HAYWARD SISTERS HOSPITAL D/B/A ST. ROSE HOSPITAL

National Labor Relations Board - Administrative Judge Opinions

May 17, 2019

32-CA-197728 (N.L.R.B. May. 17, 2019)

JD(SF)–14–19
Oakland, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE

HAYWARD SISTERS HOSPITAL D/B/A
ST. ROSE HOSPITAL

and Case 32-CA-197728

BABITA ROOP, an Individual

and Cases 32-CA-197958
32-CA-203396
JERNETTA BACKUS, an Individual 32-CA-218138

TABLE OF CONTENTS

Statement of the Case...........................................................................................................1
I. Jurisdiction and Labor Organization ....................................................................................2
II. Facts .....................................................................................................................................2
A. General background .................................................................................................2
B. The physical layout of the respiratory department ..................................................3
C. Morale changes in the respiratory department .........................................................4
D. The harassment of Jojesmar Pereyra........................................................................4
E. Pereyra complains to Marino and human resources ................................................6
F. Respondent fills the vacant PFT tech and resource positions ..................................7
G. Employees march to human resources .....................................................................9
H. Respondent’s breakthrough in the tech room picture investigation.......................10
I. Roop files bullying complaint against Matuszak ...................................................11
J. Therapists draft and deliver a “list of concerns” to the Union ...............................12
K. July 7, 2016 meeting to discuss professionalism ...................................................13
L. Pereyra and Roop start getting anonymous text messages ....................................13
M. Marino proposes disciplining Roop in July 2016 ..................................................15
N. August staff meetings called to address the “list of concerns” ..............................15
O. Matuszak, Hamid, and Smith file a written complaint against Roop ...................16
P. Marino blocks computer system access to patient scheduling ...............................17
Q. November 10, 2016 Meeting with Roop................................................................17
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R. Shop steward election in the respiratory department .............................................18
S. Roop’s November 21 discipline.............................................................................18
T. A group of therapists file bullying complaints with HR ........................................19
U. Leak investigation ..................................................................................................21
V. Respondent meets with Matuszak and Roop .........................................................23
W. December 10, 2016 email from Bachus to Dhuper ................................................24
X. December 14, 2016 staff meeting ..........................................................................25
Y. Dhuper’s individual meetings with employees in December 2016 .......................27
Z. Removal of the television set from the tech room .................................................30
AA. “WTF” Stamp in the respiratory department .......................................................31
BB. Roop’s meeting with Dhuper on February 7, 2017.............................................31
CC. Dhuper’s statement to Roop in the hallway ........................................................32
DD. Door incident involving Roop and Matuszak .....................................................32
EE. Power outage at the hospital ..................................................................................33
FF. Employees circulate a petition ...............................................................................34
GG. Respondent’s reaction to the Petition .................................................................35
HH. Respondent drafts a letter to employees about the petition ................................36
II. Backus reports receiving anonymous text messages .............................................36
JJ. Marco Garcia speaks with Marino and O’Keefe about the petition ......................37
KK. Marino speaks with Nancy Mardenzai about the petition ..................................37
LL. Respondent hires an outside attorney to investigate the petition ...........................38
MM. Pereyra gets an injunction against Seigal ............................................................39
NN. Hallway incident between Matuszak and Backus ...............................................39
OO. Pereyra gets a text message from Brian Smith ...................................................40
PP. Backus applies for a restraining order against Matuszak .......................................41
III. Analysis of the 8(a)(1) Allegations ....................................................................................42
A. November 2016 interrogation allegations involving Joe Marino ..........................42
B. December 2016 allegations of interrogations and threats ......................................44
C. December 2016 allegations involving Aman Dhuper ............................................46
D. Alleged interrogations during the individual meetings with Dhuper.....................48
E. January 2017 statement made by Dhuper in the tech room ...................................50
F. Allegation that Dhuper solicited employees to quit in February 2017 ..................50
G. Allegation that Marino interrogated employees in February 2017 ........................51
H. Allegation Dhuper impliedly threatened employees in March 2017 .....................51
I. Allegation involving Dhuper and the March 2017 power outage ..........................52
J. Alleged threats by Marino and O’Keefe in April 2016 .........................................53
K. April 2017 alleged threats and polling ...................................................................55
L. Alleged Johnnie’s Poultry violation in May 2017 .................................................56
IV. Analysis of the alleged discrimination against Roop and Backus .....................................58
A. Legal Standard .......................................................................................................58
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B. The discipline, suspension, and discharge of Babita Roop ....................................59
1. Roop’s concerted activity ................................................................................59
2. Respondent’s knowledge of Roop’s concerted activity ...................................60
3. Animus .............................................................................................................61
4. Roop’s November 21, 2016 verbal warning ....................................................62
5. Roop’s February 13, 2017 final written warning and suspension ...................64
6. Roop’s April 17, 2017 discharge .....................................................................71
C. The final written warning issued to Jernetta Backus .............................................83
1. Administering and documenting medications .................................................83
2. The March 12 incident and Backus’s discipline ..............................................85
3. Marino’s investigation and his decision to discipline Backus .........................87
4. The General Counsel’s prima facie case ..........................................................91
5. Respondent has not rebutted the General Counsel’s case ................................92
V. Alleged discriminatory removal of the tech room television.............................................97
Conclusions of Law .......................................................................................................................99
Remedy ........................................................................................................................................100
Order ............................................................................................................................................101
JD(SF)–14–19
Oakland, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
HAYWARD SISTERS HOSPITAL D/B/A
ST. ROSE HOSPITAL
and Case 32-CA-197728
BABITA ROOP, an Individual
and Cases 32-CA-197958
32-CA-203396
JERNETTA BACKUS, an Individual 32-CA-218138
Coreen Kopper, Esq.
Angela Hollowell-Fuentes, Esq.
for the General Counsel.
Bart Sisk, Esq.
Michael J. Sarrao, Esq.
for the Respondent.
DECISION
STATEMENT OF THE CASE
JOHN T. GIANNOPOULOS, Administrative Law Judge. This case was tried before me in
Oakland, California, over a 12 day period in March, April, and May of 2018. The Complaint, as
amended and consolidated at trial, alleges that Hayward Sisters Hospital d/b/a St. Rose Hospital
(“Respondent” or “St. Rose”) committed 24 separate violations of Section 8(a)(1) of the National
Labor Relations Act (the “Act”), including the discipline, suspension, and termination of
Charging Party Babita Roop (“Roop”), and one violation of Section 8(a)(1) and (4) of the Act
involving the final written warning issued to Charging Party Jernetta Backus (“Backus”).
Respondent denies it has violated the Act in any manner.
Based upon the entire record, including my observation of witness demeanor, and after
considering the briefs filed by the General Counsel and Respondent, I make the following
findings of fact and conclusions of law.1
1 Testimony contrary to my findings has been specifically considered and discredited. Witness demeanor was the
primary consideration used in making all credibility resolutions.
JD(SF)–14–19
2

I. JURISDICTION AND LABOR ORGANIZATION

Respondent operates an acute care hospital in Hayward, California, where it derives
annual gross revenues in excess of $250,000. In operating the hospital, St. Rose purchases and
receives goods and materials in excess of $5,000 directly from points outside the State of
California. Respondent admits, and I find, that it is an employer engaged in commerce within 5
the meaning of Sections 2(2), (6), and (7) of the Act, and a health care institution within the
meaning of Section 2(14) of the Act.

II. FACTS
10
A. General Background

Respondent operates a 270 bed hospital providing both acute and emergency care
services to residents living the southern part of Alameda County, California.2 About 900
employees work at the hospital, which provides both inpatient and outpatient services. Aman 15
Dhuper (“Dhuper”) serves as the hospital’s President and chief executive officer; he assumed
those duties in August 2016. Before becoming CEO, Dhuper was the hospital’s vice president of
operations; he started working at St. Rose in 2013. Joseph Ambrosini (“Ambrosini”) was the
hospital’s human resources manager from 2013 until February 2017. He was replaced in March
2017 by Stephanie Jones (“Jones”). The human resources manager reports directly to Dhuper. 20
Mike Sarrao serves as the hospital’s legal counsel. (Tr. 1515–16, 2088, 2406–08, 2488; GC. 51)

This case involves employees who work in the hospital’s respiratory department. Joe
Marino (“Marino”) has been the manager of the respiratory department since April 2014; he
started working at St. Rose in 1995 as staff therapist. Marino reports to the hospital’s director of 25
nursing Rosanne O’Keefe (“O’Keefe”), as do the managers of the other clinical departments.
O’Keefe reports to the hospital’s chief nursing officer Sylvia Ventura, who in turn reports to
Dhuper. (Tr. 1273, 1276, 1484, 2263– 65, 2500)

About 35 respiratory therapists (“therapists” or “RTs”) work in Respondent’s respiratory 30
department. RTs work throughout the hospital caring for patients who are in respiratory distress,
or who have various lung ailments, such as pneumonia, COPD, or the flu. RTs assist with
intubating and managing patients on ventilators, perform bronchoscopies, pulmonary function
tests, six-minute walk tests, arterial blood gas tests, and attend emergency or rapid response
situations. As part of their job duties they also administer bronchodilators to patients such as 35
Albuterol, DuoNeb, and Atrovent.3 RTs are licensed by the State of California Respiratory Care
Board. (Tr. 22, 239, 263, 325, 541, 577, 773–74, 808, 950, 1024, 1274, 1843; GC. 6, pp. 5-6)

2 Transcript citations are denoted by “Tr.” with the appropriate page number. Citations to the General Counsel,
Respondent, and Joint Exhibits are denoted by “GC.” and “R.” and “JX.” respectively. Transcript and exhibit
citations are intended as an aid only, as factual findings are based upon the entire record as a whole.
3 “A bronchodilator is a medication that relaxes the bronchial muscles and thus expands the” bronchial air passages.
Sea "B'' Mining Co. v. Dunford, 188 F. App'x 191, 200, fn. 11 (4th Cir. 2006). DuoNeb is a combination of the
drugs Atrovent (also known as Ipratropium) and Albuterol. (Tr. 991, 1738, 2260; R. 16).
JD(SF)–14–19
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Respondent’s respiratory therapists are broken down into three categories: full-time,
part-time benefited, and per-diem. Most full-time employees work 72 hours a pay-period,
working 12 hour shifts three days a week. Part-time benefited employees work two 12 hour
shifts per week. Although they are considered part-time, these employees have a fixed schedule
and receive the same fringe benefits (such as insurance and retirement) as full-time staff. Per-5
diem employees work as needed, and have executed a separate per-diem employment agreement
with the hospital. Per-diem employees work an average of two to three shifts a pay period;
however when the hospital is busy, they can work up to six shifts. Per-diem employees do not
receive fringe benefits. (Tr. 239, 150, 1214, 1254, 1275; GC. 26, p. 6)
10
Within the respiratory department, about four therapists are designated as team leads;
they receive premium pay when they work in this capacity. As part of their job duties, leads
adjust the work schedule, check for work orders, update assignments, and attend emergency and
specialty procedures. Also, a therapist named Mike Gandhi (“Gandhi”) serves as the
department’s “clinical lead.” As clinical lead, Gandhi completes the staff scheduling for the 15
department, maintains various machines, and performs different testing required by the state or
other accrediting agencies. Although Gandhi is not officially designated by the hospital as a
manager or supervisor, he is viewed by many of the therapists as a supervisor, or at least as
someone who is aligned with the department’s management. Employees referred to him as a
supervisor, he acted like one, and the department’s telephone directory listed Gandhi as the 20
“Supervisor for Pulmonary Services.” (Tr. 22–23, 241, 250, 596, 622, 955–57, 1125, 1212–13,
2448, 2450–51, 2586–90; GC. 26, 75, 99, 155)

All of the hospital’s respiratory therapists, including Gandhi and the team leads, are
represented by Teamsters Union Local No. 856 (Union), and are covered by a collective 25
bargaining agreement between the Union and Respondent. During the relevant time period,
Teamsters business agent Matt Mullany (“Mullany”) was the Union representative responsible
for the unit of respiratory therapists. (Tr. 61, 260, 699, 1214, 1364, 1517, 1544–45; GC. 22, 26)

B. The physical layout of the respiratory department 30

The respiratory department is located on the first floor of the hospital and encompasses a
number of large rooms, along with some office and storage areas. These rooms are situated
across the hall from each other. One suite contains the hospital’s pulmonary function testing lab
(“PFT lab”). Next to the PFT lab is the pulmonary tech room (hereinafter referred to as the “tech 35
room” or “pulmonary department”).4 The tech room is actually two rooms separated by a large
open doorway. Each room has a separate door that accesses the hospital’s hallway/corridor. The
top half of the tech room contains a refrigerator, sink, microwave, two coffee makers, a water
dispenser, chairs, and a table on which various condiments, such as hot sauce and ketchup, are
kept. On the walls are a towel dispenser, a soap/sanitizer dispenser, a clock, a white-board, and a 40
bulletin board. Before it was removed, a flat-screen television was also kept in this part of the
tech room, above the microwave oven. The bottom half of the tech room contains a desk/table
with two computers, chairs, a printer, a copy machine, and lockers. There is also a coat rack,

4 Witnesses consistently referred to the tech room as the “break room.” (Tr. 90–91, 102, 257–58, 356–57, 362–63,
370, 388, 391, 400, 544, 781, 1538, 1552, 1582, 1594, 1910, 1995, 2050) They also referred to it as the
“department,” because as one therapist testified “that’s the only place we have.” (Tr. 373) (Tr. 379, 932, 961, 964)
JD(SF)–14–19
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telephone, and a bulletin board in this half of the room. Each full-time therapist gets a locker,
and some of the other therapists share a locker. Therapists store their personal belongings in the
lockers, most of which are secured with a padlock. Marino’s keeps his printer in the tech room,
and he goes in and out of the room on a regular basis. (Tr. 123, 131, 358, 546, 630, 963, 947,
1284–88, 1296–1300, 1422, 2003, 2534, 2543; R. 9) 5

RTs go to different areas of the hospital to perform their work, as opposed to just staying
in one location. They use the tech room as a break area, to eat their lunch, and to store their
personal effects. They also use the tech room as a work area, to do their charting, computer
work, and to exchange reports about the status of various patients as the therapists change shifts 10
(referred to as “giving report”). With the layout of the room, it appears the hospital was trying to
create both a break area (with a refrigerator and sink on one side) and a work area (with
computer terminals and a telephone on the other). However, with the lockers located in the work
area, and the ease of access between both rooms, in reality both sides of the tech room are used
as a work and break area. As human resources manager Ambrosini testified, the area is “like a 15
break room and a work area combined in one. There was really no differentiation between break
and work room.” (Tr. 1594) (Tr. 370–71, 544, 547, 1994)

Across the hallway from the lower half of the tech room is the bronchoscopy suit, where
bronchoscopies are performed. Cardiology employees also use this area to perform tests. Above 20
the bronchoscopy suite, and directly across the hall from the door leading into the upper half of
the tech room, is an office area that Marino shares with Dr. Hung, who is the medical director for
the department of pulmonary services. (Tr. 963, 1284–85, 1810; GC. 128)

C. Morale changes in the respiratory department 25

Most of the respiratory therapists who testified had worked at the hospital for a number
of years. And, by all accounts, the respiratory department used to be a great place to work;
employees in the department were friends, they enjoyed working together, and socialized with
each other after work. However things changed drastically in early 2016. The respiratory 30
department went from a place that was viewed as the “envy of the whole hospital” to one where
employees broke into factions, and were filing for restraining orders against each other. (Tr.
552) It is against this backdrop that the unfair labor practice allegations in the complaint unfold.
(Tr. 436, 498–99, 551–52, 568, 729, 757, 773, 1054, 1066, 2014–15)
35
D. The harassment of Jojesmar Pereyra

Jojesmar “Joje” Pereyra (“Pereyra”) has worked at St. Rose as a respiratory therapist
since 1999. At the time of the hearing, he had been on medical leave since August of 2017
because of the stress caused by various episodes of harassment against him. Pereyra, who is of 40
Filipino descent, testified that he had been having problems with a coworker named Kevin Seigal
(“Seigal”) for a number of years. According to Pereyra, whenever they worked together Seigal
would make monkey/gorilla sounds and call him names like “monkey,” “gorilla,” and “Jogilla.”
The problems came to a head in 2016. According to Pereyra, one day at work Seigal threw a
banana at him. Then, on May 12, 2016, Pereyra walked into the tech room and found pictures 45
posted on the walls with his head photo-shopped onto the bodies of gorillas and monkeys. The
JD(SF)–14–19
5
night shift employees who were present told Pereyra who had posted the pictures. Pereyra
thought to himself “are we at this again” and reported the pictures to management. (Tr. 399) (Tr.
28, 393–95, 398–99, 504; GC. 15; GC. 23)

The pictures in question were posted around the large open doorway separating the two 5
sides of the tech room. Four pictures were posted above the doorway, all of which either
referred to Pereyra or included a photo of his head superimposed into the scene. One picture was
the iconic depiction of King Kong atop the Empire State building swatting airplanes; Pereyra’s
head was superimposed onto King Kong’s body. In another photo, Pereyra’s head is on the body
of four gorillas. In another, a man holds a cell phone in one hand and a banana in the other, 10
Pereyra’s head is in the background on the body of an ape; the caption of the picture reads
“Recycle a cellphone, save a jogilla.” (Tr. 401–02, 408–09, 503–504; GC. 15)

Nine pictures were posted along the side of the doorframe. Of these, one includes an
image of Pereyra. That picture depicts five seemingly naked men, with tattoos, in a group hug; 15
Pereyra’s head is superimposed on one of the bodies. The remaining pictures depict other
respiratory department employees. In one, the head of RT Ahmad “Chris” Hamid (“Hamid”) is
superimposed on an image of someone riding a camel. Another picture shows the head of RT
Marco Garcia on a person with female breasts. In still another, the face of an unidentified
individual is superimposed on a shark with a caption that reads “Shalom to the GREATEST 20
STENCH SHARK;” the picture also includes a Star of David. Marino’s head is even
superimposed onto one of the pictures depicting four shirtless men. (Tr. 27, 402–03, 513, 578,
1261, 1989, 2522–23; GC. 15)

The pictures were posted on May 11 by Seigal and Hamid, who used the computers and 25
printer in the tech room to print out the images. Garcia witnessed them printing and posting the
pictures, which were posted when he left work on the evening of May 11. Respiratory therapist
Monique Johnson was also was working on May 11. She walked into the tech room between
6:00 and 6:30 p.m.; present were Hamid, Garcia, Gandhi, and an RT named Eric Thom. She saw
the images and told her colleagues that the pictures needed to be removed as Pereyra was 30
working the next day, and he had previously said that he did not want pictures of himself posted
in the department. Hamid replied that they were just having some fun; Thom and Garcia denied
any involvement with the photos. (Tr. 542–546, 577–79, 631–32)

The actual intentions of those posting the pictures are unclear, and it appears similar 35
types of photos had been posted in the past. What is clear is that none of the scenes depicted in
the pictures are flattering, and the pictures themselves would be more appropriately found in the
background scene of the movie Animal House rather than on the wall of an acute care hospital.5
Seigal was leaving his full-time position at St. Rose to work at another hospital, and human
resources manager Ambrosini testified that the day the pictures were posted was “like [Seigal’s] 40

5 Animal House is a 1978 feature film, which has become part of American pop culture, depicting the exploits of a
fictional college’s most “disreputable fraternity house” as its members “guzzle and spit beer, dump Fizzies in the
school swimming pool, pile up 1.2 grade-point averages on their permanent records and wreck the homecoming
parade.” Blakeman v. The Walt Disney Co., 613 F. Supp. 2d 288, 307, fn. 5 (E.D.N.Y. 2009) (internal quotations
omitted).
JD(SF)–14–19
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farewell to the hospital.”6 (Tr. 1633) Ambrosini also testified that this episode was the trigger
for the rapid downward spiral and dissention in the respiratory department. (Tr. 1581–82) (Tr.
573, 631, 1234, 1269, 1348–49)

E. Pereyra complains to Marino and human resources 5

Pereyra used his cell phone to take pictures of the images plastered on the tech room
wall, and emailed them to Marino.7 In the email he asked that Marino “put a stop to this,” and
threatened to go to human resources if he did not. Five minutes later, Marino emailed Seigal and
Hamid, with a copy to Gandhi and Pereyra, saying “I don’t know who put up the pictures, could 10
you please remove all pictures today;” he included in the email the photos Pereyra had sent him.8
After Marino sent the response, Pereyra went to see Marino in his office. Later that day, Gandhi
asked Seigal to remove the photographs. However, before Seigal did so, he took a picture of two
of the images (the one with Pereyra’s head on King Kong and the one where Pereyra’s head is on
the body of four apes) and posted them on his Instagram account with the caption “[s]ome people 15
have no sense of humor.” (GC. 17, p. 4) Respiratory therapist Marie Matuszak (“Matuszak”)
“liked” Seigal’s Instagram post. (Tr. 400, 404–05, 407, 515, 1235, 1344, 2047; GC. 15, 16, 17)

Pereyra heard about the Instagram post from one of his coworkers later that same day.
The human resources office was closed, and Marino had left, so Pereyra went home and wrote a 20
letter which he submitted to human resources the next day along with a bullying complaint form.
In the letter, Pereyra accused Seigal of harassing him for several months. He lays the
background of the name calling and photo-shopped pictures, and explains Seigal’s Instagram
posting. The letter also says that Seigal’s conduct is “NOT funny and it’s hurtful and
humiliating.” (GC. 17) (Tr. 405–07) 25

Pereyra did not hear anything about his complaint until a few weeks later when he met
with Ambrosini and Marino. Pereyra told them that the pictures came from the computer in the
tech room, and gave Ambrosini the names of three possible witnesses to the incident including
Monique Johnson; Ambrosini wrote their names down on the bullying form. Pereyra also 30
complained about the Instagram posting, but Ambrosini told him there was nothing they could
do because the posting was on Seigal’s personal Instagram page. Ambrosini instructed Pereyra
that he was not to work with Seigal or Hamid in the future, and said that Respondent would
investigate the incident. (Tr. 408–412, 1538; GC. 17)
35
Notwithstanding the fact that Pereyra had identified Seigal in his complaint to human
resources, identified three potential witnesses, and Marino emailed Seigal and Hamid telling
them to remove the pictures, Ambrosini testified that the investigation took some time, and was

6 Seigal was resigning his full time position at the hospital, and becoming a per-diem employee. However, he never
again worked another shift at the hospital. (Tr. 1348–49, 1633)
7 The General Counsel submitted into evidence paper copies of these, and other exhibits, containing pictures and
images. Because it is difficult to view some of the images on the paper exhibits, the parties were also provided with
electronic versions of these exhibits. (GC. 4, 5, 15, 17, 18, 19, 57, 58) The electronic versions of the exhibits are
contained in the NLRB’s case management system and are hereby made part of the official record.
8 There is no evidence anyone had told Marino who posted the pictures and, notwithstanding the wording of the
email, it was clear that Marino believed Seigal and Hamid were responsible. I credit Pereyra’s testimony that he had
not spoken with Marino before the email was sent asking that the pictures be removed. (Tr. 404)
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not leading anywhere initially because nobody had first-hand knowledge as to who posted the
pictures. Ambrosini never asked Hamid whether he was involved in the incident and could not
remember whether he had actually spoken to the potential witnesses Pereyra identified. He
further testified that he did not recall asking any of the RTs if they witnessed anyone making ape
sounds or gestures. Respondent claimed that the tech room computers were removed and 5
replaced in early June, and the computers were checked for evidence of the pictures in question,
but nothing was found. (Tr. 1349, 1541, 1550–51, 1631–37)

F. Respondent fills the vacant PFT tech and resource positions
10
In the hospital’s PFT lab, pulmonary function testing is performed on an outpatient basis.
Private physicians schedule their patients for tests to examine lung strength, capacity, volume,
and flow rates. (Tr. 67, 121, 774–75, 947, 949)

One respiratory therapist, referred to as the PFT lab tech, works in the PFT lab full time. 15
The PFT lab tech generally works an 8 hour shift, Monday through Friday, from 8:30 a.m. to
5:00 p.m. The RTs consider working in the PFT lab a plum job because the PFT lab tech has a
set schedule of patients, does not respond to emergency calls, does not work evenings, weekends,
or holidays, and has a small office. (Tr. 779, 1415–16)
20
Before he resigned, Seigal was the hospital’s PFT lab tech and Matuszak was his backup,
filling in when Seigal was out sick or on vacation. Matuszak had worked as Seigal’s backup for
a number of years, even before Marino became manager of the department. Matuszak also
worked as the department’s “resource” technician. The job duties of the resource technician
were instituted in 2013 to alleviate some of the workload for the RTs during the day shift. The 25
resource technician was responsible for auditing, ordering, stocking supplies, performing
bronchoscopies, six-minute walks, covering cesarean sections, high risk delivers, and working
generally as a floater. (Tr. 775, 1219 – 20, 1349–51, 1416, 1471, 2368; GC. 98, #632–634)

When Seigal resigned, it created an opening for a new permanent PFT lab tech. On May 30
12, 2016 the position was given to Matuszak, without the job opening being posted. This, in
turn, created an opening for a new backup PFT lab tech, and the need for someone to work as the
resource technician. Ultimately, a per-diem employee named Steve Ochoa (“Ochoa”) was
selected as the backup PFT lab tech and Hamid was chosen to perform the resource functions.
(Tr. 65, 1308–09, 1414–15, 1612; GC. 98, #613) 35

The selection of the new PFT lab tech, the backup tech, and the resource tech, caused
more friction and turmoil in the department, as many people were interested in working in these
jobs, and some thought Marino was playing favorites when he filled the openings. The timing
also corresponded with the complaints about the monkey pictures in the department. (Tr. 378–40
387, 777–80, 1219–1220, 1231–32, 1350–51, 1357, 564, 2018, 1356, 2368; GC. 52)

1. Changing the qualifications to work in the PFT lab

Before Matuszak was hired to replace Seigal as the PFT lab tech, Marino changed the 45
department’s policy regarding the qualifications needed to work in the PFT lab. While the State
JD(SF)–14–19
8
of California offered a specialized license in pulmonary function testing, but the hospital had
never required such a license to work in the PFT lab. Instead, any RT with training in pulmonary
function testing and procedure could work there. In fact, the PFT lab tech before Seigal was not
licensed by the state. She had tried many times to become licensed but was unsuccessful.
Notwithstanding, she continued working in that position. (Tr. 779–78, 946–47, 1354; GC. 6, p. 5
18–19)

With the openings in the PFT lab, Marino decided to change the hospital’s existing policy
and require RTs working in the PFT lab to hold a state license in pulmonary function testing; this
required passing a state administered board examination. The board exam is a fairly difficult 10
test, and in order to pass, appropriate time is needed to study for the test, including an optional
week-long prep class. Also, time is needed to take the exam itself, which is only offered at
certain times each month. The process was not something that could be completed in a week.
(Tr. 386, 777, 1309, 1353, 1357; GC. 6, p. 20–21; GC. 98, #631)
15
When Marino became manager, Seigal already had his state license. According to
Marino, this served as proof of Seigal’s competency in pulmonary function testing for
accreditation purposes. Thus Marino did not need to maintain documentation showing that
Seigal was otherwise competent to work in the PFT lab. However, Matuszak was not licensed.
About six to eight months before Seigal quit, Marino told Matuszak to obtain her state PFT 20
license. She did so, and when the opening for the full-time PFT tech position arose, she was the
only other full-time RT at the hospital with a state license as required by the hospital’s new
policy. (784, 927, 945, 1355–58, 1416–17)

2. Filling the backup PFT lab tech and resource positions 25

With Matuszak taking over the job of permanent PFT lab tech, Marino needed to fill both
the backup PFT tech job and the resource tech position, both of which were previously
performed by Matuszak. On Friday, May 6, 2016, Marino sent an email to the staff announcing
the job opening for a backup PFT lab tech. The email said that anyone bidding for the job 30
needed to be licensed by the state, and that a decision would be made on Friday, May 13. On
that date, Marino placed Ochoa into the position as the new backup PFT lab tech. Ochoa, who
was a per-diem employee, was the only other RT at the hospital with a state license. Then,
Marino placed Hamid, who was previously working the night shift, into the day-shift resource
job without posting or otherwise informing the department of the opening. (Tr. 783–84, 927, 35
945, 1351, 1358, 1219–1220, 1257–58, 1360, 1414, 1472, 2025; R. 25)

The new requirement of having a state license to work in the PFT lab upset many
therapists, as did the short notice Marino gave to fill the open backup PFT tech position. One
week did not allow them enough time to obtain a state license before the bidding closed. They 40
were also upset that Ochoa was chosen while other RTs with greater seniority could not even
apply for the position given the new licensing requirement and the short application period. (Tr.
34, 83, 378, 387, 779–81, 927 )

As for the resource position, some therapists were upset that Hamid was awarded the 45
resource job, which was a day-shift position, even though other night shift RTs with greater
JD(SF)–14–19
9
seniority wanted to work the day shift and were interested in doing the job. Many believed that
Marino’s decisions in filling all these positions smacked of favoritism, and were unfair. (Tr. 83,
386–87, 779–82, 1356–1358, 2368; GC. 36, p. 11)

3. Two therapists call Marino about the job openings 5

On May 19, 2016, Alexandria Aguilar and Frank Mardenzai called Marino, using a
speakerphone, to discuss the backup PFT lab tech position and the resource job.9 They wanted
to express their interest in both positions, and see if they could have more time to take the newly
required state board examination. On the call, both complained to Marino that they had more 10
seniority than either Hamid or Ochoa. They expressed interest in training in the PFT lab, and
suggested that the PFT backup and resource positions be rotated among therapists who were
interested in the jobs. According to Mardenzai, on the call Marino seemed receptive to the idea.
However, the day after the call Aguilar’s schedule was abruptly changed so that she no longer
worked with Mardenzai. Aguilar asked Marino and Gandhi if the schedule change was a 15
mistake, and Marino said it was not. He told Aguilar that her schedule was changed because of
all the complaints that were coming from her and Mardenzai; they were riling up the department,
and there was “more BS than work” going on. Aguilar protested and said that she was not the
only one complaining. Marino then told Aguilar that Matuszak was not going to train everyone
in the department, referring to the PFT lab, and that Aguilar should not listen to other people, 20
because they like to “plant seeds” and watch what unfolds. Regarding her working with
Mardenzai, Marino and Gandhi both said that they did not want the two of them working
together. After this conversation, Aguilar called Mardenzai and Monique Johnson and told them
what had occurred. (Tr. 378–82, 385–87, 393, 781–89; GC. 52)
25
4. Roop complains about Hamid’s appointment to the resource position

On about June 14, 2016, Roop went to see Marino to complain about Hamid; she was
upset he would no longer be working weekends as the resource technician. As the new PFT lab
tech, Matuszak would also not be working weekends. Roop had worked at the hospital as an RT 30
for about 17 years while Hamid had worked there for six years. Roop went to Marino’s office
and told him that senior therapists, such as her, followed the rules and worked weekends, while
other individuals were not required to work weekends. Marino responded by saying that some
positions did not require weekend work, and the department would continue operating that way.
Roop told Marino that she was just voicing her opinion, one that was shared by many senior 35
therapists, but ultimately he was the manager and it was his decision. According to Marino, the
conversation did not go well. Roop was not happy when she left his office, and she let him know
that she was displeased. (Tr. 21, 25–26, 779, 1415–16, 1989, 1360; GC. 97)

G. Employees march to human resources 40

On about June 17, 2016, eight respiratory therapists, Roop, Monique Johnson, Alexandria
Aguilar, Shilu Yogi, Christina Concepcion, Phil Duong, Amanpreet Kaur, and Grant Vea,
marched to the human resources office to support Pereyra’s situation and to put a stop to what
they believed was the racially offensive conduct in the department. They went to human 45

9 I credit Aguilar’s testimony regarding the date of the call. (Tr. 378)
JD(SF)–14–19
10
resources at 3:00 p.m. in the afternoon, and told the office secretary that they were there to see
Ambrosini. After some back and forth regarding whether the therapists had an appointment, the
secretary told them that Ambrosini had agreed to speak with only one of them. It was decided
that Johnson would meet with Ambrosini. When Johnson went into his office, Ambrosini
seemed upset.10 Johnson told Ambrosini that they were not trying to appear aggressive, but they 5
wanted to speak with him regarding the situation involving Pereyra. Ambrosini replied saying
that he could not discuss Pereyra’s situation at all, because the matter was confidential. Johnson
said that the employees wanted to discuss some of the things going on in the department,
including the pictures that were posted, but Ambrosini said he did not want to talk about those
matters. Johnson told him that they felt as if nobody was listening to them. And, even though 10
they keep reporting things, nothing happens. Ambrosini told Johnson that he did not want them
to feel that way. Nonetheless, the meeting ended. After the encounter, Ambrosini told Marino
about what had occurred. (Tr. 27–29, 388, 580–82, 679–81, 811–12, 1562–63)

H. Respondent’s breakthrough in the tech room picture investigation 15

The breakthrough Respondent was apparently looking for in their investigation into the
tech room pictures occurred when Marco Garcia, on his own accord, telephoned Ambrosini in
June 2016. Garcia actually called Ambrosini twice. The first time he left Ambrosini a message,
but never received a response. Garcia’s second call to Ambrosini was successful. Garcia told 20
Ambrosini that he saw Seigal and Hamid printing the pictures and posting them in the tech room.
Ambrosini told him okay. Notwithstanding, Respondent never questioned Hamid or Seigal as to
their involvement or about Seigal’s Instagram post. (Tr. 550, 573, 1542, 1629, 1632–33)

After hearing from Garcia, Ambrosini spoke with Marino and O’Keefe, along with 25
Mullany at the Union. On June 21, 2016, Hamid was given a final written warning and three day
suspension. Seigal was also issued a final written warning and three day suspension, but his is
dated June 28, 2016. No explanation was given as to why Seigal’s suspension is dated a week
after Hamid’s. While Ambrosini testified that he could not get Seigal to come into the hospital
for the discipline, Seigal’s signature appears on the disciplinary document just above 30
Ambrosini’s. (Tr. 1544, 1551; 1629, GC. 123; R. 13)

In June, after Respondent completed its investigation, Pereyra met with Ambrosini and
Marino. They told him that Seigal and Hamid were responsible for posting the photographs.
However, Respondent did not tell Pereyra whether Seigal or Hamid were disciplined because of 35
the incident. Pereyra tried asking, but Ambrosini told him that the hospital’s privacy policy
prevented disclosing that information. (Tr. 411–13, 537–38)

During this meeting, Ambrosini and Marino also told Pereyra that they did not find
anything on the tech room computers regarding the pictures. Notwithstanding, a few months 40
later Pereyra was using the tech room computers when he came upon the pictures in question,

10 I credit Johnson’s testimony as to what was said in the office with Ambrosini. (Tr .580–82)
JD(SF)–14–19
11
along with other files with names such as “King Jogilla,” “JOJE GORILLA,” “save a jogilla,”
“rise of the jogilla,” and “gorilla.” (Tr. 411–20, 2601; GC. 18, GC. 53).11

Most respiratory therapists did not know about the type of discipline was meted out to
Seigal and Hamid, as that information was not disseminated to the department. And, their 5
discipline did not put an end to Pereyra’s harassment. Instead, as discussed further below, the
harassment took an even more individual and uglier turn.

