On appeal from the Final Administrative Action of the Merit System Board, DOP Docket No. 2004-1663, OAL Docket No. CSV 330-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Remanded Re-Argued September 17, 2007
Before Judges S.L. Reisner and Baxter.
Omar Thompson appeals from a final administrative decision of the Merit System Board (Board) removing him from his position as Medical Security Officer at Anne Klein Forensic Psychiatric Hospital (FPH), which is operated by the Department of Human Services (Department). In its November 4, 2005 decision, the Board reversed the June 14, 2005 decision of the Administrative Law Judge (ALJ). The ALJ found that the Department failed to demonstrate by a preponderance of the competent, credible evidence that Thompson had physically abused T.G., a female patient. Thompson urges us to reverse the Board's decision, arguing that the Board failed to observe the proper standard of review when it rejected the ALJ's findings. We agree with Thompson's contentions, and reverse.
Josephine Walters testified that on Friday, November 16, 2001, she thought she saw Thompson with his hand between T.G.'s legs, but she was unsure and said nothing to Thompson, nor did she report her suspicions to her supervisor. The next time Walters worked with Thompson was five days later on November 21, 2001. While Walters was on the unit observing the patients who were on a smoke break, she came around the corner and saw Thompson quickly remove his hand from between T.G.'s legs. Walters ordered T.G. to go into the courtyard with the other patients, and never questioned T.G. about Thompson's conduct. Although Walters was required by written institutional procedures at FPH to report patient abuse to a supervisor immediately, Walters did not report Thompson's conduct to her supervisor at that time. She explained that before reporting what she had seen, she wanted to discuss the matter with Thompson first. When asked why she did not speak to Thompson in the four hours that remained of the shift on November 21, she explained that she was busy taking care of patients and had no time to do so. During that four-hour interval, Walters accompanied patients to rehab and to the library, then returned to the unit where Thompson worked and remained there for two hours before the shift ended, without ever speaking to Thompson about what she had observed. The next day was Thanksgiving and Walters did not work again until Saturday, November 24, 2001, and it was not until then that she reported Thompson's conduct to her supervisor.
On November 24, 2001, Walters reported to her supervisor Marion Watkins that on November 21, 2001, at approximately 5:45 p.m., she had observed Thompson having inappropriate physical contact with T.G. Walters reported to Watkins that she had observed Thompson removing his hand from between T.G.'s legs as he stood behind her. Watkins prepared a written report the next day describing what Walters had told him about the November 21 incident, and Watkins forwarded his written report to the Director of Medical Security.
Notably, nothing in Watkins's written report refers to what Walters thought she had observed on November 16, 2001. Watkins explained that although he remembered Walters telling him about the November 16 incident, he failed to include it in his written report, and conceded in his testimony that he was required to have done so. He commented, "I have to apologize for my behavior, because I did not include that particular allegation in that report."
On the same day that Walters reported the November 21 incident to Watkins, Walters prepared a handwritten report which she also provided to him. Her sixty-one word report briefly describes what she observed between Thompson and T.G. on November 21, 2001, but fails to mention anything about what she thought she saw on November 16, 2001.
When asked at the hearing before the ALJ whether there was any doubt in her mind as to what she had seen on November 21, 2001, although several years*fn1 has passed between the incident and her testimony, she answered "no, there is not." In contrast, she explained that she was unsure about what she had seen on November 16, 2001, and that was why she failed to include that incident in her written statement on November 24, 2001.
The final witness to testify on behalf of the Department was Judith Priest, the Clinical Administrator of the FPH on November 21, 2001. Priest was responsible for the clinical care of all patients and the supervision of all staff, including medical security officers such as Walters and Thompson. Priest produced a copy of the written institutional procedure that requires an employee who observes another employee engaging in improper conduct or patient abuse to report such conduct immediately. Priest added that she would not ...