In the Matter of Annatta Wade, Essex County CSC Docket No (Civil Service Commission, decided December 3, 2008)

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1 In the Matter of Annatta Wade, Essex County CSC Docket No (Civil Service Commission, decided December 3, 2008) The appeal of Annatta Wade, a Hospital Attendant with Essex County, of her removal, effective October 5, 2007, on charges, was heard by Administrative Law Judge Imre Karaszegi, Jr. (ALJ), who rendered his initial decision on October 6, Exceptions were filed on behalf of the appointing authority, and cross exceptions were filed on behalf of the appellant. Having considered the record and the ALJ s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on December 3, 2008, accepted and adopted the Findings of Fact as contained in the attached initial decision, but did not adopt the ALJ s recommendation to reverse the appellant s removal. Rather, the Commission modified the penalty to a three-month suspension. DISCUSSION The appellant was removed from employment, effective October 5, 2007, on charges of conduct unbecoming a public employee and other sufficient cause: violation of hospital policies and procedures regarding the abuse of a patient. Specifically, the appointing authority asserted that on October 4, 2007, the appellant pulled the hair of D.S., a patient, pounded her fists on D.S. shoulder and chest area, and led D.S. to the ante-room of the seclusion room. Upon the appellant s appeal to the Commission, the matter was transmitted to the Office of Administrative Law for a hearing as a contested case. In the initial decision, the ALJ sets forth that Griselda Johnson, an Infection Control Coordinator, testified that as she was exiting her office, she saw the appellant wrap her hand around D.S. ponytail and D.S. head was going side to side. Johnson also indicated that the appellant slammed her fist on D.S chest/shoulder area. Then the appellant took D.S. to the seclusion room. Johnson spoke with Yolande Cenesca, a Graduate Nurse, and told Cenesca that she needed to investigate as there was an abused patient in seclusion. Cenesca testified that placement of a patient in the seclusion room requires a doctor s order. Cenesca also stated that Johnson never mentioned the appellant s name nor chest or shoulder when reporting that D.S. was in the room. Deborah Edley, an Assistant Director of Nursing, added that there is an ante-room before entering the medical and seclusion room. The seclusion room is locked and is described as the quiet room when the room is unlocked. Clarence Coleman, a Hospital Attendant, also testified. Coleman was in the day room playing cards with a patient when he witnessed the appellant separate D.S. and another patient. Coleman also saw D.S. throw a shoe

2 at the appellant. Afterwards, the appellant escorted D.S. to the quiet room. D.S. had been sitting in a chair. Coleman did not observe the appellant strike D.S. or hear D.S. cry out. He saw the appellant s right hand on D.S. hair and left hand on D.S. left arm. The appellant was holding D.S. head for control. Moreover, Veronique Watson, a Hospital Attendant, indicated that she was playing dominoes with a patient when she saw D.S. strike another patient. Watson also stated that the appellant took D.S. hair and led her to the quiet room. She did not see the appellant yank D.S. head back and forth or hit her. Similarly, Doris Amene, a Hospital Attendant, did not recall seeing the appellant hit D.S. or yank her hair. Amene added that she saw the appellant s hands on D.S. right arm, hair, and shoulder. Amene indicated that she was in the medication line and approximately 18 feet away from the appellant and D.S. Amene noted that D.S. has a history of hitting people. As for the appellant, she testified that D.S. stood up on her own from the chair and did not resist the appellant when being escorted to the quiet room. The appellant placed D.S. in the quiet room so that D.S. would not hurt other patients. Additionally, the appellant indicated that she placed her right hand on D.S back/hair and left hand on D.S. wrist. The appellant maintained that she did not grab D.S. ponytail or hit her. Maryellen Phillips, a Director of Nursing, stated that there are nursing procedures to deal with assaultive patients. She also indicated that placement of a patient in the seclusion room is a very regulated procedure. Dr. Madiha Eltaki, an Internist, also testified. Dr. Eltaki did not detect any injuries to D.S., but found D.S. in the quiet room and still agitated. Upon a review of the testimony presented, the ALJ determined that Johnson s testimony was inconsistent with the testimony of all witnesses. No witness corroborated Johnson s allegation that the appellant slammed her fist in D.S. chest/shoulder area or yanked D.S. head or hair. Additionally, the ALJ found that Amene s testimony was credible. The ALJ stated that Amene s testimony was clear and concise and confirmed that the appellant s hand was on D.S. hair/shoulder area. Amene and Watson were also consistent in their testimony that they did not see the appellant hit D.S or yank her hair. Moreover, the ALJ indicated that the witnesses verified that the appellant placed D.S. in the quiet room and not the seclusion room. Thus, the ALJ found that the appellant moved D.S., without restraints, to the quiet room or ante room area in order to reduce stimuli and minimize further disruption in accordance with hospital procedure. Therefore, the ALJ concluded that the appointing authority had not proven that the appellant was engaged in unbecoming conduct or in violation of hospital policies or procedures. Accordingly, the ALJ recommended that the appellant s removal be reversed.

