Octapharma Plasma Inc. Hit With $11.2M Verdict for Age Discrimination and Failure to Accommodate

Roque vs Octapharma Plasma Inc

Case Background

On May 11, 2021, Alice Roque filed a wrongful termination case against Octapharma Plasma Inc., alleging she faced a hostile work environment including failure to accommodate and age discrimination. The case was filed in the Superior Court of San Diego County. Judge Blaine K. Bowman presided over this case. [Case number: 202100020936]

Cause

Defendant Octapharma Plasma, Inc., a national plasma fractionator, operated facilities across the United States, including in San Diego, California.

Plaintiff Alice Roque was 74 years old when she was wrongfully terminated. Defendant hired her in February 2002 as a “Senior Medical Screener II – Licensed” at its San Diego location. She worked there for approximately nineteen years until her termination in February 2021. The alleged reason for her termination was her age, disability, and requests for reasonable accommodations.

Throughout her tenure, Plaintiff was one of the older employees, being the second oldest at her location. As older employees became fewer, Plaintiff faced increasing age-related discrimination and harassment. Defendant’s Center Director, Shaun Karmikels, made inappropriate comments about her age and performance, contributing to a hostile work environment.

In February 2021, Defendant reassigned Plaintiff to a physically demanding role that worsened her back pain. Plaintiff reported her pain to her supervisor, Shannon Wilkinson, who suggested she resign. Plaintiff refused.

On February 24, 2021, Plaintiff called in sick due to her back pain and sought medical care. Her doctor placed her on medical leave until March 4, 2021. Despite notifying Defendant and requesting reasonable accommodation, Defendant’s regional director, John Fulcher, claimed on February 26, 2021, that Plaintiff had resigned. Plaintiff denied this and wished to continue working. On March 1, 2021, another supervisor informed her that Defendant had not accepted her resignation, but Defendant continued to treat her unfairly.

On March 4, 2021, Plaintiff’s medical leave was extended until April 3, 2021. Plaintiff provided this information to Defendant. However, on March 18, 2021, Karmikels wrongfully terminated her, claiming her verbal resignation was accepted. Karmikels also falsely stated that Plaintiff could not claim workers’ compensation. Plaintiff, confused and upset, stated she had not resigned and was still on medical leave.

A few days later, Plaintiff received her final paycheck, confirming her wrongful termination. Despite her protests and desire to keep her job, Defendant ignored her attempts to rectify the situation. Plaintiff’s email to Mr. Fulcher requesting reinstatement went unanswered.

Defendant’s claim that Plaintiff resigned was false. Before March 18, 2021, Defendant knew of Plaintiff’s age, disabilities, and need for medical leave. Despite her providing doctors’ notes confirming her need for leave, Defendant, along with Karmikels, sought to remove her using harassment and fabricated excuses. The termination was based on Plaintiff’s age, disability, and requests for accommodations, demonstrating unlawful discrimination and retaliation.

Injury

Due to the discriminatory, harassing, and hostile work environment, Plaintiff experienced escalating stress and anxiety. After Defendant transferred Plaintiff to a new, physically demanding role involving direct work with donors, her stress and anxiety peaked. Moreover, this role led to physical injury. Specifically, a few days after the reassignment, Plaintiff hurt herself while performing her job duties. She began experiencing severe back pain from standing for extended periods.

As a direct result of Defendant’s conduct, Plaintiff experienced significant emotional distress, physical harm, and financial losses.

Damages

Throughout, Defendants acted with malice and completely disregarded Plaintiff’s rights and welfare. As a result, the Plaintiff faced significant financial losses, including loss of income and benefits. These included but were not limited to, loss of income, earnings, salary, and benefits. Additionally, Plaintiff suffered intangible losses, such as missed employment opportunities in her field and damage to her professional reputation. Plaintiff sought damages for these losses, including any prejudgment interest accrued.

Key Arguments and Proceedings

Legal Representation

• Plaintiff(s): Alice Roque
  • Counsel for Plaintiff(s): David M. deRubertis | Brennan S. Kahn
  • Experts for Plaintiff(s): Anthony Reading, Ph.D. | Susan Bleecker, CPA

• Defendant(s): Octapharma Plasma Inc | Shaun Karmikels | Does 1-10
  • Counsel for Defendant(s): Roger M. Mansukhani | Christopher B. Cato | Geoffrey Lee
  • Experts for Defendant(s): Mark Remas, MA, CRC, ABOVE | Brian J. Bergmark, MBA, CPA, ABV, ASA | Praveen R. Kambam, M.D. 

