Title: Kindred Nursing Centers East, LLC, d.b.a.
Rehabilitation Center of the Palm Beaches and Unite!
OPINION AND AWARD
FOR THE EMPLOYER:
Edward J. Goddard
FOR THE UNION:
Osnat Rind and Lynn Overmann
STATEMENT OF THE CASE
The Rehabilitation Center of the Palm Beaches (“Employer”) and Unite! 2000 (“Union”) are parties to a collective bargaining agreement which became effective November 6, 2000, and continues to November 30, 2002. The Agreement governs the wages, hours, and other terms and conditions of employment of members of the bargaining unit. It also provides for a grievance procedure culminating in final and binding arbitration as the mechanism to be used to resolve any disputes concerning the interpretation or application of its terms.
At issue in this case is a grievance which was filed by the Union on June 21, 2001, protesting the Employer’s decision to discharge the grievant, Cadeaucia Mirtil for physically abusing a resident at the Rehabilitation Center. It is the union’s position that the Employer did not have just cause to take any action against the grievant because she is completely innocent of any wrongdoing. As a remedy the Union requests that the grievant be reinstated and made whole for lost earnings and other benefits.
When the parties were unable to resolve the issues in dispute through the grievance procedure the matter was submitted to arbitration. Following the selection of the undersigned as arbitrator from a panel provided by the Federal Mediation and Conciliation Service a hearing was conducted at West Palm Beach, Florida, on June 20, 2002. In the course of the hearing both parties were afforded ample opportunity to present evidence and to cross examine witnesses called by the opposing party. Upon receipt of post-hearing briefs the record was closed pending the issuance of this opinion and award.
Has the Employer proved by a preponderance of the evidence that it had just cause to discharge the grievant? If not, what should be the remedy?
501 MANAGEMENT RIGHTS: Except as expressly modified or restricted by a specific provision of this Agreement, all statutory and inherent managerial rights, prerogatives, and functions are retained and vested exclusively in the Employer, including, but not limited to, the rights, in accordance with its sole and exclusive judgment and discretion; to counsel, suspend, discharge, or otherwise discipline employees for just cause…
ARTICLE IX – DISCIPLINE & DISCHARGE
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902 The Employer shall have the right to discharge or assess disciplinary action against any employee for just cause.
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905 An employee shall not remain on an investigatory suspension for more than three (3) calendar days without the written agreement of the Union. In situations where the Employer is investigated alleged dishonesty, insubordination, insobriety, willful negligence, recklessness, verbal or physical patient abuse, violation of patient rights, or any incident involving a patient complaint or injury an investigatory suspension shall not exceed fifteen (15) days due to the Employer’s investigation.
907 Employees who are discharged for incompetency or failure to perform work as required shall have had at least one (1) prior verbal warning and one (1) written warning in their file of such incompetency or failure to perform work as required. Employees who receive written warning notices may sign such written warning notices, but such signing shall in no way constitute agreement with the contents of the written warning notice. For disciplinary purposes (progressive or otherwise), the Employer cannot use or rely upon any performance conferences or disciplinary notices in the employee’s personnel file which have not been previously offered or supplied to the employee. All warnings and disciplinary forms in an employee’s file shall not be considered after twelve (12) months of corrected behavior if the employee has not committed another infraction during those twelve months.
908 Discharge Without Warning
909 The foregoing does not limit the Employer’s right to discharge without warning any employee for proven dishonesty, insubordination, insobriety, willful negligence, verbal or physical patient abuse, or violation of patient rights.
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911 In cases before an Arbitrator where an employee has been discharged pursuant to Section 909 or 910, the Employer must prove that it had just cause to discharge the employee by a preponderance of the evidence.
1103 Arbitrator’s Jurisdiction
1104 The jurisdiction and authority of the arbitrator and his/her opinion and award shall be confined exclusively to the interpretation and/or application of the provisions of this Agreement at issue between the Union and the Employer. S/he shall have no authority to add to, detract from, alter, amend, or modify any terms or [sic] this Agreement; or to impose on either party a limitation or obligation not provided for in this Agreement. The arbitrator shall not hear or decide more than one (1) grievance without the mutual written consent of the Employer and the Union. Decisions by the arbitrator shall be rendered within thirty (30) calendar days of the final presentation of evidence or briefs; extensions will only be by mutual agreement of the parties. The written award of the arbitrator on the merits of any grievance adjudicated within his jurisdiction and authority shall be final and binding on the aggrieved employee(s), the Union and the Employer.
