Corrections Corporation

National Labor Relations Board - Administrative Judge Opinions

Mar 27, 2009

26-CA-023180 (N.L.R.B. Mar. 27, 2009)

JD(ATL)–4–09
Tutwiler, MS
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
CORRECTIONS CORPORATION
OF AMERICA
and CASE 26-CA-23180
VEVRIA NELSON, an Individual
Christopher J. Roy Esq. and Rosalind Eddins, Esq.,
for the Government.1
James M. L. Ferber, Esq., Tracy Stott Pyles, Esq.,
and Mark Floyd, Esq., for the Company.2
DECISION
Statement of the Case
WILLIAM N. CATES, Administrative Law Judge. This is a wrongful discharge
case. I heard this case in trial in Clarksdale, Mississippi, on January 5 and 6, 2009. The case
originates from a charge, filed by Vevria Nelson, an Individual, on September 12, 2008,
against Corrections Corporation of America (Company). The prosecution of this case was
formalized on November 6, 2008, when the Regional Director for Region 26 of the National
Labor Relations Board (Board), acting in the name of the Board’s General Counsel, issued a
Complaint and Notice of Hearing (Complaint) against the Company.
The Complaint alleges Nelson concertedly complained to the Company about wages,
hours, and working conditions of Company employees: by about February to April 2008,
filing and processing a grievance regarding discrimination and harassment by Clinical Nurse
Supervisor Albert Maples (Supervisor Maples); by about May 7, 2008, protesting the
difference in pay between LPNs and RNs at the Company’s Tutwiler, Mississippi, facility
and requesting LPNs receive a pay raise; and by about July 24 and July 30, 2008, requesting a
bonus for LPNs. It is alleged the Company, about August 1, 2008, discharged its employee

1 I shall refer to Counsel for General Counsel as Counsel for the Government or Government.
2 I shall refer to Counsel for the Company as Counsel for the Company or Company.
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Nelson because she engaged in the conduct just described and to discourage employees from
engaging in these or other concerted activities. It is alleged the Company’s actions violate
Section 8(a)(1) of the National Labor Relations Act, as amended (Act).
The Company, in a timely filed Answer to the Complaint, denied having violated the
Act in any manner alleged in the Complaint.
The parties were given full opportunity to participate, to introduce relevant evidence,
to examine and cross-examine witnesses, and to file briefs. I carefully observed the
demeanor of the witnesses as they testified. I have studied the whole record, the post-trial
briefs, and the authorities cited therein. Based on more detailed findings and analysis below,
I conclude and find the Company violated the Act substantially as alleged in the complaint.
Findings of Fact
I. Jurisdiction and Supervisor/Agency Status
The Company is a Maryland corporation with headquarters in Nashville, Tennessee.
The Company operates and manages prisons, jails and other correctional facilities throughout
the United Sates, including a correctional facility in Tutwiler, Mississippi, the only facility
involved herein. During the 12 months ending September 8, 2008, a representative period,
the Company purchased and received at its Tutwiler, Mississippi, facility goods valued in
excess of $50,000 directly from points outside the State of Mississippi. The evidence
establishes, the parties admit, and I find, the Company is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
It is admitted Warden Robert Adams (Warden Adams), Managing Director Region IV
Jack Garner (Director Garner) Human Resources Manager Victoria Holly (HR Manager
Holly), Senior Human Resources Director Cindy Koehn (HR Director Koehn), Health
Services Administrator Gloria Johnson (Health Administrator Johnson) Clinical Nurse
Supervisor Albert Maples (Supervisor Maples), Regional Medical Director Beverly Overton
(Medical Director Overton), and Vice President of Health Services John Tighe (VP Tighe)
are supervisors and agents of the Company within the meaning of Section 2(11) and (13) of
the Act.
II. Alleged Unfair Labor Practices
A. Facts
1. Background
As noted earlier the Company manages prisons and jails throughout the United States
with operations in 19 states and 65 separate facilities. Some of the facilities the Company
manages are owned by governmental agencies, counties, or states while other of the facilities
are owned by the Company. The Company has prison management contracts with federal
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agencies such as the Federal Bureau of Prisons, the United States Marshall Service, and the
Immigration and Customs Enforcement Department as well as prison management contracts
with state and county governments throughout the United States. The Company at its 65
facilities houses approximately 75,000 inmates on an average day-to-day basis.
John Ferguson is the Company’s Chief Executive Officer and Jimmy Turner is Vice
President of Facility Operations for Business Unit 2. Facility Vice President Turner is
responsible for 22 facilities in Business Unit 2, one of which is the Tallahatchie Correctional
Facility in Tutwiler, Mississippi.
The Tutwiler facility operates with a warden, three assistant wardens, and multiple
department heads. Speciality areas at the Tutwiler facility include security, education,
medical, programmatic, human resources, and a business office. The Company’s contracts
with the federal, state, and local governments call for a full complement of responsibilities
including day-to-day security, supervision, and care. More specifically, the Company
provides educational services, drug rehabilitation programs, medical and mental health
services and other rehabilitative programs. There are approximately 610 employees at the
Tutwiler facility. The instant case focuses on the Health Services Department, and, as noted
elsewhere, the administrator for that department is Gloria Johnson.
2. The Government’s Evidence
(a) Nelson’s employment background
Nelson is, and since 1972 has been, a licensed practical nurse (LPN). Nelson worked
for the Company at its Delta Correctional Facility in Greenwood, Mississippi, from 1997
until 2000 and from August 2006 until January 23, 2007. Nelson transferred to the
Company’s Tutwiler facility on January 24, 2007, and worked there until she was terminated
on August 1, 2008.
Nelson transferred to the Tutwiler facility to assume the LPN/Infection Control
position working Monday through Friday from 8 a.m. until 4 p.m. The position calls for
monitoring infectious diseases among the inmate population such as, for example, hepatitis
and/or tuberculosis. The LPN/Infection Control position is located in the Medical
Department under the supervision of Health Administrator Johnson. Health Administrator
Johnson in turn reports to Assistant Warden for Programs Lucy Cano and Regional Medical
Director Beverly Overton.
(b) Nelson’s February 26, 2008, grievance and related work discussions
On February 26, 2008, Nelson filed an employee grievance, with HR Manager Holly,
against Supervisor Maples on the:
… grounds of discrimination based on my sex and race. I submit this
grievance against Albert Maples, RN, CNS for defamation of character, and
violation of CCA Policy and Procedure 3-17, Titled Harrassment/Sexual
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Harrassment by creating a hostile environment in my assigned work area by
acts of discrimination, false accusations, failure to acknowledge my plea for
help, and verbal threat.
Nelson’s grievance contained several attachments addressing, among other matters, a
February 22, 2008, incident between Nelson and Company Dentist Dr. Jerry Tankersley (Dr.
Tankersley). Supervisor Maples, although not Nelson’s regular supervisor, was her
supervisor on February 22.
Along with her February 26, 2008 grievance, Nelson attached a 4-page memorandum
dated February 25, 2008, in which she described allegations against Supervisor Maples and
attached an Employee/Civilian-Incident Statement (Incident Statement or Incident Report)
regarding the February 22, 2008, incident with Dr. Tankersley.
Nelson explained in the attachments that Dr. Tankersley came to the pharmacy and
asked for two ibuprofen tablets for an inmate who was standing just outside the pharmacy
door following dental surgery. Nelson indicated in the report she told Dr. Tankersley to get a
different nurse who had the keys for the pharmacy. According to Nelson, Dr. Tankersley said
as he walked away “Damnit I can’t believe you’re a nurse” and “you can’t give him two
pills.” Nelson’s incident report reflects Dr. Tankersley returned to the pharmacy with Nurse
Hardin and she (Nelson) told him it was not right for him to talk like he did to her in front of
an inmate. Nelson further claims in her report Dr. Tankersley told her, “Sugar, you don’t
want to go there.” Nelson reports she told Dr. Tankersley she wasn’t “sugar” rather she was
Nurse Nelson. Dr. Tankersley and Nurse Hardin left the pharmacy as did the inmate.
According to Nelson’s report, Dr. Tankersley returned to the pharmacy and told her “I
don’t believe you couldn’t use your two damn hands to give that man two pills.” Nelson
asserts she told Dr. Tankersley she did not appreciate him cursing and yelling at her and she
was not there for him to boss around. Nelson asserts she had asked Dr. Tankersley to leave
the area when Supervisor Maples came into the pharmacy. Nelson “told” Supervisor Maples
to “tell” Dr. Tankersley to leave. Nelson told Supervisor Maples that Dr. Tankersley did not
have the right to curse or yell at her and Supervisor Maples agreed. Nelson said she was
“upset at this time” and stated “loudly” for Dr. Tankersley to leave her alone. She reports Dr.