I. Roop files bullying complaint against Matuszak
10
On June 21, Roop had a confrontation with Matuszak in the tech room involving the
employee march to human resources that occurred a few days earlier. Matuszak’s birthday was
coming up, and Roop bought a present for her. Matuszak told Roop that she did not want her
gift, saying that a group of workers went to human resources to complain about Matuszak’s
position, and they were after her job. Roop told Matuszak that she was one of the people that 15
went to human resources, and that it had nothing to do with Matuszak’s job. Instead they went
there to support Pereyra. Matuszak said she knew that Roop complained to Marino about people
not working weekends, and asked Roop what her complaints to Marino achieved. Roop admitted
to speaking with Marino, said that nothing came of the complaint, but that she had the right to
voice her opinion. Matuszak then raised the topic of Ochoa, saying people in the department 20
were upset that he was working in the PFT lab. Roop replied saying that Ochoa was only a per-
diem employee, and there were many experienced therapists who were upset at the new
requirement of having a state license to work in the PFT lab. Roop told Matuszak to put herself
in the shoes of the senior therapists, and how it would feel to be bypassed and have the job given
to a per-diem employee. Matuszak said that, if it happened to her she would be upset, but she 25
would then go and obtain her state license. Roop said that people were just voicing their
opinions because many of the therapists had worked at the hospital a long time. Matuszak said
that she did not want to hear or know anything else, that she was just there to do her job, and
then stormed out of the room, leaving the birthday present behind. (Tr. 32–35)
30
About a week after the confrontation with Roop in the tech room, therapist Amanpreet
Kaur ran into Matuszak in the hallway at work. Matuszak started speaking about the problems in
the department and told Kaur that, if “Roop keeps this up . . . she’s going to go down.” (Tr. 809)
Roop was working that day and Kaur told Roop to keep her distance from Matuszak. Kaur went
into detail about their discussion, relaying that Matuszak said the department was never going to 35
be the same because of Roop, and that Roop’s “going to go down, peace out.” (Tr. 37) Roop
then complained to Marino, telling him what Kaur had relayed to her. Roop told Marino that the
comments sounded like a threat, she did not want to get into any trouble if something happened,
and she was going to lodge a complaint with human resources.12 During this conversation
Marino told Roop that he had just returned from human resources, and Ambrosini told him that 40
several people were at his office complaining about his job. Roop told Marino that she was one

11 It appears the pictures and related files were actually saved on the hospital’s network drive as GC. 18 and GC. 53
show Pereyra searching the hospital’s network drive when he found the files in question. Seigal appears listed as the
author of one of the files. (Tr. 418; GC. 18)
12 Transcript page 38, line 17 should read as follows: “Q: [by the General Counsel] Okay did he say anything else
about that? A: [by Roop] He said well [continuing with her answer] . . .”
JD(SF)–14–19
12
of the people that went to human resources, in reference to the march that occurred a few days
earlier, and that it had nothing to do with Marino’s job, but that they were there to support
Pereyra. (Tr. 35–39, 809–10)

On June 28, Roop filed a bullying complaint form with human resources regarding what 5
Matuszak told Kaur. In the complaint form Roop reported the incident as relayed to her by Kaur.
She also discussed her confrontation with Matuszak in the tech room, and Matuszak saying that
several people went to human resources to complain about her job. In the form, Roop further
wrote that she wanted to file the complaint on the record so Matuszak did not try to implicate
something that would affect Roop’s job. (GC. 3) 10

That same day, Ambrosini sent a copy of Roop’s complaint to Marino, suggesting that he
meet with Matuszak about the matter. Later that day Marino emailed Ambrosini and O’Keefe
saying that he had spoken with Matuszak, who claimed that what she actually told Kaur was that
Roop “has changed the dynamics of the department negatively for good and she is bringing us 15
down. All I want is peace.” In the email, Marino goes on to say that he believed something was
lost in the translation, as Roop did not hear the comments directly, but they were relayed to her
by Kaur. Marino did not believe the incident warranted a bullying complaint, saying there was
nothing sinister about the matter, and that it was “just blown way out of proportion by a
misguided individual,” referring to Roop. At the time he sent the email, he had not spoken with 20
Kaur about what occurred. (Tr. 1345–46, 1452, 1456; GC. 65)

A couple days later, Marino called Kaur into his office. He gave Kaur the hospital’s
policy covering gossiping, had her read it, and told Kaur to stop gossiping as it would not be
tolerated in the workplace. Marino believed that Kaur was gossiping when she told Roop about 25
Matuszak’s comments. After the meeting, Kaur told various other therapists, including Roop,
about her meeting with Marino and what he told her. (Tr. 808–11, 1456–58)

J. Therapists draft and deliver a “list of concerns” to the Union
30
On June 24, 2016, some of the RTs delivered a list of concerns to the Union regarding
issues in the respiratory department. Roop and Monique Johnson had the idea to create the list,
which was based upon discussions with coworkers. The list set forth six specific
complaints/concerns: (1) employees being told they would lose seniority if they moved from a
36 to 24 hour benefited position; (2) some benefited employees not working weekends; (3) per-35
diem employees not being scheduled for 9 work days during the 6 week work schedule; (4)
inquiring as to why the PFT position was never posted; (5) questioning why two new 36 hour
positions were posted, while the work-hours for some benefited employees were being cancelled;
(6) alleging misuse of the resource position, suggesting the resource position was not needed,
and the tasks could be performed by the RTs who did most of the work anyway; and (7) 40
complaining about the new requirement of needing a state license to work in the PFT lab. Along
with the list, the employee included various documents, emails, etc., to illustrate or expound
upon some of their complaints. (Tr. 59–72, 586–91; GC. 6, 24, 98)

Ambrosini had several discussions with the Union about recurring issues in the 45
department, and eventually received a copy of the list of concerns. He then met with Marino to
JD(SF)–14–19
13
discuss the complaints, and gave Marino a copy of the list. Marino, in turn, prepared a written
rebuttal. And, as discussed later, he called two staff meetings in August 2016 to address the
complaints. (Tr. 592, 1301, 1313, 1565–66; GC. 7, 98)

K. July 7, 2016 meeting to discuss professionalism 5

On July 7, 2016, a respiratory department staff meeting was called to discuss the issue of
professionalism within the department, and the hospital’s new bullying policy. St. Rose had
initiated a new policy for bullying and workplace safety, and all units within the hospital were
receiving training on the policy. Because the therapists were disgruntled, Respondent called a 10
mandatory meeting to discuss the policy. (Tr. 1334–35, 1443, 2266–67; GC. 69)

At the July 7 meeting Marino, Ambrosini, and O’Keefe were present on behalf of the
hospital. Ambrosini started the meeting by explaining the hospital’s standards of conduct and
the policy on bullying. He also discussed how postings were not allowed in the department, 15
unless they dealt specifically with the business of the respiratory department. O’Keefe then
spoke, saying that she was profoundly disappointed in the therapists, and that it had come to her
attention that many bullying complaint forms were being submitted to human resources. She
told the staff that there seemed to be a sixth-grade mentality regarding the infighting that was
occurring. She explained that everyone chooses where they want to work, and if they elected to 20
work at St. Rose the expectation was that they will behave professionally at work. As O’Keefe
was speaking, an RT named Brian Smith (“Smith”) was making gestures, noises, and shaking his
head as if to say O’Keefe was on her soapbox once again. (Tr. 2269–70, 2378)

L. Pereyra and Roop start getting anonymous text messages 25

On July 8, the day after the staff meeting on bullying and professionalism, both Roop and
Pereyra started receiving text messages from phone numbers they did not recognize. The phone
numbers were “spoofed;” they were fake numbers used to mask the identity of the senders.13
30
1. Pereyra’s text messages

The first message Pereyra received contained a picture of a baby crying with gorillas
dancing in the background. Pereyra replied to the unknown phone number with an expletive,
and telling the sender to “man up.” Over the next year, Pereyra continued receiving the same 35
types of gorilla/monkey themed, and otherwise offensive, text messages periodically from
various spoofed phone numbers. In all, about 28 different spoofed text messages to Pereyra were
introduced into evidence, virtually all of which either contained pictures of, or referenced,
monkeys, gorillas, “monkey business,” or bananas; one text just contained the word “Jogilla”
designed into a logo. (Tr. 431; GC. 19) 40

In July 2016, after receiving the first anonymous text message, Pereyra complained to
Marino who said he would follow-up with human resources. Not hearing back, and after

13 Technology exists allowing people to make calls and send text messages from fake telephone numbers, making it
virtually impossible to trace the origin and identity of the caller/sender. See Gabriella Sneeringer, Contact That Can
Kill: Orders of Protection, Caller Id Spoofing and Domestic Violence, 90 CHI.-KENT L. REV. 1157, 1169 (2015).
JD(SF)–14–19
14
receiving more text messages, Pereyra spoke with Marino again a month later. Pereyra told
Marino that he was still getting anonymous text massages, and he wanted it to stop. Marino
asked if Pereyra had proof of who was sending the messages. Pereyra said that he suspected
Seigal, Matuszak, Hamid, and Smith of sending the texts. (Tr. 437–441)
5
2. Roop’s text messages

Roop also received her first anonymous text message on July 8. It contained an image of
someone dressed as a witch. The next message she received was on July 20, containing an
internet meme (“meme”) of Star Trek’s Captain Pickard with the words “WHY IN THE FUCK 10
ARE YOU SUCH A CUNT.”14 (GC. 4) She received two more anonymous texts on July 29,
which were similarly pejorative. Roop forwarded the messages to Marino saying “this is getting
to a point o[f] harassment [a]nd we talk about being professional.” Roop received more text
messages in early August, and eventually spoke with Marino about the anonymous text messages
around August 10. She met with Marino in his office and showed him the text messages she was 15
receiving. Marino tried calling one of the numbers, but it went to a generic voicemail. He told
her that the phone numbers on the messages were not connected with anyone so it would be hard
to prove who was sending the texts. He also said that hospital could not do anything without
proof, and that he could not investigate. The conversation ended with Roop saying that she was
going to talk to human resources about the matter. (Tr. 47–48, 52–58; GC. 4, 5) 20

In all, Roop received approximately 14 spoofed text messages between July 2016 and
May 2017. All contained memes or images that were either disparaging, pejorative, or
derogatory. (GC. 4) Trying to unmask the identity of the sender, Roop replied to two of the text
messages with her own memes—both of which contained grammatical errors. At some point 25
Matuszak posted these memes on her Instagram account with a comment “How a hypocrite with
poor grammar threatens someone,” in an apparent reference to Roop. Matuszak’s Instagram
home page also included a meme with the phrase “MONKEYS ARE ORNERY AND HARD TO
WORK WITH.” (Tr. 52; GC. 4)
30
3. Human resources learns about the text messages

Pereyra brought some of his text messages to Ambrosini, who believed they were racially
discriminatory, inappropriate, and hurtful. Pereyra also filed a written complaint with human
resources on November 30, 2016. Ambrosini ran a report of the telephone numbers on file for 35
the RTs, but none of them matched with the text message phone numbers. Ambrosini asked
whether Pereyra had filed a police report, and Pereyra said that he had shared everything with the
police. Ambrosini discussed the matter with Marino and the Union, telling them that Pereyra
thought the texts were potentially being sent by current employees in the department, and by
Seigal. Regarding Roop’s messages, Ambrosini was aware that Roop was receiving similar 40
types of text messages and suggested that she call the police and change her phone number.
Ambrosini never interviewed any of the therapists in the department about who may have sent
the text messages. (Tr. 1554–58, 1646–47; GC. 20)

14 Internet memes are usually photos, images, quotes, or sometimes text superimposed over images, which pass from
person to person over the internet. See e.g. Terrica Carrington, Note, Grumpy Cat or Copy Cat? Memetic Marketing
in the Digital Age, 7 GEO. MASON J. INT’L COM. L. 139, 142 (2016).
JD(SF)–14–19
15

M. Marino proposes disciplining Roop in July 2016

In July 2016 Marino proposed issuing Roop a written verbal discipline over two alleged
incidents where Marino believed she was involved in unprofessional verbal altercations with 5
others. Marino completed a disciplinary form and emailed it to Ambrosini on July 26, intending
to issue it to Roop that afternoon. In the form, Marino had included a paragraph stating that any
future similar occurrences could lead to termination. Ambrosini replied, asking Marino what
Roop had done to warrant a discipline, and further inquiring as to whether Marino had
interviewed Roop for her side of the story before deciding to discipline her. He also told Marino 10
to remove the paragraph about possible termination, as it was heavy handed for a verbal warning.
Marino replied saying that Roop allegedly had words with a nurse over a doctor’s order and also
disagreed with someone in the department regarding the daily assignment sheet. Even though he
had proposed disciplining Roop, Marino told Ambrosini that he had not spoken to her about the
allegations. The discipline was never issued. (Tr. 1334–37, 1426–27, 1571–74; GC. 69, 72) 15

N. August staff meetings called to address the “list of concerns”

Two meetings were held in 2016, one on August 15 and one on August 17, to address the
June 26 list of concerns. While it appears the topics discussed in both meetings were identical, 20
the majority of the testimony at trial involved what was said during the August 17 meeting. This
meeting occurred in the boardroom, near the cafeteria. About 15 RTs attended; a meeting
agenda was distributed to employees as they signed-in. The meeting started with Marino telling
employees that the Union forwarded the list of concerns to Ambrosini, who gave them to
Marino, and the purpose of the meeting was to discuss the matter. He said that the meeting was 25
the first and last time that he was going to address the list of concerns. (Tr. 74–76, 593, 1314)

Although it was not on the list, the first issue Marino discussed was the anonymous text
messages being sent to people in the department. Pereyra spoke up, saying that the text
messages needed to stop, as it was affecting both him and his family. Roop also said that she 30
was receiving anonymous text messages. Marino told the staff that, if the texts were coming
from people within the department, he wanted them to stop, that it was a form of harassment
which would not be tolerated, and people would be putting their jobs at risk by engaging in such
conduct. (Tr. 76, 1228–29, 1314–15; GC. 7)
35
Marino then addressed the list of concerns, going issue by issue and explaining to the
therapists the points set out in his written rebuttal. The PFT lab tech position was a significant
part of the discussion during the meeting. Eric Thom addressed the matter directly with Marino,
complaining about the newly instituted state licensing requirement, as it conflicted with past
practice. Marino said that he did not need to consult with the Union or tell employees when he 40
was going to make some changes in the department. And, he said that he did not need to go
through human resources to fill the position, as there was no differential in pay. Thom raised the
issue of seniority, complaining that Ochoa, as a per diem and relatively new hire, was given the
position. Thom also asked whether he would be allowed to train in the PFT lab if he received his
state license. Marino replied saying he would think about it, but that he was not going to remove 45
Ochoa to put Thom in the position. Thom responded by saying that it seemed like favoritism on
JD(SF)–14–19
16
Marino’s part. At one point, a frustrated Marino raised his voice and told Thom to get to the
“damn point.” It was clear to Thom that Marino did not want to hear what he had to say, so
Thom told Marino not to swear at him. (Tr. 77–83, 595, 926–28, 944–45, 1231–32, 1311–13)

In the list of concerns, employees had complained that day shift therapists were 5
performing the majority of the job tasks that were supposed to be performed by the resource
technician, without getting any credit for the work. They wanted the resource job duties to be
incorporated into their daily tasks, which could alleviate the need to cancel hours for some of the
benefited employees. At the meeting Marino announced that the resource job duties would be
distributed among all the day shift therapists, obviating the need for a resource tech. Thus 10
Hamid only worked in the resource tech position for about three months. (Tr. 66, 84–85, 2015;
GC. 6, p. 12, GC. 98, #635)

O. Matuszak, Hamid, and Smith file a written complaint against Roop
15
On October 4, 2016, Matuszak, Smith, and Hamid drafted a three page, single space,
letter to Marino claiming that Roop had subjected them to “unprofessional hostility within the
workplace.” In the letter each person listed his/her own specific alleged instances of hostility
and ended the document with a group summary. (GC. 25)
20
Matuszak complained that, after she was awarded the PFT lab tech position, and Hamid
the resource job, Roop became unprofessional and rude towards her. Matuszak alleged Roop
stopped speaking to her, and started spreading gossip that Matuszak would not train anyone else
in the PFT lab. Matuszak accused Kaur of lying to Roop about their discussion, and of
informing Roop about Matuszak’s movements within the department. Matuszak accused Roop 25
of walking out of the break room and saying things like “I gotta get outa here,” “nasty,” and “Oh
God” whenever she was present. Matuszak also alleged that Roop abused her power as team-
lead by favoring her friends regarding assignments. Among her complaints, Matuszak alleged
that a coworker had told her that Roop was checking the PFT lab schedule “behind her back” to
see how many patients cancelled their appointments, and that Roop was overly interested in what 30
Matuszak was doing at all times. Matuszak ended her complaint noting that the she had
attached, and highlighted, policies that Roop had violated and commented to Marino that Roop’s
“display of disrespect to your position must weigh on you.” (GC. 25)

Hamid complained that Roop badmouthed people when they were not in the room, 35
constantly gave him a “bad attitude,” and made “snarky remarks” towards him and in his general
direction. He further complained that Roop was rude to people, and tried to disparage other
therapists to make herself look good. Hamid also claimed that Roop was manipulating the
assignment sheets to keep her friends from being temporarily laid off, while doing the opposite
for people she did not like. (GC. 25) 40

As for Smith, he complained of having to witness Roop’s “antics” like sighing, talking
under her breath, and using profanities. He also accused Roop of manipulating the assignment
sheets, and asked Marino to “put an end to her antics of thinking she owns the” department, and
to consider removing her as team lead. Smith stated that he enjoyed working for Marino, not 45
JD(SF)–14–19
17
only as a manager but also as a friend, but was willing to “resign if this ‘monkey business’”
continued. (GC. 25)

The summary claimed that Roop was “well known” for dismissively waiving her hands
and saying “Fuck that! aloud for all to see.” And, all three noted that while they did not work 5
with Roop “moment to moment” they believed that Marino knew their accusations were accurate
and were “hoping for a remedy to this unpleasantness.” (GC. 25)

Marino testified that Matuszak, Hamid, and Smith presented the letter to him around
October 10, and he discussed it with them. He then contacted Ambrosini. According to 10
Ambrosini, at the time of the letter two distinct camps had formed within the department. One
camp was aligned with Matuszak and another aligned with Roop. Those in Matuszak’s camp
included Hamid and Smith, while the majority of the other therapists had aligned themselves
with Roop. Eventually a meeting was set up with Roop a month later to discuss the letter. (Tr.
1331, 1336, 1579–80; GC. 95) 15

P. Marino blocks computer system access to patient scheduling

After receiving the letter from Matuszak, Hamid, and Smith, sometime during the first
week of November Marino blocked the computer access to patient scheduling, including the PFT 20
lab, for team leads. One day in early November Roop tried logging into the scheduling system
but could not do so. Roop called IT, and was told that Marino had blocked her access. Two
other leads also told Roop that their access was blocked. She spoke with Marino and asked him
why he had blocked their access to the system. Marino said that people were going into the
computer system and looking at the different patient schedules and he did not want them to do 25
so. Roop protested, asking how the team leads would know when to show up for prescheduled
C-sections. Marino said that the hospital would print out the schedule and put it on the bulletin
board. According to Marino, he blocked everyone’s access to the patient scheduling system
because he believed that Roop was accessing patient information regarding patients being
scheduled in the PFT lab. (Tr. 87–91, 875–78) 30

Q. November 10, 2016 Meeting with Roop

On November 10, 2016, Ambrosini and Marino met with Roop; Union representative
Mullany was also present. 15 The meeting started with Ambrosini saying that he had received a 35
letter from Matuszak, Hamid, and Smith, setting forth some concerns. Roop was never shown
the letter. (Tr. 93–94; 1363–65)

Marino told Roop that she was unprofessional, curses, looks down on people, and does
not do her job. However, other than discussing an alleged incident with a nurse in July, Marino 40

15 Marino testified that this meeting occurred on November 10, 2016. (Tr. 1497) Some of his notes confirm this
date, while other documents refer to the meeting as having occurred on November 14. (GC. 74, 91, 95) Roop
testified the meeting occurred on November 14. However, she also testified that Marino called her on a Wednesday
to attend the meeting which occurred the next day. (Tr. 93) November 10, 2016 was a Thursday, while November
14 was a Monday. Thus, I believe the meeting occurred on Thursday, November 10, 2016, and will refer to it as
having occurred on this date throughout the decision.
JD(SF)–14–19
18
did not give Roop any specific examples backing up his allegations.16 Roop asked Ambrosini
whether he had spoken with anyone who actually worked with her, and whether he had any
problems with her work; Ambrosini said no. Roop also asked whether she had any write-ups
with respect to her work, and Ambrosini said there were none. Roop denied cursing at people, or
looking down on anyone. She said her job as a team leader required her to intervene in critical 5
situations, but that she did not step on people’s toes. Marino said that they were going to remove
Roop from the position as team lead. Mullany protested saying that Roop was a 17 year
employee, had nothing in her file, and that it was extreme to remove her from being a team lead
based on a letter somebody wrote.17 Roop then brought up the issue of her text messages, saying
that she had never received these types of texts before, and that it was not a coincidence she was 10
receiving them now. Ambrosini said they could not do anything about the text messages, as they
were not linked to anyone’s phone number. He told Roop they were going to discuss the issues
raised in the letter and get back to her. (Tr. 94–97, 1365; GC. 95)

R. Shop steward election in the respiratory department 15

In November 2016, Mullany asked Pereyra to conduct an election for an additional shop
steward. Pereyra and Matuszak were already designated as stewards, but the Union wanted to
add an additional person to become part of its bargaining team. On November 17, Pereyra sent
an email to the members of the department informing them of the vote. There were two 20
candidates for shop steward, Roop and Smith. Pereyra’s email asked that all votes be submitted
to him by November 24. (Tr. 106, 443, 495; GC. 21)

On November 23, at 4:26 p.m., Pereyra received an anonymous text. This one read
“VOTE MONKEY;” an ape’s face appeared instead of the “o” in the word “VOTE.” (GC. 20; 25
GC. 19, p. 12) That same evening, at 6:55 p.m., Smith sent Pereyra a text message asking for
another update as to the vote tally. Pereyra replied saying that Smith had received 9 votes, while
Roop had 20 votes. Smith then replied “9 people like me?” (GC. 55)

On December 1, Pereyra emailed the entire respiratory department, including Marino, 30
informing them that Roop won the election with 20 votes, while Smith received 9 votes. Roop’s
position as Union steward lasted through March 2017 when the Union placed a “hold” on all the
shop steward positions, pending open forum meetings to address the issues taking place in the
respiratory department. (Tr. 107, 447–51, 520 – 23; GC. 22, 54)
35
S. Roop’s November 21 discipline

Roop received a written verbal warning on November 21, 2016. The warning says that
she violated the hospital’s standards of conduct for “Bullying, Discrimination, Harassment and

16 The alleged nurse incident was one of reasons used by Marino to propose disciplining Roop in July 2016. But
after emailing Ambrosini, no discipline was issued.
17 What appears to be an agenda for the meeting was introduced into evidence. (GC. 95) However, other than
discussing the nurse incident, and telling Roop that she was she curses, is unprofessional, does not do her job, and
looks down at people, there is no evidence that any of the other items set forth in the agenda were discussed with
Roop. Also, the document lists Justin Kmetz participating as Roop’s Union steward; both Roop and Marino testified
that Mullany was actually present for the Union. (Tr. 94, 1364) Thus I believe the document is simply a draft or
proposed agenda prepared in advance, and does not indicate what was actually discussed during the meeting.
JD(SF)–14–19
19
Retaliation Provisions and Complaint Procedure,” and she was being disciplined for
“unprofessional behavior in the work place.” It also warned Roop to refrain from any further
incidents, including but not limited to, “language, gestures, incitement, behavior, gossip and/or
hearsay,” and says that “any further incidences will result in the progression of the disciplinary
process.” (GC. 8) 5

Marino emailed a draft of the discipline to Ambrosini the morning of November 21,
asking him to review the discipline.18 The document states that it was being issued by both
Marino and Ambrosini. According to Ambrosini, the discipline was issued to Roop because
there was an unpleasant interaction between Roop and Matuszak. The interaction was 10
unprofessional, but not so severe that it warranted anything greater than a verbal warning. When
asked at trial what conduct Roop engaged in that would have constituted bullying or harassment,
Ambrosini could not answer definitively, saying it would have depended on Roop’s interaction
with Matuszak at the time and the wording of the specific policies. He admitted that,
notwithstanding the wording of the discipline, her conduct did not constitute discrimination or 15
retaliation, nor was it afoul of the “complaint procedure” process. (Tr. 1588–89, 1651, 1667–68;
GC. 8, 73)

According to Marino, he made the decision to discipline Roop based on her interactions
with Matuszak, Hamid, and Smith as set forth in their October 4 letter. (Tr. 1362) Marino 20
testified that, after he spoke with Roop on November 10, no other investigation of the incident
occurred. (Tr. 1362, 1365)

As for the disciplinary meeting itself, Roop was called into Marino’s office on November
21; only the two of them were present. Marino told Roop that the hospital had come to a 25
conclusion based on their earlier meeting and had decided to issue Roop a written verbal
warning, and that the discipline was based on his findings. According to Marino’s notes, Roop
was disciplined because of her unprofessional behavior towards coworkers, which included harsh
language, rolling her eyes, and verbally belittling other employees. However, Marino did not
give Roop any examples of when she behaved unprofessionally or any other specifics regarding 30
her alleged improper behavior. The only thing he told her was that she rolled her eyes, and she
could not do that. Marino thought that Roop had leaked information from the November 10
meeting to other employees in the department, so during this meeting he asked Roop if she had
done so. Roop replied that she had not relayed any information about that meeting to anyone.
(Tr. 100–05, 1365–66, 1458–59; GC. 91, GC. 100) 35

Marino gave Roop the document and said he would forward it to human resources. Roop
signed the document; it was her first discipline in 17 years at the hospital. (Tr. 104, 154)

T. A group of therapists file bullying complaints with HR 40

After receiving her November 21 discipline, Roop called Backus complaining that “they
won’t leave me alone,” and specifically mentioned Matuszak. Backus told Roop there were

18 Marino included in the draft discipline a phrase stating that the Respondent reserved the right to proceed directly
to termination if any future incidents occur. However, after Ambrosini received the proposed draft, that paragraph
was removed from the actual discipline that was issued. (Tr. 1652–53; GC. 73)
JD(SF)–14–19
20
things they could do, and places to help them, and said she would speak with Marino and
Gandhi. Backus found Marino and Gandhi outside the hospital smoking. She told them she was
concerned about the health of the department, that people are saying they are being bullied,
intimidated, and harassed, and workers do not believe they can come to either Marino or Gandhi
who they think are part of the problem. (Tr. 240–42) 5

Gandhi told Backus that she was only getting information from one source. Backus
replied that she works both shifts, day and night, and has heard this from not just one source, but
from other people as well. Backus had, in fact, heard these complaints from more than one
person. Marino told Backus that he felt it was going to get better, but that it was going to get 10
worse before getting better. Backus told Marino that he and Roop had been friends for a long
time, and they needed to talk because what was occurring was ridiculous. She also told Marino
and Gandhi that her next step was to go to human resources. Both Marino and Gandhi said that
they understood. (Tr. 242–43)
15
After this discussion, Backus obtained a bunch of bullying complaint forms. Both she
and Roop filled out the forms, and Backus also distributed them to various other therapists telling
them to submit the forms if they had been bullied, or if they had witnessed such conduct. Frank
Mardenzai and Philip Duong completed forms and gave them to Backus to submit to human
resources. On November 28, Backus took the completed forms, submitted them as a group to 20
human resources, and had each one date and time stamped. Whenever a bullying complaint is
filed with human resources by someone Marino supervises, he is contacted by human resources
and asked about the complaint. Notwithstanding, Roop, Backus, Mardenzai, and Duong, were
never contacted about their complaint forms. (Tr. 244–46, 790–91, 1401–02, 1611–17; GC. 36)
25
As for the individual grievances listed in their bullying complaint forms, Backus
complained that Matuszak was using human resources to harass Roop, and referred specifically
to the letter she wrote with Smith and Hamid. She further complained that management had
been discriminating against workers. Specifically, she wrote that several people of color had
filed complaints which were not acted upon, but when Matuszak and Smith complained, actions 30
were taken against employees who were of different ethnicities. She also asserted that telling
employees they cannot discuss their problems violates their freedom of speech. (GC. 36; Tr.
246–47)

Roop attached a supplemental letter to her form, and complained about being called into 35
HR based upon the letter written by Matuszak, Hamid, and Smith. She went on to list various
grievances against Matuszak, Hamid, Smith, and Marino. Roop said she believed they were
retaliating against her for going to human resources, with her coworkers, to support Pereyra and
that Matuszak, Marino, and Gandhi thought they went to human resources to complain about
their job performance. Roop stated that there were instances of favoritism in the department, and 40
when she would raise the issue she faced retaliation. In her letter Roop also wrote that anyone
who spoke up became the victim of retaliation. Roop, who is of Indian ethnicity and is originally
from the Fiji Islands, also stated her belief that she was being mistreated because of her race and
color, along with her speaking up. (Tr. 28; GC. 9, 10, 36)
45
JD(SF)–14–19
21
In his complaint form Mardenzai protested the fact that, when the resource tech position
became available, it was not filled by seniority and instead went to someone less-senior. And,
when a complaint was made, they were told that they were inciting the department into an
uproar. (GC. 36)
5
Finally, in his bullying complaint form, Duong wrote that he was submitting the form in
support of Roop who he understood was getting disturbing text messages and was being harassed
by the management team. Duong further wrote that he heard throughout the department that
Roop was written up for absurd reasons, and that he and his coworkers believed it was in
retaliation for Roop becoming a Union representative and defending the department from all the 10
favoritism that existed. As a resolution, Duong stated that they must find out who was sending
the terrible text messages and stop the bulling before it got out of hand and became physical.
(GC. 36)

Ambrosini acknowledged receiving the complaints, and said that they were the driving 15
force behind the eventual meeting in December 2016 with CEO Dhuper. According to
Ambrosini, after receiving the forms “it was like an all hands on deck type of thing where we all
decided to meet.” (Tr. 1608–10, 1944–45)

U. Leak investigation 20

On November 21, 2016, Marino emailed Ambrosini saying it had come to his attention
that information discussed with Roop in their November 10 meeting, specifically the names of
the three employees who had authored the complaint letter, had been leaked to others in the
department. According to Marino, the information was to have remained confidential, and he 25
speculated as to whether other information had also been leaked as well. (Tr. 1329–30; GC. 74)
It was Matuszak who told Marino “the information leaked out.” (GC. 91)

Ambrosini replied to Marino by asking, among other things, whether he was certain Roop
was the one who leaked the information. And, if so, what Marino wanted to do as potential 30
discipline. Marino replied saying that he had not verified the leak had come from Roop, but if it
did he thought that a suspension would be warranted. Ambrosini responded telling Marino to be
certain, as he wanted to be careful that it was not just Matuszak, Hamid, and Smith trying to get
Roop into more trouble. At the same time the pair were exchanging emails, Matuszak sent
Ambrosini an email, with a copy to Marino, complaining about Roop generally and inferring that 35
Roop was responsible for the leak. (Tr. 1645–46; GC. 74, 87)

Marino then proceeded to launch an investigation into the alleged leak, questioning
several employees, and taking notes as his inquiry progressed. He spoke with Matuszak and
asked how she knew that others in the department were aware Matuszak, Smith, and Hamid 40
drafted the letter about Roop. Matuszak told him that, during a conversation with Rose Rogers,
Rogers told her that Roop believed “you guys are after her,” and referred to “the letter you
wrote.” (GC. 91) Matuszak gave Marino the names of others who might have further
information, and Marino continued with his investigation speaking with multiple employees.
(Tr. 1461–62; GC. 91) 45

JD(SF)–14–19
22
Marino spoke with Fawad Meskinyar about the leak on November 23, 2016. According
to Marino’s notes, he told Marino that he did not know who leaked the information, but had
heard talk about it in the department. After the Thanksgiving holidays, on November 28, Marino
again spoke with Matuszak, who told him that Roop had been handing out bullying complaint
forms to the staff; Matuszak learned this from My-Quyen Giang . That same day, Marino asked 5
Giang if she had seen anyone handing out bullying forms. Giang told him that she saw Backus
give a bullying form to Grant Vea while they were working at another hospital, but did not know
if the form had been completed.19 She also told Marino that Backus asked Vea who he voted for
in the shop steward election. Finally, she said that she did not know anything about the meeting
in human resources. (Tr. 1459–60; GC. 91) 10

On November 28, Marino also spoke with respiratory therapist Rose Rogers. Marino
called Rogers into his office and with only the two of them present said that what they were
going to discuss was strictly confidential and that he needed to know if Roop had discussed
anything with her regarding a meeting Roop had with human resources. Rogers told Marino that 15
she was not going to answer the question. Rogers further said that she was friends with everyone
in the department, Marino knew where she stood, and she was not answering the question.
Marino did not say anything in response, and the conversation ended. A day or two later Rogers
went back into Marino’s office and told him that she was disappointed he would attempt to put
her in the middle of a situation, and it made her feel uncomfortable. She asked Marino why he 20
would do that, and Marino told Rogers that her name came up. Rogers told Marino that what he
did was wrong, as he is in a position of authority as the manager. Marino apologized to Rogers
who then walked out. (Tr. 729–32, 1459; GC. 91)

On November 29, Marino continued his investigation by speaking with Grant Vea. He 25
asked whether Vea knew anything about a meeting in human resources earlier in the month, and
about bullying forms being handed out. Vea denied knowing anything about either subject.
According to his notes, Marino did not believe Vea’s answer regarding the bullying forms.
Marino then told Vea that he gave a form to Backus, who had asked for one, and now the forms
were being circulated. Marino asked Vea whether he had anything to tell him about being 30
bullied, that if he filled out a bullying complaint form it would have to be specific as to the
mistreatment he experienced, and that he could come to Marino who would take care of the
situation. However, Vea told Marino there was nothing to say, and that he was good with
everyone in the department. On November 29, Marino also asked Eric Thom about the leak,
however Thom told him he did not hear anything about it. (Tr. 1460–63; GC. 91) 35

Finally, on November 30, Marino asked Amanpreet Kaur about the alleged leak. Kaur
was working that day and Marino called her into his office; only the two of them were present.
Marino asked Kaur whether she knew anything about a confidential meeting that took place in
human resources. Kaur assumed Marino was talking about the meeting with Roop, as Roop had 40
told her that she had been called to human resources. Kaur denied knowing anything about it.
According to his notes, Marino did not believe Kaur, thought she knew more than she was
saying, but was trying to play dumb. After the meeting ended, Kaur told her coworkers about the
meeting. (Tr. 817–18, 1459–60; GC. 91)
45

19 I do not credit Marino’s subsequent testimony that Giang “offered” the information to him. (Tr. 1460–61)
JD(SF)–14–19
23
Notwithstanding Marino’s eagerness to punish Roop for the alleged leak, Ambrosini
recommended against it, and no discipline was ultimately issued. According to Ambrosini, while
the preferred position of management was that matters discussed during investigatory interviews
remain confidential, employees were free to share that information with whoever they wanted so
long as it did not compromise the investigation. In this instance there were no grounds to 5
discipline anyone. (Tr. 1591; GC. 88)

V. Respondent meets with Matuszak and Roop

1. Meeting with Matuszak 10

On about December 4, 2016, O’Keefe, Ambrosini, and Marino met with Matuszak in the
human resources department and listened to her complain about Roop. According to O’Keefe,
who ran the meeting, Matuszak claimed that Roop demeaned, ignored, and disrespected her.
Matuszak further complained that whenever she walked into the department, one group had 15
aligned against her and would disrespect her. O’Keefe recommended that Matuszak own her
part of the conflict, but Matuszak claimed that she did not know what had happened to create the
problem, and speculated that a decision was made that Roop did not agree with, and it spiraled
from there. At O’Keefe’s recommendation, Matuszak agreed to speak with Roop one-on-one.
O’Keefe ended the meeting saying that she would try and facilitate a meeting with Roop. (Tr. 20
2226–27, 2277–78, 2345–46)

2. December 5, 2016 meeting with Roop

On December 5, Marino told Roop that she needed to attend a meeting in human 25
resources later that day. Roop called Justin Kmetz, a Union steward who works in the radiology
department, and asked him to attend the meeting as she did not feel comfortable attending the
meeting alone. (Tr. 108–09; 688–89)

The meeting took place sometime after 2:00 p.m. in the boardroom near the human 30
resources office. Earlier that morning, Marino emailed Ambrosini a document he wanted him to
have for the meeting. The document concerned Roop’s alleged leaking of information that was
contained in Backus’s complaint to human resources. Marino outlined the hospital’s standards
of conduct that he believed Roop had violated, including “abusive treatment, . . . discourteous
conduct or inappropriate language directed towards” coworkers, and “incompatibility or inability 35
to work in harmony” with others. Marino also set forth a list of possible disciplinary actions,
numbering them from one to five, for Ambrosini to consider: (1) resignation with the
understanding the hospital will not report the situation to the Respiratory Care Board; (2)
termination and the hospital will report the situation to the Respiratory Care Board; (3) a final
written warning, to stay in her file for 24 months, with termination for any further inappropriate 40
behavior; (4) removing Roop from the position of team leader; and (5) changing the schedule to
accommodate replacing the team lead. (Tr. 109, GC. 79)

Present for the meeting was Ambrosini, Marino, O’Keefe, Roop, and Kmetz. Ambrosini
started the meeting saying that there was talk that Roop had breached confidentiality regarding a 45
previous meeting, and they were there to investigate the claim. Referring to the November 10
JD(SF)–14–19
24
meeting, Ambrosini said that word has gotten out that Roop had broken confidentiality by
talking about the meeting with others, and he asked Roop if she did so. Roop denied the
allegation, and implied that it must have been Marino who had been talking about it. Marino
denied the claim and said it was very coincidental other people were hearing about the things that
were discussed in that meeting. Ambrosini also said that it was a coincidence they had received 5
bullying forms from a bunch of people in the department complaining about bullying and
harassment, and that the statements seemed to defend Roop. Ambrosini asked Roop what she
had done to get people to submit these complaints. Roop said that she did not have the power to
control what other people write or say, and did not make anyone submit the complaints. (Tr.
109–10, 689–91) 10

At some point during the meeting, O’Keefe said that one of the purposes of the meeting
was to take away Roop’s position as team leader, thereby putting her back as a regular
therapist.20 Roop protested, complaining that Smith, who worked as a night-shift team lead, had
multiple complaints against him and was still working as a lead, while she had a clean record and 15
the only time she called in sick was the previous week because she was being picked on. Roop
further complained that Smith was disrespectful to her whenever she gave report to him during
shift changes, and that he crumpled up her written reports and threw them away. Roop said that
she was under a lot of pressure, had been receiving anonymous text messages, and tried to avoid
people that were causing trouble in the department. O’Keefe told Roop that she needed to speak 20
with everyone in the department, and that she wanted Roop to sit down with Ambrosini and
Matuszak and sort things out. Roop agreed to do so. Ambrosini and O’Keefe said that they were
going to talk about her team lead status, and get back to her. However, O’Keefe said that if
things did not start changing, and if she kept hearing more talk about bullying or harassment,
“I’m going to start firing all of you.” They then agreed to meet back in a week for the joint 25
meeting with Roop and Matuszak. After the meeting, Roop filed three complaint forms with the
EEOC. (Tr. 111–114, 204–05, 691–92, 2283; GC. 10)

On December 12, Kmetz and Roop met with Ambrosini, who was trying to set up a
meeting where Roop and Matuszak could work out their issues. Both Matuszak and Roop had 30
originally expressed an interest in such a meeting, but Roop changed her mind and did not want
to meet with Matuszak. She told Ambrosini that she was under a lot of stress, had a lot of
anxiety, was becoming sick, and was not ready to sit down and talk with Matuszak to work
things out. Roop said that she was just going to keep doing her job, avoid Matuszak, and avoid
people who were causing her trouble. Ambrosini told Roop that, if she changed her mind, to let 35
him know. (Tr. 205, 219–20, 692–693; R. 28)

