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In re Dotts


August 27, 2008


On appeal from a Final Administrative Decision of the Merit System Board, Docket No. 2006-2906.

Per curiam.



Argued May 13, 2008

Before Judges Winkelstein and LeWinn.

Appellant Maizeline Dotts appeals from the final administrative action of the Merit System Board (the Board) removing her from employment. Appellant had been a Human Services Assistant (HSA) at Trenton Psychiatric Hospital (TPH) for fifteen years as of the date of the incident that ultimately led to her removal.

The gravamen of this appeal stems from the Board's adoption of the finding of an Administrative Law Judge (ALJ), following a four-day hearing, that appellant engaged in physical abuse of a patient, P.C., during her shift on the Intensive Treatment Unit (ITU) on September 29, 2005; and the further finding that appellant's employment should be terminated pursuant to TPH's "zero tolerance" policy that mandated an employee's removal for a first incident of such abuse.

The evidence presented before the ALJ is summarized as follows.

At the outset of the hearing, the ALJ viewed a DVD video of the events involving appellant and P.C. on the date in question. The judge described that video in her decision, as will be discussed below.

Michael Mceachern, also an HSA, testified that he was present on the ward at the time of the incident. Mceachern stated that P.C. was walking by and appellant "started laughing" at him. P.C. said to appellant: "What is you laughing for if you keep on laughing, I'm gonna come across this desk and I'm gonna punch you in the face, you B." P.C. came around the desk; appellant "got out of her seat," "went towards [P.C.,]" and "grabbed him." According to Mceachern, P.C. spit on appellant and she then spit back at him. Mceachern pulled P.C. away from appellant and took him aside to calm him down. On cross-examination, Mceachern acknowledged that the statement he gave shortly after the incident did not mention appellant spitting on P.C.

Another HSA, Charles Roberts, witnessed part of the incident. Roberts testified that he was outside on a "smoke break" when he heard a noise inside the building. Upon entering the ITU, Roberts observed "the competition between [appellant] and the patient . . . ." P.C. and appellant were "holding on to each other." Mceachern was trying to "hold on to [appellant]."

Roberts "tore P.[C.] off [appellant] and she came after him again and we [were] trying to get them . . . apart." Roberts stated that P.C. was "insulting" appellant and spit on her. "So she came after him." Roberts and Mceachern used "restraint to get her off because both of them were holding each other . . . ."

Caroline Taylor, Assistant Director of Nurses at TPH, testified regarding staff training on approved methods for handling upset patients. Taylor stated that all staff members must participate in annual updates to patient treatment protocols. The protocols require staff to use physical restraint as a last resort after all other efforts have failed. As a general rule, when a patient begins to become aggressive, the staff member should increase the distance between herself and the patient and "stay out of arm's reach." Taylor viewed the DVD and stated that appellant had erred in having made the choice to come through the swinging gate toward P.C. rather than retreating away from him. Taylor stated that appellant could have retreated behind the door to the medication room located at the back of the nurses' station.

Dr. Amir Rizvi, a clinical psychologist at TPH, testified that P.C. suffers from schizophrenia and mood disorder, which the doctor also described as "bipolarism with an intermittent explosive disorder." P.C. has mood swings and occasional hallucinations of people telling him to do bad things. In Dr. Rizvi's professional opinion, P.C. did have the capacity to know right from wrong and to describe accurately what occurred at the time of the incident.

Dolly Corker testified that she was sitting approximately fifteen feet away from the nurses' station when the incident started. She did not hear appellant say anything, but she heard P.C. say he was going to punch appellant in the face. Corker did not recall seeing either P.C. or appellant spit.

P.C. testified that appellant had been laughing at him and he had told her that if she made another comment he would hit her. At that point, according to P.C., appellant came around the nurses' station desk and slammed him into the door. She then grabbed him and threw him on the floor. They began "tussling" and appellant spit on him. Mceachern grabbed him and appellant kept coming toward him. P.C. had not seen the DVD recording. He denied climbing over the nurses' station.

Appellant testified that on September 29, 2005, she was working the 3:00 p.m. to 11:00 p.m. shift in the ITU. While seated near the nurses' station monitoring the men's dormitory, appellant observed P.C. pacing in the corridor. Appellant was acquainted with P.C. and could tell that he was upset. Appellant moved to an area behind the nurses' station to get away from P.C. Appellant was unable to leave the area completely because it was her obligation to remain on duty. Appellant did not call for assistance because she felt that by placing herself behind the nurses' station, P.C. would have difficulty in approaching her.

