State of North Carolina s4

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF BURKE 09 OSP 3326

Willie Hubbs, ) Petitioner, ) vs. ) DECISION Broughton Hospital, ) Respondent. )

THIS MATTER came on for hearing before the undersigned Hon. Selina M. Brooks, Administrative Law Judge, on January 11, 2010, in the Courtroom at Broughton Hospital, 1000 S. Sterling Street, Morganton, North Carolina.

APPEARANCES:

For Petitioner: Douglas L. Hall Hall & Hall Attorneys at Law, P.C. 305 S. Green Street, Suite 100 Morganton, N.C. 28655

For Respondent: M. Elizabeth Guzman Assistant Attorney General N.C. Dept. of Justice P.O. Box 121 Morganton, N.C. 28655

ISSUE PRESENTED:

Whether the Respondent had just cause to terminate Petitioner for Unacceptable Personal Conduct in accordance with State Personnel Policy, Section 7, Page 3, for willful violation of known or written work rules, specifically, the prohibition against patient abuse or neglect?

EXHIBITS:

Petitioner’s Exhibits 1 and 2 were admitted.

Respondent’s Exhibits 1-25 were admitted without objection, and referenced in a trial notebook format as one uniform set of trial exhibits by all parties and witnesses.

WITNESSES:

For Petitioner: Willie Langton Hubbs For Respondent: Willie Langton Hubbs Barbara Mary Davenport, MD Jacob Keith McCurry Gary Lee Cooke Christopher Terrell Chapman John James Fortna Jennifer Ann Terry Helen Robert Haynes Robin Gregg Rudisill, RN

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all of the evidence and has assessed the credibility of all of the witnesses by taking into account the appropriate factors for weighing credibility, including but not limited to the demeanor of the witness, any interest, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know, or remember facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with other evidence in the case. From all of the testimony and admitted documentary evidence, the Undersigned makes the following:

FINDINGS OF FACT:

1. At all times relevant to this matter the Petitioner Willie Hubbs was employed as a Health Care Technician I (“HCT”), also called a Certified Nursing Assistant (“CNA”) at Broughton Hospital (“Broughton”) at 1000 S. Sterling Street in Morganton, North Carolina, a state operated facility for mental health patients subject to N.C.G.S. Ch. 126. (R. Ex. 1)

2. Petitioner started working at Broughton on or about August 1, 2005 and had attained career status as defined by N.C.G.S. § 126-1.1 prior to his dismissal. He received training related to his employment and the issues which arose in the termination and this hearing. (R. Exs. 2, 3, 4, 16 and 17)

3. On September 29, 2008, Petitioner was working on the second floor of the hospital wing on Ward 6. He stayed on the ward in a day room to eat his lunch. A number of other employees also remained on the ward during the lunch period.

4. Employees were allowed to remain on the ward during their lunch break, and this was not a violation of any employer policy. Employees can leave the hospital grounds or eat elsewhere on grounds as well.

5. There was a nurse’s station at one end of the hallway and the day room was at the other end of the hallway about halfway down the length of the building. (R. Exs. 21-25) 6. Inside the nurse’s station was a refrigerator where employees stored their lunches or other refreshments they brought to work. There was also a sink for employee use in the nurse’s station.

7. There was a patient, herein referred to as “DS”, on the second floor of Ward 6 on that day. DS was an aggressive patient who was known to the employer and employees to “target” employees. This targeting behavior was a result of DS’s mental health conditions and not as a result of anything these employees would do to DS.

8. DS had been targeting staff recently and, in fact, had attacked another employee during the previous day. On that prior shift, staff on duty noted that DS put on his shoes immediately prior to attacking the employee. At the morning briefing on September 29, 2008, this warning sign was discussed but not shared with all of the HCTs or the medical staff because not all were present.

9. HCT McCurry attended the morning briefing and knew that DS putting on his shoes was the sign of an impending attack.

10. Petitioner was not at the morning briefing and was not aware that DS putting on his shoes was the sign of any impending attack.