W. December 10, 2016 email from Backus to Dhuper

On December 10, 2016 Backus sent an email to CEO Dhuper, along with three other 40
hospital executives, regarding the respiratory department. In the email, Backus detailed her
professional background and stated that she was taking it upon herself, realizing it put a target on
her back, to write on behalf of a large group of Respondent’s respiratory therapists who found
themselves with no other recourse. Backus complained that workers of color, or of a different
national origin and race, were constantly subjected to a hostile work environment by coworkers 45

20 Transcript page 691, line 22, reads “take away your leave pay.” It should read “take away your lead pay.”
JD(SF)–14–19
25
and members of the hospital’s management and administration who were Caucasian; she claimed
that they had even found the same discrimination with human resources. In the email, Baucus
stated that their problems included coworker bullying, harassment, threats, demotions, racial
discrimination, intimidation, retaliation, and breach of the union contract. She declared that the
workers were at their wits end trying to give their best to the hospital, but the continued 5
retaliation and hostile work environment had taken its toll. Therefore Backus wrote that they
wanted to reach out for assistance, as far up as necessary, to get some type of resolution. (GC.
37; Tr. 247–48)

At the time he received the email, Dhuper testified that he did not know who Backus was, 10
nor did he know any of the respiratory therapists. Dhuper, who is of Indian descent and came to
the United States when he was 12 years old, was shocked by the email. He spoke to O’Keefe,
who told him there was a problem in the department that needed to be addressed, but it was a
problem with just a few of people, that it was more a personality issue, along with some images
related issues. He also spoke with Ambrosini. Ambrosini told him that they had investigated 15
complaints in the past, and that there were significant issues related to text messages with bad
pictures that constituted extremely disturbing and highly inappropriate behavior. Ambrosini
showed Dhuper numerous complaint files that were on his desk regarding the respiratory
department that Ambrosini was investigating; the files were thick. Dhuper testified that he was
eventually made aware that there were two camps, involving two people, and that the department 20
got split taking sides. When he saw the department’s complaint file in Ambrosini’s office, it
raised an alarm; Dhuper knew he needed to have a staff meeting. (Tr. 2406–12, 2284, 2431–33)

X. December 14, 2016 staff meeting
25
1. Dhuper tours the department

Based on Backus’s email, and his discussions with O’Keefe and Ambrosini, Dhuper
requested that an immediate staff meeting be scheduled with the respiratory department; the
meeting was scheduled for December 14, 2016. A few days before the meeting, Dhuper decided 30
to take a tour of the respiratory department for the first time. Dhuper, Ambrosini, O’Keefe,
Marino, and one of the hospital’s engineers, walked through the department together. Dhuper
was quite disappointed with what he saw and the state of the department in general. Inside the
tech room were empty soda bottles, fruit flies, a broken wall clock, and a television with DVDs.
He commented to the group on potential safety hazards, things that were dirty, the clutter lying 35
around, and graffiti markings. He also pointed out things he wanted changed and new equipment
that he wanted to order. Dhuper was extremely upset with Marino and the dirty and unorganized
fashion in which he found the department. He told Marino that the condition of his department
was unacceptable and that he needed to get the department in order. Among other things,
Dhuper told him that the clock needed to be fixed, the walls painted, the floor replaced, and a 40
new lockable bulletin board installed. (Tr. 1592–95, 2413–14, 2424– 29)

2. The December 14 staff meeting

The staff meeting took place in a conference room near the human resources department. 45
Present for the hospital was Dhuper, Ambrosini, Marino, and O’Keefe. About 20 respiratory
JD(SF)–14–19
26
therapists, over half of the department, attended. Marino took notes of what was said during the
meeting. (Tr. 116, 250–51, 452, 736, 814, 869–73, 1595–96, 2289, 2415–16; GC. 76)

The meeting started with Dhuper introducing himself, discussing his employment history,
and the various improvements and upgrades that were made to the hospital since becoming CEO. 5
He spoke about his recent tour of the department, and the renovations he wanted to make in the
tech room including repairing and painting the walls, and installing a new floor. He noted that
personal belongings and electrical items like toasters, the microwave, and television set, needed
to be removed; also the clock, which was broken, needed to be replaced. He stressed the
importance of cleanliness, said the department needed to be kept clean and documents could not 10
be left just lying around. (Tr. 252, 2416, 2290, 2425–26; GC. 76)

Dhuper then said that he was made aware of issues and concerns in the department, and
that he wished to hear from the staff to see if he could bring a solution to their problems. He
held up a stack of papers that were in a file, said it was the respiratory department’s harassment 15
file, and it was the thickest file in the hospital. He said that if people had personal issues, likes or
dislikes, these needed to be kept outside of the building. Dhuper told the staff he was very
disappointed about the behaviors he had heard about regarding the department, and said that he
could fire everyone in the department, those that did something about this and those that did not.
He stated that he could not believe a group of people who took care of patients would behave in 20
such a manner, and that CEOs usually do not deal with these types of matters . Finally, he told
the therapists that he had a firm belief people should enjoy where they worked, so the staff
needed to ask themselves “do I want to be employed here. Am I happy here.” (GC. 76) (Tr.
116–17, 452, 596–97, 736, 2290–91, 2416–17, 2430–32; GC. 76)
25
Dhuper then told the therapists that he wanted to hear their problems. He said that he
knew there had been a lot of complaints in the department going back several months, that
human resources had kept him in the loop, and the meeting was an open forum for employees to
discuss their concerns to see if he could find a solution. Despite Dhuper’s invitation to speak,
the staff was hesitant to talk about the problems in the department. (Tr. 253, 453, 2290–91) 30

Monique Johnson eventually started the discussion by talking about issues with the
hospital’s internal phone system, which Dhuper said he would look into. Finally, Backus spoke
up to address the harassment complaints and said that people were hesitant to speak up in an
open forum as they were afraid of retaliation and intimidation because the offenders were sitting 35
in the room and as soon as someone speaks up they will be targeted. Backus said that she was
not afraid to speak because, as a per-diem employee, this was not her full-time job; she could
afford to lose her job at the hospital, but others in the room could not. Dhuper then chastised the
therapists for not speaking up sooner. Johnson said that she had been speaking up for years
about these issues, had told Marino, but nothing had been done. (Tr. 118, 253, 328, 597–98, 40
2291, 2421; GC. 76)

Pereyra also spoke up and said that he had been the target of discriminatory text
messages which some coworkers were sending him and they included pictures with animals
which were discriminatory. Pereyra gave copies of what he had received to Dhuper, who then 45
asked whether Pereyra had filed a police report. Pereyra said that he had done so and Dhuper
JD(SF)–14–19
27
asked for copy of the report. Pereyra then discussed the pictures that had been up in the tech
room, and on social media, saying that he wanted it to stop. Roop also got up and gave Dhuper
copies of the text messages that she had received. Dhuper said that the text messages were
grotesque and disgusting, he had seen them and did not want to see any more of them; he said
that he would investigate the matter. (Tr. 117, 254, 453, 530–32, 597, 1598, 2291–93, 2418–20; 5
GC. 76)

Dhuper next addressed the staff about the split in the department. He said that, as he
understood it, a rift had formed in the department, there were factions that were polarizing the
staff and he wanted to know who those people were. One employee suggested hiring a mediator 10
to bring the groups together, and said the identity of the factions were obvious due to the
individuals who had filed the complaints in the thick file Dhuper was holding. After this
discussion, Roop complained that she no longer had access to scheduling in the computer
system, and that she could not do her job as team leader without this access; Dhuper said he
would look into her claim. (Tr. 118. 2291; GC. 76) 15

At this point, Dhuper testified that the “messages, discrimination, racial teddy bears and
all things” were “starting to fly up.” (Tr. 2437) It occurred to him that the meeting was
becoming bigger, longer, and more deeper than he expected; quite a few people had a lot to say,
some had opinions, some had facts, and others were suffering. Therefore, he told the staff that 20
he wanted to hear from each them; anyone who wanted to meet with him in person and speak
openly could do so. He told them to contact his administrative assistant to schedule an
appointment. However, he told them not to just bring their problems, but to also bring a
solution. The meeting, which lasted about an hour, then adjourned. (Tr. 118–119, 254, 453,
598,736, 1598, 2293, 2418, 2437–38; GC. 76) 25

Y. Dhuper’s individual meetings with employees in December 2016

About 10 employees took Dhuper up on his offer to meet individually. Their meetings
occurred either in a boardroom near Dhuper’s office, or in a nearby conference room. O’Keefe 30
was present with Dhuper for all the meetings, but generally did not speak.

1. Meeting with Babita Roop

Roop met with Dhuper on about December 18. She introduced herself to Dhuper and 35
O’Keefe and they discussed their respective backgrounds. Dhuper then asked Roop about her
concerns. Roop had multiple complaints. She complained that her computer access to
scheduling was blocked. She complained about Marino reducing the minimum staffing per shift
while two people were sometimes working in the PFT lab when there was not enough work. She
complained that Smith was disrespectful during shift changes, would take her assignment sheet, 40
crumple it up, and throw it on the floor. She complained generally about Matuszak, bringing up
what Dhuper called serious concerns, including a claim she was double-dipping by working as a
college instructor while also on the clock for Respondent. She also brought up the text messages
she had received. At some point during the meeting Dhuper made a statement about there being
two groups in the department, and asked Roop which group she belonged to. Roop said that she 45
did not belong to any group, but was an individual. If she believed something was wrong, if
JD(SF)–14–19
28
people were not following the rules, or if she was not being treated properly, she was going to
speak up. Dhuper also asked Roop if she was the ringleader. Roop replied saying that she was
not the ringleader, but again said that when something is not right she will speak up. Roop
testified that she took that comment personally, and then became upset and emotional. She told
Dhuper that she was upset and did not want to talk anymore. Dhuper told her they would have 5
another meeting after he spoke with everyone else. (Tr. 119–22, 212, 2300, 2461–62; 2583)

2. Meeting with Jernetta Backus

Backus met with Dhuper on December 19, at 3:30 p.m. Before the meeting, she drafted 10
some talking points and emailed them to Dhuper’s assistant who put the document on Dhuper’s
desk. Backus’s talking points consisted of 14 typewritten pages, setting forth 19 separate events,
and critiquing how management handled each event. She also provided her recommended
solutions for the department. The events themselves included the pictures posted in the tech
room and the text messages and memes sent to Roop and Pereyra. Throughout the document 15
Backus was critical of Marino and Matuszak; she also criticized Smith and Hamid. Backus’s
solutions for the department included the resignation/removal of Matuszak; training for Marino
on how to work as a leader (but noting his resignation as manager was the best scenario); re-
education for Ambrosini and O’Keefe on their responsibilities as leaders; and suspensions for
Smith and Hamid along with requiring them to take a sensitivity class for their role in assisting 20
Matuszak “in her harmful vendetta.” (Tr. 2559, GC. 38, 99)

As for her actual meeting with Dhuper, it occurred in the boardroom with Dhuper and
O’Keefe present. After discussing Backus’s background, Dhuper asked her to tell him about the
document she sent. Backus asked if he had read it, but Dhuper had not. He said that he would 25
read it but wanted to know if Backus had been personally harassed. Backus said that, while she
had not been personally targeted, she had a very big problem with the gorilla pictures and found
them offensive. Dhuper asked if Backus was the speaker of the house for the group, and Backus
said yes. Backus told Dhuper that the mood of the department was negative, and that Matuszak
was a problem in the department. Dhuper told Backus that he was only interested in what she 30
has experienced personally, and the meeting ended. A few days after the meeting, Dhuper read
Backus’s 14 pages of talking points; he then gave the document to Ambrosini to investigate. (Tr.
256 – 57, 2301, 2453–54, 2559–2564; GC. 99)

3. Meeting with Marie Matuszak 35

Dhuper and O’Keefe met with Matuszak on December 21, 2016. Dhuper asked
Matuszak her concerns and Matuszak discussed her dispute with Roop. Matuszak said that she
believed the issue started when she was promoted to become the PFT lab tech, and that people in
the department wanted to target her because she was overly qualified; she taught at a local 40
college whose students trained at the hospital and she held various certifications. Matuszak
suggested an audit be conducted on assignments prepared by shift leads, and also recommended
that the PFT lab be run independently of the respiratory department, saying that she was the most
competent person to run the lab. (Tr. 2294–97, 2454–56; GC. 99)
45

JD(SF)–14–19
29
4. Meeting with Monique Johnson

Dhuper and O’Keefe met with Monique Johnson sometime near Christmas. Johnson
described to them how certain people in the department behaved poorly, said there was no
discipline and little decency left, and that it was time someone did something about it. Overall, 5
Johnson was disgusted about what was occurring. During the meeting Dhuper asked Johnson
what team she was on. Johnson replied by asking whether Dhuper was inquiring as to whether
she was friends with Roop; Dhuper said no. Johnson said that she would not support anyone
sending nasty text messages and harassing people, regardless of whether someone was her
friend. Dhuper then asked Johnson about Brian Smith, and also asked who the troublemakers 10
were in the department. Johnson said that Matuszak was the “queen,” that she was the one
controlling everything, she had her “minions” in the department and was using them to her own
advantage. During the meeting Johnson also said that, if the hospital got rid of the people
sending the text messages, then the problems would stop. The meeting ended with Dhuper
thanking Johnson for coming and telling her that she was more than welcome to come back and 15
speak with him if she had anything else to add. (Tr. 598–600, 644–45, 649–54, 2448–49)

5. Meetings with Marco Garcia and Amanpreet Kaur

During Marco Garcia’s meeting with Dhuper and O’Keefe, along with discussing some 20
of his personal issues, he gave them a photograph of himself that he had found on, and printed
from, the department’s computer. He told Dhuper that he needed to check the computers in the
respiratory department, and if he did so he would find some of the images that were at issue.
After the meeting, Dhuper had the computers replaced. (Tr. 652, 2457–59)
25
Amanpreet Kaur also met with Dhuper and O’Keefe in the conference room. At one
point during their meeting Dhuper asked Kaur whether she was at the department meeting on
December 14. When Kaur answered yes, he asked whether she sat next to Roop during the
meeting. Kaur said that she sat next to someone else. After some more discussion, Dhuper
asked Kaur which side she was on, Roop’s or Matuszak’s. Kaur said that she was neutral, that 30
she just wanted to come to work, do her job, treat her patients, and not have to deal with any of
the department’s issues. After the meeting, Kaur called Yogi, Roop, and Johnson, and told them
what happened during the meeting. (Tr. 815–17)

6. Meeting with Pereyra 35

Pereyra also met with Dhuper and O’Keefe in the boardroom. He had printed off the
various text messages and pictures he had received and gave them to Dhuper along with the
police report he had referenced in the December 14 meeting. Dhuper testified he was disgusted
by the pictures and messages. Pereyra asked for Dhuper’s help, and said he was still receiving 40
messages, sometimes at 2:00 a.m. or 3:00 a.m., and that his account is synched with that of his
family and kids. Dhuper told Pereyra to block the offending number on his iPhone, to shut down
his Facebook page or open a new account, and that Pereyra had not done enough to protect
himself. Dhuper said that he is the hospital’s CEO and has 900 employees on a 26 acre property;
he was responsible for Pereyra’s wellbeing at work, but outside of work Pereyra needed to seek 45
JD(SF)–14–19
30
help and do whatever he needed to do. The meeting ended with Dhuper saying he would follow-
up with Pereyra after his investigation concluded. (Tr. 454–59, 533, 2298–99, 2443–45)

7. Dhuper’s impressions of his individual meetings
5
Regarding his now involvement with the problems in the respiratory department, Dhuper
testified that, “within a matter of two weeks, the mountain was breaking on my head with all this.
It was absurd.” (Tr. 2445) And, Dhuper said that he could not connect the dots. During his
interviews he had offered to put a temporary surveillance camera in the department, but nobody
wanted one, while everyone wanted to talk about the other person. This led Dhuper to believe 10
that perhaps everyone in the department was somehow involved in the behavior, and that
something that at one point was considered humorous, had now turned into violent behavior.
Regarding the things going on in the department, Dhuper was disappointed and disgusted. He
could not believe that trained professionals, who were responsible for putting patients on
ventilators, would behave so poorly. (Tr. 2445–46, 2473, 2477, 2605) 15

Z. Removal of the television set in the tech room

The respiratory department tech room contained a flat-screen television along with a
microwave oven, radio, toaster, and two different coffee machines. They were placed in the 20
upper part of the tech room where the sink and refrigerator were located. (Tr. 356, 368, 372,
461, 874, 964–65, 1236, 1287, 1297–1300, 2546; R. 4)

The television, which had been in the tech room for a number of years, was purchased by
employees; they previously only had a radio. The microwave, toaster, and the coffee machines 25
were also purchased by the employees. (Tr. 372, 738, 1236–37, 1299–1300)

When Duper toured the department after receiving Backus’s December 10 email, he
made specific note of the TV in the tech room and the fact that an employee was sitting with his
legs crossed watching DVDs on the television. During the December 14 staff meeting, Dhuper 30
requested that the television be removed from the tech room, saying they do not allow televisions
in the department. According to Marino’s notes, during this meeting he also told employees that
the tech room would be renovated with new flooring, wall repairs, and new paint. Therefore, all
personal electronic items including the toaster, television, and microwave needed to be removed.
(Tr. 2351–52, 2424–26, 2538, 2541; GC. 76) 35

The television was subsequently removed in either December 2016 or January 2017,
when the department was painted and refurbished, along with the microwave, radio, coffee
machines, and personal items. As of the time of the hearing, the microwave and both coffee
machines had been returned to the tech room. However, the television was never returned. 40
Instead, after it was removed it was placed in storage where it remained. (Tr. 356, 359–60, 460–
62, 737–40, 874–75, 1295–1300, 2541; GC. 76; R. 9, p. 9)

It is undisputed that multiple other employee break rooms in the hospital have televisions.
As for why the respiratory department television was removed and never replaced, Dhuper 45
testified that the hospital does not allow televisions in working departments. He also testified
JD(SF)–14–19
31
that personal electronics are not allowed in the hospital, because electrical circuitry has to be of
healthcare grade. That being said, Dhuper admitted that he has never inspected the televisions in
the other hospital break rooms to ensure their electrical circuitry were of healthcare grade, nor
has he requested any such inspection. (Tr. 358, 461, 738, 2320–25, 2538–40)
5
AA. “WTF” Stamp in the respiratory department

Dhuper learned from employees that the initials “WTF” had been stamped on some of the
lockers in the respiratory department. When he saw the lockers stamped with those initials, he
was offended and had the lockers cleaned the stampings removed. (Tr. 2471–73) 10

Sometime in late January or early February 2017, Dhuper was making his rounds at the
hospital, and walked into the tech room. Present was Roop, night-shift therapist Susan Dachouk,
and Hamid. Dhuper walked in, started looking around, and asked if there was any drama going
on, any pictures, or anything else he needed to know. He then commented on the fact the lockers 15
had been cleaned, and the stampings had been removed. Roop had found the actual WTF stamp
in one of the unused lockers a few days earlier, so she retrieved the stamp and gave it to Dhuper.
Dhuper asked Roop where she found the stamp and Roop told him. Dhuper said that, if anyone
comes looking for the stamp, to tell them that the CEO has it. (Tr. 123–27, 768–70; GC. 27)
20
As they were discussing the stamp, Dhuper looked at Roop and jokingly said that she was
the instigator of all the drama in the department, which Roop “kind of laughed” off. He then
looked at Hamid and said that the hospital had 20 pages of complaints against him. Dhuper
made a comment about not tolerating the drama going on in the department, and then left with
the stamp. On February 6, 2017, Marino sent out an email to the department saying the WTF 25
stamp was found “hidden” in an unused locker; the email also said that everything in the empty
lockers would be thrown out to ensure no other “hidden treasures” came to light. (Tr. 769 –71;
GC. 27)

BB. Roop’s meeting with Dhuper on February 7, 2017. 30

On February 7, 2017, Roop was involved in an incident which ultimately resulted in her
receiving a final written warning and suspension six days later. What occurred, and the decision
to discipline and suspend Roop, is more fully discussed below in Section IV(B). On February 7,
Roop had a meeting in human resources to discuss the incident and then met with Dhuper later 35
that evening.

Roop met with Dhuper in the board room near his office, only the two of them were
present. Roop told Dhuper that she was under a lot of pressure at work and that since giving him
the WTF stamp she was being picked on even more than before. Dhuper asked Roop how 40
people knew she gave him the stamp. Roop said that Gandhi was going around asking people
why Roop turned in the stamp; she did not know how he found out. Roop then told Dhuper that
she was called into human resources earlier that day. According to Roop, Dhuper then asked her
“if these people are picking on you, why don’t you just quit?” Roop told him that she had been
working at the hospital since 1999, had stayed with the hospital when it was experiencing 45
difficult financial times, and was not about to quit now just because some people wanted her to
JD(SF)–14–19
32
do so. Instead, she was going to quit on her own terms. The meeting ended with Dhuper telling
her to “just ignore those people and keep doing your job.” (Tr. 149–50)

Regarding his meeting that day with Roop, at trial the General Counsel questioned
Dhuper as to whether he asked Roop why she did not consider just quitting if she was having all 5
these problems at work. He replied “that’s not how I said it.” When asked what he actually said,
Dhuper digressed, explaining how he offered Roop a cup of tea during the meeting where they
had a brief and private one-on-one conversation as mature individuals. He said from what he
remembered “there was no encouragement of resigning,” but told Roop “we all have options,”
eventually telling her to just ignore it. “Just say no.” (Tr. 2609–11) 10

CC. Dhuper’s statement to Roop in the hallway

Sometime in late March 2017, Roop and Pereyra were working in the respiratory
department when they received a “stat” call to the emergency room. Responding to the call they 15
left the tech room heading towards a set of automatic double doors that open to the hospital’s
main hallway. Roop and Pereyra were trying to rush to the emergency room, but were having
trouble with the automatic doors which would not open. Dhuper was standing in the hallway.
Roop said hello to him, and as the automatic doors finally opened Dhuper told Roop “don’t let
the door hit you, because that’s the only thing you got left.” (Tr. 465) With the doors now open, 20
Roop looked back at Dhuper and told him that what he said was not nice. The pair then
proceeded to the emergency room. (Tr. 160–61, 463–65)

Dhuper admitted speaking to Roop that day but denied making the statement attributed to
him by Roop and Pereyra. He testified that the hospital’s doors open and close quickly, and 25
because the sensors are sensitive and the hospital has received some workers compensation
complaints, he oftentimes tells people to “be careful of the door not hitting you or anything like
that.” (Tr. 2491) Dhuper denied making any derogatory comments to Roop. (Tr. 2490–92)
Whether he intended it to be derogatory or not, I credit the testimony of Roop and Pereyra that
Dhuper made the statements that they attributed to him. 30

DD. Door incident involving Roop and Matuszak

On March 14, 2017, both Roop and Matuszak separately complained to human resources
about each other regarding an incident involving a door. On March 16, Stephanie Jones met with 35
Roop and they discussed what occurred. On March 18, Jones interviewed Rose Rogers and Eric
Thom, who both witnessed what happened. And on March 20, she interviewed Matuszak. (Tr.
156–59, 2097–2106, 2169–70; GC. 81, 82, 93, 94)

As to what occurred on March 14, Rogers and Roop were in the hallway, about to enter 40
the tech room. Matuszak was inside the tech room with a student, and opened the door to come
out. Matuszak held the door open for the student to leave first. Seeing Rogers and Roop were
waiting to come in, she continued to hold the door open for them to enter. Rogers walked
through the open door but Roop did not. Instead, Roop walked down the hallway and entered
the tech room from the opposite doorway. As she did so, Matuszak told Roop that she was not 45
mature enough to allow someone to hold the door open for them. Matuszak then walked over to
JD(SF)–14–19
33
the opposite doorway, opened the door, and told Roop that she was too good to walk through the
door, and was acting very childish. Roop did not respond and Matuszak left. (Tr. 156–58, 741–
42, 928–29; GC. 82, 93, 94)

Jones discussed the matter with Marino and on April 11, 2017, issued Matuszak a 5
written-verbal warning because of Matuszak’s comments, which could have escalated the
situation and ended up in a confrontation. Matuszak became very angry upon receiving the
discipline, protesting that it was not fair, and asserting that she was the victim as Roop would not
go through the door. As for why it took nearly a month to issue the discipline, Marino testified
that it took thirty days to speak with Matuszak, Roop, and the any other witnesses. However, 10
Jones’s notes show that she had completed her investigation by March 20. (Tr. 1319–20, 2106;
GC. 81, 82, 93, 94, 116)

EE. Power outage at the hospital
15
In March 2017, Monique Johnson, Frank Mardenzai, Israel Oliviolo, and Phillip Duong,
were working in the respiratory department when a power outage occurred due to a
thunderstorm. During an outage the hospital’s backup generators are supposed to provide
emergency lighting and power equipment such as patient ventilators. However, the respiratory
department was in complete darkness as the backup power for the lighting did not automatically 20
kick-in. As the RTs scurried around to ensure the various life support equipment was working,
both Johnson and Mardenzai ran into Dhuper in the hallway. Dhuper was directing employees
on what to do, and thanking them for their hard work. (Tr. 601–02, 608, 792–93, 2466–70)

Later, after the employees checked all the ventilators, they returned to the respiratory 25
department. Dhuper walked into the tech room where Johnson, Mardenzai, and the other
therapists were stationed. He explained to them what had occurred, in relation to the generator,
looked around the tech room and commented on how much better it looked with nothing
stamped on the lockers. Johnson told Dhuper that he was talking to the wrong people, as none of
them would destroy property. She told Dhuper that it was Matuszak who brought the WTF 30
stamp into the department, that the stamp ended up with Seigal, and then with Smith. (Tr. 602–
04, 793–94)

As Dhuper was about to leave, Johnson lightheartedly asked whether it was true that he
hated the respiratory department. Dhuper jokingly replied that it was true—he hated all of them 35
for the problems they were causing. The conversation then became serious. Dhuper said that he
was tired of everything that was going on in the respiratory department. Johnson replied saying
they were not the ones who were causing all the problems. And, Oliviolo said that he did not
have anything to do with any of what was occurring in the department. Dhuper then pointed at
Mardenzai, Oliviolo, and Duong, telling them that, just because they thought they were not 40
involved in the drama that they would be fired as well, and if they wanted to sue to him they
could get in line. Mardenzai asked why Dhuper did not fire the people who were causing all the
problems, and Dhuper responded that he was well aware of the ringleaders—and the two
individuals causing all the drama. However, because they had worked at the hospital for 15-20
years, he wanted to give them some respect, a cooling off period, and an opportunity to work out 45
their problems on their own. During the conversation Johnson defended Roop saying that she
JD(SF)–14–19
34
put herself in the line of fire by talking about things that were right. Dhuper replied saying that
the he knew what was causing the problems, it was the PFT lab, and he could close the lab in a
second but that he was not going to do that. Johnson told Dhuper that, while he was giving
Matuszak and Roop a cooling off period, nothing had cooled off and things had gotten worse.
The conversation ended with Dhuper saying that if they wanted to fix things, they should come 5
together as a department, start a petition, and come to him and human resources. If they see
something that is wrong, they were the ones that needed to fix it. (Tr. 603–05, 662, 793–97)

FF. Employees circulate a petition
10
After her conversation with Dhuper, Johnson called Backus and told her that Dhuper had
suggested doing a petition. A group of therapists started having talking sessions where they
discussed their various workplace issues and Backus started drafting a petition. (Tr. 261, 605)

Backus started drafting the document in early April 2017, soliciting input from coworkers 15
as to what should be included in the petition. The idea was to send the completed petition to the
hospital in order to inform Respondent of their problems. They also contemplated sending the
document to the Respiratory Care Board, the entity responsible for licensing the therapists, but
that idea was eventually abandoned. (Tr. 169–70, 261–63, 315–17, 606–07; GC. 40)
20
When the petition was done, Backus sent a group text message to about 15 coworkers
informing them that document was available for employees to view and sign until April 12.
Along with the text message, Backus, Roop, and Johnson also spoke personally with coworkers
about the petition and solicited employee signatures on the document. Eventually 17 out of the
33 respiratory therapists working in the department signed the petition including Roop, Backus, 25
Johnson, and Pereyra. (Tr. 170–72, 177, 199, 264, 271, 315, 364–65, 467–68; GC. 34, 40)

On April 13, 2017, Backus dated the petition and delivered it to Dhuper’s office, leaving
a copy of both the petition and the signature sheet with Dhuper’s assistant. That same day she
left a copy of the petition, without the signature sheet, with Jones in human resources. She also 30
emailed a copy of the petition, without the signature sheet, to the Union and to Michael Blaisdell
(“Blaisdell”), who was the director of respiratory education at Ohlone College where Matuszak
served as a clinical instructor. That same day, she emailed Dhuper telling him that she left a
petition that was signed by the majority of the department with his assistant. According to
Backus, the reason she only gave Dhuper the signature sheet was because some of RTs were 35
afraid of retaliation; she stated this in her email to Dhuper as well. (Tr. 218, 268–70, 336, GC.
41, 42)

The petition itself was two pages long, in letter form. The letterhead read “Petition of
Right to Protect License and Workplace.” It was addressed to Dhuper, Jones, Blaisdell, and the 40
therapists’ Union representatives. The subject matter read: “Right to a Hostile-Free Work
Environment.” The document said that the necessity of a petition arose because of a hostile
work environment existing in the respiratory department, and that the signatories felt it had
reached a point where they needed to protect their jobs, their licenses, and their department. The
petition identified Matuszak as the catalyst of the hostile work environment and identified 45
Marino, Gandhi, Smith, and Hamid as her coconspirators who participated in, and perpetuated,
JD(SF)–14–19
35
her actions. The document further said that, even after reporting incidents to human resources,
and executive intervention, they were still being bullied, harassed, targeted, and retaliated
against; the petition listed various transgressions that were allegedly perpetrated by the five
individuals, and the resulting effects on the department. The document ended with the following
demands/affirmations: (1) the signatories would no longer work with Ohlone College students 5
while Matuszak was assigned as their clinical instructor in order to protect their licenses and the
welfare of their department; (2) the five individuals identified in the petition needed to be
reprimanded and/or removed to restore a safe and non-hostile work environment; (3) the
signatories wanted Mullany to remain as their union representative; and (4) they were open to
discuss these issues—but only collectively as a group. (GC. 34) 10

GG. Respondent’s reaction to the petition

Dhuper saw the petition and signature sheet on April 13 or 14, looked at them, and then
gave them to Jones and Mike Sarrao, the hospital’s attorney, asking them to investigate the 15
matter. He then emailed Backus on April 14 telling her that Jones and Sarrao were looking into
the issue. (Tr. 2486–89, 2622; GC. 41)

Marino received an email from Blaisdell on Thursday, April 13, 2017, at 3:25 p.m.
asking Marino what was happening at the hospital, and saying that he just received a disturbing 20
email from Marino’s staff regarding Matuszak and their refusal to work with students going
forward. Marino replied at 6:20 p.m. saying that he was sorry for the situation, he could explain
later, and asking Blaisdell to forward the email to him. Blaisdell replied to Marino saying that
the college was not taking sides, and he wanted to be careful about getting involved in internal
conflicts; he preferred that Marino got a copy of the document from the hospital’s human 25
resources department. Blaisdell wanted to meet to discuss a resolution, and suggested that, for
the remainder of the semester, he act as the clinical instructor for the two Ohlone students that
were doing their rotations at the hospital. (GC. 140)

Marino forwarded Blaisdell’s message to Jones, just before 9:00 p.m. on April 13, saying 30
“Can we talk ASAP???” At 11:00 p.m., Marino also forwarded Blaisdell’s email chain to
Dhuper, telling him that he had already forwarded the emails to Jones, but thought Dhuper
should know as well, saying they needed to have a discussion about “this entire issue.” (GC.
140) That night Marino also called O’Keefe, telling her that he had received an email from
Blaisdell and explaining to her the content of the email exchange. (Tr. 1483–84) 35

On April 14, at 8:49 a.m. Jones replied to Marino’s email from the previous night saying
that she was available to speak with him “now.” Marino emailed Jones a minute later saying “I
will come to you.” Marino walked to Jones’s office where Jones told him about the petition,
pulled it up on her computer screen, and showed Marino what was in it; the two then discussed 40
what the document said.21 A few weeks earlier, Hamid had told Jones that, according to
coworkers, Backus and Roop were asking employees to sign paperwork stating that there was a

21 While Marino claimed that he only read the first paragraph of the petition, I do not find this testimony credible,
especially since Marino admitted he was “dying to know” what was in the petition. (Tr. 1479, 1482) In any event,
with Jones “showing [ ] or telling” Marino what was in the petition, I find that Marino knew what the petition said
when he left Jones’s office that day. (Tr. 1479)
JD(SF)–14–19
36
hostile work environment caused by several individuals in the department. (Tr. 1479, 1481; GC.
85, 140)

After meeting with Jones, Marino again spoke with O’Keefe about the petition. That
same morning Marino he also spoke with Matuszak and Dhuper about the document. (Tr. 1482–5
88)

HH. Respondent drafts a letter to employees about the petition

Dhuper gave the petition to the hospital’s legal counsel Mike Sarrao, asking him to 10
investigate the matter. Sarrao drafted a letter addressed to the Union and all the respiratory
therapists, dated April 17, 2017. He gave the letter to Jones and told her that she and Marino
were to deliver it to all of the respiratory therapists at the hospital. Marino delivered the letter to
the therapists, and had them initial a sheet of paper acknowledging that they had read and
understood the letter. (Tr. 363, 366–67, 2143, 2488; GC. 51) 15

Sarrao’s letter is four pages, single spaced. It discusses the allegations in the petition,
sets forth the actions Respondent would take in response to the petition, and actions the hospital
would not tolerate or condone including discrimination, bullying, and unlawful harassment.
While the hospital’s management team was willing and available to listen to employee concerns, 20
the letter states that the hospital was extremely disappointed in the decision to deliver a copy of
the petition to Blaisdell. It notes that the hospital has a contract with the college, and claims the
petition put them at risk of legal liability. It also states that the therapists are required to assist in
the orientation of students by their job description. While the letter acknowledges the right of
employees to engage in concerted activities, and expresses the hospital’s appreciation for the 25
willingness of employees and the Union to raise concerns so they can be investigated, the letter
states that, “[b]y their petition, the ‘Majority Therapists’ have notified St. Rose that they do not
intend to perform requirements of their job and have forced St. Rose to consider whether such
actions give rise to just cause for discipline.” (GC. 51)
30
The letter ends by advising employees that: the therapists were expected to assist in the
orientation of students; the hospital, not employees, would decide whether or not to accept
students; the hospital would determine whether to discipline employees and that decision would
not be influenced by the threats in the petition; the hospital would continue to recognize Mullany
as the Union’s authorized representative; the hospital would investigate the allegations in the 35
petition and ensure the Union was given an opportunity to participate; discrimination,
harassment, and bullying were not tolerated; and that nothing in the letter was intended to limit
employee free speech rights, or otherwise limit employee rights as set forth in their union
contract or under the National Labor Relations Act. (GC. 51)
40
II. Backus reports receiving anonymous text messages

As discussed further below in Section IV(B), Roop was fired on April 17, 2017. Three
days later Backus started receiving anonymous text messages. Backus received spoofed text
messages intermittently between April 20, 2017 through September 2017. All contained 45
different memes which were distasteful. Backus suspected the messages were coming from
JD(SF)–14–19
37
Matuszak or Seigal, so she replied to one of them with an inflammatory message attacking
Matuszak, thinking it might bait the sender. (Tr. 280–81, 330–335, 342–43; GC. 45; R. 1)

Sometime in the fall of 2017, Backus reported the text messages to Jones. Backus
showed Jones the messages she had received, along with some social media postings by 5
Matuszak and Seigal that Backus’s friends had forwarded to her. In one post Seigal made a
veiled reference to Roop and Matuszak commented that she was perfectly happy with what was
happening, and in an apparent reference to Roop wrote “Termination #1. Who’s next?” (Tr.
281–82, 290–92, 1964–65, 2456; GC. 45–47 )
10
Backus also told Jones that Matuszak tried to get her in trouble at Backus’s other job.
Jones told Backus that Matuszak had shown her the inflammatory text message that Backus had
sent. Backus explained to Jones that she had sent that text to an anonymous number, and the
only way Matuszak could have the text message was if she was the one sending Backus the
anonymous texts. Jones told Backus there was nothing she could do. (Tr. 282, 332–33; 347–51) 15

JJ. Marco Garcia speaks with Marino and O’Keefe about the petition

On about April 19, Marco Garcia had a discussion with Marino about the petition.
Garcia and Eric Thom were in the hallway near the respiratory department and they saw Marino 20
walking towards them. Garcia asked Marino how he was doing. Marino said that he was
stressed out, and he might be working 24 hours a day, seven days a week, because of the petition.
Garcia replied saying that both he and Thom had signed the document, as they wanted to get
things back to normal, and asked if there was going to be any backlash because of the petition.
Marino said that he might have to get rid of half of his department. Marino denied making the 25
statements attributed to him by Garcia and Thom. (Tr. 555–58, 932–33, 948, 1390)

After their conversation with Marino, Garcia and Thom were leaving work and ran into
O’Keefe in the parking lot at around 6:30 to 7:00 p.m. Garcia’s conversation with Marino made
him nervous about losing his job because of the petition. So when he saw O’Keefe he brought 30
up the topic, and asked her whether anyone was going to be disciplined or fired for signing the
petition. Thom, who was trying to calm Garcia down, interjected saying that if they just came to
work, kept their nose clean, and did their jobs, they would probably be okay. O’Keefe agreed,
saying that nobody was going to lose their job if they came to work, did their jobs, and kept their
nose clean. However, she went on to say that management was extremely unhappy, what the 35
therapists did was the equivalent of an unwarranted attack on the hospital, and the way they
voiced the problem was outside the scope of what was reasonable. (Tr. 558–59, 933–37, 949,
2318)

According to O’Keefe, this discussion with Garcia and Thom occurred prior to her even 40
learning about the petition. She testified that Garcia asked her if he was going to get fired, and
she asked him for what reason. Garcia then told her that he signed the petition, but O’Keefe said
she did not know what petition he was referring to. She then told him that her best suggestion
was to keep his nose clean, do a good job, and he would be fine. (Tr. 2315–18)
45
KK. Marino speaks with Nancy Mardenzai about the petition.
JD(SF)–14–19
38

Around April 21 or 22 Marino had a conversation with Nancy Mardenzai about the
petition while they were in the tech room. According to Mardenzai, the conversation occurred
when Marino handed her Sarrao’s letter, and had her sign a sheet acknowledging receipt of the
document. When Marino handed the letter to Mardenzai she asked him what it was about. 5
Marino told her that the letter was based on the petition. He further said that, according to the
CEO, whoever signed the petition would be fired, and since a majority of the department had
signed the document, a majority of the department might be fired. He then asked Mardenzai
whether she had signed the petition and Mardenzai said no. Mardenzai testified that she did not
tell Marino the truth about signing the petition because she was scared after what Marino said 10
about people getting fired. Mardenzai told her brother Frank and Rose Rogers about what
Marino had told her. (Tr. 362–67, 1388; GC. 51)

Marino admits having a conversation with Mardenzai about the petition in the tech room.
However he denied asking her whether she signed the petition. He also denied telling her that, 15
according to the CEO, anyone who signed the petition would be fired. (Tr. 1388)

LL. Respondent hires an outside attorney to investigate the petition

After receiving the petition, Dhuper and Sarrao decided to retain an outside attorney to 20
investigate the complaints as outlined in the petition. On May 1, 2017, Jones emailed Mullany at
the Union informing him that an attorney had been hired. The email also contained a list of 11
therapists, including Roop, Backus, Matuszak, Smith, and Hamid, that the attorney wanted to
speak with. (GC. 43; Tr. 611–12, 2144–46)
25
Eventually the attorney spoke with Monique Johnson. Although she could not recall the
exact date of the conversation, Johnson testified that she received a call from the attorney
sometime in May or June 2017. A week earlier, Jones had called asking if she would be willing
to speak to a third-party investigator; Jones said that the person was going to investigate “all
sides of the story” regarding the issues going on in the respiratory department. (Tr. 612–13, 30
617).

