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`or about Los Angeles, California under federal law, namely U.S. Title VII of the Civil
`Rights Act of 1964, the U.S. Age Discrimination in Employment Act and the U.S. Older
`Workers Benefit Protection Act (29 U.S. Code § 621, et seq.). This Court has subject
`matter jurisdiction over these federal question claims pursuant to 28 U.S.C. §§ 1331 and
`1338(a) and (b). This Complaint also alleges violations of California law. This Court has
`jurisdiction over these state law claims pursuant to its supplemental jurisdiction, 28 U.S.C.
`§ 1367(a)
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`FACTUAL ALLEGATIONS COMMON TO
`ALL CLAIMS FOR RELIEF
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`Defendants hold themselves out publicly as a moral and fair institution and
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`claim to stand for a mission statement, which is posted on the public internet.
`Their mission statement provides in relevant part as follows: “INTEGRITY
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`. . . We hold ourselves accountable to do the right things for the right reasons. We
`speak the truth with courage and respect. We pursue authenticity with humility and
`simplicity.” (Emphasis added.)
`11. As this lawsuit demonstrates, Defendants’ mission statement is a farce. In
`reality, Defendants do not act with integrity, and they do not do “the right things for the
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`COMPLAINT
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`Case 2:21-cv-04471 Document 1 Filed 05/28/21 Page 4 of 13 Page ID #:4
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`right reasons.” To the contrary, Defendants engage in discrimination and retaliation, even
`against their senior most tenured and aged employees. Their conduct is the antithesis to
`the values contained in the mission statement that they self-proclaim.
`Providence Health is a more than $12 billion annual gross revenue health
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`care and hospital business. Providence SoCal has gross annual revenues in excess of $1.5
`billion.
`Providence SoCal is comprised of 13 acute care hospitals in Los Angeles,
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`Orange and San Bernardino counties, and the High Desert, with a total inpatient market
`share of twenty-five percent (25%) in their service areas in 2018, as reported by the Office
`of Statewide Health Planning and Development. In Los Angeles County, the System
`includes six acute care facilities. Providence SoCal’s largest hospital, Providence St.
`Joseph Medical Center, is in Burbank. The System also includes hospitals in Mission
`Hills, San Pedro, Tarzana, Torrance and Santa Monica. Providence Medical Foundation
`(“PMF”) operates over fifty (50) practice locations in the market, offering more than 20
`types of specialty care. PMF includes the Facey, PMI and Providence St. John’s medical
`foundations, and in addition, the System includes seven acute care facilities within Orange
`and San Bernardino counties: Apple Valley, Fullerton, Mission Viejo, Laguna Beach,
`Newport Beach, Irvine and Orange, California. Mission Hospital is located on two
`campuses in Mission Viejo and Laguna Beach, and maintains the region’s level II trauma
`center, as well as a women’s center. Hoag Hospital, which also is composed of two
`campuses, in Newport Beach and Irvine, also includes Hoag Orthopedic Institute. St.
`Joseph Heritage Healthcare, a medical foundation, operates clinics in the region with its
`contracted physician partners.
`14. Defendants Providence Health and Providence SoCal first hired Mayberry
`on or about July 1978 as a Registered Nurse at their Providence Saint Joseph Medical
`Center, which was at the time their only Southern California location.
`In or about April 2008, Defendants transferred Mayberry to their Holy Cross
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`Hospital, which was acquired in or about 1996. By this time, Defendants Providence
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`COMPLAINT
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`Case 2:21-cv-04471 Document 1 Filed 05/28/21 Page 5 of 13 Page ID #:5
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`Health and Providence SoCal had also acquired Little Company of Mary & San Pedro,
`Tarzana and St. John’s. Later, in 2016 or 2017, they acquired St. Joseph Health.
`In or about December 2017, Defendants promoted Mayberry to be Chief
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`Operating Officer/Interim Chief Nursing Officer (COO/CNO) of their Providence Holy
`Cross facility. In or about August 2018, Defendants made Mayberry exclusively its
`secular COO of Holy Cross.
`17. At all relevant times, Mayberry performed her job in a fully satisfactory
`capacity, and she never received any performance reviews critical of her job performance.
`In early 2020, Defendants decided to conduct a group layoff throughout the
`18.
