Midwest Psychological Center, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 8, 2008

25-CA-029381 (N.L.R.B. Jul. 8, 2008)

JD(ATL)–26–08
Indianapolis, IN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
MIDWEST PSYCHOLOGICAL CENTER, INC.
and
YAINA WILLIAMS, an Individual
Case 25–CA–29381
and
HYUN KIM, an Individual
Case 25–CA–29405
Kimberly R. Sorg-Graves, Esq., for the General Counsel.
Lori A. Coates and Michael Murray, Esqs., for the
Respondent.
SUPPLEMENTAL DECISION
Statement of the Case
GEORGE CARSON II, Administrative Law Judge. These cases were heard in
Indianapolis, Indiana on May 12 and 13, 2008, pursuant to a compliance specification that
issued on May 31, 2007. In the underlying unfair labor practice case, Midwest Psychological
Center, 346 NLRB 1 (2005), the Board found that the Respondent discriminatorily discharged
the two individual Charging Parties. The Board’s Order was enforced by the Court of Appeals
for the Seventh Circuit on August 18, 2006. The compliance specification, as amended, sets
out the backpay due to the two discriminatees. The Respondent’s answer disputes the amount
of backpay due and affirmatively pleads that the positions of the discriminatees were eliminated
in December 2004.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
Finding of Fact
I. Preliminary Matters
The two discriminatees in the underlying proceeding worked as forensic case managers
for the Respondent in Marion County correctional facilities, Marion County Jail I and the
Arrestee Processing Center, referred to as the APC, located in Indianapolis, Indiana. Both were
part-time employees and both worked 8 hours every Saturday and Sunday. Additionally, once
every two weeks, they attended a staff meeting. Dr. Shelvy Keglar, hereinafter referred to as
Dr. Keglar, who owns the Respondent with his wife and is its chief operating officer, testified in
the underlying proceeding. Although that decision states that the discriminatees were working
under a contract between the Respondent and Corrections Corporation of America, CCA, Dr.
Keglar testified that they were actually working under a contract between the Respondent and
Correctional Medical Services, CMS. The identity of the contractor is immaterial.
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The General Counsel, at the hearing, amended the compliance specification and
presented amended Appendices A and B which reflect interim earnings for Williams and
cessation of her search for weekend work by Kim after she obtained full time employment. The
revised calculations reflect backpay computed to the date of the hearing.
On May 12, 2008, the first day of the hearing, the General Counsel advised that there
had not been full compliance with a subpoena duces tecum. Following an overnight recess,
Counsel advised that the documents produced during the recess appeared to be sufficient.
On the second day of the hearing, following the obtaining of the documents by the
Respondent and production of them to Counsel for the General Counsel, Dr. Keglar amended
portions of the testimony he had given on the first day of the hearing as a result of information
disclosed in the documents that were produced.
II. Backpay
A. Backpay Period
The compliance specification alleges that the backpay period of both discriminatees
begins in October 2004 and continues until the present time. When the compliance
specification issued, neither discriminatee had been offered reinstatement. Both were offered
reinstatement by letter dated July 13, 2007. The Respondent’s answer alleges that the positions
of the discrminatees were eliminated in December 2004 and, in the alternative, that the July 13,
2007, offers of reinstatement, which both rejected, ended its liability. The only issue in this
proceeding is when the backpay period for each discriminatee ends. I shall address that below.
B. Gross Backpay
The compliance specification calculates the gross backpay of the discriminates upon
their wages of $14 per hour for 16 hours each weekend plus 1 hour for attending a mandatory
staff meeting every two weeks. The Respondent presented no evidence disputing the formula,
and, in its brief, acknowledges that it “does not contend that the method … was inaccurate.” I
find that the formula used for computation of gross backpay is appropriate.
C. Interim Earnings
The amended appendices of the compliance specification set out the interim earnings of
which the General Counsel was aware. The Respondent adduced no evidence establishing
additional undisclosed interim earnings. The Respondent presented no evidence related to any
failure to mitigate damages.
D. The Ending of the Backpay Periods
1. The Alleged Elimination of the Positions
The underlying decision herein states that the services provided were under a contract
with CCA. As already noted, Dr. Keglar testified that they actually were under the Respondent’s
contract with CMS. That contract contains no provision regarding the specific days or hours that
various employees work. Shelvey Keglar, Jr., Business Development Coordinator and son of
chief operating officer Dr. Keglar, testified that the positions filled by the discriminatees had
been advertised as part-time positions in 2004 “per Dr. Keglar's instructions.”