Johnson had been suffering much stress and anxiety because of work. Along with the
issues going on in the department, her car tires were punctured while parked at the hospital,
which distressed her greatly. She apparently correlated the tire incident to the factionalized 35
department as Pereyra’s tires had also been slashed in the hospital parking lot. Johnson told
Jones that the problems in the department had caused her much stress and anxiety, as she viewed
her coworkers as friends and was upset as to how far things had escalated. She also said that she
would be willing to speak with the attorney if it would bring a resolution to the situation in the
respiratory department. (481, 613–14) 40

The attorney called Johnson while she was home on medical leave. He introduced
himself and asked whether Johnson knew why he was calling. Johnson replied asking whether
he was calling about the petition. The attorney said that the petition was one area of inquiry, that
he was there to collect information from all the parties involved, and was not on anyone’s side. 45
He also told Johnson that he had already been to the hospital on two previous occasions to
JD(SF)–14–19
39
collect information. The attorney then asked Johnson about what was occurring in the
department. Johnson said that the issues were so large she did not know where to start. (Tr. 611,
615)

Johnson explained the incident involving her car tires, which she said had caused her to 5
take medical leave, and that others also had their tires compromised. The attorney asked
Johnson what she would like to see happen in the department. Johnson said “these are my
friends so initially I wanted there to be some resolution, but now I just want them gone.” (Tr.
615) Towards the end of their conversation the attorney asked Johnson about the petition and
who drafted it. This question upset Johnson, and she did not answer. However, she told the 10
attorney that she signed the petition, and that the only reason the petition was initiated was
because Dhuper had suggested it. Johnson testified that, at no time during the conversation did
the attorney tell her there would be no repercussions if she refused to answer any of his
questions, or that she would not be retaliated against in any way. However, he did tell Johnson
that she did not have to speak with him if she did not want to. The call ended with the attorney 15
telling Johnson to call him if she thought of anything else, and that he appreciated her honesty.
(Tr. 615–616)

MM. Pereyra gets an injunction against Seigal
20
In August 2017, Pereyra received a civil restraining order against Seigal for a period of
three years. This was the second time he had attempted to get a restraining order against him.
The first time he tried, in January 2017, it was denied but he was told to reapply if the
harassment continued. Pereyra hired a forensics company to try and track the senders of the
spoofed texts, but his efforts were unsuccessful. (Tr. 441–42, 490–92, 499; GC. 19) 25

On July 18, 2017, Pereyra received text message containing a picture of an ape smoking a
cigarette. The caption of the photograph starts with the phrase “Jogilla, whose Korean name is
‘Joje,’” and then goes on to describe a cigarette smoking gorilla held in a North Korean Zoo; the
gorilla, whose actual name was Azalea, had received some media attention in 2016.22 A 30
coworker told Pereyra that the exact same image was posted on Facebook by Kevin Seigal.
Pereyra found the Facebook image Seigal had posted, and it was the exact same meme that was
in the text message. Seigal’s Facebook post included the hashtags “#jogilla” and “#lol.” With
this information Pereyra filed another application for a civil restraining order against Seigal and
it was granted. (Tr. 433–35, 499; GC. 19, pp. 18–19) 35

One night, after the restraining order had issued, Johnson was working the night shift
with Smith and a couple other therapists, including Frank Mardenzai. Smith walked into the
department and exclaimed that Pereyra was a pussy, and repeated the comment a couple of
times. When asked why he was saying that, Smith said that it was because Pereyra had taken out 40
a restraining order against Seigal. (Tr. 621, 655)

NN. Hallway incident between Matuszak and Backus

22 See https://www.nbcnews.com/news/world/north-korea-s-new-star-azalea-smoking-chimp-pyongyang-zoo-
n668821 (last retrieved May 15, 2019)
JD(SF)–14–19
40
On November 7, 2017, Matuszak and Backus passed each other in the hallway at the
hospital. Both filed bullying complaints with human resources over the interaction, each
blaming the other for what occurred. Jones contacted the hospital’s security manager and pulled
the camera footage. (Tr. 2152–2157; GC. 49)
5
The security camera footage shows Matuszak walking into the hospital and swiping her
keycard to clock in, using a machine attached to the wall on the right-side of the hallway.
Matuszak then starts walking down the hall, veering towards the left-side of the hallway. She is
holding a cell phone to her ear with her left hand, has a large bag slung over her left shoulder,
and her sunglasses are in her right hand. Backus is walking down the left-side of the hallway in 10
the opposite direction of Matuszak, holding a piece of paper in her left hand towards her chest.
As they pass each other Backus moves her left arm just slightly, thereby avoiding direct contact
with Matuszak’s left arm/bag. Matuszak keeps going, still on the phone. After they pass Backus
turns her head to look towards Matuszak, who was long down the hallway. (GC. 49)
15
Regarding the incident, the video shows that nothing happened. It did not appear that the
two touched each other at all. Maybe they could feel the air whisk by as they passed. At worst,
perhaps Matuszak’s bag ever so softly brushed by Backus’s left arm, or vice-versa, as they
passed each other walking in the opposite direction. However, even that level of contact is being
generous. (GC. 49) 20

Notwithstanding the hallway camera, they both reported the matter to human resources.
Matuszak reported the incident first, speaking directly to Jones and claiming that she had been
assaulted by Backus; Matuszak told Jones that she wanted Backus fired, because the incident
was a battery. For her part, Backus filed a bullying complaint form claiming that she perceived 25
Matuszak “go out of her way to cross my path and push me with her bag.” Backus also told
Jones that she wanted Matuszak fired. (Tr. 2153, 2216; GC. 152, 153)

As part of her investigation, Jones asked both to recreate what happened. She first
brought Matuszak into her office and, using one of her staff members to play Backus, asked 30
Matuszak to reconstruct the incident. Matuszak claimed she was hit on her left side and that she
was body slammed. Jones testified that, during the recreation, Matuszak “basically knocked my
staff member into the wall.” (Tr. 2155) She next brought Backus in to recreate the incident. In
Backus’s recreation, she hit Jones’s staff member “very hard with her elbow.” (Tr. 2155–56)
35
After reviewing the security video, Jones concluded that nothing happened. She shared
her conclusion with both, and no discipline was issued. She did however suggest to them that, in
the future, they stop and let the other person pass so the issue did not come up again. Jones
testified that she did not believe that either was willfully lying. Instead, they were just shocked
at seeing each other in the hallway; each thought that the other hit them, although it did not really 40
happen. (Tr. 2156–57)

OO. Pereyra gets a text message from Brian Smith

In about August 2017, Pereyra went on medical leave because of his circumstances at 45
work. On December 4, 2017, Brian Smith sent Pereyra a text message that said “Miss you,” with
JD(SF)–14–19
41
an image of a stuffed gorilla wearing a t-shirt that said “Get well soon!” The last time Smith had
sent Pereyra a text message was one year earlier involving the union steward election which he
lost. Other than these two messages, the record contains no evidence that the two ever
communicated by text message. (Tr. 394–95, 475, 1928–29, 1950–51; GC. 55)
5
Pereyra complained about Smith’s text message to Jones in December 2017, and gave her
a copy of the message. Jones called Marino informing him of the complaint, and both she and
Marino met with Smith on January 23, 2018. They asked Smith about the stuffed gorilla image.
Smith claimed that he missed Pereyra, that he did not know what offends him, that the image
should not bother anyone, and claimed he was unaware that people were calling Pereyra 10
“Jogilla.” (Tr. 477, 1438–39, 2159–60; GC. 56, 144)

At trial, Smith testified that he knew about the pictures posted in the tech room with
Pereyra’s face superimposed on the body of apes, and about his belief that “everybody thought it
was funny.” (Tr. 1926–27) He also testified that, at some point, he knew Pereyra was upset 15
because he was getting anonymous text messages, and that he had heard that Pereyra was out on
medical leave because he was getting text messages of monkeys. Notwithstanding, as he told
Marino and Jones, he testified that he sent the text message because he missed Pereyra.23 (Tr.
1926–31)
20
Marino did not believe Smith’s explanation, and presumed that Jones did not believe him
either. And, Marino thought that Smith had lied during the course of their investigation into the
matter. Notwithstanding, the hospital did not discipline Smith in any fashion for sending the text
message with the gorilla image. Instead, Marino met Smith again on January 30, 2018, told him
that he should not be contacting Pereyra in any way, including text, email, or by telephone. He 25
said that Smith’s actions at work needed to be completely professional, and he thanked Smith for
his time. He also had Smith sign a document acknowledging the discussion. (Tr. 1439, 1459,
2161–62; GC. 144)

Pereyra had not heard back about his complaint against Smith, so on January 29, 2018, he 30
sent Jones an email asking about the status; he was upset that, since the complaint, Smith had
been promoted back to the position of team lead. Jones replied saying that she had addressed his
concerns with Smith the prior week. Jones never told Pereyra that Smith had claimed the two
were really good friends and that Smith asserted that he really missed Pereyra. Nor did she ever
ask Pereyra if he and Smith were actually friends, or whether Pereyra viewed Smith as one of his 35
harassers. Pereyra received more spoofed text messages with gorilla pictures in January and
March of 2018. (Tr. 476–79, 2229–30, GC. 56, GC. 57)

PP. Backus applies for a restraining order against Matuszak
40
On January 3, 2018, Backus filed a petition for civil harassment and restraining order
against Matuszak in California Superior Court. (R. 4) In her petition, Backus stated that
Matuszak had harassed her via text message and on social media and described the various
alleged incidents. Included in her petition was the hallway incident; Backus wrote that Matuszak

23 I did not find Smith to be a credible witness, and I do not credit his testimony that he sent Pereyra the text
message because he “missed him.” (Tr. 1929)
JD(SF)–14–19
42
forcefully bumped into her, hitting Backus on the left shoulder so hard that her shoulder ached
for a few days. (R. 4, p. 57)

An ex-parte hearing for a temporary restraining order (TRO) was conducted on January
24, 2018, and Backus was granted a TRO against Matuszak, pending a full hearing for a 5
permanent restraining order. Among other things, the TRO required Matuszak to stay at least 50
yards away from Backus, including while they were at work. The permanent injunction hearing
was rescheduled on multiple occasions, and the TRO extended. (R. 2)

At one of the scheduled hearing dates for the restraining order Marino was in the 10
courtroom to be a witness on Matuszak’s behalf. As of the close of the hearing in this matter the
TRO was still in place, and the full hearing for a permanent restraining order had not yet
occurred. (Tr. 320, 1490–91; R. 2)

III. ANALYSIS OF THE 8(a)(1) ALLEGATIONS 15

A. November 2016 interrogation allegations involving Joe Marino

Complaint paragraph 6(c)(i) alleges that, in about late November 2016, Marino
interrogated employees several times about their protected concerted activities, and those of their 20
coworkers. This allegation concerns Marino asking employees if Roop disclosed to them any
information from an investigatory meeting, and whether they knew anything about the
bullying/harassment complaint forms being disseminated amongst their colleagues.

1. Background 25

On November 10, 2016, Marino and Ambrosini met with Roop to discuss the letter
complaining about her behavior that was submitted by Matuszak, Hamid, and Smith.
Respondent relied upon the allegations in the letter to discipline Roop on November 21.
30
During her disciplinary meeting on November 21, along with presenting Roop with her
discipline, Marino asked Roop if she had leaked any information about their November 10
meeting to other employees in the department; Roop denied doing so. That afternoon, Marino
emailed Ambrosini saying it had come to his attention that information discussed in the
November 10 meeting, specifically the names of Matuszak, Hamid, and Smith, as the authors of 35
the letter, had been leaked to others in the respiratory department. Marino wrote to Ambrosini
that he wanted to confirm the leak came from Roop, and if so suggested Roop be suspended.
Marino then started questioning several employees to investigate the alleged leak. After a group
of RTs filed bullying/harassment complaint forms with human resources, Marino broadened the
scope of his investigation to include questions about the complaint forms. 40

As part of his investigation, Marino spoke with RT Fawad Meskienyar about the leak.
Meskienyar told him that he did not know who leaked the information, but he had heard talk
about it in the department. On November 28, Marino called Rose Rogers into his office. With
only the two of them present, he told Rogers what they were about to discuss was strictly 45
confidential, and that he needed to know if Roop discussed anything with her about a meeting
JD(SF)–14–19
43
Roop had with human resources. Rogers told Marino she would not answer the question; a few
days later she told Marino that it was wrong for him to have questioned her and it made her feel
uncomfortable.

On November 28, Matuszak conveyed to Marino information about Roop handing out 5
bullying complaint forms to the staff; she told Marino the information had come from RT My-
Quyen Giang. That day Marino asked Giang if she had seen anyone handing out bullying
complaint forms. Giang told him that she saw Backus ask RT Grant Vea who he voted for in the
shop steward election and also hand him a St. Rose bullying complaint form. Giang also told
Marino that she did not know anything about the meeting in human resources. 10

On November 29, Marino asked Grant Vea both about the leak, and whether bullying
forms were being handed out. And, on November 30, Marino called Amanpreet Kaur into his
office. With only the two of them present, he asked Kaur if she knew anything about a
confidential meeting that took place in human resources. Even though Kaur had spoken with 15
Roop about the meeting in question, Kaur told Marino that she did not know anything. Marino
wrote in his notes that he thought Kaur was trying to play dumb.

2. Analysis
20
The board reviews a variety of factors to determine whether an unlawful interrogation
occurred including: the general background; the nature of the information sought; the identity of
the questioner; the place and method of the interrogation; the truthfulness of the reply; whether
the employer had, or conveyed, a legitimate purpose for the questions; and whether assurances
against reprisals were provided. See Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. 25
Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985); Bourne v.
NLRB, 332 F.2d 47 (2d Cir. 1964); RHCG Safety Corp., 365 NLRB No. 88 slip op. at 1-2 (2017).
These and other factors are not applied mechanically. Instead, they are “useful indicia that serve
as a starting point for assessing the totality of the circumstances.” Westwood Health Care Center,
330 NLRB 935, 939 (2000) (internal quotations omitted). In the final analysis, the “task is to 30
determine whether under all the circumstances the questioning at issue would reasonably tend to
coerce the employee at whom it is directed so that he or she would feel restrained from
exercising rights protected by Section 7 of the Act.” Id. at 940.

Applying these factors here, I find that Marino’s questioning of employees during his 35
investigation of the alleged leak were unlawful interrogations. Absent compelling business
justifications, “it is settled Board precedent . . . that employees have a protected right to discuss
discipline or disciplinary investigations with fellow employees.” Inova Health System v. NLRB,
795 F.3d 68, 85 (D.C. Cir. 2015); Caesar’s Palace, 336 NLRB 271, 272 (2001) (confidentiality
rule during investigation of illegal drug activity with claims of a management cover-up and 40
threats of violence was a compelling business justification outweighing the infringement on
employee rights). Here, Respondent has not presented any business justification that would have
prohibited Roop from discussing with coworkers her November 10 meeting in human resources.
Nor is there. Unlike Caesar’s Palace, the complaint letter about Roop did not involve illegal
JD(SF)–14–19
44
drug activity, threats of violence, management cover-ups, or anything close to such weighty
matters.24 Instead they were general work complaints about Roop’s demeanor and behavior.

Thus, the nature of the information Marino sought during his questioning, whether and
which coworkers Roop spoke with regarding the November 10 investigatory meeting, was 5
protected by the Act. Marino was the head of the department, and the place and method of the
questioning (at least with respect to Rogers and Kaur) was unnatural, as he called both of them
into his office for no apparent reason and questioned them about what they knew of the meeting.
Kaur told Marino she did not know anything, notwithstanding the fact Roop had told her about
the meeting, and Rogers simply refused to answer his questions. Also, there is no evidence 10
Marino gave anyone he questioned assurances against reprisals. Finally, Marino neither had, nor
conveyed, a legitimate purpose for his questions; because Roop had a protected right to discuss
the investigatory meeting with her coworkers, she could not have been legally disciplined for
doing so. Accordingly, I find that, under the totality of the circumstances, Marino’s questioning
constituted an unlawful interrogation in violation of Section 8(a)(1) of the Act. 15

I believe the same is true regarding Marino’s asking employees about whether coworkers
were passing out bullying/harassment complaint forms. Backus retrieved the complaint forms,
handed them out to colleagues, collected the completed forms, and submitted them to human
resources. Her actions were clearly concerted activity protected by the Act. See, e.g., Dignity 20
Health, 360 NLRB 1130, 1131–32 (2014) (employee circulating petition soliciting signatures
from colleagues who had concerns about a coworker’s attitude and conduct towards them was
both concerted and protected); Meyer Tool, Inc., 366 NLRB No. 32 slip op. at 9–10 (2018) enfd.
--- Fed.Appx. --- 2019 WL 949082 (2d Cir. 2019) (employees going to human resources to file
complaints about working conditions protected and concerted even if they did not present the 25
same issues or concerns in their complaints). Thus the nature of the information Marino sought
in his questioning, who was handing out and receiving bullying complaint forms, concerned
activities protected by the Act. And, there is no evidence that Marino had any legitimate
purposes for the questioning or provided the individuals questioned with assurances against
reprisals. Accordingly, the evidence presented sustains the allegations contained in complaint 30
paragraph 6(c)(i) that Marino interrogated employees about their protected concerted activities
and those of their coworkers.

B. December 2016 allegations of interrogations and threats
35
Complaint paragraph 6(c)(ii) alleges that, during a meeting in human resources on
December 5, 2016, Marino interrogated employees about their protected concerted activities and

24 In its brief, and without citing the record, Respondent asserts that, during the November 10 meeting there was an
“agreement” that the information discussed would be kept confidential during the investigation. Resp’t. Br., at 31.
The only testimony from this meeting regarding discussions about confidentiality is hearsay testimony from Marino
saying Ambrosini talked about keeping the meeting discussion confidential. (Tr. 1498) However, neither
Ambrosini nor Roop testified about any such discussion. Instead, Ambrosini testified that, while confidentiality was
management’s “preferred position,” employees could share the information with whomever they wanted so long as
it did not compromise the investigation. (Tr. 1591) Here, there was no evidence the investigation was
compromised, and slim evidence that any meaningful investigation occurred at all. Moreover, Ambrosini testified
there was no basis for disciplining Roop for the leak. (Tr. 1591) Therefore, I do not credit Marino and I find that no
such agreement on confidentiality occurred.
JD(SF)–14–19
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those of their coworkers. Complaint paragraph 6(d) contains the same allegation, but involving
Ambrosini. And, complaint paragraph 6(a)(i) alleges that, on this same date, O’Keefe
unlawfully threatened employees with demotion, discipline, and job loss. All these allegations
center on what was said during a meeting with Roop that occurred on December 5.
5
1. Background

Around 2:00 p.m. on December 5, 2016, Roop attended a meeting with Marino,
Ambrosini, and O’Keefe in the boardroom near the human resources office. Justin Kmetz, who
works in the radiology department was also present as Roop’s Union representative. Before the 10
meeting started, Marino had suggested to Ambrosini that Roop be disciplined, perhaps even
suspended, for leaking information to Backus. Marino claimed that Roop leaked information to
Backus, and Backus included that information in her bullying complaint form. Among the items
listed in Backus’s complaint was the claim that Matuszak was using human resources to harass
Roop, referring specifically the letter written by Matuszak, Smith, and Hamid. 25 15

The meeting started with Ambrosini saying there was talk that Roop had breached
confidentiality regarding a previous meeting, and they were there to investigate the claim.
Referring to the November 10 meeting, Ambrosini told Roop that word had gotten out that she
had broken confidentiality by talking about the meeting with others. He then asked Roop if she 20
had talked about the meeting with anyone. Roop denied doing so, and implied that Marino was
the leaker. Marino denied the claim, saying it was very coincidental that people were hearing
about things that were discussed in the meeting. Ambrosini mimicked Marino’s remarks, also
saying that it was a coincidence RTs were filing bullying/harassment complaints that seemed to
defend Roop. Ambrosini asked Roop what she did to get her coworkers to submit those 25
complaints to human resources. Roop denied doing anything.

During the meeting O’Keefe said that one of the purposes of the meeting was to take
away Roop’s position as team leader. However, after Roop protested, and they discussed
arranging a meeting between Roop and Matuszak to sort things out, Ambrosini and O’Keefe said 30
they would further discuss the issue of her team lead status. However, O’Keefe told Roop that, if
things did not start changing, and if she kept hearing more talk about bullying and harassment,
“I’m going to start firing all of you.”

2. Analysis 35

The complaint alleges that both Marino and Ambrosini interrogated Roop during this
meeting. However, the credited evidence shows that Marino only said that it was coincidental
therapists were hearing about things that were discussed in the November 10 meeting. I do not
believe that this statement constitutes an unlawful interrogation, and recommend that Complaint 40
paragraph 6(c)(ii) be dismissed.

As for Ambrosini’s question to Roop asking whether she talked with others about their
previous meeting, I believe that, the totality of the circumstances supports a finding of an
unlawful interrogation. Ambrosini was Respondent’s human resources director, and this was a 45

25 I found Kmetz to be a very credible witness, and credit his testimony as to what occurred during this meeting.
JD(SF)–14–19
46
formal investigatory meeting with two other high level management officials present. As noted
earlier, the Act protected Roop’s right to discuss what occurred in her November 10
investigatory meeting with her coworkers, including Backus. Thus the nature of the information
Ambrosini sought was protected. And, although she had in fact discussed the November 10
meeting with others, Roop denied doing so. Because Roop, under these circumstances, could not 5
have been lawfully disciplined for discussing what occurred in the November 10 investigatory
meeting with her coworkers, Ambrosini did not have a legitimate purpose for his question.
Finally, there is no evidence that anyone in the meeting gave Roop assurances against reprisals.
As such, I find the totality of the circumstances support a finding that Ambrosini’s questions
constituted an unlawful interrogation in violation of Section 8(a)(1) of the Act, as alleged in 10
paragraph 6(d) of the Complaint.

The General Counsel also alleges that O’Keefe’s statement that, if things did not start
changing, and if she kept hearing more talk about bullying and harassment, “I’m going to start
firing all of you,” constitutes an unlawful threat. Respondent counters that there was no 15
violation because O’Keefe’s statement was not linked to protected activity. Instead, arguing that
O’Keefe was referring to acts of harassment and bullying, which she wanted stopped, and not
individuals reporting such conduct. Resp’t Br., at 32–33.

In determining whether a statement constitutes an unlawful threat, the Board uses an 20
objective standard, whether the statement can reasonably be interpreted by employees as a threat.
Smithers Tire & Auto, 308 NLRB 72, 72 (1992). The actual intent of the speaker and the actual
effect on the listener is not determinative. Id.; Cf. Steelworkers Local 1397 (United Steel Corp),
240 NLRB 848, 849 (1979). The circumstances in which the statement is made must also be
examined to determine whether a violation occurred. Sacramento Clinical Laboratory, Inc., 242 25
NLRB 944 (1979) (examining the circumstances and words used Board finds a violation).

Here, in context, I believe the statement was an unlawful threat. As stated by Ambrosini
when the meeting started, the reason for the meeting was to investigate the claim that Roop
spoke with her coworkers about what was discussed in her November 10 investigatory meeting, 30
conduct that was protected by the Act. Thus, the meeting was to investigate Roop’s protected
concerted activities. And, while discussing that subject, Ambrosini brought up the issue of
coworkers filing bullying and harassment complaint forms with human resources, conduct that
was is also protected by the Act; some of these forms seemed to defend Roop. Considering the
primary reason for the meeting was to investigate Roop’s concerted activities, and Ambrosini 35
spoke about the concerted filing of bullying/harassment complaints, I believe that, objectively,
O’Keefe’s statement related directly to RTs filing bullying/harassment complaints with
Respondent. Accordingly, O’Keefe’s statement that she would start firing everyone if she kept
hearing more talk about bullying and harassment constituted an unlawful threat in violation of
Section 8(a)(1) of the Act. Rockford Newspapers, Inc., 229 NLRB 429, 432–33 (1977) 40
(Statement that employee would be fired if she “caused any more trouble” or “filed any more
complaints” related directly to employee’s protected activity and constituted an unlawful threat).

C. December 2016 allegations involving Aman Dhuper
45
JD(SF)–14–19
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Complaint paragraph 6(b)(i) alleges that, on December 14, 2016, Dhuper threatened to
terminate employees during a meeting in the respiratory department. This allegation is based on
what occurred during the mandatory staff meeting called after Dhuper had received Backus’s
December 10 email complaining about discrimination, bullying, harassment, etc., and after he
had taken his first tour of the respiratory department. 5

a. Background

During the December 14 staff meeting, Dhuper told the RTs that he was aware of the
issues in the department and wanted to hear from the staff directly to try and bring forth a 10
solution. Dhuper held up a file containing a stack of papers for the therapists to see, said he was
holding the respiratory department’s harassment file, and that it was the thickest in the hospital.
He told the staff to keep their personal issues, likes and dislikes, outside of the workplace. He
further said that he was very disappointed regarding the behavior he had heard about in the
department, he could fire everyone those who did something and those who did nothing. He 15
could not believe a group of people who take care of patients would behave in such a manner.
Dhuper told the staff that he firmly believed people should enjoy where they are working, so the
staff needed to ask themselves “do I want to be employed here. Am I happy here.”

The General Counsel argues that Dhuper’s statements constitute an unlawful threat. GC. 20
Br., at 42–43. Respondent contends there was no violation, and that what Dhuper was “saying
(albeit nicely) [was] what the hell is going on, how has this behavior gone on so long, and stop it
before everyone gets fired.” Resp’t Br., at 42.

b. Analysis 25

Regarding threat allegations, the “subjective thinking of the speaker is not controlling.”
Central Cartage, Inc., 236 NLRB 1232, 1254–55 (1978). And, the decision as to whether a
violation occurred does not turn on the employer’s motives or whether the coercion succeeded or
failed. NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946). Instead, the question is 30
“whether, under all the circumstances, the statement reasonably tends to restrain, coerce, or
interfere with employees’ rights guaranteed under the Act.” El Paso Electric Co., 350 NLRB
151, 152 (2007), enfd. 272 Fed. Appx. 381 (2008).

Here, the ultimate question is whether Dhuper’s statement that he could fire everyone 35
was linked to employee protected activity. If so, it constitutes a violation. If not, then the
statement was not unlawful. See e.g., Consolidated Bus Transit, Inc., 350 NLRB 1064, 1064 fn.
3 (2007) (Board majority and dissent debating whether threat to close facility was linked to an
incident of vandalism or to employee protected activities); PCL Construction, 269 NLRB 16, 17
(1984) (Board finds supervisor’s statement to union steward that he would “shut the goddamn 40
job down” was not related to the steward’s protected activities, but was directed to his personal
difficulties with other employees).

When Dhuper said he could fire everyone, he had just referenced the respiratory
department’s harassment file, saying it was the thickest file in the hospital. Backus had 45
distributed some of those complaint forms to coworkers, gathered them, and filed them as a
JD(SF)–14–19
48
packet with human resources, actions which constituted protected concerted activities.
Mitsubishi Hitachi Power Systems Americas, Inc., 366 NLRB No. 108, slip op. at 18 (2018)
(employee who, in part, submitted complaint letters to human resources asserting manager was
subjecting employees to bullying and abusive behavior was engaged in concerted activity for
mutual aid and protection). I believe the fact Dhuper referenced the complaint file before saying 5
he could fire everyone serves as sufficient nexus to sustain a violation. That is particularly true
considering that Dhuper said he could fire everybody, those who did something and those who
did not. Based this last statement, I believe a reasonable employee who was not involved in any
of the bullying/harassment, but witnessed such conduct, would think twice about filing such a
complaint with human resources if asked to do so by a coworker. If there was any ambiguity in 10
the statement, “the Board has been clear that it will construe any ambiguity in a threatening
statement against the employer making the statement.” Labriola Baking, 361 NLRB 412, 413
fn.6 (2014). Accordingly, I find that Dhuper’s statements would tend to coerce a reasonable
employee and chill the exercise of employee Section 7 rights, which includes the right of
employees to file group complaints about working conditions, and therefore violates Section 15
8(a)(1) of the Act.

D. Alleged interrogations during the individual meetings with Dhuper

a. Background 20

In the two weeks after the December 14, 2016 staff meeting, Dhuper scheduled a series
of individual meetings with various therapists. These meetings were held either in a boardroom
near Dhuper’s office, or in a nearby conference room. Dhuper and O’Keefe were present in each
meeting. In paragraphs 6(b)(ii) and 6(b)(iii) of the Complaint, the General Counsel alleges that 25
various statements made by Dhuper during these meetings constituted unlawful interrogations.

Coming into these meetings, Dhuper was aware that two camps had formed in the
department, involving two different individuals, and that people were choosing sides. He also
knew that multiple complaints had been filed with human resources by the therapists, and was 30
aware of the nature of the complaints including the posting of racist/degrading pictures and
coworker harassment, among other issues. It is against this backdrop that the individual
meetings occurred.

During his meeting with Roop, Dhuper asked about her complaints. Roop discussed 35
multiple problems she was having in the department. At some point during their meeting,
Dhuper made a statement about there being two groups in the department and asked Roop which
group she belonged to. Roop denied belonging to any group, saying that she was an individual
but would speak up if something was wrong. Dhuper then asked if Roop was the ringleader.
Roop denied being the ringleader, but again said that she would speak up if there was something 40
wrong.

In his meeting with Monique Johnson, after she discussed how certain people in the
department behaved, and the lack of discipline and decency, Dhuper asked her which team she
was on. When Johnson inquired as to whether he was asking if she was friends with Roop, 45
Dhuper said no. Later, Dhuper questioned her about Brian Smith, and asked Johnson who the
JD(SF)–14–19
49
troublemakers were in the department. In reply, Johnson pointed to Matuszak and her minions,
saying that if the hospital ridded itself of the people sending the text messages, the problems
would stop.

During his meeting with Amanpreet Kaur, Dhuper asked whether she sat next to Roop at 5
the staff meeting on December 14. He also asked her which side she was on, Roop’s or
Matuszak’s. Kaur told Dhuper that she was on neither side, and that she did not sit next to Roop
at the meeting, but was next to someone else.

The General counsel asserts that Dhuper’s questions to employees about 10
“troublemakers,” “ringleaders,” and which side they were on – Roop’s or Matuszak’s –
constituted unlawful interrogations. Respondent asserts that it was no secret which side
employees had taken, and that any reference to “troublemakers” or “ringleaders” did not involve
Section 7 activity. Resp’t Br., at 48.
15
b. Analysis

Here, viewing the questions objectively and in context, I believe that Dhuper’s asking
Roop whether she was the “ringleader” constituted a violation, but his statements to the other
employees did not. At the time of his discussion with Roop, Dhuper was aware that the 20
department had split into two camps, and there were significant issues involving pictures, text
messages, and allegations of harassment/bullying in the department. He was also aware of the
complaints submitted to human resources by the therapists (including Roop), and heard both
Pereyra and Roop complain about receiving anonymous text messages in the December 14 staff
meeting. Accordingly, I believe that the circumstances show there was enough of a connection 25
to employee concerted activity to make the question to Roop about her being the “ringleader”
coercive. Dhuper was Respondent’s highest level management official, he did not convey any
legitimate purpose for asking Roop if she was the ringleader, nor did he give her any assurances
against reprisals regarding the question. Accordingly, I find that Dhuper’s statement to Roop
constituted an unlawful interrogation. Sentry Investigation Corp., 249 NLRB 926, 931 (1980) 30
(Employer, who did not state a reason for his questions or give assurances against reprisals,
violated Section 8(a)(1) by asking employee if he was the “ringleader.”).

I believe the question to Johnson about “troublemakers” in the department related directly
to the individuals who were causing the problems by posting derogatory pictures and sending the 35
harassing text messages, and therefore is not a violation. When speaking to Johnson, Dhuper
first asked about Smith and then asked who the troublemakers were. Johnson pointed to
Matuszak and her cohorts, and said that if the people sending the text messages were dismissed
the problems would be stop. Accordingly, this situation is unlike those cases where the word
“troublemaker” was used as a “code” for employees engaged in union or other protected 40
activities. See Blue Star Services, Inc., 328 NLRB 638, 639 (1999) (“troublemaker” and “bad
attitude” are “sort of code words for union activities.”). Therefore I find that no violation
occurred.

Finally, I do not believe that Dhuper’s questions to Kaur or Johnson about which “team” 45
or “side” they supported were coercive. By this time it was no secret that the department had
JD(SF)–14–19
50
split into two camps—Roop’s and Matuszak’s—with many of the therapists choosing sides.
Viewed objectively and considering the surrounding circumstances, I believe that these questions
were not related directly or indirectly to any concerted activities; nor were protected activities
referenced. Instead, it appears Dhuper was simply trying to determine through which prism (that
favoring Roop or that favoring Matuszak) to assess the statements and complaints from these 5
employees.

E. January 2017 statements made by Dhuper in the tech room

Sometime in late January or early February 2017, Dhuper was making his rounds and 10
walked into the tech room where Roop was present along with Susan Dachouk and Chris
Hamid.26 Dhuper looked around and asked if there was any drama going on, any pictures or
anything else he needed to know about. He commented about how clean the lockers looked, and
how the WTF stampings had been removed. Roop, who had found the WTF stamp a few days
earlier, gave it Dhuper. As they were discussing the stamp, Dhuper looked at Roop and jokingly 15
said that she was the instigator of all the drama in the department; Roop kind of laughed off the
statement. He then looked at Hamid and said the hospital had 20 pages of complaints against
him. Dhuper made a comment about not tolerating the department’s drama and then left with the
stamp.
20
Dhuper’s comment about Roop being the instigator of all the “drama” in the department
could be subject to two conflicting interpretations: “drama” could refer to Roop as being
responsible for the WTF stamp; or it could refer to Roop as being responsible for all the
employee complaints. Although it was Matuszak, Seigal, and Smith who were actually
responsible for WTF stamp, Dhuper did not learn this until March 2017, when Johnson told him. 25
Accordingly, given the context of the statement, which was made in direct reference to the WTF
stamp, I find the evidence is insufficient to sustain a violation. See Alliance Rubber Co., 286
NLRB 645, 657 (1987) (no violation where foreman’s comments were susceptible of two
interpretations, one referring to union activity and the second to sabotage, particularly in view of
the context in which the statement was made). Accordingly, I recommend that Complaint 30
paragraph 6(b)(iv) be dismissed.

F. Allegation that Dhuper solicited employees to quit in February 2017

After Roop’s meeting in human resources on February 7, 2017, she met with Dhuper in 35
the boardroom near his office, with only the two of them present. Roop told Dhuper that she was
under a lot of pressure at work, and was being picked on even more since giving him the WTF
stamp. After discussing the stamp, Roop told Dhuper that she was called into human resources
earlier that day. Dhuper then asked Roop “if these people are picking on you, why don’t you just
quit.” Roop told Dhuper that she stuck with the hospital through difficult times, and was not 40
going to quit just because some people wanted her to do so. Dhuper then told her to just ignore
those people and continue doing her job.