`Southern California region. Providence SoCal’s Executive Vice President and Chief
`Executive Erik Wexler and its Chief Human Resource Officer Pamela Stahl were part of
`the decision-making group who chose which employees throughout the region would be
`selected for layoff. Mr. Wexler and Ms. Stahl issued written communications confirming
`that the group layoff was being conducted on a regional basis throughout the Southern
`California region.
`19. After more than forty-two (42) years of employment, Mayberry had an implied
`contract for continued employment with Defendants. Terms of this contract were confirmed by
`Bernard Klein, MD, Chief Executive, Providence Holy Cross MedicalCenter. Repeatedly
`throughout her employment, Klein told her that she was excellent and that he could not function
`without her. A number of times, he told her to not leave the company and to stay indefinitely.
`20. As part of its 2020 group layoff, Defendants chose Mayberry as one of their
`Chief Operating Officers in the Southern California region to be laid off. Defendants
`chose not to select other Chief Operating Officers in the Southern California region to be
`laid off, where such other COO’s were younger than Mayberry and/or of a different
`gender/sex.
`21. Additionally, Defendants offered some Chief Operating Officers in the
`Southern California region, who were initially selected for layoff, to instead assume other
`jobs within the region/system and thereby avoid being laid off. Many of these other
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`COMPLAINT
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`Case 2:21-cv-04471 Document 1 Filed 05/28/21 Page 6 of 13 Page ID #:6
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`employees were younger and/or of a different gender than Mayberry. For example, the
`COO at Providence SoCal’s entity in Tarzana was male, younger and less tenured than
`Mayberry, yet despite Mayberry’s request to be retained in that position, the Tarzana
`COO was retained while Mayberry’s employment was terminated.
`22. Mayberry requested to be placed in alternative job positions for which she
`was qualified so as to avoid layoff. But Defendants never offered Mayberry any
`alternative job with any specific role, duties, location and/or salary terms. Providence
`Holy Cross’ Chief Nursing Officer and Chief Medical Officer at Providence St. Joseph
`both breached Providence’s employment policies about confidentiality, but did not have
`their employment terminated. In particular, they told other employees that they were
`planning to conduct a layoff and terminate Mayberry’s employment. This violated
`published employer policies. Mayberry was qualified for the Chief Nursing Officer
`position, yet was never given or offered it. Meanwhile, Providence SoCal’s Regional
`Chief of Mission Officer breached Providence’s employment policies about
`confidentiality, but did not have her employment terminated.
`23. At one point, Defendants spoke with Mayberry about a “regional position”
`they were considering placing her in to avoid her layoff. However, Defendants did never
`provided Mayberry with any job description, salary or terms of employment. When
`Mayberry further inquired, Defendants told her that actually the mentioned position was
`not approved in “the System.” Even after her employment termination, Mayberry in
`September 2020 inquired again, and was informed by Defendants that the job description
`for this “regional position” was going to be created and the details would be forthcoming
`to her. However, nothing was in fact ever further provided to her. This remains true as of
`the date of the filing of this lawsuit – more than six months later and more than eight
`months after her employment termination.
`24. Numerous times during her employment, Mayberry was told by Dr. Klein
`that she was his “right hand person.” Mayberry was asked to cover for him on all of his
`absences. At one point approximately one year ago, Dr. Klein told Mayberry that he felt
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`COMPLAINT
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`Case 2:21-cv-04471 Document 1 Filed 05/28/21 Page 7 of 13 Page ID #:7
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`that Defendants might be looking to eliminate his Chief Executive position because
`Mayberry’s job position was more important to be retained by Defendants. Dr. Klein
`referred to her as “the work horse” of the operation.
`25. Defendants terminated Mayberry’s employment on July 17, 2020, when she
`was 65 years of age and had been employed by them for 42 years. Mayberry’s gender is
`female.
`26. On or about March 2, 2021, Mayberry filed an administrative charge with
`the U.S. Equal Employment Opportunity Commission (EEOC). On or about March 30,
`2021, the EEOC issued to Mayberry a right to sue letter. Both documents are attached
`hereto and incorporated herein by reference as Exhibits A and B, respectively.
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`FIRST CLAIM FOR RELIEF
`(Discrimination On The Basis Of Age In Violation Of U.S. Age Discrimination And
`Employment Act And Older Workers Benefit Protection Act
`Against All Defendants)
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`Plaintiff Mayberry hereby realleges and incorporates herein in full the
`27.
