Sixth Circuit Avoids Noel-Canning Challenge and Finds RN Charge Nurses are Supervisors When They Issue Progressive Written Warnings.

Yesterday, a divided Sixth Circuit Court of Appeals reversed a finding of the NLRB Regional Director and concluded that registered nurses employed as charge nurses by a nursing home employer were statutory supervisors and not entitled to bargain with the employer under the NLRA.   GGNSC Springfield LLC v. NLRB, No. 12-1529 (6^th Cir. 6-2-13).  The Court side-stepped considering a belated Noel-Canning challenge to the Board’s jurisdiction because it was not raised until after briefing had been completed on the substantive issues, because it was not a jurisdictional challenge which the Court was compelled to consider even when it was not raised below, and because it decided to resolve the case on non-constitutional grounds in favor of the employer.  Instead, it found that the RNs exercised independent judgment in issuing disciplinary written warnings under the employer’s progressive disciplinary policy.  This evidence was sufficient to show that they were statutory supervisors.

Two charge nurses were responsible for overseeing 2-6 certified nursing assistants on each shift and reported disciplinary matters to the Director of Nursing.  The 12 RNs were organized by the IAM and petitioned for collective bargaining.  The Regional Director found they were not supervisors and the Board ordered the employer to bargain.  When the employer refused to bargain, the Court was petitioned for review and cross-petitioned for enforcement.

Under the NLRA, only employees have the right to bargaining collectively.  This does not include supervisors, which are defined as: any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

Under NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 712–13 (2001), “individuals are supervisors if (1) they hold the authority to engage in any one of the twelve listed supervisory functions, (2) their “exercise of such authority is not of a

merely routine or clerical nature, but requires the use of independent judgment,” and (3) their authority is held “in the interest of the employer.”

 The employer argued that its RNs are supervisors because they have authority to discipline, assign, and responsibly direct CNAs, all by using independent judgment.

The Regional Director found that the RNs did not have authority to discipline, other than sending CNAs home for the rest of their shift for egregious violations and flagrant misconduct.  This, by itself, does not constitute independent judgment or establish supervisory authority.  Moreover, when confronted with a disciplinary infraction, RNs could ignore it, provide verbal counseling or draw up a written memorandum.  However, a verbal counseling is educational, and not disciplinary in nature.  Therefore, issuing verbal warnings does not show that RNs are exercising disciplinary authority.

 Nonetheless, the evidence established that the RNs exercised more authority than this because, as mentioned, they had the authority to issue the CNAs written memoranda --- which automatically lead to written warnings by the Director of Nursing under the progressive disciplinary policy.  The receipt of four written warnings in 12 months leads to termination. The RNs sometimes sign on the line for “supervisor.”

 

Receipt of an employee memorandum leads automatically to a written warning, which is a “step” in the Center’s system of progressive discipline. Therefore, the authority that RNs have to issue memoranda to CNAs is the authority to discipline. And because RNs exercise independent judgment in choosing whether to issue a memoranda or provide verbal counseling, they are supervisors under the Act. The Board’s failure to acknowledge that receipt of a written warning is itself discipline renders its contrary determination unsupported by substantial evidence.

That the RNs do not complete the entire form,  have no access to the employee’s disciplinary file to determine at what step the employee is in the disciplinary process or the number or type of prior disciplinary infractions and do not have the authority to suspend or terminate the employee does not affect their supervisory status.  The statute discusses the ability to suspend, discharge or discipline an employee.  An individual can be a supervisor if that person has the authority to discipline, but not the authority to suspend or discharge.

Equating the term discipline with the terms suspend or discharge would render it superfluous, a reading we must try to avoid.

The warnings also constitute disciplinary action because they are not second-guessed or investigation after issuance, unless it is the fourth and final warning in the disciplinary process.

Finally, the RNs showed independent judgment in issuing disciplinary action because, as already discussed, they had discretion to do nothing, give a verbal/educational warning or issue a written warning.  They are not required and usually do not consult with their supervisor before issuing a written warning. That they sometimes receive feedback is indicative that they usually do not receive any suggestions from their superiors.

 NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County Court of Appeals Affirms Dismissal of Sexual Harassment Claim Against Supervisor

Last week, the Franklin County Court of Appeals affirmed the dismissal of a sexual harassment and discrimination claim involving harassment by the supervisor of the area next to the plaintiff's work area. McGraw v. Pilot Travel Ctrs., L.L.C., 2012-Ohio-1076. The Court concluded that the employer was not liable for any sexual harassment that may have occurred on Boxing Day 2009 because the supervisor did not directly manage the plaintiff and the employer took reasonable steps to prevent further harassment. The fact that the plaintiff resigned a month later (which she attributed at the time to insufficient work hours) precluded her from showing that the employer's steps were not reasonable. The Court further found that the supervisor's regular references to her as "sweetie" and "baby" were insufficiently severe or frequent to create a hostile work environment. Finally, the Court dismissed the discrimination claims on the grounds that she did not identify any males who were treated better or were hired to replace her.

According to the Court's unanimous opinion, the plaintiff worked the night shift in the restaurant section of the employer's store. One of the supervisors for the store (who did not have significant authority over the plaintiff except when she occasionally filled in as a cashier in the store) worked the second shift and generally only overlapped with plaintiff's shift for about two hours/day. Soon after he began working at the store, the plaintiff complained to the general manager of the store and restaurant that the supervisor often smelled of alcohol and referred to her as "baby." She did not feel that the manager took any action on her complaint and she complained several more times about the supervisor referring to her as "sweetie," "baby," and "hun."

