Inova Health System v. National Labor Relations Board , 795 F.3d 68 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 16, 2015 Decided July 24, 2015
No. 14-1144
INOVA HEALTH SYSTEM,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 14-1176
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
Maurice Baskin argued the cause and filed the briefs for
petitioner.
Barbara A. Sheehy, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Richard F. Griffin, Jr., General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben,
Deputy Associate General Counsel, and Jill A. Griffin,
Supervisory Attorney.
2
Before: ROGERS and MILLETT, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: Inova Health System (“Inova”)
operates several hospitals in Northern Virginia. In June 2014,
the National Labor Relations Board ruled that Inova had
unlawfully discharged, disciplined, or failed to promote
certain nurses because they had engaged in concerted
activities protected by the National Labor Relations Act, 29
U.S.C. § 158(a)(1). Inova views the events at issue
differently and asks this court to overturn the Board’s
decision. That we cannot do. Our review of such Board
decisions is narrow and “highly deferential.” Parsippany
Hotel Mgmt. Co. v. NLRB, 99 F.3d 413, 419 (D.C. Cir. 1996).
Because each of the Board’s determinations is reasoned and
supported by substantial evidence, we must deny the petition
for review and grant the Board’s petition for enforcement,
regardless of whether we might “‘have reached a different
result had we considered the question de novo.’” Id. (quoting
Synergy Gas Corp. v. NLRB, 19 F.3d 649, 651 (D.C. Cir.
1994)).
I
Statutory Background
The National Labor Relations Act, 29 U.S.C. §§ 151 et
seq., protects the right of employees to engage in “self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining[.]” Id. § 157. But the Act’s
protections are not limited to such union-related activities.
The Act also grants employees the right “to engage in other
3
concerted activities for the purpose of * * * mutual aid or
protection.” Id. “Other concerted activities” are actions
“undertaken” by an employee “with or on the authority of
other employees, and not solely on behalf of the employee
himself.” Citizens Inv. Services Corp. v. NLRB, 430 F.3d
1195, 1198 (D.C. Cir. 2005). And those concerted activities
will be for “mutual aid or protection” if they “relate to
legitimate employee concerns about employment-related
matters.” Tradesman Int’l, Inc. v. NLRB, 275 F.3d 1137,
1141 (D.C. Cir. 2002) (internal quotation marks omitted);
Venetian Casino Resort v. NLRB, 484 F.3d 601, 606 (D.C.
Cir. 2007) (“‘[M]utual aid or protection’ * * * include[s]
employee efforts to ‘improve terms and conditions of
employment or otherwise improve their lot as employees[.]’”)
(quoting Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)).
Put plainly, the Act “protect[s] the right of workers to act
together to better their working conditions.” NLRB v.
Washington Aluminum Co., 370 U.S. 9, 14 (1962).
To that end, the Act prohibits all employers from
“interfer[ing] with, restrain[ing], or coerc[ing] employees in
the exercise of th[ose] rights.” 29 U.S.C. § 158(a)(1). If an
employer runs afoul of that prohibition, the aggrieved
employee can file an unfair labor practice charge with the
local Regional Director of the National Labor Relations
Board. 29 C.F.R. § 101.2. If the Regional Director
determines that the charge has merit, then that Director can
file a formal complaint against the employer. 29 U.S.C.
§ 160(b); 29 C.F.R. § 101.8. An administrative law judge
(“ALJ”) will hear the case and issue a decision that makes
factual findings, credibility determinations, legal conclusions,
and a remedial recommendation. See 29 C.F.R. §§ 101.10(a),
101.11(a).
4
Either party may seek review of the ALJ’s decision by
the Board, 29 C.F.R. § 101.11(b), which generally sits in
three-member panels, 29 U.S.C. § 153(b); New Process Steel
v. NLRB, 560 U.S. 674, 688 (2010) (Board’s power can be
vested in no fewer than three members). The Board will
review the entire record and issue a decision in which it
adopts, modifies, or rejects the factual findings and legal
recommendations of the ALJ. 29 C.F.R. § 101.12(a). In
doing so, the Board’s longstanding policy is not to overrule an
ALJ’s credibility judgments unless “the clear preponderance
of all the relevant evidence convinces” the panel that the
determination is incorrect. E.N. Bisso & Son, Inc. v. NLRB,
84 F.3d 1443, 1444 (D.C. Cir. 1996); Standard Dry Wall
Products, 91 N.L.R.B. 544 (1950). Any party aggrieved by
the Board’s final decision can seek review either in this court
or in the United States Court of Appeals for the circuit where
the unfair labor practice occurred or where the petitioning
party resides or transacts business. 29 U.S.C. § 160(f); 29
C.F.R. § 101.14.
Factual Background
This case arises from Inova’s discipline or discharge of
three nurses in the ambulatory surgery center of Inova’s
Fairfax, Virginia campus.
Donna Miller
Donna Miller worked for Inova for nearly a quarter
century prior to her discharge, including seven years in the
ambulatory surgery center. There she rose to the level of
Registered Nurse III. Colleagues described Miller as a
“fabulous nurse,” an “excellent clinician,” “very efficient,”
and completely trustworthy.
5
In early 2009, Inova received three anonymous phone
calls complaining about Miller. Although Miller did not have
the authority to change anyone’s schedule, the first caller
accused Miller of vindictively changing the schedules of
employees she did not like. The second caller said that Miller
had used profanity in the operating room “for years,”
occasionally talked about sexual situations, and made others
uncomfortable. The third caller accused Miller of
intimidating coworkers, frequently using profanity, and taking
extended lunch breaks. Following the third call in early
February, Inova’s human resources manager, Leanne
Gorman, began investigating Miller, unbeknownst to Miller.
Around that same time, Miller and four other nurses
discussed problems they were having with the hospital’s
nursing fellows program.1 Specifically, the nurses were
concerned that they were not being informed of the objectives
for their nursing fellows to meet, were not asked for feedback
on the fellows, and were in need of a one-week break between
fellow rotations. The nurses agreed that Miller would send an
email on their collective behalf to Paige Migliozzi, the head
of the program, to convey those shared concerns.
