Jenkins v. Bryles

• Court: Missouri Court of Appeals
• Writing for the Court: PARRISH; FLANIGAN, C.J., and SHRUM
• Citation: Jenkins v. Bryles, 802 S.W.2d 177 (Mo. App. 1991)
• Decision Date: 15 January 1991
• Docket Number: No. 16744,16744
• Parties: Peggy JENKINS, Plaintiff-Appellant, v. Moody BRYLES, Director, Poplar Bluff Regional Center; Poplar Bluff Regional Center; Department of Mental Health, State of Missouri; Personnel Advisory Board, Defendants-Respondents.

Page 177

802 S.W.2d 177

Peggy JENKINS, Plaintiff-Appellant, v. Moody BRYLES, Director, Poplar Bluff Regional Center Poplar Bluff Regional Center; Department of Mental Health, State of Missouri Personnel Advisory Board Defendants-Respondents.

No. 16744.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 15, 1991.

Wallace L. Duncan, Duncan & Blaich, Poplar Bluff, for plaintiff-appellant.

William L. Webster, Atty. Gen., Cynthia Harcourt-Hearring, Asst. Atty. Gen., Jefferson City, for defendant-respondent Dept. of Mental Health.

PARRISH, Presiding Judge.

Peggy Jenkins (appellant) was employed at the Poplar Bluff Regional Center, an agency of the Missouri Department of Mental Health. She was dismissed from that employment on December 24, 1987, for actions "considered to be physical abuse of [a] client." Appellant first appealed her dismissal to the Missouri Personnel Advisory Board (hereafter sometimes referred to as "board"). § 36.390.5. ¹ The board approved and sustained appellant's dismissal. Appellant then filed a petition for judicial review in the Circuit Court of Butler County. § 536.110. The circuit court affirmed the decision of the board. This is an appeal of that judgment. § 536.140.6. This court reverses and orders that appellant be reinstated to her previous employment and that she receive any and all salaries and benefits that would have accrued from and after December 24, 1987.

Appellate review of this case is directed to the findings and decisions of the Personnel Advisory Board. Fujita v. Jeffries, 714 S.W.2d 202, 204 (Mo.App.1986); Holt v. Personnel Advisory Bd., 679 S.W.2d 340, 342 (Mo.App.1984). It is undertaken in accordance with the directives of § 536.140. Id.

The incident that was the basis for appellant's dismissal occurred during a time when appellant was combing and applying moisturizer and conditioner to the hair of a resident of the Poplar Bluff Regional Center. The resident's name was Kalinda. Appellant first worked alone with Kalinda. Kalinda was seated at a dining room table. When appellant began applying the moisturizer to Kalinda's hair, Kalinda grabbed for the bottle that contained the moisturizer. Appellant sat the bottle across the table where she believed Kalinda could not reach it. Kalinda pushed her chair back, pushed the table, and grabbed for the bottle. Appellant and Kalinda took hold of the bottle at the same time. Kalinda twisted and pulled causing the top of the bottle to come off. Moisturizer spilled from the bottle onto the floor, the wall, and a corner of the table. Both appellant and Kalinda had moisturizer on their hands. Two other employees, Melba Garver and Jeannie Hamann, came to assist. Melba and Jeannie then held Kalinda in her chair so that appellant could apply the moisturizer. Kalinda put her hands to her face during the conflict. Jeannie and Melba had to pull Kalinda's hands down from her face and hold her arms on the chair. A supervisor, Wanda Branscum, was in the same room doing other things.

The controversy that led to appellant's dismissal arose from a report made by Melba five days after the incident occurred, notwithstanding the existence of a policy that required incidents of this nature to be reported within 24 hours. ² The report was made December 10, 1987, to a supervisor. Melba later testified in the hearing before the board that Kalinda had grabbed the moisturizer appellant was using, "dumped it, took the lid off real quick and dumped it." She testified that Kalinda was grabbing at appellant and that she and Jeannie came from the kitchen to help appellant; that they set Kalinda back into the chair and held Kalinda there. She testified that appellant "scooped the moisturizer up off of the table and smeared it on Kalinda's face" and said, "Do you want to wear it?" At that time, according to Melba, Jeannie was standing behind Kalinda.

Jeannie Hamann testified that she and Melba went to appellant's aid when Kalinda became aggressive while appellant was grooming Kalinda's hair. Jeannie told about Kalinda reaching across the table and knocking the bottle of moisturizer from the table. Jeannie stated that she put her hands on Kalinda's shoulders from behind. Melba was on the other side of Kalinda. Jeannie also acknowledged that Wanda was in the same room. Jeannie testified that after Kalinda knocked the moisturizer over "[s]he was still very aggressive and she was putting her hands up and [appellant] had her hands up and their hands were on her face and when their hands were away from her face where we could see her face, it had the solution on her face." She testified that Kalinda covered her face with her hands. Jeannie was asked, "Is it more like a hiding type of motion?" She answered, "Yes."