26 Both Roop and Dachouk testified about what was said during this interaction. Regarding any conflicts in their
testimony, I credit Dachouk as to what was said; she had no personal interest in the outcome of the litigation.
JD(SF)–14–19
51
The General Counsel asserts that Dhuper’s statement violated Section 8(a)(1) of the Act,
as alleged in Complaint paragraph 6(b)(v). GC Br., at 47–49. Citing Dhuper’s testimony,
Respondent denies that he made the comments attributed to him by Roop, and argues that no
violation occurred. Resp’t Br., at 51–52.
5
I credit Roop’s testimony, and find that the Dhuper made the statements set forth above.
I do not believe Dhuper’s testimony that he only told Roop “we all have options,” without also
discussing with her the specific options in question, one of which would have been quitting and
moving on, as Roop testified.
10
At the time of the meeting, Roop had engaged in concerted activities protected by the
Act. These included participating in the group march to human resources and the filing of
bullying/harassment complaints in conjunction with her coworkers. The Board has consistently
found that statements to employees who have engaged in concerted activities that they should
consider working elsewhere if they are unhappy to be a violation. El Paso Electric Co., 350 15
NLRB 151, 152 (2007), enfd. 272 Fed. Appx. 381 (2008). In her November 2016
bullying/harassment complaint, which Backus filed with human resources as a packet with other
complaints, Roop basically complains about being picked on, the same thing she complained
about to Dhuper in their February 7 meeting, after which Dhuper asked why she didn’t just quit.
As such, assessing the entire factual context, I find Dhuper’s comment would tend to coerce a 20
reasonable employee and chill the exercise of employee Section 7 rights in violation of Section
8(a)(1) of the Act.

G. Allegation that Marino interrogated employees in February 2017
25
Complaint paragraph 6(c)(iii) alleges that on about February 7, 2107, during a meeting in
human resources, Marino interrogated employees about their Union activities. This allegation
involves the meeting in human resources after the incident between Roop, Smith, and Bousheri,
the hospital’s security guard. During the meeting Roop claimed that Marino asked her whether
she was speaking with Union representative Matt Mullany about their staffing issues. (Tr. 147) 30
Because Marino did not deny this testimony, the General Counsel asserts that the statement was
made and constituted an unlawful interrogation. GC. Br., at 46–47.

However, in determining what was said in this meeting, unless otherwise noted I
primarily credited the testimony of Kmetz as to what occurred. Kmetz testified that, during this 35
meeting, Roop said she was speaking on the phone with Mullany when Bousheri accused her of
swearing, she denied swearing, and said they could call Mullany and confirm that she was
speaking with him. In reply, Marino acknowledged that she was, in fact, speaking with Mullany.
Significantly, Kmetz does not include the statement Roop attributed to Marino. Accordingly, I
find the statement was not made, and recommend that Complaint paragraph 6(c)(iii) be 40
dismissed.

H. Allegation Dhuper impliedly threatened employees in March 2017

I have credited the testimony of Roop and Pereyra that, sometime in March 2017, Dhuper 45
told Roop “don’t let the door hit you, because that’s the only thing you got left.” On that day,
JD(SF)–14–19
52
Roop and Pereyra were working in the respiratory department and received a “stat” call to the
emergency room. Both were trying to rush to the ER but were having trouble with the automatic
doors which would not open. Dhuper was standing in the hallway. Roop said hello to him, and
as the doors finally opened Dhuper made the above statement; Roop told him that what he said
was not nice. 5

While Dhuper’s statement may not have been nice, in the context presented I do not think
it violated Section 8(a)(1). Neither Roop nor Pereyra were engaged in concerted activities at the
time of the statement, nor was any related topic discussed or referenced. And, in the
circumstances of this case, I do not believe a connection can be drawn to Roop’s February 13, 10
2017 discipline to warrant a violation.27 Citing Aladdin Gaming, LLC, 345 NLRB 585, 597
(2005), the General Counsel asserts that Dhuper’s statement, even if “oblique or vague, would
reasonably be construed as coercive and a threat of job loss” in violation of Section 8(a)(1) of the
Act. GC. Br., at 51. However, in the exchange cited by the General Counsel, an employee was
wearing a union button when he had a conversation with a supervisor who asked why the 15
employee had the button, said he felt betrayed, and told the employee to think about his work, his
family, and his future. Aladdin Gaming, LLC, 345 NLRB at 596–97. Thus, there was a clear
connection between the supervisor’s comments and the employee’s protected activities. Had
there been a connection between Dhuper’s statement and employee concerted activities, the
finding of a violation may have been appropriate. Cf. Marsak Leasing, Inc., 313 NLRB 817, 20
824–25 (1994) (statement to employees who were complaining about the speed of a truck that, if
they did not like working there they should not let the door hit them on the way out, evidence of
unlawful motive in the discharge of one of the employees). However, there is no such nexus
here. Under the specific circumstances presented, I do not believe that Dhuper’s statement
constituted a violation and recommend that the allegation in Complaint paragraph 6(b)(vi) be 25
dismissed.

I. Allegation involving Dhuper and the March 2017 power outage

In March 2017, Monique Johnson, Frank Mardenzai, Israel Oliviolo, and Phillip Duong, 30
were working in the respiratory department when a power outage occurred due to a
thunderstorm. The respiratory department was in darkness, as the backup power for the lighting
did not activate automatically. At some point Dhuper walked in. He explained what had
occurred regarding the generator, and commented on how much better the tech room looked
noting the WTF stampings had been removed. Johnson told Dhuper that he was talking to the 35
wrong group of people as none of them would destroy property. She also told Dhuper that it was
Matuszak who brought the WTF stamp into the department and the stamp then made its way to
Seigal and Smith. As Dhuper was about to leave, Johnson lightheartedly asked whether Dhuper
hated the respiratory department. He jokingly replied that it was true; he hated all of them for
the problems they were causing. 40

Then the conversation became serious. Dhuper told the group that he was tired of
everything that was going on in the respiratory department. Johnson replied saying that they
were not the ones causing all the problems, and Oliviolo said that he had nothing to do with

27 I do not believe a connection can be drawn because the violation involving the February 13, 2017 discipline is
premised on the fact that it relied upon the unlawful discipline issued to Roop in November 2016
JD(SF)–14–19
53
anything that was occurring in the department. Dhuper pointed to Oliviolo, Mardenzai, and
Duong and told them that, just because they thought they were not involved in the drama, they
would be fired as well and could get in line if they wanted to sue him. Mardenzai asked why
Dhuper did not fire the people causing all the problems and Dhuper replied that he was well
aware of the ringleaders causing all the drama in the department, in an apparent reference to 5
Roop and Matuszak.28 But, Dhuper said he wanted to give them an opportunity to work things
out on their own, a cooling off period, out of respect for the fact they had worked at the hospital
for 15-20 years. Johnson told Dhuper that Roop was putting herself in the line of fire by
speaking about things that were right. Dhuper then said that he knew what was causing the
problems, it was the PFT lab, and he could close the lab in a second but was not going to do so. 10
Johnson replied saying that, while he was giving Matuszak and Roop a cooling off period,
nothing had cooled off and things had gotten worse.

The General Counsel alleges that Dhuper’s comments violated Section 8(a)(1) of the Act,
in that they constituted an implied threat to terminate employees, and an implied threat to close 15
the PFT lab, as alleged in Complaint paragraph 6(b)(vii). I agree that the statement to Oliviolo,
Mardenzai, and Duong that they could be fired, even though they thought they were not involved
in any of the drama, constituted an unlawful threat. Dhuper prefaced the comment by saying he
was tired of everything that was going on in the respiratory department, and this comment was
broad enough to include both the misconduct engaged in by some employees, and the concerted 20
complaints engaged in by other employees; Dhuper made no differentiation. As such,
considering the context, I find that Dhuper’s statement would tend to coerce a reasonable
employee and chill the exercise of employee Section 7 rights.

I do not believe that Dhuper’s comment about the PFT lab constituted a violation. In 25
context, it appears the comment was related specifically towards the personal and individual
sniping between Matuszak and Roop that seemed to have started after Matuszak became the full-
time PFT lab tech, and was unrelated to employee concerted complaints. Accordingly, given the
context in which the statement was made, I do not believe it had a reasonable tendency to
interfere with, restrain or coerce employees in their protected concerted activities. Thus I 30
recommend the allegation on Complaint paragraph 6(b)(vii)(3) be dismissed.

J. Alleged threats by Marino and O’Keefe in April 2017

Complaint paragraph 6(c)(iv) alleges that, in April 2017 Marino threatened employees 35
with termination for signing the petition. And paragraph 6(a)(ii) alleges that O’Keefe made
coercive statements to employees in violation of Section 8(a)(1). Both these allegations involve
discussions with Marco Garcia and Eric Thom that occurred after Backus delivered the employee
petition to Dhuper, Blaisdell, and the Union.
40
1. Conversation between Garcia, Thom, and Marino

The credited evidence shows that, on about April 19 Garcia and Thom were in the
hallway near the respiratory department when they saw Marino walking towards them; Garcia

28 I recommend the interrogation allegation in Complaint paragraph 6(vii)(1) be dismissed, as I credit Mardenzai’s
testimony that Dhuper said he was “well aware of the ringleaders.” (Tr. 795)
JD(SF)–14–19
54
asked Marino how he was doing. Marino said he was stressed out and might be working seven
days a week, twenty four hours a day, because of the petition. Garcia said that both he and Thom
signed the document because they wanted things to get back to normal. Garcia then asked
Marino whether there was going to be any backlash because of the petition. In reply Marino said
that he might have to get rid of half of his department. 5

The General Counsel alleges that Marino’s statement constituted an unlawful threat.
Citing Marino’s testimony, Respondent asserts that the conversation did not occur. Resp’t Br., at
63. However, assessing the demeanor of all the witnesses, I credit the testimony of both Garcia
and Thom as to what happened, and find that the conversation occurred as set forth above. I 10
found both Garcia and Thom to be very credible witnesses; the same is not true with Marino.

Regarding the petition itself, I find that the act of the RTs circulating, signing, and
delivering the petition constituted protected concerted activity. The petition complains about a
hostile working environment, bullying, retaliation, racial and professional harassment, and 15
breach of the union contract, among other things. These are all matters of common concern, and
are protected by the Act. Continental Pet Technologies, 291 NLRB 290, 291 (1988) (Board finds
that letter written by two employees accusing supervisor of favoritism and harassment
constituted protected concerted activity); Hoytuck Corp., 285 NLRB 904, 904 fn. 3 (1987)
(petition complaining about kitchen supervisor, and seeking his discharge, protected activity 20
where the supervisor’s conduct had an impact on working conditions); Senior Citizens
Coordinating Council of CO-OP City, 330 NLRB 1100, 1102–04 (2000) (employees who signed
and sent letter threatening a work stoppage with the object of influencing respondent in selection
of management personnel were engaged in protected concerted activity where the demand for
qualified supervision had a direct impact on the terms and conditions of their employment); 25
Walls Mfg. Co., Inc., 137 NLRB 1317, 1319 (1962), enfd. 321 F.2d 753 (1963) (employee letter,
supported by coworkers, to the Texas health department complaining about, among other things,
unsanitary working conditions and lack of heating, constituted protected concerted activity even
if the information was inaccurate, so long as it was not deliberately or maliciously false); Empire
Gas, Inc. of Denver, 254 NLRB 626, 630 (1981) (employees submitting a joint petition to 30
management stating they would walk off the job if the rest of their bonus was not paid
constituted concerted activity for their mutual aid and protection).

Respondent does not argue in its brief that the circulating, signing, and delivery of the
petition by employees somehow lost the protection of the Act because it was delivered to 35
Blaisdell, or because of some of the employee demands made in the document. And, I believe
that the record evidence is insufficient to support such a claim. As such, I find that the therapists
engaged in conduct protected by Section 7 of the Act when they circulated and signed the
petition, and Marino’s statement that he might have to get rid of half of his department, in
relation to whether there would be any backlash from the petition, constituted an unlawful threat. 40
Enterprise Products Co., 196 NLRB 549, 562 (1972), enfd. 471 F.2d 651 (5th Cir. 1973) (Table)
(Supervisor’s statement that he might have to lay off employee who signed union card
constituted an unlawful threat.); See also NLRB v. Stanton Enterprises, Inc., 351 F.2d 261, 263
(4th Cir. 1965) (Banquet manager’s statement that company president would fire any waitresses
he found signing union cards constituted an unlawful threat.). 45

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2. Conversation between Garcia, Thom, and O’Keefe

After their conversation with Marino, Garcia and Thom were leaving work and ran into
O’Keefe in the parking lot. Garcia’s conversation with Marino made him nervous about losing
his job so when he saw O’Keefe in the parking lot, Garcia asked her whether anyone was going 5
to be disciplined for signing the petition. Thom intervened. Trying to calm down a nervous
Garcia, Thom said that if they came to work, kept their nose clean, and did their jobs, they would
probably be okay. O’Keefe agreed with Thom’s statement, saying that if they came to work, did
their jobs, and kept their nose clean, nobody was going to lose their jobs. However, she went on
to say that management was extremely unhappy, that what the employees did was the equivalent 10
of an unwarranted attack on the hospital, and the way they did it was outside the scope of what
was reasonable.

The General Counsel asserts that O’Keefe’s statement constitutes a violation of Section
8(a)(1). Respondent, citing O’Keefe’s version of what was said, and her claim that she had no 15
knowledge of the petition at the time the conversation occurred, argues that there was no
violation. Resp’t Br., at 35. Having assessed the demeanor of the witnesses, I again credit the
testimony of both Garcia and Thom as to what was said, and find that the conversation occurred
as set forth above.
20
Along with assessing witness demeanor, I also discredit O’Keefe based on her testimony
that she did not know anything about the petition when this conversation occurred, as it is
inconsistent with Marino’s testimony. (Tr. 2317–18) Marino testified that during the evening of
April 13, the day the petition was delivered to Dhuper and emailed to Blaisdell, he telephoned
O’Keefe telling her about his email exchange with Blaisdell. And on April 14, after meeting 25
with Jones and having a chance to review and discuss the petition with her, he called O’Keefe
again. (Tr. 1482–84, 1488) The conversation with Thom, Garcia, and O’Keefe occurred 5–6
days after the petition was delivered, and well after Marino’s discussions with O’Keefe. As
such, O’Keefe’s claim that she knew nothing of the petition is not credible.
30
As for O’Keefe’s comments themselves, I find them to violate Section 8(a)(1) of the Act.
It is well settled that statements equating employee protected activity with disloyalty to the
employer constitutes coercion in violation of Section 8(a)(1). Health Now, Inc., 353 NLRB 453,
464 (2008) (citing HarperCollins San Francisco v. NLRB, 79 F.3d 1324, 1330 (2d Cir. 1996)).
O’Keefe’s statement, in relation to the petition, that management was extremely unhappy and 35
that what employees did was the equivalent of an unwarranted attack on the hospital, was the
same as accusing employees of disloyalty for signing the petition and was therefore coercive.

K. April 2017 alleged threats and polling
40
Around April 21 or 22, Marino was in the tech room along with RT Nancy Mardenzai.
He handed Mardenzai the letter drafted by Sarrao, along with a sheet for her to sign
acknowledging receipt of the letter. Mardenzai asked Marino what the documents were about.
Marino told her the letter was based on the petition, that according to the CEO whoever signed
the petition would be fired, and since a majority of the department had signed the document they 45
might be fired. He then asked Mardenzai whether she signed the petition. Even though she had
JD(SF)–14–19
56
signed the document, Mardenzai said no because she was scared. Marino denied making the
statements attributed to him by Mardenzai. However, I found Mardenzai to be a credible
witness, and credit her testimony as to what occurred.

Marino’s statement that, according to the CEO, whoever signed the petition would be 5
fired constitutes an unlawful threat in violation of Section 8(a)(1). Stanton Enterprises, Inc., 351
F.2d at 263. And, I find that Marino’s questioning of Mardenzai as to whether she signed the
petition was an unlawful interrogation. Marino had no legitimate reason for asking Mardenzai
the question, did not convey a legitimate reason, and did not provide Mardenzai with any
assurance against reprisals if she did not answer. And, I credit Mardenzai’s testimony that she 10
lied to Marino when she told him that she did not sign the petition because she was scared about
getting fired. Under these circumstances I find Marino’s questioning was coercive and a
violation of Section 8(a)(1).

L. Alleged Johnnie’s Poultry violations in May 2017 15

Complaint paragraph 6(e) alleges that, on May 18, 2017, Respondent interrogated
employees. The facts surrounding this allegation involve Respondent’s hiring of an outside
attorney from a law firm to investigate the employee complaints made in the petition.
20
1. Background

After the petition was delivered to Respondent, in April 2017 the hospital hired an
outside attorney to investigate the complaints outlined in the document. In connection with the
investigation, Jones called Monique Johnson and asked whether she would be willing to speak to 25
an attorney who was going to investigate all sides of what was happening in the respiratory
department. Johnson agreed to do so if it would help to bring about a resolution.

The attorney called Jonson sometime in either May or June. He introduced himself and
inquired as to whether Johnson knew why he was calling. Johnson asked if he was calling about 30
the petition. The attorney said the petition was one of the reasons for the call, that he was there
to collect information from everyone involved, and was neutral. He told Johnson that he had
been to the hospital on two previous occasions to collect information, and asked her what was
occurring in the department. After Johnson told him some of the issues, the attorney asked what
she would like to see happen. Johnson said that she wanted the people who were causing the 35
problems gone. Towards the end of their conversation the attorney asked Johnson who drafted
the petition. The question upset Johnson and she did not answer. However, she told the attorney
that petition was initiated because Dhuper had suggested it, and that she had signed the
document. At no time during this conversation did the attorney tell Johnson that there would be
no repercussions for refusing to answer any of his questions, or that Johnson would not be 40
retaliated against in any way. The attorney did tell Johnson that she did not have to speak with
him if she did not want to.

2. Analysis
45
JD(SF)–14–19
57
It is undisputed that Respondent hired the outside attorney to conduct an investigation
into the matters discussed in the petition. However, in its Answer to the Complaint Respondent
denied that the attorney was its agent pursuant to section 2(13) of the Act. (GC. 1 (ff), 1(hh))
Instead, during testimony, and in its brief, Respondent referred to the attorney as a “third party
investigator.” (Tr. 2144–45; Resp’t Br., at 67) Notwithstanding Respondent’s characterization, 5
an outside attorney conducting an investigation for an employer “is not a ‘third party’ in the
same way that a . . . detective agency would be.” Hartman v. Lisle Park District, 158 F. Supp.
2d 869, 876 (N.D. Ill. 2001). Unlike other contract workers, “the attorney has a relationship of
trust, confidence, and confidentiality with his client and owes the client a duty of loyalty that,
among other things precludes the attorney from taking on engagements that would give rise to a 10
conflict with the client’s interests.” Id. Therefore “[w]hen an attorney conducts for an
employer/client an investigation of an employee’s dealings with the employer, he is acting as the
client, just as would be the case if the employer had one of its employees conducting the
investigation.” Id. at 876–77. Although the issues in Hartman involved an alleged Fair Credit
Reporting Act violation, the court’s reasoning is equally applicable here. Accordingly, I find 15
that the attorney who spoke with Johnson was Respondent’s agent pursuant to Section 2(13) of
the Act when he questioned her about who drafted the petition.

Citing Johnnie’s Poultry, Co., 146 NLRB 770 (1964), the General Counsel alleges that
the attorney’s questioning Johnson as to who drafted the petition constituted an unlawful 20
interrogation. The General Counsel argues that Johnson was not given assurances that no
reprisals would be taken against her in connection with the conversation, and the attorney had no
legitimate purpose for asking who drafted the petition. GC. Br., at 59–62. Respondent argues
that Johnnie’s Poultry is inapplicable, as it only applies in two instances: (1) the verification of a
union’s majority status; and (2) the “investigations of issues raised in a complaint where such 25
interrogation is necessary in preparing the employer’s defense for trial of the case.” Resp’t Br.,
at 68. Because the attorney was not preparing Respondent’s defense to an unfair labor practice
charge, Respondent asserts that Johnnie’s Poultry does not apply. Id. at 69. Instead, it argues
that the “totality of circumstances” test in Rossmore House, 269 NLRB 1176 (1984) applies.
And, under this standard, there was no interrogation because the attorney was not Respondent’s 30
employee, the interview was conducted over the phone, was purely voluntary, and the attorney
was “investigating all sides.” Resp’t Br., at 69.

Here, I agree with the General Counsel that the analysis set forth in Johnnie’s Poultry is
the proper framework to apply. At the time the attorney spoke with Johnson, two of the unfair 35
labor practice charges in this proceeding had already been filed and were actively being
investigated by the NLRB. (GC. 1(a); 1(e)) The first charge involved Roop’s suspension and
discharge. (GC. 1(a)) The second charge specifically mentions the petition, and alleges that
Respondent violated Section 8(a)(1) by “threatening employees with discharge for signing a
petition; and interrogating and polling employees about whether or not they signed the petition.” 40
(GC. 1(e)) The Board has specifically applied Johnnie’s Poultry to situations involving
employee interviews which occur while a charge is being investigated by the Board and before a
complaint has issued. WXGI, Inc., 330 NLRB 695, 712 (2000), enfd. 243 F.3d 833 (4th Cir.
2001) (citing Le Bus, 324 NLRB 588 (1977)). Here, because the attorney, who as noted above
was Respondent’s agent, asked questions directly related to the petition, including the identity of 45
JD(SF)–14–19
58
the drafter, I find that the questioning was closely related to the allegations in the outstanding
charge to warrant the protections required by Johnnie’s Poultry.

In Johnnie’s Poultry, 146 NLRB at 770, the Board noted that, where an employer has a
legitimate cause to inquire into matters involving employee Section 7 rights, they may do so 5
without incurring Section 8(a)(1) liability if the following safeguards are communicated to the
employee: (1) the purpose of the questioning must be conveyed; (2) assurances of no reprisals
must be given; (3) the employee’s participation must be obtained on a voluntary basis; (4) the
questioning must take place in an atmosphere free from union animus; (5) the questioning must
not be coercive in nature; (6) the questions must be relevant to the issues involved; (7) the 10
employee’s subjective state of mind must not be probed; and (8) the questions must not
otherwise interfere with the statutory rights of employees.

Here, the attorney failed to provide Johnson with assurances against reprisals when he
questioned her about the petition. The simple failure to provide assurances against reprisals is 15
enough to trigger a violation. Standard-Coosa-Thatcher, Carpet Yarn Division, 257 NLRB 304,
304 (1981) (violation where employer’s attorney failed to recite the assurances only once in
more than 70 interviews). The Board’s rule “simply recognizes that a significant risk of
coerciveness arises when an employer questions employees” about Section 7 activity “without
informing them that they may, with impunity, decline to respond.” Standard-Coosa-Thatcher 20
Carpet Yarn Division, Inc. v. NLRB, 691 F.2d 1133, 1141 (4th Cir. 1982) Also, I find that the
question as to who drafted the petition was not relevant to the purported reason for the
questioning and was therefore coercive. The attorney was supposed to be investigating the
allegations of misconduct set forth in the petition, which was signed by seventeen employees.
There was no legitimate purpose for him asking who drafted the petition, as the identity of the 25
drafter was unrelated to the allegations of misconduct set forth in the document.29 Accordingly,
I find that Respondent violated Section 8(a)(1) of the Act by interrogating Johnson as to who
drafted the petition .

IV. ANALYSIS OF THE ALLEGED DISCRIMINATION AGAINST ROOP AND BACKUS 30

A. Legal Standard

To determine whether an employee’s discipline, suspension, or termination violates the
Act, the Board applies the burden shifting analysis set forth in Wright Line, 251 NLRB 1083 35
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983). Although Wright Line involved a
violation of Section 8(a)(3), this same framework is generally used whenever unlawful
motivation is at issue, including violations of Section 8(a)(1) and Section 8(a)(4) of the Act. See
NLRB v. Main St. Terrace Care Center, 218 F.3d 531, 540–41 (6th Cir. 2000) (applying Wright 40
Line to uphold Board’s finding that worker was discharged for engaging in concerted activity in
violation of Section 8(a)(1) of the Act); NLRB v. Overseas Motor, Inc., 721 F.2d 570, 571 (6th

29 Because of the other violations found herein, the fact there was no legitimate purpose for asking who drafted the
petition, assurances against reprisals were not given, and the fact that Johnson refused to answer the question as to
the identity of the drafter, even under the totality of the circumstances standard advocated by Respondent, I find that
the questioning violated Section 8(a)(1) of the Act.
JD(SF)–14–19
59
Cir. 1983) (applying Wright Line to sustain the Board’s finding of an unlawful discharge in
violation of Section 8(a)(4) of the Act).

Under this framework, the General Counsel must prove by a preponderance of the
evidence that the employee’s protected activity was a motivating factor for the employer’s 5
actions. The elements required to support such a showing are union or protected concerted
activity, the employer’s knowledge of that activity, and animus on the part of the employer. See,
e.g., Consolidated Bus Transit, 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 467 (2d Cir.
2009).
10
If the General Counsel makes this initial showing, the burden of persuasion shifts to the
employer to prove, as an affirmative defense, that it would have taken the same action even if the
employee had not engaged in protected activity. Id. at 1066; see also Ready Mixed Concrete Co.
v. NLRB, 81 F.3d 1546, 1550 (10th Cir. 1996) (by shifting the burden the employer’s
justification becomes an affirmative defense). Where an employer’s explanation is “pretextual, 15
that determination constitutes a finding that the reasons advanced by the employer either did not
exist or were not in fact relied upon.” Limestone Apparel Corp., 255 NLRB 722, 722 (1981),
enfd. 705 F.2d 799 (6th Cir. 1982). Also, where the “proffered non-discriminatory motivational
explanation is false even in the absence of direct motivation the trier of fact may infer unlawful
motivation.” Roadway Express, 327 NLRB 25, 26 (1998). 20

B. The Discipline, Suspension, and Discharge of Babita Roop

The record evidence shows that Roop engaged in protected concerted activities, that
Respondent knew about her actions, and that it harbored the animus against employee concerted 25
activities. Accordingly, the General Counsel has presented sufficient evidence to sustain a prima
facie case regarding the allegations involving Roop.

1. Roop’s protected concerted activity
30
Roop was engaged in activities protected by Section 7 of the Act going back to at least
June 2016, when employees marched to human resources in support of Pereyra and asked to
meet with Ambrosini to discuss what was occurring in the department, including the gorilla
pictures that were posted in the tech room.30 Also in June 2016, Roop and Johnson collaborated
on drafting the list of concerns involving workplace issues and submitted them to the Union to be 35

30 See Original Oyster House, 270 NLRB 87, 91 (1984), enfd. 770 F.2d 1073 (3d Cir. 1985) (table) (Employees
engaged in concerted activities which included requesting meetings with management about their working
conditions, even though the meetings were never held); Riley International Corp., 314 NLRB 785, 789 (1994)
(employee who, in part, brought employee complaint about working conditions to management’s attention by
requesting a meeting between management and employees to discuss and resolve those complaints, was engaged in
concerted activities); Industrial Hard Chrome, Ltd., 352 NLRB 298, 310 (2008) (work stoppage by unionized
employees was to call management’s attention to mistreatment of a coworker and constituted concerted activity
protected by the Act). Charleston Nursing Center, 257 NLRB 554, 555, 561 (1981) (employees were engaged in
protected concerted activity when they requested meeting with management to discuss grievances, but the employer
was under no obligation to meet with them as a group).
JD(SF)–14–19
60
addressed. These actions are protected by the Act.31 Some of the issues in the list of concerns
included questioning why certain benefited employees were not working weekends, which was
an issue that Roop had complained about directly to Marino earlier that month. The union
provided the list of concerns to Ambrosini who gave them to Marino. He, in turn, addressed the
items listed at a staff meeting in August 2016. 5

In November 2016 Roop ran for, and was elected, shop steward and Marino was
informed of the election results. She kept this position until March 2017. Roop also engaged in
concerted activities when she, along with Backus and two other coworkers, filed complaint
forms with human resources on the same day.32 Finally, Roop spoke with coworkers about, 10
solicited signatures on, and signed, the “Petition to Protect License and Workplace.”33

2. Respondent’s knowledge of Roop’s protected concerted activity

The record establishes that Respondent had knowledge of Roop’s protected concerted 15
activities; this includes Marino, Ambrosini, O’Keefe, Dhuper, and Jones. Both Ambrosini and
Marino knew about the employees who marched to human resources. Ambrosini testified that he
walked out to the lobby that day, saw the group of RTs who had gathered, and recognized them.
(Tr. 1531) As for Marino, when he spoke with Roop in late June 2016, he relayed to her that
Ambrosini had told him a group of employees were at human resources complaining about 20
Marino’s job. Roop told him that she was one of the people present, and they were not
complaining about Marino but were there to support Pereyra.34 (Tr. 38) Also, on March 16,
2017, Roop and Pereyra met with Jones. In this meeting Roop told Jones about the 2016 gorilla
pictures in the tech room photo-shopped with Pereyra’s face, and that Roop was one of several
employees who went to human resources to complain that the pictures were offensive. (GC. 81) 25

I also believe that it is reasonable to infer that Marino suspected Roop to be involved with
the list of concerns that RTs submitted to the Union, which she was. Among other things, the list
complained that some employees did not work weekends, stated the resource position was being
misused, was not needed, and could be performed by the RTs who did most of the work anyway. 30
About a week before the list was submitted to the Union, Roop complained to Marino about

31 See Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978) (Employees have the right to “seek to improve terms and
conditions of employment . . . through channels outside the immediate employee-employer relationship.”); Carolina
Paper Board Corp., 183 NLRB 544, 556 (1970) (Employee’s actions in complaining to the union about
mistreatment and harassment regarding work assignments was protected by the Act, even if the complaints lacked
merit, as the employee was seeking the union’s help in connection with what he believed to be a justifiable
grievance.); Farmer Bros. Co., 303 NLRB 638, 651 (1991), enfd. 988 F.2d 120 (9th Cir. 1993) (Table) (“In seeking
the aid of his local union to help resolve his work dispute, the Charging Party engaged in obvious union activity.”).
32 Meyer Tool, Inc., 366 NLRB No. 32 slip op. 9–10 (2018) enfd. --- Fed.Appx. --- 2019 WL 949082 (2d Cir. 2019)
(employees going to human resources to file complaints about working conditions protected and concerted even if
they did not present the same issues or concerns in their complaints).
33 In her brief, the General Counsel cites other instances of alleged concerted activity. However, for purposes of the
analysis here, it is redundant and unnecessary to address every instance cited by the General Counsel.
34 Whether Marino thought that the employees who marched to human resources were complaining about him, or
were supporting Pereyra, is not relevant as both complaints are concerted activity protected by the Act. Moreover,
because Marino was the department manager to whom Pereyra initially complained, and employees perceived that
nothing had been done about Pereyra’s harassment concerns, the subjects overlap and any complaints of inaction by
Respondent and harassment in the department would necessarily encompass Marino as the manager.
JD(SF)–14–19
61
Hamid, who had just been appointed to the resource job, and the fact that he was not going to be
working weekends. Under these circumstances, I believe a reasonable inference can be drawn
that Marino, at the very least, suspected Roop’s involvement with the list.35

Also, the record shows that Marino suspected Roop of having spoken with coworkers 5
about her November 10 human resources meeting involving the letter drafted by Matuszak,
Smith, and Hamid. On November 21, 2016, the same day Roop received her written verbal
warning, Marino emailed Ambrosini saying that information from the November 10 meeting had
been leaked to others in the department. Marino suspected Roop, wanted to confirm it, and
proposed suspending her for doing so. And, when he presented Roop with the discipline, Marino 10
asked Roop if she had spoken with anyone about their previous meeting. As noted earlier, in
these circumstances Roop had a right protected by the Act to discuss what occurred in her
November 10 meeting with coworkers. Inova Health System v. NLRB, 795 F.3d 68, 85 (D.C.
Cir. 2015); Caesar’s Palace, 336 NLRB 271, 272 (2001). And, Marino’s suspecting Roop of
discussing the meeting with other therapists is sufficient to establish knowledge of her concerted 15
activities.36 It is also clear from the record that that Ambrosini and O’Keefe knew, or suspected,
that Roop had discussed the November 10 meeting with her coworkers, as the issue was
specifically discussed with Roop in their December 5 meeting.

Ambrosini, Marino, and Dhuper all knew about the group bullying/harassment 20
complaints filed with human resources by Roop, Backus, and others. Ambrosini knew because
they were filed with his office and were on his desk when he spoke with Dhuper and showed him
the complaints filed by respiratory department employees. Dhuper had these complaints with
him when he addressed the RTs in a staff meeting, showing them the stack of papers and saying
it was the department’s harassment file which was the thickest in the hospital. Roop’s election 25
as union steward was no secret, as the election results were emailed to Marino. Finally, as for
the petition, Dhuper was given a copy of the signature sheet showing every RT that had signed
the document, including Roop. Accordingly, the record shows that Respondent was well aware
of Roop’s concerted activities.
30
3. Animus

The record is replete with evidence of animus against employee concerted complaints.
The various 8(a)(1) violations by Marino, Ambrosini, O’Keefe, and Dhuper are sufficient to
establish animus. Dynasteel Corp., 346 NLRB 86, 88 (2005) (“The Respondent’s numerous 35
8(a)(1) violations provide evidence of its anti-union animus”).

Also, although not alleged in the complaint, Marino’s statements to Frank Mardenzai and
Alex Aguilar, and his changing Aguilar’s work schedule, also are evidence of animus.37

35 East Bay Rambler, Inc., 168 NLRB 1000, 1005 (1967) (“The Board has long held that employer knowledge . . . of
union activities may properly inferred from circumstantial evidence.”)
36 Respond First Aid, 299 NLRB 167, 169 fn. 13 (1990), enfd. mem. 940 F.2d 661 (6th Cir. 1991) (“The Board and
the courts have long held that when the General Counsel proves an employer suspects discriminatees of union
activities, the knowledge requirement is satisfied.”).
37 Stoody Co., 312 NLRB 1175, 1182 (1993) (animus can be based on unalleged conduct, and on conduct that does
not necessarily violate of the Act); Gencorp, 294 NLRB 717, fn. 1 (1989) (conduct not found to be a violation may
still be used to show animus).
JD(SF)–14–19
62
Regarding this incident, in May 2016, after Matuszak had been appointed as the new PFT lab
tech, Ochoa appointed the backup, and Hamid given the newly opened resource position, Aguilar
and Mardenzai called Marino to discuss the backup tech and the resource jobs. They complained
to Marino that they had more seniority than either Hamid or Ochoa, expressed their interest to
train in the PFT lab, and suggested the backup PFT lab tech position and the resource job be 5
rotated among therapists interested in this work. With this conversation, Aguilar and Mardenzai
engaged in protected concerted activity for mutual aid and protection.38 Marino’s response to
this conversation was to: (1) change Aguilar’s work schedule so that she no longer worked with
Mardenzai; and (2) tell Aguilar her schedule was changed because she and Mardenzai were riling
up the department and that Aguilar should not listen to others because they like to plant seeds 10
and see what unfolds. Both are evidence of animus.39

As set forth above, the General Counsel has presented sufficient evidence of a prima
facie case of discrimination. Accordingly, Respondent bears the burden of persuasion to show
that it would have disciplined, suspended, and discharged Roop absent her protected concerted 15
activities. Consolidated Bus Transit, 350 NLRB at 1066.

4. Roop’s November 21, 2016 written verbal warning

a. Background 20

On October 4, 2016, Matuszak, Smith, and Hamid drafted a three page letter to Marino
complaining that Roop had subjected them to “unprofessional hostility within the workplace.” In
the letter each set forth their various grievances against Roop. Marino used this letter as a reason
to issue Roop a written verbal warning on November 21, 2016; this was Roop’s first discipline in 25
her 17 years at the hospital.