On February 13th, Miller sent an email to Migliozzi and
copied Paula Graling, the head of the ambulatory surgical
center, spelling out the nurses’ concerns with the fellows
program. The email enraged Migliozzi. She sought out the
nurses, demanded to know if Miller was the leader of their
group, sent a copy of the email to human resources, and
explained to human resources that she was “furious” that
Miller “decided to appoint herself as spokesperson for this
group.” Deferred Appendix (“App.”) 408. Graling also
1
The nursing fellows program allows newly hired nurses, most of
whom are recent graduates without operating room experience, to
work with more senior nurses and obtain hands-on experience.
6
called human resources about the email, and sent a reply
which chastised Miller and the nurses for sending a “group
signed email which puts everyone on the defensive” rather
than approaching her directly. Id. at 864.
Leanne Gorman and the human resources staff
investigating Miller interviewed Migliozzi and eighteen
additional employees, eight of whom were selected because
they were known to have negative opinions about Miller. The
eighteen interviewees were asked if they had seen any
violation of Inova’s policies or standards of behavior, if they
had been made uncomfortable by other employees, or if they
had witnessed inappropriate behavior in the workplace.
Human resources, however, did not ask Migliozzi those
standard questions, but instead specifically solicited
information about her problems with Miller. Unsurprisingly,
Migliozzi’s comments were, by far, the most negative,
complaining that Miller frequently talked about her intimate
affairs, cursed, and did not properly count surgical
instruments.
After speaking with Migliozzi about Miller’s email,
Gorman spoke with the Chief of Surgery, Dr. Russell Seneca,
about her investigation of Miller. Gorman recorded in her
notes that Dr. Seneca “fully support[ed]” Miller’s termination.
App. 425. Dr. Seneca instructed Gorman not to involve any
doctors in her investigation because “they would not be happy
about the decision” to terminate Miller. Id. Human resources
closely involved Dr. Seneca in this personnel matter, and
updated him constantly in the days leading to Miller’s
termination.
The next day, just two work days after Miller’s February
13th email about problems with the nursing fellows program,
Graling and Gorman informed Miller of the investigation and
7
placed her on administrative leave. Miller denied all but one
allegation. She admitted that a doctor asked her what she did
on New Year’s Eve, and that she responded by saying she
spent the evening naked in a hot tub with her husband. Miller
denied that she used profanity or sexual innuendo any more
than the doctors or other nurses, and explained that she did
not try to be intimidating, but she was “definite about what
[she] think[s],” which might have been perceived as
intimidating by others. App. 425.
Miller also provided Gorman with a list of fourteen
people she believed would attest to her professionalism, but
Gorman refused to interview additional people on the ground
that it “was not part of the investigation that [human
resources] had chosen to go about.” App. 127. Gorman then
instructed Miller not to discuss her suspension with anyone
other than her husband. Miller asked “are you telling me that
I cannot discuss this with anyone else,” and Gorman “said
yes.” App. 292.
Doctors Alexander Soutter and Allyson Askew, two
surgeons who worked very closely with Miller, approached
Gorman to provide statements on Miller’s behalf, but Gorman
refused the offers. Dr. Soutter then attempted to contact
Gorman’s supervisor, who did not return his calls. Dr. Askew
asked the Senior Director of Nursing, Eileen Dobbing, if she
could give a statement in support of Miller, but Dobbing
refused to speak with her. Dr. Askew then attempted to speak
with human resources and later with Graling, the head of the
ambulatory surgery center, but she was rebuffed at every turn.
Finally, Doctors Soutter and Askew went to the Vice
Chair of Surgery to discuss Miller’s suspension. The doctors
“were extremely supportive” of Miller, explaining that they
considered her “an invaluable member of their team,” and in
8
their daily work with her, they “had not seen any behavior in
her which was objectionable.” App. 583. The doctors
disputed the complaints that Miller was intimidating, stating
that she simply behaved “in a way a senior, mature nurse”
would be to others learning. Id. at 582. The doctors added
that Miller did not use profanity or sexual innuendo any more
than other employees, and that some profanity and sexual
innuendo was part of the ambulatory surgery center culture, a
“‘tone’ [the doctors] set in the operating room.” Id. at 583.
The doctors concluded that they could not fathom why Miller
was being punished, and offered to change their approach if it
would rectify matters.2
Gorman and her supervisor, Julie Reitman, then
discussed Miller with Inova’s in-house counsel. Reitman
subsequently drafted a memorandum recommending that
Miller either be terminated or given a final written warning.
Graling, Reitman, Gorman, and Dobbing presented that
memorandum to the Chief Nursing Executive, Patricia
Conway-Morana, during a meeting set up to discuss Miller’s
“intimidating behavior.” App. 66–67. After the meeting,
Conway-Morana sent an email to the Chief Executive Officer
of Inova Fairfax, Dr. Reuven Pasternak. The email advised
2
Extensive evidence from the hearing corroborated the doctors’
views. See, e.g., App. 188 (cursing in lounges, operating rooms,
and hallways), 209–210 (obscene calendars hanging in operating
rooms), 223 (a young nurse showing a topless photo of herself on
vacation), 228 (employees discussing their intimate affairs), 255
(mooning in the locker room). As one nurse described: “The OR is
a different place * * * a different culture,” “[w]e do or say things
that other people might not consider appropriate, and maybe my
mother taught me not to do those things. But the area in which we
work, it’s not offensive[.] * * * It’s just historically the way it’s
been since I’ve been there, since 1977. It’s like being in a different
country.” Id. at 330.
9
Dr. Pasternak that Conway-Morana had an “employee issue”
with a “20+ year nurse” who “had been warned in the past
about her intimidating and inappropriate behavior,” and who
continued to be the object of complaints about “profanity,
[being] vindictive about the schedule, [and] sexual
innuendos.” Id. at 430. Conway-Morana recommended
termination. Id. The record does not explain why Conway-
Morana contacted Dr. Pasternak, who had rarely, if ever, been
involved in a personnel decision for any of Inova Fairfax’s
thousands of employees, other than the department chairs who
report directly to him.
