28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: Renown Regional Medical Center Reno, Nevada  and Nevada Service Employees Union Local Union No. 1107 
Date: July 5, 2007
Arbitrator: Allen Pool
Citation: 2007 NAC 126

 

American Arbitration Association
Case No. 300 L 01210-06 LYMC
C. ALLEN POOL, Arbitrator
Arbitrator's Case No. 5-15-07

IN ARBITRATION PROCEEDINGS PURSUANT TO
AGREEMENT BETWEEN THE PARTIES

Nevada Service Employees Union Local Union No. 1107 

                            and

Renown Regional Medical Center Reno, Nevada  

Discharge: Dolores DeLarwelle     

 

ARBITRATOR'S

OPINION AND AWARD

July 5, 2007

 


 

           

           This Arbitration arose pursuant to Agreement between the Nevada Service Employees Union Local No. 1107, hereinafter referred to as the “Union, and Renown Regional Medical Center, hereinafter referred to as the “Employer”, under which C. ALLEN POOL was selected by the parties through procedures of the American Arbitration Association to serve as the Arbitrator.  The Parties stipulated that the matter was properly before the Arbitrator and that his decision shall be final and binding.

            The hearing was held in Reno, Nevada on May 15, 2007 at which time the parties were afforded the opportunity, of which they availed themselves, to examine and cross-examine witnesses and to introduce relevant evidence, exhibits, and argument.  The witnesses were duly sworn and no written transcript was made of the hearing.  Post hearing briefs were timely submitted to and received by the Arbitrator on June 25, 2007 at which time the record was closed.

APPEARANCES:

For the Union: For the Employer:
Jonathan Cohen, Esq.
Rothner, Segall & Greenstone 
510 South Marengo Avenue 
Pasadena, California 91101-3115 
626.796.7555 


                                                                       
Steve Schuster, Esq.
Constangy Brooks &Smith, LLC
2600 Grand Blvd., Suite 300
Kansas City, MO 64108

816.472.6400



STIPULATED ISSUE

            Was the termination of Dolores DeLarwelle for just cause?  If not, what shall be the appropriate remedy?

RELEVANT PROVISIONS OF THE AGREEMENT

BACKGROUND

The Grievant had been employed for 23 years at Renown Regional Medical Center as a Registered Nurse.  The Center was formerly known as the Washoe Medical Center.  During her 23 years of employment, she was recognized as a valuable employee with no disciplines and good performance evaluations.  At time of her discharge, the Grievant was working with the Central Admissions Unit (CAU).  CAU consisted of approximately 13-14 nurses with three (3) nurses assigned to any one particular shift.  The CAU served as a transition area for patients being released from the emergency room and the intensive care unit. 

Patients were cared for in the CAU until space, a bed could be located in the main hospital facility.  A patient’s stay in the CAU is short.  It could be one, two, three hours or overnight.  The CAU is open 24 hours a day for the care of patients Monday through Friday.  The CAU is closed on Saturday and Sunday and reopens again at 7:00 a. m. on Monday morning. 

            Patient medical records are kept in the hospital’s mainframe computer.  In the CAU, as in other departments with patients, a patient’s medical chart is accessed from one of several computer terminals located in the CAU area.  Access into a computer terminal to work with a patient’s chart is made via a password.  Each nurse, physician, supervisor, and other employees has a password that allows the employee to access a patient’s medical chart.  To access a patient’s complete medical file an employee would have to go beyond the patient’s chart and go directly to a patient’s medical file in the hospital’s mainframe computer.  This access can be achieved through any open computer terminal such as the terminals located in the CAU area.  

Hospital policy is clear.  Access to a patient’s medical file that contains personal and confidential information is authorized for business reasons only.  The policy is a reflection of the federal statute that protects patient privacy, the Health Insurance Portability and Accountability Act (HIPAA) that became effective April 14, 2003.  The hospital’s policy is, that after an employee accesses a patient’s chart using a computer terminal and completed working with the chart, the employee should close the patient’s chart showing on the computer terminal.