Tankersley asked if she was threatening him and she said she was not. Dr. Tankersley left
the pharmacy. Nelson also asserts in her report that Supervisor Maples told her to calm down
more than once and she told him to make sure Dr. Tankersley got his “little drunk self” out
and to leave her alone. Nelson reports Supervisor Maples at that point told her, “Ms. Nelson
if you don’t calm down, I’m going to send you home.” Nelson notes she told Supervisor
Maples, “try it and see how far you get.” Nelson accused Supervisor Maples of being a racist
and explained in her written memorandum attached to her February 26, 2008 grievance:
On February 22, 2008 at approximately 1250 hours, Mr. Maples came to the
pharmacy during an incident between Dr. Tankersley and me. When Mr.
Maples arrived, I informed him Dr. Tankersley didn’t have the right to curse
or yell at me. Although Mr. Maples, white male, verbally agreed with me, he
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didn’t ask Dr. Tankersley, white male, to calm down, nor did he threaten to
send Dr. Tankersley home if he didn’t calm down; however, Mr. Maples
threatened to send me, black female, home if I didn’t calm down.
Nelson testified that while she was in her office preparing her February 26, 2008,
grievance against Supervisor Maples that LPNs Diketra Thomas, LaShunda Henderson, and
Lashelle Melton came and told her they had heard what happened between she, Dr.
Tankersley, and Supervisor Maples. Nelson told them she was preparing a grievance against
Supervisor Maples and they discussed other incidents involving Supervisor Maples. Nelson
told them they could write up their incidents and she would attach them to the grievance she
was preparing. The three prepared separate Incident Statements which Nelson attached to the
grievance.
In her Incident Statement dated February 25, 2008, Diketra Thomas felt Supervisor
Maples’ daily assignment sheets were not fair in that certain, unnamed, nurses got whatever
assignments they desired while others did not. LPN LaShunda Henderson in her Incident
Statement dated February 26, 2008, asserted Supervisor Maples required her to have a
doctor’s excuse for her surgery in January 2008 while not requiring white nurses to have
excuses. LPN Lashelle Melton, in her Incident Statement contended she “picked” her work
assignments for February 23 and 24, 2008 early on February 22, 2008, and that white nurses
talked about her for doing so. Melton reported Supervisor Maples was called and took
Melton’s early assignment selections and gave them to a white male nurse.
Nelson made other accusations against Supervisor Maples in the grievance. Nelson
asserted Supervisor Maples refused to help her administer 62 skin tests in January 2008 but
the very next week helped a white nurse adminster 12 such skin tests. Nelson further asserted
Supervisor Maples, on or about February 18, 2008, closed the door to the medical department
as he entered eventhough she was approximately three feet from the door.
Nelson ended the lengthy grievance against Supervisor Maples as follows:
I have tried every way I know to get alone (sic) with Mr. Maples. Mr. Maples
makes it very hard for me to keep professional respect for him by his
continuous false accusations, unconcerned attitude, verbal threat, failure to
respond to plea of help, and acts of discrimination.
According to Nelson the Company met with her and others on five occasions
regarding the grievance against Supervisor Maples. The first meeting took place on March 5,
2008. Those in attendance with Nelson were Health Administrator Johnson, Clinical Nurse
Supervisor Calvin Stewart, Assistant Warden Cano, and Supervisor Maples. Nelson testified
Supervisor Maples gave her his response which she read and then declared the grievance to
be “unresolved.” Supervisor Maples, in his written response, denied defaming Nelson,
creating a hostile work environment, or discriminating “against her [Nelson] for being female
or black.” Maples also denied making “false accusations” or failing to “acknowledge her
plea for help.” Supervisor Maples denied making any threats to Nelson but added he did
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inform Nelson regarding what he would do if she continued to speak with him with the tone
of voice she was using during her encounter with Dr. Tankersley.
Supervisor Maples explained in his written response to Nelson’s grievance how he
learned of the encounter between Nelson and Dr. Tankersley on February 22, 2008. He wrote
that RN Deanna Hardin told him he might wish to “referee” a “shouting match” in the
pharmacy between Dr. Tankersley and Nelson. Supervisor Maples’ wrote he observed Dr.
Tankersley and Nelson in the pharmacy “standing face to face screaming at each other.”
Supervisor Maples tried to mediate and calm the situation down. Supervisor Maples’ report
reflects he tried to get Nelson to calm down but she continued to yell at him so he again
asked Nelson to calm down or he would have to send her home. According to Maples’
report, Nelson yelled at him “I wish you would try.” Dr. Tankersley explained he simply
asked Nelson for some ibuprofen tablets but Nelson told Dr. Tankersley she was busy, to get
someone else. Dr. Tankersley denied cursing Nelson but did say he told Nelson she was
“barking up the wrong tree.”
Supervisor Maples acknowledged in his response to the grievance that he allowed the
entrance door to the medical department to close when Nelson was nearby because central
control had closed the crash gate on Nelson and he had no idea how long it would take
Nelson to clear so she could get to the medical entrance door. Maples apologized but Nelson
insisted he was not sorry. Supervisor Maples asserts in his response that in January 2008
when Nelson asked for assistance administering 62 skin tests for inmates he had rounds to
complete and was understaffed. According to Maples, Nelson’s only duties that day were to
administer the skin tests.
The next meeting with management regarding Nelson’s grievance took place on
March 14, 2008 in Warden Adams’ office. Warden Adams and HR Director Koehn met with
Nelson. HR Director Koehn asked Nelson why she thought Supervisor Maples was prejudice
and she responded because he refused to help her administer the 62 skin tests but later
assisted a white nurse administer 12 such skin tests. Nelson testified HR Director Koehn
asked if Maples should have helped her and she said he should have because she asked him
for help and she did not ask unless she needed help. Nelson told Koehn “Mr. Maples he’s
trying to make it seem like I caused all the trouble” adding “my co-workers and Mr. Maples
try to make it seem like I’m a troublemaker.” Nelson testified HR Director Koehn looked at
her and told me they eventually get rid of troublemakers.
Nelson testified the third meeting on her grievance took place in Warden Adams’
office on March 26, 2008, with HR Director Koehn, Health Administrator Johnson, and
Supervisor Maples. The grievance was not resolved and the next day, March 27, 2008,
Nelson filed an addendum to her grievance. In the addendum, Nelson again asserts
Supervisor Maples was prejudice. Nelson asserts Supervisor Maples said those he could not
get along with were those in the grievance and all those named in the grievance were black.
Nelson testified she sent Warden Adams an e-mail on April 1, 2008, requesting to
meet with him on April 4, 2008, regarding her grievance. In her e-mail to Warden Adams,
Nelson explained “I don’t feel my rights, nor, my co-workers rights, have been protected.”
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Nelson testified she met with Warden Adams in his office on April 4, 2008, but her
grievance was not resolved to her satisfaction. After the meeting, Nelson e-mailed Warden
Adams’ immediate supervisor, Jack Garner, at his Nashville, Tennessee office. In her
lengthy e-mail to Garner, Nelson questioned whether Warden Adams conducted a proper
investigation of her grievance. Nelson complains in her e-mail that Warden Adams only took
statements from employees who had positive comments about Supervisor Maples and
negative comments about her. Nelson tells Garner in the e-mail that she can not “respect,
trust or be loyal” to Supervisor Maples and she is stressed because of the way Supervisor
Maples treated her. Nelson asserts Supervisor Maples treats white employees more favorable
than black employees and she seeks to have Supervisor Maples receive counseling and take
training on how to be a supervisor.
Nelson testified the last meeting on her grievance was on April 14, 2008. Warden
Adams requested Nelson telephone Director Garner. Garner told Nelson he had her
grievance and asked if she had any additional information to present. Nelson did not.
According to Nelson, Garner wanted to know who the “we” referred to in her grievance and
she told him the other LPNs whose Incident Statements were attached to her grievance.
Garner promised he would provide her a written reply.
Director Garner’s May 14, 2008, response to Nelson follows:
May 14, 2008
Vevria Nelson
1015 Lindsey, Apt. A
Greenwood, MS 38930
Dear Ms. Nelson:
This is in response to your grievance which was received in the Facility
Support Center on April 8, 2008. First, thank you for your patience and for
allowing us sufficient time to fully review and respond to your grievance. As
I understand it, the gist of your pending grievance/appeal is that Warden
Adams did not conduct “a sincere investigation” of your grievance.
Your February 26 grievance arose from a situation involving you, Dr.
Tankersly, and Mr. Maples which occurred on February 22, 2008. You
alleged that Mr. Maples had not handled that situation properly and also
alleged that Mr. Maples had discriminated against you based on your race and
sex; defamed your character; ignored your requests for assistance; and had
created a hostile work environment in violation of Policy 3-17.
The initial investigation of your grievance was conducted by HSA Gloria
Johnson. As a resut of her investigation you and the other two people
involved in the February 22 incident all were given a written counseling. HSA
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Johnson apparently did not find any evidence of discrimination or unfair
treatment on the part of Mr. Maples against you based on that incident or any
other incident cited in your grievance.
Rather, HSA Johnson indicated that, “[t]he validity of each of the statements
was questionable and in some instances the events seemed exaggerated.”
