Nurse fired after leaving surgery could get job back

MANHATTAN (CN) — A nurse fired for “patient abandonment” after she left an operating room to engage in union activity could get her job back, if the Second Circuit rules in her favor.

In March 2020, New York Presbyterian Hudson Valley Hospital fired longtime nurse Rosamaria Tyo for abandoning her post in the operating room a week earlier to join a group of union members and confront their manager about the refusal to grant annual wage increases for the first time in nearly two dozen years.

Tyo had been one of two circulating nurses to a surgical team that day. She left for the conference room to confront the chief nursing officer following a town-hall meeting. During the confrontation, the manager called the group “disrespectful” for not making an appointment to talk with her and singled out Tyo by saying “Rose knows better than this.”

Tyo then returned to the operating room, where she had been missing for about half an hour, though another nurse who had been training with her had stayed behind in the operating room.

After an investigation, the hospital discharged Tyo for violating its patient abandonment rules, despite the lead surgeon objecting to the discharge and letters of support from other doctors. The hospital also reported the case to the state’s Office of Professional Discipline, though the agency found no evidence to support disciplinary action against Tyo.

In 2022, the National Labor Relations Board found the hospital had broken labor laws by firing the nurse, citing anti-union animus and noting Tyo’s direct communications with the chief nursing officer was the motivating factor in the termination, not her leaving the surgery. The NLRB ordered her to be re-hired and paid back pay.

The hospital argued Tyo wasn't entitled to be reinstated nor to receive back pay because she was fired for “the unconscionable act” of leaving the operating room during a surgical procedure, adding that the surgeon that day did not know of her absence. It also noted the record was devoid of any previous animus against Tyo’s union-related activities.

Attorneys for Tyo contended the other circulating nurse covered for her during her absence. They also noted a similar case involving another nurse who had been absent for most of an operating procedure, in which the nurse was neither fired nor disciplined, and other operating room personnel who did not report Tyo’s absence that day were not fired.

During oral arguments on Wednesday, the three-judge panel spent much of their time comparing Tyo’s situation with that similar case. “These things are not comparing apples and apples,” said U.S. Circuit Judge William Nardini. “Given the level of deference that we have to afford the agency, is it close enough that these are apples and pears … or are these apples and watermelons?”

Attorneys for the nurse and for New York State Nurses Association both argued the similar case showed the hospital used Tyo’s absence as pretext to fire her, citing the nurse manager’s comments that the meeting was “disrespectful” and “unacceptable” evidence of the hospital’s anti-union animus.

“That is about the mildest form of language I can think of,” countered Nardini, a Trump appointee. “I mean when we think of animus cases we think of vulgarities, we think of people screaming. But to say that was ‘disrespectful,’ that is just about the most polite way to couch something.”

NLRB attorney Gregoire Sauter argued the nurse manager had demanded to know the name of each of the employees who confronted her and where they worked, after which the hospital’s human relations head immediately checked security cameras and began investigating them.

Representing the hospital, attorney John Pope of Epstein, Becker & Green, said the Second Circuit had no obligation to uphold the NLRB ruling and chastised the other side for making the nurse manager “out to be the anti-union villainess.”

Pope also stressed Tyo had not followed hospital procedures by seeking permission to leave the operating room, arguing that the other nurse had done so. “If nurse Tyo had left the operating room and sought permission … we’d have a different case here,” he said.

Nardini was joined by Judges Dennis Jacobs and Richard Wesley, both appointed by President George W. Bush.

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