The New York Hospital Medical Center of Queens

National Labor Relations Board - Administrative Judge Opinions

Dec 31, 2015

29-CA-136515 (N.L.R.B. Dec. 31, 2015)

JD(NY)-46-15
Flushing, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
NEW YORK DIVISION OF JUDGES
THE NEW YORK HOSPITAL MEDICAL
CENTER OF QUEENS,
Respondent
and Case No. 29-CA-136515
PARIS YOUNG, an Individual
Annie L. Hsu, Esq. and Jaime D. Cosloy, Esq.
for the General Counsel.
Tara Eyer Daub, Esq. and Alexander E. Gallin, Esq.
for the Respondent.
Melissa S. Chan, Esq.
for the Charging Party.
DECISION
STATEMENT OF THE CASE
Steven Fish, Administrative Law Judge. Pursuant to charges filed by Paris Young on
September 10, 2014, in Case No. 29-CA-136515 and amended charges filed on October 2,
2014, November 21, 2014 and December 29, 2014 respectively, The Director for Region 29
issued a complaint and Notice of Hearing on February 25, 2015, alleging that The New York
Hospital Medical Center of Queens (Respondent), violated Section 8(a)(1) of the Act, by
suspending Paris Young on August 20, 2014, and discharging him on September 3, 2014
because he engaged in protected concerted activities, and by creating the impression among its
employees that their protected concerted activities were under surveillance by Respondent,
impliedly threatening its employees with unspecified reprisals because they raised concerns to
management and interrogated employees regarding their protected concerted activities, and by
threatening employees with progressive discipline because they engaged in protected
concerted activity.
JD(NY)-46-15
2
The trial with respect to the allegations in the above complaint was held before me on June 16
through 19, and June 22 and 23, 2015. Briefs have been filed and have been carefully considered.
On August 27, 2015, General Counsel filed a motion to file an answering brief to 5
Respondent’s brief, “in order to address the claim that Respondent raised for the first time in its brief
to the ALJ”. General Counsel filed its answering brief on the same date.
Thereafter, Respondent filed an opposition to General Counsel’s motion to file an answering
brief, and requested that the request be denied. In Respondent’s opposition, it disputed General 10
Counsel’s assertion that Respondent raised a claim for the first time in its brief to the Judge.
Furthermore, Respondent responded to the assertions made by General Counsel, concerning the
issue of Respondent’s knowledge of Young’s protected concerted activities.
While I tend to agree with Respondent that the issue of knowledge of Young’s protected 15
concerted activities was clearly in issue, and was litigated, the specific issue of Richard Verrette,
Respondent’s Administrative Director of Respiratory Services, having knowledge of young’s
concerted activities was not clearly defined.
While I agree with Respondent, that since the issue of knowledge of Young’s protected 20
concerted activities was raised, that General Counsel should have recognized the issue of Verrette’s
knowledge of Young’s protected activities needed to be addressed, and should have been done in
the original brief, I, none-the-less believe that is appropriate to grant General Counsel’s motion and
accept General Counsel’s reply brief.
25
I note that in Respondent’s opposition to General Counsel’s Motion, it responded to General
Counsel’s Reply Brief, concerning the issue of knowledge of Young’s protected concerted activities. I
shall therefore also receive Respondent’s opposition, and consider it as a reply brief to General
Counsel’s reply brief.
30
While reply briefs are not ordinarily permitted, they can be accepted at the Judge’s discretion.
Gallup, Inc. 349 NLRB 1213, 1217 (2007), Salem Electric 331 NLRB 1575, 1578 fn. 3, Fruehauf Corp
274 NLRB 403 fn. 2 (1985)
In the above circumstance, I have exercised my discretion and will receive and consider 35
General Counsel’s reply brief, as well as Respondent’s opposition.
40
JD(NY)-46-15
3
Based upon the entire record1, including my observation of the demeanor of the witnesses, I
make the following;
Findings of Fact
5
I. Jurisdiction
Respondent is a not-for-profit corporation, with an office and place of business located at 56-
45 Main Street, Flushing, New York (Respondent’s facility), which has been operating a hospital
providing inpatient and outpatient medical care. Annually, in the course and conduct of their 10
business, Respondent derived gross services in excess of $250,000 and purchased and received at
its Flushing, New York facility, goods valued in excess of $5,000 directly from points outside of the
state of New York.
It is admitted and I so find that Respondent is an employer engaged in commerce within the 15
meaning of Section 2(2),(6) and (7) of the Act and has been a health care institution within the
meaning of Section 2(14) of the Act.
II. Facts
20
A. Respondent’s Operations and Supervisory and Managerial Structure
Richard Verrette is the Administrative Director of the Respiratory Care Department. Verrette
reports to Mary Godfrey, Vice President for Professional Services and Strategic Planning. Lorraine
Orlando is Vice President for the Human Resources Department and Kristen Ernst a/k/a Friedl is 25
Respondent’s Employee Relations Manager who reports to Orlando.
Pervaiz Ansari and Herman Cespedes are Respiratory Supervisors who report to Verrette.
They have authority to discipline employees, but will usually discuss any disciplinary action with
Verrette before issuance. The supervisors also have the authority to issue coachings or counselings 30
to employees, which are considered “educational’ in nature. Ansari became supervisor in 2012,
starting as supervisor for the night shift, and then in 2013, became supervisor of the day shift.
B. Paris Young
35
Paris Young began working for Respondent as a Respiratory Therapist in1990. He reported to
the RT Supervisor and to the Administrative Director. Verrette became the Administrative Director in
January of 2010. Verrette had previously supervised Young at Montefiore Hospital and they had an
amicable relationship there.
40

1 In its brief General Counsel moved to correct the transcript. No opposition has been filed. Accordingly
the transcript, p. 767 lines 24-25 should read “Q-Did you ever tell Ms. Webb during this meeting that she was
manipulative”.
JD(NY)-46-15
4
However, according to Young, he began to receive disciplinary actions in 2012, which
he attributed to Ansari’s promotion to supervisor, and Young’s past history with Ansari while
employed at Montefiore Hospital.
Young explained that he was a part time supervisor at Montefiore, and Ansari was a 5
per-diem RT there. According to Young, Ansari had accused one of the former supervisors of
racially discriminating against him. Young disagreed with that and thought that accusation
was wrong.
Young also recounts that on another occasion, Ansari, accused Young of hitting him at 10
one point in the office. According to Young, HR investigated and there were two other people
in the office, at the time of the alleged incident. Nothing was found and the matter was
dropped.
Young also asserts that he had a conversation with Ansari in 2011, during which 15
Ansari made a comment to him about understanding the motivation about 9/11, and Young
asserts that he completely disagreed with that.
On 3/24/11 Young received a copy of his 2011 annual evaluation, prepared by Jacob
John, who was his direct supervisor at that time. The overall rating was satisfactory, and most 20
of the comments were positive. However, the evaluation did make one negative comment, to
which Young objected, and he initially refused to sign the document. The comment “Paris has
shown reluctance in accepting request for training and orientation of new employees.”
Eventually, Young signed the evaluation on 4/11/11.
25
On September 7, 2012, John and Ansari met with Young and verbally coached Young
on the importance of maintaining accuracy and completeness on Allscript documentation and
compliance on departmental procedures. A second coaching session was held on 09/19/12,
by Cespedes and John.
30
The above coachings were documented in a document entitled Counseling, dated
09/19/12 and signed by John and Cespedes. The document is as follows:
As a result of the counseling, Young approached
counseling, and told Verrette that he did not want to talk to or deal with John anymore, but wanted to
deal directly with Verrette on any of these matters.5
Verrette responded that Young would have to
needed to be able to communicate and have a relationship.
JD(NY)
5
Verrette, complained to him about the
speak to John who is his supervisor and they
-46-15
Young then sent an email to Lorraine Orlando, Respondent’s V.P. OF Human Resources, on
09/23/12, with an attachment. The email reads: “ I regret that I have to enter
employee file. Recent behavior by members of the supervisory staff has been questionable.” The
document reads:5
10
In December of 2012 Ernst attempted to intervene in an attempt to diffuse the problems
Young was having with his supervisors. Ernst met with Vererette and
issues Young was having with his supervisors, primarily with John and Ansari.
After this meeting, Ernst set up another meeting this time with You15
in an attempt to resolve the issues
being harassed by his supervisors, and not being treated fairly.
JD(NY)
6
this document
Young, and they discussed
ng and all of his supervisors
Young had with the supervisory staff. Young felt that he was
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into my
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7
The meeting with all of Young’s supervisors and Ernst was held, sometime in early 2013. The
outcome of the meeting was that everyone agreed that going forward they would put everything
behind them and try to work together. After the meeting, Ernst asked Young to stay behind and
asked if he felt comfortable with everything. Young told him that he would try to put it behind him.5
On February 21, 2013, Young sent the following email to Ernst: subject, meeting, February 21.
The email reads: I would like to thank you for your time, and effort, yesterday. Thanks again,
Paris Young!
10
On 7/15/13 Young received a verbal warning documenting conduct that occurred on 7/10/13.
It was signed by Ansari and Cespesdes, but Young refused to sign the document. It reads as follows:
On October 31, 2013, Respondent issued Young a verbal counseling for failing to comply with
departmental procedures, by leaving shift reports, prior to announcements being made. The 15
counseling, signed by Verrette and Ansari, reflected 5 separate occasions, between 9/16/13 and
JD(NY)-46-15
8
10/31/13, that Young left shift report early, and violated shift report policy. The counseling is as
follows:
On January 6, 2014, Young left the unit to which he was assigned, the Cardiac 5
Catheterization Lab (CCL), and was not available when a Nurse sought his assistance with a patient
requiring respiratory therapy. Unable to locate Young, the Nurse contacted the Respiratory case
office. It was discovered that Young was not responding to the Nurse’s calls because he had failed to
program his Hospital cell phone to receive calls from the Cardiac Care Lab to his extension at the
start of the shift, in violation of departmental procedures. Accordingly, Verrette and Ansari issued a 10
written warning to Young, dated 1/10/14 documenting the above events. It is set forth below.
JD(NY)-46-15
9
JD(NY)-46-15
10
Subsequently, Young filed a grievance protesting this written warning, and at the grievance
meeting with Ernst and Verrette shared for the first time that during this incident he had appropriately
programmed his phone on the morning of January 6, 2014. Young asserted that his “Spectralink
System” had many issues, and that it somehow reverted back to the number of the person working
the prior shift. In response to the most recent excuse offered by Young, Verrette communicated with 5
Respondent’s IT Department, as well as Respondent’s telecommunication vendor and confirmed that
Young’s excuse was not plausible, as the phones was not de-programmed. Ernst denied Young’s
grievance on January 21, 2014. The denial is set forth below.
JD(NY)-46-15
11
Young did not appeal Ernst’s decision to deny his grievance.
On January 22, 2014, Respondent issued Young a verbal counseling, signed by Ansari, for
failing to follow Respondent’s sick call policy. The counseling is as follows:5
On March 28, 2014 Young was counseled again for failing to adhere to departmental policy,
this time concerning Young’s failure to properly document patients. High Flow Nasal Cannula. This
counseling was issued by Ansari, in the presence of Verrette and reads as follows:10
JD(NY)-46-15
12
On April 7, 2014 Young again left the unit to which he was assigned without his cell phone,
resulting in the Nurse contacting Ansari directly to request an aerosolized medication for a patient.
When Ansari called Young to notify him of the request for treatment, Young did not answer his cell
phone. Instead, someone at the Nursing station answered the phone, and explained that the cell 5
phone was found unattended and the RT covering the unit could not be reached. Ansari assigned
another RT to administer the required treatment.
Young’s failure to keep his assigned communication device on his person not only violated
departmental procedure, it was also the third instance during a nine month period in which Young had 10
left his assigned unit when contacted for patient care needs.
Verrette consulted with HR, and decided to suspend Young for one day, because of Young’s
pattern of behavior, where Young could not be accessed in the area he was covering.