P.C. continued pacing in the area of the nurses' station. He then looked directly at appellant and called her a name and threatened to "kick her ass." P.C. accused appellant of laughing at him. He then jumped over the nurses' station towards her. Appellant engaged in a physical struggle with P.C. They both fell to the ground. At some point, two co-workers, Dolly Corker and Michael Mceachern, came to her assistance.

Appellant stated that she got up and again went behind the nurses' station. Mceachern released P.C. who then went around the door of the nurses' station and attacked her again.

The ALJ described the events depicted in the DVD as follows:

The video recording (actually a DVD) clearly shows P.C. turning rapidly and within seconds, half over the top of the nurses' station, then just as suddenly getting down, and moving rapidly toward the swinging door of the nurses' station. Ms. Dotts moved to the door of the station, blocking its entrance. The recording shows her approaching P.C., hands out in front of her, moving to grab him. Mr. Mceachern is close behind her, his hand on Ms. Dott[s's] arm. Ms. Dotts came out through the swinging doors, and appears to be trying to get P.C. into a restraining hold. She got an arm around P.C.'s waist, and by grabbing his wrist, she spun P.C. around. Mr. Mceachern had a grasp of P.C. around the shoulder area, then let go. Ms. Dotts, now behind P.C., pulled backward on him, and eventually pulled P.C. to the floor, where he lay face up. Ms. Dotts knelt over him, while Mr. Mceachern remaining [sic] standing, holding one of P.C.'s wrists. P.C. began kicking. After perhaps two minutes of wrestling, Ms. Dotts succeeded in holding both of P.C.'s legs to the floor, while Mr. Mceachhern held both of his arms overhead. At this point, P.C.'s friend came over, and said something to him, which seemed to end the incident. Both Mr. Mceachern and Ms. Dotts let go, and Ms. Dotts returned inside the nurses' station, while P.C. used the desk to get back onto his feet.

P.C. then went after Ms. Dotts a second time, Ms. Dotts again meeting him, arms outstretched and pushing him out of the nurses' station. Mr. Mceachern again joined Ms. Dotts in seeking to restrain P.C. A third staff member, Charles Roberts and a fourth, Dolly Corker, came to assist the first two, and Mr. Roberts inserted himself between Ms. Dotts and P.C. Eventually, Mr. Mceachern is shown holding P.C. using a patient restraint technique, while Ms. Dotts returned to the nurses' station.

The ALJ found that, "[w]ith regard to three of the four charges - verbal abuse, intentional misuse of authority, and violation of policy - respondent has not met its burden." The ALJ then addressed the remaining question of whether appellant's "decision to meet P.C. and try to take physical control of the situation" constituted patient abuse.

After reviewing the testimony and the DVD, the ALJ concluded that the first contact between appellant and P.C. did not constitute abuse, because "[t]he initial threat by P.C. occurred so fast that [appellant] appears to have had a 'fight or flight' response, and feeling herself in extreme jeopardy, moved to meet the attack." The ALJ concluded that this "may not have been ideal conduct, but the intensity of P.C.'s aggressiveness and speed of his movement were undoubtedly very frightening."

However, the ALJ went on to find:

The more problematic behavior occurred on the second attack. By that time, three other staff members were in the general area, and Mr. Mceachern had clearly participated in trying to calm P.C. during the initial attack. Further, Ms. Dotts had time to return to the nurses' station, giving her at least a few seconds to calm herself, to think, and above all, to retreat. The threat was personal -- it was Ms. Dotts, not everyone else that was P.C.'s focus -- and when he moved toward her the second time, she could have fled into the back room, leaving others to address the threat. Instead, she moved forward again, re-engaging the wrestling match.

The Department of Human Services defines "physical abuse" as

"a physical act directed at a client, patient or resident of a type that could tend to cause pain, injury, anguish, and/o[r] suffering. Such acts include but are not limited to the client, patient, or resident being kicked, pinched, beaten, punched[,] slapped, hit, pushed, dragged and/or struck with a thrown or held object."