Although when you signed your written counseling, you noted that “I reported
the truth of how things happen,” neither in your first appeal dated March 5 nor
in the April 4 letter in support of your current appeal do you assert that HSA
Johnson’s investigation, findings and/or her decision to give you a written
counseling was inappropriate or unfair.
Rather, in the March 5 appeal notice the basis of your appeal seems to be your
impression that Mr. Maples’ reaction “showed disregard to CCA Policy and
Procedures.” As set forth above, the basis of the current pending appeal is that
Warden Adams did not properly investigate your grievance. Thus, it appears
you have no objections to HSA Johnson’s original findings or to her decision
to provide you with written counseling regarding the February 22 incident.
Contrary to your assertions, Warden Adams’ findings were based on
information gathered from all identified witnesses. All witness statements,
both verbal and written, were carefully considered. Although I will not reveal
the identities of all the witnesses who participated in the investigation, to the
extent you believe that some people who have relevant information were not
interviewed, please identify those persons and if they have not previously
submitted statements, they also will be interviewed.
Based on my review of the investigation, your grievance is denied. Both the
investigation conducted by HSA Johnson and the Warden’s review of that
decision were thorough and conducted promptly upon receipt of your
grievance.
I understand that you do not agree with the outcome and that you do not feel
that the grievance has been resolved to your satisfaction. However, the
purpose of an investigation is to determine what the facts are in any given
situation based on the weight of the credible evidence and then to take
appropriate steps based on the findings of facts. Based on my review of the
evidence and the investigations of your grievance and appeals conducted first
by HSA Johnson and then by Warden Adams, the investigations have met that
standard.
As per Policy 3-6, Employee Grievance Procedure, Section 3-6.5 Procedure C
Step 2 and Step 3. The decision of the Managing Director or Corporate
Officer will be binding.
Good luck in your career endeavors.
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Sincerely,
/s/ Jack M. Garner
Jack M. Garner
Managing Director, Facility Operations
Division IV
Nelson testified she had no further communication with the Company regarding the
grievance after Garner’s written response.
The written counseling Nelson (as well as Supervisor Maples and Dr. Tankersley)
received from Health Administrator Johnson that Director Garner references in his response
to Nelson’s grievance follows:
TO: Vivria Nelson, LPN
FROM: G. Johnson, H.S.A.
DATE: February 22, 2008
RE: Code of Conduct
After reading statements and listening to all individuals involved in the
incident on the above date, it is difficult to determine what actually happened.
The validity of each of the statements was questionable and in some instances
the events seemed exaggerated. However, we as employees of CCA must
remember the CCA Guiding Principles. It is not acceptable for staff to engage
in a shouting match in this department regardless of the circumstances. We
must always be stewards of professional behavior. Your behavior on the
above date was not professional in nature and thus was a violation of Policy 3-
3. In the future, it is important that you remember to think twice before
speaking. If this opportunity ever presents itself again, remedy the problem
and avoid confrontation by removing yourself from the hostile environment.
You can never control the actions of others, but you must control of your own.
We must at all times be sensitive to how others view our words as well as our
actions. This is not a written reprimand, but documentation of an attempt to
rectify actions that occurred on the above date between 3 medical staff
members.
I have read and understand the above statement.
/s/ Ms. Vevria Nelson 3/5/08 I reported the truth
Name Date of how things
happen. /vn/
/s/ G. Johnson 3/5/08
Witness Date
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(c) Nelson’s May 2008 Letter Concerning Pay of LPNs
Nelson testified that on May 5, 2008, she wrote VP Tighe concerning the difference in
wages between RNs and LPNs and pointed out LPNs were concerned their wage scale did
not reflect an appreciation for the work they performed. In the letter, it was requested LPNs
be given a $5 per hour wage increase with the years of experience remaining the same and
the wage increase be retroactive to the date of the previous pay scale change.
Nelson testified she spoke with various LPNs on May 5 and 6, 2008, including
Diketra Thomas, LaShunda Henderson, Percynthia Thomas, Teri Williams, Rhonda Lawson,
Carolyn Holmes, Cynthia Walker, Kim Watson, Regina Brown, Cary Gray, and Cantrell
Williams. Nelson explained to the LPNs she had written a letter to VP Tighe about the
difference in wages between RNs and LPNs and asked them to read her letter and if they
agreed with it to sign the letter. Fifteen signatures appear on the letter which Nelson states
she mailed that day. Nelson received a certified return receipt from the Company, which
receipt was addressed to Nelson at her home address.
(d) Bonuses for LPNs
Nelson testified Health Administrator Johnson told her on July 24, 2008, she had
good news that Nelson’s December bonus would be $4,000 instead of $2,000. Nelson asked
why and was told instead of the overall bonus being $3,500 it would be $7,000. Nelson
asked how the Company was going to pay it because even with the $4,000 in December she
would not be at $7,000. Johnson did not know how but added some employees were going to
get some money that very day.
Nelson testified she observed a flyer at the nurses’ station announcing a $7,000
retention bonus that only applied to RNs not LPNs. Nelson confronted Health Administrator
Johnson about the bonus flyer pointing out it did not cover LPNs. Nelson asked Johnson
where she got her information about bonuses and was told from Recruitment Specialist
Nicole Carter. Nelson asked to speak with Carter. Nelson spoke with other LPNs about
bonuses and asking if they wanted to go with her to speak with Carter. LPNs LaShunda
Henderson, Percynthia Thomas, and Teri Williams agreed to go with Nelson. Nelson located
Recruitment Specialist Carter and they met in Nelson’s office. Nelson testified she asked
Carter why the LPNs were not included in the retention bonus. Carter did not know and said
they needed to speak with HR Director Koehn whom Carter got on a speaker telephone.
Nelson asked Koehn why LPNs were not included in the retention bonuses and was told there
was no need for LPNs. Nelson pointed out they had three vacant LPN positions. Koehn said
she did not make the decision about the bonuses that it was made by Health Administrator
Johnson, Medical Director Overton, and Warden Adams. The other three LPNs present
asked no questions and the conversation ended.
Nelson testified that on July 30, 2008, when she arrived at work, LPN Brown asked
about the bonuses. Nelson didn’t know anything. Brown told Nelson she telephoned
Company headquarters in Nashville, Tennessee, and someone there told her to speak with HR
Manager Holly and she was on her way to do so. Nelson asked to join her. The two of them
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spoke with Holly in her office. Brown asked if their names were included with those getting
bonuses. HR Manager Holly wanted to know what bonuses. Nelson explained “Well, some
of the LPNs are getting some extra money. We want to know are we going to get it?”
Recruitment Specialist Carter came into HR Manager Holly’s office and said if they needed
to know something about bonuses to ask her or HR Director Koehn. Nelson told Carter they
had been told to ask Holly. Carter wanted to know who told them but Brown could not
recall. Nelson then told Recruitment Specialist Carter they were not talking to her anyway.
Carter stated HR Manager Holly didn’t know about the bonuses. Recruitment Specialist
Carter suggested that if Nelson and Brown wanted to know about bonuses they needed to get
HR Director Koehn on the telephone. The three of them went to the next office and got HR
Director Koehn on the telephone. At that time, Diketra Thomas joined the other three on the
speaker telephone. LPN Brown asked if she would get extra money because a co-worker
who had started the same day she had received extra money. HR Director Koehn did not
know but would check into it. Nelson asked Koehn if she would get anything, however.
Koehn did not know but said she would check into it. Nelson testified LPN Thomas told
Koehn she had been specifically promised she would get a bonus but had not received it. HR
Director Koehn replied she would in fact get it. Nelson asked HR Director Koehn to prepare
a memorandum of their meeting but Koehn did not reply and the meeting ended.
(e) Nelson’s Termination
Nelson testified that on August 1, 2008, she was summoned to Warden Adams’ office
where she met with Adams and Assistant Warden Cano. Warden Adams asked permission to
record their meeting. Nelson testified Adams told her he had a list of items to cover and
asked she hold anything she might have to say until he finished. Nelson testified Adams told
her she “made complaints” and was “never satisfied with our answers.” According to
Nelson, Adams also told her “people” had complained about her including some of her co-
workers and he observed she always blamed others for her problems and was never at fault
herself. Adams told Nelson the Company was trying to secure the California contract and
reminded Nelson she had an important position at the facility. Nelson testified Warden
Adams then told her they had decided to move forward and her attitude did not fit the
environment they sought for the facility. Warden Adams gave Nelson two options, she could
resign or be terminated and asked if she had any questions.
Nelson asked Warden Adams if people had complained why she had not been
counseled. She said Warden Adams repeated she had two options, resign or be terminated.
Nelson asked if her conduct was so serious why was her immediate supervisor, Health
Administrator Johnson, not present and was again told she could resign or be terminated.
Nelson told Adams she would not resign because she did not have a reason to do so. Adams
told Nelson she was terminated, asked for her badge, and had Assistant Warden Cano escort
her to the checkpoint to leave the prison.
Nelson testified she called her supervisor, Health Administrator Johnson, and asked
her to come to the checkpoint. Nelson asked Johnson why she had been terminated. Johnson
did not know. Johnson asked Assistant Warden Cano, why? Cano explained she did not
know she had only been asked by Warden Adams to be present at the termination meeting.