15
The Disciplinary Notice, dated, April 7, 2014, was signed by Verrette and Ansari, Young
signed it under protest, but made no other comments to Verrette or Ansari about it. The suspension
notice is set forth below:
JD(NY)-46-15
13
On April 29, 2014, Young received a counseling for violation of Respondent’s sick call
notification procedure, which reflected three instances of Young violating Respondent’s procedures,
dated 1/22/14, 1/18/14 and 4/18/14. This counseling is set forth below:5
JD(NY)-46-15
14
When Young met with Ansari and Verrette to administer the counseling, Young exhibited
confrontational and passive aggressive behavior toward Ansari. More specifically, when Ansari asked
Young to come into the office, Young walked out, requiring Ansari to go into the hallway and ask that
he return. When Young did return, he refused to close the office door, choosing instead to stand and 5
keep his leg in the door open so that staff could overhear the discussion, and during the discussion
denied ever having a prior discussion regarding sick calls procedures.
Verrette then sent an email to Ernst, documenting Young’s behavior with Ansari. It is as
follows:10
JD(NY)-46-15
15
On 4/29/14, Young sent the following email to Ernst, protesting the counseling. It reads, “I
would like to protest the counseling I just received. This is starting to get really serious.”
JD(NY)-46-15
16
Ernst responded by email as follows:
C. Respondent’s Announcement of Change from Twelve to Eight Hour Shifts
5
On February 24, 2014, Verrette along with Godfrey issued a memo to the Respiratory Care
Department regarding Respondent’s need to close an anticipated budgetary gap of ten million
dollars in 2014. The memo with attachments was distributed to RT’s at a meeting and discussed
with employees by Godfrey and Verrette.
10
The memo announced that the department would convert from a 12 hour “flex time” (3 day)
scheduling model to a standard (5 day) schedule effective June 15, 2014. This would result in a
10% reduction in the number of employees (i.e. through reduced per diem hours) required to staff
at the same level and was estimated to save the department approximately $350,000.
15
JD(NY)-46-15
17
Respondent was aware that the scheduling change would likely result in hardships for some
RT’s, who have other jobs. Thus the RT’s were given 4 months’ notice prior to the
implementation date of June 15, 2014.
Paris Young was not present at this meeting. A number of employees spoke up, and 5
expressed dissatisfaction with the proposed plan, including asking why nursing was not also
going in that direction. Raqquyah Webb an RT also spoke up and suggested that the hospital
could possibly save money without the employees having to go to eight hour shifts. Godfrey
added that his door was open to speak with anyone.
10
After this meeting Young met with Webb and a few other RT’s and came up with the idea of
creating an alternate plan to present to Respondent that would maintain 12 hour shifts. After
multiple discussions regarding the shift change, Webb, Young and Sophia Pierre, another RT
created a letter dated 4/18/14, to be submitted to Godfrey requesting a meeting regarding the
impending shift changes. Attached to the letter was a petition, signed by forty-one RT’s, including 15
Young, Webb and Pierre, in support of the letter.
Starting approximately March 21, 2014, during shift reports, Young and several other
therapists solicited signatures for the petition. Young testified that Ansari and Cespedes saw
these solicitations in the office. After all signatures were solicited, it was decided that Webb and 20
Pierre should bring the petition and the letter to Respondent.
On or about April 9, 2014, Webb and Pierre brought the completed letter and petition to
Respondent’s HR Department. They spoke to Ernst and delivered the letter and petition to her.
They asked for a meeting with Godfrey to discuss cost savings options other than switching to 8 25
hour shifts. Webb and Pierre requested that the meeting be just with Godfrey and HR, and that it
not involve Respiratory Therapy Management.
Webb explained to Ernst that Verrette and Ansari lead with fear and punishment, which
included writing up and suspending employees. Ernst informed Webb and Pierre that she would 30
serve the documents presented to her, discuss it, and see if a meeting could be scheduled. Ernst
asked both Webb and Pierre for their phone numbers and said that she would ask Godfrey to
reach out to them directly. Subsequently Webb was contacted by Ernst, and a meeting was set
up for April 16, 2014.
35
At the conclusion of the meeting between Pierre, Webb and Ernst, Webb and Pierre exited the
Human Resources Department and walked past Verrette in the hallway. They said hello to each
other, and had no further conversation. Verrette was at HR to drop off the final signed copy of
Young’s suspension, issued to him earlier that morning.
40
Ernst brought the letter and petition to Orlando and they discussed it. They then called
Godfrey to discuss the letter and its contents, and it was agreed that Godfrey would meet with the
employees as requested. According to Respondent’s witnesses, they did not provide Godfrey a
copy of the letter or the petition.
45
JD(NY)-46-15
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Verrette testified further that he never saw a copy of the letter or petition, and was unaware
that a petition had been signed by any employees in regard to the request for a meeting.
As noted above, the meeting took place on April 16, 2014. The RT’s decided that Young
would present the employees proposals to management. He prepared a four page proposal to 5
present to Respondent at the meeting.
Present at the meeting were 15 to 20 RT’s and Orlando, Ernst and Godfrey on behalf of
Respondent.
10
Godfrey began the meeting by thanking the RT’s for the letter and advising that she was
happy to listen to any alternative proposals. Young then handed out a PowerPoint presentation to
Godfrey and the other attendees, which contained a proposal of the employees in response to
Respondent’s proposal. The employees proposal made various alternatives including adding a
13th shift, eliminating conference benefits, proposing making an entire day, donating money to 15
Respondent, and giving up time off of their educational days.
After Young finished discussing the employee proposals, Godfrey thanked the RT’s again and
indicated that while the numbers in the proposal did not match the Hospital’s projected savings,
Respondent would look into and determine the viability of the proposals, and get back to the 20
employees and have another meeting with the employees.
After this meeting Godfrey gave the employees’ proposal (the PowerPoint printout), which had
no names on it to Verrette to review. Godfrey didn’t inform Verrette who had prepared or
discussed the proposal at the meeting with employees. Verrette testified that he did not know that 25
Young had presented the proposal at the meeting, as a spokesperson for the employees.
Verrette also testified that he did not know anything about a petition being signed by employees,
or who signed the petition.
Verrette reviewed the employees’ proposals, calculated the savings involved, and concluded 30
that the proposals would not result in savings equal to the proposed transition to the 8 hour
schedule.
However, Verrette did conclude that the employees’ proposal for 13 shifts a month was
potentially viable, and would recommend it, but the overtime issue was a problem. That is, nurses 35
are deemed to be professional employees, and are exempt from overtime requirements. RT’s on
the other hand do not qualify as professional employees under the relevant statutes. Therefore
the employees’ proposal for the 13 shifts per month would result in significant overtime costs.
Respondent attempted to resolve this issue, and these were extensive discussions with Legal,
Finance and HR, to see if there was any way to get around the overtime issue, and perhaps go 40
forward with the proposal of 13 shifts per month.
On May 1, 2014, Verrette met with the RT staff during morning shift change, and informed
them that Respondent was looking into the viability of the employees’ proposal to maintain the 12
hour shifts. He informed the employees that RT’s are considered technical, and not professional 45
JD(NY)-46-15
19
under the state license classification, and that “we have different obstacles then Nursing in getting
this achieved. Verrette told the employees that he will be meeting with HR, Payroll and Finance”
to see how we can work around some of those issues.” He told the employees that the final
update regarding the shift change will be answered as soon as Respondent confirms that the
changes comply with state, HR, Payroll and Finance rules.5
Ultimately, after extensive discussions, including obtaining a second legal opinion, on the
overtime issue, it was concluded by Respondent’s officials that the overtime costs associated with
the 13th shift were unavoidable and significant, and would have eliminated any cost savings.
Thus Respondent decided to go forward with the 8 hour shift.10
On June 2, 2014 Godfrey and Verrette met with the RT staff and advised that Respondent
had reviewed the employees’ proposals, and that they did not work out financially, and
Respondent would be going ahead with the shift change to eight hour shifts. Because it had
taken so long to thoroughly investigate the employees proposal, Respondent concluded that it no 15
longer seemed fair to implement the new shift change on June 15, 2014, as originally proposed.
Instead, Godfrey and Verrette announced the implantation would be extended to July 13, 2014.
On June 30, 2014, at the staff meeting, Respondent mentioned that the 5 day schedule will be
completed soon and posted. It also states “the department realizes the imposition used by the new 20
scheduling system. The department is open and flexible to accommodate requests by the staff
members during this difficult transition period.” Respondent transitioned to the new staffing model on
July 13, 2014.
D. The Events of July 7, 201425
On July 7, 2014, Raqquyah Webb was instructed by Ansari to go to Verrette’s office for a
meeting. Webb was informed that she was being suspended for two days for excessive absenteeism
and abandonment of her post. Webb was informed on both June 20 and June 27 that she could not
take off on June 8, 2014 to travel to see her grandmother in Georgia. Webb then called in sick for 30
June 28, 2014, thereby creating a staffing shortage and impermissibly extending her vacation, which
was scheduled to start the following day. (June 24, 2014)
Web denied that she was trying to extend her vacation, and asserted that her grandmother
was ill, and gave Verrette a doctor’s note regarding her grandmother’s health.35
Verrette told Webb that by taking such day it was as if she said “FU” to the department.
Verrette then called Webb manipulative and sneaky and that she did not appreciate her attempts to
use a sick day when she was obviously not sick, especially so soon after her 2-week furlough. In that
regard Webb had been furloughed for two weeks starting 2/28/14, because she failed to get her 40
credentials renewed, which resulted in Respondent being short staffed for three weeks.
Verrette testified that he was frustrated with Webb’s behavior and she seemed to have no
remorse, in that she had been furloughed for three weeks, causing a terrible hardship for the
JD(NY)-46-15
20
department. Now she has done it again, by taking sick leave, when she wasn’t sick, after twice being
denied by Respondent of her requests to take personal days.
Verrette also referred to the fact that she had seen her (and Sophia Pierre), coming out of
Human Resources in early April of 2014, and asked “why didn’t you communicate directly with me,” 5
and told her if she had concerns that she should speak to him first, as the Director of the department.
According to Verrette, he had no idea that Webb and Pierre were at HR in early April to
present the petition to Ernst. Verrette testified that he assumed that Webb was at HR to confirm
about her furlough which had ended shortly before April of 2014. 10
Webb responded that Verrette should look at the way he is talking to her, and added “this is
the reason why I don’t communicate with you.”
Webb then asked if she could be excused? Verrette said yes and Webb left.15
Her suspension notice that she was given reads as follows:
NEW YORK HOSPITAL QUEENS
20
RECORD OF OFFENSE AND WARNING
Employee: Raqquyah Webb
Job Title: Respiratory Therapist Department Respiratory Care
Date of Occurrence: 6/28/2014 Date Disciplinary Issued: 7/7/201425
Nature of Offense: EXCESSIVE ABSENTEEISM/ABANDONMENT
Details of Occurrence:
Miss Webb was scheduled to work the night shift on Saturday, 6/28/2014. Miss Webb was 30
scheduled to begin vacation starting the day after on 6/29/2014 till 7/6/2014. Miss Webb called in
sick for Saturday 6/28/14, resulting in a staff shortage of 6 staff members for that night, prior to this
transpiration, there was a sequence of events that lead to this situation. After returning from a
previous vacation, Miss Webb approached Mr. Herman Cespedes on 6/20/14 to request a day off for
Saturday 6/28/14, which she was scheduled to work on and the day that Miss Webb ultimately called 35
in sick. Mr. Cespedes did not approve the day off and suggested to Miss Webb to seek alternative
possibilities, such as switching with another staff member. On Monday 6/23/2014, Miss Webb
switched her shift from Wednesday 6/25/2014 to Tuesday 6/24/2014 with another staff member,
thereby lumping the shifts together. On Friday 6/27/2014, Miss Webb called Mr. Cespedes for an
emergency day for Saturday 6/28/2014. Mr. Cespedes did not approve the emergency day for 40
6/28/2014 that Miss Webb requested. Lastly on 6/28/2014, Miss Webb called in sick for that
Saturday 6/28/2014 to the Lead Therapist on duty resulting in a staffing shortage and extending her
vacation.
