Mat-Su Regional Medical Center

National Labor Relations Board - Administrative Judge Opinions

Jul 7, 2017

19-CA-180385 (N.L.R.B. Jul. 7, 2017)

JD(SF)–31–17
Palmer, AK
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH
DIVISION OF JUDGES
MAT-SU REGIONAL MEDICAL CENTER
and Case 19-CA-180385
DEBORAH A. SWAN, AN INDIVIDUAL
Ryan Connolly, Esq.,
for the General Counsel.
Bryan T. Carmody, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, Administrative Law Judge. Deborah A. Swan, an individual,
(Charging Party or Swan), filed the original charge in Case 19–CA–180385 on July 18, 2016.
The General Counsel issued the consolidated complaint on December 2, 2016 (complaint), and
the Respondent Mat-Su Regional Medical Center (Respondent or Employer) answered the
complaint on March 14, 2016, generally denying the critical allegations of the complaint.
This case involves the Respondent’s discharge of the Charging Party on March 23, 2016,1
soon after the Charging Party was investigated and disciplined for inappropriately accessing the
medical records of two patients to whom the Charging Party was not assigned. The Charging
Party alleges that she was unlawfully terminated in retaliation for several incidents of protected
concerted activity that took place between November 2015 and March 2016.
This case was tried in Anchorage, Alaska. Closing briefs were submitted by the General
Counsel and the Respondent on April 26, 2017. 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
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged in the business of operating an acute care hospital
and clinic as an affiliate and/or subsidiary of Community Health Care, Inc. (CHS) at its facility

1 All dates are 2016 unless otherwise indicated.
JD(SF)–31–17
2
in Palmer, Alaska, where it annually receives gross revenues in excess of $250,000, and
purchases and receives goods valued in excess of $50,000 directly from suppliers outside the
State of Alaska. The Respondent admits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act. (GC Exh. 1(c).)2
5
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent’s Operations
Respondent operates a short-term acute care hospital and clinic in Palmer, Alaska. (GC Exh.10
1(c); Tr. 20.) Respondent breaks down its operations into four departments: a medical and
surgical department (referred to as Med-Surg), an emergency department (ER), an intensive care
unit (ICU), and an obstetrics department (OB). (Tr. 24, 30.)
In order to support and manage patient care within the hospital, Respondent employs case 15
managers within its case management department. Case managers are responsible for monitoring
their assigned patients, assessing patient admission and care for medical necessity (referred to as
utilization review), and planning patient discharge. (R. Exh. 2; see Tr. 100–101.) Occasionally, a
case manager’s duties require that they communicate with third parties, such as insurers and
hospital vendors, about patient needs. (Tr. 29, 32–33.) Case managers track patient status by 20
monitoring physician documentation through the hospital’s various electronic resources and
paper charts.3 (Tr. 26–27.) Case managers are assigned patients according to the different wings
of the departments within the hospital, depending on the number of patients and available staff.
Typically, the Med-Surg floor’s four halls are divided amongst two case managers (two halls per
case manager). One case manager is assigned to OB, and one case manager to ICU. (Tr. 23–24.)25
Case managers attend at least two meetings each day. The first is a “department huddle,”
held at 8 a.m. every morning, and is the process by which important information, such as safety
updates, is circulated throughout the case management department. (See Tr. 107–109.) The
second is a multidisciplinary meeting held at 1 p.m. Monday through Friday, where the different 30
professionals involved in a particular patient’s care (physicians, nurses, pharmacists, social
workers, therapists, etc.) discuss the patient’s situation and make appropriate recommendations.
(Tr. 29.)
In 2015 and 2016, the normal operating hours for the Case Management Department were 35
approximately 7 a.m. to 5 p.m. (Tr. 101.) At this time, there were 10 total case managers,
including the Charging Party: five registered nurses (RN’s) (Deborah Swan, Mary Alden, Pat

2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R. Exh.” for Respondent’s
exhibit; “GC Exh.” for General Counsel’s exhibit; “GC Br.” for the General Counsel’s brief; and “R. Br.”
for the Respondent’s brief. Although I have included numerous citations to the record to highlight
particular testimony or exhibits, my findings and conclusions are based not solely on the evidence
specifically cited, but rather on my review and consideration of the entire record.
3 The electronic systems consist of an electronic health record, Med-Host, and a software program for
tracking utilization review, Morrisey. (Tr. 103.) The paper record contains the same medical information
as the electronic system, and is tabbed to separate the different kinds of records (such as lab work,
doctors’ orders, etc.). (Tr. 27.)
JD(SF)–31–17
3
Patzke, Lesli Brandt, and Nancy Fox) and five social workers (Eileen, Kirsten, Melinda, Stacy
Krezenskie, and Stacy).4 (Tr. 21–22, 106–107.) Typically, three case managers would work
Monday through Friday, and one case manager would work on the weekend. (Tr. 103–104.)
In 2015 and 2016, the case managers shared a room called the case management office, 5
which was located on the second floor of the hospital. The case management office was a large,
open space containing shared desks that were separated by half-pony walls. (Tr. 22.) The case
management office also contained a central phone system, which accepted all incoming calls to
the case management department. (Tr. 39–40.) Case managers would typically perform their
duties either in the case management office, or on the Med-Surg floor with laptops. At some 10
point,5 Respondent expressed a preference for case managers to perform their duties on the Med-
Surg floor, ICU floor, or OB floor rather than in the case management office. (Tr. 39–40.)
The case managers reported to the director of case management. Until the spring of 2015,
Pauline Burrell (Burrell) had served in this position. (Tr. 35.) In May or June 2015, Burrell left 15
her position with Respondent. Approximately 3 months later, in September 2015, Respondent
hired Denise Plano (Plano) to take over as director of case management. Plano’s role as such was
to oversee the case management processes and to manage the staff of nurses and social workers
within the case management department. (Tr. 100.) Plano reported directly to Harvey Torres
(Torres), Respondent’s chief financial officer. (Tr. 100, 130.)20
At this time, Alice Wood (Wood) was Respondent’s privacy officer. (Tr. 111.) Wood was
hired in 2014 as a financial counselor, became the admissions supervisor in May 2015, and
began serving as the facility privacy officer in October 2015. (Tr. 153–155.) As facility privacy
officer, Wood was responsible for investigating potential Health Insurance Portability and 25
Accountability Act (“HIPAA”) violations. (Tr. 155.) Wood also reported directly to Torres. (Tr.
154.)
Also in 2016, Kathy Babuschio (Babuschio) served as the human resources (HR) director and
facility compliance officer for Respondent. (Tr. 173–174.) Babuschio had worked with 30
Respondent for the past 16 years, and had held the dual positions of HR director and facility
compliance officer since 2010. (Tr. 173–174.) As facility compliance officer, Babuschio was
responsible for monitoring compliance with all federal healthcare regulations, including HIPAA.
(Tr. 174.) Babuschio reported directly to John Lee (Lee or the CEO), Respondent’s chief
executive officer. (Tr. 174.)35
1. Respondent’s disciplinary and investigative procedures
Respondent’s disciplinary policy notes that “[t]he disciplinary action that is appropriate for
any particular act or misconduct depends upon many factors including . . . the seriousness of the 40

4 Plano testified that, at the time of her hire in September 2015, the RN case managers were Deborah
Swan, Lesli Brandt, Mary Alden, Cherie Tomlinson, and Sheila Hunt. From the point of Plano’s hire to
Swan’s termination, the case management department also added Stacy Krenzenskie (social worker),
Nancy Fox (RN), and Pat Patzke (RN). (Tr. 104–105.)
5 The record does not specify as to when.
JD(SF)–31–17
4
misconduct.” (R. Exh. 8 (1).) Further, an employee “may be terminated immediately for a
serious policy violation.” (R. Exh. 8 (3).)
The policy, in pertinent part, also explains the process for investigating an alleged conduct
violation:5
When an employee has engaged in conduct that may lead to disciplinary action, the
Facility HR Director should ask the employee to explain the offense(s) and/or conduct
and describe the context. Then, in collaboration with Division HR Director, the Facility
HR Director shall consider the employee’s conduct and the information provided to 10
assess whether the employee is unsuitable, unqualified, or unavailable for employment.
The employee may be placed on investigative suspension until information has been
provided and assessed by the Facility. (R. Exh. 8 (5).)
2. Respondent’s HIPAA and patient confidentiality compliance procedures15
Babuschio described Respondent’s CEO as being “very compliance-driven.” (Tr. 180.) New
employees were given HIPAA information in their orientation materials and were required to
observe the Privacy Officer’s HIPAA PowerPoint presentation. (Tr. 176–177; R. Exh. 5.)
Additionally, all employees were required to complete annual two-hour computer modules 20
regarding HIPAA compliance. (Tr. 176–177; R. Exh. 6.) Both the orientation PowerPoint and the
annual module training materials defined protected health information (PHI) to include “any
information that can be used to identify the patient”6 and “anything about a patient’s medical
condition and treatment.” (R. Exh. 5 (5); R. Exh. 6 (3).) Additionally, both the orientation
PowerPoint and the annual module training materials discussed the concept of “Minimum 25
Necessity,” defined as “accessing only the minimum [amount of information] necessary to
complete [a] job, no more and no less.” (R. Exh. 5 (10); R. Exh. 6 (4).) Both the orientation
PowerPoint and the annual module training materials noted that the unauthorized access of any
PHI,7 even if the PHI is not printed or shared with anyone else, constitutes a “breach” and
violators “may be subject to disciplinary action up to and including termination.” (R. Exh. 5 (13); 30
R. Exh. 6 (10).) Finally, both the orientation PowerPoint and the annual module training
materials highlighted the risk posed by “snooping and casual disregard” of patient information.8
The first example of “snooping and casual disregard,” on both documents, was “[a]ccessing the
medical records of family members, friends, ex-spouses, neighbors, celebrities, etc.” (R. Exh. 5
(13); R. Exh. 6 (10).)35
During this time, when Respondent would admit patients for whom there were additional
privacy concerns,9 the CEO would emphasize the importance of HIPAA compliance at
management meetings. (Tr. 179–180.) The CEO would additionally request daily audits of the

