County Violated MMBA by Removing Leadership Duties from Hospital Division Chief

Category: Briefing Room
Date: Apr 19, 2019 11:25 AM

Jeffrey Reese began working for the County of Santa Clara as a urologist in 1990. In 1996, Reese began serving as the division chief of urology in the surgery department at Santa Clara Valley Medical Center (“SCVMC”), a County hospital. Reese reported to Gregg Adams, the chair of the surgery department.

In 2010, Valley Physicians Group (“VPG”) became the exclusive representative for the County’s physician bargaining unit. Between November 2011 and April 2012, Reese participated in the joint labor-management committee focused on implementing the negotiated terms of the first memorandum of understanding (“MOU”) between VPG and the County. In the fall of 2013, Reese joined VPG’s bargaining team for successor MOU negotiations.

Starting in 2012, Jeffrey Arnold served as SCVMC’s chief medical officer. The chief medical officer is a physician who is primarily responsible for managing the provider staff, hiring and firing physicians, and determining their salaries. Arnold participated as a member of the County’s bargaining team from late 2013 through late 2014.

In the negotiations for a successor MOU between the County and VPG, Arnold indicated that physician workload needed to increase. Members of the VPG bargaining team, including Reese, expressed their concerns that if physician workloads became excessive, patient safety and service quality would be at risk. After bargaining, Reese continued to raise these concerns with Arnold. 

After one of SCVMC’s five urologists left and approximately 50,000 new patients were eligible to be served by the County health system, Arnold vetted urologist Dr. Tin Ngo for hire. Arnold offered Ngo a position without consulting or notifying Reese. Ngo was not Medical Board-certified at the time.

Before Ngo officially began work, Arnold told Adams that Reese was not the “correct” person to be chief and suggested that Ngo replace Reese. Adams objected to Arnold’s plan because it would violate his department’s policies, which required a division chief to be Medical Board-certified. Adams also thought the decision to replace Reese was premature.

Arnold then informed Adams that he was proposing to have Ngo named as “interim chief.” Once again, Adams rejected Arnold’s proposal because Ngo was not yet Medical Board-certified. Instead, Arnold decided to install Ngo as a “medical director,” and give Ngo most of Reese’s authority as chief. Arnold increased Ngo’s pay to equal Reese’s. While Reese did not suffer a pay loss, 90% of his leadership duties were removed.

To prove that an employer has discriminated or retaliated against an employee in violation of the Meyers-Milias Brown Act (“MMBA”), the employee must show that: 1) he or she exercised rights under the MMBA; 2) the employer had knowledge of the exercise of those rights; 3) the employer took adverse action against the employee, and 4) the employer took the action because of the exercise of those rights. If the employee proves these elements, the burden shifts to the employer to demonstrate that it would have taken the same action, even in the absence of the protected conduct.

The Public Employment Relations Board (“PERB”) concluded that the County removed Reese’s division chief duties because of his involvement with VPG, which violated the MMBA. PERB noted that “Reese first contested Arnold’s stated interest in increasing the physicians’ workload during successor MOU bargaining and thereafter continued to advocate for additional staffing to ease the urology staff’s workload.” PERB also noted that removing Reese’s duties as division chief limited his ability to oppose Arnold’s plan to increase physicians’ workload. Thus, “Arnold’s managerial concerns about Reese were directly related to the very matters he had raised in the course of his protected conduct.”

PERB rejected the County’s argument that it would have taken the same action, even in the absence of Reese’s protected conduct, because of the urgent need for Ngo as a medical director.

County of Santa Clara (Reese), PERB Decision No. 2629-M (2019).

NOTE:

A critical fact in PERB’s decision was that management stripped the doctor of most of his leadership duties.  Those duties included managing the very workload and safety issues that the doctor raised during collective bargaining and thereafter.  The fact that the doctor retained the same pay was irrelevant.  Among other things, this decision shows that taking leadership duties away can be an adverse action.  

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