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Lewis v. Board of Review

February 18, 2010

MELVA LEWIS, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND MARGARET MCLAUGHLIN D/B/A MCCARRICK CARE CENTER, INC., RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 202,831. Melva Lewis, appellant, argued the cause pro se.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 12, 2009

Before Judges C.L. Miniman and Waugh.

Appellant Melva Lewis appeals from final agency action of the Board of Review, Department of Labor (the Board), affirming the decision of the Appeal Tribunal, which concluded that Lewis was disqualified for benefits from August 31 through October 11, 2008, on the ground that she was discharged for misconduct connected with the work. We affirm.

Genevieve Rumore, Director of Nursing for the McCarrick Care Center, Inc., testified that Lewis was hired on September 4, 2007, as a Certified Nursing Assistant (CNA). She was discharged from employment on September 4, 2008, for insubordination in refusing to do a job that her supervisor, Kathy Cerebe, required her to do. The incident occurred on September 2 when Lewis refused to walk a resident to the lunchroom. Lewis stated, "I am not walking that person," and walked away from Cerebe. The resident was a "one assist for transfer and ambulation," presumably meaning that she required one person to assist her. Lewis stated, "Not with me. She is too hard." Cerebe suggested that Lewis ask another CNA for assistance, and Lewis replied, "Not with me. I am not walking her." Cerebe then sent Lewis home, suspending her for insubordination, and notified Rumore of the incident. A phlebotomist from St. Peters University overheard this discussion.

Lewis immediately went to see Rumore rather than leave the facility. Before speaking with her, Rumore learned that Lewis had refused to change her assignment at 7:10 a.m. that day when the nurse on the floor wanted to change the CNA assignments. Lewis told another nursing supervisor that, when she worked in the other assignment, it took her a week to recuperate. Additionally, Rumore learned that on Sunday, August 31, Lewis refused to work the next day on the second floor, where late-stage dementia patients reside, and stated that if the night nursing supervisor did not get someone to switch assignments, she would not work on Monday. Irene Wyochetick, the Assistant Director of Nursing and Employee Health Nurse, told Rumore there was nothing in Lewis's medical file that would prevent her from being able to work full duty.

Rumore then met with Lewis and Wyochetick on September 2 at about 11:15 a.m. Lewis denied refusing to walk the resident in question. She denied threatening to call out sick on Monday if she did not get the assignment she wanted. Lewis complained that when she worked on the second floor, she "aches all over for days afterwards" and that all the staff did so as well. Lewis then begged for her job, saying she needed to pay her bills. Rumore said she needed employees who want to work and told her to go home, saying that she would call her back after speaking with the Administration. On September 3, Rumore gave Lewis an appointment for September 4.

Rumore explained that the CNAs work for the entire nursing facility, not just one floor or the other, and that the employer needed to be able to move employees around the facility as needed. The resident in question weighed 152 pounds and "there is no reason why if she was having a hard time if the person was a one person transfer, that she couldn't have asked somebody else to help her walk the person."

Rumore testified that Lewis had been given prior warnings. In April 2008 she received a verbal warning about failing to give residents baths. On May 8, 2008, she was given a final written warning for insubordination because she had been yelling at Cerebe and the Assistant Director of Nursing after they told her to be quiet in the PEP Program where she had been speaking in a raised voice. That is a program for end-stage dementia patients where the lights are dimmed, the doors are closed, quiet music is played, and soft stimulation, such as hand rubbing, is given to the patients. She had also been criticized in May for failing to comply with facility policy that all staff speak English. Lewis was given a three-day suspension at that time.

Lewis contradicted portions of Rumore's testimony. She denied that she refused to walk the resident. She explained that she needed the assistance of another CNA to get that resi- dent out of bed that morning and into a wheelchair. She was taking her out of her room at 10:10 a.m. when she saw Cerebe and the phlebotomist at the front desk. Cerebe told Lewis that she had to walk the resident and Lewis replied, "no not me Kathy. She gave me a hard way--it took me and Alicia to put her in a chair." Lewis testified that Cerebe said she could get another CNA to help Lewis put the resident in the dining room because "everyone have to be in the dining room by 11:00." She then went to look for another CNA down the other corridors, but everyone was busy and she had to wait. She then assisted another resident and again unsuccessfully looked for help. When her door watch time came, she saw that the resident was no longer where she left her. Lewis claimed the resident was bigger than her and she could not lift her by herself. When she was asked if she reported to Cerebe that she could not find help, Lewis seemingly contradicted herself by testifying, "When I came from each corridor, [Cerebe] was no longer there nor the resident was no longer there." She did not ask anyone where the resident had gone. When Lewis went to the lunchroom, Cerebe told her to punch out, and she was writing her up for insubordination.

Next, Lewis denied that she had received a written warning on May 8. Rather, she claimed, "There was all verbal abuse to me in a room with three people yelling at me about my religion."

She admitted, however, that she was suspended and told to go home. She claimed that she was told, "if your boss tell you to do something, you better jump and you better ask how high." She admitted she was told that she could not pray in another language. She felt her rights were violated, but made no complaints to the Human Resource Department.

Lewis also denied ever saying that she would not work the second floor, although she admitted there was nothing in her file saying that she was not capable of working both floors. She claimed that she never hid that she had a cervical spine and neck injury, but also claimed that she told them when she was hired that she could not lift heavy residents. ...


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