SUMMARY OF THE EVIDENCE
The grievant, Cadeaucia Mirtil, was employed by the Rehabilitation Center from March 8, 1994, to June 21, 2001, when she was discharged for the alleged physical abuse of a patient. During her employment she was consistently scored as at least satisfactory, and often above average, on her annual performance evaluations. In several of her evaluations she was commended for attending to the needs of the residents and providing excellent patient care.
The events that led to the grievant’s termination occurred on the late afternoon or early evening of Sunday, March 4, 2001, and they involved the alleged physical abuse of a resident, Averdis Hester. Ms. Hester was a resident at the Rehab Center for a period of approximately thirteen days in late February and early March, 2001, for rehabilitation for injuries she suffered as a result of a fall. Her injuries included six broken ribs, a dislocated shoulder, and four dislocated toes and one dislocated finger. She also suffered from rheumatoid arthritis, osteoporosis, a broken back, and a broken left arm. However, she had no cast, braces, or bindings to indicate the extent of her injuries to the naked eye.
Ms. Hester, who is seventy-one years of age, completed the eleventh grade and appeared articulate and alert. She currently resides alone at a senior complex but receives some limited assistance several hours per week.
Ms. Hester’s testimony focused on an incident involving one of the certified nursing assistants (CNAs) that occurred at the Rehab Center one afternoon on March 4, 2001. She testified that after she called for assistance in going to the restroom, a CNA came in and began to reach for her to help her get out of bed, but she told the person she could do get up by herself. After waiting a short period of time the CNA reached behind her neck and began pulling her from the center of the bed to the edge. Because of her pre-existing injuries this caused her great pain and she screamed out “no, no,” after which the CNA immediately stopped pulling. Ms. Hester testified that other CNAs who she had called for similar assistance had raised the head of her bed and allowed her to swing her legs over the side.
Ms. Hester testified that she called a friend and told her about the incident later that day and told her that she wanted to go home. Her friend picked her up the next day and she left the facility, despite the fact that she had not been released by her physician.
Later that day Ms. Hester was called by one of the nurses at the Rehabilitation Center and asked why she had left. After she told the nurse about the incident involving the CNA, an investigator from the Department of Children and Families (DCF) questioned her and she gave her the same story regarding the incident where she was grabbed behind the neck. She then gave the same information to the administrator of the Rehabilitation Center, Grace Achille, and told her that someone had pulled her out of bed by her neck, causing her pain.
At the conclusion of her direct testimony Ms. Hester was asked to identify the person who had caused her pain. After looking toward the grievant she stated that she could not swear that the grievant was that person because she “looks different” from the CNA who pulled her.
When questioned regarding the time of the incident Ms. Hester testified that she believed that it was around 6:30 p.m., and that it was before dinner was served, but could not recall the exact time. She further testified that she had a number of people assisting her during the time she was in the Rehabilitation Center, but had never seen the person who had caused her pain before that time. She described her as a short person who was wearing a wig, but could not remember anything else distinctive.
When questioned as to the details regarding the incident Ms. Hester testified that it occurred when she was getting out of her bed to get into a wheelchair to go to the bathroom. When the CNA arrived to assist her she told her that she could get to the edge of the bed on her own. The CNA did not say anything, but after thirty to sixty seconds she took her right hand and put it behind Ms. Hester’s neck as she was trying to sit up and pulled her to the side of the twin bed. When Ms. Hester felt pain and said “no, no” the CNA immediately turned and let go of her. She then stood by while Ms. Hester sat there crying. She then held her arm and assisted her in getting out of the bed and into the wheelchair and took her to use the toilet before helping her back into bed. Ms. Hester admitted that everything went smoothly after the pulling incident and acknowledged that the CNA did nothing further to cause her any pain.
Ms. Hester admittedly did not call a nurse to report the incident and did not report it to the nurse who handed out pain medications that evening. Moreover, she did not report the incident to anyone in management or to the police.
Ms. Hester further testified that the CNA who caused her pain did not say anything to her, nor did she say anything to that person. In addition, the CNA did not yell at her or seem to be angry or impatient. Moreover, she had no knowledge as to whether the person had intended to hurt her.