Before issuing the discipline, Ambrosini and Marino met with Roop on November 10. In
the meeting Ambrosini said they had received a letter from Matuszak, Hamid, and Smith setting
forth some concerns. However, Roop was never shown the letter or told specifically what 30
allegations the three had made against her. Instead, Marino told Roop that she curses, is
unprofessional, does not do her job, and looks down on people. But he did not give her any
specific examples of incidents where she allegedly engaged in this conduct. All Roop could do
was profess her innocence, and ask Ambrosini whether Respondent had any problems with her
work; Ambrosini said that they did not. 35

On November 21, Marino met with Roop and gave her the discipline. In the meeting,
Marino told Roop that the discipline was being issued because of her unprofessional behavior
towards coworkers, which included using harsh language, rolling her eyes, and belittling other

38 Pilot Freight Carriers, Inc., 265 NLRB 129, 130–131 (1982) (several data entry operators who complained to
management about the individual selected for a vacant data control clerk position, claiming the successful applicant
was unqualified and lacked seniority, were engaged in concerted activities, but employee was fired for
insubordination that was unrelated to her concerted activities).
39 Terpening Trucking Co., 271 NLRB 96, 99 (1984) (Statements to employee asking why he was “riling up the
men” violated Section 8(a)(1)); Hobson Bearing Intl., Inc., 365 NLRB No. 73, slip op. at 13 (2017) (owner telling
worker to stop “stirring up drama with employees” a violation); General Baptist Nursing Home, 259 NLRB 982,
985 (1982) (change in work schedule because of employee’s union or protected concerted activities a violation).
JD(SF)–14–19
63
employees. Again, however, Marino did not give Roop any examples of when she allegedly
behaved unprofessionally or engaged in the conduct that Marino attributed to her. The only
thing Marino told her was that she was not to roll her eyes going forward. And, during the
meeting Marino pressed Roop as to whether she had discussed with her coworkers what had
occurred in the November 10 meeting. 5

At trial, Marino testified that Roop was ultimately disciplined because of her interactions
with Matuszak, Hamid, and Smith. (Tr. 1362) However, he gave no examples of what Roop
allegedly did. Ambrosini initially testified that Roop was disciplined because of an unpleasant
interaction that he believed occurred during a handoff. However, the October 10 letter 10
complaining about Roop does not say anything about an unpleasant interaction during a handoff.
Later in his testimony, when asked what specifically Roop did to warrant a discipline, Ambrosini
answered that he could not recall. And, he could not tell from the face of the disciplinary
document itself. (Tr. 1651)
15
Roop’s discipline states that her actions violated the following the Respondent’s
Standards of Conduct Policy regarding “Bullying, Discrimination, and Harassment and
Retaliations Prohibitions and Complaint Procedure.” Notwithstanding, when asked what Roop
did that constituted “bullying,” Ambrosini testified that he was not certain anything she did
would fall under the bullying policy. He also testified that her conduct would not constitute 20
discrimination or retaliation. As for harassment, Dhuper testified that it may have been
harassment, depending upon her interaction with Matuszak at the time, that it may have been
bullying as well, but ultimately Ambrosini could not recall what, if anything, Roop did that
subjected her to discipline. (Tr. 1651, 1667–68; GC. 8)
25
b. Analysis

Based upon the evidence presented, I find that Respondent has not rebutted the General
Counsel’s prima facie case, and has not shown that it would have disciplined Roop absent her
protected concerted activities. Respondent could not explain what specific incidents were relied 30
upon for Roop’s discipline, nor did it present credible evidence that Roop engaged in the conduct
attributed to her. Central Cartage, Inc., 236 NLRB 1232, 1255 (1978), enfd. 607 F.2d 1007 (7th
Cir. 1979) (table) (employer’s “vague accusations that the alleged discriminatees were engaged
in” misconduct was not supported by any competent evidence and “strengthens the clear
inference” that the actions taken against them were discriminatorily motivated). 35

Similarly, during the underlying investigation, Respondent did not explain to Roop what
specific events it was investigating that could potentially subject her to discipline. While
Respondent met with Roop on November 10, Marino only made general accusations that Roop
curses, is unprofessional, does not do her job, and looks down on people. Roop was never 40
provided with any specific incidents which the hospital was investigating where this alleged
conduct occurred. Under these circumstances, I find that Roop was not afforded a meaningful
opportunity to answer the allegations against her, which is evidence of an unlawful motive.
Keller Manufacturing Co., 237 NLRB 712, 719 (1978) (Where employee was ostensibly fired
for poor work, various factors, including the fact respondent did not explain what exactly was 45
wrong with the work in question, supported a finding of unlawful motive); Tubular Corporation
JD(SF)–14–19
64
of America, 337 NLRB 99, 99 (2001) (failure to afford employee an opportunity to answer the
allegations raised by the investigation is evidence of unlawful motive); Joseph Chevrolet, Inc.,
343 NLRB 7, 8 (2004), enfd. mem. 162 Fed. Appx. 541 (6th Cir. 2006) (respondent’s true, and
unlawful, motive was “was evidenced by its failure to conduct a complete investigation by
asking [the employee] for his position regarding the incident.”). 5

Pointing to the employee march to human resources, in its post-hearing brief Respondent
argues that Roop’s concerted activities were too remote in time to support a violation. Resp’t
Br., at 78–79. I disagree. “[A]n employer might wait for a pretextual opportunity to discipline
an employee.” United Parcel Service, 340 NLRB 776, 778 fn. 10 (2003) (statement made to 10
employee that he was a “troublemaker” made 6 months prior to discipline was not too remote to
show animus). Moreover, Roop continued to engage in concerted activities even after the
employee march to human resource. In fact, in the weeks preceding her discipline, Marino
suspected Roop of engaging in concerted activities by discussing her November 10 disciplinary
interview with coworkers, and he interrogated various individuals, including Roop, about her 15
actions. He also pushed for her to be disciplined in July 2016, and even advocated suspending
Roop on the very day she was disciplined if he could prove she had spoken with coworkers about
the November 10 meeting. Station Casinos, LLC, 358 NLRB 1556, 1559 (2012) (supervisor’s
unsuccessful attempt to discriminatorily discipline employee based on the pretext of poor work
performance evidence of animus). There is nothing remote regarding either Roop’s concerted 20
activities, or Respondent’s animus towards such protected conduct. In fact, I believe that
Marino’s asking Roop if she spoke with any of her coworkers about the November 10 meeting,
conduct which is protected by the Act, at the very same time he was presenting her with her
discipline, is further evidence that the discipline was unlawfully motivated.
25
Accordingly, I find that Respondent has not shown that it would have disciplined Roop
absent her protected concerted activities. Instead, the record shows that Respondent violated
Section 8(a)(1) of the Act by disciplining Roop on November 12, 2016, as alleged in the
complaint.
30
5. Roop’s final written warning and suspension

a. Background

Seyed Reza Boushari (Bousheri) is a security guard at Saint Rose. Respondent’s security 35
guards patrol the interior and exterior of the hospital, both on foot and using a golf cart.40 (Tr.
1857–58)

On about February 7, 2017, sometime between 5:00 a.m. and 6:00 a.m. Boushari was
patrolling outside the hospital near the respiratory department employee entrance when he heard 40
a noise that sounded like fighting. Bousheri walked towards the noise to assess the situation.
What he saw was Roop standing on a walkway, about 10 feet from the employee entrance, on
her cell phone screaming and swearing at someone. At the time, Bousheri did not know Roop’s
name, but recognized her as working in the respiratory department. (Tr. 1872, 1888) Roop, who

40 I found Boushari to be a credible witness and credit his testimony as to what occurred regarding this incident. .
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was scheduled to work from 6:00 a.m.–6:30 p.m., was at the hospital early and had yet to clock-
in for her shift. (Tr. 21, 131, 135, 1861–64, 1872, 1876–79, 1881–82, 1888)

Bousheri decided not to encounter Roop. He thought she might start yelling at him and
instead of solving a problem it might create more issues. So, Bousheri walked back and forth a 5
couple of times in front of her, trying to show his presence as a security guard; Roop did not
acknowledge him. He then walked away to continue his patrol. At some point he saw Brian
Smith, who was working the overnight shift and was scheduled to clock-out at 6:30 a.m. that
day. Bousheri knew Smith as they sometimes talked during coffee/lunch breaks. He told Smith
what had occurred and asked if there was anything going on with Roop. Bousheri thought Smith 10
would inform someone in the respiratory department so the situation did not happen again. After
speaking with Smith, Bousheri finished his rounds, and then went to the security booth. (Tr.
1858, 1865, 1882–83, 1889, 1903– 04)

i. Argument between Smith and Roop 15

After speaking with Bousheri, Smith made his way back to the respiratory department to
give his report to Roop, as he was the team lead going off shift and she was the team lead
coming on shift.41 Roop, who by this time was already in the tech room, had discovered that
someone highlighted parts of the previous day’s assignment sheet which she had completed as 20
part of her duties as team lead. Roop assumed that Smith had made the highlights because he
was the night-shift lead. Smith had, in fact, made the markings. Marino had previously asked
Smith to note anything that he thought showed some sort of improper conduct by Roop and slip
it under his office door. This is what Smith was planning to do with the assignment sheet,
however Roop found the document before Smith could do so. (Tr. 129–30, 133, 1906–10, 1944) 25

When Smith walked into the tech room and started to give his report to Roop about the
evening’s activities, Roop challenged him about the assignment sheet, asking him to explain the
highlights. The two started arguing. One other respiratory therapist was in the room at the time,
at least one student was present, and others were coming in. Roop told Smith that they needed to 30
step outside, as they were not going to do this in front of the students. Smith told her that it was
too late—she had already started it. He then told Roop that she had been reported by security for
using profanities in the common area and that Smith was asked to tell Roop not to do it again.
This escalated the argument between the two. Eventually they left the tech room to speak with
the security guard; it took them about two minutes to walk from the tech room to the security 35
both. (Tr. 130–136, 1906–1919, 1944–1947)

According to Boushari, about 15–20 minutes after he spoke with Smith, Roop and Smith
arrived at the security booth unexpectedly. Smith spoke first, asking Boushari to confirm that he
saw Roop being loud and swearing. Roop then challenged Boushari, asking him whether she 40

41 The facts surrounding the interaction between Smith and Roop involving this incident are based upon the portions
of their testimony which I find credible. Regarding this incident both were prone to exaggeration. It is clear from
the record they were aligned with opposing factions in the department and during their testimony about this incident
they exaggerated what the other did and said, while downplaying their own role into what occurred. Also, I did not
find Smith to be generally credible at all, and I have discounted his testimony throughout this proceeding unless it
was corroborated by otherwise credible evidence.
JD(SF)–14–19
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was using profanities and was loud. Boushari answered yes. Roop then turned toward Smith
and started mocking him saying—what are you going to do about it, and shaking her hands in the
air exclaiming “Oh, I’m scared.” Smith walked away towards the respiratory department and
Roop followed him. They argued their way back to the respiratory department. Back in the tech
room Smith finished whatever he needed to do, grabbed his “stuff . . . kind of chuckled . . . and 5
left.” (Tr. 1918–19) (Tr. 135, 1867–70, 1890, 1893–95, 1918–19)

ii. Telephone Call to Marino and meeting in human resources

Marino testified that he was still at home, in bed when Smith called him and told him 10
what happened with Roop. Soon after Roop called. According to Marino, the call with Roop
lasted about six minutes, and was “one long stream of someone yelling at me,” and blaming him
for what was occurring in the department. Marino claimed that he tried to calm Roop down,
even calling out and then screaming her name, but he could not get through to her; Roop then
hung up, ending the call. Marino testified that Roop was so loud that the speaker on his phone 15
was distorted to the point he could not really understand what she was saying. After Roop hung
up the phone, Marino left Ambrosini a voicemail, and then called a nursing supervisor. He also
called Henry Aquino, another respiratory therapist, asking him to check on Roop; Aquino did,
and told him that Roop looked fine. (Tr. 1371–72, 1478; GC. 90)
20
Regarding the phone call, Roop testified that she stepped outside of the hospital, called
Marino and told him what occurred. She then told him that everyone was picking on her, that
she was tired of it, and started crying because she was emotional and “had a breaking point.”
(Tr. 138) As she was crying, she hung up on Marino. After speaking with Marino, Roop took a
break as she had been crying and was upset. She then went back to the department and picked 25
up her assignments; she also called Dhuper’s secretary to make an appointment to meet with him
that evening. (Tr. 136–38, 142–43)

When Marino arrived at the hospital, he called Ambrosini and they discuss what had
occurred. Marino wanted to send Roop home, saying that she was insubordinate and needed to 30
cool down, but Ambrosini was against it. After speaking with Ambrosini, Marino started
looking for Roop thinking she would be an emotional mess. However, when he found Roop she
was fine; she looked at him and said good morning. Marino was puzzled. He told her that they
would be having a conversation in human resources at 8:30 a.m. Roop told Marino she needed
to get a shop steward for the meeting, and would contact Marino after she located one. Roop 35
found Justin Kmetz to serve as shop steward; she contacted Marino and they arranged to meet in
human resources later that day. (Tr. 144, 1373, 1478–79; GC. 90)

Roop’s meeting in human resources occurred at around 9:30 a.m. on February 7. Present
was Kmetz, Roop, Ambrosini, Marino, O’Keefe, and Mike Gandhi.42 The meeting started with 40
Ambrosini saying Marino had reported to him that Roop was upset, screaming, and crying. And,
they were there to find out what happened that morning when Roop called Marino. Roop asked
why Gandhi was present. Gandhi said it was because Roop apparently had a problem with him.
The meeting then started getting loud and a short argument ensued between Gandhi and Roop as

42 Regarding any contradictory or extraneous testimony as to what occurred during this meeting, I specifically credit
Kmetz’s testimony as to what was said during this meeting.
JD(SF)–14–19
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to why he was present at what was supposed to be a meeting involving Roop and management.
Ambrosini intervened, telling everyone to stop, and saying that he “did not like where this is
going.” (Tr. 696) Apparently without resolving the issue involving Gandhi’s presence, the
meeting continued with Marino saying that he was trying to determine why Roop called him that
morning crying and yelling and said that she was hysterical during the call. (Tr. 145, 694–97) 5

Marino further said that Roop hung up on him during the call while he was trying to
understand what was going on and whether Roop was able to continue working. Roop
apologized saying that she wasn’t yelling at Marino, but was just having a breakdown and could
not take it. In fact, she was very apologetic to Marino, saying “sorry” numerous times for 10
calling, crying, and being upset. Roop admitted to hanging up the phone, but said her throat was
closing, she couldn’t talk, and was just crying. As for her ability to keep working that day, Roop
said that she was fine, and that next time she would just take a breather and avoid everyone who
was causing her trouble. Roop then started talking about the problems she was having with her
coworkers, including an argument she had with Hamid, and said there was so much stress and 15
anxiety at work, that she was seeing a therapist, taking medication, and was calling in sick for the
first time. (Tr. 146–47, 697–98, 701, 711, 1671)

Ambrosini then said that there was a complaint that someone had witnessed Roop cursing
during a conversation. Roop replied saying that she was not cursing, that she was off the clock, 20
outside the hospital, and on the phone speaking with Union business agent Matthew Mullany.
She recommended they call Mullany to confirm the conversation; Marino acknowledged that
Roop spoke with Mullany. (Tr. 146–47, 698–99)

At one point Marino inquired about Roop’s scheduled appointment with Dhuper later that 25
day, asking her what the appointment was about. Roop said that she was going to tell Dhuper
everything that was going on in the department. Marino then asked Roop for specifics as to what
she was going to say. Roop would not go into details. Instead, she said there were a lot of things
to talk about and she was going to tell Dhuper everything. The meeting ended with Ambrosini
saying that they were going to look into the matter and contact Roop if they needed to speak with 30
her again. (Tr. 149, 699–701; 1375)

iii. Roop’s meeting with Dhuper

Sometime that evening Roop met with Dhuper in the board room near his office; only the 35
two of them were present. As detailed earlier, Roop told Dhuper that she was under a lot of
pressure at work, was being picked on even more than before, and she had been called into
human resources that day. It was during this meeting that Dhuper asked Roop why she did not
just quit if people were picking on her. Roop told him that she had worked at the hospital since
1999, and was not about to now just because some people wanted her to do so. (Tr. 149–50) 40

iv. Decision to suspend Roop

Dhuper, Ambrosini, O’Keefe, and Marino met to discuss Roop’s fate. During the
meeting “it was determined the progression of discipline was going to have to take place. It was 45
really determining which level of discipline.” (Tr. 1376) This was Roop’s second discipline.
JD(SF)–14–19
68
Ambrosini believed Roop’s conduct was unprofessional, and referencing her prior verbal
warning he believed that Roop should be issued a written warning. O’Keefe strongly asserted
that they should move directly to a written suspension, arguing that her conduct was continuous,
that she had an altercation with a coworker in the tech room, and was attacking her manager on
the telephone; O’Keefe also believed Roop should be demoted from her position as team leader. 5
Marino agreed with O’Keefe. Ultimately Dhuper made the final decision, agreeing with Marino
and O’Keefe that they should progress directly to a written suspension, and that Roop should
also be removed as team lead. In making his decision, Dhuper was aware that Roop had worked
at the hospital for 17 years and that her only prior discipline was the November 2016 verbal
warning. However, Dhuper believed this was a clear case of misbehavior and insubordination 10
that occurred on the hospital grounds. Therefore, he chose the recommendation put forward by
Marino and O’Keefe over the one advanced by Ambrosini. (Tr. 1369, 1376, 1656–58, 2309,
2615–17, 2478–2483, 2612–2617)

v. Roop’s discipline and suspension 15

On February 13 Marino called Roop into human resources saying they needed to meet as
a follow-up to the February 7 meeting. When Roop arrived with her shop steward, she found
Marino and Ambrosini waiting. Marino told Roop the hospital had decided to “progress to a
final written warning and suspension,” and handed her the disciplinary document. (Tr. 1376) 20
According to the document, the hospital was also relieving Roop of her position as team leader.
The discipline, dated February 13, was prepared by Marino and signed by both Marino and
Ambrosini. (Tr. 151, 1377, 1602) It reads in part as follows (GC. 11):

The purpose of this written warning is to counsel you for the following 25
occurrence:

1) On 2/07/2017 you participated in a verbal altercation in the pulmonary
report room during the morning shift change. This exchange was carried
out in front of and without regard for staff members and students. 30

2) At 07:25 on 2/07/2017 I received a phone call from you in which you
were very angry and emotional. You proceeded to berate me in an
accusatory manner followed by disconnecting the call.
35
This display of unprofessional behavior violates the Standards of Conduct
policy specifically procedure items 2,7,15 and 32. This will not be
tolerated at any time while you are on the hospital campus.

St. Rose Hospital provides standards based on mutual understanding, 40
respect and cooperation, which maintains the highest standards of
personal/professional conduct. Disruption will not be condoned.
. . .

Any further actions such as this, will result in the progression of the 45
disciplinary process. (GC. 11)
JD(SF)–14–19
69

Roop read the document and asked Marino whether he even investigated the allegations
or had spoken to anybody who works with her. Marino did not respond. Roop said the
document was a lie and she was not going to sign it. Ambrosini told her that, whether she signed
it or not, Roop was suspended for two days and she would no longer be a team leader. (Tr. 152) 5

Roop did not sign the document. After the meeting she contacted the Union which filed a
grievance over the matter. As of the date of the hearing, the grievance was pending arbitration.
On February 14, Roop filed a charge of discrimination with the EEOC regarding her discipline
claiming that she had been discriminated against based upon her national origin, and further 10
alleging that Matuszak, Hamid, and Seigal had created a hostile work environment. (Tr. 153–57,
1337; GC. 29)

Roop’s suspension was one of Ambrosini’s last actions in his role as Respondent’s
human resources manager. On February 23, 2017 Ambrosini stopped working for St. Rose; he 15
started a new job elsewhere on March 1, 2017. And the problems in the respiratory department
now became an issue for Stephanie Jones, who took over for Ambrosini on March 6. (Tr. 1514,
1665, 1670, 2029)

b. Analysis 20

Based on the evidence presented, I believe that Respondent has shown that would have
issued Roop a discipline over the February 7 incident, despite her concerted activities. While
Smith certainly played a role in inflaming the situation with Roop, it was Roop who initiated the
confrontation with Smith in the tech room involving the highlighted assignment sheet. And, 25
other than the fact she was mad that the sheet was highlighted, no legitimate issue was presented
for Roop’s questioning Smith about the assignment sheet. This is what led to the initial
argument, which then led to the argument about Roop being reported by security. Then, instead
of focusing on their job assignments, treating sick patients at the hospital, the two left the
respiratory department completely to speak with the security guard to see who was right. This 30
conduct was not activity protected under the Act.

As for Roop’s phone call to Marino, while I do not credit Marino’s testimony that the call
lasted six minutes, or some of his other hyperbole related to call, I do credit his testimony that
Roop was screaming and yelling at him over the phone. Had she not been yelling, there would 35
have been no need for Roop to continually apologize to Marino about the call during their
meeting in human resources. And, while I have no doubt that Roop had reached a breaking
point, and started crying before hanging up on Marino, her call did not involve a patient, nor was
it an emergency situation. Moreover, it did not involve concerted activity for mutual aid and
protection; Roop was feeling picked on, and called to let Marino know. Under these 40
circumstances, I am not in a position to second-guess Respondent’s decision to discipline Roop
for the February 7 incident, nor has the General Counsel shown that this decision was pretext.

Notwithstanding, while I find the decision to discipline Roop was not unlawful, the same
is not true regarding the level of discipline issued to her and her suspension. Board law is clear 45
that “where a respondent disciplines an employee based on prior discipline that was unlawful,
JD(SF)–14–19
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any further and progressive discipline based in whole or in part thereon must itself be unlawful.”
The Hays Corp., 334 NLRB 48, 50 (2001); NLRB v. RELCO Locomotives, Inc., 734 F.3d 764,
787 (8th Cir. 2013) (“An adverse employment decision is unlawful if it relies upon and results
from a previous unlawful action.”). Such is the case here with respect to Roop’s suspension and
final written warning. 5

Based on the record evidence, it cannot be disputed that Respondent followed a
progressive disciplinary policy,43 which O’Keefe described during her testimony as follows:
“you have a verbal first. You can skip a written – just a written to a written suspension
depending on the severity. And then all of them are grounds for termination depending on the 10
discipline that – and the incident, why you’re getting disciplined.” (Tr. 2402)

And, the evidence shows that the decision to issue Roop a final written warning and
suspension was based, in part, on Respondent’s progressive disciplinary policy and took into
consideration her November 2016 written verbal warning, which I have found to be unlawful. 15
Specifically, Marino testified that when he met with Ambrosini and O’Keefe to discuss the
matter, “it was determined that the progression of the discipline was going to have to take place.
It was really determining which level of discipline.” (Tr. 1376)

Based on O’Keefe’s outline of Respondent’s progressive disciplinary policy, because 20
Roop had already been issued a verbal warning, the question was whether to issue her a written
warning, or a written suspension. The evidence shows that this was, in fact, the discussion.
Ambrosini thought her actions were unprofessional, but did not warrant a suspension.
Referencing her prior verbal warning, Ambrosini thought a written warning was more suitable.
However, Marino and O’Keefe both believed skipping straight to a written suspension was more 25
appropriate for Roop’s second discipline. Dhuper, who was informed of Roop’s work history,
including her prior discipline, ultimately chose progressing directly to a written suspension.
Finally, disciplinary records introduced into evidence show that other employees who were
accused of being rude to colleagues, using foul language, verbal abuse, or arguing with
coworkers, were issued lesser forms of discipline, had received multiple disciplines, or had 30
multiple incidents, before being suspended. (GC. 111, 112, 113, 115, 118, 122)

Based on the foregoing, I do not believe St. Rose has shown it would have issued Roop a
final written warning and suspension without reliance on the discriminatorily issued November
2016 discipline. Accordingly, because the evidence shows that Roop’s February 2017 discipline 35
was premised, in part, on her November 2016 verbal warning, which was found to be unlawful, I
find that the decision issue Roop a final written warning and suspension violated Section 8(a)(1)
of the Act.44 The Hays Corp., 334 NLRB at 50; RELCO Locomotives, Inc., 734 F.3d 7at 787;
Dynamics Corp., 296 NLRB 1252, 1254 (1989), enfd. 928 F.2d (2d. Cir. 1991).
40

43 See, e.g. (Tr. 717, 1376, 1546, 1572, 2313–14, 2402, 2125–26, 2135, 2207) Also, both of Roop’s disciplines
include the phrase that any further incidents “will result in the progression of the disciplinary process.” (GC. 8, 11)
44 I do not believe that the General Counsel has shown that the decision to remove Roop from her duties as team was
somehow tied into the progressive disciplinary policy. Therefore, I find that her removal from the position of team
lead does not constitute a violation, as it was premised on the conduct that occurred on February 7.
JD(SF)–14–19
71
6. Roop’s April 17, 2017 discharge

a. Background

Roop was terminated on April 17, 2017, over an incident that occurred on March 19, 5
involving an exchange between herself and per diem therapist My-Quyen Giang (“Giang”).
Giang had worked as a per-diem RT at St. Rose since 2014, and was friends with Matuszak. On
March 18, Giang had been working the night shift and was covering the emergency room; her
shift was scheduled to end at 7:00 a.m. on March 19. Roop was starting her shift the morning of
March 19, and was taking over Giang’s emergency room coverage. When her shift ended Giang 10
needed to report to Roop over what occurred during the night shift, and give Roop the
emergency room phone along with any remaining medication that needed to be administered.
(Tr. 2054–56, 2076–77; GC. 14)

In March 2018 the emergency room had run out of concentrated dosages of a particular 15
medication used with a nebulizer. Therefore, therapists were using diluted dosages, and splitting
the administration of the medicine over an hour-long period. Half of the dosage would be put
into the nebulizer first, and the other half later. Splitting the medication, and handing off the
remaining medicine to the oncoming therapist, was something the RTs had been doing for a
while, well before the exchange between Giang and Roop occurred. With this backdrop in mind, 20
various respiratory therapists who were present on March 19 testified as to what happened. (Tr.
224–25, 676–77, 2060, 2083–84)

i. The testimony of My-Quyen Giang
25
The morning of March 19, Giang was sitting at a table in back half the tech room, when
Roop came in and sat at a table in the other half of the room. Just before 6:45 a.m., Giang got up
and walked up towards Roop to give her the shift report on the evening’s activities; Roop was
sitting facing the wall with her back to Giang. Giang testified that Chris Hamid was also present,
as he was giving his shift report to Rose Rogers, who was sitting at the same table as Roop. (Tr. 30
2057–59, 2064; R. 9, p. 5)

According to Giang, she told Roop that she had started administering Albuterol to a
specific patient at 6:15 a.m., and handed Roop two unopened packets of Albuterol that needed to
be administered, saying that she had completed the charting and related record keeping for the 35
patient. Giang was unsure whether Roop was listening to her, as Roop did not look at her while
she was giving the report. Giang testified that Roop took the Albuterol, threw it on the table, and
then turned and looked at Giang asking her what time she started the medication. Giang again
said 6:15 a.m., and told Roop that she needed to give the patient the rest of the Albuterol at 7:15
a.m. Giang initially testified that Roop did not reply to her, instead she just started speaking with 40
Shilu Yogi who was sitting right next to her. According to Giang, she wanted to give Roop more
information about the patient, but did not. Giang just said okay, as she did not think Roop was
listening to her. Giang testified that Hamid then put his hand on her shoulder, but did not say
anything to her as he was till giving his report to Rogers. Giang then walked back to the other
half of the tech room where she had been sitting, gathered her belongings, and waited until her 45
shift ended at 7:00 a.m. so she could go home. When asked whether she actually told Roop that
JD(SF)–14–19
72
she had more information to give as part of her shift report, Giang testified that she did not do so
because she thought Roop was being disrespectful, and she thought that Roop told her that she
was experienced and did not need to know about the patient. (Tr. 2059 – 2066, 2074–75, 2081–
82)
5
Giang testified that she believed Roop had disrespected her. And she thought Roop acted
this way because Giang and Matuszak were friends. Giang testified that she could not let the
matter got, and decided to report the matter to Marino. On March 22, Giang emailed Marino
telling him about what occurred. According to Giang, this was the first time she had reported
someone at work. (Tr. 2062–2063, 2065–68, 2073; GC. 84) 10

ii. The testimony of Babita Roop

Roop testified that at about 6:45 a.m., the night shift was leaving and Giang asked
whether Roop had the next shift. Roop said that she did. Giang handed her the emergency room 15
phone, and Roop put it on the table. Giang then took out two doses of medication and gave them
to her. Roop told Giang that she knew about the situation involving the medication. Roop took
the drugs and put them on the table next to the phone. According to Roop, there was a
respiratory “stat” call, indicating an emergency, and she grabbed the ER phone and left the
department to respond. (Tr. 223–25) 20

According to Roop, Shilu Yogi was sitting next to her the entire time. Also present were
Rose Rogers and Eric Thom. As for Hamid, while he was working the same shift as Giang,
Roop testified that he was not even present when the exchange with Giang occurred. (Tr. 226–
28) 25

Roop further testified that the exchange of the phone and medication with Giang was a
non-issue. She did not believe that she did anything wrong, and claimed that she did not have
any issues with Giang. In fact, the evidence shows that Roop had recommended Giang for a job
at another hospital, and Giang had sent her a nice thank you note in return. (Tr. 226–27; GC. 30
151)

iii. The testimony of Shilu Yogi

Shilu Yogi was working the night shift with Giang, and was present when the exchange 35
between Giang and Roop occurred. According to Yogi, she was “around the computer side” of
the tech room doing her charting and could see both Roop and Giang during handoff. Giang
handed the ER phone to Roop, gave a brief report, told Roop about the medication that needed to
be given and handed it to Roop. According to Yogi, Roop did not throw anything on the table.
Yogi testified that the entire episode was nothing out of the ordinary. It was just like any other 40
report given on any other day, “[s]omebody comes in, we tell them what happened, and then we
leave.” (Tr. 672) Yogi testified that she did not hear Roop say anything unusual in response to
Giang handing over the medication, and the volume of Roop’s voice was normal; Roop was not
aggressive during the incident whatsoever. Yogi testified that Roop may have said “we have
been doing this,” referring to splitting the medication dosage, as this was a practice they had 45
JD(SF)–14–19
73
been doing in the department for some time. According to Yogi, Hamid was not present when
the exchange occurred, but that Rose Rogers and Eric Thom were. (Tr. 669–77, 684)

iv. The testimony of Chris Hamid
5
Hamid testified that the morning of March 19, Roop was taking over some of his patients,
as well as Giang’s. Roop came into the department at about 6:30 a.m. Hamid testified that he
started giving his report of the evening’s activities directly to Roop, and not to Rogers as Giang
had testified. Roop was sitting at a table, directly under the clock and facing the wall. Hamid
was standing behind Roop and to her right. Eric Thom was also in the room, sitting at the same 10
table as Roop; Rose Rogers and Shilu Yogi were also present, sitting in the other half of the
Room. (Tr. 1991–2004, 2030–31, 2033; R. 9, p. 5)

Hamid testified that at about 6:40 a.m., Giang approached and stood to Hamid’s his left,
but between him and Roop. As Hamid was finishing his report to Roop, Giang started to give 15
her own report to Roop, and offered to give Roop the ER phone. According to Hamid, Roop did
not turn around to acknowledge Giang. Instead, she asked Giang whether it was 6:45 a.m.,
implying that it was not yet time for her to take the phone. Giang then placed the phone on the
table, near Roop’s right hand; Hamid did not recall what Roop did with the phone after Giang set
it on the table. (Tr. 1992, 1995, 1997–98, 2004, 2030, 2035–37) 20

Then, Giang started her report on the evening’s activities and took out some medication,
saying it needed to be given in about 10 minutes. Hamid testified that Giang wanted to hand off
the medication, but Roop reached over with her left hand and violently grabbed the medication
from Giang’s hand, threw it on the table, said that she did not need Giang’s help and that she 25
knew what she was doing. According to Hamid, Roop never looked at Giang or even
acknowledged her presence. Hamid claimed that Roop’s statement was so loud that the entire
room could hear what was said, and “the tension, you could cut it with a knife.” (Tr. 1999)
Hamid testified that everyone in the room went quiet, they were already scared of Roop and
everyone “cowed down and just started looking at their own stuff.” (Tr. 1999) (Tr. 1995–98, 30
2033, 2035)

Hamid said that he then patted Giang on the shoulder as she was shaking and could not
speak because of the anxiety. He tried to comfort her and told Giang that if Roop did not want a
report then Giang could not force it on her. He also told Giang that the “the best thing we can do 35
is write an email and let them know what happened today.” (Tr. 2005– 06) Giang and Hamid
went to the other half of the tech room where they stayed a few minutes, grabbed their
belongings and then clocked out. (Tr. 2006) According to Hamid, there was no code blue or
emergency “stat” call during the incident. (Tr. 2007–09)
40
Hamid testified that both he and Giang made phone calls to Stephanie Jones in human
resources. (Tr. 2010) In fact, according to Hamid, he called Jones the day of incident and left
her a voicemail. (Tr. 2027)

b. Marino’s Investigation 45

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Although Hamid testified that he called Jones on the day of the incident and left her a
voicemail, it does not appear the investigation into what occurred started until Giang sent Marino
an email on March 23. Giang’s recitation of events in her March 22 email generally
corresponded with her testimony at trial. However, one difference is that in the email Giang
makes no mention of Roop allegedly saying that said she was experienced and did not need to 5
know about the patient.45 The email also states how Giang felt uncomfortable and disrespected
in contrast to how nicely Roop was speaking to both Yogi and Rose Rogers. (Tr. 2027; 1380;
GC. 84)

After receiving Giang’s email, Marino testified that he called Giang and asked her to tell 10
him what happened. (Tr. 1380–82) During their phone call, Giang told Marino that she started
to give Roop her report of the evening’s activities, but Roop did not turn around to look at her.
Giang stopped and asked Roop if she wanted to get a report, and Roop told her “I’m listening.”
Giang then continued on with her report, told Roop what time she started the treatment, and
handed Roop the ER phone. Without looking at Giang, Roop reached over her shoulder for the 15
phone and then placed it on the table. Giang then handed off the medications and Roop put those
on the table as well. Giang told Marino that Roop never looked at her during the encounter. (Tr.
1380 – 81) According to Marino, Giang seemed to be very upset, said that she was treated
poorly and did not know why. She also told Marino that Hamid was standing next to her when
this happened. (Tr. 1382) 20

Marino continued his investigation by speaking with Hamid briefly about the situation.
Marino only asked Hamid a few “yes” or “no” questions about what happened. According to
Marino, he then called Stephanie Jones. (Tr. 1382)
25
c. Jones’s investigation

i. Jones’s interview with Giang

Jones testified that she received an email from Marino about the incident, the two spoke, 30
and it was decided that Jones would speak with all the parties. (Tr. 2112) The evidence shows
that, upon receiving Giang’s email, Marino immediately forwarded it to Jones writing that “the
email speaks for itself.” (GC. 84)

According to Jones, she then proceeded to conduct her investigation, and Giang was the 35
first person she contacted; Jones spoke with Giang on March 23 and took a written statement as
to what occurred. (Tr. 2112–13) Jones testified that, when she takes investigatory notes she
reads back what the person is saying in order to be accurate, and that her notes are as verbatim as
possible. (Tr. 2113) Giang testified that her statement to Jones was given over the phone, and
that she described to Jones exactly what happened on that day. (Tr. 2068) 40

45 I do not credit Giang’s testimony that Roop said she was experienced and did not need to know about this patient.
Along with not being in her email, this statement is also not in Jones’s March 23 notes of their discussion. (GC. 84,
86)

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In their discussion, Giang described to Jones what happened. What Giang told Jones is
generally consistent with Giang’s trial testimony and her email. Giang identified Rose Rogers,
Shilu Yogi, and Chris Hamid as witnesses, and noted that Hamid was standing next to her giving
his own report. Giang told Jones that Hamid looked at her sympathetically when the incident
occurred. (GC. 86; Tr. 2113–15, 2068–2069) 5

ii. Jones speaks with Babita Roop

Jones testified that the same day she spoke to Giang, she also talked with Roop over the
telephone; she took notes of the conversation. (Tr. 2208; GC. 92) Jones claims that she told 10
Roop what Giang was alleging, and asked her about the allegations. (Tr. 2210 – 11) According
to Jones’s notes, Roop said that she did not remember any incident. Instead, she remembered
Giang telling her about a patient, saying that she had the ER, and that Roop “needed to drop
another Albuterol.” Then, according to Roop there was a “code blue” called so Roop ran out of
the room. Roop told Jones that she did not “snap” at Giang, and that there were other people in 15
the room including Rose Rogers, Shilu Yogi, and Eric Thom. Roop also said that Hamid was
possibly there was well. This was the only time Jones spoke to Roop about the incident. (GC.
92) (Tr. 2208–12, 2132)

iii. Jones contacts Chris Hamid 20

According to Jones, she spoke with Chris Hamid over the telephone and took his
statement. Then, because the interview was conducted over the phone, and Hamid was busy and
could not come into the office to see her anytime soon, she asked Hamid to put his statement in
writing and send it to her to ensure that her notes were correct. Hamid testified that Jones 25
specifically asked him to put his statement in writing so he emailed it to her. The evidence
shows that on April 11 Jones sent Hamid an email following-up on her request for a written
statement of what happened. Hamid emailed his statement to Jones the next day. (Tr. 2203,
2010, 2217; GC. 85)
30
The record contains both the notes of Jones’s phone call, and Hamid’s email. Jones’s
notes show that she spoke with Hamid on April 4, 2017. During this conversation, Hamid told
Jones that he was giving a report to Roop on the evening’s activities, when Giang asked him if
she could interrupt to give Roop the ER phone and let her know quickly as to what was
happening. Giang tried to hand Roop the phone, but Roop refused to take it saying she could not 35
take the phone because it was not yet 6:45 a.m. Then, Giang “gently set the phone on the table.”
According to Jones’s notes, Hamid said “you could cut the tension with a knife.” Giang then
told Roop about medication that needed to be given to a patient and Roop “snatched” the
medication from Giang and threw it on the counter. Hamid told Jones that what stood out to him
was Roop’s refusing to take the phone and the fact she snatched the medication from Giang and 40
threw it on the table. According to Jones’s notes, in their conversation Hamid made comments
that were critical of Roop, saying that she was snarky, rude, unprofessional, borderline
intimidating, and that Roop has an “aura” about her and makes it known when she is unhappy.
(GC. 85, p. 2)
45
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76
During their April 4 discussion, somehow they started speaking about other issues
involving Roop. Hamid told Jones that, on April 3 several employees reported to him that Roop
and Backus had paperwork for employees to sign stating that there was a hostile work
environment being caused by several individuals. (Tr. 2203 – 04; GC. 85, p. 2)
5
Hamid’s email to Jones is dated April 11, 2017, at 7:40 a.m. (GC. 85; Tr. 2118–19) In it
he says that Roop was acting “hostile, angry, and completely unprofessional.” He again stated
that Roop refused to take ER phone, but this time wrote that, instead of saying anything, she just
looked at the clock “indicat[ing]” it was not time for her to take the phone; thus Giang “quietly
placed the phone” by Roop’s hand. Hamid wrote that when Roop “snatched” the medicine from 10
Giang she said something to the effect of “I know what I’m doing.” He further wrote that “the
room went completely quiet, and tension filled the air instead,” as a distressed Giang walked
away while Hamid “gently intervened” patting her on the back saying she did a good report. In
the email Hamid gave his own conclusory clinical analysis claiming Roop could have possibly
put a life of a patient in danger as she refused to take a proper report and by not acknowledging 15
or even looking at Giang. Hamid ends his email saying that Roop’s behavior was uncalled for
and that he hopes his email “sheds more light on this continued problem we have been facing in
our department for the better of 14 months.” (GC. 85)

iv. Jones tries to speak with Shilu Yogi 20

Both Jones and Shilu Yogi agree that that Jones called Yogi in an attempt to take a
statement from her. However, the testimony varied greatly as to what actually happened.

