A hospital lawfully terminated an employee for improperly accessing a co-worker’s lab results and refusing to admit to doing so, a federal district court in Mississippi has found in Cosby v. Vicksburg Healthcare, LLC D/B/A River Region Medical Center, et al., No. 5:11cv159-KS-MTP (S.D. Miss. May 16, 2013), rejecting the former employee’s claim of discrimination.  

The hospital found that six employees had accessed a co-worker’s medical record without a valid reason, in violation of the Health Insurance Portability and Accountability Act (“HIPAA”).  Four of the employees who admitted doing so were disciplined, but not discharged, while the plaintiff and the remaining employee, who both denied accessing the medical record, were dismissed.  The plaintiff sued, alleging that her termination constituted race and age discrimination, and was in retaliation for exercising her right to complain about unlawful actions under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (the “ADEA”) and the Family and Medical Leave Act (the “FMLA”).  She also alleged various state law claims.

The court dismissed the race and age discrimination claims.  It concluded that the plaintiff’s termination for violating HIPAA and refusing to admit doing so was legitimate and nondiscriminatory.  The court also found the plaintiff failed to show that this was a pretext for the alleged discrimination, noting the hospital retained employees who were older than the plaintiff and who had admitted their offense, terminated her co-worker who was of a different race for the same offense, and replaced the plaintiff with a person of the same race and approximate age.  The court also found that the lab results to which the plaintiff had access were protected under HIPAA, rejecting her efforts to distinguish herself from the other employees who were disciplined and could access broader health information.  At most, the court concluded, this might suggest an error in terminating her, but it was insufficient to defeat the hospital’s summary judgment motion.  It was not the court’s province to second guess an employer’s non-discriminatory business decision.

The court also dismissed the various retaliation claims because the plaintiff failed to show she referenced race in any complaint to the hospital before her termination, provided no evidence of retaliation under the ADEA, and could not show a causal link between her termination and the alleged protected activity under the FMLA.  All of the plaintiff’s state court claims were dismissed also.

The NLRB’s Division of Advice found in Tasker Healthcare Grp. d/b/a Skinsmart Dermatology (4-CA-94222, 5/8/2013) that an employer did not violate the NLRA when it discharged the charging party for critical or derogatory comments made about her employer and supervisors during a Facebook conversation with other employees.  According to the NLRB memorandum, the charging party’s comments “bemoaned the return of a former employee and stated that her current supervisor tried to tell her something and she told her to ‘back the freak off’; that the Employer was ‘full of sh[*]t’; and that the Employer should ‘FIRE ME…Make my day.’”  Distinguishing a number of prior NLRB memoranda and decisions, the Division of Advice found that the charging party’s Facebook comments “merely expressed an individual gripe rather than any shared concerns about working conditions”, and thus did not constitute concerted activity.  The Division of Advice reasoned that the charging party’s Facebook comments “reflected her personal contempt for her returning coworker and for her supervisor, rather than any shared employee concerns over terms and conditions of employment.”  Although noting that one co-worker expressed some support for the charging party (that “it’s getting bad there[,] it’s just annoying as hell”), the Division of Advice concluded that there was no evidence that any of the employees interpreted the charging party’s comments “as an expression of any shared concerns about working conditions.”  Accordingly, the Division of Advice recommended dismissing the unfair labor practice charge.

Written by Joseph J. Lynett.

The U.S. Department of Justice (DOJ), as part of its Barrier-Free Health Care Initiative, announced  it has reached multiple settlements with health care providers concerning access to services for persons who are deaf.  These include a hospital, rehabilitation centers, an ear, nose and throat practice, and a sports medicine center.  The settlements, reached in past few months, refer to the auxiliary aids or services that the DOJ considers necessary to comply with Title III of the Americans with Disabilities Act (ADA) ( prohibiting discrimination on the basis of disability by public accommodations and in commercial facilities).

The individuals who  complained to  the DOJ are deaf and use American Sign Language (“ASL”) as their primary method of communication.  They filed complaints after health care providers denied their requests for  ASL interpreters during treatment, at the providers’ expense. 

The settlement agreements require each provider to:

  • provide “appropriate auxiliary aids and services, including qualified interpreters, where necessary to ensure effective communication” unless an undue burden or a fundamental alteration would result;
  • make documented determinations of what auxiliary aids or services are appropriate in consultation with any person with a disability using established factors and a defined timeline;
  • perform a communications assessment, using a form attached to the settlement, as soon as practical and document the results in the patient’s chart;
  • post and maintain signs in the waiting area stating that the facility will provide qualified interpreters free of charge for patients, family members, and companions;
  • maintain a list of qualified interpreters or interpreter agencies or arrange for the services of qualified interpreters, and submit that list to the DOJ;
  • log each request for an auxiliary aid or service, including the time, date, requesting individual, the specific service requested, and the type of auxiliary aid or service provided;
  • hire an advocacy group to provide mandatory training approved by the DOJ on an annual basis to all staff and affiliated individuals on the medical facilities’ obligations under Title III, including training in the degrees of hearing impairment and the use of auxiliary aids and services;
  • submit written compliance reports to the DOJ; and
  • provide the DOJ with oversight to assess  compliance with the settlement agreement for 3-years.