Grace Achille had been the Administrator at the Rehabilitation Center for about eighteen months at the time the incident in question occurred. She testified that following the incident the DCF came in and did a complete investigation, in which the Social Services Director participated. She testified that when she spoke with the state investigator she was told that Ms. Hester had reported that a CNA had grabbed her behind the neck and pulled her, causing her pain.
In the report written by the DCF investigator not once, but twice, the investigator wrote that her investigation revealed that the incident happened on the 7:00 a.m. to 7:00 p.m. shift. This is entirely consistent with Ms. Hester’s testimony that the incident happened in the afternoon, before dinner was served.
Achille testified that when she spoke with Ms. Hester by speaker phone and asked why she had left the Rehabilitation Center she stated that it was because she was frightened by what happened the previous day when the CNA grabbed her by the neck. Achille testified that during a subsequent investigation she determined that the grievant was the CNA who was assigned to Ms. Hester at the time the incident occurred. She based that determination on the fact that the grievant was working the 7:00 p.m. to 7:00 a.m. shift and that the incident occurred around 7:00 p.m.
Achille testified that after she made that determination she called the grievant and asked what had happened the previous evening. According to Achille, the grievant told her that it had been a very uneventful night and that she did not have any problems with Ms. Hester. She also told Achille that she did not have a specific recollection of assisting Ms. Hester in going to the bathroom.
Achille testified that her investigation established that the incident occurred after 7:00 p.m., which would have been after suppertime. She further testified that in the course of the investigation the grievant provided her with a written statement that showed that her first contact with Ms. Hester was at 8:30 p.m., when she helped her get ready for bed, and that she checked her periodically thereafter. Although the statement does not mention helping Ms. Hester go to the bathroom, Achille testified that the grievant told her that she “thought” she may have helped Ms. Hester go to the bathroom.
Achille testified that following her investigation she made a decision to discharge the grievant. She stated that it was a very difficult one because it involved a “she said, she said” scenario. She explained, however, that in her position of administrator she must play the role of a patient advocate. Since Ms. Hester was fully alert and oriented and had no reason to lie, she credited her story that she had been abused by a CNA and she determined from the timing of events that the grievant was the abuser.
Achille suspended the grievant on March 7, 2002, and told her that she would be informed of the outcome of the investigation. At the arbitration, Achille claimed that she terminated the grievant sometime in April. Achille could not remember the date that she terminated the grievant, nor did she have any documentation of the termination. She did not claim that she told the grievant of the termination, only that it occurred in April. The grievant testified that she was first informed that she was terminated in a meeting that took place on June 21, 2001.
On cross examination Achille admitted that she had heard Ms. Hester testify that the incident occurred in the afternoon before dinner. Given that testimony, she could not explain how she had reached a different conclusion, namely that it had happened after 7:00 p.m., which would have been after dinner time. Achille likewise could not explain how the investigator from the DCF had determined that the incident had occurred during the 7:00 p.m. to 7:00 a.m. shift.
After being reminded that the state statute defines elderly patient abuse as a willful act which causes significant impairment, Achille stated that in her opinion the rough handling of Ms. Hester by the grievant constituted abuse. However, she was aware that Ms. Hester was in a very fragile condition and suffering from various injuries and could be susceptible to extreme pain with only slight touching. Achille also acknowledged that if causing pain is not intentional it is not abuse; that Ms. Hester had testified she had no knowledge as to whether the grabbing of her neck and causing pain was intentional; and, that Ms. Hester was never asked to come in and identify the person who had caused her pain.
The grievant testified that she was scheduled to work the 7:00 p.m. to 7:00 a.m. shift on Sunday, March 4, 2002, but that she had clocked in at around 7:24 p.m. because she was late for work. She testified that although she ordinarily worked the 400 wing, she was assigned to the 300 wing that night, which was an area in which she was not familiar with the residents. When she arrived at the wing she was not told anything about Ms. Hester’s condition. She stated that she provided assistance to Ms. Hester at various times throughout the evening, but never helped her off of the bed and onto a wheelchair to go to the toilet.