Yogi testified that Jones called her sometime towards the latter part of March saying she 25
wanted to ask Yogi a couple of questions because Yogi had witnessed something. Yogi, who
was driving at the time, asked Jones what the questions were about, but Jones would now say.
Instead, Jones said that it was not safe for her to talk about it because she was driving. Jones
asked Yogi to come into the office the next day, but Yogi told her she was working the night
shift. Therefore, they set up a telephone appointment the next day, for around 4:30 – 5:00 p.m., 30
before Yogi’s shift started. Yogi called at the agreed upon time, but Jones did not answer. Yogi
left Jones a voicemail saying that she was calling in regards to the appointment they had set up,
and left Jones her phone number. After that, Yogi testified that she may have had a missed call
from Jones, but they never spoke. According to Yogi, she was working day shifts the following
week, so Jones could have easily reached out to her if she wanted. Yogi testified that, had she 35
known the issue involved someone getting fired, she would have called Jones multiple times, but
Jones never told her what the questions were about. (Tr. 673–74, 678–79, 685)

Jones testified that she tried calling Yogi, but Yogi was driving. She asked Yogi to come
in the next day for a statement, but Yogi could not. They made an appointment for a phone call 40
the next day, but Jones testified that Yogi never called her. Jones claimed that she tried calling
Yogi, but it went straight to her voicemail. Yogi then called Jones later that evening, but it went
to Jones’s voicemail. Jones testified that when she came to work the next day and got Yogi’s
voicemail, she went to speak with Marino and learned Yogi was scheduled to work the next day.
According to Jones, she went to look for Yogi that day, but Yogi was not there; Jones claims that 45
Yogi had called in sick. When asked why Jones simply did not order Yogi to report to human
JD(SF)–14–19
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resources for a meeting, Jones did not fully explain; she just said that it was difficult to do so as
Yogi only worked two days every couple of weeks. Jones closed her investigation without ever
speaking to Yogi or getting a written statement from her. (Tr. 2119 – 24)

v. Other witnesses to the incident 5

Everyone agreed that Eric Thom and Rose Rogers were also present when this exchange
occurred. However, Jones did not try to speak with either of them. Jones testified that she did
not think about contacting Rogers, because she felt she had “enough there” looking at the
statements she received from Hamid and Giang, as they basically corroborated what happened. 10
(Tr. 745, 2199, 2212)

When asked why she did not try to contact Rogers after Roop said she was present during
the incident, Jones testified that Roop only said Rogers was present, not that Rogers was a
witness. (Tr. 2212) When it was noted that Giang identified Rogers as a witness in her 15
statement, Jones testified that Giang said that Rogers “was not paying attention,” and “was doing
something else and most likely would not have heard anything that went on,” in that she was
doing her report. (Tr. 2197) But neither Giang’s email, nor Jones’s notes of their discussion, say
anything about whether Rogers was or was not paying attention, or whether she would have
likely heard anything or not. Jones’s notes simply say Rogers was sitting at the same table as 20
Roop “and was doing a report too.” (GC. 84) And, in the section of her notes regarding who
else may have seen or heard the incident, Jones wrote “Chris [Hamid], Rose [Rogers], and Shilu
[Yogi]. (GC. 86) Also, Jones’s notes state that Hamid was also giving a report to someone else
at the time of the incident; nonetheless, Jones spoke with Hamid and also asked him to provide a
written statement. (GC. 86) 25

d. The Decision to Fire Roop

i. Testimony of Joe Marino
30
Marino testified that Roop’s termination document was prepared by Jones, with his input.
He identified the document as “the final step in the disciplinary process.” (Tr. 1377–78, 1384;
GC. 12)

According to Marino, the decision to fire Roop was collective, but if “it were to sit on 35
somebody’s desk, it would be mine.” (Tr. 1378) Marino explained that, because he is the
department manager, “the buck stops” with him. (Tr. 1378) However, he cannot fire someone
without Jones’s approval— so Jones had to approve the decision. Therefore, Mario
recommended that Roop be fired, but the decision had to be approved by Jones. Marino claims
that he spoke with both Jones and O’Keefe about his recommendation, but he could not 40
remember the actual date of their meeting. (Tr. 1378–79, 1384–85)

Marino further testified that he recommended Roop be discharged because the situation
that occurred between Giang and Roop displayed the same behavior that Roop had “previously
displayed along the disciplinary chain.” (Tr. 1379 – 80) Marino testified that his view of the 45
disciplinary process is not to get someone fired, but to counsel them on behavior that is not
JD(SF)–14–19
78
acceptable so the employee can change course. According to Marino, Roop had just returned
from a suspension that involved the issue of her professionalism, and in Marino’s view she was
not rectifying her behavior. (Tr. 1382–83)

ii. Testimony of Rosanne O’Keefe 5

According to O’Keefe, she learned about the incident involving Roop and Giang from
Marino, and she took part in the meetings about Roop’s disciple. Specifically, O’Keefe testified
that she received a call from both Jones and Marino, “and we had a discussion about progressive
discipline and what we were going to do,” about Roop. (Tr. 2313) 10

O’Keefe also testified that there was a meeting in the CEO conference room on April 11,
2017 to discuss the matter. Present was O’Keefe, Dhuper, Marino, and Jones. O’Keefe claims
that she asked about the details of the case, and whether it was investigated. Jones told her that it
was investigated, that there was very disruptive behavior, that Roop would not take the handoff, 15
and there was medication supposedly thrown on the table. (Tr. 2314, 2381, 2383)

According to O’Keefe, she recommended termination as “[t]his is progressive discipline.
She already had a written suspension; this behavior continued.” (Tr. 2314) During the meeting
O’Keefe said they had given Roop every opportunity to rectify the situation, nothing was 20
changing; and it was just different people at different times. Therefore, according to O’Keefe,
she recommended, in collaboration with the team, that Roop be terminated. Dhuper agreed with
her recommendation, and Marino also recommended discharge. (Tr. 2314–15, 2380–82)

During the meeting, Jones had recommended an alternative discipline, that Roop be given 25
a “final, final, final.” (Tr. 2381) However O’Keefe objected, asking “at what point does a
suspension final take affect,” apparently referring to Roop’s previous discipline. (Tr. 2381)
O’Keefe said that Roop’s behavior had continued, she had opportunities to correct her behavior,
so they were done. (Tr. 2381)
30
iii. Testimony of Stephanie Jones

Stephanie Jones testified that, when she had completed her investigation she contacted
O’Keefe, Marino, and Dhuper, and they all met in her office the afternoon of April 11. During
the meeting she went over the investigation and either read or summarized the statements she 35
had received. She also reviewed Roop’s prior disciplines, outlined where Roop was in the
progressive disciplinary process, and said that the next step in progressive discipline was
termination. (Tr. 2124–25, 2204–05)

Jones further testified that she also outlined an alternative discipline, a final, final 40
warning in lieu of termination. However, Dhuper and O’Keefe expressed their frustrations, and
believed that the most appropriate decision was termination, the next step in the disciplinary
process. According to Jones, both of them were frustrated that the situation had been going on
for so long. They did not believe that a “final, final” would ensure that Roop would change, that
she would treat people with respect, or otherwise follow the hospital’s policies. According to 45
JD(SF)–14–19
79
Jones, Dhuper instructed her to go forward with termination based, in part, on the hospital’s
policy of progressive discipline. (Tr. 2125–26, 2206–07)

iv. Testimony of Aman Dhuper
5
Dhuper testified that he participated via telephone in the meeting where the decision was
made to fire Roop. According to Dhuper, during the meeting the necessary details were
presented to him, the trend in Roop’s behavior, a trend of insubordination, and it was said that
Roop was not following the code of conduct. He was made aware that Roop raised her voice,
and was not appropriately dealing with team members. And, he testified that the clinical team 10
did not find the incident acceptable, specifically the shift-handoff and the fact the patient in the
ER was in the middle of a treatment. Jones informed him about the investigation, and during the
meeting he “was made pretty well aware” that Roop’s behavior was a trend, and that it was
turning into something that was never-ending. (Tr. 2483–85, 2618–20)
15
According to Dhuper, it was a combination of both Jones and Marino that presented the
information to him during the meeting. O’Keefe and Marino felt strongly that Roop should be
fired, while Jones provided the alternative of issuing Roop a final, final, in lieu of termination.
According to Dhuper, they expected him to evaluate the situation in light of the trend, and
everything that was going on, and make a final decision. He evaluated the recommendations and 20
told them to go forward with the termination. (Tr. 2485, 2521, 2620)

e. Respondent’s meeting with Roop

Jones and Marino met with Roop on April 17, 2017 to present Roop with her discharge. 25
Roop’s termination letter, which was prepared by Jones, states that she was being terminated for
violating company policy: standards of conduct, discourteous conduct, and unprofessional
behavior. The document further states “[y]our disciplinary actions are summarized below” and
include the following incidents: (1) Roop’s November 21, 2016 verbal warning; (2) the
February 13, 2017 final warning and suspension; (3) the March 14, 2017 door incident with 30
Matuszak, stating that Roop’s “failing to enter a door courteously held open for you caused this
situation to escalate;” and (4) Roop’s March 19, 2017 exchange with Giang.

Regarding the incident with Giang, Roop’s termination letter states that Giang addressed
Roop “and tried to hand you the ER phone per department procedure. You ignored her and did 35
not take the phone.” Giang then tried to hand Roop medication for a patient in the ER but it was
reported that Roop “snatched the medication from the coworker’s hand and threw it on the table
in front of her stating ‘I know what I’m doing.’” The document also says that Roop’s
“discourteous behavior caused a tense situation as well as could possibly have put the life of a
patient in danger from an improper pass over of medical information.” Roop’s termination letter 40
also notes that her actions were in violation of the final written warning and suspension given to
her on February 12, 2017, and that Roop’s violations of the hospital’s policies and standards
related to patient care are not acceptable and could have placed the hospital and patients at risk.
(GC. 12)
45
JD(SF)–14–19
80
Justin Kmetz accompanied Roop to the meeting as her shop steward. During the
meeting, Jones told Roop that the hospital was investigating a complaint about inappropriate
behavior, and they determined that Roop had violated the hospital’s policies. Jones then handed
Roop her termination letter. Roop looked at the document, said “no” a few times, and further
said that what was in the letter was not true. Roop told Jones that she should have investigated 5
and asked the people that were standing right next to her about what happened. Jones replied
saying she had a lot of witnesses, and they saw her engage in this conduct. Roop asked who the
witnesses were, and said that Jones needed to speak with Yogi and Rogers. Jones said that she
had already spoken with a few people and that was why she was being terminated.46 (Tr. 701 –
03) 10

Kmetz asked if he could escort Roop to her locker so that a security guard did not have to
follow them around. Marino walked along with pair as Roop collected her belongings. Roop
handed Marino her badge, and then Kmetz walked Roop, who was crying, out to the parking lot.
(Tr. 703 – 04) And with that, Roop’s career at St. Rose came to an end. 15

Almost immediately after Roop’s discharge, the Union filed a grievance on her behalf. It
appears that the Union and Respondent met to discuss the grievance on April 20, 2017, and on
April 24, Jones sent a letter to the Union stating why Roop’s discharge was justified. In the letter
to the Union, Jones outlined Roop’s prior disciplines, and included the door incident with 20
Matuszak—which Jones said was included in the termination paperwork only as a point of
reference. She further stated that the decision to fire Roop was not based on the door incident,
“but rather the incidents in reference in the November 14, 2016 verbal warning and counseling,
the February 13, 2017 Final Written Warning and Suspension, and the March 19, 2017 incident”
involving Giang. (GC. 14) As of the close of the hearing, Roop’s grievance was still pending. 25
(Tr. 201, 2138; GC. 14)

f. Analysis

Ultimately Roop’s discharge suffers from the same defect as her suspension. In deciding 30
to terminating Roop, Respondent applied its progressive disciplinary system and relied upon
Roop’s unlawful November 2016 discipline, thereby rendering her discharge unlawful as well.
NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 787 (8th Cir. 2013) (“An adverse employment
decision is unlawful if it relies upon and results from a previous unlawful action.”). The
November 2016 discipline is explicitly stated in Roop’s termination letter, it also listed as a 35
justification for the discharge in Jones’s April 24 letter to the Union. Moreover, Jones testified
that, during the meeting where Respondent’s officials decided to terminate Roop, she reviewed
Roop’s prior disciplines with them, outlined where Roop was in the progressive disciplinary
process, and told them that the next step was termination. She further testified that both Dhuper
and O’Keefe believed that termination was appropriate, as it was the next step in the disciplinary 40
process. This testimony was confirmed by O’Keefe who said that, in deciding to fire Roop, they
discussed Respondent’s progressive disciplinary system, and it was ultimately determined that
discharge was appropriate.

46 During Kmetz’s testimony, the transcripts refer to Yogi as “Seila” instead of Shilu. (Tr. 703, 711)
JD(SF)–14–19
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The evidence does not show that Roop would have been discharged without reliance on
the unlawful November 2016 discipline. Indeed, disciplinary records introduced into evidence
by the General Counsel show that employees who were discourteous or disrespectful during
handoff reports received lesser forms of discipline, such as a verbal counseling or written
warning. (GC. 114, GC. 117 #1874). 5

Also, even if Respondent had not relied upon the November 2016 discipline, I believe
that there is sufficient evidence in the record to support a finding that Respondent’s proffered
reasons for terminating Roop are pretext. As discussed above, other employees who were
discourteous or disrespectful during handoff reports received lesser forms of discipline. I also 10
believe that Respondent tried to exaggerate the incident to support a termination. For example,
Roop’s discharge letter says that Roop ignored Giang and did not take the ER phone. However,
Giang told Jones that Roop took the phone and put it inside her pocket. (GC. 86) Also, Roop’s
discharge letter states that her exchange with Giang “could possibly have put the life of a patient
in danger from an improper pass over of medical information.” However, Giang never stated to 15
anyone that Roop’s actions could have resulted in any issues regarding the patient. The evidence
shows that the RTs knew about the practice of splitting medication, as it had been going on for
some time.

While Giang perceived that Roop was being rude and disrespectful, Roop specifically 20
asked her what time she had started the Albuterol treatment, and Giang told her. Although Giang
claimed there was more she wanted to say, she never told Roop that she had anything else to say.
As a responsible professional, had there been a true risk to the patient, Giang would have said
that there was more she needed to say; she did not do so. Instead, the comment about patient
safety seems to have been lifted directly from Hamid’s exaggerated April 11 email to Jones, 25
notwithstanding the fact that when he spoke with Jones on April 4, there was no mention
whatsoever of a potential risk to any patient; nor did the trial evidence show that the patient was
actually put in any risk. See NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 787 (8th Cir.
2013) (decision to add after the fact justifications to prior misconduct is recognized grounds for
inferring animus). 30

Also, the evidence shows that there were other employees whose actions actually put
patients at risk, but were not fired. One employee administered the wrong type of examination,
raising a “serious concern for patient care and safety,” but was given a first written warning.
(GC. 104 #1723). Three months later, that very same employee performed a CT head scan on 35
the wrong patient, thereby exposing the patient to unnecessary radiation and causing “patient
care and safety concerns” but was given a second written warning. (GC. 104 #1724) Another
employee mislabeled blood units and was only given a written warning despite the fact that,
because of his conduct “[a] patient’s life could’ve been at risk with such an error.” (GC. 105
#1779) I believe this evidence supports a finding of pretext. 40

I also believe Respondent’s investigation into Giang’s accusations support a finding of
unlawful motive. Jones did not speak with Rogers, Yogi, or Thom about what occurred, even
though they were identified to her as being present. Instead, Respondent relied solely on the
statements from Hamid and Giang. Hamid was clearly biased against Roop, having submitted to 45
Marino the October 2016 letter, along with Smith and Matuszak, which Marino used to issue
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Roop her November 2016 discipline. And, the evidence shows Giang, who was friends with
Matuszak, had reported to Marino on the protected concerted activities of Backus, one of Roop’s
friends and supporters. Under the circumstances of this case, had Respondent wanted to truly
determine what happened that day, it seems that, at the very least, someone would have
interviewed Yogi, Rogers, and Thom, as well as Giang and Hamid. 5

I find Jones’s explanation as to why she did not interview Rogers as contrived. When
asked why she did not contact Rogers, even though Roop told her she was present during the
incident, Jones testified that Roop only said that Rogers was present, and not that she was a
witness. When directed to the fact that Giang identified Rogers as a witness, Jones testified that 10
Giang said Rogers was not paying attention, doing something else, and likely would not have
heard anything. However, neither Giang’s email, nor Jones’s notes of their discussion say this.
Instead, Rogers was specifically identified as someone who “may have seen or heard the
incident,” along with Hamid and Yogi. (GC. 86, p. 2) It seems that Jones was straining to
manufacture a reason for not speaking with Rogers. 15

Similarly questionable is Jones’s excuse for not taking a statement from Yogi. While the
record shows that the two exchanged phone messages, Jones never told Yogi exactly what she
was calling about, or the specific incident for which Yogi was allegedly a witness.47 Yogi was
working the week after they spoke, and was available if Jones wanted to speak with her. Jones 20
seemed eager to get Hamid to send her a written statement, and even emailed him a reminder. It
is puzzling why Jones, if she wanted to truly determine what occurred that day, would not have
similarly emailed Yogi asking for a written statement, particularly if she was having such a hard
time reaching her by phone. The same holds true as to why Jones, as the director of human
resources, did not simply order Yogi to meet with her. Again, it seems that the statements 25
Respondent received from Hamid and Giang fit a predisposed narrative, and that the hospital was
not interested in exposing any facts to the contrary.

Also, during her discussion with Hamid about this incident on April 4, the two spoke
about the fact that several employees told Hamid that Roop and Backus were asking people in 30
the department to sign paperwork regarding a hostile work environment. (Tr. 2203–04; GC. 84)
As noted previously, I have found similar conduct by Roop and Backus to be both concerted and
protected. I believe the fact Hamid and Jones discussed Roop’s concerted activities while Jones
was interviewing him about the incident for which Roop was ultimately terminated lends weight
to the argument that Roop’s concerted activities played a role in her discharge. 35

Similarly suspect is the fact Respondent specifically listed in Roop’s discharge letter, as a
prior disciplinary action, the March 14, 2017 door incident involving Matuszak. No disciplinary
action was ever issued to Roop regarding this incident. Air Flow Equip., Inc., 340 NLRB 415,
419 (2003) (relying on conduct where no past discipline was issued is an indicator of pretext). 40

47 I credit Yogi’s version of what occurred, over that of Jones, regarding this incident. Along with assessing the
demeanor of both, I note that Yogi was a current employee when she testified as the General Counsel’s witness, and
was testifying against her employer which was contrary to her own self-interest. S.E. Nichols, Inc., 284 NLRB 556
fn. 2 (1987) (Current respondent employee's testimony more reliable because it is given against his interest to
remain employed by Respondent.).

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And, I find that Jones’s letter to the Union referring to this incident as a “point of reference” was
simply an attempt to change Respondent’s reasoning after the fact.

Finally, Marino’s testimony about the decision making process does not comport with
that of Respondent’s other witnesses. Marino testified that he recommended Roop be fired, and 5
that he spoke with O’Keefe and Jones about his recommendation. Nowhere in his testimony is
there any discussion about speaking with Dhuper regarding the matter. Marino also testified
that, while the final decision to fire Roop was “collective,” he was the manager and the “buck
stops” with him. But he needed the approval of human resources to fire Roop. Thus, ultimately
Jones had to approve Marino’s recommendation that Roop be discharged. This testimony is 10
different from that of Respondent’s other three witnesses who testified that Dhuper was the final
decision maker. In fact, according to the others, Jones recommended a final, final, warning in
lieu of discharge. I find Marino’s inconsistent testimony as further evidence of pretext. See
Maywood, Inc., 251 NLRB 979, 993-994 (1980) (inconsistent testimony from company
witnesses as to who made decision to discharge employee and the reason for the discharge is 15
evidence of pretext to hide the real reason, advocacy for the union); Cf. Planned Building
Services, Inc., 347 NLRB 670, 713-15 (2006) (in a refusal-to-hire case, inconsistent testimony as
to who made decision to not hire employees supports a finding of pretext).

In conclusion, I find that Respondent has not met its burden to show that it would have 20
fired Roop notwithstanding her protected concerted activities. Instead, Respondent relied upon
prior unlawful discipline to terminate Roop, which taints the discharge. The evidence does not
show that Roop would have been terminated notwithstanding the prior unlawful discipline, and I
further believe that the proffered reasons for Roop’s discharge are pretext. Based on the
foregoing, I find that Respondent violated Section 8(a)(1) of the Act by discharging Roop on 25
April 17, 2017.

C. The final written warning issued to Jernetta Backus

On April 9, 2018, about two weeks after Backus testified as a witness in this matter, she 30
was issued a final written warning over an incident that occurred on March 12, 2018.48 That
evening Backus administered DuoNeb to a patient that she did not retrieve from the hospital’s
automated dispensary system. Instead she picked it up from the table in the tech room.

1. Administering and documenting medications 35

a. Administering medications

To acquire medications they need to administer, practitioners at the hospital use an
automated medication storage and dispensing system called a PYXIS. Almost every floor at the 40
hospital contains a secure medication room with a PYXIS, and there is also one in the emergency

48 Backus filed a charge with the Board over the discipline and on April 27, 2018, the government issued a
complaint and notice of hearing in Case 32-CA-218138, alleging that Backus’s discipline violated Sections 8(a)(1)
and (4) of the Act. That case was consolidated with the already outstanding unfair labor practice allegations in this
proceeding. (GC. 1(jj), 1(ll), 70)
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room. Only personnel authorized to dispense medications are allowed entry into the medication
room and access to the PYXIS. (Tr. 967, 2257–58)

One of the hospital’s pharmacists compared the PYXIS to a vending machine, except it
dispenses medication instead of snacks. To retrieve drugs from the PYXIS, an RT enters their 5
username and thumbprint to access the system. Using a computer screen on the machine, the RT
chooses the patient in question, and selects the medication needed. After choosing the drug,
dosage, and the time the drug is to be administered, the RT chooses the “remove” option on the
screen. A drawer clicks open and plastic lid pops up with the medication. As soon as the
medication is dispensed from the PYXIS, it is charged to the patient’s account. (Tr. 968, 2238, 10
2249–51)

Hospital policy requires that any unused medication be returned to the PYXIS. Medicine
is returned in the same way as it is removed, except the user chooses the “return” option. A
drawer opens, a plastic lid pops up, and the medicine is returned. St. Rose’s policy regarding 15
retrieving and returning medications applies throughout the hospital. (Tr. 969, 2258–59)

The only official methods approved by the hospital for acquiring medication are by using
the PYXIS, or physically walking to the hospital’s central pharmacy and getting the drugs from
the pharmacist. People rarely go the central pharmacy. Instead, if there is a problem with one 20
PYXIS, they go to another, as there are several throughout the hospital. (Tr. 990, 2258)

Notwithstanding the official hospital policy about using the PYXIS to acquire and return
medication, RT’s regularly leave loose and unopened medication lying around the tech room,
particularly Albuterol and DuoNeb. These are found lying around on tabletops, in pencil 25
holders, and on shelves.49 Instead of returning unused medications to the PYXIS, sometimes
RTs just leave them in the break room. Then, another therapist grabs the unused medication and
uses it when needed instead of withdrawing another one from the PYXIS. It happens so often,
that on any given day one is very likely to find unused medications lying around the tech room.
“They seem to migrate around the department.” (Tr. 962) (Tr. 961 – 64, 975, 2049–51) 30

It was also common for therapists to handoff unused medication during shift changes
when giving report to the oncoming therapist about a patient. Even though such handoffs are
against hospital policy, and management knew the policy was being violated, it was an accepted
practice in the department. (Tr. 971, 985–86, 1098, 1147, 2082, 2385–89) 35

b. Documenting medications

To document the administration of medicine to a patient the hospital uses an electronic
medication administration record (MAR). RTs have access to several mobile computer work 40
stations to access the MAR. These computers, which include a handheld scanner, can be pushed
around the hospital, including into a patient’s room. (Tr. 980, 1007–08, 1018, 2239, 2249)

49 Various pictures introduced into evidence, including one taken by Marino while the hearing was still in session,
show unopened medications lying around the tech room. (Tr. 1288; GC. 126; R. 9, p. 8)
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When a patient is assigned to receive a certain medication or treatment, it shows up in the
MAR as a red box/bubble. For example, if a patient is supposed to receive DuoNeb four times a
day, the patient’s MAR will show four red boxes for DuoNeb, at the appropriate times: 8:00
a.m., Noon, 4:00 p.m, and 8:00 p.m.50 (Tr. 987, 1005–06, 1052, 1688)
5
To document administering the drug, using the scanner, the RT scans the patient’s
wristband, scans the medication, and then administers the drug. Once the medication is scanned,
the MAR documents it as having been administered, noting the appropriate time, and turning the
red box to green. Therapists can also perform a manual entry into the computer system, where
they physically type the information into the MAR. The patient’s ID number is typed into the 10
system, and then the drug administered and time given is also typed into the MAR. After the
manual entry is completed, the red box turns to green. In either situation, if the patient is on a
ventilator, the information is also documented on the ventilator flow sheet which is located in the
patient’s room.51 The best practice is to perform a manual entry, and record the information on
the ventilator flow sheet, as close in time as to the actual administration of the medication as 15
possible. While manual entries are allowed, RTs have been instructed that using the scanner is
the method preferred by the hospital. If for whatever reason a treatment is missed, it is supposed
to be documented into the MAR with the initials “NG,” which stands for “not-given.” (Tr. 981–
98, 1017, 1021)
20
2. The March 12 incident and Backus’s discipline

Backus was working the overnight shift on March 12; her shift started at 6:30 p.m. and
ended at 7:00 a.m. the next morning. She was assigned to the emergency room, the fourth floor
of the hospital, and the transitional care unit (“TCU”). As she started her shift, Backus reviewed 25
her assignment sheet which listed her assigned patients. It also listed whether these patients had
any outstanding treatment orders.52 Backus was assigned a certain patient who had significant
case of subcutaneous emphysema.53 The assignment sheet indicated the patient had orders for a
ventilator, but did not indicate that any other treatments were ordered by the physician. And,
during the handoff report, the therapist going off-shift did not tell Backus that the patient had any 30
treatments scheduled. (Tr. 1033–35, 1040, 1075–78, 1100, 1107; R. 4)

Backus went to visit the patient, who had a tracheostomy procedure performed to help
him breath. At the time, the patient was not on a ventilator, but one was in his room on standby.
Backus communicated with the patient and asked whether the patient thought a breathing 35
treatment would help; the patient shrugged his shoulders. Backus told the patient that she
believed a treatment would be beneficial and told him that she was going to administer one. She
took a DuoNeb out of her pocket and dispensed the medication to the patient; it was 8:30 p.m.

50 Pursuant to hospital’s policy, DuoNeb needs to be administered within 30 minutes either before or after the
scheduled time. (GC. 127, p. 4)
51 A ventilator flow sheet is a paper chart that accompanies a ventilator. Therapists can manually write progress
notes and chart vital statistics, along with any drugs administered, on the sheet. (Tr. 1019–20, GC. 128)
52 The lead therapist is responsible for preparing and updating the assignment sheet. (Tr. 1122–25)
53 Subcutaneous emphysema occurs when air gets into tissue under the skin. It can often be seen as a smooth
bulging of the skin which produces an unusual a cracking sensation when touched as the gas passes through the
tissue. (Tr. 1034) See also National Institute of Health Medline Plus,
https://medlineplus.gov/ency/article/003286.htm (last visited May 15, 2019)
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Backus had not retrieved the DuoNeb she administered from the PYXIS. Instead she had
grabbed it off the tech room table earlier in her shift and put it in her pocket. (Tr. 1034–36,
1082, 1096–97, 1102, 1823)

Backus made notations on the patient’s ventilator flow sheet about his condition and 5
other vital statistics. She also recorded on the ventilator flow sheet administering DuoNeb to the
patient at 8:30 p.m. She did this by writing a number “7” in a “Meds CODE” box on the
document, denoting that DuoNeb was administered. Along with the number “7” Backus had also
marked a vertical line through the Meds CODE box, which generally indicates that no
medications were given. Another therapist, Diana Garduno, made the exact same notation for 10
her assessment of the patient on March 22, 2018, at 3:15 a.m., writing a number “7” but also
marking a vertical line through the Meds CODE box (R. 5, Tr. 1121, 1821) (Tr. 1043–47, 1082–
83, 1091, 1104; GC. 128)

After administering the treatment and completing the ventilator flow sheet, Backus was 15
called away to other duties. At some point that evening she received a call that the patient was
being moved from the fourth floor to the TCU. As she was walking to the patient’s room,
Backus saw a coworker who told her a nurse had called about the patient, asking about a
treatment that was showing as a red box in the MAR. Backus told her colleague that she did not
know the patient had any treatments scheduled, and asked why the nurse did not call her directly, 20
as she was assigned the patient. Backus said she was on her way back to the patient’s room and
would look at the situation. (Tr. 1035–38, 1093–94, 1103–05)

When Backus arrived at the patient’s room, he had already been moved to the TCU, but
his ventilator was still in his original room; Backus pushed the ventilator to the patient’s new 25
room. She then connected the patient’s T-piece, which provides oxygen and assists with
expiration, and gave him the television remote control. It was now 11:10 p.m., and Backus
completed the patient’s ventilator flow sheet regarding her assessment of the patient’s vital
statistics. She then left the room and was standing near one of the mobile computers when a
nurse told her there was a red box for one of the patient’s treatments. Using the computer 30
Backus accessed the patient’s MAR and saw that his doctor had ordered DuoNeb treatments four
times a day and there was an outstanding red box for a DuoNeb treatment at 8:00 p.m. This was
the first time that Backus learned the patient’s doctor had ordered DuoNeb to be administered
four times a day. Backus told the nurse she had administered a treatment earlier and would clear
the box manually. At 11:31 p.m. Backus manually entered the 8:30 p.m. DuoNeb treatment into 35
the MAR, which cleared the red box. (Tr. 1037–38, 1044–45, 1049–52, 1080, 1095–96, 1104;
R. 18; GC. 128, 129)

On April 9, Marino gave Backus a final written warning regarding the 8:30 p.m.
treatment on March 12, and the surrounding documentation. During their April 9 meeting, 40
Marino asked Backus where she got the DuoNeb for the 8:30 p.m. treatment. Backus told him
that she did not know, she either got it from another therapist during the handoff or off the table.
Marino told Backus that she was being disciplined for not pulling the medication from the
PYXIS and for false documentation; he did not tell her specifically what she did that constituted
false documentation. At some point during the meeting, Backus told Marino “with all due 45
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respect, you’ve been half-assing this for a long time,” referring to Marino’s job performance.
(Tr. 1113–14, 1096, 1124; GC. 127)

This was the first discipline Backus had received in her five years working at the hospital.
After receiving the discipline, Backus contacted the Union which filed a grievance on her behalf. 5
As of the time of the hearing, Backus’s grievance was still pending. Backus’s meeting with
Marino on April 9 was the first time that Marino, or any hospital official, had asked her about the
incident or the related documentation. Backus denied falsifying anything regarding the patient’s
treatment, including the documentation, all of which she testified was accurate. (Tr. 321, 1052–
55, 1111) 10

3. Marino’s investigation and his decision to discipline Backus

Sometime on either March 14 or March 15, Marino was in the ICU chatting with an ICU
nurse.54 The two were engaged in small talk about a certain fastidious cardiothoracic surgeon 15
who had admitting privileges at the hospital. As they were talking, the nurse told Marino that the
surgeon was upset regarding his respiratory care orders involving a particular patient, thinking
someone changed them. She told Marino that one of the night nurses made a comment about an
issue regarding one of the respiratory medications. The nurse did not identify any of the
respiratory therapists who may have been involved. (Tr. 1679–82, 1736, 1783) 20

Marino looked through the hospital’s order management system to review the doctor’s
orders for the patient in question and saw the physician had ordered that, starting at noon on
March 11, DuoNeb was to be administered to the patient every four hours, which means at 8:00
a.m., Noon, 4:30 p.m. and 8:00 p.m. Marino did not see anything out of the ordinary with the 25
orders and noted that nothing had been changed. (Tr. 1682–84, 1688, 1737–38, 1827; GC. 142
#2530–31)

On March 15 Marino went to the PYXIS and looked to see what medications were
withdrawn for the patient in question. Marino testified that he did not see DuoNeb withdrawn 30
for this patient for the scheduled 8:00 p.m. treatment on March 12, or for the scheduled 8:00 a.m.
and Noon treatments on March 13. He then looked at the ventilator flow sheet and saw Backus
had documented administering DuoNeb to the patient at 8:30 p.m. on March 12. Marino testified
he thought her notation stood out as odd. Along with a number “7” (indicating DuoNeb was
administered), there was also a vertical line going through the same box. He also found it 35
strange there was no treatment administered the next day, when the patient was on a ventilator
and Thuc Ho had noted the patient’s vitals on the ventilator flow sheet at 7:40 a.m. and 11:30
a.m. (Tr. 1684–89, 1704–05, 1710, 1714; GC. 128, R. 15 #2342; R. 16)

According to Marino, he then looked at the patient’s MAR, which showed that Backus 40
made a manual entry at 11:31 p.m. on March 12 indicating she had administered DuoNeb to the

54 During his direct testimony, Marino testified that this conversation occurred “around March 14 or 15.” (Tr. 1783)
During cross examination, when asked about the conversation, he testified that it occurred “I think it was 13th or
14th, I’m thinking in there.” (Tr. 1783) I credit his original testimony that this conversation occurred on March 14
or March 15. I note that the photo of the PYXIS screen Marino took was printed on March 15, 2018, and the first
report produced by the pharmacy is dated March 16, 2018. (R. 15, p. 3)
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patient earlier that day at 8:30 p.m. (Tr. 1716, 1746–47; GC. 129) Even though it was a manual
entry, and was made three hours later, Marino testified that the entry did not necessarily stand
out because things happen at the hospital, therapists get busy with patients, which sometimes
requires MAR entries to be made manually, after the fact. (Tr. 1716, 1720) Indeed, according to
Marino, about 20% of the treatments respiratory therapists administer each month involve 5
manual entries.55 (Tr. 1805)

Marino then contacted the pharmacy and asked to see records of all medications that were
pulled from, and returned to, the PYXIS for this patient on March 12 and March 13. He
reviewed a variety of reports produced by the pharmacy, including one showing all DuoNeb 10
pulls from the PYXIS made by therapists for these two dates; he lined up the treatments listed
with the medications pulled. Marino again noted that there was no medication pulled for the
patient’s 8:00 p.m. treatment on March 12 when Backus was on duty, and no medication pulled
for the 8:00 a.m. or noon treatment on March 13 when Thuc Ho was assigned the patient. And,
at 2:52 p.m. on March 13, Thuc Ho noted in the MAR that the patient’s 8:00 a.m. and noon 15
treatments were not given. Marino testified that, while all of this this was a concern, at the time
it was “not like a super red flag.” (Tr. 1718–25, 1763, 1767–68, 1835–36; GC. 138 ex. E, GC.
142; R. 26–27)

At some point Marino focused on the fact Backus had charted administering DuoNeb to 20
the patient at 8:30 p.m. on March 12, but no DuoNeb was pulled from the PYXIS to correspond
with that treatment. He then spoke with Stephanie Jones, telling her that he had a
medication/documentation issue, and explained what had occurred. He also spoke with Brian
Smith. Smith was the lead therapist for the night shift on March 12, and was responsible for
updating Backus’s shift-assignment sheet. Smith relayed to Marino a second-hand account about 25
an ICU nurse calling regarding a missed medication. (Tr. 1120–23, 1768–71; R. 4)

Marino testified that he had never previously investigated anyone for not acquiring
medication from the PYXIS,56 and he could not recall any time that he had investigated anyone
for making a manual entry. However, according to Marino, he took these steps here because 30
there was a complaint that a doctor had concerns about his orders being changed or not being
followed. That being said, Marino never actually tried speaking with the cardiothoracic surgeon
in question to find out what, if any, complaints the he actually had. And, despite the fact the
doctor’s orders were not followed on March 13, when Thuc Ho twice did not administer DuoNeb
to the patient as ordered, Marino never investigated why Thuc Ho failed to follow the 35
physician’s written orders. He did not speak to Thuc Ho about the matter nor was Thuc Ho
disciplined. (Tr. 1768, 1820–21, 1825–29, 1835–42, 1855)

On April 4, Marino left Backus a voicemail, asking if they could meet. That evening,
Backus emailed Marino asking what he wanted. Marino left Backus another voicemail the next 40
day. On April 6, Backus emailed Marino saying “this email is in response to your voicemail
request to meet with you in HR for disciplinary actions. We can meet you in HR at 10 a.m. on

55 The parties stipulated that, in the 14 month period from January 1, 2017 to April 30, 2018, there were 3,716
instances where a respiratory therapist made a manual entry. (Tr. 1805–06; JX. 1)
56 Page 1820. Line 12 should read “getting a medication out of the Pyxis?” instead of “giving a medication out of
the Pyxis?”
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Monday April 9, 2108.” Marino replied that same day saying “I don’t believe the message was
for disciplinary reasons. I think Monday at 10:00 will be fine.” A few hours later Marino
emailed Backus again telling her that the meeting would occur in his office. Backus replied,
saying a meeting in his office would be a problem because of her restraining order against
Matuszak, who apparently was working that day. Eventually they agreed to meet in an adjacent 5
building on Monday, April 9, 2018, at 11:30 a.m. (Tr. 1772, 1779–81; R. 20–21)

Before meeting with Backus, Marino spoke with Steve Ochoa, who was the therapist
assigned to the patient on the day shift, to ask whether he handed off any medications to Backus
during the shift change. He also confirmed again that Backus did not pull any DuoNeb for that 10
patient from the PYXIS. (Tr. 1784, 1789)

On April 8, Marino drafted a disciplinary document for Backus, giving her a final written
warning. He had the document with him on April 9 when they met. Present for the meeting was
Marino, Backus, Justin Kmetz, who was serving as Backus’s Union steward, and Melissa Curtis, 15
a secretary in the cardiology department who was present to take notes. According to Marino, he
thanked Backus for coming in, and gave her a brief description of his concerns. He also showed
her the ventilator flow sheet, pointing out that Backus indicated DuoNeb was delivered on March
12 at 8:30 p.m., and asked Backus where she got the DuoNeb. Marino testified that Backus
asked him to explain what exactly he was asking her. Marino told Backus that she documented 20
giving DuoNeb, “just tell me where you got the DuoNeb.” Backus said she did not know. She
said that she could have gotten it off the table, or could have gotten it during the handoff between
shifts. Marino told Backus that he spoke with the therapist who performed the shift handoff
report and that no medication given during the handoff. Backus then told Marino that he was
“half-assing this whole thing.” (Tr. 1791–95; GC. 127) 25

Marino told Backus that he had information for all the medications she had pulled and
returned that evening, and for all the DuoNeb withdrawn from the PYXIS throughout the
hospital for March 12 and March 13. According to Marino, Backus asked to look at the
documents and take them with her to review. Marino told her that she could not do so, but could 30
get them through the Union. The meeting concluded with Marino telling Backus he was issuing
her a final written warning. Backus protested, saying that she had never previously been
disciplined. Marino acknowledged her lack of any prior discipline, but said this was a fairly
sever situation, and presented her with the disciplinary document. Marino acknowledged during
his testimony that this meeting was the first time he had discussed the matter with Backus, or 35
otherwise asked her what happened regarding the incident in question. (Tr. 1794–95, 1818)

Backus’s Final written warning is dated April 9, 2018, and attached to the document is
the hospital’s five page medication administration and documentation policy. Backus’s
discipline reads, in part, as follows: 40

Action: Medication Administration Error:
On 3/12/2018 you documented that a medication was administered to a ventilator
patient at 20:30. The ventilator flow sheet shows a medication was delivered at
20:30. The medication was not scanned, instead was manually entered in the 45
Medication Administration Record at 23:31 as being delivered at 20:30. The
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pharmacy records indicate that there was not a medication removed from the
Medication Pixis for the patient in question. This constitutes a medication
administration error as well as false documentation.

