Petro v. State

• Decision Date: 20 July 2011
• Docket Number: No. 56999.,56999.
• Citation: 373 P.3d 950 (Table)
• Parties: Patricia PETRO, Appellant, v. The STATE of Nevada, DEPARTMENT OF HEALTH AND HUMAN SERVICES, MENTAL HEALTH AND DEVELOPMENTAL SERVICES DIVISION, Respondent.
• Court: Nevada Supreme Court

373 P.3d 950 (Table)

Patricia PETRO, Appellant

v.The STATE of Nevada, DEPARTMENT OF HEALTH AND HUMAN SERVICES, MENTAL HEALTH AND DEVELOPMENTAL SERVICES DIVISION, Respondent.

No. 56999.

Supreme Court of Nevada.

July 20, 2011.

Angela J. Lizada

Attorney General/Las Vegas

ORDER OF REVERSAL AND REMAND

This is an appeal from a district court order granting a petition for judicial review in an employment action. Eighth Judicial District Court, Clark County; David B. Barker, Judge.

An administrative hearing officer entered a decision regarding appellant Patricia Petro's challenge to the termination of her employment as a registered nurse with respondent State of Nevada, Department of Health and Human Services, Mental Health and Developmental Services Division (Department) for excessive use of physical force on a patient. As found by the hearing officer, Petro, who had no prior record of discipline, was terminated after an incident occurring on November 30, 2008. Briefly summarized, on that date, an altercation broke out between two patients. Petro intervened, and, in deescalating the situation, placed her hands on the arms of one of the patients. After Petro eventually let go, there were visible skin tears, bleeding, and fingerprints on the patient's right arm in particular. The hearing officer also noted testimony from Petro that she had been physically abused during her first marriage and that her use of her hands on the patient was in response to being shaken by the patient and that this shaking triggered a flashback to her own prior abuse, causing Petro to momentarily black out while maintaining her grip on the patient's arms.

The hearing officer determined that while Petro's conduct fell below Department standards, and that therefore some form of discipline was warranted, the evidence presented had not sufficiently established that termination was warranted. In particular, the hearing officer concluded that the harm caused to the patient was relatively minor and that Petro's use of excessive force did not appear willful. Accordingly, the hearing officer reversed and remanded the matter to the Department for an imposition of discipline short of termination.

The Department petitioned the district court for judicial review. The district court granted the petition, although its order was summary and only set forth that the hearing officer's decision “was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.” During a September 21, 2010, hearing, however, the district court expressed concern over placing Petro back in a position of authority within the Department when she may not be able to entirely control herself in difficult situations. Petro has appealed.

On appeal, Petro argues that the district court erroneously substituted its view of the evidence for that of the hearing officer. The Department, however, argues that the district court's grant of the petition for judicial review was proper, as the hearing officer's decision was not supported by substantial evidence since Petro's actions violated various Department prohibitions and penalties.

In reviewing an administrative decision, this court, like the district court, may not substitute its judgment for that of the administrative tribunal on the weight of evidence on any question of fact. NRS 233B.135(3) ; Law Offices of Barry Levinson v. Milko, 124 Nev. 355, 362, 184 P.3d 378, 383–84 (2008) (noting that this court's level of review of administrative decisions mirrors that of the district court). Nonetheless, an administrative decision may be set aside if it is “affected by error of law [or] clear error in view of the reliable, probative, and substantial evidence of record,” Dredge v. State ex rel. Dep't Prisons, 105 Nev. 39, 43, 769 P.2d 56, 58–59 (1989), or if the decision is arbitrary or capricious or constitutes an abuse of discretion. NRS 233B.135(3)(f). Substantial evidence is “that which ‘a reasonable mind might accept as adequate to support a conclusion.’ “ State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) ).

This court has recognized that NRS 284.383 “provides for adoption of a system of...