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Nelson testified Health Administrator Johnson went back through the checkpoint into the
prison and in the direction of Warden Adams’ office. Johnson returned in approximately 10
minutes and told Nelson let’s go home. Nelson and Johnson shared a ride to and from work.
Nelson testified Health Administrator Johnson told her during the ride home: “I told
you that Cindy Koehn [HR Director Koehn] had something to do with it. I spoke with
Warden Adams. He told me that Cindy Koehn said that you had called her being negative a
few times and that you incited the nurses.” Nelson told Johnson she was going to file a
grievance to get her job back. According to Nelson, Health Administrator Johnson told her to
send her termination grievance to Company Chief Executive Officer John Ferguson because
they terminated her and she could go straight to Ferguson.
Nelson did not receive any paperwork at her August 1, 2008, termination interview
with Warden Adams but did thereafter on August 8, 2008, receive a termination letter from
him. The letter follows:
August 8, 2008
Vevria Nelson
1015 Lindsey Apt. A
Greenwood, MS 38930
Dear Ms. Nelson,
Effective July 31, 2008 your employment with CCA/Tallahatchic Correctional
Facility is terminated due to a violation of Policy 3-3 “Code of Conduct.”
Enclosed is a copy of a Grievance Policy for your use if you so choose.
Your final check can be picked up on August 8, 2008 when you turn in your
CCA property, I.D., uniform, etc. If you have any further questions, please
contact the Human Resource Dept.
Sincerely,
/s/Robert Adams
Robert Adams
Warden
Nelson filed with CEO Ferguson a “Grievance for Wrongful Termination” letter dated
August 1, 2008, with receipt on August 6, 2008. In her letter, Nelson explained that Warden
Adams said she made complaints which the Company looked into but that Nelson was never
satisfied with the Company’s decisions. Nelson wrote that Warden Adams said she always
tried to blame others for her faults and the problems were never with her and she had a
negative impact on the facility. Nelson asked CEO Ferguson that if there had been
complaints against her why she had never been counseled. Nelson stated in her letter she had
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never received any disciplinary actions; had a very good evaluation; always spoke to staff
members and never refused to help her co-workers. Nelson questioned whether Warden
Adams was paying her back for filing a grievance against him. Nelson wrote that after much
reflection the only thing she could conclude that Warden Adams might consider negative on
her part was her inquiring about bonuses paid to certain nurses.
Nelson testified she thereafter had two conversations with management about her
termination grievance. The first took place on August 14, 2008, when VP Turner telephoned
advising Nelson that CEO Ferguson had forwarded to him her grievance. Turner asked if
Nelson had any additional information to provide. Nelson told Turner Warden Adams had
said she was terminated for having a negative attitude but her termination letter listed the
reason as violating the Company’s Code of Conduct. Nelson asked if Turner could tell her
what act she committed to violate the Code of Conduct. VP Turner said he was not at liberty
to tell her. Nelson asked Turner if it was standard procedure for the immediate supervisor of
an employee not to be present at the termination. Turner assured Nelson that was normal
procedure. Nelson asked if Turner would be conducting an investigation and was told he
would be. Nelson gave Turner names of persons she would like for him to interview.
Nelson testified she telephoned VP Turner on September 16, 2008, and he told her he
had finished his investigation. Nelson asked what she had done to be terminated. Turner told
her he would reply in writing. Nelson asked what his decision was and he told her he had not
yet made a decision. Nelson told Turner she thought a decision had been made because her
job position had been posted on the Company’s website. Turner said he had nothing to do
with job postings and their converstion ended.
On October 10, 2008, Nelson again inquired of VP Turner regarding the status of her
August 4, 2008, termination grievance.
On October 30, 2008, VP Turner responded to Nelson in writing setting forth his
findings regarding her termination grievance. First, VP Turner noted there was no credible
evidence the decision to terminate her was in retaliation for her use of the grievance
procedure or her inquiring about retention bonuses. Turner noted the last grievance she had
filed was on February 26, 2008. VP Turner concluded that based on the length of time and
intervening circumstances between her prior grievance and her termination there was no basis
to conclude the termination decision was in retaliation for her having filed a grievance. VP
Turner also concluded her inquiries regarding retention bonuses in no way brought about or
contributed to her termination. Turner noted Nelson was not the only employee who
complained and that some employees who complained were paid bonuses while others, like
Nelson, were not.
Second, VP Turner concluded Warden Adams had advised Nelson of the reasons for
her termination and noted she had cited reasons in her grievance. Turner questioned Nelson’s
contention she had never been disciplined, noting:
You also state in the letter that you have never before been disciplined. That
statement is not supported by the record. In February you were disciplined for
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aggressive, confrontational, and intimidating conduct toward co-workers in the
medical department. HSA Gloria Johnson issued disciplinary action and you
did not grieve it against Ms. Johnson.
Third, VP Turner wrote Nelson that numerous times her co-workers reported conduct
by Nelson like the behavior Health Administrator Johnson described. Turner concluded that
Nelson demonstrated an unwillingness or inability to maintain a profession and respectful
attitude toward others with whom she worked which was not compatible with the work
environment the Company needed in order to meet the stringent requirements of the
California customer the prison served. VP Turner noted his decision denying Nelson’s
grievance was final and binding.
(f) Nelson’s Evaluations, Recommendations, and Related Matters
Nelson’s “Performance Summary” for the years 2006 and 2007 reflect she “exceeds
requirements” in all categories of her duties.
Nelson testified that on October 19, 2008, she requested and was provided a letter of
reference by Health Administrator Johnson. The unsigned and undated letter, on Health
Administrator Johnson’s Company stationery reads:
To whom it may concern:
Vevria Nelson has worked under my supervision for the last couple of years.
She is an excellent nurse with a wealth of knowledge in many areas of
nursing. She was the model employee. She was self motivated, punctual,
possessed excellent communication skills, and understood the importance of
teamwork. She volunteered to assist whenever and wherever needed. She was
goal oriented and paid attention to detail. It is with great pleasure that I submit
this letter of recommendation. It is with sheer confidence that I say Ms.
Nelson will be an asset to your team.
Regarding her work record, Nelson, during cross-examination, denied being aware of
complaints registered against her by other employees. However, upon additional cross-
examination, she acknowledged various incidents. First, she acknowledged that Health
Administrator Johnson, in a February 22, 2008 written documentation, advised her that
engaging in a “shouting match” with other staff was unacceptable behavior non-professional
in nature and violated Company policy. Nelson acknowledged she was aware in March 2007
that Mental Health Coordinator Mildred Ware had filed an incident report against her
alleging Nelson had engaged in “a loud and angry voice and tone” both in the hallway and in
Ware’s office. Nelson acknowledged she was aware in September 2007 that Certified
Nursing Assistant LaTonya Rushing filed an incident report alleging Nelson removed
Rushing’s drinking water from a refrigerator and threw away. Nelson also acknowledged on
coss-examination she was aware in October 2007 Percynthia Thomas filed an incident report
alleging she (Nelson) had interfered with certain medications and placed patients at risk.
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3. The Company’s Evidence
Vice Preisent of Facility Operations Jimmy Turner provided information about the
history of the facility which history is helpful to a full understanding of the medical
department. The Tutwiler facility opened in early 2000 housing inmates from Wisconsin;
however, after approximately 1½ years, Wisoncsin pulled its inmates back to Wisconsin
resulting in the Company laying off its employees. Thereafter, the Company secured
contracts to house inmates from the states of Alabama and Hawaii. These contracts lasted
until mid-2007 when the Company secured a contract with the California Department of
Corrections and Rehabilitation to house California inmates. California also has other
contracts with the Company to house its inmates in other states as a result of California’s
prison overcrowding.
Vice President of Facility Operations Turner testified the Company invested in excess
of $50 million dollars improving, adding to and equipping the facility herein to accommodate
the newly contracted for California inmates. According to Turner, its contract with the
California Department of Corrections and Rehabilitation brought unique challenges to the
Company. Turner explained the California Department of Corrections and Rehabilitation is
currently, and has for some time been, under Federal Court scrutiny. Federal Courts are
overseeing two large federal civil rights law suits. One of the actions addresses
overcrowding in California’s prisons (not at issue herein) while the other addresses health
services provided California inmates. A different federal judge oversees each of the two law
suits. Pertinent herein is the decisions and requirements of the judge overseeing the health
care issues. Turner testified the federal judge overseeing medical care concluded the
California Department of Corrections and Rehabilitation “failed repeatedly to meet consent
decrees that they had entered into” with the court. The federal judge then took the somewhat
rare step of appointing a Receiver with staff to supervisor and monitor the court’s orders
regarding health services.
Turner testified the operation of the health services at the facility herein is under the
supervision of the Receiver and staff of the federal court requiring the Company follow rules,
regulations and instructions of the Receiver on behalf of the court. The Receiver sends, on
an ongoing basis, physicians and other medical professionals to check on the delivery of
medical services for the inmates at the facility herein.