`allegations contained in paragraphs 1 through 26, inclusive.
`28. By selecting Mayberry for layoff while not selecting similarly situated
`younger employees, including some under the age of forty (40) years, Defendants
`discriminated on the basis of her age in violation of the U.S. Age Discrimination and
`Employment Act.
`In addition to directly discriminating against Mayberry in terminating her
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`employment on the basis of her age, Defendants also caused an unlawful disparate impact
`on the basis of age because the average age of their relevant employees was significantly
`lowered after the group layoff that included Mayberry. A higher percentage of employees
`over the age of (forty) 40 years were terminated than of employees (forty) 40 years of age
`and younger.
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`COMPLAINT
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`Case 2:21-cv-04471 Document 1 Filed 05/28/21 Page 8 of 13 Page ID #:8
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`The layoff, which resulted in Mayberry’s employment being terminated,
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`included two or more employees. Defendants violated the U.S. Older Workers Benefit
`Protection Act, which was added to the U.S. Age Discrimination in Employment Act, by
`presenting and offering a written severance and release agreement to Mayberry as part of
`their group layoff, but refusing to provide her with the information required to be shared
`with her. Specifically, Mayberry was not told how the laid off groups were defined, was
`not given the names and ages of all employees considered for layoff, and was not
`provided with the names and ages of which employees in similarly situated positions as
`hers were not considered. Mayberry repeatedly requested this information from
`Defendants. Each time Defendants refused to provide her with any of this required
`information.
`The U.S. Age Discrimination in Employment Act prohibits employers from
`31.
`taking adverse employment actions against employees based on age over 40 years and,
`through the Older Workers Benefit Protection Act, requires employers who terminate two
`or more employees over the age of 40 years to provide a specified data report with any
`offer of settlement or severance. 29 U.S.C. §§ 621, et seq., and 29 CFR 1625.22.
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`SECOND CLAIM FOR RELIEF
`(Discrimination On The Basis Of Gender/Sex In Violation Of U.S. Title VII
`Against All Defendants)
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`Plaintiff Mayberry hereby realleges and incorporates herein in full the
`32.
`allegations contained in paragraphs 1 through 31, inclusive.
`33. By selecting Mayberry for layoff while not selecting similarly situated male
`employees, Defendants discriminated on the basis of her gender/age in violation of U.S.
`Title VII of the Civil Rights Act of 1964.
`Title VII prohibits employers from taking adverse actions against employees
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`based on their gender. 42 U.S.C. §§ 2000e-2, et seq.
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`COMPLAINT
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`Case 2:21-cv-04471 Document 1 Filed 05/28/21 Page 9 of 13 Page ID #:9
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`THIRD CLAIM FOR RELIEF
`(Retaliation In Violation Of U.S. Title VII
`Against All Defendants)
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`Plaintiff Mayberry hereby realleges and incorporates herein in full the
`35.
`allegations contained in paragraphs 1 through 34, inclusive.
`36. As set forth above, in 2020 Defendants pretended to begin to offer
`Mayberry a regional position so that she would not be laid off from her employment.
`After Defendants learned that Mayberry was rejecting its initial severance offer because
`she believed that the termination of her employment was discriminatory, Defendants
`failed to move forward with its referenced regional position for Mayberry and never did in
`fact make such a job offer or present any details. Defendants did so in retaliation for
`Mayberry expressing her view that her termination was discriminatory and in violation of
`US Title VII and the US Age Discrimination in Employment Act. See 29 U.S.C. §§ 621,
`et seq. and 42 U.S.C. §§ 2000e-2, et seq.
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`FOURTH CLAIM FOR RELIEF
`(Breach Of Implied Contract
`Against All Defendants)
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`Plaintiff Mayberry hereby realleges and incorporates herein in full the
`37.
`allegations contained in paragraphs 1 through 36 inclusive.
`38. As set forth above, Mayberry’s employment was pursuant to an implied
`contract that as long as she continued to do a good job, she would not be terminated
`without good cause. Her more than forty (40) years of employment with Defendants and
`the promises made to her during her employment created this implied contract. By
`terminating Mayberry’s employment without good cause, Defendants breached
`Mayberry’s implied contract.