Action Taken:45
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___ Verbal Warning ___ Written Warning _X_ Suspension ___ Discharge
Miss Webb is highly encouraged to comply with maintaining an adequate attendance record.
The excessive absenteeism has resulted in staffing shortages. Staffing shortages could result in poor
or unsafe care of our patients. This occurrence had ensued in a staffing shortage and abandonment 5
of duty that results in a disciplinary action of a two day suspension, inclusive of the day that Miss
Webb called in sick, Saturday 6/28/2014. Future events of this nature will result in further progressive
disciplinary action up to termination/discharge.
Previous Disciplinary Actions:10
Date Type of Action Offense
6/10/2014 Verbal Warning Incomplete Shift Report
3/27/2014 Written Warning Excessive Absences/Furlough
2/28/2014 Unpaid Furlough Furlough due to Credential Renewal/Verification15
10/9/2012 Verbal Warning Documentation
6/25/12 Written Warning Non-compliance with hand hygiene policy (5/2012, 1/2012)
Employee Explanation/Comments:
20
My finding with respect to the conversation between Webb and Verrette is based on a
compilation of the credited positions of the testimony of Ansari, Webb and Verrette. Most of the facts
are essentially not in dispute. I credit Webb that Verrette said by taking a sick day it was it was as if
she said “FU” to the department and that Verrette informed her that she was being manipulative and 25
sneaky by taking the sick day. I do not credit Webb’s testimony that Verrette told her that he had
“caught her and Pierre” red handed at HR. In that regard I note that when Webb furnished her
version of the events of July 7, 2014 to Ernst sent on August of 2014, Webb made no mention of this
alleged comment by Verrette.
30
E. The Events of August 20, 2014 and the Subsequent Termination of Young’s Employment
On August 20, 2014, Young was assigned to cover the Respiratory Disease Management Unit
RDMU on 5 North. Young noticed that he had eleven patients to care for. During shift change at
around 7:00 am Young complained regarding the amount of patients that he had been assigned and 35
asked who was going to help him. Ansari informed Young, “give us a few minutes, we will work it
out.” Ansari told Young to meet in the supervisor’s office at shift change and that Joseph Matthew,
lead therapist would also be present. Ansari and Matthew went to the supervisor’s office at about
7:15 am, Young was not there. Matthew and Ansari then went looking for Young in RDMU to discuss
the matter, but he was not there either.40
In fact, the reason that Young was not on the floor, is because rather than going to his unit to
begin working, he decided to go down to the cafeteria to grab a cup of coffee.
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Ansari, surprised that Young had not gone to RDMU after shift report, called Young on his cell
to determine his location. Ansari asked Young where he was, so he could speak to him regarding his
workload. Young did not say where he was, advised Ansari that he would be back at RMDU shortly
and hung up the phone on Ansari, while Ansari was still talking. Ansari then called Young back and
told him to meet him in the supervisor’s office with Matthew. Young said ok. Ansari went to the 5
supervisor’s office, but Young was not there. Ansari then received a call from Young, who informed
him that he had come to the staff office and Ansari wasn’t there but Matthew was, so he left. Ansari
then asked Young to come to the supervisor’s office.
At around 7:45 am, Young arrived at the supervisor’s office. Matthew was present along with 10
Ansari. During this meeting Ansari advised Young that Matthew wanted help Young with transports
and had further agreed to take two of this patients in RMDU. This left Young with a total of nine
patients for the day, all of whom needed vent checks by that morning and four whom required
medications between the hours of 9:00 am – 11:00 am. Ansari also advised Young that if she
needed any additional assistance he should speak to Matthew.15
While Ansari was able to bring the meeting to an amicable resolution, he was concerned
about Young’s conduct that morning. Ansari was upset about Young’s conduct during shift change,
i.e., complaining about workload in public without addressing him or making eye contact with him and
being unable to locate Young for a period of time. Thereafter, when he was not in his assigned area 20
and that, Young hung up the phone on him during one of their phone conversations. Ansari therefore
sent an email to Verrette at 9:14 am, entitled “Paris Young assignment concern for 8/20/14”.
My findings with respect to these events is based on a compilation of the credited portions of
the testimony of Ansari and Young, as well as the email from Ansari to Verrette describing the events, 25
plus a contemporaneous email sent by Matthew to Verrette describing his version of the interactions
between Ansari and Young for that day.
After the meeting ended, Young returned to the RDMU but instead of beginning to provide
care to his remaining patients, he went to fifth floor lounge to send an email to Ansari confirming their 30
conversation that Matthew will be doing ventilator documentation for two patients, beds 1 and 2.
Young then accessed his personal email account to obtain a previously drafted document, dated
8/19/14 concerning issues with his phone. The email to Ernst reads “Due to the fact that my next
communication issue may lead to my release, I have attached an incident that happened the other
day. I continue to have issues with the telephone system. Would you please address or resolve this 35
issue in my file”.
In his memo to Ernst, Young recounted his version of the events of 8/19/14, concerning
problems with his phone, wherein it was programmed to the voice mail of RT Darryl Montana. In this
memo he accused Montana of reprogramming Young’s phone to his line. Montana denied that he 40
had done so. At the trial, Young testified that he believed that Montana had reprogrammed the
phone, so that Young’s phone was programmed for his extension because there were some issues
with Young and Montana and because of Montana’s close relationship, with Ansari. Young added
that it was possible that Montana was trying to set Young up.
45
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23
At around 8:00 am Young performed a ventilator check. A vent check involves sound
assessment, pulse altimetry, suctioning patients if necessary and recording settings into the
Electronic Medical Records EMR 1. According to Young the entire process of ventilator checking
generally takes between 5 and 20 minutes for each one.
5
According to Young, between 8:00 am and 9:18 am he completed vent checks for all of his
nine patients, except that he didn’t enter the information into the EMR system, except for the first vent
check. According to Young it takes about 15 minutes to input that vent check into the system, and
then realized that it was time to go to the supervisor’s office to deliver his ready to go list.
10
Young arrived at Verrette’s office gave him the “ready to go list.” Verrette having received
Ansari’s email summarizing the events of the morning, asked Young to come into the office to speak
about the morning’s events. Prior to Young arriving, Ansari and Verrette were discussing the
morning’s events, including Ansari’s observation that Young was “grandstanding” and made a “public
display to show disrespect.” At that point Verrette and Ansari had not yet discussed issuing Young a 15
counseling or any disciplinary action as a result of this incident.
Young opened the door to Verrette’s office, dropped off the “ready to go list” but kept his foot
in the door and refused to come into the office. Verrette asked Young to come into the office and
close the door, to speak about the morning’s events. Young initially refused to come into the office 20
and close the door as requested by Verrette. Young testified that he hesitated to come in because
Verrette appeared upset and they had a history.
Verrette said to Young that he needed to come into the office because there were patients
outside and they needed privacy for their discussion.25
Finally after three or four requests, Young agreed to come into the office and close the door.
When he came in, Young said that it was hostile in the office, and commented “whoa aggressive”
Verrette told Young that it was important to act professionally with his supervisor and he was
insubordinate and belligerent in his dealings with Ansari, Cespedes and Verrette. Verrette informed 30
Young that he was making the transition impossible, in that there were scheduling issues and they
needed to work together on this. Verrette explained that Young’s conduct earlier that morning, made
a situation already difficult by being short staffed due to a sick call, more difficult by his outburst
during shift change. Verrette explained that Young’s conduct doesn’t reflect to the “We Care” values
that we are trying to achieve. Verrette mentioned another example that happened the prior week, 35
when Young was on speaker phone with Ansari, and Verrette overheard Ansari requesting an update
on any issues with the scanner for medication administration. Young responded in an unpleasant
tone “you asked me this yesterday.” Verrette repeated to Young that if he had a question he should
discuss it professionally. During the entire time that Verrette was addressing Young, Young was
staring at the wall 90 degrees from Verrette and not looking at him. Verrette told Young to look at him 40
in the eyes when Verrette speaks to him. At this point, according to Young, Verrette was standing
close to him, and when he was speaking Verrette’s spit landed on Young’s face. Young conceded
that Verrette did not intentionally spit at him, but contends that Verrette was upset and raising his
voice and when speaking his spit accidentally landed on Young’s face.
45
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24
Young then said this is not o.k., and walked out of the office. Verrette told him to come back
into the office, and that he had not finished their discussion. Young ignored Verrette’s request to
return. Verrette then advised Young that his failure to return to the office would result in progressive
discipline. Young did not return to the office and kept walking down the hall and into a stairwell.
5
Young immediately returned to the computer in the fifth floor lounge and sent the following
email to Ernst:
Good Morning,
10
I just had a very angry one sided conversation with Mr. Ansari, Mr. Verrette and Ms. Savage.
Mr. Verrette approached me insisting that I was obstructive, that I must close the door behind me (I
went to drop off the ready to go list). I was standing. Upon closing the door behind me Mr. Verrette
approached closer standing. His voice was raised. I told him I didn’t feel comfortable with him. He
pressed stating that he didn’t like my attitude. I looked away to avoid a staring contest.15
He responded “You look in my eyes when I talk to you!” I said whoa. I feel uncomfortable and
exited. He said this would lead to progressive discipline that we would have to meet with HR.
I feel threatened both bodily and mentally. I need to work someplace that is safe.20
Thank you,
Paris Young
Young testified that he felt threatened by Verrette and that in the past Verrette had informed Young 25
that he’s very good at fighting, willing to fight, and that he had a black belt in karate. According to
Young he then went to the bathroom, washed the spit off his face, and thought about what he should
do next, because he did not know what was going to happen. At around 10:00 am, Young exited the
bathroom and saw Sonia Cortes who was covering the other half of the unit. Young told Cortes that
he was leaving the unit and he would be back shortly. Cortes replied, “fine, no problem see you later 30
baby.”
According to Young, when he told Cortes that he would be back shortly, he did not know
where he was going and how long he would be away from the unit. Young also admitted that he did
not expect Cortes to do his vent checks and give the medications to his patients.35
At that point Young was undecided whether he was going to the HR, to Security or
somewhere else, but he asserts that he felt threatened and couldn’t return to work in that state. He
finally decided to go to Security. He went to the Security office on the basement level, in the back of
the hospital. He asked to speak with Kevin Campbell, the Director of Security. Campbell was not at 40
the Hospital that day; Young was directed to Harry Stafilias, Assistant Director of Security. Young
told Stafilias that Verrette was “coming at me” telling him that he was insubordinate and belligerent
and that Young felt threatened by Verrette. Young told Stafilias that Verrette knows karate and he
was afraid that he may be hurt by Verrette.
45
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25
Stafilias told Young that there was no imminent threat, Verrette was not in the room and this
was a matter for HR to handle. After Young repeated he was afraid of Verrette and that Verrette
knows karate, Young then asked Stafilias to call HR.
Stafilias then called HR and spoke to Dina Panatelias, a lower level HR employee. He told 5
her that Paris Young was at security and had said that he felt threatened by Verrette. Verrette asked
for Ernst, but Panatelias informed Stafilias that Ernst was not in that day. Stafilias then called Ernst
or her cell phone. Stafilias informed Ernst that Young was in his office and there was an issue in
respiratory, between Young and Verrette. He told Ernst that Young had stated that he felt threatened
by Verrette. Ernst told Stafilias that she would not be in the office, but would try to reach out to 10
Orlando, who was also out of the office that day. Ernst instructed Stafilias that no one from HR would
be coming in, but to hold until someone calls him back.