Vice President of Facility Operations Turner testified that a California inmate, Robert
Washington, arrived at the facility herein in March 2008 and approximately one month later
died while in custody. Turner explained that anytime an inmate dies in any facility housing
California inmates the Receiver sends in a Medical Operations Performance Team (MOP
Team) of doctors and nurses to do a complete investigation of the circumstances that led to
the death of the inmate. A MOP Team investigated inmate Washington’s death and,
according to Turner, issued a “fairly scathing” report finding “several miscues and missteps
by the medical staff” herein. The MOP Team also concluded “there were multiple things that
could have been done differently and there were multiple things that were being done … that
were not in compliance with the rules and regulations … in place … at [the] Receiver’s
office.” A Remedial Plan was developed and the Receiver’s Chief of Staff, John Hagar, told
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Turner and others that if the Company did not “immediately correct” the deficiencies “he
would remove the inmates from the … facility and pull them back to California.” Turner
said if the inmates were returned to California, the Company would have paid $52 million
dollars on building expansions with no inmates to house which would have resulted in the
entire staff being laid off. Turner explained the impact on the Company “would have been
tremendously devastating.”
Turner testified the review and the immediate corrective action resulted in a
“tremendous amount of pressure” on management regarding staffing at the facility. Turner
testified the Company increased its medical staff tremendously both with physicians as well
as its nursing staff, particularly RNs. Turner explained it was critical the Company not only
hire additional RNs but retain those already employed. Staffing levels and retention of
nurses at the facility rested primarily with Warden Adams. Warden Adams perceived Nelson
to be detrimental to the Company retaining nurses, particularly RNs.
Warden Adams testified that from the time he arrived at the facility in February 2007
until the day Nelson was terminated he received written, as well as verbal, statements from
staff members complaining of her “bully-like tactics” as she interacted with them. Warden
Adams said Nelson exhibited an aggressive tone with others, including supervision, and
acted as though she was “running the facility.”
Warden Adams specifically recalled or was aware of a number of incidents related to
Nelson for which staff members prepared Incident Reports. Incident Reports are written by
employees or staff members relating to any type incident involving either prison inmates and
employees or incidents between staff employees.
On March 15, 2007, Mental Health Coordinator Mildred Ware filed an Incident
Report on Nelson in which she asserts Nelson was unprofessional and threatening when
Nelson confronted Ware on that date about keys to a certain medical office. Ware testified
that if an Officer Huddleston had not told Nelson to get away from Ware, Nelson would have
made physical contact with her.
An Incident Report Adams recalled was filed by Nurse’s Assistant LaTonya Rushing,
dated August 20, 2007, in which Rushing complained about Nelson shouting at her and
talking to her in an inappropriate manner. Rushing filed a second Incident Report dated
September 4, 2207, in which she complained Nelson removed her (Rushing’s) bottle of water
from the refrigerator and threw it in the garbage. Rushing testified Nelson acknowledged
putting her bottle of water in the garbage and that Nelson told her she needed the space for
her (Nelson’s) bottle water. Rushing said Nelson replaced her bottle water the next day only
“because I asked her about it.” Rushing, sometime thereafter, wrote Nelson a letter asking
that they start over and be “loving co-workers” and added she would pray for Nelson and
asked Nelson to pray for her.
Warden Adams was given a typed statement on October 13, 2007, from Nurse
Practitioner Tammy Taylor which related, in part, to conduct of Nelson. In her letter, Taylor
addressed “the ongoing problems occurring daily in the medical department because of the
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uncivil conduct” by Nelson and “the lack of leadership by HSA Gloria Johnson.” Taylor
asserts in her letter the situation related to Nelson is complicated because of the close
personal relationship “between Nelson, Johnson and Clinical Supervisor Calvin Stewart.” In
her letter, Taylor claims Nelson is allowed to display authoritative behavior in the medical
department on a daily basis because of her close and personal relationship with Health
Administrator Johnson. Taylor writes that staff members are reduced to tears and unable to
perform their duties because of Nelson’s conduct. Taylor further writes that Nelson’s
conduct creates a “toxic work environment” that brings about low morale, stress and
interferes with teamwork, safety and productivity while increasing staff turnover. Taylor
describes Nelson as a “saboteur and bully.”
Warden Adams testified he was provided on February 22, 2008, an Incident
Statement (or Report) from former RN Supervisor Maples regarding an incident involving
Nelson and staff dentist Dr. Tankersley on that date. Former Supervisor Maples testified RN
Deanna Hardin came to his office and told him he needed to go and “referee” a shouting
match between Nelson and Dr. Tankersley in the pharmacy. Maples proceeded to the
pharmacy and told both to calm down. Maples testified that as he tried to calm Nelson down
she continued to “yell” at him at which point he told her if she did not calm down he would
send her home. As reflected in Maples’ Incident Report Nelson responded “I wish you
would try.” Former RN Supervisor Maples testified nurses Hardin, Lisa Simmerman, Tim
Wasilina, James Edwards, and Teri Williams complained quite frequently to him that Nelson
constantly tried to stir up turmoil in the medical department and spoke to them in a degrading
manner making Nelson appear as being a better person than they were.
Warden Adams also received Dr. Tankersley’s Incident Report on the shouting match
between Tankersley and Nelson. Dr. Tankersley reported the matter as an unfortunate
incident between two staff members and asked that everything return to normal noting he had
eventually gotten the medication he sought and needed for the inmate on whom he had
performed surgery.
Warden Adams testified an Incident Report by RN Shakantayeri Scott (Candace
Scott) was submitted to him on May 21, 2008. In the Incident Report, RN Scott outlined an
encounter she had with Nelson on that day following a facility staff meeting. Scott testified
that as the staff was leaving the meeting she commented to LPN Cary Gray that he was
“getting the evil eye.” Scott further testified at that point Nelson “starts ranting and raving,”
“yelling and screaming to the top of [her] lungs” that she (Nelson) didn’t play like that.
According to Scott, Nelson then faced her and pushed her twice but LPN Gray and LPN Kim
Watson stepped between Nelson and Scott which allowed Scott to leave the area and Nelson
returned to the medical unit. LPN Watson’s Incident Report of the encounter essentially
corroborated Scott’s account. Warden Adams was also provided a copy of Watson’s Incident
Report.
Warden Adams testified he was given, an Incident Report prepared by Victoria Holly
on July 1, 2008, relating to an incident between she and Nelson that occurred on that date. In
the Incident Report Holly wrote that Nelson initially refused to conduct two pre-employment
reviews for two applicants claiming the reviews had not been pre-scheduled with her. Holly
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reported Nelson told her she was lying when she claimed the reviews had in fact been pre-
scheduled with Nelson. Holly asked to speak with Nelson’s supervisor, Health Administrator
Johnson, but Nelson hung up on her. Holly reported Nelson later apologized for the mix-up
when she reviewed a previous e-mail sent to her arranging for the reviews. Holly wrote
“Nelson was very unprofessional in handling the situation ….”
Warden Adams testified he was given an Incident Report on July 29, 2008, written by
RN Clinical Supervisor Dorothy Strong involving an exchange between Strong and Nelson
on that date. Strong testified regarding the reported incident. Strong said she was looking
after an inmate in an examination room when she overheard a discussion at the nurses’
station of an inmate having chest pains. Strong said as charge nurse she needed to ascertain
what the situation involved. Clinical Supervisor Strong asked who was having chest pains
but no one responded. Strong then specifically asked nurse Diketra Thomas who was
experiencing chest pains and was told no one. According to Clinical Supervisor Strong,
Nelson proceeded to the nurses’ station where she stated, “that’s what I say about people
being nosy. Just they don’t know what’s going on. And they just ask questions, questions,
questions.” Strong said this “really embarrassed me in front of my subordinates because I
was in charge.” Clinical Supervisor Strong also testified Nelson would state in the presence
of Strong and other staff that RNs were dumb “or the RNs make more money. Or … things
like we were doing it before RNs got here.”
Dr. Chester Layyne, a staff dentist, testified he was present when a conversation
started about an inmate having chest pains and he recommended the inmate be checked. Dr.
Layyne recalled a number of those present said the inmate had been checked several times
and had a tendency to fake chest pains. Dr. Layyne said it was at this point that Clinical
Supervisor Strong came to the area and asked who was having chest pains. He said there was
“a stern exchange” between Strong and Nelson and that Strong “became visibly upset” and
later cried in the hallway.
Warden Adams said he spoke with Nelson on several occasions about the complaints
against her and how she treated the nurses, and added he and Nelson’s supervisor also met
with her. Warden Adams explained that on one occasion when he talked with Nelson about
her treatment of the nurses he told her that before he would lose all of his nurses he would
“lose her.” According to Warden Adams, Nelson responded the nursing staff didn’t know
Company policy and when she tried to explain what the policies were, the nurses got “angry”
and “upset.” Warden Adams told Nelson it was how she talked to the staff which he said the
staff considered “belittling” or “putting then in a position where they feel disrespected or
being bullied.” Warden Adams advised Nelson he could not accept this attitude from her.
