     Case: 10-60762 Document: 00511435084 Page: 1 Date Filed: 04/05/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                             April 5, 2011

                                     No. 10-60762                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



VEVRIA D. NELSON,

                                                   Petitioner
v.

NATIONAL LABOR RELATIONS BOARD; CORRECTIONS
CORPORATION OF AMERICA,

                                                   Respondents.




                          Petition for Review of an Order of
                         the National Labor Relations Board
                              Agency No. 26-CA-23180


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Vevria Nelson challenges the National Labor Relations Board’s (“Board”)
holding that the Corrections Corporation of America (“Corporation”) did not
violate the National Labor Relations Act (“Act”) when it terminated her. For the
reasons set out below, we DENY Nelson’s petition.




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 10-60762

I.    Facts and Proceedings
      The Corporation operates correctional facilities throughout the United
States, including a facility in Tutwiler, Mississippi, where it employs
approximately 610 employees. In 2007, the Corporation secured a contract with
the California Department of Corrections and Rehabilitation to house California
inmates at the Tutwiler facility (“California Contract”). The California Contract
is the Tutwiler facility’s sole source of inmates and, due to litigation regarding
deficient health care provided to California inmates, the facility is subject to a
federal receivership appointed to monitor the delivery of health care to
California inmates.
      Nelson is a licensed practical nurse (“LPN”) who worked at the Tutwiler
facility from January 24, 2007 until her termination on August 1, 2008. While
employed at the Tutwiler facility, Nelson frequently clashed with her coworkers.
From 2007 through early 2008, several Tutwiler staff members filed the
following incident reports or complaints against Nelson:
      1.    In March 2007, a coworker filed an incident report alleging
            that Nelson yelled at her in a threatening manner.
      2.    In August 2007, a nurse’s assistant filed two separate reports
            alleging that Nelson shouted at her in a threatening manner
            on one occasion and threw away her personal property on
            another.
      3.    In October 2007, a nurse filed a complaint that Nelson
            snatched medication out of her hand in front of several other
            nurses.
      4.    Also in October 2007, two nurses filed complaints against
            Nelson, alleging that her “uncivil” and “rude, unprofessional”
            conduct created a “toxic work environment” and resulted in
            “low morale.”
      5.    In February 2008, Dr. Tankersley, a Tutwiler dentist, asked
            Nelson for some ibuprofen to give to an inmate. The


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            conversation escalated into a shouting match and Registered
            Nurse (“RN”) supervisor Albert Maples intervened. After
            Tankersley left the room, Nelson continued to shout at
            Maples, and Maples told Nelson that if she did not calm down
            he would send her home. Tankersley and Maples submitted
            complaints against Nelson detailing the incident.
      6.    In April 2008, the Corporation conducted a training seminar
            where it asked Tutwiler medical staff to anonymously write
            down the name of any individual who was the source of
            conflict in the medical department. Thirteen of 16 employees
            put Nelson’s name alone. Two employees named Nelson and
            other employees.
      7.    In May 2008, a nurse filed an incident report against Nelson,
            alleging that Nelson shoved her and screamed at her during
            a confrontation.
      8.    In July 2008, RN Dorothy Strong filed an incident report
            against Nelson, alleging that Nelson had made disparaging
            remarks about Strong in front of other nurses. In the report,
            Strong also noted that Nelson routinely made ugly remarks
            to or about RNs.
All of these incident reports were brought to the attention of Warden Robert
Adams, who had overall responsibility for managing the facility.
      In addition to the written complaints, Adams testified that he received
numerous oral complaints about Nelson. Two departing RNs informed Adams
that Nelson was one of the reasons they were leaving the Tutwiler facility. In
April 2008, Maples told Adams that he was resigning due to stress and that
Nelson had contributed to that stress. In June 2008, another RN, Deanna
Hardin, stated to Adams that she was resigning “because of Nelson’s behavior”
but that she would consider returning if Nelson left. Adams did not, however,
discipline Nelson for any of her conduct. Furthermore, in a 2007 performance
evaluation, Nelson received an “Exceeds Expectations” rating.