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At the hearing herein, Dr. Keglar testified that, shortly after obtaining the contract
pursuant to which it was providing psychological services to Marion County, there had been
conversations about “increase[ing] the service to cover 24-hour coverage.” Although testifying
that these conversations involved “CMS or the jail administrators,” he did not specifically identify
any participants in these conversations and no representative of CMS or Marion County jail
administrator testified. Regarding the alleged elimination of the part-time positions, Keglar
testified as follows:
[I]n order to increase the service … in December [of 2004] … those part-time positions
were eliminated and, in order to increase the coverage that they wanted, a full-time
position was put in place …. … So, two were eliminated and one position was put in
place and has been in place since that time to address the issue.
The foregoing testimony that the part-time positions were eliminated, purportedly in
December 2004, in order to increase coverage does not square with the facts. The weekends
at Jail I and the APC still had to be manned. There is no documentation reflecting the
elimination of the two part-time positions and creation of one full time position. Although
asserting that the discriminatees were not replaced, Dr. Keglar did not address how services
were provided in the final week of October 2004, in November, and into December.
The answer to the compliance specification states that the positions of the
discriminatees were eliminated “due to circumstantial changes involving the clients.” In an
affidavit attached to the answer, Dr. Keglar swore that the part-time positions “were eliminated
due to changes in the services required by our clients.” The answer does not allege the creation
of a full time position. No official with either CMS or Marion County testified to any required
change in services. No document reflecting any request to staff the correctional facility
differently after the unlawful discharges of the discriminatees was offered into evidence. Dr.
Keglar did not present any directive or document relating to staffing on weekends.
The decision in the underlying proceeding reflects that Dr. Keglar testified that “the
contract between Respondent and CCA called for two 8 hour part-time employees on the
weekend (both working 8 hours on Saturday and 8 hours on Sunday) … and that at the outset
of the contract he projected giving the two part-time employees each 16 hours a week.”
Midwest Psychological Center, supra at 5. As already noted, Dr. Keglar testified that the
applicable contract actually was with CMS. That contract has no specific provision relating to
hours. See General Counsel Exhibit 2. Notwithstanding the absence of any provision specifying
the manner in which services were to be provided, Dr. Keglar incredibly denied the absence of
any such provision relating to specified hours of coverage but testified that “in our meetings and
the schedules that they gave us. That’s where it’s contained.” No memoranda or minutes from
any meeting or any schedules that the Respondent was directed to follow were offered into
evidence. There is no probative evidence of any required changes in services or direction to
staff Jail I and the APC with one full time employee by a “client,” either Marion County or CMS.
Dr. Keglar was asked, “[U]ltimately, it's your determination how you schedule [y]our
employees there. Which employee you pick to be there at which time?” Dr. Keglar answered,
“Yes.”
Dr. Keglar initially testified that the full time position was filled by Nathan Boles, who
was a case manager for the Respondent. The subpoenaed documents produced after the
overnight recess reflect that Boles was not hired until July 26, 2005. Dr. Keglar, on the second
day of the hearing, amended his testimony, stating that the position was initially filled by Curtis
Eaton, who up until that time was employed by the Respondent as a home based counselor. Dr.
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Keglar noted that, at some point, employee Della Rutland filled the position on weekends.
On the first day of the hearing, Counsel for the General Counsel questioned how one
individual could have provided the same coverage as the two discriminatees, who each worked
16 hours for a total of 32 hours each weekend. Keglar answered, “They work a split shift. They
work split shifts on the weekend.” In view of that phrasing, Counsel asked whether, in fact, two
people were working, and Keglar denied that was the case, testifying that there was only one
who worked some on Thursdays, some on Fridays, and then Saturday and Sunday. He did not
specify the hours worked on Thursday, Friday, or Saturday and Sunday.
On the second day of the hearing, when he acknowledged that his testimony
regarding when Boles began working on weekends was mistaken, Dr. Keglar testified that the
full time employee who worked on weekends worked on Tuesdays and Thursdays from 3:00
p.m. to 12:00 midnight and “Saturday and Sunday, 8:00 a.m. to 8:00 p.m.” Thus, the full time
position mathematically provided a maximum of 24 hours over the weekend, instead of 32 hours.
Thereafter, Dr. Keglar testified that “Curtis Eaton moved from the weekend position to a day
position and Nathan [Boles] went to the weekend and Nathan was in the weekend position … until
Della Rutland was in the weekend position – [in] what I'm calling the consolidated position.”