Warden Adams testified Nelson continued to conduct herself in the same manner after their
conversations. Adams testified he spoke with Health Administrator Johnson on “a few
occasions” regarding Nelson’s behavior. Health Administrator Johnson told Adams the
nurses got offended when Nelson would correct them because they did not know Company
policy. Warden Adams said he then asked an Assistant Warden to step in and spend more
time in the medical department because “there may have been a closeness with Ms. Nelson
and Ms. Johnson that made her a little blind to what was going on in her department.”
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Warden Adams testified he spoke with his “boss” about Nelson because her “attitude”
“was starting to divide the medical staff.” Adams said “three or four” co-workers “hung”
with and supported Nelson which caused a separate group that was divisive within the
medical department. Warden Adams’ superior recommended a training class to bridge the
whole deparment together. Warden Adams asked for training and HR Director Koehn came
to the facility and taught “Conflict Dynamics Training.”
HR Director Koehn testified she taught the Conflict Dynamics Training at the facility
in April 2008 to employees on all shifts in the medical department. The training consisted of
workbook type training to identify constructive and destructive working behaviors and to
strive for the constructive behaviors. Koehn testified an individual in one of the classes
asked what to do if the problem was not with anyone present but rather with one individual
not present. HR Director Koehn told them the only way she could work to resolve the
problem was to know who this individual was. The employee said she was afraid of
retaliation from the employee’s supervisor if she identified the employee. HR Director
Koehn asked the employees if they would be willing to write the individual’s name on slips
of blank paper and she would take the names to Warden Adams for his review. The
employees agreed and that procedure was followed in the other sessions of training. Koehn
said that after all the sessions of Conflict Dynamics Training were concluded she took the
slips of paper to Warden Adams and Nelson’s name appeared on all slips except one.
Thirteen slips reflected Nelson’s name alone. One slip reflected both Nelson’s and Health
Administrator Johnson’s names, one slip reflected Nelson, Johnson, and T. Taylor while one
slip reflected Percynthia [Thomas] name alone.
Warden Adams testified he was concerned by Nelson’s behavior and attitude in that
he had two RNs quit back-to-back. Adams testified RN Supervisor Maples quit because
Nelson, at a grievance meeting, accused him of being a racist. Nelson based her accusations
that RN Supervisor Maples was a racist on the fact Maples told her, when she had an
encounter with Dr. Tankersley, if she did not calm down he would send her home but did not
say he would send Dr. Tankersley home. HR Director Koehn testified the work force at the
Company is 95 to 97 percent African-American. Warden Adams testified he did not believe
RN Supervisor Maples to be a racist. Adams said Maples offered to apologize to Nelson but
Nelson “would not accept his apology,” “kept her arms folded,” shook her head, and “was
adamant … she just wouldn’t meet him halfway.” Warden Adams testified RN Supervisor
Maples found it real difficult to work with Nelson and found himself employment elsewhere.
Adams said Maples told him he quit because of Nelson but Maples did not mention Nelson in
his resignation letter. Adams testified Maples told him he did not mention Nelson in his
resignation letter because he did not want to cross paths with Health Administrator Johnson
in case he ever wanted to return to the Company to work. Warden Adams said he did not
meet with Nelson to tell her RN Supervisor Maples resigned because of her.
Former RN Supervisor Maples testified he resigned his employment with the
Company because of the “high stress level” and part of the stress level resulted from his
having to interact with Nelson.
Warden Adams testified the second RN he lost because of Nelson was Deanna
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Hardin. Adams testified Hardin told him and Director Garner that she was quitting because
of Nelson, that she could not “supervise her” or “work around her any more,” and if the day
came when Nelson no longer worked there she would be happy to return to work at the
Company.
RN Hardin testified she was the first RN to be hired after the Company obtained the
California contract. She said there were only three RNs at that time the other two being RN
Supervisor Maples and Health Administrator Johnson. Hardin said because she was the first
“higher professional” she caught it bad for a long time. Hardin said the atmosphere in the
medical department was “anxious,” “hostile,” and unprofessional. RN Hardin described
working with Nelson as “if you could just imagine the biggest, baddest bulldog that just
barked all the time in your face and would never go away, that’s what it was like working
with her.” Hardin said she told Warden Adams when she resigned it was because of
Nelson’s behavior and Health Administrator Johnson’s enabling her. Hardin said she told
Warden Adams if they ever got it figured out and got rid of those causing the problems to
call her if they needed a good nurse and she would see about coming back.
Warden Adams testified he had to do something that they were losing RNs which
were hard to find and that Nelson was “running everybody off.” Adams testified “Ms.
Nelson wanted to be the boss…. She wants to tell the RNs what to do. And you don’t do
that in no type of environment. That doesn’t happen, but she insisted on telling them what to
do.”
Warden Adams said that after the incident involving RN Clinical Supervisor Dorothy
Strong on July 29, 2008, he decided “enough was enough” and he had to do something with
Nelson. Adams said she had been given more chances than anyone else in the facility
because she had a supervisor who was her friend and would not hold her accountable.
As set forth above, the incident between RN Clinical Supervisor Strong and Nelson
related to Strong’s attempts to ascertain which inmate was having chest pains and Nelson’s
response thereto, particularly as it related to Strong.
Warden Adams said he spoke with Director Garner and Vice President of Facility
Operations Turner after the Strong incident. Adams discussed the incidents related to Nelson
that involved Maples, Hardin, Scott, and Strong and recommended they terminate Nelson.
Adams said he made his recommendation “Because her [Nelson’s] conduct, her behavior was
detrimental to the facility. She was killing us. She was … putting us in a position where we
could lose our contract.” Vice President of Facility Operations Turner testified Warden
Adams was at “his wit’s end” because he was unable to improve the health services clinic
because of circumstances surrounding Nelson. Tuner and Warden Adams testified Nelson
was discharged for being disruptive and not because of her grievance filing or her complaints
about working conditions.
Warden Adams testified that when he terminated Nelson he referred to talking points
previously written for the exit interview.
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B. Credibility Considerations, Analysis, Discussion, and Conclusions
Before turning to an analysis of the facts and application of legal guidelines, it is
helpful to make certain observations applicable throughout this Decision. I have carefully
reviewed the trial record and exhibits whether or not I have made reference to or discussed
such herein. I have not attempted to resolve all differing versions of what took place in
grievance meetings or like settings deeming it unnecessary to a resolution of the issues
herein. In large part, the outcome of this matter would be the same regardless of which
version of facts was accepted. On those incidents where it is essential to resolve or address
credibility, I have done so after having carefully observed the witnesses as they testified. I
have accepted portions of witnesses’ testimony but rejected other portions but have
considered all testimony and done so in light of other witnesses’ testimony and exhibits. The
Government and Company presented numerous disciplinary reports issued to employees
during 2007 and 2008. I have carefully reviewed, but do not make reference to, the reports
because I do not find the reports very helpful in deciding, one way or the other, the outcome
of this matter.
Section 7 of the Act guarantees employees the right to engage in “concerted activities
for the purpose of collective bargaining or other mutual aid or protection.” For an
employee’s activity to be “concerted” the employee must be engaged with or on the authority
of other employees and not solely on behalf of the employee him/herself. Meyers Industries
(Meyers I), 268 NLRB 493 (1984) and Meyers Industries (Meyers II), 281 NLRB 882
(1986). The Statute requires that the activities under consideration be “concerted” before
they can be “protected.” As the Board observed in Meyers I “Indeed, Section 7 does not use
the term ‘protected concerted activities’ but only concerted activity.” It goes without saying
however the Act does not protect all concerted activity. In Meyers Industries (Meyers II ),
281 NLRB 882 (1986), enfd. sub. nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir.1987) the
Board made it clear that under the proper circumstance a single employee could engage in
concerted activity within the meaning of Section 7 of the Act. For example in NLRB v. City
Disposal Systems, 465 U.S. 822 (1984), the Supreme Court found an individual employee’s
invocation of a right contained in a collective-bargaining agreement constituted concerted
activity within the meaning of Section 7 of the Act. 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. Ewing v. NLRB, 861 F.2d 353 (2d Cir.1988). The Board has found an individual
employee’s activities to be concerted when they grew out of prior group activity. Every
Women’s Place, 282 NLRB 413 (1986). An employee’s activity will be concerted when he
or she acts formally or informally on behalf of the group. Oakes Machine Corp., 288 NLRB
456 (1988). Concerted activity has been found where an individual solicits other employees
to engage in concerted or group action even where such solicitations are rejected. El Gran
Combo de Puerto Rico, 284 NLRB 1115 (1987) enfd. 853 F.2d. 966 (1st Cir. 1988). The
Board has long held, however, that for conversations between employees to be found
protected concerted activity, they must look toward group activity and that mere “griping” is
not protected. See: Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3rd Cir. 1964).
Once the activity is found to be concerted an 8(a)(1) violation will be found if, in addition,
the employer knew of the concerted nature of the employee’s activity, the concerted activity
was protected by the Act, and the adverse employment action at issue (e.g., discharge) was
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motivated by the employee’s protected concerted activity.