Dr. Pasternak responded the next morning, saying that he
and Conway-Morana “need[ed] to talk about this case.” App.
429. Following that conversation, Conway-Morana sent an
email to the involved Inova personnel saying: “I think we
need to move forward with termination.” Id. Three work
days later, Graling and Gorman told Miller that she was fired.
Judy Giordano
Miller returned to Inova on March 18, 2009 to appeal her
termination. That day, seven nurses went to human resources
to express their support for Miller. When Miller and a human
resources representative, Michelle Melito, walked through the
hall, the nurses approached Melito, telling her that the
hospital was “making a big mistake” because the nurses
“love[d]” Miller. App. 628. Melito’s notes indicate that “one
staff member” “firmly pushed” her left shoulder to get her
attention. Id.When Melito complained, Inova investigated the
incident. Six of the nurses present reported that they did not
see anyone touch Melito. Inova nonetheless placed Giordano
on administrative leave, explaining that, “[f]rom reviewing
the surveillance video, it is apparent that you did touch the left
10
should[er] of” Melito, but that “[t]his touch was not done in
an aggressive manner[.]” App. 633. Inova subsequently
issued Giordano a final written warning that cited her for
“inappropriate physical and verbal behavior.” Id. at 631.
That final warning removed all references to the incident as a
“touch” that was “not done in an aggressive manner.” Id.Cathy Gamble
In February 2009, Inova created new positions in the
ambulatory surgery center for “clinical nurse leaders,” and
encouraged senior nurse specialists to apply. At that time,
Inova had not decided how many clinical nurses it would hire.
Five nurses, including Cathy Gamble, applied for the
positions.
Gamble qualified for the promotion. She was a senior
nurse specialist, had been a nurse for 29 years, and was the
clinical expert for vascular and general surgery at the
ambulatory surgery center. Her annual evaluations showed
that she was an excellent nurse with superior clinical skills.
In June 2009, while her application was pending, Gamble
and a colleague approached another nurse, Guna Perry, after
she had volunteered to stay for an after-hours surgery.
Gamble warned Perry that she was setting a bad precedent
because management would come to expect ambulatory
surgery center nurses to stay late to assist in surgeries that
should have been scheduled for the main operating room.
Two months later, Inova promoted all of the applicants
except Gamble to clinical nurse leader. When Gamble asked
the management coordinator, Mary Lou Sanata, why she had
not been promoted, Sanata cited her June discussion with
Perry about not volunteering for after-hours surgeries.
11
Procedural History
In July 2009, the Fairfax Hospital’s Nurses Association
for Patient Safety filed unfair labor practice charges against
Inova on behalf of Miller and Giordano. Cathy Gamble filed
a separate charge concerning Inova’s failure to promote her.
The Regional Director subsequently filed a consolidated
complaint covering all of the charges involving the three
nurses. That complaint alleged that Inova committed unfair
labor practices by (i) suspending and later terminating Donna
Miller because she engaged in concerted activities by sending
an email to management on behalf of herself and other nurses
just two work days before she was suspended, (ii) instructing
Miller not to discuss her suspension with anyone, (iii)
suspending and then issuing a final written warning to Judy
Giordano because of her protest against Miller’s discharge,
and (iv) failing to promote Gamble because she “concertedly
told another employee not to accept unscheduled late
surgeries because nurses would be expected to work late.”
App. 21.
Administrative Law Judge Decision
After a fourteen-day hearing, the ALJ found that Inova
committed all four of the unfair labor practices alleged in the
complaint.
First, the judge found, as relevant here, that Miller
engaged in protected activity on February 13, 2009, when she
sent the email on behalf of a group of nurses seeking a week’s
hiatus between nursing fellows to improve the conditions of
the nurses’ work. The ALJ further found that Inova
demonstrated animus toward that protected conduct when its
high-level managers reacted to the February 13th email with
extreme agitation and directed the nurses not to engage in
such group complaints.
12
The ALJ also determined that Inova’s alleged, non-
discriminatory reasons for terminating Miller—her alleged
use of profanity and sexual jokes—were post-hoc, pretextual
rationalizations. The ALJ explained that Inova tolerated far
more egregious conduct from other employees and that, in
fact, the use of sexual jokes and profanity pervaded Inova’s
operating rooms.
The ALJ also found that the investigation against Miller
“was not an impartial search for the truth; it was [an] effort to
build a case against [her],” given that the investigators
focused on individuals who already had grievances against
Miller and refused to speak to her supporters. App. 30.
Second, the ALJ found that Inova had instructed Miller
not to discuss her discipline with anyone but her husband, and
that Inova lacked any legitimate justification for precluding
such employee discussion, thereby interfering with Miller’s
right to engage in concerted activities.
Third, the ALJ found that, at the time Giordano came into
physical contact with Melito, Giordano was engaged in a
protected protest against Inova’s unlawful termination of
Miller, which entitled her to certain protections so long as she
did not physically assault Melito. The ALJ concluded that,
because the original disciplinary notice recognized that no
shoving or pushing occurred, the severe discipline that Inova
meted out for such minor contact was designed to intimidate
other nurses from engaging in concerted activity.
Fourth, the ALJ found the failure to promote Gamble to
be retaliatory because Inova conceded that an identified
reason for the decision was Gamble’s opposition, in concert
with another nurse, to voluntary overtime. The ALJ found
Inova’s alternative explanations for not promoting Gamble to
be non-credible, post-hoc, and pretextual rationalizations.
13
National Labor Relations Board Decision
The Board affirmed the ALJ’s rulings, findings, and
conclusions. Inova Health System v. NLRB, 360 N.L.R.B.
No. 135, at 1 (2014).3 The Board rejected Inova’s factual
contention that it did not have knowledge of Miller’s
protected activity, ruling that Inova’s “high-level managers,
including HR Manager Gorman and Chief of Surgery Dr.