At 10:08 am Verrette not knowing where Young was or that he had not gone back to work
after leaving Verrette’s office, sent the following email to Ernst:15
Kristin,
Paris Young came into the office at 9:30AM to drop off his daily log to give to Pervaiz. He
usually holds the office door open, and only enters the office with one foot. Since he was in the office 20
I thought I would speak to him about what occurred this morning (see email below). I asked him to
come into the office. His body language demonstrated that he would not come in. I had to ask him
several times to come in the office. He stated that I was being aggressive. I was not intending to be
aggressive, but was firm because employee was ignoring me when I requested to speak to him. I
told him that I need to speak with him privately, and I did not want to discuss any issues for other staff 25
and patients family members to hear. I explained to him that it was his right to disagree with the
workload, but needed to do it professionally. There is a tone of disrespect and belligerence with a
majority of his interactions with Pervaiz Ansari, Herman Cespedes, Joseph Matthew, and myself. I
explained to him that it does not reflect the “WE CARE” values we are trying to achieve. I mentioned
another example last week when he was on speaker phone last week with Pervaiz Ansari. I 30
overheard Pervaiz Ansari requesting an update on any issues with the Barcode Scanner for
medication administration. Paris Young responded in an unpleasant tone “you asked me this
yesterday.” We are currently reporting daily to Vicky Mackey to let her know if issues are resolving. I
told Paris that if he has a question he should discuss it professionally. During the whole time he was
staring at the left wall 90 degrees from me. I asked him to look at me when I was talking to him. He 35
made some comment to me that this is not OK, and left the office. I requested that he come back,
and he continued to walk to the stair to leave.
This is becoming a major problem. Can we please discuss the next appropriate step at your
earliest convenience.40
Rich
Richard Verrette, RRT, RPSGT
Administrative Director Respiratory Care
45
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26
Stafilias after his call from Ernst, returned to speak to Young. He informed Young that no one
from HR would be coming. Stafilias asked Young if he had patients he should be taking care of.
Young replied that he did. Stafilias asked if Young had to notify anyone as to where he was, and
Young replied that no one knew that he was there. Staifilias did not tell Young that he had to stay at
HR, or that he should or could go back to work. Staifilias did tell Young that he was waiting for a call 5
from HR to call him back and it should be within a few minutes.
At about 10:20 am Dina Panatelias called Verrette and informed him that she had received a
call from Harry Stafilias, who informed her that Young was in security and had said that he felt
threatened by Verrette. At that point Verrette told Panatelias that he would forward the email that he 10
had sent earlier to Ernst, concerning the events between Young and Verrette earlier that morning.
At 10:32 am Verrette forwarded the email to Panatelias, c.c. to Orlando and Godfrey.
A few minutes before 11:00 a.m., Orlando telephoned Verrette and informed him that she had 15
received the email and that based upon the circumstances, Young should be taken off duty pending
further investigation.
Orlando also called Stafilias and informed him that Verrette would be coming down to security
to take Young off duty.20
At approximately 11:00 a.m Verrette came to the security office. In the presence of Stafilias,
Verrette informed Young that he had spoken to HR and that Young was being taken off duty and that
there would be a follow up meeting with HR. Verrette asked Young whether there was anything that
needed to be done before he went off duty and Young replied, “No,” and did not tell Verrette that he25
had patients that were overdue for medications or vent checks. Young handed Verrette his barcode
scanner and walked out of the security office. Young was not holding any documents and did not
hand any documents to Verrette.
After Young was taken off duty, he told Ansari to redistribute Young’s work to other staff. 30
Ansari reassigned Young’s patients to Matthew and Cortes. Upon taking over these patients,
Matthew and Cortes reviewed the patient’s charts and discovered that, of the nine patients assigned
to Young that day, he had only rendered care to one patient, since his shift began at 7:00 a.m. The
records reflected that Young performed a single vent check at 8:00 a.m., and that he failed to
administer necessary medications to three patients by 10:00 a.m. There is a two hour window, during 35
which RT’s can administer medication to patients, so on August 20, 2014 Young could have
administered medications to his patients between 9 a.m. and 11 a.m. Because Young never told
anyone that his patients had not received their necessary medications, this window lapsed without
patients receiving their medications.
40
After Young left the building, he called HR and confirmed that the Respondent was putting
him on leave. During that day, none of Young’s patients went into distress or died.
The next day, August 21, 2014, Ernst returned to work. She discussed the events of August
20, 2014 with Verrette. She had received and read the emails. Verrette told Ernst about the earlier 45
JD(NY)-46-15
27
incident with Ansari, where Young had hung up the phone on Ansari and that they were trying to find
Young to arrange a discussion about arranging the schedule and Young wasn’t in the unit. They
finally reached Young on the phone and in the course of the conversation, Young hung up the phone
on them. Eventually Young was located and they worked out the issue of Young’s patients, and
Matthew agreed to take two of these patients. Verrette told Ernst that he thought it would be a good 5
opportunity to talk to Young about the problems he was having with Ansari. Verrette told Ernest that
when Young came into the office, he hung in the doorway, and refused to come all the way in.
Verrette informed Ernst that he pleaded with Young to come in and close the door and he had to ask
him three times before Young agreed to come in. After they had some conversation, Verrette told
Ernst that Young said that “whoa this is getting hostile” and opened the door and walked out.10
Verrette told Ernst that Orlando subsequently called him and told him to take Young off duty.
Verrette then informed Ernst that later that day Respondent found out that Young had not
administered medications to his patients and had had performed only one vent check, leaving eight
patients without vent checks. Verrette recommended and Ernest agreed that Young should be 15
terminated because of Young’s “lack of communication” regarding informing others that he would be
away from his unit for a short period of time, Young’s “contempt of authority”, “always fighting with
authority,” his disciplinary history and that patients were abandoned. Additionally, Verrette defined
Young walking out of his office earlier that day, and refusing to return upon being asked as
“insubordination.” Subsequently, Ernst discussed the issue with Orlando, and Orlando agreed that 20
termination is appropriate. Verrette prepared the termination notice, which was given to Young on
September 3, 2014, when Young returned from his vacation, which had started shortly after he was
taken off duty. The discharge notice reads as follows:
Employee Name: PARIS YOUNG25
Job Title: Registered Respiratory Therapist Department; RESPIRATORY CARE
Date of Occurrence: 8/20/14
Nature of Offense: INSUBORDINATION
ABANDONMENT OF PATIENTS30
NEGLIGENCE OF PATIENT CARE AND SAFETY
Details of Occurrence:
On 8/20/2014 you came to the supervisor office at about 9:30 a.m. to drop off “your ready to 35
go” list to your supervisor, Pervaiz (Rich Verrette and Juliya Savich were present). Rich needed to
speak to you about an issue that occurred earlier that morning about your workload. He was asking
you to come into the office. Your body language demonstrated that you would not come in. Rich had
to ask you several times to come into your office. Your body language demonstrated that you would
not come in. Richard had to ask you several times to come into the office but you did not. You were 40
told that he needed to speak with you privately, and he did not want to discuss any issues for other
staff and patient’s family members to hear. You finally came in and closed the door. It was explained
to you that it was your right to disagree with the workload, but needed to do it professionally. There is
a tone of disrespect and belligerence with a majority of your interactions with your supervisors which
you have been spoken to about in the past. Rich tried explained to you that it does not reflect the 45
JD(NY)-46-15
28
“WE CARE” values we are trying to achieve. You were told that if you had a question you should
discuss it professionally. During the whole time you were staring at the wall. Rich asked you to look
at him when he was talking but your response was “this is not OK” and left the office. Rich requested
that you come back, but you continued to walk away. At 10AM Rich receives a call from HR that you
went to security. Shortly after, you were taken off duty.5
After 11am we redistributed your assignment to other staff. After reviewing what needed to be
done it was observed that:
 Between the hours of 7Am to 11AM only 1 ventilator check was documented for 1 10
patient by you. There was no documentation that the other patients on life support
were evaluated until Sonia Cortes and Joseph Matthew was notified by the supervisor
they would be taking over.
 Three of the ventilator patients under your care were ordered for medications to be
administered by 10AM. There is also no documentation that the medication was 15
administered that morning by you.
 You did not notify Pervaiz, Joseph, or Rich that you left the floor. We only found about
about it when HR called.
 Sonia Cortes’ specifics of the report that was given to her when you left RDMU was “I
am stepping off of the unit for a few minutes.” At no time was she made aware by that 20
he would not be available to administer medications, or visit his patients on life support
for suctioning and assessment.
 See details of abandoned patients.
Time first RT who did Red
surveillance surveillance Tx Given Tx time Tx done Box 25
COMMENTS
Room # e check for check at that ordered (y/n) (y/n)
Shift done time (y/n)
North 516- 8:00 am Paris Young y n 10:00 am n/a y
DYN-Q6 While30
2 awake
North 517- 8:20 am Joseph Matthew y y 10:00 am Joseph n transported to
1 DIALYSIS
35
North 517- 11:45 pm Joseph Matthew n n/a n/a n/a n/a n/a
1
North 518- 11:50 am Joseph Matthew n n/a n/a n/a n/a
n/a40
1
North 519 11:55 am Joseph Matthew n n/a n/a n/a n/a n/a
1
JD(NY)-46-15
29
North 521- 11:45 am Sonia Cortes n n/a n/a n/a n/a
n/a
1
North 521- 12:00 pm Sonia Cortes n n/a n/a n/a n/a
n/a5
2
North 522 12:00 pm Joseph Matthew y n 10:00 am n/a y D/N-Q6
ATC
Pulmicon-BID
North 523- 11:40 am Joseph Matthew y n 10:00 am n/a y D/N-Q6 10
ATC,
1 BIPAP

15
JD(NY)-46-15
30
On September 3, 2014, Young met with Verrette and Ansari. Verrette informed Young of
Respondent’s decision to terminate his employment, and handed him the termination notice which
Young refused to sign.
On or about October 7, 2014, Young grieved his termination, pursuant to Respondent’s 5
internal grievance procedure. He met with Lorraine Orlando. Young explained to Orlando his
reasons of the events of August 20, 2014. He told her that Verrette called him into the office “went at
him”, called him belligerent, and kept spitting at him and came closer to him. He told her that Verrette
told him to look him in the eye, after which Young opened the door to leave, and Verrette told Young
it possibly could lead to disciplinary action.10
Young informed Orlando that Verrette told him that he had made the transition impossible,
and that he believed that Verrette’s supervisors told him that he had made the transition impossible,
and that he believed that Verrette’s aggression towards him was linked to the meeting regarding the
changing of shifts from twelve patients to eight. According to Young, Orlando responded, “what 15
meeting.” Young described the meeting, but Orlando responded by looking at him as if she didn’t
remember the meeting, and shrugged her shoulders.
At no point during the meeting with Orlando, or during his meeting with Verrette on September
3, 2014, did Young assert that he had provided medication to his patients on August 20, 2014, or that 20
he had performed all of the required vent checks on his patients for that day.
On October 31, 2014, Orlando upheld the termination of Young and denied his grievance.
Her letter explaining her decision is as follows:
25
JD(NY)-46-15
31
JD(NY)-46-15
32
My findings with respect to the events of August 20, 2014 and October 7, 2014 are based on
compilation of the credit pertaining of the testimony of Young, Verrette, Ernst, Savich, and Ansari, as
well as contemporaneous e-mail accounts of the events by Young, Verrette, Ansari, Savich and 5
Orlando’s notes of her grievance meeting with Young. Most of the events are not significantly in
dispute, except for whether Verrette mentioned anything about making the transition impossible,
during his discussion with Young. Although both Verrette and Ansari denied that Verrette made any
such comments, I have credited Young’s testimony that Verrette did make this statement, as I
conclude that it was supported by the testimony of Savich, who was Respondent’s own witness. 10
Respondent’s attorney was obviously quite surprised when she asked Savich whether
Verrette said anything to Young about making a process impossible, and Savich responded
“probably!” Respondent’s attorney asked the question again, and Savich answered, “I believe so,
something to that effect.” Respondent’s attorney continued to press the witness about this testimony, 15
questioning her memory and observing that she may be confused. When she asked Savich for a
fourth time, whether there was a discussion regarding the transition from twelve to eight hour shifts,
Savich testified, “Yes, there was. They said we need to work on this there’s scheduling issues, they
were trying to work something out or something like that and that we needed to work on that.”