11. While all of the other patients on the second floor of Ward 6 were at lunch elsewhere in the building, DS was brought back to his room because he had caused a disturbance in the lunchroom. DS was in his room with his one on one worker, HCT McCurry. HCT McCurry had been told to keep DS in his room to the extent possible, although it was not allowed for him to lock DS in his room or physically restrain him.

12. During his lunch break, Petitioner walked from the day room to the nurse’s station, passing DS’s room at least twice to retrieve his lunch and, then later, some paper towels.

13. There were differing descriptions of the nonverbal interactions between DS and Petitioner on the two occasions during Petitioner’s lunch break when he walked past DS’s door.

14. Dr. Davenport, Nurse Rudisill, HCT McCurry and HCT Fortna, were already present on the hall from the beginning of the incident. HCT Cooke and HCT Chapman came onto the hall during the incident. All were Broughton employees who were in the hallway, close by, and saw part or all of this incident

15. All of these persons testified that Petitioner and DS looked at each other for a period of time and that there was no show of aggression by Petitioner towards DS. (R. Exs. 5, 6, 8, 11, 12, 13 and 14) All of the witnesses testified, including Petitioner, that they recognized that DS was targeting Petitioner and that the best thing to do when a patient is targeting a staff member is to leave the situation. 16. Dr. Davenport observed DS targeting Hubbs in a delusional way and trying to engage Petitioner, but Petitioner never responded. She saw DS putting on his shoes, but she had not been informed that the ward staff thought such behavior was a clue of any type of impending attack. She would not have used his shoes as some kind of signal. (R. Ex. 6)

17. Nurse Rudisill and Dr. Davenport testified that when DS became as agitated as he did that day, he should have been removed from the area. Nurse Rudisill and Dr. Davenport could not explain why this was not done.

18. Nurse Rudisill testified that she thought it was her responsibility that day to direct the removal of one or the other person, but she was new to her job at that time and unsure what to do. She was later disciplined for this lack of action.

19. Dr. Davenport at one point said to Nurse Rudisill, “we need to get him out of here”, but Dr. Davenport took no action to remove anyone. Nurse Rudisill was not even sure whether Dr. Davenport was referring to the patient DS or the Petitioner.

20. Dr. Davenport described seeing Petitioner “stare down” DS in a threatening manner after she came out of the treatment room, but she also testified that at the beginning of the incident, she was in a treatment room adjacent to the nurse’s station. She could not have observed DS from the treatment room.

21. Nurse Rudisill observed DS repeatedly calling out to Petitioner, and Petitioner and the patient looking at each other for “a minute or so” one time when Petitioner was walking past the patient’s room.

22. The second time Petitioner walked by DS’s room on his return to the day room, HCT McCurry left DS long enough to walk to the day room and inform Petitioner that DS had put on his sneakers.

23. DS yelled out to Petitioner not to walk away, and then charged out of his room and down the hall after Petitioner. DS was stopped by staff before he could reach Petitioner, taken down to the floor face down, then turned over onto his back and restrained by staff holding him down with their hands.

24. Nurse Rudisill pushed the ET button to summon assistance. Staff responded and a group of 10-20 employees immediately gathered around DS and Petitioner. Some of the employees were members of Broughton’s Mediation Team.

25. HCT McCurry held DS’s right arm and HCT Chapman held DS’s legs. Petitioner held DS’s head to prevent the patient from striking his head on the concrete floor, and from biting or spitting at anyone.

26. Petitioner’s act of holding the patient’s head in this matter, for these reasons, was consistent with Broughton policy and protocol to prevent patient injury. 27. After about 90 seconds, DS quit struggling and was escorted to time out by HCT Cooke and HCT Chapman.

28. Nurse Rudisill stated in the incident report that attempts to redirect DS were unsuccessful. (R. Ex. 9)

29. No witnesses, including Nurse Rudisill, described any steps taken by anyone to redirect or de-escalate DS.

30. Dr. Davenport testified that she was “the only one that was right by his head. The nurse who was the only other credible – was by the nursing station, and I do not think she could have seen what I saw. I don’t think there was anybody else that could see what I saw.” She claims that she was “one foot” away from the patient when he was on the floor and that she saw Petitioner repeatedly strike DS’s head with his knee three or four times. Dr. Davenport testified that as Petitioner did this he made eye contact with her. (T. 93-94)

31. Dr. Davenport’s testimony and description of the events in question is not supported by any other witness and, in fact, is directly contradicted by much of the other hearing testimony.

