Essman v. Neb. Dep't of Health & Human Servs.
| Decision Date | 10 November 2014 |
| Docket Number | No. A-13-840.,A-13-840. |
| Parties | RAYNETTE ESSMAN, APPELLANT, v. NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES, APPELLEE. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed.
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and John L. Jelkin for appellee.
Raynette Essman appeals from an order of the district court for Lancaster County affirming the decision of the Nebraska State Personnel Board (the Board) to terminate her employment with the Nebraska Department of Health and Human Services (the Department). Essman worked at the Beatrice State Developmental Center (BSDC), and her employment was terminated after she failed to timely report an incident of possible abuse. She argues that the Department was not justified in imposing discipline and that termination was an excessive disciplinary sanction. Based on the reasons that follow, we affirm.
BSDC is an intermediate care facility for persons with developmental disabilities. The facility serves approximately 130 individuals with a wide range of disabilities, all residing at BSDC. Residents at BSDC are vulnerable and often unable to recognize or report abuse themselves.
BSDC operates with federal funding from the Center for Medicare/Medicaid Services (CMS). BSDC has experienced penalties in the past from CMS for not taking sufficient corrective action when addressing alleged abuse/neglect, resulting in significant loss of federal funding. Consequently, BSDC has adopted an abuse/neglect policy providing for zero tolerance of client abuse/neglect and zero tolerance of failures to report possible abuse/neglect of BSDC clients.
Under BSDC policy, all incidents either perceived or known to reflect abuse or neglect are to be identified. BSDC staff are required to intervene when observing or suspecting abuse or neglect and to immediately report any observed or suspected abuse/neglect to a shift supervisor, or if the staff member wants to report anonymously, reports can be made to the BSDC switchboard. Staff members are also required to report all suspected incidents of abuse/neglect directly to Adult/Child Protective Services. According to the express terms of BSDC policy, failure to report possible abuse/neglect will result in termination. Reporting requirements apply to all BSDC staff.
Essman began her employment with BSDC on August 10, 2010, as a "Developmental Technician II." In February 2012, Essman was promoted to a "Developmental Technician Shift Supervisor," although she had not yet started this position at the time of the events in question. Both jobs involved providing direct care for individuals living at BSDC and ensuring their continued health and safety. Essman was trained on BSDC's abuse/neglect policy when she was hired and had training annually thereafter. On February 3, 2012, Essman received updated training on BSDC's abuse/neglect policy. As part of that training, Essman was required to take a test over the policy to demonstrate her understanding of the policy. Essman achieved a perfect score on the review test. Essman also testified she understood that under the abuse/neglect policy she had to report any abuse or possible abuse and that a failure to do so would result in termination of employment.
The event that led to Essman's termination occurred while Essman was working the overnight shift on February 20 into February 21, 2012. Around 7 a.m. on February 21, near the end of her shift, a fellow employee, Holly Mick, told Essman that a resident had been abused. Mick told Essman that injuries a resident had suffered about 10 days earlier, previously reported to be the result of self-injurious behavior, were actually caused by two employees abusing the resident. Mick said that the two employees held the resident face down on the floor, one holding his legs and the other repeatedly slamming the resident's face into the carpet. Mick also told Essman that one of the employees had put a different resident in a "headlock" using his legs and had threatened at least one other resident.
Essman left BSDC when her shift ended without reporting the abuse that Mick told her about. While in her car getting ready to go home, she saw one of the shift supervisors, Deb Lantz. Essman testified that she did not report to Lantz what Mick had told her because she decided to "ponder this over." She testified that she was not sure she should believe what Mick had told her and that she thought her coworkers were possibly "trying to set [her] up to see how far they could push [her]" based on a conversation the day before in which Essman indicated she would report possible abuse.
Essman reported for work the next night, working the overnight shift on February 21 into February 22, 2012. Essman worked the full shift without reporting the abuse Mick told her about.Essman worked again the following night, February 22 into February 23, and during that shift, she told one of the shift supervisors, Suellen Johnson, about the possible abuse. Johnson proceeded to call the "Administrator On Call," pursuant to BSDC reporting requirements.
In the early morning hours of February 23, 2012, Essman completed several incident reports describing what she had been told by Mick and her reasons for not immediately reporting the possible abuse. Essman wrote that she delayed reporting because she was uncertain whether or not the information she received from Mick was true, because she did not see the abuse happen; she was worried she might be threatened if she reported the information; and she wanted to make the report to her own shift supervisor, rather than report it to someone else.
Essman was placed on investigatory suspension due to her failure to timely report the alleged abuse. BSDC's investigations unit, in conjunction with the Nebraska State Patrol, investigated the allegations of abuse as well as Essman's delay in reporting the possible abuse. Following the investigation, on May 10, 2012, the Department terminated Essman's employment at BSDC. Essman challenged her termination using the applicable grievance process. As part of the grievance process, a hearing was held before the Board, and following the hearing, the Board adopted the "Recommended Decision of the Hearing Officer" denying Essman's appeal. The Board found that discipline was justified pursuant to 273 Neb. Admin. Code, ch. 14, § 003 (2006), on two grounds: Essman's violation of BSDC's abuse/neglect policy, and her negligence in the performance of her duties. The Board also found that termination was an appropriate disciplinary sanction.
Essman appealed the Board's decision to the district court for Lancaster County, which affirmed the Board's decision. The district court found that Essman failed to immediately report possible abuse and that such failure was a plain violation of applicable policy. It further found that Essman knew she was required to report possible abuse and had numerous opportunities to do so. The court concluded that Essman's failure to report the alleged abuse justified the imposition of discipline and that termination was an appropriate sanction.
Essman assigns, restated, that the district court erred in (1) finding that she violated policy and, therefore, that the Department was justified in imposing discipline; (2) finding that she was negligent in the performance of her duties; and (3) finding that termination of employment was an appropriate disciplinary sanction.
A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Ahmann v. Nebraska Dept. of Corr. Servs., 278 Neb. 29, 767 N.W.2d 104 (2009). When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id.
An appellate court will not substitute its factual findings for those of the district court where competent evidence supports those findings. Id. "Competent evidence" means evidence that tends to establish the fact in issue. Id.
Whether a decision conforms to law is by definition a question of law, in connection with which an appellate court reaches a conclusion independent of that reached by the lower court. Id.
Violation of Abuse/Neglect Policy.
Essman first argues the district court erred in finding that she violated BSDC's abuse/neglect policy by failing to immediately report the possible abuse as told to her by Mick and that therefore, the Department was not justified in imposing discipline.
Under the Nebraska Classified System Personnel Rules & Regulations, specifically 273 Neb. Admin. Code, ch. 14, § 003, disciplinary action may be taken for actions constituting any one of 17 offenses. One of those offenses is for "[v]iolation of, or failure to comply with: . . . policies or procedures of the employing agency . . . ." 273 Neb. Admin. Code, ch. 14, § 003.01 (2006).
BSDC's policy for reporting abuse and neglect states:
It is policy that all incidents perceived or known to reflect abuse or neglect are identified. Actions are taken and/or safeguards are implemented immediately and maintained at least for the course of the investigation for designated significant incidents. All incidents of reported Abuse/Neglect are reported to Adult/Child Protection Services and the ICF Administrator (Administrator)/Administrator on Call (AOC). Failure to intervene and report...
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