20
After showing Savich a copy of her e-mail account of the meeting, (which contained no
reference to statements about the transition), she asked Savich the same question again. Savich
replied “I think we said it’s been a difficult transition if that.” Finally, Respondent’s attorney asked
Savich “Do you remember someone making this comment?” Savich responded, I don’t think so.”
The attorney responded “Good,” and ended the questioning. 25
I conclude that despite Respondent’s attorney’s attempts to persuade her own witness to
change her testimony, that Savich’s earlier testimony is credited, and that Verrette did say that the
transition had been difficult and that there were scheduling issues and that we need to work together
on this.” Indeed, Verrette testified himself that he did mention that there was a sick call that day, and 30
that Young’s behavior with Ansari had made things more difficult.
JD(NY)-46-15
33
F. ALLEGED DISPARATE TREATMENT
General Counsel introduced into the record a number of documents reflecting disciplinary
actions and coaching and counseling for a number of employees, which in its judgment established
disparate treatment. 5
GUY LOUIS JACQUES
Guy Louis Jacques works for Respondent as an RT. He was suspended by Respondent on
August 22, 2013 for failing to administer prescribed medications as ordered, failure to endorse 10
medication to next shift, and falsification of documentation. Louis Jacques falsely documented that
he had provided medication to a patient, when, in fact, he had not done so and failing to inform next
shift of his failure to provide the patient with medication. As a result the patient went into distress and
missed that dosage. Respondent suspended Louis Jacques even though he did not have any prior
disciplinary actions, because the offense was so severe. 15
On July 10, 2014, Respondent issued Louis Jacques a verbal warning for failing to document
a respiratory note making it unclear whether the patient received a nebulizer treatment. On Sept. 23,
2014, Respondent issued Louis Jacques a verbal warning for Accurate Shift Reporting 1
Documentation Follow-up. The Warning reflected that Louis Jacques failed to perform surveillance 20
checks for a bipcentilation though a mask on a patient, neglected to do a shift evaluation with the
surveillance check, and failed to endorse to the next caregiver to promptly take care of the patient’s
needs. The document reflected Louis Jacques violated the We-Care Values of the institution, and his
negligence could have resulted in a potential risk. When cross examined as to why Respondent
chose to issue Louis Jacques a verbal warning, after his previous verbal leaching. 2 months before, 25
Verrette answered that it was because “the patient was all right.” Louis Jacques is still employed by
Respondent.
EVILIO PEREZ
30
Evilio Perez a Senior RT who worked for Respondent for over twenty years, was issued a
counseling session on September 9, 2013, for non-compliant documentation. This document issued
by Cespedes and Ansari, reflected 3 instances of non-compliant documentation, on 7/10/13, 8/16/13
and 8/21/13. The document reflects that Perez has documented inconsistently with the Departmental
Procedures on the above listed instances. Perez is encouraged to comply with Departmental 35
Procedures.
On December 11, 2013, Cespedes issued Perez a Counseling Session for violating
Respondent’s We-Care Values by addressing his supervisor (Cespedes) inappropriately by calling
him “Herminio.” The document reflects that “this is not in compliance with the welcome value of the 40
We-Care Values.
On January 14, 2014, Perez was suspended for leaving assigned clinical areas for extended
time. Perez left the Unit and went to the staff office to chat from 10:57 pm to 12:01 am on 1/15/14.
During the time that Perez was away from the Unit, the patient went into distress and died. Another 45
JD(NY)-46-15
34
RT came into the room and tried to help the patient, but the patient became unresponsive, and went
into cardiac arrest. The Cardiac team was unable to resuscitate the patient and the patient died.
The suspension notice stated that “Perez’s poor clinical judgment of staying out of his
assigned clinical area for an hour may have contributed to the poor clinical outcome of the patient. 5
Based upon the clinical outcome, Perez will receive a 1 day suspension”.
Verrette was cross examined about this suspension. He admitted that although the patient
probably would have died regardless of whether Perez was at his assigned area, his presence may
have changed the probability of death. Verrette issued a suspension to “explain the “serious 10
potential” of “future things happening again.” Verrette testified that the patient’s death was a factor in
the decision to suspend Perez, and that the incident was “severe.”
However, Verrette refused to categorize this incident as “egregious,” unlike Young’s incidents
leading up to his discharge because Young had numerous events and was not making any15
improvements. Perez is still working for Respondent.
FRANK TORRE
Frank Torre, a lead RT received a Counseling Session on 11/28/12 for incomplete 20
documentation. On April 30, 2013, Torre received a Verbal Warning for “Nebulizer treatment not
given and misrepresentation of fact, wrong documentation”. The document reflects that Torre did not
administer the nebulizer treatment to the patient on 4/29/13, and the patients daughter raised a
complaint to the Department about the treatment not being given. Torres noted in the EMAR that the
treatment was not given, at 10 a.m. and 4 p.m. since the patient was not available. However, the 25
supervisor verified with the nurse Tamara Yakubava, that the patient was in the room at these times.
Verrette was asked whether or not this was “severe,” and he replied no because the patient
did not go into distress or have any problems. According to Verrette, if that had occurred, the
disciplinary action “would have possibly jumped to a suspension or a written warning.” 30
On Nov. 13, 2013, Torre received counseling for failing to be helpful to colleague, while Torre
was acting as Lead RT. On Feb. 3, 2014, Torre was issued verbal counseling for using profanity in
the presence of a supervisor and three employees. On March 23, 2014 Respondent issued Torre
another verbal counseling for using profanity, during lunch in the staff office in the presence of 4 35
employees. The document reflects that Torre was verbally counseled on several occasions and
emphasized to be cognizant of the language he uses at all times.
On April 10, 2014, Respondent issued Torre a written warning for “false Documentation 1
Accurate shift report.” The document reflected that Torre falsely documented that he competed a 40
BIPAP surveillance check on a patient at Dioam, when he actually completed it hours later, at 6:01
p.m. The documented also lists Torre’s previous counseling and/or Disciplinary Actions, listing his
4/30/13 verbal warning and his Counseling’s on 11/13/13, 2/3/14 and 3/23/14, as detailed above.
45
JD(NY)-46-15
35
On November 6, 2014, Torre received a verbal coaching for failing to follow Respondents sick
call notification procedure. Torre is still working for Respondent.
DARRYL MONTANA
5
Darryl Montana, another RT employed by Respondent, was issued a verbal conversation and
counseling on 5/27/14 for inattentiveness, based on a complaint from a nurse manager, that Montana
had not answered his work telephone, when she tried to reach him about a transport that needed to
be done.
10
On July 16, 2014 Montana receiving another verbal counseling for failing to answer his work
telephone. Montana explained to the supervisor that the ringer volume on his phone was low, and he
had forgotten to turn up the volume. The document reflects that Montana was verbally counseled
and emphasized to be more aware and cognizant. It added that Montana stated that he was sorry.
15
On July 30, 2014 Respondent issued Montana a verbal warning for failing to forward his work
telephone. On August 18, 2014, Respondent issued Montana a verbal counseling for announcing, in
the presence of another employee and Ansari that he had never done the particular procedure
before. The counseling reflected that this created a “tenuous environment,” and added that Montana
was counseled in private, and “emphasized to positive language with confidence.” 20
On February 3, 2015, Montana was issued a counseling for leaving his work telephone in his
assigned area, when he was elsewhere. The document reflects that “the expectation is for Mr.
Montana to maintain his hospital communication device on hand at all times”. When cross examined
as to why Montana received counseling after his last disciplinary action regarding his work telephone 25
was a verbal warning, Verrette responded that it was because six months had passed and that
Montana was doing a “little bit better.” When it was pointed out to Verrette that six months had also
passed between Young’s Verbal Warning and his written warning, regarding his work telephone,
Verrette answered that the counseling was a mistake, and an “oversight,” and that all honestly this
probably could have warranted a written.” Montana is still employed by the Respondent. 30
FERNANDO SATO
Fernando Soto also works for Respondent as an RT. On October 14, 2012, Respondent
issued Sato a counseling session for failing to document that he provided a nasal pillow to a patient, 35
and for responding in an argumentative manner to his supervisor when questioned about it. On
December 20, 2013 Respondent issued Sato another counseling session for using profanity in the
staff office, and for violating Respondent’s “We Care Values”.
On November 7, 2014, Soto received a coaching for leaving his phone unattended while it 40
was charging. The document reflected that the supervisor told Sato that the phone should be on him
at all times. Sato apologized and said he forgot the phone when he left it charging. No calls or
patient related incident occurred during this time period. On Feb. 4, 2015, Respondent issued Sato a
coaching, and a counseling.
45
JD(NY)-46-15
36
The counseling was for “Procurement of Hospitalist ABG.” It reflected that a hospitalist
physician had contacted Sato about assistance in procuring arterial blood was for a patient. Sato
advised the doctor to have a nurse on the floor assist. When spoken to by Ansari about the situation,
Sato informed him that he had advised the hospitalist and or Nurse to make an attempt to procure the
arterial blood gases, prior to verifying that the Doctor was a hospitalist who was covered under our5
services for obtaining arterial blood gases. Ansari was able to find another RT to obtain the blood
gases without any further delay to obtain the arterial blood order as per the physician order.
The document reflects that it is the expectation and responsibility of the RT covering his area
to procure blood gases for hospitalists covered under any service. Sato was non-compliant with this 10
Department policy.
The coaching related to this incident, and reflected that Sato was coached regarding direct
communication with colleagues when requesting for help. With respect to the above described
incident involving the blood gas request, Sato gave his supervisors number to the hospitalist, but did 15
not communicate himself with his supervisor about his hospitalist’s request for help. Sato was
requested to communicate directly with the supervisor or lead RT to make them aware of the
situation. Sato is still working for Respondent.
FRED ROBINSON20
Fred Robinson is a per diem RT. On February 13, 2014 he received a counseling for failing to
provide his availability under Respondent’s guidelines. On the same day, Respondent issued
Robinson counseling for failing to complete documentation. On March 20, 2014, Robinson received
a verbal coaching for failing to engage in direct and effective communication with and submitting 25
documents directly to supervisors. On May 1, 2014 Robinson received a counseling for failing to
keep his work telephone on his body. Robinson had left the phone unattended in the staff office,
when he was chatting at the computer. Ansari informed Robinson that he must maintain his hospital
phone on his person at all times as per policy because this is a communication method in our
institution. On May 1, 2014, Respondent also issued Robinson a verbal coaching for failing to 30
contact the correct head RT (Supervisor) Director on duty. Verrette was questioned as to why
Robinson did not receive progressive discipline for his second communications issues within two
months. He replied that Robinson was a per diem employee, so he was simply taken off the
schedule. Verrette then stated that Robinson was still on the schedule, but is not getting any shifts
and Respondent is “weaning him off of it.” 35
YANG SHI
Yang Shi, an RT, received a coaching on July 11, 2014, stating that RT should seek
assistance in the following order: colleague, head therapist, supervisor, assistant administrative and 40
director. The coaching was titled, “Awareness of Colleagues Effective Teamwork”. On August 1,
2014, Shi received a coaching for walking away from Ansari while he was speaking to her regarding a
failure to update the board. The document states “Miss Shi did not communicate directly with a
supervisor. Miss Shi did no uphold the WECARE values by cutting me off and walking away before I
JD(NY)-46-15
37
could finish my statement”. On August 8, 2014, Verette was not involved and aware of this coaching
status which was given by Ansari.