Seneca, were aware of the concerted nature of Miller’s
conduct when they shared and discussed Miller’s email,” and
the timing of Miller’s suspension “strongly suggests that
animus toward the email played a role in the decision.” Id. at
5. The Board also found that Inova failed to show that it
would have suspended and discharged Miller in the absence
of that protected activity, given that the cited reason—the
allegedly inappropriate conduct—was an established “part of
the culture of [Inova’s] operating rooms,” which Inova
“tolerated” when committed “by others[.]” Id. at 6.
With respect to the gag order on Miller’s discussion of
her suspension, the Board found that Inova’s argument that it
only “recommended” that Miller keep silent was flatly
contradicted by the record evidence. Inova, 360 N.L.R.B. No.
135, at 6–7.
On the question of Judy Giordano’s discipline, the Board
rejected Inova’s argument that Giordano lost all protection
under the Act because of her contact with Melito. The Board
held that, even if Giordano had touched Melito’s shoulder,
that was not the type of serious physical conduct that would
strip an employee of the Act’s protections. Inova, 360
N.L.R.B. No. 135, at 7.
3
In doing so, the Board said that it was adopting the ALJ’s factual
findings without “rely[ing] on his numerous inferences[.]” Inova,
360 N.L.R.B. No. 135, at 1 n.2.
14
Finally, the Board agreed that Inova had improperly
failed to promote Gamble. The Board held that Gamble’s
comments to Perry were protected, finding that Inova’s claim
that Gamble encouraged an unprotected strike misunderstood
the law because a refusal to perform voluntary work is not a
strike. Inova, 360 N.L.R.B. No. 135, at 8. The Board further
determined that Inova’s asserted non-discriminatory reasons
for its denial of promotion were post-hoc rationalizations that
were “unsupported by the record, and in one instance, simply
untrue.” Id. at 9.
The Board then ordered Inova to take certain remedial
steps, including: (i) to offer Miller full reinstatement to her
former, or a substantially equivalent, position; (ii) to offer
Gamble the position of clinical nurse leader; (iii) to remove
all reference to the unlawful discipline of Miller and Giordano
from its files; and (iv) to make Miller and Gamble whole for
any losses suffered as a result of the discrimination against
them. Inova, 360 N.L.R.B. No. 135, at 10.
II
Analysis
Our review of the Board’s unfair labor practice
determinations is tightly cabined and we afford the Board a
“high degree of deference.” Parsippany, 99 F.3d at 419; see
also Douglas Foods Corp. v. NLRB, 251 F.3d 1056, 1061
(D.C. Cir. 2001) (“Judicial review of NLRB unfair labor
practice findings is limited.”). We will uphold a decision of
the Board “unless it relied upon findings that are not
supported by substantial evidence, failed to apply the proper
legal standard, or departed from its precedent without
providing a reasoned justification for doing so.” E.I. Du Pont
De Nemours & Co. v. NLRB, 682 F.3d 65, 67 (D.C. Cir.
2012). The Board’s findings of fact are “conclusive when
15
supported by substantial evidence on the record considered as
a whole,” and “[i]ndeed, the Board is to be reversed only
when the record is so compelling that no reasonable factfinder
could fail to find to the contrary.” Bally’s Park Place, Inc. v.
NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011) (internal quotation
marks omitted). “‘We are even more deferential when
reviewing the Board’s conclusions regarding discriminatory
motive, because most evidence of motive is circumstantial.’”
Traction Wholesale Center Co., Inc. v. NLRB, 216 F.3d 92, 99
(D.C. Cir. 2000) (quoting Vincent Industrial Plastics, Inc. v.
NLRB, 209 F.3d 727, 734 (D.C. Cir. 2000)). Finally, we
accept all credibility determinations made by the ALJ and
adopted by the Board unless those determinations are
“patently insupportable.” Id. (internal quotation marks
omitted); Douglas Foods, 251 F.3d at 1061.
Suspension and Termination of Donna Miller
In determining whether an employer’s discipline of an
employee constituted an unfair labor practice, the Board
applies the Wright Line test. See generally Wright Line, a
Division of Wright Line, Inc., 251 N.L.R.B. 1083 (1980); see
also NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 395
(1983) (approving Wright Line test); Synergy Gas Corp. v.
NLRB, 19 F.3d 649, 652 (D.C. Cir. 1994). To make out a
prima facie case under Wright Line, the General Counsel for
the Board must demonstrate that (i) the employee was
engaged in an activity protected by 29 U.S.C. § 157, (ii) the
employer was aware of that protected activity, and (iii) “the
protected activity was a motivating factor in the employer’s
decision to take adverse action[.]” Citizens Inv. Services, 430
F.3d at 1198. Oftentimes the General Counsel can show that
the protected activity was a motivating factor by evidencing
“a reasonable proximity in time between the adverse action in
question and the employer’s knowledge of, and hostility
16
toward, the employee’s protected activity.” G.B. Electric,
Inc., 319 N.L.R.B. 653, 658 (1995). Once the General
Counsel has made that prima facie showing, the burden of
persuasion shifts to the employer “to show that it would have
taken the same action in the absence of the unlawful motive.”
Bally’s Park Place, 646 F.3d at 935 (internal quotation marks
omitted).
Inova does not dispute that the Board applied the correct
legal standards under Wright Line. Inova just challenges the
substantiality of the evidence supporting the Board’s
application of that test to this record. That is a hard hill to
climb. “Substantial evidence,” after all, is “less than a
preponderance of the evidence,” albeit “more than a scintilla.”
Multimax Inc. v. FAA, 231 F.3d 882, 887 (D.C. Cir. 2000)
(internal quotation marks omitted). The question before the
court thus “is not whether” Inova’s “view of the facts supports
its version of what happened, but rather whether the” Board’s
“interpretation of the facts is reasonably defensible.” Dean
Transportation, Inc. v. NLRB, 551 F.3d 1055, 1061 (D.C. Cir.
2009) (internal quotation marks omitted). Asking the latter
question, we hold that substantial evidence supports the
Board’s decision.
First, the Board properly concluded that Miller was
engaged in protected conduct when she sent the February 13th
email raising concerns, on behalf of a group of nurses, about
their work with the nursing fellows program. The Board
found, and Inova does not dispute, that the email constituted
“concerted activity” within the meaning of 29 U.S.C. § 157,
because it was “undertaken with or on the authority of other
employees[.]” Citizens Inv. Services, 430 F.3d at 1198.