6 Such as a patient’s name, address, social security number, medical record number, telephone
number, patient account number, etc. (R. Exh. 5 (5); R. Exh. 6 (3).)
7 Excluding “unintentional acquisition, access, use or disclosure made in good faith and done within
the course and scope of [one’s] job.” (R. Exh. 5 (13); R. Exh. 6 (10).)
8 The annual module training materials specifically referred to snooping and casual disregard as “our
greatest risk.” (R. Exh. 6 (7).) (Emphasis added.)
9 In trial, these individuals were referred to as “celebrity” or “VIP” patients. (Tr. 180.)
JD(SF)–31–17
5
celebrity patient file, to ensure that the employees who were accessing the patient’s information
had been properly authorized to do so. (Tr. 179–180.) Any suspected HIPAA violation would
result in an investigation coordinated by Wood and the HR department. (Tr. 155–156.) The
complexity of the investigation would depend on the complexity of the alleged violation, but
would typically involve Wood interviewing both the reporting parties and the accused parties. 5
(Tr. 155–156.)
Further, Respondent’s “Statement of Beliefs” within the code of conduct states that “we are
dedicated to compliance with all federal, state, and local laws, rules, and regulations, including
privacy and security of patient health information.” (R. Exh. 9 (2).) Under the “Confidentiality of 10
Patient Information” section of the code of conduct, the policy further states, in relevant part:
We consider patient information highly confidential. Colleagues are expected to take care
to protect the privacy of individually identifiable health information at all times . . .
patient information may only be discussed or released in accordance with our HIPAA 15
policies . . . colleagues should not access or use any patient information, including that of
themselves, their family members or friends, or of subordinates or co-workers, unless it is
necessary to perform his/her job. (R. Exh. 9 (10).)
Respondent’s disciplinary policy lists “violation of patient confidentiality or privacy” as an 20
example of “conduct that may result in immediate termination.” (R. Exh. 8 (4).)
B. The Charging Party
Deborah Swan was employed with Respondent from May 2002 to March 23, 2016. (Tr. 20.) 25
Initially, Swan worked as an RN in a pool position on the Med-Surg floor. After a couple of
years, Swan worked in a dual capacity as a pool Med-Surg nurse and a pool nurse in the Case
Management Office. (Tr. 20.) By 2015, Swan was working solely as a case manager mostly
assigned to patients in the Med-Surg floor of the east and south wings of the hospital. (See Tr.
20–21.)30
At this time, Swan primarily worked four 10-hour shifts a week, Monday through Thursday.
(Tr. 21.) While most case managers arrived at the hospital around 7 or 7:30 a.m., Swan would
arrive at 6 a.m., about an hour earlier than her colleagues. (Tr. 23.) Swan first began coming in
early “shortly before [Burrell] left,” in the spring of 2015. (Tr. 38.) Swan initially began arriving35
early because “it was thought that that might help initiate the department getting a better start in
the morning.” (Tr. 38.) While all case managers were responsible for the job duties described
previously, Swan’s early hour was dedicated to performing the additional task of pulling a
census of all the patients in the hospital. (Tr. 23.) The census included the name of each admitted
patient and basic identifying information, such as patient number, diagnosis, and insurance 40
information. (Tr. 23.) After pulling the census, Swan would separate the list into the likely case
manager assignments for the day and would do a “quick overview” of each patient on the census.
(Tr. 23.) During this overview, Swan would check for obvious inaccuracies or inconsistencies
JD(SF)–31–17
6
regarding patient level of care, and would make any corrections that she could find with the
limited information available in the census. 10 11 (See Tr. 24–25.)
During the approximately 3-month window between Burrell’s departure and Plano’s arrival,
between May/June 2015 and September 2015, Swan took on additional duties to fill the gap left 5
by the Director of case management. (Tr. 35–36.) Swan’s new duties included: attending the 9
a.m. “huddle meeting” between the hospital administration and department heads, completing a
series of reports for the hospital, training other nurses, and reporting staffing levels to Emily
Stevens (Stevens), a ranking hospital administrator, who would then ensure that there were
always enough staff on deck.12 (Tr. 35–38.) 10
At some point prior to Plano’s arrival in September 2015, Plano and Swan had a conversation
in which Swan asked whether she should continue to come in at 6 a.m. Plano responded “that’s
fine,” and as a result “everybody just kept doing what they were doing.” (Tr. 39.) Swan
continued to arrive early until her termination in March 2016. 15
1. Plano’s arrival and the alleged Protected Concerted Activities
Upon Plano’s arrival in September 2015, Swan initially did not bring up any concerns with
the department: “we were just trying to help her, you know, figure out our processes, and then as 20
things would come up, you know, then the discussion would take place about whatever that issue
was.” (See Tr. 39.) However, over the course of the next several months, Swan brought a number
of matters to Plano’s attention.
a. The accumulation of phone messages25
At some point,13 Respondent eliminated the case management secretary position. As a result,
the case managers absorbed much of the secretary’s work, including answering the telephone and

10 Swan further testified that her other morning duties included: gathering all the paper discharge
charts from the various hospital floors, double-checking that the discharges were correct, approving
correct discharges and following up on incorrect discharges, and entering the relevant data into
Respondent’s computer system. (Tr. 25.) However, Swan also testified that these particular duties were
not unique to her; they were shared amongst all case managers, and Swan would typically perform them
when she came in early. (Tr. 25.)
11 At some point, at least two of Swan’s colleagues, Mary Alden (Alden) and Lesli Brandt (Brandt),
asked that Swan stop reviewing the information for their patients. (See Tr. 116, 139–140.) Alden testified
that she felt Swan’s morning census work conflicted with her “process” as a case manager. (Tr. 140.)
Additionally, Plano credibly testified that Alden and Brandt began approaching Plano approximately 2
months after she started working at Respondent to request that Swan not “do any of their work.” (Tr. 116,
123.) Plano also credibly testified that she and Swan had multiple conversations wherein Plano had asked
Swan not to perform the work of her colleagues. (Tr. 116.)
12 There was a dispute among witnesses as to the nature of Swan’s additional duties. Swan testified
that she was in an “interim position” acting as Case Management Director during this time. (Tr. 34–35.)
Plano testified that, to her knowledge, Swan was not elevated to an interim position, but was instead
merely asked to “provide support and supervise.” (Tr. 126.) Swan admitted that she never formally
applied for the vacant position.
13 The record does not specify as to when.
JD(SF)–31–17
7
responding to messages. (Tr. 39–40.) However, at some later point, Respondent expressed the
preference that case managers perform their duties on the Med-Surg, ICU, and OB floors, rather
than in the case management office. (Tr. 39–40.) As a result, with no secretary and fewer case
managers in the office to mitigate that loss of personnel, the phone messages began to pile up.
(Tr. 40.) Swan testified that the case managers would occasionally discuss the pileup amongst 5
themselves. (Tr. 41–42.)
At some point after November and before March (Tr. 58), Plano entered the case
management office, noticed that there were 50 unanswered messages on the phone, and said to
the room,14 “you’ve got to get these messages off.” (Tr. 40.) Swan explained to Plano that the 10
lack of a secretary, coupled with the Respondent’s preference that case managers not be in the
office, was causing the build-up. In response, Plano repeated, “you have to get the messages off.”
(Tr. 41.) Swan responded, “okay.” (Tr. 41.) Swan later testified that, by the time she left
Respondent, the message pileup no longer posed a problem for the office, because “not just me
but all the case managers, we just did our best to try and get in the office and get the messages 15
off.” (Tr. 58.)
b. Privacy and discussions in the hallway
Swan testified that another issue with discouraging case managers from working in their 20
office was the lack of privacy on the floor. (Tr. 43.) Swan believed that the case managers felt
uncomfortable having phone conversations about patients in the public hallways. (Tr. 43–44.) On
one occasion, Swan recalled Plano asking Swan why she was working in the Case Management
Office, rather than working on the floor. Swan responded, “I’m in here doing work because I
don’t want to talk in the hallway about this issue.” (Tr. 44.) Swan did not testify as to a response 25
from Plano, and could not recall any further conversations about the subject. (Tr. 44.)
c. Wi-Fi
Swan testified that the case managers occasionally worked from laptops, and that the 30
hospital’s Wi-Fi connection was oftentimes unreliable. (Tr. 43–44.) Swan did not testify as to a
specific conversation with management about this issue. (Tr. 45.) But when asked about whether
she discussed the Wi-Fi with Plano, Swan noted, “I think, you know, people mentioned it, not
just myself but you know, in the course of the day of conversation, you know, they would say
something like, ‘I’m having to redo my work because I lost the Wi-Fi connection, and so now 35
I’m behind.’” (Tr. 45.)
d. Morrisey and the volume of work
Swan testified that, after Respondent introduced the Morrisey system,15 a recordkeeping issue 40
arose for the case managers with regard to “double documentation.” (Tr. 45.) Case managers had
to document information in both the new system and the old system, which added approximately
five to ten minutes of work to each patient. (Tr. 45.) Swan could not recall a particular