On August 8, 2014, Shi was issued a coaching by Ansari, with Verette present, in response to
a complaint by Darryl Montana. According to the document, Montana had reported that Shi was rude 5
and unprofessional while he was trying to learn in the NICA. Shi was interviewed and claimed that
Montana had “misconception.” Shi was asked to meet with Montana, Verrette and Ansari, and she
stated that she felt uncomfortable with three men in room. Verrette decided not to pursue any further
clarification. Shi is still employed by Respondent.
10
ALIMUDEEN NAUSRUDEEN
Alimudeen Nausrudeen was a per diem RT. On Aug. 23, 2013, received her a counseling for
non-compliance of Respondents and Hygiene Policy. On Nov. 22, 2013, Nausrudeen received a
coaching for incomplete documentation. On 6/17/14, Respondent issued Nausrudeen a counseling 15
reflecting three incidents of incomplete documentation on 12/27/13, 6/12/14 and on 6/19/14. This
document, which is entitled “Incomplete EMR Documentation,” also listed on the bottom, Prevision
Coaching Counseling’s; and listed Nausrudeen 2/23/13, Counseling and his 11/27/13 Coaching.
According to Verrette, generally when there is a prior discipline or counseling, it will be listed on the
form, when a subsequent discipline or counseling is issued. 20
With respect to the 6/17/14 counseling, Verrette testified that Ansari brought the matter to his
attention, and informed Verrette that he intended to issue Nausrudeen a counseling. Verrette said
fine. They did not discuss giving Nausrudeen any other discipline such as a verbal or written warning
for this conduct. 25
On 7/10/14, Ansari issued a conversation with Nausrudeen. This document reflects that when
Ansari was readjusting assignments due to a sick call, Nausrudeen “inappropriately commented
‘under his breath’ “why did you not call Rich to find out?” Ansari stated to Nausrudeen that the
comment was “inappropriate and that there was no need to call Verrette because Ansari was not 30
aware of the sick call anyway. This was disruptive behavior.”
According to Verrette, Nausrudeen was terminated by Respondent sometime in April or May
of 2015, for excessive absenteeism and sick calls. Verrette called Nausrudeen on the phone and
explained the circumstances, gave him a list of his absences, and told him that Respondent would 35
not need his services any longer. Respondent did not send out a termination notice, since he was a
per diem employee.
SAMUEL AYIDE
40
Samuel Ayide was an RT employed by Respondent, and on 4/24/13 he received a
counseling, Subject: Programming/Forwarding Spectra Link Phones. The document reflects that a
nurse was unable to reach Ayide for two hours in order to assist with a patient. The nurse stated that
when she was calling to try to reach Ayide, the caller ID displayed another therapist, who had worked
the previous day shift. Further, Ansari had called the area; Joseph Mathew answered the phone, 45
JD(NY)-46-15
38
who had covered the area the previous day. Ayide stated that he had programmed his assigned
areas at the beginning of the day shift and did not accept responsibility for not programming his
spectra at the beginning of the shift. The document reflects that Ayide was counseled on the
importance of following Departmental procedure to program his assigned areas at the beginning of
the shift. 5
Verrette was “asked what happened there,” in connection with this incident. Verrette testified
that he had received a call from a nurse manager, who informed him that an RT and another staff
individual were “making out” in the staff lounge. The nurse manager reported that she instructed the
employees that this was a staff lounge and it was inappropriate to engage in that conduct. The 10
response according to the nurse manager was “go away, leave us alone.” Verrette testified that
investigated and found out that the RT involved was Samuel Ayide.
On May 20, 2013, Ayide was discharged. The Nature of Offense was “Conduct Subsequent to
Disciplinary Action and Incomplete Documentation of Medication Nebulizer EMAR.” The document 15
refers to Ayide displaying conduct in non-compliance with the We-Care Values of the Institution. It
refers to a complaint being filed and an investigation conducted, and Ayide was positively indentified
as the individual involved in the complaint. This appears to be a reference to Verrette’s testimony
about Ayide being caught “making out” in the staff lounge with another individual, and their reaction to
the instruction by the nurse manager to cease that behavior. 20
The document also reflects that Ayide failed to sign off on the EMAR for medication nebulizer
treatments as per hospital policy, resulting in red boxes for the current calendar year. It lists 7
instances from March 20 through May 4, where Ayide engaged in this conduct.
25
According to Verrette, Ayide was discharged for his conduct reflected in the discharge notice,
as well as for previous conduct set forth in the counseling.
Carl Molines
30
On May 21, 2012, Carl Molines, an RT was issued a written warning for forgetting to come
into work, and reporting to work only after being called numerous times when he finally responded.
The supervisor told Molines that he had let the team down and this created some problems among
the staff because some staff did not know he was at work, and assignments were not distributed
properly. The document reflects Molines was given a written warning “for this serious offense.”35
On April 19, 2013, Respondent issued Molines counseling for a documentation error. On
August 20, 2013, he received a counseling for “oxygen sensor negligence.” The document reflected
that Molines neglected to change an oxygen sensor, but instead disabled it. The document reflects
further that “this could have resulted in a potential risk for the patient. Also Mr. Molines neglected to 40
report it to the next shift.”
Verrette was asked about this incident. He was not involved in it or, aware of it, as it was
issued by Cespedes. Nonetheless, Verrette asked if disabling the oxygen sensor is severe? He
responded, no, no, Verrette noted that the patient could go into distress, but that there a lot of other 45
JD(NY)-46-15
39
monitoring devices that can determine if the patient is in some form of distress. Molines is still
working for Respondent.
Jenny Alba
5
Jenny Alba an RT received a verbal warning on 12/3/12 for documentation errors. The
document sets forth 10 separate instances of documentation errors from 2/4/12 through 9/27/12, and
reflects that she was coached on these deficiencies as they occurred. It goes on to say “It is
imperative that all departmental documentation and clinical records be accurate. Nonetheless any
kind of documentation errors will not be tolerated.”10
On October 21, 2014 Alba received a verbal counseling for lateness. On November 25, 2014,
Alba received a written warning for lateness reflecting 19 occurrences of lateness between 8/18/14
and 11/20/14. The document reflects that Alba is expected to correct the situation and that
continuation of tardiness will lead to progressive discipline.15
On February 10, 2015, Alba was issued a document entitled final written warning documenting
six incidents of lateness between 1/5/15 and 2/7/15. Both Verrette and Ernst about this action and
why she only received a “final written warning”, rather than a suspension were asked for her conduct.
Verrette answered that he consulted with HR on this action, and that Alba’s problems with lateness 20
was related to the conversion to the eight hour shifts, and that Alba had a child and they lived over
the bridge and she had difficulty coming in on time. According to Verrette he consulted with HR and
since these were no patient care issues, Respondent decided to give her one more chance. Verrette
added that Alba has corrected the problem, and there have been no more lateness issues with Alba
since then. Ernst testified that final written warnings are used for not serious kinds of things and “we 25
feel that they are a good overall employee”. Thus, Respondent wants to give them one more final
warning before terminating an employee. Alba is still employed by Respondent.
G. CONVERSATION BETWEEN VERRETTE AND MELISSA CHAN
30
Melissa Chan is and was Counsel for charging Paris Young in the instant case. She
appeared at trial and represented Young. On June 17, 2015, during a lunch breaks at the trial,
Verrette approached Melissa Chan in the Hearing Room at 120 West 45th St., New York, NY.
Verrette introduced himself, and asked her if she was the daughter of Jacob Chan. Melissa Chan
replied “yes.” Verrette responded “Oh – he’s great. I’m sure that you knew.” Melissa Chan 35
responsed “yes I know.”
According to Melissa Chan, Verrette then added that he’s worked with us for many
years. So you know he’s still employed with us.” Verrette denied that he made either of the above
two comments to Chan. 40
Verrette further testified that he had an excellent relationship with Jacob Chan, who has
worked for Respondent, at least since Verrette began working for Respondent in January of 2014.
According to Verrette, Jacob Chan talks about his daughter to him, and he had heard that Melissa
Chan is related to a friend of Young. Thus Verrette put two and two together, and thought that she 45
JD(NY)-46-15
40
might be Jacob Chan’s daughter. Verrette asserts that he was just trying to be friendly in talking to
Melissa Chan, emphasizing his good relationship with Jacob Chan, and they talk about Chess and
history, and that they have an excellent working relationship.
III. ANALYSIS AND CONCLUSIONS 5
A. CONDUCT OF RICHARD VERRETTE
The Complaint alleges and General Counsel contends that Respondent committed a number
of independent violations of Section 8(a)(1) of the Act, by the conduct of Verrette. 10
Most of them allegedly occurred during his conversation with Webb on July 7, 2014. General
Counsel asserts that Verrette committed three separate violations of section 8(a)(1) of the Act by his
comments to Webb during their meeting. They are unlawful interrogation, creating the impression of
surveillance and implied threats of reprisal because of employees protected concerted activities. 15
The interrogation violation, according to General Counsel occurred when Verrette asked
Webb during their meeting on July 7, 2014, “Why don’t you guys communicate with me.” However, I
cannot agree with General Counsel’s contention that this comment can be reasonably construed as a
coercive interrogation. First, I agree with Respondent that Verrette’s comment was more of a 20
rhetorical question, and not coercive. TOMA METALS 342 NLRB 787, 789 (2004).
More importantly, even if it is construed as an interrogation, it is concluded that it cannot
reasonably be construed as relating to any protected concerted activity of Webb or any other
employee. As I have detailed above in my findings of fact, the discussion between Verrette and 25
Webb was centered around Webb taking an unauthorized sick leave day, when she had twice been
denied by Respondent permission to take a personal day, when she was not sick. Verrette was
clearly upset about Webb’s conduct, he characterized it as saying “FU” to the Department, and in fact
suspended her for engaging in this conduct. Thus, his annoyance at Webb and his criticism of her
did not relate to any alleged protected concerted activity by her, three months earlier, but her recent 30
conduct, which precipitated her suspension.
While Verrette did make reference to having seen Webb and Pierre at HR in April, and
did then add, “when didn’t you communicate with me directly”, I find the record insufficient to
establish, that this remark related to any protected concerted activity. I credit Verrette that he did not 35
know that either Webb or Pierre, were involved with the petition or that they went to HR that day to
present the petition to Ernst. I credit Verrette that he believed that Webb was probably at H.R. in
April of 2014 to protest her recent furlough, which had just expired.
I note interestingly, that in response to Verrette’s question, Webb responded that he should 40
look at the way he is talking to her and added “this is the reason why I don’t communicate with you”
This response by Webb, which makes no reference to or mention of her protected activity of
bringing the petition to Ernest in April, but emphasizes that she didn’t like the way Verrette was
talking to her, as the reason why she didn’t communicate with him, demonstrates that she did not
believe that the questioning related to her protected conduct. The critical comments made by 45
JD(NY)-46-15
41
Verrette that angered Webb related to her conduct in taking unauthorized sick leave, and its effect on
the department and had nothing to do with any protected activity engaged in by Webb.
I therefore conclude it cannot be reasonably concluded that Verrette asking Webb why didn’t
she communicate with him, had any relation to her protected concerted activity in April of 2004, and I 5
shall therefore recommend dismissal of this allegation of the complaint.
General Counsel asserts that Verrette’s comments that he had seen Webb and Pierre coming
out of Human Resources in early April of 2014, created the impression that her protected concerted
activities were under surveillance.10
The Board’s test for determining whether an employer has created an unlawful impression of
surveillance is whether “under all the relevant circumstances reasonable employees would assume
from the statement in question that their protected activities had been placed under surveillance”
Pressroom Cleaners, 361 NLRB No. 57 (2014); Frontier Telephone of Rochester 344 NLRB 1270, 15
1276 (2005).
General Counsel argues that Verrette’s comments to Webb that, she was “manipulative and
sneaky,” and “that you think I didn’t know about your secret trips to Human Resources.? I caught you
and Sophia red-handed at the office” reflect that Verrette believed that Webb was doing something 20
underhanded, and that he was watching her. Thus a reasonable employee would construe Verrette’s
statements to convey that Respondent was surveilling employees protected activities. The
Continental Group, 353 NLRB 348, 350 (2008). I disagree.