3 In its exceptions, the appointing authority contends that Johnson had the clearest view of the incident in question. It states that the other witnesses were working on other matters or attending to patients. Moreover, the appointing authority submits that the appellant failed to notify a registered nurse before restraining and moving D.S., which was in violation of the Assaultive Patient Procedures. It is noted that Section II.F. of the Assaultive Patient Procedures (Exhibit R-8) states that [w]hen an emergency exists and a physician is not on the unit, the RN assesses the patient and may determine to initiate seclusion or restraints on an emergency basis. The physician must be notified immediately. The RN can authorize seclusion for a maximum period of up to one hour. Additionally, the appointing authority emphasizes that the seclusion room and the quiet room are the same room. The room is designated the seclusion room when the door is locked. The appointing authority contends that Johnson testified that the room was locked. Furthermore, it asserts that the witnesses testified that the appellant took D.S. to the room by her hair, which it maintains was abusive, or at the very least, unbecoming conduct. The appointing authority also maintains that the appellant s conduct warrants her removal. Additionally, it states that the appellant received a 30-day suspension on the charge of conduct unbecoming a public employee for a physical altercation with another employee. It is noted that the appellant began her employment with Essex County in January In her cross exceptions, the appellant submits that Johnson s testimony was not credible. She underscores the ALJ s finding that Johnson s testimony was not corroborated by the testimony of the other witnesses. Further, she contends that D.S. was placed in the quiet room and not the seclusion room. Thus, her actions were consistent with hospital policy. Therefore, the appellant requests that the ALJ s decision be adopted in its entirety. Upon its de novo review, the Commission agrees with the ALJ s findings of fact and credibility determinations. In this regard, the Commission acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). [T]rial courts credibility findings... are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record. See In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999) ). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. at 659 (citing Locurto, supra). The Commission appropriately gives due deference to such determinations. However, in its de novo review of the record, the Commission has the authority to reverse or modify an ALJ s decision if it is not supported by sufficient credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10(c); Cavalieri v. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). Nevertheless, upon review, the Commission finds that the ALJ s

4 determinations in this respect were proper and that this strict standard has not been met. No witnesses corroborated Johnson s assertions that the appellant hit D.S. or yanked her head or hair. Although the appointing authority maintains that Johnson had the clearest view and the other employees may have been distracted, Coleman and Watson provided a detailed description of the incident, which was consistent. Therefore, the Commission finds that the appellant did not abuse D.S. and that charge is dismissed. However, it is clear that the appellant violated hospital procedures in dealing with D.S. The appellant is not authorized to place a patient in a secluded area without an order from a doctor or nurse. It makes no difference whether D.S. was in the quiet room or the seclusion room. D.S. was separated from the rest of the patients. The appellant placed D.S. in seclusion regardless of whether the door of the room was locked. Thus, the Commission finds that although the charge of abuse was not sustained, the appellant inappropriately handled a patient. Therefore, the appellant engaged in conduct unbecoming a public employee. As to the proper penalty, the Commission s review is also de novo. In addition to considering the seriousness of the underlying incident in determining the proper penalty, the Commission utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). Although the Commission applies the concept of progressive discipline in determining the level and propriety of penalties, an individual s prior disciplinary history may be outweighed if the infraction at issue is of a serious nature. Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). It is settled that the theory of progressive discipline is not a fixed and immutable rule to be followed without question. Rather, it is recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. See Carter v. Bordentown, 191 N.J. 474 (2007). In the instant matter, the appellant s conduct warrants major discipline. Although the appellant s conduct did not rise to abuse, it is clear that she could not take D.S. to a secluded area without authorization from a doctor or nurse. The appellant works with a very vulnerable population, where adherence to procedures is extremely important. Moreover, the appellant s prior disciplinary record does not mitigate the seriousness of her actions. The appellant was previously charged with conduct unbecoming a public employee for engaging in a physical altercation with another employee and received a 30-day suspension. Further, the appellant worked less than six years prior to the incident with D.S. Therefore, a three-month suspension is appropriate under the circumstances. This penalty should serve as a warning to the appellant that any future infraction may result in a more severe penalty, including removal. Accordingly, the foregoing circumstances provide a sufficient basis to modify the removal imposed by the appointing authority to a three-month suspension. See N.J.S.A. 11A:2-19 and N.J.A.C. 4A:2-2.9(d). Additionally, given the apparent confusion by staff in the care and handling of patients regarding the seclusion room and the quiet room, coupled