14 Swan could not recall precisely which case managers were in the room at this point, but testified
that Alden and Brandt were likely present. (Tr. 40.)
15 Morrisey was the software program that Respondent used for utilization review. (Tr. 103.)
JD(SF)–31–17
8
conversation where the case managers discussed their volume of work, but indicated that she
likely discussed it with Alden. (Tr. 59.)
Swan testified that, on one occasion, Plano asked why work wasn’t getting done. Swan
responded, “well, it’s taking us more time now that we’re doing the Morrisey stuff,” and that 5
“I’m trying to get all of it done, and I’m failing.” (Tr. 45–46.) Swan did not testify as to a
response from Plano.
2. Plano’s alleged hostility toward Swan
10
a. The hospice patient
In November 2015 (Tr. 55), Swan informed the hospice director that a particular patient
would not be needing hospice services, because the patient had refused hospice previously and
was instead willing to accept home health services. (Tr. 46.) The hospice director became 15
frustrated, so Swan brought the matter to the patient’s attending physician. (Tr. 47.) The
physician called hospice and sharply told the hospice director not to “badger” the patient. (Tr.
48.) Approximately 30 minutes later, Plano came into the case management office and claimed
that Swan had “thrown hospice under the bus.” Swan testified that Plano then said, “that’s
number one,” and walked out the door. (Tr. 48.) Swan further testified that there were other case 20
managers in the room at this time, and that after Plano left the office, the case managers shook
their heads to mean, “oh my.” (Tr. 48.)
b. The oxygen patient
25
Swan described an instance in which she responded to a durable medical equipment (DME)
company call. (Tr. 49–50.) The company indicated that they had received an oxygen request for
a particular patient, but that the form had not been properly filled out. Swan fixed the form and
faxed it to the company. It was Swan’s understanding that the attending physician, who was
frustrated that the form needed to be sent in again, later called the DME company and “chewed 30
them out.” (Tr. 50–51.) In response, Plano came to the case management office and told Swan
that she had “[thrown] another vendor under the bus” by “sic[cing]” a doctor on the DME
company. Swan denied that she had done so, and explained that she had merely filled out the
requested form and faxed it in. (Tr. 51–52.) In response, it was Swan’s unrefuted testimony that
Plano said, “well, the DME company complained that the physician called over there and 35
gripe[d].” (Tr. 52.) 16

16 Swan’s account of the doctor’s interaction with the DME company detailed, over Respondent’s
hearsay objection, a discussion between a medical assistant and a doctor that took place while Swan was
not present. (See Tr. 50.) However, I find that Plano corroborated this account by making the following
unrefuted admission to Swan: “well, the DME company complained that the physician called over there
and gripe[d].” (Tr. 52.) (See Midland Hilton & Towers, 324 NLRB 1141 fn. 1 (1997), citing RJR
Communications, Inc., 248 NLRB 920, 921 (1970) (finding that hearsay evidence is admissible in Board
proceedings “if rationally probative in force and if corroborated by something more than the slightest
amount of other evidence.”) Plano is an admitted supervisor under § 2(11) of the Act. (GC Exh. 1(d); GC
Exh. 1(e).) As such, Swan’s unrebutted account of Plano’s admission above constitutes a supervisor
statement admissible under FRE 801(d)(2). (See Ferguson Enterprises, Inc., 355 NLRB 1121 fn. 2
JD(SF)–31–17
9
Swan additionally testified that there were other case managers present for this conversation
between herself and Plano, and that during the conversation the other case managers muttered
“oh my” under their breaths. (Tr. 55.) After the interaction, Swan went to Plano’s office and told
her that she did not appreciate being yelled at in front of coworkers. Swan testified to saying, “if 5
I’ve done something wrong, please tell me. I want to, you know, be able to make solutions
here.”17 Plano then denied having yelled at Swan. (Tr. 53–54.) Swan testified that this incident
happened “weeks” before she was terminated. (Tr. 54.)
C. The Charging Party’s HIPAA Violations10
1. Snooping into celebrity patient’s personal medical records - Monday March 14
On the night of Sunday, March 13, 2016, Respondent admitted a patient who happened to be
a known celebrity.18 The following Monday morning, Respondent’s CEO informed Babuschio15
that there were already news crews waiting in the hospital parking lot. (Tr. 179.) The CEO then
said, “I want to make sure that we do everything right, that we do daily audits [of the VIP patient
record], that people are reminded about HIPAA and how important it is, and that nobody should
go into the [celebrity patient’s] chart without absolute need.” (Tr. 179.) Wood testified that, on
the same morning at the 9 a.m. manager safety huddle, the CEO “let us know what the situation 20
was and wanted all the managers to refresh their staff on proper HIPAA procedure.”19 (Tr. 157.)
Following the safety huddle, Wood met personally with the CEO and CFO, who requested that
Wood run a daily audit on access to the celebrity patient’s medical record. While Wood was
unable to run the audit that day due to technical difficulties, with the IT director’s help she
succeeded in pulling the first record audit the following Wednesday, March 16. (Tr. 157.)25
Meanwhile, on Monday, March 14, Swan had come into work at her usual time of 6am,
approximately an hour before her colleagues arrived. (Tr. 61.) Swan would only be working for a
couple of hours that day, because she needed to leave for jury duty around 8 a.m. (Tr. 63.) Swan,

(2010).)
17 Swan’s entire testimony to her statement was as follows: “So I walked over to her office. I went in.
She was sitting at her desk. And I said, ‘[y]ou know’—I said, ‘[t]his isn’t good.’ I said, ‘[w]e need to have
a conversation.’ I said, ‘I don’t appreciate being yelled at and you becoming physically and verbally
aggressive toward me in front of my coworkers. You know, I’m sitting at my desk, you’re standing over
me with your finger out and you’re yelling at me. And, you know, you’re—[i]t doesn’t feel like you’re
listening to what the situation is.’ And I told her, I said, ‘I’m happy to do what—whatever I need for my
job and—but I like to be treated in a professional manner. You can, you know, call me in your office, you
can, you know, talk to me in a professional way. If I’ve done something wrong, please tell me. I want to,
you know, be able to make solutions here.’”
18 In an effort to protect this patient’s privacy, all participants in the hearing referred to this individual
as “the patient” and all relevant exhibits were redacted accordingly. (See Tr. 8–11.) Because this decision
references multiple patients, I refer to this particular individual as “the celebrity patient” or the “VIP
patient.”
19 Swan confirmed at trial that she had attended Respondent’s yearly HIPAA trainings and was
familiar with HIPAA and with Respondent’s HIPAA policy, including the concept of “minimum
necessity” and the severe penalties for violating patient confidentiality. (See Tr. 75–76, 89–91.)
JD(SF)–31–17
10
on that morning, pulled the census as she normally did. Swan further testified that, in reviewing
the census, she noted that the celebrity patient—who was not assigned to Swan—had incorrect
insurance information. Swan testified that she knew that the insurance information was incorrect
because she had taken care of the patient and his family before. (Tr. 62.) The celebrity patient’s
insurance was listed as “self-pay,” and Swan later claimed that she knew that the patient 5
probably had commercial insurance.20 (Tr. 162.) Swan then testified to the following: “I looked
through the chart trying to find a place where that insurance might have been written down. It
was not in the correct place and it—it could have been anywhere. While I was in the chart, I also
decided to [conduct a utilization review] for [InterQual] Criteria.”21 (Tr. 62.) Swan testified that
she did not find the insurance information anywhere in the electronic record, so she went down 10
to the ICU and checked the paper chart. She did find the insurance information in the paper
chart, on the ambulance report. Swan testified that, by this point, she had reviewed the celebrity
patient’s file for InterQual Criteria and had determined that the patient’s care was at the
appropriate level. (Tr. 63.) Swan later testified that she could not recall whether she similarly
conducted a utilization review for any other patient that day.22 (Tr. 79.)15
Later that morning, after other case managers had begun to arrive, Swan walked into the
Case Management Office, where Plano, Alden, and a social worker were seated. Alden was
assigned to the celebrity patient, so Swan informed Alden that the celebrity was a patient at the
hospital and that his insurance information was incorrect.23 (Tr. 63–64.) Plano testified that when 20

20 There was a great deal of testimony about the degree to which case managers interact with a
patient’s insurance information. After reviewing this testimony, I find that knowing a patient’s insurance
information is helpful in forming a discharge plan, which is one of the case manager’s main duties. (See
R. Exh. 2; Tr. 148–149.) However, there was unrebutted testimony to the fact that insurance verification
is the responsibility of the admission staff, not the case management staff, and on the entire record I find
that case managers do not generally assist Admission staff with insurance information for newly-admitted
patients. (Tr. 164.)
21 This claim seems to have made its first appearance at trial. Babuschio and Wood’s unrebutted
testimony was that Swan at no time, throughout the subsequent disciplinary process, claimed that she
needed to access the patient’s medical information because she was conducting a utilization review. (See
Tr. 162, 182–183, 185.)
22 Swan was not credible when she testified that, on March 14, she reviewed various medical records
of a high-profile celebrity patient for the sole purpose of correcting his incorrect insurance information in
the demographics records. A systems audit later revealed that the first record Swan opened was the
celebrity patient’s “vitals” record, which had nothing to do with demographics or insurance information,
but instead related solely to the patient’s personal medical history, and would include such salacious
information as blood alcohol content and narcotic use. (R. Exh. 21; see Tr. 92–93.) The systems audit
additionally revealed that Swan had not performed an intraqualitative assessment or utilization review, as
she alleged at hearing, on the celebrity patient. (See Tr. 111–112; R. Exh. 21.) Finally, after being asked
multiple times during the disciplinary process why Swan was accessing this celebrity patient’s “vitals”
record, if all she needed was insurance information, Swan had no comment. (Tr. 161–162, 182, 185.) As
such, I find that Swan improperly accessed the celebrity patient’s personal medical records on March 14,
2016.
23 Swan characterized this conversation as a “report” to Alden on the status of the celebrity patient.
(Tr. 64.) Plano, credibly, rebutted this testimony. Plano said that she would “absolutely not” characterize
the conversation as a report: a report “would be talking about the status of the patient, the needs of the
patient, what’s currently being done for that patient and perhaps a discharge plan depending on where the
patient is in the stay. . . [with this conversation,] there was no sharing of a plan for the patient. It was very
JD(SF)–31–17
11
Swan entered the office, she announced that the celebrity had been in an accident and was
“extremely loud, excited, and demonstrative.” Plano told Swan to “stop,” and said that all their
patients were celebrities. (Tr. 106.) Alden confirmed Plano’s observations at this time, opining
that Swan “acted a little escalated, excited that she was able to find an insurance verification by
going into another patient’s chart.” (Tr. 149.)5
2. Snooping into the celebrity patient’s and the Respondent physician’s wife’s personal
medical records—Tuesday March 15
The next day, on March 15, Swan was approached by an ER nurse in the hospital hall. (Tr. 10
66.) According to Swan, the nurse allegedly told her that the hospital was “pretty full,” and asked
if there was anybody that could be discharged or moved so the nurse could take the empty bed
for a waiting patient. Swan told her that she did not know, but would find out. (Tr. 66.)
Swan, who was not assigned to the ICU that day, then opened the ICU records. (See Tr. 66, 15
8687.) Swan testified that she checked “several patients” to see if anyone could be moved, one of
whom was the celebrity patient. Specifically, Swan stated under oath that she checked fewer than
ten patients’ beds, but could not remember the exact number of records she opened. (See Tr. 66–
67.) Swan did recall, however, that none of the patients she checked were able to give up their
beds. (Tr. 66.) 20
On cross-examination, Respondent’s counsel confirmed that Swan claimed to have accessed
“fewer than ten” ICU patients that day.24 Swan responded, “I think so.” (Tr. 87.) Counsel then
asked whether Swan would have any reason to disagree with the statement that Swan had
actually accessed only one other ICU record that day, aside from that of the celebrity patient, and 25
that the only other record had belonged to a patient “who happened to be the wife of a
physician.”25 (See Tr. 87; R. Exh. 22 (10–11).) Swan responded that she could not recall. 26 (Tr.
87.)
30