Jeannie was asked the following questions and gave the following answers:

Q. Were you concerned at all about the moisturizer being on Kalinda's face?

A. Yes.

Q. Why were you concerned about it?

A. I was afraid of it getting in her eyes.

Q. Did you say anything?

A. When we saw the moisturizer on her face then Melba asked for a wash cloth and nobody brought it and somebody said something to the effect of her wearing it. I thought that it was [appellant] that said it. Somebody said it.

Q. Wearing it in what manner, what do you mean by the statement?

A. They didn't bring us a wash cloth and then Kalinda tried to put her hands back up to her face and I turned and looked over my shoulder to Wanda and I said, "She's going to get it in her eyes."

And Wanda said, "It won't hurt her."

Q. Did anyone get a wash cloth to wipe off her face?

A. No.

Q. So you did not see anybody wipe off Kalinda's face?

A. No, I didn't.

Wanda Branscum testified at the hearing before the board. She recalled being present in the room when Kalinda was being groomed. "But as far as watching the details and them doing the grooming, I was busy doing other things. I was not observing, you know, the complete procedure of the good grooming." She did recall "seeing the three ladies working with Kalinda, combing her hair, and there was some activity going on which whenever you deal with Kalinda and you comb her hair, you do have." She explained that Kalinda does not like to have her hair done. She did not recall anyone asking her for a towel or a wash cloth. She recalled someone saying, "Don't let it get in her eyes," and asking, "Did she get it in her eyes?" Someone answered, "No."

Appellant testified that she had worked with Kalinda 18 months. She described her experiences with Kalinda. "There was no problem with Kalinda. She would come up and hug you one minute, and she may come flying at you with both hands the next minute. You couldn't pinpoint your relationship with Kalinda."

On December 5 appellant was told that Kalinda's hair needed to be done. Appellant testified that she called Kalinda to the dining room and that Kalinda's behavior was good. According to appellant, when she began applying moisturizer to Kalinda's hair, Kalinda lunged and grabbed for the bottle that contained the moisturizer. Both appellant and Kalinda had hold of the bottle. Kalinda's twisting and pulling at the bottle caused its top to come off. The moisturizer was slung from the bottle hitting the floor, the wall, and the corner of the table. Appellant was asked, "Did any of it get on you?" She answered, "Yes, on both of our hands, you know, when it came open." According to appellant, no other staff member was present at that time. Melba and Jeannie did not arrive until after the moisturizer had spilled.

Appellant further testified:

Q. So what happened then after they came onto the scene?

A. Well, when they came up from behind, Melba was on the left side and Jeannie walked up from behind. Kalinda was still, you know, reached over the table and they proceeded to pull her back and sat her down in the chair that she was originally setting in.

Q. Now, at this time had you attempted to apply any moisturizer on Kalinda?

A. Yes. At one time I had tried, but she started, you know, wanting to reach up and get the bottle. So I sat it over there out of her reach.

Q. Okay. Were you able to get any of it on her hair?

A. Very little.

Q. Okay. Do you recall if any of it got on her face at that particular time?

A. Well, with the spray bottle, it covered such a big area which you know we had not been previously using a spray bottle. We had been applying it with our hands. We just had a squirt bottle that the moisturizer came in and we were squirting it in our hands and rubbing it in like this.

And you know I assumed that Kalinda was either frightened by the spray or was not used to the spray bottle being used and I think that's what made her react as she did.

Q. Okay. Now, let me go back to where we were. When Melba and Jeannie came over to help you, I want you to go from there. They came over to assist, and then what happened after they came over?

A. Well, they sat Kalinda down, you know. I took the moisturizer that was on my hands and I assured that it got into her hair because it was really important that she get it. And while they were there holding her and what I had on my hands I proceeded to put into the short hairs around her face and on her hair to assure that she did get it applied while they were standing there.

Q. And what was Kalinda doing at this time?

A. When they were holding her, she was just wiggling around and squirming. But when, before they come in to, before they could get ahold of her, Kalinda is really strong and they had to force her hands down from her face to bring her arms back down to the chair so they could hold her because, you know, it's documented by the psychologist that Kalinda does have a habit of doing this over her eyes and she really holds tightly, you know, and you have to sometimes hold her hands away from her face to hold her down.

Q. So were her hands up to her face when Melba and Jeannie arrived?

A. Yes, uh-huh.

Q. And they helped pull them down?

A. Uh-huh....