Brius loses wrongful termination appeal

U.S. Appeals Court Judge Merrick Garland referenced the 1992 blockbuster film “My Cousin Vinny” in his March 5 ruling upholding a lower court ruling that Brius Healthcare Services violated federal law when it fired pro-union caregivers at one of its nursing homes in Marin County (Calif.) just two days before a 2015 vote to unionize.

Judge Garland, who was former President Obama’s choice to fill a U.S. Supreme Court vacancy, began his 21-page ruling citing one of the most famous cross-examinations in film history:

In 1992, Vincent Gambini taught a master class in cross-examination. Trial counsel for the National Labor Relations Board and the National Union of Healthcare Workers apparently paid attention. In this petition for review, Novato Healthcare Center challenges the Board’s finding that it committed an unfair labor practice by firing four union organizers two days before a union election. As Novato acknowledges, its “entire case turns on whether the testimony” of one of its supervisors “should be credited.” But the Board determined that the testimony should not be credited, and trial counsel’s cross-examination of the supervisor provides substantial evidence to support that determination.

Judge Garland’s ruling upholds a 2018 decision by Judge Amita Baman Tracy ordering Brius’ Novato Healthcare Center to reinstate five caregivers who were illegally fired and provide them with tens of thousands of dollars in back salary and benefits.

Judge Tracy found that a Brius nursing home administrator did not give credible testimony about allegedly having seen four of the workers sleeping on the job, which she says was the reason for their firing. Four of the five terminated employees were staunch advocates for joining the National Union of Healthcare Workers.

Judge Tracy ruled that the testimony given by Teresa Gilman, a manager at the 181-bed nursing home, “simply appeared implausible.” Judge Garland concurred, doubting Gilman’s claim that she stopped at a stop sign while driving to the facility at 3:50 a.m. and then proceeded to see the sleeping workers just 10 minutes later at their work station.

During those 10 minutes, Gilman claimed to have:

– driven three more blocks to the Novato facility, stopping at another stop sign along the way;

– parked her car and went into the facility;

– walked to her office, where she logged on to her computer and checked her emails;

– walked to the facility’s kitchen, where she checked the temperature logs for a refrigerator, for a walk-in refrigerator, and for a walk-in freezer; and checked the labels and dates of the items in the refrigerators;

– walked to and through the break room, where she used the restroom and then collected Novato union opposition campaign flyers, on which someone had written “derogatory stuff”;

– gone back to her office and read the flyers;

– walked down the hallway toward Station 4, peeking in rooms along the way; and

– arrived at Station 4 for the first time, where she saw the sleeping employees.

Moreover, “Gilman’s testimony about how long the tasks had taken in the aggregate was rendered even more implausible by counsel’s further cross-examination about how long some of them had taken individually,” Garland wrote.

“In response to counsel’s questions, Gilman testified that: “from the stop sign to [the facility] that’s three or four minutes”; “[i]t takes three to four minutes to log onto my computer”; “[w]hat I did in my kitchen took a few minutes”; “I went over to the break room, [which] took three or four minutes”; and then “I left and went back to my office [put down the flyers, and looked at them again] just briefly.”

By Gilman’s own account, then, those activities alone took about 15 minutes. Given the additional, unaccounted-for activities that Gilman also had to complete, (Judge Tracy) reasonably concluded that Gilman’s aggregate time estimate was ‘unlikely and unbelievable due to the length of time she allocated to each task she completed’ before first encountering the sleeping employees.”

Judge Garland’s ruling is another black eye for Brius, which has faced increased scrutiny from federal and state authorities for widespread patient care violations. Last year, a California state audit found that Brius, headed by Shlomo Rechnitz, had the worst patient care record among California’s three largest nursing home chains, racking up .52 citations per 100 nursing home beds – nearly double the company’s two leading competitors.

Despite the company’s illegal acts of intimidation, workers at Novato Healthcare Center voted to unionize in 2015 and are continuing to fight to improve staffing levels and care for residents.