quick, it was very emotional, and not the normal conversation that two professionals would have with
each other.” (Tr. 107.)
24 On March 15, there were only twelve total patients in the ICU. (R. Exh. 21.)
25 The records audit does not indicate that Swan accessed the “vitals” record of the physician’s wife
on March 15, but does indicate that on this day Swan once again accessed the “vitals” record of the
celebrity patient. (R. Exh. 22 (10–11).)
26 I do not credit Swan’s testimony as to the events of March 15. On cross examination, Swan could
not remember the name of the nurse she spoke to, nor could she describe her physically (other than to
answer “yeah, she was Caucasian” in response to counsel’s prompt), and claimed to have never seen the
ER nurse before. (Tr. 73.) Swan never mentioned the appearance of a nurse during her subsequent
investigatory interview or termination meeting, despite being given multiple opportunities to do so. (Tr.
74–75, 172.) Further, the fact that Swan materially changed her testimony with regard to the number of
ICU records she accessed that day—“fewer than ten” as opposed to “two”—coupled with the fact that
Swan had not been assigned to the ICU on March 15, undermined Swan’s credibility when she testified to
the reasons for accessing the records of the celebrity patient and to those of the physician’s wife. (See Tr.
87; R. Exh. 21; R. Exh. 22 (10–11).) As such, I find that Swan improperly accessed the two patients’
personal medical records on March 15, 2016.
JD(SF)–31–17
12
D. The Investigation and Termination
On Wednesday, March 16,27 Plano received a call from Natalie Porter (Porter), Interim
Director of the ICU. (Tr. 110.) Porter wanted to know whether case managers Alden and Pat
Patzke (Patzke) were assigned to the celebrity patient, as Respondent’s audit had revealed that 5
they had accessed the celebrity patient’s records. (See Tr. 110–111.) Plano confirmed that Alden
and Patzke had authorization to access the celebrity patient’s medical records. (Tr. 110.) Plano
then credibly recalled that the conversation with Porter made her remember the events of March
14, specifically Swan’s excitement when she mentioned the celebrity patient. (See Tr. 111.)
Plano grew concerned that Swan may have inappropriately accessed the celebrity patient’s 10
information, and so took her concerns to Respondent’s privacy officer, Wood, that same day.
(Tr. 111.) Wood granted Plano permission to open Swan’s history to see whether Swan had
accessed the celebrity patient’s record. (Tr. 111.)
Upon opening the history and finding that Swan had, in fact, accessed the celebrity patient’s 15
record, Plano then cross-checked Morrisey to determine whether Swan had performed a
utilization review, which would have explained Swan’s access. (See Tr. 111–112.) Plano did not
see anything documented in Morrisey, so she sent an email to Wood describing what she had
found. (Tr. 112–113.) Wood confirmed, over an email with the subject line “HIPAA,” that Swan
did not have the authorization to access the celebrity patient’s file, and Wood stated that she was 20
taking the matter to the CEO. (Tr. 160; R Exh. 3.) Wood and Babuschio then went to meet with
the CEO, who agreed with Babuschio’s suggestion that, consistent with Respondent’s policy,
Swan be placed on suspension pending investigation of a potential HIPAA violation. (See Tr.
160, 181; R. Exh. 8(5).)
25
That same day, Swan was called into Babuschio’s office to meet with Babuschio, Plano, and
Wood. (See Tr. 113–114, 160, 180–181.) At this meeting, Swan claimed that she had accessed
the celebrity patient’s record because she had been trying to find insurance information in order
to help a colleague. (See Tr. 114, 161, 182.) In response, Babuschio asked why Swan had needed
to access the “vitals” section of the celebrity patient record, if all she had wanted was the 30
insurance information. (Tr. 115, 161, 182.) Swan had no response to this question. (Tr. 115, 161,
182.) Swan was placed on suspension pending investigation that day. (Tr. 160; R. Exh. 7.)
The following Friday, March 18, Swan was called back into Babuschio’s office for an
investigatory interview. Only Babuschio, Swan, and Wood were present (Plano was not). (Tr. 35
161, 184.) At this interview, Wood asked Swan about the relationship between her job-specific
duties and this particular patient’s medical record. Swan claimed that she recognized, during her
census, that this patient’s insurance was noted as “self-pay,” when she knew that he probably had
commercial insurance. Swan reiterated that she opened the record to find the correct insurance
information to help her coworker. (See Tr. 162, 185.) Babuschio then asked Swan the same 40
question she had asked previously: why Swan had entered the “vitals” record when all she
needed was insurance information. (Tr. 162, 185.) Once again, Swan had no response. (Tr. 162,
185.) Additionally, Babuschio and Wood’s unrebutted testimony was that Swan at no time
throughout this process claimed that she needed to access the patient’s medical information

27 Plano mistakenly testified that this Wednesday was March 17, but the correct date, as confirmed by
Wood and a 2016 calendar, was March 16. (Tr. 110, 159.)
JD(SF)–31–17
13
because she was conducting a utilization review, which had been Swan’s claim at trial. (See Tr.
162, 182–183, 185.) After this meeting, Wood, Plano, and Babuschio conferred about the
investigation.28 (Tr. 117, 164–165, 185–186.) Wood confirmed that insurance information was
actually validated by admissions, and not by case management. (Tr. 186.) Wood determined that
there had been a HIPAA breach, and she relayed this information to Babuschio. (Tr. 162.)5
Babuschio then recommended that Swan be terminated. (Tr. 186.) Plano and Wood agreed. (Tr.
186.) Babuschio, Plano, and Wood then met with the CEO. (Tr. 186.) The CEO reviewed the
materials and agreed with Babuschio’s recommendation that Swan be terminated. (Tr. 186.)
Consistent with company policy, Babuschio then called her Regional HR Director to review the
recommendation with her. The Regional HR Director agreed that Swan’s termination was 10
warranted. (Tr. 186–187; see R. Exh. 8 (5).)
On Wednesday, March 23, Swan was called back to Babuschio’s office to meet with
Babuschio and Plano (Wood was not present). (Tr. 189.) Babuschio informed Swan that
Respondent was going to terminate her, and Babuschio read Swan her termination paragraph. 15
(Tr. 189.) Babuschio informed Swan that she would have an opportunity to write a rebuttal, and
gave Swan the form and instructions for filing a grievance along with her termination notice.29
(Tr. 189-190; see R. Exh. 10; GC Exh. 2.) Respondent terminated Swan that day, and reported
Swan to the Alaska State Nursing Board for violating HIPAA. (Tr. 194; R. Exh. 11.) Respondent
also notified the celebrity patient, via certified mail and a call from the CEO, that his information 20
had been inappropriately accessed and that the hospital had taken subsequent steps to protect the
celebrity patient’s identity, including offering the celebrity patient complimentary Fraud
Resolution support. (See Tr. 195–196; R. Exh. 12.)30