Dr. Keglar admitted that it was he who “ultimately” determined the scheduling of
employees, “[w]hich employee you pick to be there at which time.” There is no probative
evidence that the Respondent was directed to staff weekends with one full time employee
pursuant to any “changes in the services required by our clients.” The “consolidated position”
could not have provided more coverage since it involved at least 8 fewer hours. Dr. Keglar was
unable to give any credible explanation as to how one employee working 24 hours could
provide the same service, much less “increase the coverage that they wanted,” as two
employees each working 16 hours. His spontaneous testimony that “[t]hey work a split shift[;]
[t]hey work split shifts on the weekend,” in the absence of documentary evidence establishing
work schedules or assignments, causes me to question his denial that more than one employee
worked on weekends. Although asserting that the discriminatees were not replaced, that their
positions were eliminated, Dr. Keglar did not address how services were provided in the final
week of October, through November, and into December 2004 when he says one full time
employee began working on weekends. Dr. Keglar’s assertion that one full time position was
created for “increased coverage” does not withstand scrutiny, and I do not credit it. See
Contemporary Guidance Services, 300 NLRB 556, 560 (1990). The weekend positions
remained and, absent their unlawful discharges, the discriminatees would have continued
working and providing the services that the Respondent was contractually obligated to provide.
There is no credible evidence that the positions of the discriminatees were eliminated.
The Respondent had initially provided weekend coverage with two part-time positions for which
it advertised. The Respondent, having unlawfully discharged the discriminatees, scrambled to
provide the weekend coverage that it was required to provide. When Dr. Keglar spoke with his
subordinate, Dr. Kellee Blanchard, who had supervised the discriminatees, regarding
reinstatement, she informed him that “we could.” Although Dr. Kelvey testified that Dr.
Blanchard “talked to” others, there is no evidence that the positions had to be recreated,
proposed, or approved in order to effectuate the reinstatement of the discriminatees.
Confirmation that the positions were not eliminated is reflected in the Respondent’s July 13,
2007, letter which offers “reinstatement” to a part-time position from 8 a.m. until 5 p.m. on
Saturday and Sunday, the same hours the discriminatees had previously worked. Midwest
Psychological Center, supra at 9. The offer does not state that the positions had been
eliminated and were being restored. The positions of the discriminates were not eliminated.
Backpay is not tolled as of December 2004.
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2. The Offers of Reinstatement
The letters offering reinstatement dated July 13, 2007, are signed by Shelvey Keglar,
Jr., hereinafter referred to as Keglar, Jr. The record does not reflect when they were mailed.
Compliance Officer for Region 25 Lisbeth Luther recalled that discriminatee Yaina Williams told
her that she had received the offer about July 20, 2007. Williams informed the Respondent by
facsimile copy, fax, on July 24, 2007, that she accepted the offer. Williams informed Luther that
she was doing so. Discriminatee Kim informed Luther on July 27, 2007, that “she was not
inclined to accept the offer.” Luther thereafter informed Counsel for the Respondent that Kim had
rejected the offer of reinstatement.
Compliance Officer Luther testified, and I find, that the offers contained in the letters dated
July 13, 2007, constituted valid offers of reinstatement. As hereinafter discussed, there were
various communications and attempted communications between Williams, Compliance Officer
Luther, Counsel for the Respondent, and the Respondent in August and early September 2007. It
is undisputed that, on September 13, 2007, Williams informed the Respondent that she did not
desire reinstatement. The General Counsel contends that the delay in effectuating the offer of
reinstatement invalided the offer and further argues that, insofar as the offer to Williams was
invalidated, the rejection of the offer by Kim was nullified.
The General Counsel has cited no case authority in support of the latter contention. The
offer, when made, was valid. The communication difficulties involving Williams had not occurred at
the point that Kim rejected the offer. Rejection of an otherwise valid offer of reinstatement cannot
be vitiated by events unrelated to the individual rejecting the offer. Krist Oil Co., 328 NLRB 825,
827 (1999). I find that the backpay period for Kim ended with her rejection of the offer of
reinstatement on July 27, 2007.
The situation involving Williams is more complicated. Williams claims, and Keglar, Jr.,
agrees, that she accepted the offer of reinstatement by an unsigned letter sent by fax on July
24, 2007. Keglar, Jr., on August 10, 2007, sent Williams a letter acknowledging receipt of a
voice mail message and requesting that Williams sign her acceptance and refax it to him.
Williams testified that she did not receive that letter. On August 24, 2007, Keglar, Jr., wrote
another letter to Williams noting that “per our Attorney’s instructions I am calling you to set up a
date when you will start at the Jail.” Williams testified that she did not receive that letter either.
On August 15, 2007, Williams sent an e-mail to Compliance Officer Luther stating that
she had tried to call Keglar, Jr., but kept getting only voice mail.