The settlement agreements also contain monetary terms requiring that each provider pay the complaining parties damages ranging from $0 – $15,000, and the DOJ civil penalties ranging from $0 – $1,000.

The settlement agreements and press releases can be accessed through the following link:  http://www.ada.gov/usao-agreements.htm.

The NLRB Acting General Counsel’s latest effort to limit the effect of arbitration awards, even though they may be acceptable to the charged party against whom related unfair labor practice charges are pending before the agency (often the employer), has come up short.

The NLRB Acting General Counsel’s 2011 “Guideline Memorandum Concerning Deferral to Arbitral Awards and Grievance Settlements” (Memorandum 11-05, January 20, 2011), announced the Acting General Counsel “will urge the Board to modify its approach in post-arbitral deferral cases” to switch  the burden of proof from the General Counsel to the party urging deferral.  In other words, the party advocating reliance on an arbitrator’s award to dispose of related unfair labor practice charges would have to show the award meets the Board’s standards for acceptance, instead of requiring the Board’s prosecutor to show that it does not, as is the case now.

The Board has turned down its General Counsel’s invitation – at least for now.  The rejection came in  the Board’s decision to defer to an arbitrator’s award reinstating an employee without backpay in Shands Jacksonville Med. Ctr. Inc., 359 NLRB No. 104 (Apr. 26, 2013).  There, the Acting General Counsel asked the Board to require the employer, which had urged agency approval of the award to dispose of a similar Board charge, to show that “(1) the contract had the statutory rights incorporated in it or the parties presented the statutory issue to the arbitrator; and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue.” 

But the Board found the Acting General Counsel had not also proposed revisiting agency precedent on when an arbitration award is “clearly repugnant” to the Act.  This precedent, it said, spoke directly to the “crux” of this case – where the arbitrator actually found in the grievant’s favor on the merits and ordered her reinstatement, but denied her backpay on grounds that were not “palpably wrong.”  Accordingly, “[g]iven those circumstances” the Board “decline[d] to pass on the Acting General Counsel’s proposal in this case.”

Without a clear ruling from the Board on changing the burden of proof, healthcare employers should expect the Acting General Counsel to continue his efforts to press for agency acceptance of GC Memorandum 11-05 with post-arbitral deferral cases.

A certified nurse’s assistant cannot pursue a disability discrimination claim under the Americans with Disabilities Act because she failed to exhaust her administrative remedies, the U.S. District Court for the Eastern District of Tennessee ruled in Davenport v. Asbury Inc., No. 3:12-CV-00445 (E.D. Tenn. Mar. 29, 2013). 

Under the ADA, a claimant must file a discrimination charge with the U.S. Equal Employment Opportunity Commission or a state counterpart within 180 or 300 days of the alleged discrimination.  Here, the Court found the charge by the nurse’s assistant initially filed with the EEOC was invalid because it was signed by her attorney, rather than plaintiff herself.  While an attorney may file a charge on behalf of a client, the Court explained, the lawyer’s signature alone is not proper verification, unless the attorney personally swears to the truth of the facts contained in the charge and does so based on personal knowledge of those facts. 

The Court further found the signed intake questionnaire the plaintiff submitted prior to filing her charge could not substitute for an official charge, because it was not verified in accordance with the ADA and the EEOC’s regulations – i.e. it was not notarized or signed under penalty of perjury. 

Finally, the Court found the verified amended charge the plaintiff filed after the EEOC issued a right-to-sue notice did not exhaust her administrative remedies because it did not relate back to her intake questionnaire or her initial charge.  The Court explained that because “the purpose of the verification requirement is to protect the defendant from responding to frivolous charges and ‘demands an oath…by the time the employer is obliged to respond to the charge,’ plaintiff, in filing her verified amended [charge] after the EEOC closed its case and this suit was initiated and removed to this Court, did so too late.”

The National Labor Relations Board announced on March 12, 2013, that it will not seek en banc rehearing of Noel Canning v. NLRB et al., Nos. 12-1115 and 12-1153 (D.C. Cir. Jan. 25, 2013), in which the U.S. Court of Appeals for the District of Columbia Circuit held that the President’s January 4, 2012 recess appointments of three members to the Board were invalid.  Instead, the Board, in consultation with the Department of Justice, intends to file a petition for certiorari with the U.S. Supreme Court for review of that decision.  The petition for certiorari is due on April 25, 2013.

Currently, Chairman Mark Gaston Pearce is the only member of the Board whose appointment is valid under the reasoning of Noel Canning. Confirmed by the Senate on June 22, 2010, he serves a term ending on August 27, 2013.

If the U.S. Supreme Court accepts the case, oral argument likely will be scheduled sometime during the Supreme Court’s term that begins in October 2013.  Until the Supreme Court issues an opinion, the current uncertainty remains, and cases, rulemaking and appointments made by the Board since August 2011 may be subject to legal challenge. 

For prior postings on Noel Canning, click here and here.

On March 14, 2013, a member of the American Health Care Association (AHCA) testified before the House Education and Workforce Committee’s subcommittee on Workforce Protections hearing on the critical shortages of mid-level caregivers in the nation’s skilled nursing centers and its impact on the economy.  Click here for more information from Jackson Lewis’ Immigration Blog.