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Title: State of Indiana and Ohio American Federation of State County and Municipal Employees Indiana Council 62
Date: March 14, 2001
Arbitrator: 
N. Eugene Brundige
Citation: 2001 NAC 142

OPINION AND AWARD

In the matter of Arbitration

Between

The State of Indiana, Fort Wayne State Development Center

And

American Federation of State County and Municipal Employees (AFSCME) Indiana Council 62

Regarding

Grievance Number 00-A-82200-067
[Johnathan L. Johnson]

APPEARANCES:
FOR THE STATE:
Alma Burrus, Advocate
Larry Graham, FSSA H.R. 
Beth Hatfield, State Personnel 
Mattie Bradford, witness 
May Chapman, witness
Frank Pannacciulli, witness
Jacqueline Stewart, witness
Robert Gibson, witness
Mike Zeis, witness
FOR THE UNION:
Andrea Helm, Advocate

Sylvia Warrick, Staff Rep.
Pattie Rangel, Pres. Local 615
Dawn Parnin, witness
Katrina Shears, witness
Deb Musing, witness
Valerie Murphy, witness
Johnathan Johnson, grievant

            An arbitration hearing was conducted on February 27, 2001 at the Fort Wayne Developmental Center in Fort Wayne Indiana.  The parties stipulated the issue the Arbitrator was to decide as being: “Was the discipline imposed just?  If not, what shall the remedy be?”

            The parties also stipulated various facts regarding the situation giving rise to this grievance.  Thirteen documents were jointly entered for consideration by the Arbitrator.  In addition to verbal testimony from twelve witnesses and a viewing of the site of the incident giving rise to the grievance, the parties individually entered a total of twenty two documents.  All materials were reviewed and considered by the arbitrator in reaching this decision.

            Both parties were given full opportunity to examine and cross examine witnesses, pose arguments and present their respective cases.  Both sides did so professionally and competently.

            In that this grievance deals with a disciplinary matter, management assumed the burden of proof and presented its case first.

Management Position:

            According to management, supervisor Mattie Bradford entered a room designated as V 37 in the Ginsberg Building, on the evening of April 10, 2000. She indicated that she was in V 30 and heard the client (D.M.) screaming. Several clients and staff members were in the room watching T.V., and other interactions.  Ms. Bradford went around a large cabinet, which was in the middle of the room behind the washer and dryer.  She testified she observed a client (D.M.) lying on her side on the floor and the grievant was standing over her stomping her with his foot.  Her testimony indicated that he was stomping D.M. on the shoulder, arm and face.  She said the grievant was very red in the face and appeared very angry.  She indicated that she had to instruct him three times before he stopped the stomping.  She indicated she got the client up and walked her out of the room.   She indicated that the client had red marks on her face and shoulder.  She went on to say that the client was wearing a long sleeve dress but that she pulled the sleeve up to view the forearm.

            May Chapman, Assistant Administrator testified that she was on duty on the night of April 10 and that she received a call from Mattie Bradford regarding the incident in question.  She testified that she reassigned Mr. Johnson, consistent with procedures, and that she informed security of the report she had received.

            Frank Pannacciulli, Director of Security, explained the process used to investigate possible client abuse.  He identified the Investigative Report in this matter but indicated that he was not personally involved in this investigation beyond the review of the report.  He explained that they have five days in which to complete a client abuse investigation.  He reviewed the report and concluded that this report was completed within the five day window.

            Deborah Musing, Mental Health Administrator, explained that she was Chairperson of the Incident Review Panel.  She described the operation of the panel in reviewing all major incidents that could result in a finding of client abuse.  Ms. Musing introduced the recommendations of the panel.  The panel found the witness (Mattie Bradford) to be extremely convincing and recommended Mr. Johnson’s termination based upon that testimony.  On cross, Ms. Musing acknowledged  that the finding of the panel was an opinion of who was telling the truth.

            The State called Robert Gibson, assistant superintendent of Administration, who has served in the position for the last twenty five years.  Mr. Gibson served as the pre-deprivation hearing officer.  Mr. Gibson explained that he decided on termination based upon the eye witness testimony of Mattie Bradford.  When asked about the role of prior discipline he said that he had reviewed it, but that in abuse cases the discipline tends to “stand alone” because of the severity of  the charge.  Mr. Gibson noted  “abuse stands on its own.”

            Dennis Shackley, QMRP, testified regarding the diagnosis of client D.M.

            Michael Zeis, Human Resources Director for the Developmental Center, testified regarding the training each employee receives regarding client abuse and how to handle client behaviors.  Mr. Zeis noted that “client abuse is “our most serious infraction of our rules.”  He explained why this is so important in the institutional setting.  He noted the policies that govern client abuse and neglect:  Those listed were:  State Law, DDAR documents, ICFMR Standards.