The Board also reasonably concluded that the email
addressed a matter relevant to “mutual aid or protection,” 29
17
U.S.C. § 157. The email spoke about the nurses’ collective
need for a transitional break between each round of nursing
fellows and the difficulties the nurses were confronting in
integrating the fellows into their daily work activities. In so
doing, the email directly addressed an aspect of the nurses’
own working conditions and gave voice to “legitimate
employee concerns about employment-related matters.”
Tradesman Int’l, 275 F.3d at 1141 (internal quotation marks
omitted); see also American Golf Corp., 330 N.L.R.B. 1238,
1244 (2000) (employees’ protest letter complaining of short
workweeks during winter rainy season was protected).
Inova’s argument that the email pertained only to the
quality of the fellows program ignores the communication’s
request for transition time for the nurses. There is a clear
“nexus” between, for example, the request for recovery time
between rounds of supervising new fellows and the nurses’
“interests as employees.” Venetian Casino Resort, 484 F.3d
at 606–607; Tradesmen Int’l, 275 F.3d at 1141. That issue
directly impacted the nurses’ own week-to-week working
conditions because it determined how much time the nurses
had to prepare for new fellows and the efficient integration of
the fellows into the nurses’ daily work. See Inova, 360
N.L.R.B. No. 135, at 3 (the nurses’ concerns needed to be
addressed “[i]n order to be better prepared” and work through
the program “in a timely fashion”). The Board further found
that Miller’s email “initiate[d] a discussion about how certain
aspects of [Inova’s] fellows program affected [the surgical
center] nurses” and their working conditions. Id. at 5. For
those reasons, the email communication’s connection to the
nurses’ working conditions was specific and direct; it
certainly was not “so attenuated that [it] cannot fairly be
deemed to come within the ‘mutual aid or protection’ clause.”
Venetian Casino, 484 F.3d at 608 (quoting Eastex, 437 U.S. at
568) (alteration in original).
18
Second, there is no dispute that Miller’s supervisors were
aware of the communication. The email was sent to both
Migliozzi and Graling, the head of the ambulatory surgery
center, and was shared or discussed with others, including
human resources manager Gorman. Substantial evidence
also supports the Board’s finding that the email went further
up the chain of command. Gorman spoke with Dr. Seneca
about her investigation the very first work day after she
received Migliozzi’s complaint about the February 13th
email, and she kept Dr. Seneca updated throughout the
process. Although Gorman denies mentioning the February
13th email, the ALJ “discredit[ed] this denial” because “it
defies credulity to believe that Gorman talked to Dr. Seneca
on the very first work day after she received another
complaint from Migliozzi about Miller and did not mention
it.” Inova, 360 N.L.R.B. No. 135, at 18. As this credibility
finding is not “patently insupportable,” we are bound by it.
Traction Wholesale, 216 F.3d at 99. Thus, circumstantial, but
substantial, evidence supports the Board’s finding that
Gorman and Dr. Seneca “shared and discussed Miller’s
email.” See Inova, 360 N.L.R.B. No. 135, at 5 (finding that
Inova’s “high-level managers, including HR Manager
Gorman and Chief of Surgery Dr. Seneca” “shared and
discussed Miller’s email”).
Third, substantial evidence supports the Board’s factual
determination that supervisory animus over that protected
communication was a motivating factor in Miller’s discharge.
It is not even a close question. Migliozzi’s animus was
undisguised. Her own email to Gorman said she was “quite
furious” that Miller was acting as “spokesperson for this
group” and that the nurses were “ganging up” on her. Inova,
360 N.L.R.B. No. 135, at 3, 18. Graling then emailed Miller
and the other nurses criticizing their use of a “one
dimensional group signed email [that] puts everyone on the
19
defensive,” rather than “each” nurse coming to a supervisor
directly. Id. at 4, 6, 18.4
That Miller’s discharge came close on the heels of the
protected email further substantiates the Board’s decision.
The Board and this court have long recognized that the close
proximity of protected conduct, expressions of animus, and
disciplinary action can support an inference of improper
motivation. See, e.g., Citizens Inv. Services, 430 F.3d at 1202(“The timing of [the employee’s] discharge,” which was “two
4
Inova nowhere suggests—nor could it—that any aspect of the
email’s content was incendiary, unprofessionally communicated, or
lacking in proper tone. The email said:
We are [writing] regarding the coordination of the fellows
and follow up evaluations for each service. We haven’t
received any packets with the objectives/evaluations for
each fellow as they rotate through our service in quite a
while. In order to be better prepared for a comprehensive
rotation in each service, it would be helpful to know who
is coming, the learning objectives and the length of the
rotation. We need a tool to evaluate the fellows and a
way to document their progress in a timely fashion. We
have not been asked for any feedback on the fellows on
their progress and we feel that is an important piece of the
fellowship program that we need to pay attention to. I
know in [pediatrics] that we need a break for a week
before we have another fellow. The surgeons need it and
we do too. Can you provide some assistance or guidance
to us to help us with ou[r] concerns? We are committed
to giving these fellows the best possible educational
experience with all of our combined experience and
guidance!
App. 32.
20
weeks after he had identified himself as ‘union president’ in
an email” to his supervisor, “also supports the Board’s finding
of unlawful motive.”); Reno Hilton Resorts v. NLRB, 196
F.3d 1275, 1283 (D.C. Cir. 1999) (“[T]iming is a telling
consideration in determining whether employer action is
motivated by anti-union animus.”); Masland Industries, 311
N.L.R.B. 184, 197 (1993) (“‘Timing alone may suggest anti-
union animus as a motivating factor in an employer’s
action[.]’”) (quoting NLRB v. Rain-Ware, Inc., 732 F.2d 1349,
1354 (7th Cir. 1984)).