Claims

1. Harassment Based on Age
   Defendants’ actions breached the Fair Employment and Housing Act (FEHA) and other anti-discrimination laws, including the California Constitution and the Civil Rights Act. The harassment created a hostile and oppressive work environment for Plaintiff, adversely affecting her job conditions and satisfaction throughout her employment.
2. Age Discrimination
   Defendants discriminated against Plaintiff based on her age, evident through offensive comments, unfair treatment, and wrongful termination. This conduct violated Government Code Sections 12940 et seq. and FEHA, as it targeted Plaintiff due to her being over 40 years old.
3. Disability Discrimination
   Defendant discriminated against Plaintiff because of her disabilities, including by terminating her employment and failing to provide reasonable accommodations without undue hardship.
4. Failure to Reasonably Accommodate
   Plaintiff requested medical leave as a reasonable accommodation for her disabilities. Defendant, aware of her condition, refused this request and terminated her, violating Government Code Section 12940(m).
5. Failure to Provide Medical Leave
   Plaintiff sought temporary medical leave for her disabilities. Despite being aware of her needs, Defendant denied the leave and wrongfully terminated her. This failure breached California Government Code Section 12945.2.
6. Failure to Engage in the Interactive Process
   Defendant did not engage in a required interactive process to explore accommodating Plaintiff’s disabilities or requests, including medical leave. This omission violated Government Code Section 12940(n).
7. Failure to Maintain a Workplace Free from Harassment, Discrimination, and Retaliation
   Defendant did not take effective action to prevent or address harassment, discrimination, or retaliation. They failed to train employees properly and maintain a non-discriminatory work environment.
8. Retaliation in Violation of FEHA
   Plaintiff was retaliated against for disclosing her disabilities and requesting accommodations. Defendant’s actions included refusal to accommodate, lack of a good-faith process, and wrongful termination.
9. Wrongful Termination in Violation of Public Policy
   Defendant’s termination of Plaintiff violated public policy and statutory protections, including FEHA and Government Code Section 12940 et seq.
10. Failure to Re-Hire Due to Age, Disability, or Protected Activities
    Defendant knew of Plaintiff’s age and disabilities and refused to rehire her despite her ability to perform the job, violating FEHA and California Government Code Section 12940 et seq.

Defense

Defendants denied all allegations and claims of injury or damages made by Plaintiff. They raised the following affirmative defenses:

• Defendants argued that Plaintiff’s complaint lacked sufficient facts to support any claim and was barred by applicable statutes of limitation. They contended that their actions were justified, based on legitimate, non-discriminatory reasons, and that they did not retaliate against Plaintiff. Furthermore, any claims for emotional or physical injury should have been addressed through workers’ compensation, not this court.
• Defendants claimed that if new evidence had shown grounds for termination, Plaintiff could not recover damages. Additionally, Plaintiff failed to use available remedies to prevent harm, which barred her from claiming damages. Defendants also cited doctrines such as waiver, laches, unclean hands, and estoppel to block Plaintiff’s claims, and noted that Plaintiff did not reasonably attempt to mitigate her alleged damages.
• Defendants argued that they were entitled to offset any claims for damages by amounts Plaintiff had already received from other sources. They asserted that Plaintiff’s complaint did not justify any claim for attorney’s fees.
• Defendants also noted that Plaintiff’s claims for punitive damages were barred due to insufficient allegations of malice or fraud. They further asserted that Plaintiff’s claims were barred because she failed to exhaust all required administrative remedies.
• Additionally, Defendants claimed that any injuries from actions by management were protected by managerial immunity. Even if discriminatory reasons had influenced their decisions, Defendants would have acted the same for legitimate reasons. They argued that any alleged discriminatory actions were lawful due to a bona fide occupational qualification.
• Defendants also claimed that they provided all necessary accommodations and that Plaintiff did not request a “reasonable accommodation” as defined by FEHA. They argued that providing the requested accommodations would have caused undue hardship and that the accommodations were neither practicable nor available. Furthermore, Plaintiff did not have a qualified disability during her employment or at termination.
• Finally, Defendants pointed out that Plaintiff did not engage in the process to determine reasonable accommodations and sought recovery for a pre-existing condition, which barred some or all recovery. They noted that Plaintiff’s employment was at will and could be terminated at any time.

Expert Testimony

Dr. Anthony Reading, retained by Plaintiff, evaluated the psychological injuries and emotional distress that Plaintiff experienced due to Defendant’s conduct. Susan Bleecker, CPA, another expert for the Plaintiff, analyzed the economic damages the Plaintiff suffered and assessed the Defendant’s financial condition to determine potential punitive damages.

For the Defendant, Mark Remas, MA, CRC, ABOVE, provided insights into Plaintiff’s vocational rehabilitation and assessed her efforts to mitigate economic damages. Brian J. Bergmark, MBA, CPA, ABV, ASA, offered a counter-analysis to Susan Bleecker’s economic damages assessment and evaluated the Defendant’s economic impact. Dr. Praveen R. Kambam, also for Defendant, reviewed Plaintiff’s claims of emotional distress and psychological injuries, presenting a rebuttal to Dr. Anthony Reading’s findings.

Jury Verdict

On September 06, 2024, a San Diego jury found the Defendant liable for failure to accommodate, age discrimination and failure to take steps to prevent such discrimination. Accordingly, the jury awarded Plaintiff Roque $2,205,000 in damages and the breakdown of the amount is as follows:

• Past physical injuries, trauma, and pain and suffering: $280,000
• Future physical injuries, trauma, and pain and suffering: $770,000
• Past emotional distress (including loss of enjoyment of life, mental suffering, depression, anxiety, humiliation, grief, and inconvenience): $308,000
• Future emotional distress (including loss of enjoyment of life, mental suffering, depression, anxiety, humiliation, grief, and inconvenience): $847,000

The jury found that the managing agent of Octapharma Plasma, Inc. was guilty of malice, fraud, or oppression. Consequently, on September 09, 2024, in Phase Two, the jury awarded $9,000,000 in punitive damages against Octapharma Plasma, Inc.

Court Documents:

Available upon request