The grievant testified that when Ms. Hester was ready for bed at about 8:30 p.m. she helped her put on a diaper and nightgown and also raised the bed up and helped her take off her shirt. While she was providing that assistance Ms. Hester did not say that she had done anything to hurt her. She then gave her the hospital nightgown and tied it at the back, but never touched her neck or pulled her forward. She testified that after she helped Ms. Hester get ready for bed she checked on her every hour or so throughout the night. She last saw her at about 6:00 a.m. when she removed her diaper. She stated that Ms. Hester never complained, cried, or screamed “no, no” in her presence.
The grievant testified that a few days later she was called in to see the Administrator and the Assistant Director Nurses and was told that she had been accused of grabbing Ms. Hester by the neck. She responded that she knew nothing about the incident and she denied engaging in any abuse. She also provided a written statement to that effect. She was subsequently suspended pending an investigation and discharged a few months later.
The grievant testified that when she arrived at work on the evening in question she spoke briefly with her counterpart on the day shift, Marysa Mathieu, who was coming off duty. She stated that Mathieu also used to wear a hairpiece and is a black Haitian like her and most of the other CNAs.
The parties are in agreement that the issue to be resolved herein is whether the Employer had just cause to terminate the employment of the grievant. Indeed, the collective bargaining agreement between the parties imposes an explicit just cause limitation on the Employer’s authority to discharge an employee. Although the term “just cause” is not defined in the collective bargaining agreement, its meaning has been well established by arbitral precedent.
As traditionally explained by arbitrators, the concept of just cause involves three basic tenets. The first requires a determination with regard to whether the Employer has carried its burden of proving that the grievant is in fact guilty of the misconduct of which he or she is accused. Absent an affirmative finding in that regard a discharge obviously cannot be upheld.
Assuming that the issue of guilt is decided in the affirmative, the focus of the inquiry then shifts to the question of whether the misconduct, either standing alone or in combination with other proven offenses, is sufficient egregious to warrant a penalty as extreme and as final as discharge. In that regard it is generally understood that certain types of offenses are so reprehensible that they are inherently grounds for discharge, while other offenses of a less serious nature call for progressive discipline before the discharge penalty can properly be imposed.
The third element of just cause requires a determination with regard to whether discharge is a just or fair penalty for this particular employee in the light of any mitigating circumstances or aggravating factors which may be reflected by the record as a whole. In making that determination arbitrators generally adhere to the principle that where proof of misconduct has been established the decision as to the appropriate penalty lies in the discretion of Management and should not be disturbed in the absence of compelling evidence that such discretion has been abused.
In addition to the standards set out and described above, the concept of just cause encompasses a number of procedural requirements. For example, it requires that a good faith attempt has been made to thoroughly and fairly investigate the events in question. It includes an opportunity for the grievant or his representative to confront and critique the evidence relied upon by the Employer. It requires the Employer to consider the sufficiency of its evidence in light of the grievant’s arguments and his or her exculpatory evidence. And finally, just cause requires the imposition of a penalty commensurate with the seriousness of the violation and that like penalties be assessed for like offenses.
Prior to analyzing the evidence pertaining to the grievant’s culpability, two additional preliminary matters must be addressed. The first concerns the quantum of proof the Employer must provide in order to meet its burden of proving the charge it has lodged against the grievant. In most cases involving discharge, because of the severity of the penalty and the financial impact it can have on the grievant and his or her family, arbitrators require a high standard of proof, such as “clear and convincing” evidence. And in some cases, especially where the grievant is charged with an offense that also involves an element of moral turpitude, arbitrators apply the criminal law standard of proof beyond a reasonable doubt. In this case, the arbitrator is precluded of applying either of these standards by the language set out in Article 911, which provides that the Employer need only meet the lowest standard of proof – i.e., by a preponderance of the evidence- in arbitration proceedings involving discharge for certain offenses, including patient abuse. Under this standard the Employer need only to establish by the weight of credible evidence that it is more likely than not that the grievant physically abused Ms. Hester.