In this instance, at the second attack, Ms. Dotts['s] action in reaching out to engage P.C., then struggling with him to push him down onto floor, was physical enough and had enough potential for injury to fall within the definition of physical abuse. It was also outside the training, which is that patient restraint is a last-resort tactic. When the second attack came, she had time to retreat and let others seek to calm the patient. I CONCLUDE therefore, that the charge of patient abuse by respondent is SUSTAINED.

TPH has a "zero-tolerance policy" for physical abuse of patients by staff. Pursuant to that policy, the penalty for "[p]hysical or mental abuse of a patient, client, resident or employee" is removal for the first infraction.

The Board adopted the ALJ's recommended decision upholding appellant's removal. The Board viewed the DVD recording of the incident and, although it found merit "in some of [appellant's] exceptions," the Board agreed with the ALJ's determination of the charges and assessment of the penalty.

Regarding the ALJ's finding of physical abuse, the Board stated:

Based on the contents of the video recording and the testimony presented . . ., the Board finds that the ALJ correctly determined that [appellant's] conduct constituted physical abuse of a patient. There is nothing in the testimony or video recording to suggest that [appellant] did anything in an attempt to defuse the situation before it escalated into the physical confrontations depicted on the video recording. Rather, [appellant] met P.C.'s aggressive actions with her own aggressive response.

Regarding the penalty of removal, the Board concluded:

Here, the egregious nature of [appellant's] conduct justifies her removal without regard to her prior disciplinary history. [Appellant] is entrusted with the care of a vulnerable population. Employees in psychiatric institutions are expected to exercise appropriate self-restraint when working with patients who cannot necessarily exercise similar personal restraint due to their conditions. Accordingly, removal is the appropriate penalty.

The Board noted that the ALJ had disregarded appellant's earlier six-month suspension, in 1998, for charges relating to directing racial slurs to other staff members; the ALJ had found this prior suspension to be "not relevant[.]" However, the Board disagreed, noting:

It must be emphasized that a six-month suspension is the harshest penalty that can be imposed, short of removal, and such a long-term suspension placed [appellant] on notice that any further infractions could result in removal. While the charges underlying the six-month suspension involved inappropriate behavior toward fellow staff members, rather than a patient, it is properly considered for the purposes of progressive discipline. Therefore, based on [appellant's] disciplinary history, taken together with the serious nature of her misconduct, the Board finds that removal is appropriate. Accordingly, the Board concludes that the penalty imposed by the appointing authority is neither unduly harsh nor disproportionate to the offense and should be upheld.

Our scope of review in this matter is circumscribed.

Once the agency has issued its final decision, "the Appellate Division's initial review of that decision is a limited one." The scope of review of an administrative decision "is the same as that [for] an appeal in a non-jury case, i.e., 'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility."

[In re Taylor, 158 N.J. 644, 656 (1999) (citations omitted).]

"[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." Id. at 657. We do not substitute our judgment for that of the agency. In re Carter, 191 N.J. 474, 483 (2007).

The ALJ not only heard the witnesses' testimony and observed their demeanor, but also viewed a DVD video recording of the entire incident. The Supreme Court has cautioned us not to "exceed[] the proper scope of review by failing to give appropriate deference to the ALJ's findings of fact and by substituting [our] own assessment of the weight to be accorded to the testimony of the witnesses." Taylor, supra, 158 N.J. at 659. Pursuant to these principles of deference, we conclude that the Board acted "within the bounds of its statutory authority and discretion" in adopting the ALJ's recommended decision. In re License Issued to Zahl, 186 N.J. 341, 354 (2006).

We also conclude that the penalty of removal was appropriate under the circumstances. As noted, the Department of Human Services' "Disciplinary Action Program" mandates the penalty of removal for a first infraction involving "[p]hysical . . . abuse of a patient[.]"

When appropriate, the concept of "progressive discipline" may apply. In re Herrmann, 192 N.J. 19, 30-31 (2007)(citing West New York v. Bock, 38 N.J. 500 (1962)). However, "[i]n serious circumstances, the immediate removal of a classified employee may be appropriate[.]" Thurber v. City of Burlington, 387 N.J. Super. 279, 303 (App. Div. 2006), aff'd, 191 N.J. 487 (2007). Once again, we defer to the agency's discretion in imposing discipline in the manner it deems fit and appropriate to the situation, particularly where, as here, such discipline is expressly authorized by established policy.



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