28 Swan confirmed at trial that during the investigatory suspension meeting and termination meeting,
Swan never stated to anyone that she believed she was being disciplined in retaliation for complaining to
Plano. (Tr. 87–89.)
29 There was some confusion about whether Swan’s termination notice indicates that Swan was fired
for “Disruptive Behavior” along with “Failure to comply with Hospital Policy.” (Tr. 191–193; See R.
Exh. 10; GC Exh. 2.) Both of these boxes stand out on Swan’s termination notice by virtue of being in
their own row on the form. (GC Exh. 2.) However, Babuschio’s credible and unrebutted testimony
indicates, and I find, that Respondent’s computer system pushed those two boxes to their own row after
Respondent clicked the boxes preceding them, “Violation of Confidentiality” and “Other [Code of
Conduct].” (See Tr. 191–193; R. Exh. 10; GC Exh. 2.) This is evident from the identical blank
termination notice indicating that “Disruptive Behavior” and “Failure to comply with Hospital Policy” are
indeed the last boxes in the row, (R. Exh. 10), and also from the fact that those two boxes were not
selected, or “exed,” on Swan’s termination notice - merely pushed to the bottom. (GC Exh. 2.) I find
Babuschio credible in her testimony that the termination notice intended to indicate that Swan was being
terminated for violating Respondent’s HIPAA policy, and not for disruptive behavior. (See Tr. 191–193.)
30 Respondent presented extensive evidence to the effect, and I find, that Respondent’s discipline and
termination proceedings as to Swan were consistent with the discipline and termination proceedings for
similar prior HIPAA violations: David Elliot was terminated in January 2016 for attempting to access a
patient’s medical records. He was not reported to the State because he was not in a licensed position, and
the patient was not notified because Elliot did not succeed in actually accessing the patient’s records. (See
Tr. 197–199; R. Exh. 13.) Jennifer Hoadley was terminated in August 2013 for inappropriately accessing
a patient record and inappropriately discussing patient information. Respondent sent a letter explaining
the HIPAA violation to the patient. (See Tr. 199–202; R. Exh. 14; R. Exh. 15.) Linda Bingham was
terminated in February 2010 for violating patient privacy by exposing an unconscious patient’s anatomy
JD(SF)–31–17
14
ANALYSIS
I. CREDIBILITY
5
A credibility determination may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, and the weight of the respective evidence,
established or admitted facts, inherent probabilities and reasonable inferences that may be drawn
from the record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi
Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 10
589 (1996)), enfd. 56 Fed.Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions—indeed, nothing is more common in all kinds of judicial decisions than to
believe some, but not all, of a witness’ testimony. Daikichi Sushi, supra at 622.
Plano and Wood spoke professionally, consistently, and with little hesitation throughout 15
their testimony, which raises few doubts in my mind as to the events that occurred particularly
from March 14 through Swan’s termination on March 23, 2016.
Swan was generally a credible witness who appeared quite dedicated in 2015–2016 to her
work as a case management registered nurse with Respondent, stationed most often in the east 20
and south wings of Respondent’s Med-Surg floors at the hospital. Swan was not credible as
evidenced by the almost total lack of supporting witness testimony from past and present
Respondent employees. Contrary to the General Counsel’s overall theme of this case, Swan went
out of her way to snoop on two VIP patients’ medical records and accessed more than the
necessary records that are part of her job. 25
Swan was also not credible when she testified to the following: “I looked through the
[celebrity patient’s] chart trying to find a place where that insurance might have been written
down. It was not in the correct place and it—it could have been anywhere. While I was in the
chart, I also decided to [conduct a utilization review] for [InterQual] Criteria.” (Tr. 62.) This 30
claim was in fact first made by Swan at trial and therefore I find it is not truthful. Moreover,
Babuschio and Wood’s unrebutted testimony was that Swan at no time, throughout the
subsequent disciplinary process, claimed that she needed to access the patient’s medical
information because she was conducting a utilization review. (See Tr. 162, 182–183, 185.) In
response, Babuschio asked why Swan had needed to access the “vitals” section of the celebrity 35
patient record, if all she had wanted was the insurance information. (Tr. 115, 161, 182.) Swan
had no response to this question. (Tr. 115, 161, 182.) Later in March, Babuschio once again
asked Swan the same question she had asked previously: why Swan had entered the “vitals”
record when all she needed was insurance information. (Tr. 162, 185.) Once again, Swan had no
response. (Tr. 162, 185.) 40

to other staff members. Respondent reported Bingham to the State but did not notify the patient of the
violation, as HIPAA did not require patient notification at that time. (See Tr. 202–204; R. Exh. 16.) Maija
Hayes was terminated in September 2009 for inappropriately accessing patient records. Hayes was not
reported to the State, as she was not in a licensed position, and Respondent did not notify the patients of
the violation, as HIPAA did not require it at the time. (See Tr. 204–205; R. Exh. 17.)
JD(SF)–31–17
15
In addition, Swan could not recall whether she similarly conducted a utilization review
for any other patient that day. (Tr. 79.) Swan was not credible when she testified that, on March
14, she reviewed various medical records of a high-profile celebrity patient for the sole purpose
of correcting his incorrect insurance information in the demographics records. A systems audit
later revealed that the first record Swan opened was the celebrity patient’s “vitals” record, which 5
had nothing to do with demographics or insurance information, but instead related solely to the
patient’s personal medical history, and would include such salacious information as blood
alcohol content and narcotic use. (R. Exh. 21; see Tr. 92–93.) The systems audit additionally
revealed as referenced above that Swan had not performed an intraqualitative assessment or
utilization review, as she alleged at hearing, on the celebrity patient. (See Tr. 111–112; R. Exh. 10
21.) Finally, after later being asked more than once why Swan was accessing this celebrity
patient’s “vitals” record, if all she needed was insurance information, Swan had no comment.
(Tr. 161–162, 182, 185.) Swan also confirmed at trial that during the investigatory suspension
meeting and termination meeting, Swan never stated to anyone that she believed she was being
disciplined in retaliation for complaining to Plano. (Tr. 87–89.) 15
I further find that Swan was not truthful as to the events of March 15. Swan stated under
oath that she checked fewer than ten patients’ beds, but could not remember the exact number of
records she opened to see if there was a bed available for some other patient moving away from
ER. (See Tr. 66–67.) On March 15, there were only twelve total patients in the ICU. (R. Exh. 20
21.) When asked whether Swan would have any reason to disagree with the statement that she
had actually accessed only one other ICU record that day, aside from that of the celebrity patient,
and that the only other record had belonged to a patient “who happened to be the wife of a
physician” (See Tr. 87; R. Exh. 22 (10–11)), Swan responded that she could not recall. (Tr. 87.)
25
Furthermore, Swan could not remember the name of the nurse she spoke to on March 15,
nor could she describe her physically (other than to answer “yeah, she was Caucasian” in
response to counsel’s prompt), and claimed to have never seen the ER nurse before. (Tr. 73.)
Swan never mentioned the appearance of a nurse during her subsequent investigatory interview
or termination meeting, despite being given multiple opportunities to do so. (Tr. 74–75, 172.) 30
Further, the fact that Swan materially changed her testimony with regard to the number of ICU
records she accessed that day–“fewer than ten” as opposed to “two”–coupled with the fact that
Swan had not been assigned on March 15 to either the ICU or to the celebrity patient,
undermines Swan’s credibility when she tried to explain the reasons for accessing the records of
the celebrity patient and to those of the Respondent physician’s wife. (See Tr. 87; R. Exh. 21; R. 35
Exh. 22 (10–11).) As such, I concur with the outcome and find that Swan improperly accessed
the two patients’ personal medical records on March 15, 2016.
II. ALLEGED UNLAWFUL DISCHARGE OF SWAN40
The question is whether the Respondent terminated Swan in violation of § 8(a)(1) of the
Act. Under § 7 of the Act, employees have the right to engage in concerted activities for their
mutual aid and protection. 29 U.S.C. § 157. Employees with no bargaining representative or
established procedure for presenting their grievances may take collective action to spotlight their 45
complaints regarding the terms and conditions of their employment. NLRB v. Washington
JD(SF)–31–17
16
Aluminum Co., 370 U.S. 9, 12–15 (1962). Adverse actions, such as termination, taken against an
employee because of this protected activity, violate § 8(a)(1) of the Act. Id.
In the mixed-motive context of this case, the Board applies the burden-shifting analysis
set forth in Wright Line to determine whether an employee’s discharge is unlawful. 251 NLRB 5
1083 (1980), enfd. on other grounds 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). Thus, the
General Counsel must prove by a preponderance of the evidence that the employee’s protected
activity was a motivating factor in discharging the employee. The General Counsel’s evidence
must show that the employee engaged in protected activity, that the employer knew about the 10
protected activity, and that the employer had harbored animus toward the protected activity. Club
Monte Carlo Corp., 280 NLRB 257, 261–262 (1986), enfd. 821 F.2d 354 (6th Cir. 1987). If the
General Counsel meets this burden, the burden then shifts to the employer to show that it would
have discharged the employee even absent the employee’s protected activity. Wright Line, 251
NLRB at 1089. An employer does not meet its burden merely by showing that it had a legitimate 15
reason for its action. Rather, it must persuasively demonstrate that it would have taken the same
action in the absence of the protected conduct. See Boothwyn Fire Company No. 1, 363 NLRB
No. 191, slip op. 7 (2016), citing authorities.
The Charging Party alleges that since approximately November 2015 through 20
approximately March 2016, Swan engaged in several instances of concerted activity for the
purpose of mutual employee aid and protection. (GC Exh. 1(c) (5).) Specifically, the Charging
Party alleges that Swan engaged in concerted activities by complaining to Respondent regarding
“core tenets of her working conditions and issues central to the work of the case managers,” and
by discussing workplace concerns with other employees. (GC Br. 12.) Respondent denies that 25
Swan was involved in protected concerted activity related to her termination. Further,
Respondent argues that it would have terminated Swan regardless of any protected concerted
activity, because Swan violated both HIPAA and Respondent’s Code of Conduct. (See R. Br.
17.)
30
A. Swan’s Prima Facie Case
1. Protected concerted activity
To be protected under § 7, employee conduct must be both “concerted” and engaged in 35
for the purpose of “mutual aid or protection.” Fresh & Easy Neighborhood Market, 361 NLRB
No. 12 slip op. at 3 (2014). Both the “concertedness” element and the “mutual aid or protection”
element are analyzed objectively. That is, an employee’s subjective motive for taking action is
not relevant to whether the action was concerted. Id. The question of whether an employee has
engaged in concerted activity is a factual one based on the totality of record evidence. See, e.g., 40
Ewing v. NLRB, 861 F.2d 353 (2nd Cir. 1988). The concept of “mutual aid or protection” focuses
on the goal of concerted activity; chiefly, whether the employee or employees involved are
seeking to “improve terms and conditions of employment or otherwise improve their lot as
employees.” Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).
45
JD(SF)–31–17
17
Whether an employee’s activity is “concerted” depends on the manner in which the
employee’s actions may be linked to those of her coworkers. See NLRB v. City Disposal Systems,
465 U.S. 822, 831 (1984); Meyers Industries, 268 NLRB 493, 497 (1984) (Meyers I), remanded
sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985),
supplemented by Meyers Industries, 281 NLRB 882, 887 (1986) (Meyers II), affd. sub nom. Prill 5
v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert denied 487 U.S. 1205 (1988). While some
employees’ motivations for protected concerted activity may be selfish, Fresh & Easy
Neighborhood Market, supra at 5, the Board has found that “ostensibly individual activity may in
fact be concerted activity if it directly involves the furtherance of rights which inure to the
benefits of fellow employees.” Anco Insulations, Inc., 247 NLRB 612, 613 (1980). Similarly, an 10
individual employee’s complaint is concerted if it is a “logical outgrowth” of the concerns of the
group. Mike Yurosek & Son, Inc., 306 NLRB 1037, 1038 (1992), after remand, 310 NLRB 831
(1993), enfd. 53 F.3d 261 (9th Cir. 1995), citing Every Woman’s Place, 282 NLRB 413 (1986),
enfd. 833 F.2d 1012 (6th Cir. 1987). However, concerted activity does not include activities of a
purely personal nature that do not envision group action. See Plumbers Local 412, 328 NLRB 15
1079 (1999) (determining that an employee’s discussion of her own pension eligibility with
coworkers and with members of the Union’s executive board did not constitute protected
concerted activity); Hospital of St. Raphael, 273 NLRB 46, 47 (1984) (holding that an
employee’s challenge of a written warning directed at herself alone was not protected concerted
activity, and finding that “the Board will no longer presume that an individual employee’s 20
activity is concerted simply because the matter complained about is of interest to other
employees”).
On the entire record, I find that the General Counsel did not demonstrate that Swan
engaged in protected, concerted activity between the dates of November 2015 and March 2016. I 25
analyze each instance of alleged concerted activity below.
a. The conversation about accumulation of phone messages was not concerted activity
It was Swan’s unrebutted testimony that the elimination of the case management 30
secretary position created more work amongst the case managers. (Tr. 39–40; see GC Br. 12.) It
was also Swan’s unrebutted testimony that the case managers had discussed the new workload
prior to Swan’s interaction with Plano (“they would just say things like, I don’t know how we’re
going to do that if we’re out on the floor . . . we’ll have to figure out how to take care of the work
that generates”). (Tr. 41–42.) 35
While an employee’s conduct is concerted when it seeks to bring “truly group complaints
to management’s attention,” Meyers II, 281 NLRB at 887, it is not clear from Swan’s testimony
that a truly group complaint even existed regarding the phones, let alone whether Swan’s answer
constituted a complaint in and of itself. When Plano told the case managers that they needed to 40
“get these messages off,” Swan’s response was not a complaint about the new workload, but was
instead an explanation regarding why the lack of a secretary–coupled with Respondent’s
preference that case managers not be in the office – was causing the message build-up. 31 (Tr. 39–