On December 26, 2009, the supervisor filled in on the night shift for another employee. During the course of the night, he rubbed up against the plaintiff, suggested that they engage in sexual acts in the back hallway, and kept asking her to hug him or hold his hand. The plaintiff reported the incident to her supervisor a few days later and to the manager a few days after that. She said that she never wanted to work with him again. She never did.

The plaintiff never knew what disciplinary action, if any, was taken against the supervisor. She began looking for another job after a week and resigned about two weeks after the incident. Her resignation letter attributed her departure to the few number of hours she had been scheduled and poor management. She did not mention the Boxing Day incident with the supervisor.

The Court declined to hold the employer vicariously liable for the supervisor's Boxing Day actions because he was not her direct supervisor or manager.

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee. . . . The 6th Circuit has held a supervisor is "an individual who 'serves in a supervisory position and exercises significant control over the plaintiff's hiring, firing or conditions of employment.' "

The Court found that the supervisor did not have any authority to hire or fire her and only was responsible for her for a few minutes on occasion when she would cover the cash register at the store if the restaurant was slow. This was insufficient to make him her supervisor and did not constitute significant control over the terms and conditions of her employment. "While [he] was on a higher level of authority than [her], he did not have any direct control over [her] and only indirect control in limited instances."

As to the seemingly inconsistent statements between [her] deposition and [her] affidavit, we find the deposition testimony to be more on point and directly answers the question as to whether [he] was actually [her] supervisor. Further the conclusory statements made in the affidavit do not establish [him] as her supervisor without corresponding evidence as to how [he] controlled her conditions of employment. We find that, while [he] was a manager, he was not [her] designated supervisor. While he could direct actions when [she] was helping out on the travel center side he could not significantly change her conditions of employment, . . .

Having concluded that the supervisor was really a co-worker for purposes of evaluating the employer's liability, the Court then found that the employer's actions were reasonable under the circumstances to prevent further harassment. Prior to the Boxing Day incident, the supervisor's references to her as "baby" or "sweetie" for at most two hours of her shift were insufficiently severe or pervasive to constitute a hostile work environment. Moreover, even if the Boxing Day behavior were unacceptable, it was never repeated because management took steps to ensure that they were never scheduled to work at the same time again and spoke to the supervisor about his unacceptable behavior.

A company may be held liable for co-worker harassment if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known. A response is generally adequate if it is reasonably calculated to end the harassment. And whether a response is effective is measured not by the extent to which the employer disciplines or punishes the alleged harasser, but rather if the steps taken by the defendant halt the harassment. Evaluation of the response is a fact-specific inquiry and must be done on a case-by-case basis.

While it cannot be certain that the employer would have continued this work schedule, the plaintiff's subsequent resignation rendered that issue irrelevant.

The Court rejected the plaintiff's claim that she was constructively discharged on account of her sex since she could not identify any males who were treated better or hired to replace her.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Settles Race Discrimination Case for $250K When HR Fires Employee Based on Racial Bias of Employee’s Supervisor.

The EEOC announced this week that it had settled “a race discrimination lawsuit against BCI Coca-Cola Bottling Company of Los Angeles (BCI) for $250,000 on behalf of an African American former worker in Albuquerque, N.M. The resolution follows a favorable ruling by the U.S. Court of Appeals for the 10th Circuit, which established an important legal doctrine known as “subordinate bias” theory. . . . The EEOC had charged BCI with committing race discrimination against Stephen B. Peters, a black merchandiser, when a supervisor fired him in 2001 for not working his scheduled day off, even though Peters had called in sick and provided medical documentation. Additionally, the EEOC found that the supervisor made racist remarks about blacks generally.”

In initially dismissing the EEOC’s lawsuit on summary judgment, “the district court had said that the BCI official who actually terminated Peters was unaware of his race. However, the 10th Circuit [reversed and] found that a jury might reasonably conclude that Peters’ termination was based on his race because there was evidence that one of his supervisors, Cesar Grado, treated African Americans more harshly than other employees. The EEOC asserted that Grado made racial remarks about African Americans. In a published opinion, 450 F.3rd 476 (10th Cir. 2006), the appeals court observed, “In making the decision to terminate...the human resources official relied exclusively on information provided by Mr. Peters’ immediate supervisor, who not only knew Mr. Peters’ race but allegedly had a history of treating black employees unfavorably and making disparaging racial remarks in the workplace.” . . . Under this legal doctrine, called the “subordinate bias” theory, an employer may be liable for discrimination when it relies on comments from a biased subordinate supervisor when taking adverse employment action against an employee.”

Interestingly, “[a]fter the 10th Circuit ruling, BCI asked the U.S. Supreme Court to hear the case via a petition for a writ of certiorari. The high court accepted the case, and it was fully briefed and set for oral arguments. However, less than a week before the oral argument, BCI withdrew its appeal with no explanation and, subsequently, settled the case with the EEOC.”
“In addition to $250,000 for Peters, the EEOC’s two-year consent decree contains significant injunctive relief which applies to BCI and its managing agents at the Albuquerque facility. The injunctive measures require BCI to:

• Carry out policies and practices that promote a work environment free from race discrimination -- including a review of its existing policies on race discrimination and making any necessary changes so that those policies comply with Title VII of the Civil Rights Act;


• Distribute its policies to current employees and to new employees hired during the duration of the decree;


• Provide its employees with written policy statements regarding reporting and preventing racial bias;


• Post a Notice with a statement that Title VII prohibits race discrimination, and provide employees EEOC’s contact information; and


• Hold training sessions with managers, supervisors and employees of the Albuquerque facility on Title VII and race discrimination.

“The consent decree also prohibits BCI from retaliating against Peters or any witness in this case, and converting the official status of Peters’ firing to a voluntary resignation.”
Insomniacs may read the EEOC’s full press release at http://www.eeoc.gov/press/4-15-08.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.