Lee v. South Dakota Dept. of Health, 15551

• Court: Supreme Court of South Dakota
• Writing for the Court: SABERS; WUEST; HENDERSON; HENDERSON
• Citation: 411 N.W.2d 108
• Parties: 2 IER Cases 1105 Vince LEE, Grievant and Appellant, v. SOUTH DAKOTA DEPARTMENT OF HEALTH, Respondent and Appellee.
• Docket Number: No. 15551,15551
• Decision Date: 22 July 1987

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411 N.W.2d 108 2 IER Cases 1105 Vince LEE, Grievant and Appellant,
v.
SOUTH DAKOTA DEPARTMENT OF HEALTH, Respondent and Appellee. No. 15551. Supreme Court of South Dakota. Argued April 22, 1987.
Decided July 22, 1987.

Jacqueline M. Rasmussen, of Nelson & Harding, Rapid City, for grievant and appellant.

Mark W. Barnett, of Schmidt, Schroyer, Colwill & Barnett, P.C., Pierre, for respondent and appellee.

SABERS, Justice.

Vince Lee (Lee) appeals the termination of his employment with the South Dakota Department of Health (Department). We affirm.

Facts

Lee was hired by Department as a Community Health Nurse III on November 2, 1981. Lee was a career service employee. He was well aware of Department's rules concerning the Family Planning Program at the West River Community Health Clinic (Clinic), some of which he drafted himself. On December 23, 1983, Lee was the supervising nurse on duty at Clinic. He dispensed a three month supply of birth control pills to a fifteen-year-old girl ("Tammy").

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Lee gave her the pills despite the fact that the necessary records of a physical exam and PAP smear were missing from her file. The rules of Clinic were very clear: "no records, no pills." Nurses are not licensed to dispense medication without a physician's approval.

On March 22, 1984, Department terminated Lee's employment for the improper dispensing of birth control pills to a minor. Lee's termination was subsequently approved by Department's Division of Health Services and the South Dakota Career Service Commission (Commission). All administrative reviews found cause for Lee's dismissal and no lack of due process. The circuit court entered Findings, Conclusions, and Orders on September 3, 1986, which affirmed the Commission's decision.

Lee's Claims

Lee appeals his termination claiming that Department's decision to discharge him was clearly erroneous, and that he was denied due process, equal protection, and sufficient notice under the administrative rules and regulations.

1. DEPARTMENT'S DECISION WAS NOT CLEARLY ERRONEOUS

This court makes the same review of the administrative agency's decision as does the circuit court, unaided by any presumption that the circuit court's decision was correct. We do not substitute our judgment for that of the agency as to the weight of evidence on questions of fact unless the agency's decision is clearly erroneous, or arbitrary, capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion. SDCL 1-26-37; Anderson v. Western Dakota Insurors, 393 N.W.2d 87 (S.D.1986); Application of Northwestern Bell Tel. Co., 382 N.W.2d 413, 415-416 (1986); Raml v. Jenkins Methodist Home, 381 N.W.2d 241, 242-243 (S.D.1986); State Div. of Human Rights v. Miller, 349 N.W.2d 42, 46 n. 2 (S.D.1984).

Lee contends that his decision to give Tammy the pills was a "judgment call" and grounds for a reprimand only rather than termination. The record shows that Tammy was not a responsible patient. Her history included an unwanted pregnancy, an abortion several months before the incident in question, failure to keep appointments, and failure to obtain the physical examination knowing full well that it was needed to obtain more pills. Lee did not thoroughly review her chart. He attempted to but did not contact a physician before giving Tammy the pills. He requested another nurse to make sure Tammy came in after the holidays for the missing work. However, Tammy did not come in and Lee never followed up on this. The evidence shows that Lee did not consult a physician before making this decision even though he believed the instructions on Tammy's chart were ambiguous. If at all unsure about the missing records, Lee could have given Tammy a small amount of "covering" pills (up to one month) to hold her over until she could come in for the physical. The Family Planning Manual used by all Clinic staff provided that no more than one month of extra pills could be given to tide a patient over to an examination. Even these covering pills required a doctor's approval. Despite this, Lee gave Tammy a three month supply.

When initially confronted with the incident, Lee insisted that it was merely a "paper foul-up" and no big deal. According to Department employees, however, the dangers to Tammy were manifold. She had recently undergone an abortion. She was a smoker. When she finally had the physical examination in March of 1984 her urinalysis showed a 2+ protein count. At that time, there was no way for her doctor to determine whether she had been "spilling protein" since December 1983 when Lee gave her the pills. Lee did not recognize or appreciate the potential health hazard associated with his dispensing three months of pills to Tammy without the results of the physical.

Although Lee claims that other minor incidents and "coffee room" gossip played a substantial part in his dismissal, these allegations are not supported by the record. The evidence supports the circuit

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court's affirmance of Department's decision to terminate Lee. The findings of fact were not clearly erroneous and the conclusions of law were correct. SDCL 1-26-36.

2. EQUAL PROTECTION--SEX DISCRIMINATION

Lee claims that he was the victim of sex discrimination and that his female superiors used this incident as a convenient way to get rid of him. He claims that they resented his "take charge" attitude. He further claims that the other nurse implicated in this matter, a female, was only...