The second preliminary issue concerns the Employer’s objection to my refusal to allow the introduction of the grievant’s disciplinary file because it involved documentation of incidents that occurred more than a year prior to the incident in question. Although the Employer persists in maintaining that my ruling was based on a misinterpretation of Article 907 of the collective bargaining agreement, no interpretation was even required. Since the language of the Article is clear and unambiguous, it must be applied as written. Thus, the fact that the grievant had an unblemished disciplinary record for twelve or more months prior to the patient abuse incident precluded the Employer from even considering prior disciplinary action when the decision to terminate the grievant was made, let alone using it to bolster its case in arbitration. I hasten to point out, however, that the fact that it was not admitted in evidence is of no real consequence in the present case because there is no dispute concerning the fact that the offense of patient abuse of which the grievant is accused, if proven, is inherently grounds for discharge for a first offense. Accordingly, the question of whether the grievant had a good work record or a poor one is largely irrelevant.
As the Employer aptly noted, resident abuse is the most sinister of all evils that can occur in a care center. Since elderly and disabled individuals residing in nursing homes are highly vulnerable, the central mission of the facility must be to care for and to protect them. Because resident abuse offends the Care Center’s mission and constitutes extremely reprehensible behavior, discharge is warranted whenever such an offense occurs. Any other result invites future resident abuse and jeopardizes the facility’s reputation in the community, neither of which is tolerable. Thus, if the charge against the grievant is proven to be well founded, the arbitrator would have no choice but to sustain the discharge.
Turning next to the question of guilt, in order to prove that the grievant committed resident’s abuse, the Employer must bear the burden of proving that 1) the resident was actually the victim of “abuse;” and, 2) the grievant is the person who committed the abuse. In addition, the Employer must demonstrate that it protected the grievant’s due process rights by conducting a complete and thorough investigation into the allegation of resident abuse on the part of the grievant, including consideration of exculpatory evidence. Based on a number of considerations I have concluded that the Employer has not met its burden of proof in this case.
First of all, there is no credible evidence to support a finding that the resident was abused. The term “abuse” is defined in Section 415.102(1) of the Florida Statutes as “any willful act or threatened act that causes or is likely to cause significant impairment to a vulnerable adult’s physical, mental, or emotional health.” Here, the testimony of the victim, Ms. Hester, revealed that the actions of a CNA caused her severe pain, but there is no evidence that the CNA’s actions were willful and intended to cause injury. Indeed, only the opposite conclusion can be drawn from the evidence.
In that regard Ms. Hester testified that the CNA did not seem angry and that there had been no words exchanged. In addition, she failed to provide any reason why a CNA would intentionally harm her. Moreover, her testimony made it clear that she was trying to get from the middle of the bed to the edge and was having trouble sitting up and that after waiting thirty to sixty seconds the CAN simply reached behind Ms. Hester to help her up by pulling on her neck. Significantly, when Ms. Hester began screaming, “no, no,” the CNA immediately released Ms. Hester’s neck and did nothing further to hurt her. If the CNA had intended to hurt Ms. Hester her cries would have been futile and the rough treatment would have continued throughout the process of assisting Ms. Hester to the bathroom and back to bed. Thus, the only proper conclusion that can be drawn is that the CNA’s actions were accidental, not willful.
It is also important to note that there was nothing in Ms. Hester’s appearance that would have forewarned the CNA that Ms. Hester might have been extra sensitive to her normal actions. She had no cast, brace, or bindings to indicate the extent of her injuries, and CNAs were not routinely told of the exact nature of a resident’s injuries. Consequently, the CNA who helped Ms. Hester to the bathroom had no reason to know that a simple, routine action like a slight pull on the neck, would cause Ms. Hester a disproportionate amount of pain.
Second, there is no evidence that a pull on Ms. Hester’s neck caused her “significant impairment.” The pulling no doubt hurt Ms. Hester for a moment, but she did not complain of it to anyone and she did not indicate that she ever visited the doctor to make sure that the pulling had not caused her to be injured. In addition, the fact that the very next day Ms. Hester got herself up, dressed, left the facility, and went home to care for herself, against her doctor’s order, belie any claim that she was significantly impaired. Moreover, the fact that she stayed home from the time that she left the rehab center clearly demonstrates that she was not in need of any further residential rehabilitation as a result of either her original fall or the pulling on the neck by the CNA. Most telling of all is the fact that Ms. Hester allowed the grievant to attend to her for the rest of the night without objection. This lack of objection suggests that either 1) the resident did not really believe that she had been abused by the grievant because the actions of the CNA were unintentional, or 2) that the grievant was not the CNA who allegedly abused her.