            Mr. Zeis noted that the employee handbook contains information on abuse and its penalty.  The state provided evidence that Mr. Johnson has received a copy of the Fort Wayne Employee Handbook.

            Mr. Zeis talked about the Federal and State requirements that tie Medicaid funds to assuring there is no client abuse.  Mr. Zeis testified that the Department of Justice has determined that the State of Indiana was not insuring the civil rights of the clients. 

            When asked “Is there any other course of action for client abuse other than termination?” the answer was “No.”

            In summary, the State based its action on the eye witness testimony of supervisor Mattie Bradford.  She testified that she saw Johnathan Johnson stomp client D.M. on the face, shoulder and arm.  This action constitutes client abuse and the only appropriate penalty for client abuse is termination.

UNION POSITION:

            The Union asserts that the supervisor’s testimony is not factual.  They assert that the grievant was in V 37 using the telephone.  Client D.M. was in the room assigned to a close observation by staff.  She started to engage in a “behavior” wherein she approached the snack island.  The grievant attempted to assist in managing D.M. when she hit him.  The client threw herself on the floor and proceeded to bite the grievant on the leg.  He was attempting to pull his leg free when the supervisor entered the room. 

            The Union called Katrina Shears and Dawn Parnin who were two of the other staff persons in V 37 when the incident took place.  Both testified that the Grievant did not stomp client D.M. and that she attempted to bite the grievant.  They also testified that other clients started to enter into behaviors when this situation escalated and that the room was somewhat chaotic.

            The union called Valerie Murphy who testified that she had previously supervised the grievant and that he was a good employee. 

            The Union called Jacqueline Stewart, Registered Nurse, who was the nurse on duty the night of April 10.  She testified that she examined client D.M. some time after the incident in question and that she found no new injuries and no injuries that would be consistent with stomping.  She also testified that she examined the grievant and that she did not find any bite marks on him.

            Mr. Johnson testified on his own behalf.  He indicated that he was in V 37 for the purpose of using the phone when client D.M. proceeded into a “behavior.”  He attempted to assist in calming her down.  She hit him and then threw herself onto the floor.  She grabbed his leg and proceeded to bite him on the leg.  He tried to free his leg.  He stated that  “I was pretty mad.”  He adamantly denies that he stomped the client.

            The union points out that the grievant has received satisfactory or above performance evaluations and further offered two letters of commendation regarding the grievant’s work.

            The union argued that greater weight should be given to the statements of the staff members and clients in the room all of whom indicate that the grievant did not stomp client D.M.

            The Union concludes that there is no proof of client abuse and therefore asks that the grievance be granted.

DISCUSSION:

            Client abuse is an extremely serious infraction.  Mr. Gibson and Mr. Zeis are both correct in noting that an institution cannot tolerate client abuse for any of the myriad of reasons noted.  Substantiated (proven) client abuse can only lead to termination from employment.  This arbitrator holds to the same view.  Therefore if the state is able to prove its allegation of client abuse there can be no question about the appropriate penalty.

            The question before the arbitrator then is, “Did the state prove the allegation of client abuse?”

            The state depends totally on the testimony of supervisor Mattie Bradford.  The Review Panel and the Assistant Superintendent found her testimony to be very compelling and believable.

            One of the difficult tasks of any reviewer is assessing the credibility of each witness.  This neutral does has the advantage of not knowing any of the persons involved.  Thus my unbiased hearing of the witnesses does not leave me with the same clarity the administration felt in accepting the testimony of Ms. Bradford and rejecting the testimony of the other witnesses.  If I am to believe the totality of the testimony offered by Ms. Bradford, she was in another room, there were 12-15 people in V 37, and yet she was able to hear and recognize the screams of a specific client (D.M.)  She entered the room and was the only person to see stomping taking place.  She further stated that she saw marks on D.M. but she did not add those comments to her statement until April 20 (The same day the Nurse amended her statement reiterating that she did not find any new injuries, and the same day the panel interviewed Ms. Bradford and Mr. Johnson.)  I cannot give full consideration to a statement that is added ten days after the incident.  Ms. Bradford states she told the grievant to stop at least three times and yet no other witness heard that exchange.

            The troublesome part of this matter is that there is no evidence to collaborate any part of Ms. Bradford’s testimony.  Stomping is a violent act.  Surely it would leave significant marks on the client.  Yet only Ms. Bradford saw such marks and when the nurse (a medical professional) examined the client an hour later she found no new injuries.

            To believe Ms. Bradford’s version of this incident requires one to also believe that all other persons in the room did not observe this violent act taking place or that they all lied to protect their co-worker.

            This arbitrator has known lots of direct care state workers and has found most of them to be caring, compassionate people who work hard to assure the safety of the persons in their charge.  It is very difficult for me to believe that the other persons in the room would intentionally withhold information regarding a violent attack on a client.

