September 29, 2010
Complaint by second ex-Banfield veterinarian hits dead end
Lawyer seeks settlement with company
By: Edie Lau
For The VIN News Service
A state investigation into a veterinarian’s complaint against Banfield, The Pet Hospital, of unlawful employment practices in Oregon has been closed without a ruling on the substance of the complaint.
Part 3 of 3: Complaint by second ex-Banfield veterinarian hits dead end
Two technicalities sunk the case: a clause in the employee’s contract calling for arbitration as an “exclusive remedy”; and “questionable timeliness” in the filing of the complaint, a spokesman for Oregon Bureau of Labor & Industries said this week.
The arbitration clause alone might not have ended the investigation, as bureau policy states that in an “otherwise meritorious claim,” enforceability of an arbitration agreement is decided case by case. However, the combination of issues was a problem, said agency spokesman Bob Estabrook. “There really wasn’t room for us to go forward with an investigation based on those factors,” he said. The case closed on Aug. 25.
The attorney for Dr. Amber Esquivel filed the complaint on July 9, which the state deemed to be more than one year after the events upon which the complaint was based. “The key point in time is the last date of harm,” Estabrook said.
Esquivel’s complaint alleges a series of unethical medical and business practices at Nyberg Woods Urgent Care Center in Tualatin, Ore., from 2008 until mid-2009, when she left the company.
Nyberg Woods is one of the more than 750 veterinary hospitals run by Banfield, operator of the largest chain of veterinary practices in the world.
Dr. Jeffrey Klauser, senior vice president and chief medical officer for Banfield, said in a written statement, “We are glad the Oregon Bureau of Labor and Industry dismissed Dr. Esquivel’s complaint. We have said all along that these claims have absolutely no merit.”
Esquivel alleged that Nyberg Woods veterinarians and staff were pressed by their superiors to pump up the clinic’s earnings at the expense of patient welfare, including by ordering frequent costly ultrasound images and by portraying the clinic as an emergency-care center when it was not appropriately staffed and equipped to provide emergency services.
Stressed by pressure to generate a specific amount of revenue and from overwork, Esquivel became ill and took a 60-day medical leave of absence, according to the complaint. At that point, she gave notice that she would quit “unless she could be assured that their practices would change,” the complaint states. Banfield placed a notice of termination in her employee file dated Aug. 4, 2009, according to the document.
Esquivel’s attorney Mitra Shahri disagreed with the state that the complaint was not filed in a timely fashion. “The adverse action didn’t happen until she was forced to quit,” Shahri said.
She said she is now pursuing a settlement with Banfield. “At this time, we have contacted the other side and they’re interested in resolving it, so we’re waiting to hear,” she said.
Banfield’s Klausner said he was “unaware of any request from Ms. Shahri to resolve her client’s dispute.”
Shahri said that if the attempt to settle is unsuccessful, she plans to file a lawsuit.
Esquivel’s is the second employee complaint against Banfield handled by Shahri.
Earlier this year, she represented Dr. Robert Nix, another veterinarian who left Nyberg Woods under a cloud. Many of Nix’s allegations were similar to Esquivel’s. His case originally was filed with the state Bureau of Labor and Industry, withdrawn two months later, then taken to state Circuit Court in Multnomah County.
Before it was heard, the case was dismissed on July 2 by the court with prejudice — meaning it cannot be refiled — and without costs or attorney’s fees to either party. Attorneys for both sides declined to say whether they’d come to a settlement.
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