During applicable periods herein, did Nelson engage in concerted activity protected
by the Act? The evidence leaves no doubt she did. Nelson’s February 26, 2008, grievance
against RN Supervisor Maples accused him of, among other things, discrimination based on
race and sex. While Nelson was preparing the grievance against Maples, three of her co-
workers came to her office where the four of them discussed incidents involving Supervisor
Maples. Nelson informed her three co-workers, LPN Thomas, LPN Henderson, and LPN
Melton, they could write up their incidents related to Supervisor Maples and attach them to
the grievance she was preparing. The three did so. LPN Henderson complained that in
January 2008 Maples required her to have a doctor’s excuse for an absence for surgery while
not requiring white nurses to provide excuses. I note Nelson, Henderson, Melton, and
Thomas are African-American and Supervisor Maples is Caucasian. LPN Melton
complained Supervisor Maples took her early selected work assignments and gave them to a
white male nurse. LPN Thomas complained Supervisor Maples did not fairly make daily
work assignments. It is clear the four LPNs discussed working conditions and reduced
certain of their concerns to writing which Nelson submitted to management in the form of a
grievance. I find this constitutes basic protected concerted activity. I reject the Company’s
contention the grievance only related to Nelson and thus could not be concerted activity. The
attachments to the grievance clearly set forth the concerns of three other LPNs. I likewise
find the non-participation of the other three LPNs at the various meetings on the grievance
between February and May 2008 did not negate the concerted nature of the grievance. I need
not, and do not, address the merits of the grievance, or any portion thereof, as it is not
necessary to a finding that the actions of Nelson and the other three LPNs constituted
concerted activity protected by the Act.
The letter Nelson drafted on May 5, 2008, to VP Tighe constituted concerted activity
protected by the Act. The letter concerned wages for LPNs. Nelson solicited fellow LPNs to
read and consider signing the letter. Fifteen LPNs signed the letter which Nelson then mailed
to VP Tighe.
Nelson’s actions related to bonuses for LPNs also constituted basic concerted activity
protected by the Act. After Nelson was apprised on July 24, 2008, that she was going to
receive a larger bonus than otherwise expected, Nelson investigated and determined the
larger bonuses only applied to RNs not LPNs. Nelson learned from Health Administrator
Johnson that the information regarding bonuses came from Recruitment Specialist Carter.
Nelson asked for, and was granted, permission to speak with Carter about the bonuses.
However, before Nelson did so, she spoke with three other LPNs about bonuses and asked if
they wanted to go with her to speak with Carter about bonuses. The three LPNs agreed and
the four of them met with Recruitment Specialist Carter to find out why the LPNs were not
included in the retention bonuses.
On July 30, 2008, LPN Brown and Nelson met with HR Manager Holly to further
pursue bonuses and if their names were included with those getting bonuses. When HR
Manager Holly asked what bonuses, Nelson told her “some of the LPNs are getting some
extra money. We want to know are we going to get it.” Recruitment Specialist Carter came
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into HR Manager Holly’s office at that time and told the two LPNs if they needed to know
something about bonuses to ask her or HR Director Koehn. The two LPNs (Nelson and
Brown) then spoke with Koehn on the speaker phone in Recruitment Specialist Carter’s
presence. A third LPN, Diketra Thomas, joined Nelson, Brown, Carter, and Koehn during
the telephone conference. Again the subject matter was bonuses for LPNs, a part of wages,
and as such clearly constitutes concerted activity protected by the Act. It is clear Nelson’s
inquires were not just for herself but for LPNs. Nelson made it clear her inquiry was for
“we” LPNs. While Nelson may have made a reference in her grievance to CEO Ferguson to
the fact she wanted to know whether she personally would receive a bonus does not detract
from a finding her activity with respect to bonuses was concerted.
During this July 30, 2008, conference call, Nelson asked HR Director Koehn about
the status of the letter she and certain LPNs had written VP Tighe. The letter addressed pay
rates for LPNs. Koehn promised to look into the matter and get back with Nelson the
following Monday.
I am fully persuaded the evidence establishes the Company was aware of Nelson’s
protected concerted activity. In the grievance against RN Supervisor Maples, Nelson
attached Employee Incident Statements from three additional LPNs concerning alleged issues
of discrimination based on race and sex, which concerns Nelson also raised. Nelson in a
March 27, 2008, addendum to Maples grievance asserts RN Supervisor Maples had said “I’m
tired of trying to get alone [sic] with these people!” Nelson indicated in the addendum,
“Everyone in the grievance is black. Everyone Mr. Maples has violated is black.” From this
alone it is clear Nelson was advancing the cause of others as well as herself and the Company
was on notice in writing she was doing so.
The letter to VP Tighe was drafted and signed by Nelson along with 14 other LPNs;
however, the return receipt signed by a Company representative, was specifically addressed
to Nelson at her home. During a meeting on July 30, 2008, with HR Director Koehn
regarding bonuses, Nelson asked about the status of the LPNs’ letter to VP Tighe about pay
rates for LPNs. HR Director Koehn did not know the status but stated she would look into
the matter and get back with Nelson. The Company was fully aware of Nelson’s efforts
regarding the letter from its receipt by the Company and continuing thereafter.
The Company was aware of Nelson’s involvement, along with others, regarding
bonuses because she was present with management representatives HR Manager Holly, HR
Director Koehn, and Recruitment Specialist Carter when those concerns were raised.
Clearly Nelson engaged in concerted activity protected by the Act. However, what
remains to be determined is whether the Company retaliated against her for exercising her
right to engage in that protected activity.
In Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board announced its causation
test in cases alleging violations of Section 8(a)(3) of the Act or violations of Section 8(a)(1)
turning on employer motivation. To establish such a violation, the government must prove,
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by a preponderance of the evidence, that an individual’s protected activity was a motivating
factor in the employer’s action. Once the government makes this showing, the burden of
persuasion then shifts to the employer to prove its affirmative defense that it would have
taken the same action even in the absence of the protected conduct. To sustain its burden, the
government must show that the employee was engaged in protected activity, that the
employer was aware of that activity, that the activity was a substantial or motivating reason
for the employer’s action, and there was a causal connection between the employer’s animus
and its challenged conduct or action. Recently, the Board has indicated that “Board cases
typically do not include [the last element] as an independent element.” Wal-Mart Stores,
Inc., 352 NLRB No. 103, fn. 5 (2008).
As noted above, I find Nelson engaged in concerted activity protected by the Act and
that the Company knew about the concerted activity and Nelson’s involvement therein.
Therefore, it is now necessary to determine the Company’s motivation in discharging Nelson.
I conclude the Government has made a prima facie showing that Nelson’s concerted
protected activity was a motivating factor in the Company’s decision to terminate her.
First, Warden Adams’ written talking points for the termination meeting with Nelson
indicates that each time she complained about an issue she was never satisfied with any
response by the Company to her concerns. I note Nelson’s concerns included allegations of
race and sex discrimination as well as issues regarding rates of pay and employee bonuses.
Warden Adams’ talking points for Nelson’s termination, standing alone, constitute unlawful
motivation for her discharge. Second, Warden Adams told Nelson during the termination
meeting, as credibly testified to by Nelson, that her attitude did not fit the environment the
Company sought to establish and maintain. Nelson’s attitude was one of pursuing employee
issues, concerns, and complaints vigorously. The record demonstrates Nelson may have a
number of shortcomings but a lack of persistence is not one of them. Nelson’s attitude was a
factor in her discharge. Third, on March 14, 2008, at a meeting on the grievance related to
RN Supervisor Maples regarding whether he discriminated against Nelson and others based
on sex and/or race, Nelson stated Maples and her co-workers tried to make it seem like she
was a troublemaker. Nelson credibly testified HR Director Koehn, in Warden Adams’
presence, stated they eventually got rid of troublemakers. Nelson is equated to a
troublemaker and the Company, during a meeting on a grievance filed by Nelson, made it
clear the Company would get rid of troublemakers demonstrating unlawful motivation for
discharging her. Fourth, it is undisputed that Health Administrator Johnson told Nelson
immediately after Nelson’s termination that she had just spoken with Warden Adams and
Warden Adams told her that HR Director Koehn said Nelson “had called her being negative
a few times and that you incited the nurses.” Nelson had solicited other LPNs on July 24,
2008, to accompany her to speak about employee bonuses with Recruitment Specialist Carter
and thereafter with HR Director Koehn. LPNs Nelson and Brown spoke again with HR
Director Koehn on July 30, 2008, about the employee bonuses as well as the letter to VP
Tighe that Nelson drafted and mailed and which 14 other LPNs signed. Nelson’s inciting
fellow LPNs and being negative concerned pay and working conditions and, in part,
contributed to her discharge. Fifth, Nelson was terminated a mere two days after she
discussed with HR Director Koehn employee bonuses and the status of an earlier letter
regarding a wage increase for LPNs. I find the timing of Nelson’s discharge to be suspect
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and further indicate the Company’s unlawful motivation for her discharge. Sixth, Nelson’s
immediate supervisor, Health Administrator Johnson, wrote a letter of recommendation for
Nelson describing her as “an excellent nurse” with a “wealth of knowledge” and a “self-
motivated” “model employee.” Such indicate she was terminated for other than her job
performance or abilities.