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`COMPLAINT
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`Case 2:21-cv-04471 Document 1 Filed 05/28/21 Page 10 of 13 Page ID #:10
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`FIFTH CLAIM FOR RELIEF
`(Breach Of Implied Covenant Of Good Faith And Fair Dealing
`Against All Defendants)
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`Plaintiff Mayberry hereby realleges and incorporates herein in full the
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`allegations contained in paragraphs 1 through 38, inclusive.
`40. By engaging in the above conduct, Defendants breached their implied
`covenant of good faith and fair dealing under California law. Defendants interfered with
`and refused to cooperate with Mayberry, which resulted in her not being allowed to
`continue her implied contract of employment.
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`SIXTH CLAIM FOR RELIEF
`(Intentional Infliction Of Emotional Distress
`Against All Defendants)
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`Plaintiff Mayberry hereby realleges and incorporates herein in full the
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`allegations contained in paragraphs 1 through 40, inclusive.
`42. Defendants’ conduct alleged herein was outrageous and in disregard for the
`probability that their conduct would cause Mayberry emotional distress. Defendants
`intended to and did in fact inflict emotional distress on Mayberry. Defendants’ conduct
`was a substantial factor in causing severe emotional distress to Mayberry.
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`SEVENTH CLAIM FOR RELIEF
`(Negligent Infliction Of Emotional Distress
`Against All Defendants)
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`Plaintiff Mayberry hereby realleges and incorporates herein in full the
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`allegations contained in paragraphs 1 through 42, inclusive.
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`COMPLAINT
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`Case 2:21-cv-04471 Document 1 Filed 05/28/21 Page 11 of 13 Page ID #:11
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`44. By engaging in the above conduct, Defendants’ engaged in negligent
`conduct and willfully violated a statutory duty. As a result, Mayberry suffered emotional
`distress. Defendants’ conduct was a cause of Mayberry’s emotional distress.
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`EIGHTH CLAIM FOR RELIEF
`(Breach Of Fiduciary Duty For Defined Contribution Benefit Plan And Contract
`Against All Defendants)
`Plaintiff Mayberry hereby realleges and incorporates herein in full the
`45.
`allegations contained in paragraphs 1 through 44, inclusive.
`46. As part of her employment, Mayberry was a participant in and a party to
`Providence St. Joseph Health’s Defined Contribution Restoration Plan and Contract (the
`“Plan”). The Plan provided that upon the cessation of Mayberry’s employment, all of her
`funds in the Plan would be vested and would be returned to her no later than seventy-five
`(75) days following her separation from service.
`Following Mayberry’s employment cessation, Providence St. Joseph Health
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`failed to vest or timely return her funds in the Plan. By doing so, Providence St. Joseph
`Health breached the Plan, as well as its fiduciary duty as the sponsor of the Plan.
`48. Mayberry is informed and believes and thereon alleges that that Defendants
`similarly committed such failures and breaches with respect to other terminated
`employees. Plaintiff expressly reserves the right to amend this Complaint to proceed as a
`class representative of other such similarly situated employees, after preliminary
`discovery is conducted to determine the facts regarding the same.
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`PRAYER FOR RELIEF
`WHEREFORE, Plaintiff Mayberry, respectfully requests judgment against each of
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`the defendants, as follows:
`For backpay;
`1.
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`For front pay;
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`COMPLAINT
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`Case 2:21-cv-04471 Document 1 Filed 05/28/21 Page 12 of 13 Page ID #:12
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`For compensatory damages;
`3.
`For punitive damages as to each Cause of Action due to Defendants’ having
`4.
`acted with malice and/or reckless disregard;
`For costs of suit, including but not limited to attorneys’ fees; and
`5.
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`6.
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`That the Court grant such other, further and different relief as the Court
`deems just and proper.
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`By:
` BRIAN S. ARBETTER
`Attorneys for Plaintiff Patricia Mayberry
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`COMPLAINT
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`Respectfully submitted,
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`DATED: May 28, 2021
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`Case 2:21-cv-04471 Document 1 Filed 05/28/21 Page 13 of 13 Page ID #:13
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`DEMAND FOR TRIAL BY JURY
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`Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff hereby
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`demands a jury trial.
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` DATED: May 28, 2021
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`By:
` BRIAN S. ARBETTER
`Attorneys for Plaintiff Patricia Mayberry
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`COMPLAINT
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`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
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