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      In April 2008, an inmate death at the Tutwiler facility led to an
investigation by the federal receiver in charge of California inmates. The next
month, the receiver issued a scathing report concluding that the Tutwiler
medical department had failed to comply with the receiver’s rules and
regulations. The report emphasized the Corporation’s need to maintain and
increase its medical staff, particularly its RNs.     The receiver warned the
Corporation that if it did not “immediately correct” the deficiencies, he would
remove the California inmates from the Tutwiler facility.
      After the July 2008 incident between Nelson and Strong, Adams discussed
the various incidents involving Nelson with Managing Director Jack Garner and
Vice President Jimmy Turner and recommended that the Corporation terminate
Nelson.   Adams testified that he made his recommendation in light of the
receiver’s warning because Nelson “was putting [the Corporation] in a position
where [it] could lose [its] contract.” Garner and Turner agreed with Adams’s
recommendation.
      On August 1, 2008, Adams discharged Nelson. During the discharge
meeting, Adams referred to prepared talking points and told Nelson: (1) that she
“made complaints” and was “never satisfied with our answers”; (2) that Tutwiler
staff, including some of her coworkers, had complained about her; (3) that the
Corporation “was trying to secure the California contract”; and (4) that her
“attitude” did not fit the environment the Corporation sought to maintain.
Adams’s talking points also specifically noted that Nelson’s “behavior has
contributed to or created difficult situations for [her] and others” and that “the
quality of the medical care [the Tutwiler facility] is providing has been




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                                      No. 10-60762

questioned by our California customer and we are facing a very challenging
situation.”
       On September 18, 2008, Nelson filed a charge against the Corporation
before the Board alleging that she was terminated in retaliation for engaging in
concerted activities protected by the Act.          Over the course of 2008, Nelson
performed three actions that could be considered concerted activities protected
by the Act. In February 2008, Nelson filed an employee grievance against
Maples, alleging discrimination based on race and sex. Three LPNs attached
their own complaints about Maples to Nelson’s complaint. In May 2008, Nelson
and fourteen LPNs mailed a letter to the Corporation’s Vice President of Health
Services asking for a $5 per hour wage increase. In July 2008, Nelson and
several LPNs spoke to human resources about bonuses.
       After a hearing, an Administrative Law Judge (“ALJ”) issued a decision
in Nelson’s favor. On August 23, 2010, the Board reversed the ALJ’s decision.1
The Board found that the ALJ had failed to, among other things, (1) give proper
weight to the fact that the Corporation’s California Contract was in jeopardy and
(2) fully consider the impact that Nelson’s conduct had on the Corporation’s
ability to employ RNs. The Board concluded that:
       While the [Corporation] may have tolerated [Nelson’s] conduct in
       2007, it could no longer do so in 2008, after learning that it could
       lose its California contract. Thereafter, the [Corporation] learned
       that Nelson’s conduct threatened its ability to retain RNs and


       1
         The Board originally reversed the ALJ’s decision in an order issued on November 12,
2009. At the time, only two Board members were sitting on the Board. On June 17, 2010, the
Supreme Court held in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010), that the Board
required a quorum of three members in order to exercise its delegated authority. The Board,
with three members sitting, subsequently issued a second opinion adopting and incorporating
its previous order.

