Arbitrator Rules for Hampstead Hospital Worker

An independent arbitrator has ruled that Hampstead Hospital did not have just cause to terminate Melissa Tuscano, who was president of the SEA chapter at the hospital at the time of her termination in September 2012.

The arbitrator’s decision ordered that Tuscano, a mental health counselor, be conditionally reinstated and made whole for lost wages and benefits.

“To me, it’s a win all around,” Tuscano said. “It’s been a very tough year.”

She said she’s looking forward to returning to her workplace.

“I’m happy to walk back in there, because I think it’s a sign to my peers and to management that you cannot do this to people,” she said. “And it’s a sign to my peers that you can stand up for your rights and you do have a voice.”

Tuscano injured her ankle on the job in late 2011 while restraining a patient and suffered from residual effects of that injury. Not long after that, the hospital revised her job description just as she was being evaluated to see how her injury affected her function on the job. The arbitrator, Sarah Kerr Garraty, said the timing raised a red flag.

“I am convinced that it is more likely than not that the timing and some of the content changes were altered with the grievant’s situation in mind,” Garraty wrote.

The union, represented by Field Representative Chris Long, maintained that the hospital targeted Tuscano for her union activism. In this case, though, the arbitrator focused on the hospital’s violation of just cause principles in terminating Tuscano, though she noted there was “strong circumstantial evidence” that union activity played a role.

When she was terminated in September 2012, the hospital claimed that Tuscano was at “maximum medical improvement,” meaning that she was permanently disabled. The hospital claimed that its policy is to terminate employees who have become permanently unable to perform essential job duties, but the union argued that the hospital had made similar accommodations for a worker in the past. Moreover, the union argued that the evidence didn’t support the hospital’s claim that her injury was permanent. The arbitrator found the second point more concerning.

“I am persuaded that the grievant’s precise medical status on September 6, 2012 was unclear and still evolving,” Garraty said.

With her medical picture in question, the arbitrator called what transpired the day Tuscano was fired “baffling.” First, she was called to a meeting with administrators without notice; second, administrators had already cut her a final paycheck prior to the meeting and arranged for collection of her personal belongings; third, she was not given a letter of termination; and fourth, the hospital offered no written responses as the grievance made its way to arbitration.

“It’s worth restating here that this was a 10-year veteran employee with good performance evaluations and no disciplinary history, who suffered from a workplace injury sustained while restraining a patient,” Garraty wrote.

Essentially, Garraty continued, the hospital treated the process of termination as an exercise of pure management prerogative.

“As a just cause termination process, the one employed in this case failed miserably,” Garraty said.

In addition to this arbitration case, Field Representative Long also brought this case to the National Labor Relations Board. A ruling at the NLRB was on hold, pending the results of arbitration.

“We’ll see what they say now,” Tuscano said. “I’m sure the hospital is not going to want that investigation to go through because of the publicity.”

With her private attorney, Tuscano has also filed an Americans with Disabilities Act complaint as well as a complaint with the Human Rights Commission. Each is still pending.

Tuscano said that while the last year was difficult, she hoped the decision sent a message.

“I’m hoping this win is showing my co-workers that, yeah, we can stick up for ourselves, we can show solidarity, and they can’t do this to people,” she said.

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