5 with the Commission s concern for the safety of patients, the Commission recommends that the staff undergo further training on these procedures. Since the penalty has been reduced, the appellant is entitled to back pay, benefits, and seniority pursuant to N.J.A.C. 4A: However, the appellant is not entitled to counsel fees. Pursuant to N.J.A.C. 4A:2-2.12(a), the award of counsel fees is appropriate only where an employee has prevailed on all or substantially all of the primary issues in an appeal of a major disciplinary action. The primary issue in any disciplinary appeal is the merits of the charges, not whether the penalty imposed was appropriate. See Johnny Walcott v. City of Plainfield, 282 N.J. Super, 121, 128 (App. Div. 1995); James L. Smith v. Department of Personnel, Docket No. A T2 (App. Div. March 18, 2004); In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In this case, the Commission dismissed one of the charges against the appellant, but it has sustained the other serious charge and imposed major discipline. Therefore, the appellant has not prevailed on all or substantially all of the primary issues of the appeal. See In the Matter of Bazyt Bergus (MSB, decided December 19, 2000), aff d, Bazyt Bergus v. City of Newark, Docket No. A T5 (App. Div. June 3, 2002); In the Matter of Mario Simmons (MSB, decided October 26, 1999). See also, In the Matter of Kathleen Rhoads (MSB, decided September 10, 2002) (Counsel fees denied where removal on charges of insubordination, inability to perform duties, conduct unbecoming a public employee and neglect of duty was modified to a 15-day suspension on the charge of neglect of duty). This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalty imposed by the appointing authority. However, in light of the Appellate Division s decision, Dolores Phillips v. Department of Corrections, Docket No. A T2F (App. Div. February 26, 2003), the Commission s decision will not become final until any outstanding issues concerning back pay are finally resolved. In the interim, as the court states in Phillips, supra, if it has not already done so, upon receipt of this decision, the appointing authority shall immediately reinstate the appellant to her permanent position. ORDER The Commission finds that the appointing authority s action in removing Annatta Wade was not justified. Therefore, the Commission modifies the removal to a three-month suspension. The Commission further orders that the appellant be granted back pay, benefits and seniority from the end of the three-month suspension until her reinstatement to employment. The amount of back pay awarded is to be reduced and mitigated to the extent of any income earned or that could have been earned by the appellant during this period. Proof of income earned

6 shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision. Pursuant to N.J.A.C. 4A:2-2.10, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay. However, under no circumstances should the appellant s reinstatement be delayed pending resolution of any potential back pay dispute. Counsel fees are denied pursuant to N.J.A.C. 4A: Additionally, the Commission recommends that the staff undergo further training in the care and handling of patients as indicated above. The parties must inform the Commission, in writing, if there is any dispute as to back pay within 60 days of issuance of this decision. In the absence of such notice, the Commission will assume that all outstanding issues have been amicably resolved by the parties and this decision shall become a final administrative determination pursuant to R. 2:2-3(a)(2). After such time, any further review of this matter should be pursued in the Superior Court of New Jersey, Appellate Division.

In the Matter of Shauyn Copeland, DOP Docket No OAL Docket No. CSV (Merit System Board, decided September 7, 2005)

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