The events that led to the Employer’s decision to discharge the Grievant began on August 10, 2005 when a patient was admitted and released the same day. The patient was a registered nurse and also an employee of the hospital working as part of the CAU team.  The patient/employee was admitted a second time on August 12 and released on August 17.       

In early September, hospital administrators Kim Winters and Marti Hessen-May were notified that a document was printed by default in another department and it was a private and confidential document from the above patient/employee’s file.  The confidential document contained an employee password.  Management check with the Information Technology Department and learned that the computer password belong to an employee in the Radiology Department.  Management also learned that 33 employees had accessed the above patient/employee’s medical file.  An investigation was launched and management determined that all but one of the 38 different employees had accessed the patient’s record for legitimate business reasons.  The one exception was the Grievant. 

The Employer made the determination that the Grievant had made a total of four unauthorized entries into the patient/employee’s medical file, two entries on August 11th and two entries on August 15th.   At the Third Level grievance meeting, the Employer made the determination there was plausible explanation for one of the four entries and the total number of unauthorized entries was reduced to three(3).  The Grievant was served with a discharge notice effective September 20, 2005.  A grievance was filed and was processed to this arbitration.

POSITION OF THE EMPLOYER

            The Employer had just cause to discharge the Grievant.  She violated multiple hospital policies and procedures with her unauthorized access into a patient’s confidential and private medical records with respect to the 2003 Health Insurance Portability and Accountability Act (HIPAA).  Using her private ID and her access code, she inappropriately accessed the patient’s private records on August 11, 2005 and again on August 15, 2005.  The Grievant was interviewed on September 15th and September 19th and her story changed repeatedly then and during the grievance process.  She had no explainable or justified business reason for accessing the patient’s private and confidential records.  The Grievant was put on notice. The Employer has a zero-tolerance policy for accessing a patient’s private and confidential records without a valid business reason and the appropriate penalty is always discharge.  The Grievance should be denied

POSITION OF THE UNION

            The Employer did not have just cause to discharge the Grievant.  She is a Registered Nurse and a 23-year employee with an unblemished record. There is no evidence that she inappropriately accessed the patient’s confidential and private records.  Nurses in the CAU, along with physicians and supervisors, routinely log on to the computers in the CAU to check patient records and determine if the patients due to arrive from the Emergency Room are appropriate for care in the CAU.  Hospital policy is that after an employee logs on to the computer and finishes, the employee is to log off.  However, it is common practice for a nurse, a supervisor, and others to not log off and walk away from the computer terminal to tend to a patient’s need.  When this occurs, the computer terminal can be open for a few minutes or for an extended period of time.  While the computer terminal is left open, it is also common practice for another employee to use the open computer terminal to check a patient’s chart and records.   The Grievant acknowledged that she may have logged on to the computer terminal on August 11th and August 15th and that she may have walked away leaving it open but she denies that she, herself, accessed the patient’s confidential and private records.  The  grievance should be sustained.

DISCUSSION

            The just cause standard has been and is still a topic of frequent and often intense discussion among those who labor in the field of labor-management relations and dispute resolution.  The term is common in collective bargaining agreements and serves as a constraint on management’s right to discipline or discharge employees.  The term, however, does not have a definitive definition.  It is a concept that embraces a system of fairness and due process.  The concept serves as a standard, a guideline to follow in those instances where an employer is considering whether to issue some kind of adverse action to an employee where the employee may have engaged in some kind of misconduct or misbehavior.   

            In their consideration of whether to discipline an employee, practitioners frequently rely on the Seven Tests for Just Cause memorized by Arbitrator Carroll R. Daugherty in his 1966 Enterprise Wheel arbitration award, 46 LA 359.  The guidelines put forth by Arbitrator Daugherty are useful but are not a prefabricated test, a check list for determining whether just cause existed to discipline.  They are guidelines and their application will vary according to the circumstances the case. 