Based on the above, I find the Government has met its burden of establishing the
Company’s action in terminating Nelson, was motivated, at least in part, by Company
management’s animus toward Nelson’s grievance filing on her and other LPNs’ behalf as
well as Nelson’s efforts, with other LPNs, regarding wage rates and employee bonuses all
concerted activity protected by the Act. The burden shifts to the Company to demonstrate by
a preponderance of the evidence it would have taken the same action even in the absence of
the protected conduct. I conclude and find the Company has failed to meet its burden.
The Company’s contention that it discharged Nelson because of her continued
harassing, disruptive, and bullying behavior and causing the Company to lose RNs as well as
putting the Company in a position where it could lose its contract with California does not
withstand close scrutiny. For example, Warden Adams testified that from the time he arrived
at the facility in February 2007 until Nelson’s termination on August 1, 2008, he received
written and verbal statements from staff members complaining about Nelson’s “bully-like
tactics,” aggressive tone with others, and acting as though she was running the place.
However, Warden Adams never issued or caused any written disciplinary warnings to be
issued to Nelson about any such behavior. Warden Adams said he spoke with Nelson on
several occasions about her conduct. I do not credit such testimony. I am persuaded if he
had spoken with her on several occasions and considered it serious conduct he would not
have signed Nelson’s 2007 full year Performance Summary wherein Nelson was rated
“Exceeds Requirements” in all catagories specifically including that she was always eager to
assist others as needed, was respectful to her co-workers, always tried to build positive
relationships, had a true love for helping others and tried to do the right things with
honorable intentions. Nelson’s 2006 Performance Summary reflected an overall “Exceeds
Requirements” evaluation for that year also.
Warden Adams identified, or was aware of, approximately 10 or more Incident
Reports or Statements from staff employees and/or supervisors complaining about Nelson’s
conduct. The Company further contends Nelson’s conduct came at the same time the
Company was experiencing a crisis in the medical department which included the death of an
inmate. The incident reports commencing in March 2007 and concluding with a report dated
July 29, 2008, reflect allegations that Nelson acted unprofessional and threatening toward a
mental health coordinator; shouted at a co-worker in an inappropriate manner; threw away
private property of a co-worker; displayed an authoritative behavior toward co-workers
creating a toxic work environment; creating low morale and stress and acting as a “saboteur
and bully;” acting in a disrespectful manner toward a supervisor; engaging in a shouting
match with a professional staff member; yelling and screaming at a co-worker; handling a
review schedule for applicants in an unprofessional manner; and embarrassing a clinical
supervisor who was trying to ascertain which inmate was experiencing chest pains. While all
of this shows that a number of the staff did not have a favorable opinion of Nelson, and she
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may not have been a model employee, but these were not I am persuaded factors that brought
about her termination. I note Warden Adams did not speak with Nelson about any of these
incidents. I am persuaded that if these incidents had been as critical as the Company
contends some, if not all, of the incidents would have been raised with Nelson. None of
these specific incidents were raised by Warden Adams as a basis for her termination when
Adams met with Nelson on August 1, 2008, to terminate her.
Warden Adams contends he terminated Nelson because RNs were leaving their
employment with the Company which was unacceptable to him. Warden Adams explained
he had two RNs leave their employment back-to-back, namely RN Supervisor Maples and
RN Hardin. Maples said he resigned his employment effective May 6, 2008, because of the
“high stress level” in the medical department and a part of that stress came from having to
interact with Nelson. RN Hardin resigned her employment effective June 19, 2008, telling
Warden Adams she was doing so because of Nelson’s behavior. Hardin described the
Medical Department atmosphere as anxious, hostile, and unprofessional and described
Nelson as “the biggest, baddest bulldog that just barked all the time in your face and would
never go away.” Warden Adams did not raise these two specific departures with Nelson
eventhough both cited Nelson as their reasons, at least in part, for leaving their employment.
I further note Warden Adams did not mention these specific resignations to Nelson at the
time he terminated her as being the basis, in whole or in part, for her termination.
The Company did not consider any of the above incidents, including the departure of
two RNs, to warrant immediate discipline for Nelson or for that matter raising the incidents
with Nelson.
Warden Adams asserted the incident involving RN Clinical Supervisor Strong which
occurred on July 29, 2008, caused him to conclude “enough was enough” and he had to do
something with Nelson; therefore, he sought and obtained permission to terminate Nelson.
With regard to the Strong incident, Strong said she was “really embarrassed” by Nelson’s
comments about a conversation addressing whether an inmate was experiencing chest pains.
I am persuaded the Company seized upon this incident after Nelson continued on July 30,
2008, to engage in concerted protected conduct as described earlier herein. I note Warden
Adams could only place his decision to terminate Nelson as occurring sometime between
July 29 and July 31, 2008.
Accordingly, the Company has failed to rebut the Government’s prima facie case. As
noted above, the Company’s contention Nelson was terminated because of her harassing,
disruptive, and bullying behavior is nothing more than a pretext. Accordingly, it is
appropriate to infer the Company’s true motive was unlawful, that being because Nelson
engaged in concerted protected activity. Limestone Apparel Corp., 255 NLRB 722 (1981),
enfd. 705 F.2d 799 (6th Cir. 1982).
Conclusions of Law
By on or about August 1, 2008, discharging Vevria Nelson because she engaged in
concerted protected activity, the Company engaged in unfair labor practices affecting
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commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
Remedy
Having found the Company has engaged in certain unfair labor practices, I find it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, to remedy the unlawful conduct toward
Nelson, the Company must, within 14 days of the Board’s Order, offer her reinstatement to
her former job, or if her former job no longer exists to a substantially equivalent job without
prejudice to her seniority or other rights and privileges previously enjoyed, and make her
whole for any lost wages and benefits as a result of her August 1, 2008, discharge, with
interest, as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). I also
recommend the Company, within 14 days of the Board’s Order, be ordered to remove from
its files any reference to its August 1, 2008, discharge of Nelson and, within 3 days
thereafter, notify Nelson in writing it has done so that her discharge will not be used against
her in any manner. I also recommend the Company be ordered, within 14 days after service
by the Region, to post an appropriate “Notice to Employees” in order that employees may be
apprised of their rights under the Act and the Company’s obligation to remedy its unfair
labor practices.
On these findings and conclusions of law and on the entire record, I issue the
following recommended:3
ORDER
The Company, Corrections Corporation of America, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against employees for
engaging in concerted activity protected by the Act.
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Within 14 days from the date of the Board’s Order, offer Vevria
Nelson full reinstatement to her former job, or, if that job no longer exists, to a substantially

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
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equivalent position, without prejudice to her seniority or any other rights or privileges
previously enjoyed.
(b) Make Vevria Nelson whole for any loss of earnings and other benefits
suffered as a result of the discrimination against her, in the manner set forth in The Remedy
section of this decision.
(c) Within 14 days from the date of the Board’s Order, remove from its
files any reference to the unlawful discharge of Vevria Nelson, and within 3 days thereafter,
notify her in writing that this has been done and that her discharge will not be used against
her in any way.
(d) Preserve and, within 14 days of a request, or such additional time as
the Regional Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an electronic copy
of the records if stored in electronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at its Tutwiler,
Mississippi facility, copies of the notice marked “Appendix.”
4
Copies of the notice, on forms
provided by the Regional Director for Region 26, after being signed by the Company’s
authorized representative, shall be posted by the Company and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Company to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Company has gone out of business or closed the facility involved in
these proceedings, the Company shall duplicate and mail, at its own expenses, a copy of the
notice to all current employees and former employees employed by the Company at any time
since August 1, 2008.
Dated at Washington, D.C., March 27, 2009.
_______________________
William N. Cates
Associate Chief Judge

4 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice
reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall read "POSTED
PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD.
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NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge or otherwise discriminate against any of you for engaging in
concerted activity protected by the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Vevria Nelson full
reinstatement to her former job, or, if that job no longer exists, to a substantially equivalent
position without prejudice to her seniority or any other rights or privileges previously
enjoyed.
WE WILL make Vevria Nelson whole for any loss of earnings and other benefits resulting
from her discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference
to the unlawful discharge of Vevria Nelson, and WE WILL, within 3 days thereafter, notify
her in writing that this has been done and that the discharge will not be used against her in
any way.
CORRECTIONS CORPORATION OF AMERICA
(Employer)
Dated: By:___________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and
how to file a charge or election petition, you may speak confidentially to any agent with the
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Board’s Regional Office set forth below. You may also obtain information from the Board’s
website: www.nlrb.gov.
The Brinkley Plaza Building, Suite 350, 80 Monroe Avenue, Memphis, TN 38103-2416
(901) 544-0018, Hours: 8:00 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (901) 544-0011.