On appeal from a Final Administrative Decision of the Merit System Board, Docket No. 2006-2906.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...