First of all, I did not credit Webb’s testimony that he told Webb “you think I didn’t know about your 25
secret trips to Human Resources. I caught you and Sophia red-handed at the office.” While I did
credit Webb that Verrette called her “manipulative” and “sneaky”, I found that those comments had
no relation to any protected activity of Webb or to his seeing her at HR in April, but was in reference
to her conduct of talking sick leave when she was not sick, to extend her vacation, for which she was
suspended.30
Moreover, as I previously found in connection with the interrogation allegation, Verrette was
not aware that Webb or Pierre were at HR in April to present the petition to Ernst or that they were
engaging in any protected concerted activity at that time.
35
Finally, it is not reasonable for Webb to conclude that Respondent was monitoring her
concerted activities. Webb by her own testimony established that Verrette ran into her by accident on
her way out of HR, as he was going into the office, and they exchanged pleasantries on that day.
There is simply no basis to conclude that Webb reasonably believed that Verrette was surveilling her
concerted activities. Her activities were conducted openly on Respondent’s properties, and there can 40
be no reasonable inference that Verrette obtained any information through unlawful surveillance.
Pressroom Cleaners, supra, Frontier Telephone of Rochester, supra.
45
JD(NY)-46-15
42
I shall therefore recommend dismissal of this allegation in the complaint.
The third violation allegedly as committed by Verrette, during his conversation with Webb, was
an implied threat of reprisals to employees because they conveyed concerns to management.
General Counsel argues again relying on Verette’s comments that Webb was “manipulative and 5
sneaky” and that he had caught her and Pierre red handed in the office, that implied that Webb was
doing something wrong, it would be reasonable to assume that Verrette’s directive to communicate
with him directly in the future, lies a threat of an unspecified signal if she did not. I cannot agree.
Initially, as a stated above, I did not credit Webb’s testimony that Verrette told her that he had 10
caught her and Pierre “red handed at H.R. While I did credit Webb that Verrette told her that she was
manipulative and sneaky, I found above that those comments related to her recent conduct relating to
her sick leave problems, and not to any concerted activity back in April.
While Verrette did make the comment to Webb, “why didn’t you communicate with me?”, I 15
find no implied threat based on any protected concerted activity of Webb or any other employee. I
conclude that Verrette’s, inquiry as to why Webb did not communicate with him directly, did not either
explicitly or implicitly threaten adverse consequences for engaging in protected activity but was
simply a reminder to Webb that Respondent had a procedure in place to address employee
concerns. (Going through the chain of command, and speaking to Verrette). See Sam’s Club 342 20
NLRB 620, 621 (2004). Statement to employee by supervisor reminding him that employer had an
open door policy and suggested that he and the supervisor could not address employee concerns
unless they were brought to his attention, found not to explicitly or implicitly threating adverse
consequences for engaging in protected concerted activities.)
25
Accordingly, I shall also recommend dismissal of this complaint allegation.
General Counsel also alleges that during the course of Verrette’s meeting with Young on
August 20, 2014 Verrette called Young insubordinate and belligerent, and said that he had made the
transition impossible. Further General Counsel argues that as Young made an effort to leave 30
Verrette told him that this will lead to progressive discipline against Young and it will not stop here.
Therefore, it is contended that Verette interfered with restrained and coerced Young in the exercise of
Section 7 rights in violation of Section 8(a)(1) of the Act.
Once again I cannot agree with General Counsel’s contentions. While Verrette did state that 35
Young was insubordinate and belligerent, these comments had no relation or connection to any
concerted activity of Young, but to Young’s conduct earlier in the morning with Ansari, and with
Verrette during this meeting. While Verrette did refer to Young making the “transition impossible” I do
not find that this remark related to any concerted protected activity of Young. Rather, as I have
related above, the comment was in connection with the increase in sick calls that was caused by the 40
transition to the 8 hour shifts, and that Young’s conduct with Ansari earlier in the morning made
things more difficult for Respondent, in view of a sick call for that day.
I find that the statement made by Verrette about the possibility of progressive discipline for
Young, had absolutely no connection to any protected concerted activity by Young. I note that 45
JD(NY)-46-15
43
Verrette made no reference to Young’s protected concerted activities of circulating the petition or of
presenting the employees proposal to Respondent at the meeting in April, 3 months earlier. I also
note that there is no evidence that Verrette was aware of either of these actions by Young and I credit
Verrette’s testimony that he was not aware of or informed about Young’s role in this activity. Indeed
this testimony is confirmed by Respondent’s other witnesses, and implicitly by Webb since she told 5
Ernst that the employees did not want management i.e. Verrette to know about the petition, and in
fact as a result of the petition was not shown or distributed to Verrette. Moreover Verrette was not
present at the meeting when Young presented the employees proposal to Respondent.
The evidence demonstrates that Verrette’s comment to Young about progressive discipline, 10
related not to any concerted activity of Young but solely to Young’s insubordinate conduct at the
August 20 meeting of walking out of the office, while Verrette was still talking to him, about his earlier
misconduct and refusing to return even after Verrette asked him to come back. The meaning of
Verrette’s comments was plain, unless he returned to the office and continued the discussion with
Verrette, progressive discipline would result. Bridgestone Firestone of South Carolina, 350 NLRB 15
526, 529 (2007) (statement by supervisor that she would recommend discharge unless charging
party answered his questions, would not have been reasonably understood as a threat to discipline
because of his union activities. Meaning of statement was plain, unless he denied that he used
profane language attributed to him, supervisor would recommend his discharge).
20
Accordingly, I shall recommend dismissal of this allegation of the complaint.
The final allegation relates to Verrette’s comments to Melissa Chan attorney for Young, on
June 12, 2015. Jacob Chan is Melissa Chan’s father, and is employed by Respondent as an RT
under Verrette’s supervision. Verrette had heard that Melissa Chan is related to a friend of Young. 25
He therefore put two and two together and thought that she might be Jacob Chan’s daughter. He
approached Melissa Chan in the hearing room on a break, introduced himself asked whether she was
Melissa Chan and said to “her that her father is great, he is sure she knows”. Melissa Chan replied
“yes thanks.”
30
According to Melissa Chan, Verrette then added that “he has worked there for many years.
So you know he’s still employed with us.” While Verrette denied making the latter two comments, for
the purposes of this discussion, I shall credit Melissa Chan that Verrette added these remarks.
However, I do not agree with the assertions of General Counsel and Charging Party, that 35
Verrette’s comments can be reasonably construed as threatening discharge or other adverse
consequences for Jacob Chan, because Melissa Chan is representing Young.
I credit Verrette that he had an excellent working relationship with Jacob Chan, and his intent
is talking to Melissa Chan was only to be friendly.40
I find it unreasonable to believe that Verrette would be upset about Chan representing Young
that he would threaten to discharge her father, with whom he had had an excellent work relationship
merely because his daughter chose to represent Young.
45
JD(NY)-46-15
44
I therefore, shall also recommend dismissal of this allegation.
B. The Suspension and Discharge of Paris Young
To establish an unlawful discrimination against an employee, the Board utilizes the analysis 5
articulated in Wright Line, 251 NLRB 1083 (1985), approved in NLRB v. Transportation Management,
462 U.S. 393(1983). The General Counsel must establish that the employees protected conduct was
a motivating factor in the employee’s decision to take action against them. Gaylord Hospital, 359
NLRB No. 143, ALJ slip op. at 14 (2013). If the General Counsel is successful, the burden shifts to
the employer to show that it would have taken the same action even in the absence of protected 10
conduct. Wright Line, supra, Septix Waste Inc., 346 NLRB 494, 496 (2006).
Various components are utilized by the Board in determining whether the burden of proving
that the protected conduct was a motivating factor in the decision, has been met. They include
whether the employee was engaged in protected conduct, whether the employer had knowledge of 15
the protected activity, whether the employer bore animus towards the employees protected activity,
whether that animus contributed to the decision to discipline the employee, and the timing of the
discipline in relation to the protected conduct. Praxair Distribution, 357 NLRB No. 91 fn. 2 (2011).
Central Valley Meat, 346 NLRB 1078, 1093 (2006); Director, Office Workers’ Comp Programs
Greenich Collieries, 512 U.S. 267, 268 (1994), clarifying NLRB Transportation Management and 20
Wright Lines, supra.
The Wright Line analysis is applicable to both the suspension on August 20, 2014 and the
discharge of Young on September 3, 2014. With regard to the suspension, Respondent argues that
in fact Young was not suspended on August 20, and merely put on leave pending the results of the 25
investigation into his conduct. Therefore it contends that the August 20, 2014 action was not an
adverse employment action and that the act of taking Young off duty is, therefore subsumed as part
of the ultimate decision to terminate Young’s employment.
I disagree.30
Although Respondent did not characterize Young’s removal from duty, as a suspension, in
effect it was, since he was involuntarily placed off duty and had no work for two and a half days,
(before his scheduled vacation). He was not paid for these two and half days, for which he was not
working.35
I therefore conclude that Young was suspended on August 20 that this was an adverse
employment action, and, it must be evaluated separately from the ultimate discharge on September
3, 2014.
40
The first issue is whether Young engaged in protected concerted activity. There is no dispute
that he did so here. Young was involved in the preparation and circulation of the petition submitted to
Respondent requesting a meeting to discuss alternatives to Respondent’s proposal to change shifts.
More importantly, when the meeting and held, it was Young who presented the employees alternative
JD(NY)-46-15
45
proposal and explained it to Respondent. The above conduct by Young is clearly protected
concerted activity, and Respondent does not dispute this conclusion.
Respondent does vigorously dispute the issue of Respondent’s knowledge of Young’s
protected concerted activity, which lead to General Counsel’s request to submit a reply brief dealing 5
with that contention of Respondent, which as related above, I granted.
In this regard Respondent argues that Verette was the decision matter with regard to the
disciplines, and since he didn’t know about Young’s protected concerted activity, the element of
knowledge has not been established requiring a dismissal and a finding that a prima facie case has 10
not been made. Reynolds Electric 342 NLRB 156, 157 (2004) (lacking such knowledge, the decision
maker cannot discriminate against an Employee for engaging in protected concerted activities).
Tomatek, Inc. 333 NLRB 1350, 1355 (2001). (“It is axiomatic that the employer could not have been
motivated by the employees protected activity if the employer did not know about such activity”).
Respondent argues that Verrette the decision maker did not know about Young’s protected conduct, 15
nor did Ansari, since they so testified, and Godfrey confirmed that she did not provide the petition to
Verrette, nor inform him that Young had presented and explained the employee proposal to
Respondent at the meeting.
However, a supervisor’s or agents knowledge of union or concerted activities is imputed to 20
the employer, unless credited testimony establishes the contrary. Coastal Sunbelt Produce 358
NLRB 135 fn. 3 (2013); Gestamp South; South Carolina 357 NLRB No. 130 slip op. at 10 (2011);
Harriscorp 269 NLRB 739, 234 (1989) (Supervisor who recommended termination aware of
concerted activity); GATX logistics 323 NLRB 333 (1997); (knowledge of supervisor imputed to
Respondent, although he didn’t make the decision to discharge discriminatee).25
Here, Orlando, Godfrey and Ernest, all supervisors and agents of Respondent, were clearly
aware of Young’s protected concerted activities, having been present at the meeting when he
explained and discussed the employer’s alternative proposal. Since Orlando made the decision to
suspend Young, and Ernest jointly decided along with Verette to discharge Young, knowledge by 30
Respondent of Young’s protected concerted activity has been established. Springfield Air Center 311
NLRB 1151 (1143). (Supervisors knowledge of union activity discriminate attributed to Employer,
since supervisor had direct input into the decision to discharge him. Accord, Grand Rapids Die
Casting v. NLRB 831 F2d at 112, 117-118 (6th Cir. 1987).