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       properly administer medical care to its inmates, two objectives
       critical in [its] effort to save its California contract. In response, the
       [Corporation] discharged Nelson. Accordingly, we find the discharge
       did not violate the Act.
Nelson timely filed a petition for review of the Board’s order.
II.    Standard of Review
       “We review the Board’s factual findings under a substantial evidence
standard.” Sara Lee Bakery Grp., Inc. v. NLRB, 514 F.3d 422, 428 (5th Cir.
2008) (citing Selkirk Metalbestos, N. Am., Eljer Mfg., Inc. v. NLRB, 116 F.3d
782, 786 (5th Cir. 1997)). “The Supreme Court has defined substantial evidence
as more than a scintilla. It means such relevant evidence as a reasonable mind
would accept to support a conclusion.” Id. (internal quotation omitted). As
another circuit recently commented, under this standard:
       [O]ur job is something like the role of the instant-replay booth in
       football: the call on the field presumptively stands and we may
       overturn it only if we can fairly say that no reasonable mind could,
       looking at the facts again, stand by that call. So it is that we, like
       the instant-replay official, often affirm decisions that we might not
       have made ourselves.
Laborers’ Int’l Union of N. Am., Local 578 v. NLRB, 594 F.3d 732, 739 (10th Cir.
2010).
       When the NLRB does not accept the findings of the ALJ we have “an
obligation to examine the evidence and findings of the Board more critically than
[we] would if the Board and the ALJ were in agreement.” NLRB v. Fla. Med.
Ctr., Inc., 576 F.2d 666, 674 (5th Cir. 1978). “Although this heightened scrutiny
does not alter the substantial evidence standard of review, it does require us to
apply it with a particularly keen eye, especially when credibility determinations
are in issue . . . .” Garcia v. Sec’y of Labor, 10 F.3d 276, 280 (5th Cir. 1993).


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                                  No. 10-60762

III.    Discussion
        The Act prohibits an employer from “interfer[ing] with, restrain[ing], or
coerc[ing] employees” in the exercise of an employee’s right to organize. 29
U.S.C. § 158(a)(1). To establish that the Corporation violated the Act, Nelson
must satisfy a two-prong test. First, she “must make a prima facie showing
sufficient to support the inference that protected conduct was a ‘motivating
factor’ in the employer’s decision.” Peter Vitalie Co., Inc., 310 NLRB 865, 871
(1993).    “Once this is established, the burden shifts to the employer to
demonstrate that it would have taken the same action even in the absence of the
protected conduct.” Id. The Corporation “cannot simply present a legitimate
reason for its actions but must persuade by a preponderance of the evidence that
the same action would have taken place even in the absence of the protected
conduct.” Id. We assume for the sake of argument, as did the Board, that
Nelson presented evidence sufficient to establish a prima facie case.
        On the administrative record before us, we conclude that substantial
evidence supports the Board’s finding that the Corporation would have fired
Nelson even in the absence of the protected conduct. It is undisputed that the
Corporation was in danger of losing the California Contract if it did not improve
medical services at the Tutwiler facility, specifically by increasing the number
of RNs at the facility.    It is also undisputed that the Corporation received
numerous written and oral complaints from other employees regarding Nelson’s
disruptive conduct. Given the steady stream of incident reports and complaints
about Nelson and the fact that two departing RNs had specifically stated that
Nelson contributed to their departure, the Corporation could have reasonably
concluded that terminating Nelson was necessary to prevent other RNs from


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                                  No. 10-60762

leaving and to maintain the California Contract. Substantial evidence supported
the Board’s finding that Nelson’s termination was motivated by the
Corporation’s efforts to save the California Contract.
       Nelson argues that the Board’s finding was in error because: (1) she had
received good performance evaluations and a merit-based raise in spite of the
incident reports; (2) some of the written incident reports filed against her were
not validated after investigation; (3) she was not disciplined in response to the
incident reports; (4) she was not informed of the specific complaints against her
at her termination meeting; and (5) Adams did not investigate Scott’s incident
report against her. These arguments are unavailing. Nelson attacks each
individual incident report as insufficient to support her termination, but in doing
so she misses the point of the Board’s finding. The Board did not base its finding
on any one incident; it found that the Corporation terminated Nelson after
looking at her repeated pattern of abusive behavior in the context of the
threatened California Contract and the impact of her conduct on the RN staff.
At most, Nelson’s arguments could support an inference that the Corporation’s
stated reason for firing Nelson was pretextual. They do not, however, require
such an inference. On the facts before us, we cannot say that “no reasonable
mind could, looking at the facts again,” agree with the Board’s decision. The
Board did not err in reversing the ALJ and dismissing Nelson’s complaint.
IV.    Conclusion
       For the foregoing reasons, Nelson’s petition is DENIED.




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