In this case, those events could hardly be more
proximate. After receiving Miller’s email, Migliozzi fled
work “because I am quite furious” and asked Gorman if they
could discuss the email the next work day. Inova, 360
N.L.R.B. No. 135, at 18. After Migliozzi and Gorman
discussed the matter, Gorman raised the subject of the email
and Migliozzi’s heated reaction at a managers’ meeting and
with the Chief of Surgery, Dr. Seneca. The very next day,
Miller was suspended. Substantial evidence thus supported
the Board’s finding of improper motivation.5
Inova argues that all that causal evidence is for naught
because the final decision to discharge was made by the Chief
Executive Officer of the Fairfax campus, Dr. Pasternak, and
there is no evidence that he personally was motivated by the
email. That argument blinks reality. The “high-level
5
In its order, the Board also discussed an incident in 2005 when
Miller was disciplined for “insubordination” after questioning her
supervisor about scheduling after-hours surgeries. Inova argues
that, because of the Board’s six-month statute of limitations, 29
U.S.C. § 160(b), the Board could not consider that incident.
Because the record contains substantial evidence of an unfair labor
practice even without reference to the 2005 incident, we need not
address Inova’s objection.
21
managers” who knew about the email and were upset by it
were the same managers who (i) took the unsatisfactorily
explained step of involving Dr. Pasternak in an individual
nursing personnel decision that he self-admittedly had
“rarely” been involved in before, App. 387, and indeed, Inova
identified no other instance of his involvement in the
discipline or discharge of a rank and file employee, (ii)
selectively controlled all of the information fed to Dr.
Pasternak, including that on which the termination decision
was made, (iii) deliberately obstructed the efforts of Miller’s
supporters to weigh in, and (iv) proposed termination as an
appropriate remedy to Dr. Pasternak. Inova, 360 N.L.R.B.
No. 135, at 4, 24–25. In fact, those high-level managers’
investigation and recommendation formed the sole basis for
Dr. Pasternak’s ultimate decision.
It thus was “eminently reasonable” for the Board to rely
on the critical causal role played by those “high-level
corporate managers,” Parsippany, 99 F.3d at 423, because
Pasternak’s decision—indeed, the fact that Pasternak was
involved at all—was directly set in motion and driven by
those managers’ animus-motivated conduct. See Inova, 360
N.L.R.B. No. 135, at 4–5; see also United States v. Staub, 562
U.S. 411, 416–422 (2011); Griffin v. Washington Convention
Center, 142 F.3d 1308, 1312 (D.C. Cir. 1998) (“[E]vidence of
a subordinate’s bias is relevant where the ultimate decision
maker is not insulated from the subordinate’s influence.”); cf.
Ross Stores, Inc. v. NLRB, 235 F.3d 669, 673–674 & n.7
(D.C. Cir. 2001) (recognizing that it would have been
“eminently reasonable” to impute animus to the company
from a “high-level” manager, but holding that anti-union
statements of a supervisor did not prove the company’s
animus because there was not “any evidence that [the
supervisor] was involved in [the employee’s] discharge”). In
short, the Board reasonably found Inova responsible for an
22
unfair labor practice because Inova’s high-level managers
used the authority that Inova gave them to take measures
based on discriminatory animus that caused and were
intended to cause the dominoes to fall exactly as they did.
Inova contends that Flagstaff Medical Center, Inc. v.
NLRB, 715 F.3d 928 (D.C. Cir. 2013); Detroit Newspaper
Agency v. NLRB, 435 F.3d 302 (D.C. Cir. 2006); and Meco
Corp. v. NLRB, 986 F.2d 1434 (D.C. Cir. 1993), require a
finding that the final decisionmaker must independently have
knowledge of and animus toward the protected activity. That
argument misunderstands those cases. They stand for the
much narrower proposition that the Board must actually prove
that a low-level supervisor had animus, and that the low-level
supervisor played some material role in the eventual
discharge. See Flagstaff Medical Center, 715 F.3d at 935–
936 (vice-president who made termination decision did not
know about the employee’s union activities, and Board failed
to prove that the supervisor who recommended termination
acted with animus at all, as he had a consistent record of
enforcing the company’s attendance policy); Detroit
Newspaper, 435 F.3d at 310 (knowledge and animus could
not be imputed to the company when the only evidence of any
animus was an allegation that a low-level supervisor, who
“was not directly involved in the final decision to terminate,”
might have made an anti-union statement during a strike
several years before); MECO Corp., 986 F.2d at 1437 (anti-
union comments of two low-level factory supervisors failed to
establish a motivating factor because “neither supervisor * * *
had anything to do with [the] discharge”).
This case is very different. The record supported the
Board’s judgment that Inova’s high-level supervisors had
knowledge of Miller’s protected activity, displayed animus
toward that activity, and were directly and intimately involved
23
in conducting a biased investigation that produced a biased
recommendation that caused her termination.
Fourth, the Board reasonably concluded that Inova failed
to prove that it would have fired Miller even in the absence of
her protected conduct. Inova pointed to a handful of
complaints that this 22-year veteran nurse had been vindictive
and vulgar. The Board found that explanation to be
pretextual, and substantial evidence backed that judgment up.
To begin with, Inova failed to explain why, if Miller’s
behavior was legitimately at issue, it conducted such a one-
sided investigation into the isolated complaints about her
behavior, literally closing the door on doctors’ and others’
efforts to attest to Miller’s professionalism and skill.
Inova stresses that it began the investigation before
Miller’s protected email. True enough. But it fails to explain
why that investigation came to a screeching halt immediately
after Migliozzi complained to Gorman about the protected
email communication. Also missing from Inova’s
explanation is why Dr. Seneca, after the email had been sent,
warned human resources not to speak to any doctors, why
Inova went to such lengths to exclude any favorable
information, and why human resources staff felt a need to
have Dr. Pasternak pull the trigger given that he had “rarely”
if ever, been involved in the hiring or firing of any hospital
staff. App. 387. Thus, whatever the investigation’s genesis,
it was the abrupt and abnormal conclusion of that skewed
investigation in the immediate wake of Miller’s protected
conduct that the Board found telling.