35
The two other components of General Counsel’s prima facie case are timing and animus,
towards Young’s protected concerted activities.
With respect to timing, the Board has held that where the discrimination occurs shortly after
the discriminatees protected activities occurred and were known to the Employer, this represents 40
significant evidence of an unlawful motivation. Such coincidence is time between Employer’s
knowledge of the employees protected activity and his discharge is strong evidence of unlawful
motive for the discharge. Trader Horn, NJ 316 NLRB 194, 198 (1995).
JD(NY)-46-15
46
However, here Young’s protected activity occurred back in April of 2014, over four months
from the alleged discrimination against him on August 20, 2014 and September 3, 2014.
This gap in time between Young’s protected activities and the alleged discrimination against
him is too remote to support an inference of a connection between the alleged discrimination and his 5
protected conduct. Central Valley Meat, supra, 346 NLRB at 1092. (Alleged discrimination 6 months
after charging party engaged in union activity, and 2 months after he filed lawsuit, representing
concerted activity); Rockland Bamberg Print Works, 231 NLRB 305, 306 (1977) (Discharge too
remote in time from support of union in election 5 months earlier); Thomas Brown Shoes, 257 NLRB
264, 268 (1981). (Insufficient showing of antiunion motivation where protected conduct occurred 10
almost 6 months prior to discipline); Geo Hamilton Inc. 289 NLRB 1335, 1340-1341 (l988)
(Discriminatees participation on union negotiating team, too remote in time to be linked to layoff, 11
months later.) Irving Trucking Inc. 223 NLRB 618 (1984) (termination of union supporters 5 months
after unsuccessful union drive, insufficient evidence probative of unlawful motive; Qualitex, Inc., 237
NLRB 1341, (Discharge over 4 months after election where C.P. was observer, had active role in 15
union campaign).
General Counsel seeks to get around this deficiency in its case, by arguing that the timing
supports a finding of discrimination, inasmuch as Young had a good record throughout his career at
Respondent, and that when Respondent discovered his protected activity of signing the petition, it 20
suspended him on April 9. Thus General Counsel argues that the element of timing is established. I
cannot agree.
The suspension of Young on April 9 has not been alleged as discriminatory, and I cannot and
do not find that it was discriminatorily motivated.25
Further, the primary evidence of Young’s protected conduct, occurred on April 16, when he
presented the employees proposals, a week after this suspension.
Therefore, I reiterate my conclusion that the only alleged discrimination to be considered are 30
Young’s suspension and his discharge on August 20 and September 3, respectively and these events
were too remote in time to support on inference of discrimination based on his April protected activity.
Turning to the final, and indeed the most important element of General Counsel’s case which I
find to be missing, which is the existence of animus by Respondent towards Young’s protected 35
concerted activities.
I have dismissed the allegations in the complaint that General Counsel relies upon to establish
animus, such as the alleged interrogation, creating the impression of surveillance and threats by
Verrette. I also find that none of the statements made by Verrette during these conversations support 40
animus towards Young’s protected concerted activities. As noted Verrette’s comments to Young on
August 20 concerning the possibility for employee discipline related solely to Younger’s conduct at
the meeting’s walking out of the office, when Verrette was speaking to him, and cannot in any way be
attributed to Young’s protected conduct four months earlier.
45
JD(NY)-46-15
47
Similarly while General Counsel argued that Verrette’s comments about Young making the
transition impossible, related to his protected activity, I cannot agree. I have found that Verrette’s
remarks about Young making the transition impossible or difficult related to Young’s conduct earlier in
the day with Ansari. There had been a sick call that day and Young’s conduct earlier in the day in
dealing with Ansari had enraged Ansari, resulting in an e-mail from Ansari to Verrette complaining 5
about Young’s conduct. Verrette explained to Young at the meeting that he had made things difficult
that morning in his dealing with Ansari, and in view of the sick calls, it was important to act properly
with his supervisor in discussing Young’s concerns about his workload.
None of these comments had any relation to Young’s conduct four months earlier, and cannot 10
be construed as animus towards such activity.
In fact the evidence overwhelmingly demonstrates that Respondent did not have any animus
towards the protected concerted activity of Young, or indeed to the protected concerted activities of
any of other employees participating in the petition including Webb and Pierre. The credited 15
evidence revealed that Respondent welcomed the proposal. It agreed to meet with the employees,
listed to their proposal, (explained by Young) and carefully considered it. Indeed the evidence
indicates that respondent was favorably disposed to agree to one of the employees’ proposal for, a
13th shift, but the overtime issue prevented them from agreeing to it. Respondent obtain a second
opinion from counsel, hoping that the overtime issue could be circumvented and it could go along 20
with the employee’s proposal to save money.
Respondent also postponed implementation of their own and plan, after rejecting the
employee’s proposal, when it was determined that overtime issue would preclude sufficient savings, if
it implemented the 13th shift.25
I agree with Respondent that no animus was established towards Young’s protected activities
four months earlier, and the absence of such evidence is fatal to General Counsel assertion that
animus toward Young’s protected activity was a motivating factor in Respondents decisions to
suspend and discharge him. Praxair Distribution, Inc., 357 NLRB No. 91 fn.2 Slip at l, ALJD Slip op 30
at 11-12 (2011)(Management took complaints by employees seriously, no animus established toward
such activity and discharge motivated by subsequent events); American Federation of Teachers of
New Mexico 360 NLRB No. 59, NLRB slip at 11-12 (2014) (Requisite animus necessary to establish
that charging party selected for layoff because of his protected activity, is missing); Children’s
Services International, 347 NLRB 67,69 2006) (No union animus supporting conclusion that 35
Employees layoff selection motivated by union animus.)
I agree with Respondent that the evidence demonstrates that Young’s protected conduct,
played absolutely no role in his suspension and discharge, and they were based solely on the events
of August 20, 2014, and Young’s conduct on that day towards Ansari and Varrette, plus 40
Respondent’s discovery during the investigation of Young’s conduct that he had not performed the
required medications for these and vent checks for eight patients which Respondent viewed as
abandonment of patients.
JD(NY)-46-15
48
None of Young’s conduct on August 20, 2014 even arguably can be construed as protected
concerted activity, and I find that he was suspended and ultimately discharged solely based on his
conduct on that date, and was not in any way motivated by protected concerted activity four months
earlier.
5
In this regard General Counsel argues that Respondent’s alleged grounds for disciplining
Young were baseless and pretextual, so even absent direct evidence of animus, unlawful motivation
can be found, that the true motivation was animus against protected activity. Cincinnati Truck Center,
315 NLRB 354, 355 (1994). Indeed the Board has even in the absence of direct evidence of animus,
in appropriate cases, inferred animus from circumstantial evidence, including evidence that the 10
employer’s stated reason for its action was a pretext that is either false or not relied on. Diamond
Electric MFG Co. 346 NLRB 857, 856 (2006); Whitesville Mill Service Co. 307 NLRB 437 (1992);
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966).
In support of its assertion that the reasons asserted by respondent for disciplining Young were 15
pretextual and baseless, Respondent relies principally on its evidence of “disparate treatment” of a
number of employees, as described more fully in the facts above.
While my examination of the disciplines introduced into the record by General Counsel, does
demonstrate some inconsistency and raises some issues, as to why Respondent decides to issue a 20
coaching or a counseling concerning some misconduct as opposed to a verbal or written warning or
even a suspension, I do not find that the evidence is sufficient to establish sufficient disparate
treatment, to warrant a conclusion of pretext. I note that in none of the examples relied on by
General Counsel, did the employees who were not terminated, have a similar disciplinary record to
Young, that followed Respondent’s progressive disciplinary system. That is Young received a verbal 25
warning, written warning and a suspension all before his final disciplines, of a temporary suspension
on August 20 and ultimate discharge on September 3. It is significant to note that the three prior
disciplines to Young all occurred prior to his exercising any protected concerted activity in early April
of 2014. I also note Young’s own testimony that in his opinion Ansari and Verrette have applied
Respondent’s disciplines against him unfairly, because of issues with Ansari stemming from a dispute 30
between them at another job. This of course negates any inference that Respondents actions were
motivated by his protected activity, which did not commence until April.
I also note that Samual Ayide’s employment was terminated by Respondent for improperly
documenting medical records, even though he had no disciplinary history other than a prior 35
counseling.
I further note that Webb also received a written warning, a verbal warning, followed by two
verbal counseling’s, and another verbal warning, before receiving a 2 day suspension for excessive
absenteeism and abandonment of her shift. Thus she was not terminated but merely suspended for 40
engaging in similar conduct to that of Young’s abandonment of her shift.
therefore conclude that the evidence of disparate treatment cited by General Counsel is
insufficient to establish pretext or that Respondent did not rely on the conduct allegedly committed by
Young to suspend and discharge him on August 20 and September 3 respectively. Diamond MFG,45
JD(NY)-46-15
49
supra 346 NLRB at 259 (ALJ erred in finding disparate treatment, because, unlike his proposed
comparators, discharged employee had a history of discipline). Hoffman Fuel Co. of Bridgeport 309
NLRB 327, 329 (l992). (No disparate treatment existed, because other employees did not have
disciplinary history like the discharged employee.)
5
Here, I find that the evidence supports the conclusion that Respondent suspended Young on
August 20, because of his belligerent misconduct and insubordination with Ansari and Verrette on
August 20, as detailed in the e-mails to Orlando and that Orlando decided to take Young off duty on
that day pending further investigation into his conduct. I note that Young had instead of returning to
work after walking out of Verrette’s office went to security, accused Verrette of threatening him and, 10
would not return to work. In those circumstances, particularly since both Orlando and Ernst were not
at work on August 20, it was reasonable for Orlando to decide to take Young off duty, pending the
results of the investigation. There is simply no basis to conclude that this decision was pretextual or
that it was in any way based upon or related to Young’s protected activities, which occurred four
months before.15
Once the investigation was completed, it was determined by Respondent that Young had not
given medication as prescribed to three patients, and that he failed to do vent checks for 8 of his 9
patients. Respondent characterized this conduct by Young as abandonment of his patients and
discharged him for engaging in that conduct as well as his insubordination earlier in the day on 20
August. 20 with Verrette, and Ansari plus his past disciplinary history of verbal warning, written
warning and suspension.
General Counsel argues that Respondent cannot logically assert that Young abandoned his
patients, since Respondent knew where he was at 10:15 AM, and did not order him to go back to 25
work. However the abandonment of his patients took place prior to 10:15, when he was working and
he failed to perform his assigned functions.
General Counsel argues that Young did in fact perform all 9 vent checks since he testified that
he did, but merely did not have time to enter them into the records. I have my doubts about Young’s 30
testimony in this regard, particularly in view of the fact that he failed to assert to Orlando or to anyone
at Respondent, that he had completed those vent checks.
Nonetheless, even if I were to credit Young that he completed all the vent checks, that would
not be dispositive, since Respondent clearly had a reasonable belief that Young had not performed 35
those vent checks based on the records and the reports that it secured from the employees who took
over the care of Young’s patients. Diamond Electric Mfg. Co. 346 NLRB, 857, 859. (Respondent
acted on reasonable belief that charging party’s conduct warranted discharge, DTR Industries 850
NLRB 1132, 1135 (2007) (Reasonable belief that employee committed offense).
40
I conclude that Respondent had a reasonable belief that Young had abandoned his patients
on April 20, 2014, and that it acted on that reasonable belief, in deciding to discharge him on
September 3, 2014, for this reason, plus his other misconduct on August 20, as well as his prior
disciplinary record.
45
JD(NY)-46-15
50
Accordingly, I shall recommend dismissal of these allegations in the complaint.
On these findings of fact and conclusions of law, I use the following recommended, 25
ORDER
The complaint is dismissed in its entirety.
10
Dated, Washington, D.C. December 31, 2015
Steven Fish15
Administrative Law Judge

2 If no exceptions are filed as provided by Sec. 102.46 of the Boards Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board
and all objections to them shall be deemed waived for all purposes.