On August 20, 2007, Williams sent an e-mail to Luther stating that she still had not been
able to contact Keglar, Jr., On August 21, 2007, Luther responded to that e-mail by e-mail
asking Williams whether she wanted her, Luther, to call the Respondent’s attorney. Apparently
Williams requested that she do so, and Luther did. An e-mail from Counsel for the Respondent
on August 21, 2007, to Luther refers to their telephone conversation and reports that Keglar,
Jr., would be contacting Williams that day regarding the position.
On August 23, Williams reported by e-mail to Luther that she still had not heard from
Keglar, Jr., and questioned whether she could inquire about a backpay settlement.
On August 23, Luther sent an e-mail to Counsel for the Respondent stating, in pertinent
part, that Williams had still not heard from Keglar, Jr., and continuing as follows:
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I believe you and I are on the same page when it comes to trying to move this case
toward a reasonable and lawful resolution. I am hoping that perhaps Mr. Keglar would
be willing to convey the date regarding Ms. Williams’ return to work to you and you could
then convey the details to Ms. Williams and me. … Is it possible that Mr. Keglar would
prefer that Ms. Williams waive reinstatement? If so, I could discuss the matter with Ms.
Williams to determine under what circumstances, if any, she would be willing to do so.
On August 30, 2007, Luther e-mailed Williams inquiring whether she had kept track of
her attempts to contact Keglar, Jr. Williams replied by e-mail that she had not been keeping
track but reported that she had called on Sunday, August 5, Monday, August 6, and Monday,
August 13, 2007. After sending that e-mail to Luther on August 30, Williams called Keglar again
and the call was answered by voice mail. Luther e-mailed Williams to confirm that she was
calling the correct number. Williams replied that she was, pointing out that the voice mail
directed her to press number 2 for Keglar, Jr.’s, voice mail.
Keglar Jr. testified that he did leave voice mail messages for Williams but that they
ended up playing “telephone tag,” with her responding that this was “Yaina Williams returning
your phone call.”
On September 12, 2007, Williams, in a e-mail sent at 2:03 p.m., reported to Luther that
she had received a voice mail from Keglar, Jr., who had “called to schedule an appointment.”
Williams stated that she would return the call “today,” but did not do so. On September 13,
2007, Luther replied by e-mail requesting that Williams let her know “once you’ve spoken with
him or … if you are unable to reach him.” Williams did not reply to that e-mail.
Also on September 12, 2007, at 1:30 p.m., Luther spoke with Counsel for the
Respondent. Her notes of that conversation reflect that Counsel informed her that that Dr.
Blanchard would be contacting Williams regarding reinstatement and obtaining necessary
information so that Williams could start on September 22. The notes reflect that Counsel was
going to send a confirming e-mail the next day. In her testimony, Compliance Officer Luther
pointed out that the proposed September 22 was some two months after the initial offer;
however she did not testify that she informed Counsel for the Respondent that the date was
unacceptable or that the Respondent should not schedule an appointment with Williams in
anticipation of her return to work on September 22.
On September 13, 2007, Williams called the Respondent and left a voice mail message
stating that she was declining the offer of reinstatement. Williams testified that she declined the
offer “[b]ecause I was frustrated. For a long period of time, I wasn’t getting any response and I
just felt like they weren’t sincere in the offer. So I just gave up.”
So far as this record shows, Williams did not inform Compliance Officer Luther that she
had not called Keglar, Jr., on September 12 or that she had declined reinstatement on
September 13, 2007. Insofar as she had no contact with either the Respondent or Compliance
Officer Luther, Williams was unaware that the Respondent intended to return her to work on
September 22. She was, however, aware that the Respondent was, on September 12, seeking
to schedule an appointment with her, but she did not return that call.
The next communication between the Respondent and the Regional Office reflected in
the record is an e-mail from Luther to Counsel for the Respondent on April 8, 2008, relating to
settlement and stating that, with respect to litigation, “the Region may adopt the position that
the Employer’s offer … was not a sincere and valid offer.”
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The foregoing testimony and documents present a complicated scenario. I find it difficult
to believe that letters deposited with the United States Postal Service were not delivered, even
though, as Keglar, Jr., acknowledged, they were not sent by certified mail.
Crediting the testimony of Williams regarding her various telephone calls, she should not
have expected to speak to a person rather than voice mail when calling on Sunday, August 5.
Insofar as she called the Respondent contemporaneously with her e-mail sent to Luther on
August 15, 2007, at !:44 a.m., and the e-mail sent to Luther on August 20, 2007, at 8:01 p.m.,
she also should not have expected to speak to a person on those occasions either.