            The just cause standard includes several elements for the practitioner’s consideration, i.e. due process, progressive discipline, a fair investigation, notice, etc.  However, of all the various elements that are a part of the just cause standard, the one element that is almost inviolable is the requirement that there be adequate proof of misconduct.  If adequate proof of misconduct has not been established, there can be no discipline.

            The Employer’s contention was that the Grievant violated hospital policies and procedures when she accessed the patient/employee’s health/medical for non business reasons.  In addition, the Employer also violated the hospital’s “zero-tolerance” policy for accessing such files for non business reasons.  The policies referred to were “Permitted Uses and Disclosures of Protected Health Information Without Patient/Member Consent or Authorization”.   The revision date of this policy was August 2005 (E-5). The second was “Workplace Training and Sanctions for Failure to Comply with Privacy Policies and Procedures”.  The revision date of this policy was August 2004 (E-4). 

            In the second policy, Article IV.A Violation of Policies and Procedure states: “WHS Employees. Any WHS employee who violates a SHS Corporate Compliance Privacy Policy and Procedure related to patient privacy will be subject to appropriate disciplinary action, up to and including termination of employment (emphasis added).  This policy clearly does not refer to a “zero-tolerance” policy mandating summary termination in all cases.  The Employer’s Compliance Officer, Thomas Vallas, on cross-examination testified that the above policy did not say it is a zero-tolerance policy.

            Nothing was put into the record showing that the Employer had, in fact, a written policy of zero-tolerance providing for immediate termination accessing a patient’s health/medical file for non business reasons.  The so-called zero-tolerance policy, according to hospital’s Compliance Officer, Mr. Vallas, the policy was made known to all employees during the mandatory HIPAA Privacy Standards training sessions he conducted for all employees, including the Grievant.  At the hearing, Mr. Vallas, on direct examination, testified that during the training sessions he explicitly told the employees that if a patient’s health/medical file is accessed for non business reasons the employee will be terminated.  As further evidence that all employees, including the Grievant, were put on notice that non-compliance will result in “Immediate Termination”, the Employer referred to the HIPAA training material, specifically a Power Point slide on page 2 that was used and shown during the training.  According to the Employer, the Power Point slide made it clear to Employees including the Grievant that termination will always be the consequence (Employer’s Brief, p. 12). 

            The Power Point Slide referred to by the Employer was titled “Enforcement” and stated the following:

            Noncompliance with requirements and standards:

               Over 25 specific requirements

                Fines can exceed $625,000

            Wrongful disclosure of individual health information:

               Simple/basic disclosure-$50,000 fine or 1 year in prison or both

               Intent to sell/use information-$250,000 fine or 10 years in prison or both

               Immediate termination” (E-7)

 

The above Power Point Slide is not evidence of a hospital policy of zero-tolerance.  It is warning that noncompliance of HIPAA, the law, can result in fines in excess of $625,000 and that wrongful disclosure of individual health information can result in monetary fines and or time in prison and immediate termination.  To my knowledge, the hospital does not have the authority to impose fines or prison time.

            The Grievant was not charged by the Employer with violating the law or wrongful disclosure of individual health information.   She was charged with accessing the patient/employee’s health/medical record without a business purpose (Jt-1).   If she did, she is subject to some kind of discipline.  If not, there can be no discipline.

            The Employer contended that the Grievant had no reasonable, plausible explanation for the four or three times the patient/employee’s medical record was accessed with her computer ID and Password (Jt-1, Jt-3, & Jt-5).  The evidence record did not support the Employer’s contention.  There were reasonable explanations.  First, the record showed that even though an employee was required to logoff the computer terminal before leaving the terminal, in practice this was not what was frequently the practice by many of the employees.  Testimony by both Employer and Union witnesses revealed that employees often opened a computer terminal with their ID and Password and walk away without logging off for reasons of tending to a patient’s need or just being forgetful.  If an employee left the computer without logging off, other employees would use the open terminal to achieve whatever task he or she needed to accomplish. 