31 Swan testified that her response was, in full, “I said, ‘I’d be happy to get the messages off, but, you
know, there’s going to be 50 messages on the phone if we wait till [sic] the end of the day to be in here to
get them off. Usually, if there’s somebody in here, they answer the phone and the messages don’t pile up.
JD(SF)–31–17
18
41.) This is evident from Swan’s later characterization of her response to Plano as a “suggestion”
about how to handle the phone messages (Tr. 58), and from Swan’s testimony that the case
managers had not had a conversation about developing a “plan of action” regarding the problem.
(Tr. 57.) Nor did Swan personally “feel like it was [her] job to initiate a plan of action.” (Tr. 57.)
See Plumbers Local 412, 328 NLRB at 1083 (finding that, even though it is not necessary that 5
the object of inducing group action be specifically expressed during a conversation, an employee
negated the object of group action when she later testified that she was not seeking to have
fellow clericals join with her to get her pension).
After careful consideration, I find that “suggestion” is precisely the right word to describe 10
Swan’s interaction with Plano on this matter. It appears that, while the elimination of the
secretary did indeed create more work for the case managers, neither Swan nor the case
managers conceptualized this change as a problem requiring group action; rather, they
conceptualized it as a problem that did not yet have a solution. Swan’s answer to Plano conveyed
exactly this sentiment: “I said, ‘I’d be happy to get the messages off, but . . . nobody is in here [to 15
do it].” (Tr. 41.) Indeed, by the time that Swan left Respondent, the case managers seemed to
have found the solution to their problem. In response to Respondent’s question about whether the
case managers did anything differently after Swan’s conversation with Plano, Swan answered,
“[n]o . . . not just me but all the case managers, we just did our best to try and get in the office
and get the messages off. It wasn’t still a problem when I left there.” (Tr. 58.) Accordingly, I find 20
that the General Counsel has failed to show that Swan was engaged in concerted activity in this
instance.
b. The conversation about privacy and discussions in the hallway was not concerted activity
25
It was Swan’s unrebutted testimony that case managers felt uncomfortable having phone
conversations about patients in the public hallways. (Tr. 43–44.) However, the only conversation
that Swan could recall having with Plano on the subject was the result of Plano, at some point,32
asking Swan why Swan was in the Case Management Office. In response, Swan said, “I’m in
here doing work because I don’t want to talk in the hallway about this issue.” (Tr. 44.) 30
While it is established that a conversation may constitute a concerted activity although it
involves only a speaker and a listener, to qualify as such, the conversation must at the very least
have been engaged in with the object of initiating, or inducing, or preparing for group action.
Daly Park Nursing Home, 287 NLRB 710, 710–711 (1987), quoting Meyers II, 281 NLRB at 35
887. Activity which is “mere talk” must be looking toward action. Id. In this instance, Swan was
not bringing a complaint to Plano, even if a related concern may have existed among the case
managers. Instead, Swan was answering Plano’s direct question regarding why she, Swan, was
currently in the case management office. (Tr. 43–44.) See Hospital of St. Raphael, 273 NLRB at
47. Swan offered Plano no information other than that which was directly asked of her, and did 40
not take the opportunity to turn her answer into a complaint—though it seems that such an
opportunity existed. (See Tr. 44.) Indeed, Swan explicitly corrected the General Counsel when
he tried to categorize this particular interaction with Plano as a “conversation.” Swan noted, “[i]t

But you know, they eliminated our secretary and the, you know, you guys told us to go out to the floor,
and so nobody is here to get the messages off.” (Tr. 41.)
32 The record did not specify as to when.
JD(SF)–31–17
19
wasn’t like a formal conversation. It was just like in reply to her question, why you’re not in the
hallway. Because I’m in here doing work and because I don’t want to talk in the hallway about
this issue.” (Tr. 44.) Swan did not testify as to a response from Plano, and could not recall any
subsequent conversations about phone calls in the hallway.
5
Particularly in light of the fact that Swan herself declined to elevate her interaction with
Plano to the level of a conversation, it would uncharitably stretch Swan’s testimony to argue that
the response “I don’t want to talk in the hallway about this issue” could even amount to a
complaint, let alone a concerted complaint. Accordingly, I find that the General Counsel has
failed to show that Swan was engaged in concerted activity in this instance.10
c. There were no conversations about Wi-Fi that constituted concerted activity
Swan testified that there was group frustration about the hospital’s Wi-Fi connection, but
could not recall a single conversation with management—or indeed, a specific conversation with 15
other employees—about the problem.33 (Tr. 45.) As such, I do not find an activity here to analyze
for concertedness.
d. The conversation about Morrisey and the volume of work was not concerted activity
20
It was Swan’s unrebutted testimony that Respondent’s introduction of the Morrisey
system added “five, ten minutes to each patient,” in paperwork, to the case managers’ workday.
(Tr. 45.) However, it is unclear from the testimony whether Swan recalled a particular
conversation with other case managers about the new system. Swan first definitively stated that
she never had a specific conversation with other case managers about Morissey, but then 25
proceeded to imply, without elaboration and after much prompting from the General Counsel,
that she in fact did speak about the matter with Alden. The exchange was as follows:
General Counsel: But do you recall actually having that conversation with an individual
case manager?30
Swan: No. It was – I didn’t – I didn’t have a specific conversation with a particular case
manager. I just – it was just in – in the course of getting your work done during the day
that, you know – and – and then, you know, either I would say or they would say, ‘[y]eah
I know. I know what you mean. It’s taking me more time too.’ You know, that sort of
thing.35
General Counsel: But you can’t recall attaching that to any specific name?
Swan: Well, I know [Alden] was in the office and she worked with me pretty regularly.
[Patzke], she was doing it, but she was new, so I don’t recall having a specific
conversation with her, just, you know, when you are trying to get your work done, you
would say something.40
General Counsel: But you recall having that conversation with [Alden]?
Swan: Yeah.[]

33 When asked whether Swan had ever discussed the Wi-Fi with Plano, Swan answered, “[y]eah, I
think, you know, people mentioned it, not just myself but you know, in the course of the day of
conversation, you know, they would say something like, ‘I’m having to redo all my work because I lost
the Wi-Fi connection, and so now I’m behind.’” (Tr. 45.)
JD(SF)–31–17
20
(Tr. 59.)
This testimony was, vexingly, both self-contradictory and unrebutted. Though Alden was
herself present at the trial as Respondent’s witness, neither the General Counsel nor the
Respondent questioned Alden about the above incident. (See Tr. 138–152.) In any event, even if 5
such a conversation did take place between Swan and Alden, I am reticent, without more
information, to find the conversation indicative of concerted activity by the preponderance of
evidence. While it is likely that the addition of new paperwork understandably caused annoyance
amongst the case managers, it is not clear from Swan’s testimony that this annoyance amounted
to the kind of “group concern” from which Swan’s subsequent actions would then constitute a 10
“logical outgrowth.” See Mike Yurosek & Son, Inc., 306 NLRB at 1038–1039. Further, as with
the conversations about phone messages and hallway privacy, it is not even clear that Swan’s
interaction with Plano could reasonably be called a “complaint.” Swan’s testimony as to her
conversation with Plano was as follows:
15
“[a]nd so, you know, when she would come in and say, you know, ‘[h]ey, why are all
these papers on this table over here?’ You know, we haven’t done this work. Nobody else
would say anything, so I would say, ‘[w]ell, it’s taking us more time now that we’re
doing this Morrisey stuff, this documentation and, you know, you said this is important
and, you know, I’m happy to stop doing that and go do that, but you know, I’m trying to 20
get all of it done, and I’m failing.’” (Tr. 45-46.) (Emphasis added.)
Concerted activity does not include activities of a purely personal nature that do not
envision group action. See Plumbers Local 412, 328 NLRB at 1079. Particularly coupled with
the contradictory testimony regarding a specific conversation amongst the caseworkers, it is 25
unclear that Swan intended to convey—or succeeded in conveying—to Plano anything more than
a statement about her own ability to keep up with the new paperwork processes. As with Swan’s
prior response to Plano’s question about the phone message buildup, Swan here seemed to have
offered an explanation as to why an identified problem exists, along with an expressed desire to
solve that problem.34 Swan did not testify as to a response from Plano or to any further 30
conversations on the subject, with either management or fellow employees. Accordingly, I find
that the General Counsel has failed to show that Swan was engaged in concerted activity in this
instance.
e. The hospice patient and oxygen patient incidents did not constitute concerted activity 35
While General Counsel did not attempt to argue that Swan’s actions regarding the
hospice and oxygen patients constituted protected concerted activity, these accounts were mixed
into the testimony about other incidents of alleged concerted activity. I therefore analyze them
here. 40
Swan’s unrebutted testimony was that, on two occasions, she was involved in a patient-
care decision that led to a doctor becoming angry with one of Respondent’s vendors. (See Tr.