32. All of the other witnesses testified that Dr. Davenport was not near DS, and certainly not right beside his head.

33. DS was struggling on the floor and was surrounded by staff who were holding him down. While these employees were on the floor with DS, DS was lying with his head pointed towards the day room and his feet pointing towards the nurse’s station.

34. From the nurse’s station, Dr. Davenport could not have had a clear view of Petitioner or the patient’s head.

35. No one else reported seeing Petitioner strike DS’s head with his knee. (R. Exs. 8, 9, 11, 12, 13 and 14)

36. While the court finds that Dr. Davenport is certain of what she thinks she saw and that her concern for patient safety was genuine, her observations were not and are not corroborated by any evidence and, therefore, should not have formed a basis for Petitioner’s termination by the employer.

37. Dr. Davenport’s observations were relied upon by the employer in the decision to terminate Petitioner (R. Exs. 6 and 20) and in the conclusion of the Patient Advocacy investigation (R. Ex. 15).

38. The observations and reporting of the “on-line” staff, the HCTs and Nurse, were given lesser weight by the employer and the Patient Advocate. 39. There is confusion by all Broughton employees who were involved in this incident concerning: what is a trigger or warning sign that a patient may be about to be aggressive or violent; how a trigger is identified; and how a trigger is to be reported or communicated to other staff.

40. There is confusion by all Broughton employees who were involved in this incident concerning the definition of restraint and seclusion, and when and how these techniques may be used.

41. All of the Broughton employees who were involved in the incident, including the members of the Mediation Team, were aware of the need to redirect DS and to use de-escalation techniques and, yet, no attempt was made by anyone to redirect or de-escalate him.

42. It is clear that Petitioner used poor judgment when he walked by DS the second time and made eye contact with him.

43. It is also clear that all of the Broughton employees exercised poor judgment when no attempt was made to redirect DS or to use de-escalation techniques.

44. Respondent terminated the Petitioner on or about October 13, 2008 for unacceptable personal conduct for willful violation of known and/or written work rules, namely, the written prohibition against patient neglect, abuse, or exploitation (R. Ex. 20).

CONCLUSIONS OF LAW:

1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter of this action.

2. The Respondent has the burden of proof.

3. Petitioner was a state employee working at a state facility and is subject to N.C.G.S. Ch. 126.

4. Respondent has not met its burden of proof that the termination of Petitioner was supported by evidence that Petitioner had physically or emotionally abused a patient, DS, on the date in question, by teasing or baiting the patient with “stares”, and/or subsequently intentionally striking the patient’s head on the floor or with Petitioner’s knee.

5. Respondent acted erroneously, arbitrarily and capriciously because there is insufficient evidence to support Respondent’s conclusion that the Petitioner physically or emotionally abused a patient and, therefore, insufficient evidence for the Respondent to have concluded that the Petitioner violated a known or written work rule. 6. Respondent has not met its burden of showing that the Petitioner was dismissed for just cause.

DECISION:

BASED UPON the foregoing Findings of Fact and Conclusions of Law, the Undersigned decides that the Respondent’s decision to dismiss the Petitioner for just cause be REVERSED.

ORDER:

IT IS HEREBY ORDERED that this Final Decision shall be transmitted to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, per G.S. 150B-36(6).

Before a final decision is rendered, G.S. 150B-36(a) allows each party to file exceptions to this recommended decision, and to present written arguments to those in the agency who will make the final decision. The final decision shall thereafter be served upon all parties and counsel of record.

Per G.S. 150B-36 the Agency shall adopt each Finding of Fact contained herein unless the finding is clearly contradictory to the preponderance of the admissible evidence. For each finding not adopted by the Agency, the Agency shall set forth and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the Agency in not adopting the Finding of Fact.

This is the 19th day of April, 2010.

/s/______Selina M. Brooks Administrative Law Judge