Kaiser administrator says termination was retaliation. $3 million, later reduced. Alameda County.


Clinic administrator at Kaiser says she was terminated in retaliation for taking a medical leave.  Kaiser says termination was for poor performance.

The Case

  • Case Name: Metzner v. The Permanente Medical Group
  • Court and Case Number: Superior Court of Alameda County / RG13702356
  • Date of Verdict or Judgment: Monday, November 23, 2015
  • Date Action was Filed: Thursday, November 07, 2013
  • Type of Case: Employment
  • Judge or Arbitrator(s): Hon. Stephen Kaus
  • Plaintiffs:
    Patricia Metzner, 58
  • Defendants:
    The Permanente Medical Group
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $3,050,000
  • Economic Damages:

    $569,285 in past economic loss.

    $2,430,715 in future economic loss.

  • Non-Economic Damages:

    $50,000 for emotional distress.

  • Trial or Arbitration Time: 6 weeks.
  • Jury Deliberation Time: 5 days.
  • Jury Polls: 10-2 except for one question (in essence, would TPMG have fired Metzner for a legitimate reason anyway, even if it had not also been motivated by retaliation), and on that question the poll was 9-3 in plaintiff’s favor.
  • Post Trial Motions & Post-Verdict Settlements: Motion for JNOV was denied in its entirety. Motion for new trial, which sought to have the entire verdict thrown out, was denied, except as to the amount of front pay, which was denied, conditioned on plaintiff accepting the remittitur.

The Attorneys

  • Attorney for the Plaintiff:

    Levy Vinick Burrell Hyams LLP by Leslie F. Levy, Darci E. Burrell and Katherine Smith, Oakland.

  • Attorney for the Defendant:

    Curley, Hessinger & Johnsrud LLP by Victoria R. Carradero and Patrick M. Sherman, Menlo Park.

The Experts

  • Plaintiff's Technical Expert(s):

    Margo Ogus, economics, Palo Alto.

    Allison West, management practices, San Francisco.

  • Defendant's Technical Expert(s):

    Bruce Deal, economics, Menlo Park.

    Rhoma Young, management practices and mitigation, Oakland.

Facts and Background

  • Facts and Background:

    Plaintiff began working for defendant in 1992 and worked as a director of cardiovascular services from 2000 until the unit closed in 2010. She was then designated as a director of the Special Procedures Suite – Eye Surgery Center in the Broadway medical office and
    later became the director of the Oakland Perioperative Medicine Clinic.

    Plaintiff claimed that in mid-2011, she informed her supervisor that she was considering undergoing back surgery. She was subsequently placed on medical leave from September 2011 until January 2012. Upon her return to work in March, defendant allegedly placed her on a
    performance improvement plan, which she allegedly did not pass and which ultimately led to her termination in January 2013.

  • Plaintiff's Contentions:

    That plaintiff, who had been employed by Kaiser Permanente for almost 20 years, was terminated as a result of requesting or taking a medical leave. That prior to notifying her supervisor that she had been placed on leave, plaintiff had received an extremely positive performance evaluation. 

    Shortly after first discussing possible surgery with her supervisor and only two months after she received the positive evaluation, plaintiff’s supervisor suggested that she be placed on a performance improvement plan. Although defendant’s witnesses claimed that plaintiff’s performance was poor and had been throughout her time as head of the eye surgery center, there was a dearth of contemporaneous documentation of these alleged job deficiencies and no explanation for the excellent evaluation provided prior to plaintiff disclosing her need for leave. 

  • Defendant's Contentions:

    TPMG provided substantial evidence of plaintiff’s poor job performance; performance issues that existed long before her request for medical leave and that continued long after. These performance issues were raised by senior physician leadership in two separate business units that she managed, and up her entire chain of command. 

    TPMG’s position is that plaintiff was terminated only for her poor job performance and not in retaliation for medical leave. Additionally, the court noted that there was no direct evidence of retaliatory animus or negative comments about plaintiff or anyone else taking leave.

Demands and Offers

  • Defendant §998 Offer: $175,000

Additional Notes

Per defense counsel:

Plaintiff’s poor job performance (and the jury’s affirmative finding on questionnaire about her poor performance) was a basis for the court to substantially reduce her damage award by more than half. The court also concluded that plaintiff’s job search was not sufficient. The court reduced the front pay award from $2.4 million (front pay to retirement) down to $900,000 (3 years of front pay), reducing the total award from $3,050,000 down to $1,519,285. Plaintiff accepted the court’s reduction. 

Per Plaintiff’s counsel: 

The jury rejected defendant’s contention that it fired plaintiff only for her job performance or that it would have fired plaintiff even if it had not been motivated by retaliation. The trial court concluded that the front pay award should be reduced because plaintiff did not prove that she would have stayed with defendant until age 65 and because the trial court believed that plaintiff could find a comparable job by 2018 – within six years of her termination. Even with the remittitur, the jury award was more than eight times what defendant offered in settlement prior to trial.