34 Compare “I’m happy to stop doing that . . .but . . . I’m trying to get all of it done, and I’m failing”
(Tr. 46, Swan to Plano about the paperwork build-up) with “I’d be happy to get the messages off, but . . .
nobody is in here [to do it]” (Tr. 41, Swan to Plano about the phone message build-up).
JD(SF)–31–17
21
46–55.) Though Swan did not specifically testify as to her motives in making the patient-care
decisions, it is apparent that in both instances, Swan believed she was acting in her patients’ best
interests.35 However, “[t]he Board has held repeatedly that employee concerns for the quality of
care and the welfare of their patients are not interests encompassed by the mutual aid or
protection clause [of the Act].’” Waters of Orchard Park, 341 NLRB 642, 643 (2004), quoting 5
Lutheran Social Service of Minnesota, 250 NLRB 35, 42 (1980) (internal quotations omitted). In
Waters of Orchard Park, the Board found concerted activity where two nurses conspired to call
the Patient Care Hotline to inform the State about unsafe heating and hydration conditions in the
facility. Id. As with Swan here, the nurses in Waters of Orchard Park were concerned about the
welfare of their patients, and at the time of the activity did not profess to be concerned about10
employee working conditions. While the Board commended the nurses’ actions, it did not find
them entitled to relief under the Act: “we adhere to the Supreme Court’s teaching in [Eastex],
that at some point the relationship between concerted activity and employees’ interests as
employees becomes so attenuated that an activity cannot fairly be deemed to come within the
mutual aid or protection clause.” Id. at 644, quoting Eastex, Inc. v. NLRB, 437 U.S. 556, 567–15
568 (1978) (internal quotations omitted).
Further, unlike the nurses in Orchard Park, there is no evidence here to indicate that
Swan’s actions were concerted. There is nothing in the record to suggest that Swan acted on
behalf of or alongside any other case managers in a manner that would constitute a “logical 20
outgrowth” of other employee concerns. See Mike Yurosek & Son, Inc., 306 NLRB at 1038–
1039. While a medical assistant was also involved in the oxygen patient incident, it is clear that
the medical assistant was merely following Swan’s instructions, not making decisions or acting
in concert with Swan.36 Accordingly, I find that the General Counsel has failed to show that
Swan was engaged in concerted activity in these instances. 25
2. Knowledge of protected concerted activity
Assuming, arguendo, that the General Counsel presented sufficient evidence of protected
concerted activity, I reject the Respondent’s argument that it was unaware of such activity at the 30
time of Swan’s termination. Plano is an admitted supervisor under § 2(11) of the Act. (GC Exhs.
1(d); 1(e).) It is well established that a supervisor’s knowledge of protected concerted activities
is imputed to an employer in the absence of credible evidence to the contrary. See State Plaza,
Inc., 347 NLRB 755, 757 (2006); Dobbs Int’l Services, 335 NLRB 972, 973 (2001).
35
Babuscio testified that the decision to terminate an employee belongs solely to Babuscio
and to the CEO. (Tr. 194.) Babuscio further testified that, at the time of Swan’s termination,
Babuschio had no knowledge of any complaints that Swan may have previously brought to
Plano. (See Tr. 193.) Swan corroborated this testimony by confirming that she never complained

35 See Tr. 46 regarding the hospice patient (“I knew the patient needed hospice, but they refused it,
and since I could offer them home health services and they were willing to accept those home health
services, [I knew] that [the hospice vendor] could discuss the hospice information with [the patient] as an
outpatient”) and Tr. 49–50 regarding the oxygen patient (“[the vendor] had faxed back the form and said
it wasn’t filled out completely, correctly . . . so I fixed the form”).
36 See Tr. 49–50 (Swan): “I happened to see the physician’s medical assistant in the hallway, so I
stopped her . . . [s]he was happy to accommodate me.”
JD(SF)–31–17
22
about Plano to Babuschio, and at no time throughout her termination process did Swan mention
to Babuschio that she believed she was being disciplined for protected activity. (Tr. 88–89.)
However, Plano was aware of Swan’s alleged protected activity, and Plano played a critical role
in Swan’s termination process. Plano brought the initial concern about Swan’s HIPAA violation
to Respondent’s attention, and Plano was present for the initial March 16 meeting with Swan. 5
(Tr. 113–116.) Plano was additionally present during the meeting where Respondent decided to
terminate Swan, and by her own testimony, Plano played a key role in that determination: “[i]t
was up to me to say if [Swan] should be terminated or if they were looking for my input
regarding hearing that information.” (Tr. 117.) Plano was also present during the meeting where
Babuschio informed Swan that she was being terminated for violating HIPAA. (Tr. 119.) 10
It is not inconsistent that Respondent had knowledge of Swan’s alleged protected
activities while Babuschio did not. Given the rebuttable presumption that a supervisor’s
knowledge of protected activities is imputed to the employer, and given Plano’s active role in
Swan’s termination process, I find that the General Counsel has carried its burden in 15
demonstrating that Respondent had knowledge of Swan’s alleged protected activities. See Club
Monte Carlo Corp., 280 NLRB 257 at 261.
3. Animus to protected concerted activity
20
“The General Counsel must make a showing sufficient to support a conclusion that
[animus toward] the protected conduct was a motivating factor in the employer’s decision to
suspend or discharge.” Id. at 261–262. In ManorCare Health Services—Easton, the Board relied
on the following five factors to divine the employer’s animus: (1) the proximity of ManorCare’s
discipline to the employee’s alleged protected activities; (2) ManorCare’s unlawful interrogation 25
and threats toward the employee; (3) ManorCare’s failure to repudiate the employee’s assertion
that her discipline was motivated by animus; (4) ManorCare’s failure to investigate the
employee’s alleged conduct; and (5) ManorCare’s deviation from its typical policy in
disciplining the employee. 356 NLRB 202, 204 (2010). Assuming, arguendo, that the General
Counsel presented sufficient evidence of protected concerted activity, I find that the General 30
Counsel has not met its additional burden of demonstrating that such activity was a motivating
factor in the decision to terminate Swan.
First, unlike the employer in ManorCare, the gap between Swan’s alleged protected
activity and the termination was attenuated, while the gap between Swan’s misconduct and the 35
termination was tight. See id. at 225. Here, the General Counsel’s case generally struggles in its
inability to date the majority of the alleged protected concerted activity. Swan recalled that the
hospice patient incident took place in November 2015 (Tr. 55) and that the phone messages
incident took place “sometime after [November] [a]nd before March.” (Tr. 58.) Swan also
recalled that the oxygen patient incident took place “weeks before I was terminated.” (Tr. 54.) 40
However, the record does not specify when the hallway discussion took place, when the Wi-Fi
conversations took place, or when the Morrisey conversations took place. The General Counsel
contends that a temporal thread links all of these incidents to the March 23 termination, arguing
that Swan was terminated “almost immediately after” the oxygen patient incident. (GC Br. 15.)
However, this characterization of the timeline strains credulity. In ManorCare, the discipline 45
occurred days after the employee’s protected activity. 356 NLRB at 225. Here, Swan’s initial
JD(SF)–31–17
23
discipline (the investigatory suspension) took place “weeks” after a heated vendor discussion,
months after a series of nebulously-dated conversations with Plano, but only one day after a
serious code of conduct violation. Swan accessed the patient’s data on March 14 and 15, was
placed on suspension on March 16, took part in an investigatory interview on March 18, and was
terminated on March 23. (See Tr. 54–55, 58, 113–114, 160–161, 180–181, 184, 186–187.) I 5
therefore find that the proximity of the alleged protected activity to the adverse action is not
indicative of animus.
Second, unlike the employer in ManorCare, Respondent did not threaten Swan for her
protected conduct. See 356 NLRB at 226. While the General Counsel argues that Plano’s 10
annoyance was a common thread in response to Swan’s alleged acts of protected activity, the
record simply does not support such a finding. Indeed, it seems that throughout much of the
alleged protected activity, Plano’s attitude could best described as “confused.” According to
Swan, Plano began the hallway conversation and Morrisey conversation, respectively, by
inquiring about something Swan was doing: “why aren’t you in the hallway?” (Tr. 44) and “hey, 15
why are all these papers on this table over here?” (Tr. 45.) Also according to Swan, the only
thing that Plano said during the entire phone message interaction was, “you have to get these
messages off.” (Tr. 40–41.) Additionally, while the General Counsel alleges that the
hospice/oxygen patient incidents are replete with Plano’s animus (see GC. Br. 14–15), I find this
allegation unsupportable. By Swan’s own testimony, Plano was first clued in to these incidents 20
when she received calls from extremely angry vendors. (See Tr. 48, 51–52.) It is therefore
unsurprising—if not, admittedly, somewhat uncharitable—that Plano was herself angry when she
then confronted Swan. (See Tr. 48, 51–52.) That Plano at no time told Swan to stop complaining
(Tr. 87–88) and that Swan never brought any concerns about Plano to Babuschio (Tr. 88) further
undermine the notion that Plano was demonstrating animus toward Swan. 25
Though General Counsel contends that Plano’s “that’s number one” comment constituted
a threat indicative of animus (GC Br. 14), Swan never indicated that she took Plano’s comment
as such. Indeed, Swan had an opportunity to confront Plano about the supposed “three strikes”
countdown (see GC Br. 14–15) when she followed Plano to her office after the oxygen patient 30
incident. (See Tr. 52–53.) However, by Swan’s own testimony, her only concern during that
meeting was with “being yelled at” in front of her coworkers.37 (Tr. 53.) Swan at no point
testified to feeling threatened in her employment as a result of any alleged protected activity.
Third, unlike the employer in ManorCare, Respondent did not fail to repudiate an 35
assertion that Swan’s discipline was motivated by animus. See 356 NLRB at 226. Swan testified
that, during the suspension and termination process, Swan at no point mentioned that she
believed she was being disciplined for protected activity. (See Tr. 88.) There was therefore no
pertinent allegation of improper discipline for the Respondent to repudiate.
40
Fourth and fifth, unlike the employer in ManorCare, Respondent here extensively
investigated Swan’s misconduct and conducted the investigation and discipline procedures in
strict accordance with Respondent’s policy. See 356 NLRB at 227. After becoming aware of
Swan’s potentially-unauthorized access, Plano first cross-checked Swan’s record with
Respondent’s internal system to rule out the possibility that Swan conducted a utilization review. 45