            Employer witness Kim Winters, on cross-examination and re-direct, testified that she had at times walked away from a terminal without logging off and that others had done so for the purpose of tending to a patient.  She also testified that access into the mainframe computer was often done to find out how many patients from ER may be coming and if the patient was appropriate for CAU. 

            Union witness Lila Alabed who was a nurse at the center for 22 years, testified on direct examination, that on occasion employees would log in and not log off and that the terminal would be left on sometimes for several hours.  She also testified that she, herself, had accessed patient records using an open terminal that someone else had left open and that the practice was routine.  Union witness Greg Suhl, who was a registered nurse at the hospital for 38 years, testified that he would log in and leave the computer terminal open almost everyday.  He acknowledged that the policy was to log off but that it was not practical to do so.  He further testified that if a terminal had been left on he would normally ask the person who opened the terminal if he can use it. 

            The Employer’s contention that the Grievant repeatedly changed her story during the interviews on September 15th and September 19 and throughout the grievance process was also not supported by the record.  Present at the interviews were three hospital representatives: Kim Winters, Thomas Vallas, Michelle Sanchez-Brickley, and Marti Heesen-May.  Employer witness Marti Heesen-May testified that at the two interviews the Grievant gave two slightly different versions when questioned about accessing the patient/employee’s records.  Two slightly different versions is not adequate proof of misconduct.

              Thomas Vallas, also present at the two interviews, testified on direct examination that the Grievant, at first, denied accessing the records and then later admitted it may have occurred when she walked away and left the computer terminal open.  Mr. Vallas also testified that he kept no notes of the interviews, that he did not consider her long employment, her prior record, and did not consult the Collective Bargaining Agreement or consult with any outside attorney. 

            Michelle Sanchez-Bickley, the Employer’s Senior HR Business Partner, testified that her recall of the two interviews with the Grievant was the same as that of the other hospital representatives present during the interviews.  Ms. Bickley testified that the decision to terminate was a result of a group consensus of those present at the two interviews.  She testified that the she considered the Collective Bargaining Agreement, the 7 steps for determining just cause, and that the decision was based on the zero-tolerance policy.  Ms. Bickley testified on cross examination that the misconduct in this instance was severe enough to warrant termination. 

             Adequate proof of any misconduct by the Grievant was not established in the record.  The Employer’s decision to terminate was based on their contention that the Grievant had “no reasonable explanation” for her entries into the patient/employee’s medical record.  That was not adequate proof of misconduct.  It was, at best, an inference from defective evidence.  Yes, her ID and password were used but that was not proof she intentionally accessed the records given that the computer terminals were open all too often for other employees to use.

            In addition, the so-called unauthorized entries cited by the Employer on August 11th and August 15 were not proof.  The two entries on August 11, according to the Audit Log (E-2), occurred at the same time of day, 6:37 p.m.  The possibility of that happening was not logical.  The two entries on August 15th were recorded as occurring only one minute apart, 7:05 a.m. and 7:06 a.m.  This, too, was not adequate proof of misconduct.  Ms. Bickley’s testimony that the group’s decision to terminate, in addition to the other policy violation, was based on the hospital’s zero-tolerance policy was also not adequate proof of misconduct. As explained in the above, the hospital did not, in fact, have a zero-tolerance policy.

            For the reasons discussed in the above, the decision of the Arbitration is that the Employer did not have just cause to terminate the Grievant.  The grievance is sustained.

 

 

 

AWARD

 

            The Grievance is sustained.  The termination of the Grievant, Dolores DeLarwelle, was not for just cause.

 

REMEDY

 

            The Employer is directed to immediately re-instate Ms De Larwelle to her position at the hospital and to make her whole for all lost benefits and wages, with interest, less other income earned.  The Arbitrator retains jurisdiction over any dispute that may arise over the implementation of the remedy. 

Date: ______________                                               _____________________________

                                                                                    C. ALLEN POOL, Arbitrator

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 

 
LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028