Third, the Employer has not carried its burden of proving by a preponderance of the evidence that the grievant is the CNA who pulled on Ms. Hester’s neck and caused her to complain of abuse. To begin with, there was no direct evidence whatsoever that the grievant was the CNA on duty when the incident occurred. In fact, all of the evidence points in the other direction – that the grievant was not the CNA who hurt Ms. Hester. To begin with, Ms. Hester could not identify the grievant as the CNA, even at the prompting of the Employer’s counsel, and even while sitting a few feet away from her at the hearing. In addition, Ms. Hester’s actions after the alleged incident tend to belie the assertion that the grievant was the CNA who pulled her neck. Ms. Hester did not report the incident to anyone that day, including the nurse who gave her medications, nor did she report it the following day. Moreover, the grievant was the CNA responsible for Ms. Hester’s care for a full twelve hours, during which Ms. Hester never requested another CNA, and allowed the grievant assist her in changing her clothes and putting on a diaper. Those are hardly the actions of a patient who had been abused by the grievant.
Finally, as previously noted, in order to establish just cause for discharge the Employer is obligated to conduct a thorough and meaningful investigation of the charges involved. Given her eight years of satisfactory performance at the rehab center the grievant was especially entitled to a thorough investigation. Several aspects of the evidence of this case strongly suggest that the Employer failed to satisfy that obligation. Indeed, the investigation that Ms. Achille did conduct was perfunctory at best and slipshod at worst. To begin with, Ms. Achille came to the conclusion that the offense occurred on the night (7:00 p.m. to 7:00 a.m.) shift that the grievant was working based on her assumption that it occurred after suppertime. Yet, Ms. Achille never checked with the kitchen or the day duty CNAs to see what time dinner was prepared and served. Moreover, her assumption as to the time was contradicted by the victim herself, who testified that it occurred before suppertime, which places the incident on the day (7:00 a.m. to 7:00 p.m.) shift.
In addition, Ms. Achille did not contact Ms. Hester after the phone conference of March 7, 2001, with the DCF worker to obtain more details about the CNA’s identity, nor did she arrange for her to come to the facility and point out the CNA who had hurt her, which obviously would have been the simplest and most conclusive way of establishing who was at fault. Based on her willingness to appear at the arbitration more than a year after the incident, it is evident that Ms. Hester would have been willing to cooperate in the investigation. Furthermore, by failing to follow up with the DCF investigator and obtain a copy of her report, Ms. Achille denied the grievant the opportunity to benefit from some highly important exculpatory evidence regarding the time that the incident occurred. The DCF report, which was based on information obtained from Ms. Hester just two days after the incident, states in both the narrative and investigative summary that the incident occurred during the 7:00 a.m. to 7:00 p.m. shift. If that report had been obtained and reviewed by Ms. Achille, it would have given her cause to reassess the situation and conduct a further investigation to be certain whether or not the incident did in fact occur on the grievant’s shift. Since she failed to do so a serious uncertainty remains that is fatal to the Employer’s case.
Having determined that the discharge of the grievant was not for just cause, the only remaining issue concerns the appropriate remedy. Since the discharge was without any justification and was based on a flawed and incomplete investigation, the proper remedy is to immediately reinstate the grievant with full back pay and benefits offset by any earnings the grievant may have received in the interim. Jurisdiction will be retained for the purpose of resolving any dispute which may arise concerning the implementation of the award.
In accordance with the foregoing opinion and for the reasons set forth therein, the grievance is sustained.
Stanley H. Sergent
August 16, 2002
August 16, 2002
Edward J. Goddard
Osnat Rind and Lynn Overmann
FMCS No. 02-03094
Enclosed herewith are two copies of my Opinion and Award in the above-captioned dispute. Also enclosed is my statement for services rendered and expenses incurred in this regard. It has been a pleasure to assist you in this matter and I will look forward to the opportunity to be of service in the future.
Please advise me as to whether or not you consent to publication of the award. If you decline to respond to this inquiry within the next thirty (30) days, I will assume that you have no objection.
Very truly yours,
Stanley H. Sergent
August 16, 2002
Edward J. Goddard
Osnat Rind and Lynn Overmann
FMCS No. 02-03094
(Taxpayer Identification Number - 65-0264789)
Please remit payment to Stanley H. Sergent at the Sarasota, Florida, office
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028