37 See supra footnote 17.
JD(SF)–31–17
24
(See Tr. 111–112.) Plano then notified the Privacy Officer and the Human Resources Officer of
the suspected violation. (Tr. 112–113.) The Privacy Officer then conducted her own preliminary
investigation and obtained the CEO’s recommendation and approval. (Tr. 160, 181.) After
deciding to proceed with a formal investigation, Respondent scheduled an opportunity for Swan
to respond three times: immediately on March 16; as part of a formal interview on March 18; and 5
through written protest and a grievance procedure on March 23. (Tr. 161, 184, 189–190; see R.
Exh. 10; GC Exh. 2.) After making the decision to terminate Swan, Respondent’s HR Director
submitted the decision to the Regional HR Director for approval, and received it. (Tr. 186–187;
see R. Exh. 8(5).) After Swan was terminated, Respondent informed the patient of the privacy
violation and reported Swan to the Alaska Board of Nursing.38 39 (Tr. 194–197; R. Exh. 11; R. 10
Exh. 12.) Finally, consistent with Respondent’s policy, the hospital continued to perform daily
audits on the celebrity patient’s record up until the point he was discharged. (See Tr. 167.)
Throughout this week-long process, Respondent comported with its own disciplinary and patient
confidentiality compliance procedures, as outlined in Respondent’s discipline policy and code of
conduct. (See R. Exh. 8; R. Exh. 9.) I therefore find that Respondent’s investigative and 15
disciplinary actions in Swan’s case are not indicative of animus.
Thus, in summary, the record does not support a finding that Swan engaged in protected,
concerted activity. Assuming such activity, while the record supports a finding that Respondent
knew Swan was engaged in protected, concerted activity, the record does not support a finding 20
that Respondent harbored animus toward Swan’s activity. The General Counsel has failed to
show by a preponderance of the credible evidence that any protected activity engaged in by
Swan was a motivating factor in her discharge. It is therefore recommended that the complaint
allegation regarding Swan’s discharge be dismissed.
25

38 Respondent submitted extensive evidence to the effect that it regularly terminates employees who
violate HIPAA and that it regularly reports registered nurses to the Alaska Board of Nursing for such
violations. (See infra fn. 30; Tr. 197–203; R. Exh. 13–17.)
39 General Counsel notes that there are many “mitigating factors” distinguishing Swan’s
circumstances from those of the previously-terminated employees. (GC Br. 18–19.) I disagree.
Respondent submitted examples of employees who were terminated for privacy violations that were both
arguably “less egregious” and arguably “more egregious” than Swan’s. For example, David Elliot was
terminated in 2016 for unsuccessfully attempting to access a patient’s medical records (see 197–199; R.
Exh. 13), while Linda Bingham was terminated in 2010 for lifting an unconscious patient’s gown and
exposing his anatomy to other people. (See Tr. 202–204; R. Exh. 16.) While Swan, Elliot, and Bingham’s
infractions differ in extremes, the common thread is that all three employees were terminated because
they violated HIPAA and Respondent’s code of conduct in either abusing, or attempting to abuse, patient
privacy. (See Tr. 197–203; R. Exhs. 5; 6; 8–9; 13; 16.)
Finally, General Counsel notes that the only other employee who lost their nursing license was
Bingham, and argues “that Respondent found Swan’s conduct to be equivalent of Bingham’s defies
belief.” (GC Br. 18.) However, Babuschio noted during her testimony that Elliot and Hayes were not in
licensed positions, and as such had no licenses to report to the State. (See Tr. 198, 205.) Contrast Elliot
and Hayes with Bingham and Swan, who were both registered nurses, and who therefore did have
licenses to report to the State. (See Tr. 202.) Babuschio’s testimony did not specify as to whether Hoadley
was in a licensed position. (Tr. 199–202.)
JD(SF)–31–17
25
B. Respondent’s showing that it would have discharged Swan in any event
Assuming, arguendo, that General Counsel carried its burden in showing by a
preponderance of the evidence that Swan’s protected activity played a motivating role in her
termination, the burden would then shift to Respondent to show that it would have terminated 5
Swan in the absence of such conduct. See Boothwyn Fire Company No. 1, supra at 7. I find that
Respondent would have terminated Swan in absence of any protected activity.
1. Swan’s March 14 and March 15 conduct clearly violated Respondent’s policy
10
Respondent’s disciplinary policy notes that an employee “may be terminated immediately
for a serious policy violation,” and lists “violation of patient confidentiality or privacy” as an
example of “conduct that may result in immediate termination.” (R. Exh. 8 (3), (4).)
Respondent’s yearly 2-hour HIPAA training notes that employees must always access only the
minimum amount of information necessary to complete a job, and highlights “snooping and 15
casual disregard” of patient information as a major security risk. (R. Exh. 5 (10), (13); R. Exh. 6
(4), (10).) Both the orientation PowerPoint and the annual module training materials clearly note
that the unauthorized access of any patient health information, even if the information is not
printed or shared with anyone else, constitutes a “breach” and violators “may be subject to
disciplinary action up to and including termination.” (R. Exh. 5 (13); R. Exh. 6 (10).)20
On March 14 and 15, Swan inappropriately accessed the private medical records of a
celebrity patient to whom she was not assigned. Swan’s unauthorized access was precisely the
kind of “snooping and casual disregard” forbidden by Respondent’s policy, as demonstrated by
the list of misconduct examples on Respondent’s orientation PowerPoint and annual module 25
training materials: “[a]ccessing the medical records of family members, friends, ex-spouses,
neighbors, celebrities, etc.” (R. Exh. 5 (13); R. Exh. 6 (10).)
During trial, Swan confirmed that she had received the yearly HIPAA training, was
familiar with the doctrine of “minimum necessity,” and understood that violating HIPAA could 30
result in termination (Tr. 7576–, 90.) Swan’s unauthorized access was a clear violation of
Respondent’s policy, as well as an offense serious enough to warrant “immediate termination.” 40
(R. Exh. 8 (3), (4).)

40 The General Counsel contends that Swan’s unique census-printing duty should grant her additional
discretion: “Respondent does not explain why . . . it allowed Swan to print out a census every single
morning and make notes regarding all the patients on the census; her assigned patients as well as those of
others . . . Respondent does not meet its burden to persuade by a preponderance of the evidence by simply
showing it discharges employees for HIPAA violations. Instead, it must show it would have terminated
Swan for her access consistent with what she did every day.” (GC Br. 16, 19.) I find that Respondent has
indeed demonstrated that Swan violated Respondent’s policy, despite Swan’s unique morning census
review. Swan’s proffered reasons for accessing the celebrity patient’s medical records was untrue as
referenced above to simply review the patient’s insurance information. (Tr. 114, 161, 182.) However,
Swan later admitted that it was unnecessary to look up a patient’s insurance information until 24-48 hours
after a patient had been admitted (Tr. 93), and Swan further admitted that ascertaining insurance
information was not her job (See Tr. 76–77.) Additionally, even if ascertaining insurance information had
been one of Swan’s bona fide responsibilities, it is established that Swan still exceeded her authorization
in accessing the celebrity patient’s “vitals” record, which would not have housed the non-HIPAA
JD(SF)–31–17
26
2. Swan’s termination was typical of Respondent’s response to patient privacy violations,
and Respondent followed its own procedures in investigating and then disciplining Swan
As previously discussed, Respondent investigated and disciplined Swan in accordance 5
with its discipline policy, code of conduct, and prior termination practices. (See supra I(A)(3);
Tr. 197–203; R. Exhs. 8; 9; 13–17.)
Thus, in summary, the record supports a finding that Respondent would have terminated
Swan even absent evidence of protected, concerted activity. Assuming such activity, the record 10
demonstrates that Respondent had a legitimate, nonpretextual reason for discharge, that
Respondent followed its own practices and policies during Swan’s discharge procedure, and that
Swan was terminated in a similar manner to former employees who were similarly-situated to
Swan. I therefore find that the General Counsel failed to prove that Respondent discharged Swan
for unlawful reasons, and that Respondent did not violate § 8(a)(1) of the Act. 15
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.20
2. Respondent has not engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act, as alleged in the complaint.
On the basis of the foregoing findings of fact, conclusions of law, and the entire record and 25
pursuant to Section 10(c) of the Act, I issue the following recommended
ORDER
The complaint is dismissed. 30
Dated: Washington D.C. July 7, 2017
35
_________________________
Gerald Michael Etchingham,
Administrative Law Judge

insurance information. (Tr. 115, 161, 182.) Finally, while performing utilization reviews was a bona fide
case manager duty (Tr. 100–101; R. Exh. 2), Respondent ruled out the possibility that Swan had
performed an authorized utilization review on the celebrity patient. (Tr. 111–112.) Plano testified that her
first move, after bringing the suspected HIPAA violation to Wood, was to check Morrisey to determine
whether Swan had performed a utilization review. Swan had done no such thing. (Tr. 111–112.)