Inova argues that whether Miller actually engaged in
misconduct is beside the point, as long as it had a “reasonable
belief” that Miller had done so. That shortchanges Inova’s
burden of proof. It had to show not only that it reasonably
24
believed Miller had engaged in vulgar and intimidating
behavior, but that the nature of that behavior “would have”
caused her suspension and termination regardless of her
protected conduct. DTR Industries, Inc., 350 N.L.R.B. 1132,
1135 (2007), enforced, 297 F. App’x 487 (6th Cir. 2008).
That is where Inova’s proof came up short. The record
amply supports the Board’s skepticism that Inova suddenly
started enforcing a zero-tolerance policy for vulgarity or
vindictiveness. The only evidence of that purported policy
was Dr. Pasternak’s reply to Conway-Morana, in which he
explained that he was instituting such a policy against
physicians, not nurses, and Dr. Pasternak’s testimony, which
the ALJ and Board both found was not credible. Inova makes
no showing that the credibility determination was “patently
insupportable,” and so we must credit it. Traction Wholesale,
216 F.3d at 99.
In addition, Dr. Soutter testified that he had never heard
of Inova’s so-called “citizenship” policy, let alone a shift to
zero tolerance, until after Miller’s termination. App. 231.
Nor did Inova introduce any evidence that any other
employee—before or since—has been terminated on similarly
scant evidence. Quite the opposite, the record is replete with
evidence that practical jokes, sexual innuendo, and obscenity
were prevalent in Inova’s operating rooms and offices during
that same time period, with at least one of the supervisors who
orchestrated Miller’s termination joining in. App. 211 (“Dr.
Seneca could cuss like a sailor.”).
Moreover, employees who engaged in far more egregious
behavior received a far more calibrated response. For
example, employees who physically assaulted and made racial
threats to a coworker, insulted and humiliated a coworker
during a meeting, threatened to cut someone’s throat during
25
an altercation, and showed topless photos of themselves to
staff were all afforded written warnings and an opportunity to
correct their behavior before termination. Thus, far from
helping Inova, the record of selective and disproportionate
punishment of Miller corroborates the Board’s finding of
pretext. See, e.g., Bally’s Park Place, 646 F.3d at 936–939
(the Board reasonably concluded that employer failed to meet
its rebuttal burden when it enforced a policy with “zero-
tolerance” against the discharged employee, but not others);
NLRB v. ADCO Electric, Inc., 6 F.3d 1110, 1119 (5th Cir.
1993) (employer failed to meet rebuttal burden when it
claimed to have discharged an employee for failing to work
overtime, but did not do so for non-union supporting
employees).
For those reasons, the Board reasonably determined that
Miller’s discharge constituted an unfair labor practice.
Warning Miller Not to Discuss Suspension
Inova separately challenges the Board’s determination
that it committed an unfair labor practice by directing Miller
not to discuss her suspension with anyone else. Inova,
however, does not dispute—nor could it—settled Board
precedent holding that employees have a protected right to
discuss discipline or disciplinary investigations with fellow
employees. See, e.g., Cast-Matic Corp., 350 N.L.R.B. 1349,
1355 (2007) (“Absent a total ban on employee discussion
about any topic during work, employees have a right to
discuss discipline with fellow employees.”); see also Cintas
Corp. v. NLRB, 482 F.3d 463, 468 (D.C. Cir. 2007) (The
NLRA protects “an employee’s right to discuss the terms and
conditions of her employment with other employees and with
nonemployees[.]”) (internal citations omitted). An employer
may prohibit such discussion only when a “substantial and
26
legitimate business justification” outweighs the “infringement
on employees’ rights.” Caesar’s Palace, 336 N.L.R.B. 271,
272 (2001); see also Phoenix Transit System v. NLRB, 63
F. App’x 524, 525 (D.C. Cir. 2003) (per curiam)
(“Employees’ right to discuss the terms and conditions of
their employment may legitimately be restricted only if their
interests are outweighed by an employer’s valid
confidentiality interest.”).
Instead, Inova fights the record evidence, insisting that it
only “recommended” that Miller keep the investigation
confidential and did not threaten Miller with discipline. The
short answer is that the Board fairly read the record to say
otherwise. Miller testified that, after Gorman advised her to
keep mum about her suspension, Miller specifically asked
“are you telling me that I cannot discuss this with anyone
else,” and Gorman “said yes.” App. 292. In addition, an
email exchange indicates that Miller’s husband was
“counseled” for discussing his wife’s suspension. App. 867.
Finally, in its reply brief, Inova cursorily suggests that
protecting employees’ right to discuss discipline is
inconsistent with the official guidance of the federal Equal
Employment Opportunity Commission. We need not
consider this argument because Inova’s fleeting reference to
the point, in its reply brief no less, cannot save it from
appellate forfeiture. See American Wildlands v. Kempthorne,
530 F.3d 991, 1001 (D.C. Cir. 2008).
Discipline of Judy Giordano
Inova challenges the Board’s determination that it
committed an unfair labor practice when it disciplined Judy
Giordano for her physical encounter with a human resources
employee, Michelle Melito, while protesting Miller’s
discharge. Inova argues that (i) Giordano lost the protection
27
of the National Labor Relations Act by intentionally touching
Melito during the protest, and (ii) Inova’s reasonable belief in
Melito’s version of events justified disciplining Giordano.
As an initial matter, Inova does not dispute that
Giordano’s conduct arose in the context of a protected
activity—a group protest against Miller’s discharge. Inova’s
arguments instead come down to a quarrel with the Board’s
reading of the record, which cannot survive our deferential
review.
The Board has long held that an employer commits an
unfair labor practice if it disciplines an employee for engaging
in a lawful protest or concerted activity, unless the employee
engages in “opprobrious conduct” in the course of otherwise
protected activity. See Atlantic Steel Co., 245 N.L.R.B. 814,
816 (1979). In assessing whether the employee’s conduct
crosses that “opprobrious” threshold, the Board balances four
factors: (i) the place of the discussion, (ii) the subject matter
of the discussion, (iii) the nature of the employee’s outburst,
and (iv) whether the outburst was, in any way, provoked by
the employer’s unfair labor practices. Id. Inova does not
dispute that Atlantic Steel governs this case. See Inova Br.