None of the participants treated this situation with any sense of urgency. Williams, who
informed Luther of her acceptance of the offer in July and denied having received the letter of
August 10, 2007, requesting that she sign her acceptance, did not complain to Luther about
unreturned voice mail messages until August 15, 2007. She never went to the office of the
Respondent to make a personal inquiry regarding the alleged failure of the Respondent to
return her voice mail messages.
The Respondent, not having received a signed acceptance, did not request Counsel for
the Respondent to contact the Regional Office to ask what was going on. The Respondent’s
letter of August 24, 2007, “to set up a date when you will start at the Jail,” was sent after Luther
and Counsel for the Respondent had discussed the status of the case on August 23. Williams
denied receipt of the letter of August 24.
The cases cited by the General Counsel do not relate to a delay in effectuating a valid
offer of reinstatement. In Hoffman Plastic Components, 326 NLRB 1060, 1061 (1998), the
Board held that there was no valid offer of reinstatement. In American Signatures, Inc., 334
NLRB 880, 882 (2001), the Board held that the conditions imposed upon returning unfair labor
practice strikers, including an unprecedented six day orientation period, invalided the offer. In
IMOC/International Measurement Co., 277 NLRB 962, 967 (1985), the employee was denied
reinstatement “because the Respondent seized upon her 2-week absence [when she was on
vacation] to avoid its obligation to reinstate her.” No party has cited, and I am unaware of, any
case directly on point with regard to the issue herein.
Notwithstanding the conflicting testimony of letters sent but not received and voice mail
messages left but unreturned, it is undisputed that Williams, on September 12, 2007, received a
message from Keglar, Jr. to “schedule an appointment.” Although Williams, in her e-mail to
Compliance Officer Luther, stated that she would return that call “today,” she did not do so. No
mention was made of frustration or an intention to rescind her acceptance and decline the offer
of reinstatement because she “felt like they weren’t sincere in the offer.” On September 12,
2007, Counsel for the Respondent confirmed to Luther that the Respondent was seeking to set
up an appointment with Williams and intended to return her to work on September 22, 2007.
Luther did not inform Counsel that the delay that had occurred had somehow invalidated the
offer of reinstatement. If that had been stated, the Respondent could have immediately
tendered another offer prior to the meeting that was to be held with Williams in anticipation of
her return to work on September 22.
There is no probative evidence that the Respondent took any action that detracted from
or invalidated its valid offer of reinstatement. An employee’s subjective evaluation of the
sincerity of a facially valid offer does not invalidate the offer. See Krist Oil Co., supra at 830. The
rejection by Williams of the offer of reinstatement on September 13, 2007, closed her backpay
period.
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E. The Backpay Due
1. Yaina Williams
Williams was unlawfully discharged on October 19, 2004. She declined a valid offer of
reinstatement on September 13, 2007. Thus, the backpay computation set out in amended
Appendix A must be adjusted by extinguishing all liability for backpay after September 13, 2007.
Backpay, as established by longstanding precedent, continues to accrue after a valid offer of
reinstatement is made until reinstatement occurs or the offer is declined. See Weldun
International, 340 NLRB 666, 676 (2003). As of September 13, 2007, there were three
weekends remaining in September, September 15 and 16, 22 and 23 and 29 and 30, which
would have included one staff meeting, a total of 49 hours. Thus, the backpay of Williams must
be reduced as follows: $686 for the 3rd quarter of 2007, $2546 for the 4th quarter of 2007, and
all alleged liability in 2008 in the amount of $4271. Thus, a total of $7503 must be subtracted
from the alleged amount of backpay due, $40,143, leaving a total amount due of $32,640.
2. Hyun Kim
Kim was unlawfully discharged on October 21, 2004. She declined reinstatement on July
27, 2007. As set out in amended Appendix B, Kim ceased looking for work when she obtained
full time employment and no backpay is sought after September 21, 2005. I find, as set out in
the amended compliance specification that the backpay due to Kim is $11,088.
In view of the foregoing and on the entire record, I issue the following recommended1
ORDER
The Respondent, Midwest Psychological Center, Inc., Indianapolis, Indiana, its officers,
agents, successors, and assigns, shall, consistent with the compliance specification as
amended and modified by the foregoing findings, satisfy the obligation to make whole the
following employees by paying them the following amounts, together with interest thereon
accrued to the date of payment computed in the manner described in New Horizons for the
Retarded, 283 NLRB 1173 (1987), minus tax withholdings required by Federal and State laws.
Yaina Williams $32,640.00
Hyun Kim $11,088.00
Total $43,728.00
Dated, Washington, D.C., July 8, 2008.
____________________
George Carson II
Administrative Law Judge

1 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.