Policy violated: 5
Medication Administration and Documentation #2911904.

Plan of Corrective Action:
All medications you administer to any patient at St. Rose Hospital must be
properly removed, recorded and delivered. Additionally, a patient assessment 10
must be performed for all medication administration.

At trial, Marino was asked a number of times why he issued Backus a final written
warning, which is the last step before termination in the hospital’s disciplinary process, despite
the fact she had never previously been disciplined. Marino first testified that he issued the 15
discipline for two reasons: (1) because Backus could go through the grievance procedure; and
(2) because Backus could not provide him with information as to where she withdrew the
medication, but could only say definitively “I don’t know.” Immediately thereafter, Marino
testified that Backus was disciplined for documenting a medication on a medical record without
evidence of actually having the medication and dispensing it. He also testified that it was the 20
hospital’s established practice to issue a final written warning whenever a medication had been
documented as being dispensed to a patient without evidence of that medication existing. That
being said, Marino also testified that he had no reason to disbelieve Backus when she told him
that she could have retrieved the medication off the table in the tech room. (Tr. 1794, 1796–98)
25
Later, when asked what Backus did that constituted a “medical administration error” and
“false documentation,” as noted in her disciplinary document, Marino testified that Backus wrote
on the vent flow sheet that she administered DuoNeb to the patient, and Marino did not believe
that she actually administered the drug. In short, Marino said that he thought Backus lied when
she documented having administered DuoNeb to the patient that night. (Tr. 1852–53) 30

As for Marino’s testimony that the hospital had an established practice of issuing a final
written warning whenever a medication had been documented as being dispensed to a patient
without evidence of the medication existing, on cross examination he recanted this testimony.
When asked by the General Counsel for examples of any such prior disciplines, Marino could 35
not come up with any examples. He then admitted his prior testimony was incorrect, and he was
referring to something else. (Tr. 1798, 1818–19)

According to Marino, he alone made the decision to discipline Backus. And, despite the
fact Marino had prepared Backus’s discipline on April 8, and had it with him when they met on 40
April 9, he initially testified that he had not yet decided whether or not to issue Backus the
discipline when they met. According to Marino, if Backus had told him that she got the DuoNeb
from a source that he had not already looked into, then he would have further investigated.
However, during cross-examination, Marino testified that he knew of no other sources for the
medication, and agreed that he was basically planning to give Backus the final written warning 45
when they met on April 9, regardless. (Tr. 1791, 1795–99, 1818)
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4. The General Counsel’s prima facie case

a. Backus’s protected concerted activities
5
There is abundant evidence of Backus’s protected concerted activities. She passed out,
collected, and filed with human resources, bullying complaint forms.57 She sent the email to
Dhuper complaining about bullying,58 harassment, racial discrimination, and breach of the union
contract, which was an outgrowth and synopsis of employee group complaints going back for
months.59 (GC. 37) Backus’s discussion with Marino after Roop’s November 21, 2106 10
discipline was also concerted. After Roop was disciplined she spoke to Backus about her
concerns, and Backus then spoke with Marino and Gandhi telling them that people in the
department were saying that they were being bullied, intimidated, and harassed; the same issues
set forth in her email to Dhuper a few weeks later. After Gandhi said she was only getting one
side of the story Backus said that she had heard this from multiple sources. By expressing 15
support for Roop’s complaint, Backus’s discussion was concerted and protected.60

Backus’s conduct with respect to the petition is also concerted. She spoke with
coworkers about what to include in the petition, drafted it, solicited signatures on the document,
and she delivered the petition to Dhuper.61 Finally, Backus filed a charge, and testified at the 20
unfair labor practice proceeding in this matter on three different dates, each time in the presence
of Marino who was the employer’s representative throughout the hearing. (Tr. 20) And, during
her testimony on March 27, 2018, which was less than two weeks before her discipline,
Respondent was provided with a copy of the affidavit Backus gave during the underlying
investigation in order to prepare for her cross examination.62 25

57 See Dignity Health, 360 NLRB at 1131–32;Meyer Tool, Inc., 366 NLRB No. 32 slip op. at 9–10 (2018).
58 The email says it was sent “on behalf of a large group of RT professionals.” (GC. 37) And, throughout the email,
Backus uses terms such as “we,” “us,” “those of us,” “our problems,” indicating that the complaints outlined are not
her own individual issues, but group complaints shared by many staff members; hospital management would surely
understand that her email refers to group complaints.
59 See Oakes Machine Corp., 288 NLRB 456 (1988), enfd. in pertinent part 897 F.2d 84 (2d Cir. 1980) (employee
who mailed unsigned letter complaining about mismanagement that consistently used the term “we” and specified
complaints concerning more than one employee was engaged in concerted activity and employer had reason to know
more than a single employee was involved in the protest); Champion Home Builders Co., 343 NLRB 671, 671 fn. 3
& 680 (2004), enfd. in pertinent part sub nom. Carpenters Local 1109 v. NLRB, 209 Fed.Appx. 692 (9th Cir. 2006)
(employee who, with the support of coworkers, wrote a “protest letter” raising concerns about working conditions
was engaged in protected, concerted activity); Interboro Contractors, Inc., 157 NLRB 1295, 1298 (1966) enfd. 388
F.2d 495 (2d Cir. 1967) (complaints by single employee concerted when they are made in an attempt to enforce
provision of the existing collective-bargaining agreement); Meyers Industries, Inc. (Meyers II), 281 NLRB 882, 887
(1986) (individual employee engages in concerted activity when she brings “truly group complaints to the attention
of management.”).
60 Burle Industries, 300 NLRB 498, 501 (1990), enfd. 932 F.2d 958 (3d Cir. 1991) (table) (noting that if an
individual employee expresses support for another employee’s complaint, that conduct is presumed concerted
without any evidence of authorization).
61 Continental Pet Technologies, 291 NLRB 290, 291 (1988); Hoytuck Corp., 285 NLRB 904, 904 fn. 3 (1987);
Senior Citizens Coordinating Council of CO-OP City, 330 NLRB 1100, 1102–04 (2000); Walls Mfg. Co., Inc., 137
NLRB 1317, 1319 (1962); Empire Gas, Inc. of Denver, 254 NLRB 626, 630 (1981).
62 NLRB v. Scrivener, 405 U.S. 117, 122–125 (1972) (The protections of Section 8(a)(4) are broad, and protects not
only those who file charges and give testimony in a formal hearing, but also those who provide sworn statements to
NLRB investigators during investigations.).
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b. Knowledge

The evidence clearly shows that Respondent knew about Backus’s protected concerted
activities. Dhuper and Marino were directly involved in, or were informed of, most if not all of 5
her concerted activities. Marino was told that Backus was handing out bulling complaint forms
to coworkers. And, Marino was Respondent’s representative throughout the trial. He was
present each time Backus testified, thereby learning the full extent of her concerted activities,
including her direct involvement with the petition and the fact she provided an affidavit to the
government during the underlying investigation. 10

c. Animus

The record is replete with evidence of animus against employee concerted complaints.
The various 8(a)(1) and other violations previously found are sufficient to show a general 15
animus. Dynasteel Corp., 346 NLRB 86, 88 (2005) (“The Respondent’s numerous 8(a)(1)
violations provide evidence of its anti-union animus”). Also, as noted earlier, Marino’s
interaction with Frank Mardenzai and Alex Aguilar, including the statements he made and
changing Aguilar’s work schedule is evidence of animus. Finally, the timing of the discipline,
coming less than two weeks after Backus testified in this matter, is further evidence of unlawful 20
motive. Robert Orr/Sysco Food Services, LLC, 343 NLRB 1183, 1194 (2004) (timing of
discharge, just 2 weeks after employee testified in a Board proceeding, indicates a connection
between the Board testimony and the discharge).

Accordingly, the General Counsel has presented sufficient evidence of a prima facie case 25
of discrimination. Accordingly, Respondent bears the burden of persuasion to show that it would
have issued Backus a final written warning absent her protected concerted activities.
Consolidated Bus Transit, 350 NLRB at 1066. Respondent has not done so.

5. Respondent has not rebutted the General Counsel’s case 30

a. Respondent’s reasoning does not withstand scrutiny

Respondent’s reasons for issuing Backus a final written warning do not withstand
scrutiny. At trial, Marino testified that Backus was issued a final written warning: because she 35
can go through the grievance procedure as everyone has the right to do; because she did not
provide Marino with information as to where she got the medication administered to the patient
in question on March 12; and for documenting a medication on a medical record without
evidence of actually having the medication and dispensing it. He also testified that the hospital’s
established practice was to issue a final written warning whenever a medication had been 40
documented as being dispensed to a patient without evidence of the medication existing. As
discussed below, I believe each is pretext.

As per the Union contract, the right to file a grievance is available to everyone covered
by the agreement. Based on Marino’s reasoning, every employee covered by the contract would 45
receive a final written warning anytime a discipline is issued, because they can file a grievance.
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The record shoes that this does not occur; I find Marino’s asserting that Backus was issued a
final written warning because she had the right to file a grievance is pretext.

As for Marino’s statement that the discipline was issued for not providing Marino with
information regarding where Backus got the DuoNeb administered on March 12, the evidence 5
shows that Backus told him that she either got the medication from the table in the tech room or
from another therapist during the hand-off. She did not know for sure, but those were the two
options she gave. There is abundant evidence in the record, even photographs taken by Marino
himself, that RTs left unused respiratory medications lying around the tech room, instead of
returning them to the PYXIS. The credited evidence shows that therapists generally did, in fact, 10
pick up unused medication from the tech room and use them. At trial, Backus credibly testified
that she picked up the medication in question from the table, put it in her pocket, and
administered it when visiting the patient on March 12 as she believed a treatment would be
beneficial to the patient. Marino testified he had no reason to disbelieve Backus when she told
him that she could have picked up the medication from the table; nonetheless he issued her a 15
final written warning. Because the evidence shows that picking up, and administering, unused
medication found lying around was an accepted practice in the department, I find that this reason
advanced by Marino for the discipline to be pretext.

Regarding the claim that Backus was disciplined for documenting a medication on a 20
medical record without evidence of having the medication, as just noted, it was not uncommon
for therapists to pick up and use medication left lying around the department; other than Backus
nobody was ever disciplined for this practice. Also, it was even more common for one therapists
to handoff unused medication to another therapist during shift changes. Both would have been
against hospital policy, and since the handoffs are done orally, there would be no record of the 25
oncoming therapist actually receiving the medication in question. Nonetheless, at least under
Marino, this was an accepted practice that did not subject anyone to discipline. As for his
testimony that it was an established practice to issue a final written warning whenever a
medication has been documented as being dispensed to a patient without evidence of the
medication existing, during cross examination he recanted. When asked for specific examples 30
that show this established practice, Marino could not think of any. When pressed, he changed
his testimony saying he was referring to unrelated incidents when RTs issued medication to
patients but never charted the medication as having been issued. Again, I find Marino’s reasons,
and his changed testimony, as evidence of pretext.
35
Regarding Marino’s claim that Backus documented a medication without evidence of
dispensing it to the patient, the evidence shows that manual entries are not only accepted by the
hospital but account for 20% of treatments administered by respiratory therapists. Instead of
scanning the medication and a patient’s wrist band, when a manual entry occurs the RT simply
types the information into the MAR. In these cases, other than the therapist typing the 40
information into the system, as Backus did on March 12, there would be no other evidence of the
medication being dispensed. Backus both completed a manual entry for the March 12 treatment,
and also documented the information on the ventilator flow sheet. Pursuant to the hospital’s
practice, both are evidence that the medicine was administered.
45
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At trial, Marino testified that if he could have backed up a claim that Backus got the
DuoNeb off the table with some evidence that the “medication existed,” he would not have
disciplined her.63 (Tr. 1798) However, Marino never gave Backus the opportunity to support
her claim, as the first time he met with her to discuss what happened was on April 9, the day he
presented her with the discipline. Indeed, he had drafted the document the day before they even 5
met. Reaching a disciplinary decision without giving the affected employee a meaningful
opportunity to advance an explanation is evidence of discriminatory intent and pretext. Ozburn-
Hessey Logistics, LLC v. NLRB, 609 F. App’x 656, 658 (D.C. Cir. 2015); Tekform Products Co.,
229 NLRB 733, 739 (1977); New Orleans Cold Storage & Warehouse Co., Ltd., 326 NLRB
1471, 1477 (1998), enfd. 201 F.3d 592 (5th Cir.2000). Such is the case here. 10

b. The evidence does not support Respondent’s claim of consistent discipline

St. Rose claims that Backus’s discipline was consistent with those issued to other
therapists in similar circumstances. Resp’t Br., at 133. However, a closer look shows that this 15
claim does not bear scrutiny. The incidents Respondent points to involve situations where
hospital audits showed that four respiratory therapists “treated a number of patients with
medications and that no charting was done on any of them.” (GC. 136) Thus, on multiple
occasions these therapists administered medication to multiple patients but never completed any
of the requisite charting whatsoever. (Tr. 1802) For their conduct, the therapists received 20
written disciplines; the bottom of each document stated that any similar future occurrences
would be grounds for immediate termination.

However, Backus charted administering the DuoNeb in question in the MAR. She went
an extra step and also documented it on the ventilator flow sheet. Here, Respondent is 25
comparing apples to oranges as the proposed comparators never charted administering
medications whatsoever. This is something that Marino agreed could be potentially deadly as
without the documentation a practitioner would not know what, if any medications, a patient had
taken. (Tr. 1803–04) Moreover, the four therapists in question treated multiple patients without
charting; Backus was accused of one specific incident. Also, the record evidence shows that 30
Backus received a final written warning despite the fact she had never previously been
disciplined in her five years at the hospital. The record is silent as to whether any of the four
proffered comparators had any prior disciplines, and if so how many. These are not valid
comparators.
35
c. Respondent’s claim that Backus is not credible

In its brief, Respondent asserts that Backus’s testimony about what occurred on March 12
is not credible because she made false statements at trial, and to the state court, involving the
hallway incident on November 7, 2017, which resulted in her TRO against Matuszak. About his 40

63 That Marino requested PYXIS reports from the pharmacy for only March 12 and March 13 belie this testimony.
The March 13 PYXIS report could not account for any loose/unused DuoNeb that Backus picked up in the tech
room and administered on March 12. Had Marino really been interested in determining whether there was any
loose/unused DuoNeb migrating around the department that Backus could have administered, he would have asked
for pharmacy PYXIS reports for the days before March 12, not after.
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incident, Backus testified that Matuszak “walked around my left side and bumped me really
hard.” (Tr. 294)

Undoubtedly, Backus’s testimony is not accurate. As stated earlier, the video of the
incident shows that Matuszak and Backus passed each other in the hallway, touching each other 5
barely – if at all. That being said, I do not believe Backus’s testimony about this incident bears
upon her credibility about whether she administered DuoNeb on the night of March 12, 2018; the
incidents are unrelated.

It is obvious from the record that Matuszak and Backus had an intense dislike for each 10
other. Both fabricated what occurred in the hallway on November 7, 2017, in an attempt to get
the other in trouble. And they both gave false stories to Stephanie Jones in human resources as
to what occurred—with Matuszak’s story being even more fictional than Backus’s.
Nevertheless, I believe Jones was accurate in her testimony that she did not believe either Backus
or Matuszak were willfully lying. (Tr. 2157) Instead, they both perceived being hit by the other; 15
most likely out of the shock of passing in the hallway and their intense dislike for each other.

Moreover, I found that Marino gave inaccurate testimony in this proceeding as well, on
matters directly relating to the outstanding complaint allegations. For example, Marino’s
testimony about what he knew, and when he knew it, regarding the petition was erroneous; it did 20
not comport with his emails. Marino testified that he did not see the petition, and Jones did not
tell him anything about it, until the “Monday or Tuesday of the next week” (which would have
been April 17 or 18). (Tr. 1483, 1481) However, Marino’s emails show that he spoke with
Jones about the petition on the morning of April 14. (GC. 140) That morning Jones showed
Marino the petition on her computer screen and the two discussed what was in the document. 25

Unlike Backus’s testimony about the hallway incident, which is simply background and
not directly related to the complaint allegations, Marino’s testimony regarding the timing of what
he knew is directly related to Roop’s discharge. She was fired on April 17, and Respondent
argues that the petition played no role in that decision. Resp’t Br., at 103. By testifying he did 30
not actually see the petition until April 17 or 18, Marino attempted to bolster Respondent’s
argument that the petition played no role in Roop’s termination.

In sum, while both Backus and Marino may have given inaccurate testimony at times, I
generally found Backus more credible than Marino. This is particularly true regarding what 35
occurred surrounding the incident of March 12.64

d. Other evidence of pretext/discriminatory motive

64 In its brief, Respondent references the ventilator flow sheet notation with the number “7” that also contains a
vertical a line through the box, arguing Backus is not credible and was trying to cover-up her mistake. Resp’t Br.,
137. However, the evidence shows that a therapist named Diana Garduno made the exact same notation for her
assessment of the same patient 10 days later. (R. 5, Tr. 1821) There is no claim Garduno was involved in a cover-
up, nor did Marino do anything to investigate her conduct. (Tr. 1821) Rather than some nefarious plot, I believe
these two instances simply show that RTs work quickly, and sometimes make mistakes, or put stray markings, when
completing the ventilator flow sheets by hand.
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I believe that surrounding facts involving the investigation into the physician’s original
complaint, which ultimately resulted in Backus’s discipline, also support a finding of unlawful
motive. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966) (“Actual
motive, a state of mind, being the question, it is seldom that direct evidence will be available that
is not also self-serving. In such cases, the self-serving declaration is not conclusive; the trier of 5
fact may infer motive from the total circumstances proved. Otherwise no person accused of
unlawful motive who took the stand and testified to a lawful motive could be brought to book.”)
According to Marino, the investigation stemmed from a March 14/15 discussion with an ICU
nurse that a certain surgeon was upset about his respiratory care orders involving a particular
patient, thinking they had been changed. Marino’s investigation showed that Thuc Ho neither 10
retrieved nor administered DuoNeb ordered by the physician for the patient’s 8:00 a.m. or 12
noon treatments on March 13. This could have easily been the cause of the physician’s concern,
as the medication was never actually administered. And, Thuc Ho did not document that the
treatments were missed until 2:52 p.m., almost 7 hours after the first treatment was supposed to
have been dispensed. However, Marino never tried to contact the doctor in question to 15
determine his concern.

Instead, Marino simply relied on second and third-hand accounts of the doctor’s
complaint to ultimately focus his investigation on Backus. And, it appears Marino’s reason for
the investigation, the surgeon’s concerns that his orders had been changed, was disregarded 20
completely. He never spoke with the doctor and not investigate or question Thuc Ho about the
matter. (Tr. 1828–29, 1842, 1845–46) The investigation focused solely on Backus, without
even questioning her before making the decision to issue discipline. I believe these
circumstances also support a finding of unlawful motive. Shattuck Denn Mining Corp., 362 F.2d
at 470; Iowa Beef Processors, Inc., 226 NLRB 1372, 1380 (1976) enforcement denied in pert. 25
part 567 F.2d 791 (8th Cir. 1977) (the fact investigation focused on one person, without
discovering others involved, supports the finding of a violation).

e. Respondent’s did not have a good faith belief of misconduct
30
Finally, Respondent asserts that there can be no violation, as it needed to only show that
Marino had a good faith belief that the misconduct occurred. Resp’t Br., at 127, 132. However,
here Marino’s belief was not held in good faith. Wells Aluminum Corp., 319 NLRB 798, 812-13
(1995), enfd. in pertinent part 248 F.3d 1150 (6th Cir. 2000). Instead, I find that the
circumstances surrounding Respondent’s purported reliance on the alleged incident is also 35
evidence of pretext. Cf. Countryman v. Nordstrom, Inc., 2007 WL 38912, at *7 (D. Minn. 2007)
(in an employment discrimination case, the court noted that the proper inquiry was whether the
employer had an honest belief the employee was abusing her breaks or whether it used “break
abuse” as a pretext).
40
In Wells Aluminum Corp., the employer argued, in part, that based upon its investigation
it held an honest belief that an employee engaged in misconduct by making threats, and was fired
because of these threats, and not for his protected activity. The Board, and the Sixth Circuit,
affirmed the ALJ’s finding that the employer’s “belief” the employee engaged in misconduct
was not made in good faith, noting that the termination decision was made before the employee 45
was even interviewed about the alleged incident. Wells Aluminum Corp., 319 NLRB at 813.
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Therefore, the employer did not demonstrate the discharge would have occurred absent the
employee’s protected conduct. Id. See also Archer v. Mesaba Aviation, Inc., 210 F.3d 371, 2000
WL 376677 *5 (6th Cir. 2000) (unpublished opinion) (Employer may not invoke the “honest
belief rule” where, in part, employee was never informed of the allegations against him and the
termination letter was prepared before he was given an opportunity to respond to the allegations). 5
Such is the case here. Before April 9, 2018, Backus was never informed of the allegations
against her or given an opportunity to explain her actions. Her final written warning was
prepared the day before Marino even met with her for the first time to discuss the incident.
Along with showing that Marino did not have a good faith belief that misconduct occurred, it is
also evidence of pretext. Wells Aluminum Corp., 319 NLRB at 813. 10

Accordingly, I find that Respondent has not rebutted the General Counsel’s prima facie
case. The evidence supports a finding that Backus was issued a final written warning on April 9,
2018, in violation of Section 8(a)(1) of the Act because she engaged in protected concerted
activities, and because she filed charges with the Board, cooperated in the underlying 15
investigation, and provided testimony in this matter, in violation of Section 8(a)(4) of the Act.

V. ALLEGED DISCRIMINATORY REMOVAL OF THE TECH ROOM TELEVISION

For many years the respiratory department tech room contained a flat-screen television 20
which employees had purchased for their use; some techs would watch DVDs on the television
during their breaks/down-time. The RTs purchased the television because they previously only
had a radio. The tech room also contained other items, such as a toaster, microwave, and two
coffee machines, also purchased by the employees. During Dhuper’s December 14 staff
meeting, he told the RTs that the television needed to be removed, as they do not allow 25
televisions in the department. He also told them during this meeting that the hospital was going
to renovate the tech room by installing new flooring, and repairing and painting the walls. Thus
all personal electronic items including the television, toaster, and the microwave, needed to be
removed.
30
It is undisputed that, after the December 14 staff meeting the tech room was
renovated/refurbished. The walls were painted, lockers cleaned, new flooring installed, and
bulletin boards replaced. Before the renovation the television, microwave, and coffee machines,
among other items, were removed. After the renovation the microwave and coffee machines
were returned to the tech room, the television was not. Instead, the television was placed in a 35
storage room.

The General Counsel alleges that the removal of the television was unlawfully motivated,
and therefore violated Section 8(a)(1) of the Act. GC. Br., at 102–05. Respondent asserts there
was no violation regarding the television, arguing that Dhuper did not know about employee 40
concerted activities at the time the decision was made to remove the TV. Resp’t Br., at 88–90.

Wright Line 251 NLRB 1083 (1980) is used to analyze situations where the government
asserts that an unlawful motive is at play. See Cast-Matic Corp., 350 NLRB 1270, 1339 (2007)
(using Wright Line to analyze whether employer’s removal of refrigerator and microwave from 45
department was unlawfully motivated). Here, when Dhuper announced to employees that the
JD(SF)–14–19
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television needed to be removed, during the December 14 meeting, he had already been to
human resources and was made aware of the multiple complaints filed regarding the respiratory
department that human resources was investigating. He had also read Backus’s December 10
email which says that it was sent “on behalf of a large group of RT professionals,” complaining
about bullying, harassment, racial discrimination, and breach of the union contract. This email 5
alone is sufficient to show knowledge of employee concerted activities. Oakes Mach. Corp., 288
NLRB 456 (1988), enfd. in pertinent part 897 F.2d 84 (2d Cir. 1980) (employee who mailed
unsigned letter complaining about mismanagement that consistently used the term “we” and
specified complaints concerning more than one employee was engaged in concerted activity and
employer had reason to know more than a single employee was involved in the protest); 10
Champion Home Builders Co., 343 NLRB 671, 671 fn. 3 & 680 (2004), enf. in pertinent part sub
nom. Carpenters Local 1109 v. NLRB, 209 Fed.Appx. 692 (9th Cir. 2006) (employee who, with
the support of coworkers, wrote a “protest letter” raising concerns about working conditions was
engaged in protected, concerted activity); Interboro Contractors, Inc., 157 NLRB 1295, 1298
(1966) enfd. 388 F.2d 495 (2d Cir. 1967) (complaints by single employee concerted when they 15
are made in an attempt to enforce provision of the existing collective-bargaining agreement);
Meyers Industries, Inc. (Meyers II), 281 NLRB 882, 887 (1986) (individual employee engages in
concerted activity when she brings “truly group complaints to the attention of management.”).
Thus, I find Respondent’s argument that Dhuper did not know about employee concerted activity
as unsupported by the record evidence; he clearly read Backus’s December 10 email. 20

The animus against employee concerted complaints is shown by the various 8(a)(1)
violations found herein, including Dhuper’s statement at the December 14 meeting threatening to
fire everyone in the department. Dynasteel Corp., 346 NLRB 86, 88 (2005). Accordingly, I find
that the General Counsel has met her burden of showing that the permanent removal of the 25
television was unlawfully motivated, and the burden of persuasion shifts to the Respondent to
show it would have taken the same action absent employee protected activity. Consolidated Bus
Transit, 350 NLRB 1064, 1065 (2007). I find that Respondent has failed to rebut the General
Counsel’s case.
30
It appears that Respondent’s best argument is that the television was removed as part of
the renovations in the respiratory department. Cast-Matic Corp., 350 NLRB 1270, 1339 (2007)
(employer showed microwave and refrigerator were removed from department as part of a
cleanup of the department, and not because of employee union activities). However, the fact the
television was never replaced after the renovation, while the two personal coffee makers and the 35
microwave oven were, belies any such defense.

At trial, Dhuper testified that he requested the television be removed because the hospital
does not allow televisions in working departments. However, other than Dhuper’s self-serving
testimony, there is no evidence of any such hospital policy. And, it does not explain why the 40
hospital had allowed a television in the tech room for multiple years; before Backus’s December
10 email a television in the tech room was never an issue. Dhuper’s testimony also does not
explain the undisputed evidence that numerous other employee break rooms in the hospital have
televisions. The tech room was the only space RTs had to use as their break room, and the
television was in the half of the room that contained the sink, refrigerator, coffee maker and 45
microwave. When pressed on the lack of a written policy regarding televisions in working
JD(SF)–14–19
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departments, Dhuper stated that personal electronics were not allowed in the hospital because all
electronic circuitry needed to be of “healthcare grade.” However, he admitted he has never
inspected, nor has he requested an inspection, of the televisions in the other break rooms to
ensure their circuitry were of “healthcare grade.” And, it does not explain why the two personal
coffee makers and microwave were replaced, but the television was not; there is no evidence that 5
the Mr. Coffee and Keurig machines in the tech room were of “healthcare grade.” (Tr. 1298–99,
2546) In sum, I find that Respondent has failed to rebut the General Counsel’s case, and the
evidence supports a finding that the television set was permanently removed from the tech room
because RTs had engaged in protected concerted activities in violation of Section 8(a)(1) of the
Act. Morgan Precision Parts, 183 NLRB 1141, 1142 (1970) (violation where employer stopped 10
making facial tissue, aspirin, candy, and gum available in the break room because employees had
expressed an interest in unionization); Hialeah Hospital, 343 NLRB 391, 393 (2004) (employer
removing ping pong table used by employees violated Section 8(a)(3)).

15
CONCLUSIONS OF LAW

1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
20
2. By interrogating employees about their protected concerted activities, and those
of their coworkers, Respondent has violated Section 8(a)(1) of the Act.

3. By threatening employees with discharge or other reprisals because they engaged
protected concerted activities, Respondent has violated Section 8(a)(1) of the Act. 25

4. By soliciting employees to quit because they engaged in protected concerted
activities, Respondent has violated Section 8(a)(1) of the Act.

5. By making coercive statements to employees because they engaged in protected 30
concerted activities, Respondent has violated Section 8(a)(1) of the Act.

6. By removing the benefit of a television set from employees because of their
protected concerted activities, Respondent has violated Section 8(a)(1) of the Act.
35
7. By disciplining, suspending, and discharging Babita Roop because she engaged in
protected concerted activities, Respondent has violated Section 8(a)(1) of the Act.

8. By disciplining Jernetta Backus because she (1) engaged in protected concerted
activities; (2) testified at a hearing before the National Labor Relations Board; and (3) 40
cooperated in a Board investigation, Respondent has independently violated Sections 8(a)(1) and
8(a)(4) of the Act.

9. The above unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act. 45

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REMEDY

Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative actions designed to
effectuate the policies of the Act. 5

Specifically, having found that Respondent violated Sections 8(a)(1) of the Act by
suspending and discharging Babita Roop, I shall order Respondent to reinstate her and make her
whole for any loss of earnings and other benefits suffered as a result of the discrimination against
her. 10

Respondent shall compensate Babita Roop for any adverse tax consequences of receiving
a lump–sum backpay award in accordance with Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB 101 (2014). Respondent shall also compensate Babita Roop for her search–
for–work and interim employment expenses regardless of whether those expenses exceed interim 15
earnings. King Soopers, Inc., 364 NLRB No. 93 (2016).

Backpay, search–for–work, and interim employment expenses, shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed
in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River 20
Medical Center, 356 NLRB 6 (2010).

Additionally, in accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016), Respondent shall file with the Regional Director for Region 32, within 21 days of the
date the amount of backpay is fixed, either by agreement or Board order, a report allocating the 25
backpay awards to the appropriate calendar years. The Regional Director will then assume
responsibility for transmission of the report to the Social Security Administration.

The Respondent shall also be required to expunge from its files any references to the
unlawful discipline, suspension, and discharge issued to Babita Roop and the unlawful discipline 30
issued to Jernetta Backus, and notify them and the Regional Director of Region 32, in writing,
that this has been done and that these unlawful employment actions will not be used against them
in any way. The Respondent shall also post the attached notice in accordance with J. Picini
Flooring, 356 NLRB 11 (2010) and Durham School Services, 360 NLRB 694 (2014).
35
Finally, Respondent shall be required to restore the television set to the respiratory
department tech room.

On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended65 40

65 If no exceptions are filed as provided by Sec. 102.46 of the Board’s 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.
JD(SF)–14–19
101
ORDER

Respondent Hayward Sisters Hospital d/b/a St. Rose Hospital, its officers, agents,
successors, and assigns, shall:
5
1. Cease and desist from

(a) Interrogating employees about their protected concerted activities, or the
protected concerted activities of their coworkers.
(b) Threatening employees with discharge or other reprisals because they 10
engaged protected concerted activities.
(c) Soliciting employees to quit because they engaged in protected concerted
activities.
(d) Making coercive statements to employees because they engaged in
protected concerted activities. 15
(e) Removing the benefit of a television set from its employees because of
their protected concerted activities.
(f) Disciplining, suspending, discharging, or otherwise discriminating against
employees because they engaged in protected concerted activities.
(g) Disciplining, or otherwise discriminating against, employees because they 20
provided testimony in a hearing before the National Labor Relations
Board, or otherwise cooperated in a Board investigation.
(h) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of
the Act. 25

2. Take the following affirmative action necessary to effectuate the policies of the Act

(a) Restore the television set to the respiratory department tech room.
(b) Within 14 days from the date of this Order, offer Babita Roop full 30
reinstatement to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her seniority or any
other rights or privileges previously enjoyed.
(c) Make whole Babita Roop for any loss of earnings and other benefits
suffered as a result of the unlawful suspension, discharge, and 35
discrimination against her, including any search-for-work and interim
employment expenses, in the manner set forth in the remedy section of
this decision.
(d) Compensate Babita Roop for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and file with the Regional Director 40
for Region 32, within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the backpay award
to the appropriate calendar years for Babita Roop.
(e) Within 14 days from the date of this Order, remove from its files any
reference to the unlawful discipline, suspension, and discharge of Babita 45
Roop and the unlawful discipline of Jernetta Backus, and within 3 days
JD(SF)–14–19
102
thereafter, notify them in writing that this has been done and that the
unlawful employment decisions will not be used against them in any way.
(f) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a
reasonable place designated by the Board or its agents, all payroll records, 5
social security payment records, timecards, personnel records and reports,
and all other records, including electronic copies of such records if stored
in electronic form, necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at its Hayward, California 10
hospital copies of the attached notice marked “Appendix.”66 Copies of the
notice, on forms provided by the Regional Director for Region 32, after
being signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to employees are 15
customarily posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the 20
notices are not altered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since November 21, 25
2016.

(h) Within 21 days after service by the Region, file with the Regional Director
for Region 32 a sworn certification of a responsible official on a form
provided by the Region attesting to the steps that the 30

Dated, Washington, D.C. May 17, 2019

35

John T. Giannopoulos
Administrative Law Judge

40

66 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted
by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD(SF)–14–19

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose a representative to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.

WE WILL NOT interrogate our employees about their protected concerted activities, or the
protected concerted activities of their coworkers, including by asking them if they spoke with
coworkers about an investigatory meeting; asking employees who drafted a concerted and
protected petition; asking employees if they signed the petition; and asking employees if they are
the ringleader of the workers engaged in protected concerted activities.

WE WILL NOT threaten our employees with discharge or other reprisals because they engaged
in protected concerted activities.

WE WILL NOT solicit our employees to quit because they engaged in protected concerted
activities.

WE WILL NOT make coercive statements to our employees, including by telling them that
management was extremely unhappy that employees lodged a protected concerted petition and
that the conduct was the equivalent of an unwarranted attack on the hospital.

WE WILL NOT remove the benefits of a television set from our employees because the
engaged in protected concerted activities.

WE WILL NOT discipline, suspend, discharge, or otherwise discriminate against or employees
because they engaged in protected concerted activities.

WE WILL NOT discipline, or otherwise discriminate against our employees because they gave
testimony in a hearing before the National Labor Relations Board or otherwise participated in a
Board investigation.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights listed above.

WE WILL restore the television set for our employees’ use in the respiratory department tech
room.
JD(SF)–14–19

WE WILL, within 14 days from the date of the Board’s Order, offer Babita Roop full
reinstatement to her former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges previously enjoyed.

WE WILL make Babita Roop whole for any loss of earnings and other benefits resulting from
her unlawful suspension and discharge, less any net interim earnings, plus interest, and WE
WILL also make Babita Roop whole for reasonable search-for-work and interim employment
expenses, plus interest.

WE WILL compensate Babita Roop for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and we will file with the Regional Director for Region 32, within 21
days of the date the amount of backpay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar years.

WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
references to the unlawful discipline, suspension, and discharge of Babita Roop, and the
unlawful discipline of Jernetta Backus, and WE WILL, within 3 days thereafter, notify them in
writing that this has been done and that these unlawful employment actions will not be used
against them in any way.

Hayward Sisters Hospital d/b/a St. Rose Hospital
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National
Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union
representation and it investigates and remedies unfair labor practices by employers and unions. To find out more
about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any
agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov
Oakland Federal Bldg., 1301 Clay Street, Room 300-N, Oakland, CA 94612-5224
(510) 637-3300, Hours: 8:30 a.m. to 5 p.m.

The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/32-CA-197728 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (510) 671-3034.