47–48 (relying on cases applying the Atlantic Steel
framework); Reply Br. 21–22 (same).
In applying that test, court and Board precedent have
long recognized that it must be applied with an understanding
that labor relations often involve heated disputes “likely to
engender ill feelings and strong responses.” Kiewitt Power
Constructors, 355 N.L.R.B. 708, 711 (2010), enforced, 652
F.3d 22 (D.C. Cir. 2011) (internal quotation marks omitted).
Accordingly, an employee’s right to engage in concerted
activity “‘permit[s] some leeway for impulsive behavior.’”
Kiewitt Power Constructors Co. v. NLRB, 652 F.3d 22, 27–28
28
(D.C. Cir. 2011) (quoting NLRB v. Ben Pekin Corp., 452 F.2d
205, 207 (7th Cir. 1971)).
The record supports the Board’s conclusion, in applying
those factors, that Giordano’s physical contact with Melito
did not sink to such a low level as to strip Giordano of the
Act’s protection. As an initial matter, the interchange with
Melito occurred in a non-work area, a hallway in front of the
human resource offices, where no patients or members of the
public could have been disturbed. Cf. NLRB v. Starbucks
Corp., 679 F.3d 70, 79 (2d Cir. 2012) (noting “the entirely
legitimate concern of an employer not to tolerate employee
outbursts * * * in the presence of customers”).
More importantly, any physical contact was mild. It is
not even clear from the surveillance tapes that Giordano
touched Melito; six of the seven nurses denied it happened at
all. Inova’s claim that Giordano “pushed” Melito, Inova Br.
48, thus is a quite generous reading of the record that
contradicted Inova’s own initial disciplinary form, which
described the incident as a “touch” that “was not done in an
aggressive manner,” Inova, 360 N.L.R.B. No. 135, at 7 n.17,
26; see also App. 628 (Melito’s contemporaneous notes
describe the incident “seemingly as a gesture to turn me
around”). Hardly opprobrious.
Failure to Promote Cathy Gamble
Inova’s final challenge is to the Board’s determination
that it committed an unfair labor practice by refusing to
promote Cathy Gamble because she engaged in protected
concerted activity. The Board applies a modified version of
the Wright Line test to allegations that an employer failed to
promote an employee in retaliation for the employee’s
protected activities. See W&M Properties of Connecticut,
Inc. v. NLRB, 514 F.3d 1341, 1347 (D.C. Cir. 2008). The
29
burden shifting framework remains the same, but the prima
facie case has two additional components: the Board must
find that (i) the employer was hiring, and (ii) the unhired
applicant had relevant experience or training for the job. Id.(citing FES (A Division of Thermo Power), 331 N.L.R.B. 9,
12–13 (2000), enforced, 301 F.3d 83 (3d Cir. 2002)).
The record supports the Board’s finding of a prima facie
case of retaliatory failure to promote. First, it is
uncontroverted that Inova was hiring, and that Gamble had
the requisite experience and qualifications for the “clinical
nurse leader” position. Second, the Board reasonably found
that Gamble engaged in protected activity when she and
another nurse advised Guna Perry against volunteering for
after-hours surgeries, and the relevant decisionmakers knew
about that prior to the denial of her promotion. Third, Inova
does not argue that Gamble’s statements to Perry were not a
form of concerted activity. Fourth, the causal relationship is
undisputed. When Gamble was the only qualified applicant
denied promotion to clinical nurse specialist, the management
coordinator, Mary Lou Santana, specifically cited Gamble’s
comments to Nurse Perry as evidencing a lack of leadership,
adding “that wasn’t a good thing to say to your peer[.]” App.
197–198.
Inova does not dispute that Gamble’s discussion with
Perry was a motivating factor in its promotion decision or any
of the other elements of the prima facie case. Instead, Inova
argues that Gamble’s comments to Perry constituted
advocating for a partial strike, which under Audubon Health
Care Center, 268 N.L.R.B. 135, 136 (1983), is not a protected
activity.
That is incorrect. Employees engage in a partial strike
when they refuse to work on “certain assigned tasks while
30
accepting pay or while remaining on the employer’s
premises.” Audubon Health Care Center, 268 N.L.R.B. at
136. The refusal to perform voluntary work—non-mandatory
work that is “not a condition of employment” and that the
employee has a “right to decline to perform”—is not an
unprotected strike. St. Barnabas Hospital, 334 N.L.R.B.
1000, 1000 (2001), enforced, 46 F. App’x 32 (2d Cir. 2002).
Perry testified that she had “volunteered” to perform the late
surgery, and that she could have declined and gone home.
App. 320. The Board thus reasonably concluded that
Gamble’s discouragement of such volunteerism could not
have amounted to advocating a strike.
Inova also argues that it had legitimate reasons for not
promoting Gamble. But substantial evidence supports the
Board’s conclusion that Inova’s “stated reasons for failing to
promote Gamble [were] largely unsupported by the record
and, in one instance, simply untrue.” Inova, 360 N.L.R.B.
No. 135, at 8. For example, Inova argued that its matrix of
factors indicated that Gamble was a middle to low performer.
But Gamble had received above-average scores on most of
her evaluations. In addition, management wrote “prone to
gossip” on Gamble’s paperwork, but the management
coordinator who played an instrumental role in Gamble’s
evaluation had no idea what that comment referred to. App.
198–199.
Lastly, Inova argues that the Board impermissibly
substituted its judgment for that of the employer by rejecting
Inova’s stated reasons. But once a prima facie case was made
out, the burden was on Inova to persuade the Board that those
alternative reasons were the basis for its decision. Given the
management coordinator’s open admission that protected
conduct influenced the decision and the evidentiary
weaknesses in the alternative explanations proffered by Inova,
31
this court cannot say that the Board’s decision was
unreasonable or unsupported by the record.
III
Conclusion
We hold that the Board’s unfair labor practice
determinations were reasonable, consistent with the law, and
supported by substantial evidence. We accordingly deny
Inova’s petition to review the Board’s order and grant the
Board’s cross-application for enforcement.
So ordered.