            Rather this fact finder believes that Ms. Bradford may have reported on what she thought she saw.  She entered V 37 to find out what happened to client D.M.  When she saw the grievant rapidly raising and lowering his foot and shouting, she may very possibly have thought that she was observing client abuse. 

            In order for this incident to rise to the level of substantiated client abuse, contact must have been made between Mr. Johnson’s foot and some part or parts of client D.M.’s body.

            Very little can be discerned by the client statements in that without seeing the individuals the arbitrator has no opportunity to determine the ability of the residents to recall or report actions.

            Even though the information in the client reports is given very little weight, it does buttress the union’s position to note that none of the clients remembered seeing the grievant stomping client D.M. but several recall the behavior of D.M.  It is reasonable to assume that some of the clients would have recalled a violent act like stomping a client.

            The Settlement Agreement between AFSCME and the State of Indiana for the period of July 1, 1997 through June 30, 2001 in Article 26, (page 40) notes that the State can impose disciplinary action only for “just cause.”

            This short statement carries significant meaning.  Arbitrators in the last several decades have come to recognize seven tests in deciding if just cause exists to support disciplinary action.  The seven tests include:

1.    Was the employee forewarned?  The documents and training materials all indicate that persons who work for the Fort Wayne Developmental Center are clearly on notice that client abuse is a termination offense.

2.    Was there an investigation?  Clearly standard procedure was followed in reporting the incident and conducting an investigation.  There is a question in this arbitrators mind regarding why, when the eyewitness statements are so dramatically different, there weren’t additional interviews with all eye witnesses rather than just taking the word of the supervisor.

3.    Was the decision maker fair and impartial?  All evidence presented to this arbitrator would indicate that Mr. Gibson intended and made an effort to be fair and impartial.

4.    Does the penalty fit the offense?  As discussed earlier, termination is an appropriate penalty for substantiated client abuse regardless of prior disciplinary history.

5.    Did the employer prove its case?  This arbitrator does not believe so.

6.    Were other employees guilty of the same offense treated similarly?  While this arbitrator did not receive evidence directly on this point, all information would indicate that anyone guilty of client abuse would be terminated.

7.    Is the rule fair?  As Mr. Zeis so competently stated, the clients and their families have every right to expect the enforcement of such a rule and standard.

So in the analysis of the instant case, the state does well regarding the seven tests except that the employer must be able to prove its case against the grievant. 

            By a sheer weight of evidence analysis the state has failed to meet this test of just cause. 

The state has failed to prove client abuse.

            The state has proven however that the grievant did not behave properly in this situation.  By the testimony of all witnesses including the grievant, he shouted, he lost his temper and he vigorously attempted to get his leg out of the grasp of the client.

            The grievant would have me to believe that the client bit him.  I doubt that.  Just as D.M. would have had marks if she had been stomped, the grievant would have had marks had he been bitten.  The nurse testified that he did not.  Instead, I believe the client grabbed the pant leg of the grievant and held on.  She may have tried to bite him but mainly she was just being tenacious in holding onto his leg.  He over reacted.  A review of the Fort Wayne Personnel Rules and Regulations would indicate to this arbitrator that the state did prove the grievant violated Rule No. 32. Conduct unbecoming a state employee –gross moral infractions including conviction of a felony and professional dereliction; directing verbal abuse or disparaging comments towards your supervisor; failure to do assigned duties in a competent manner.”  

            According to the progressive discipline grid the appropriate penalty for the first offense can be anywhere from a reprimand to discharge.

            There is no question in the mind of this arbitrator that the behavior of the grievant put the clients and staff in V 37 at risk.  His failure to manage his temper and to better control the situation was a serious infraction of rules.

DECISION:

            The grievance is granted in part and denied in part.  The state failed to prove “client abuse.”  The state did prove the grievant guilty of Conduct unbecoming a state employee.

REMEDY:

1.    Grievant  Johnathan Johnson is to be reinstated to a direct care position on the 3-11:30 shift.  Any reference to his termination shall be removed from his personnel file.

2.    Grievant Johnathan Johnson’s record shall indicate that he served the thirty (30) day suspension that he previously received for violation of Work rule 32 “Conduct unbecoming a state employee”

3.    Grievant Johnathan Johnson shall be reinstated with back pay except for the thirty days of the suspension minus any interim earnings. 

4.    The grievant shall receive any pay raises to which he would have been entitled if he had been in continuous service.

5.    The grievant shall be credited for any leaves or benefits he would have received during the period of his absence.

6.    Grant Johnathan Johnson’s seniority shall be reinstated as though he had not been terminated.

7.    The grievant will cooperate with FWDC Administration should they determine he should attend training in anger control or client care.

It is so ordered at London, Ohio this 14th. Day of March, 2001.

N. Eugene Brundige, Arbitrator

 

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