University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 10-13-2005 TENNESSEE DEPARTMENT OF CORRECTION, Petitioner, vs. BEATRICE ADEWOYE, Grievant Follow this and additional works at: http://trace.tennessee.edu/utk_lawopinions Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov
BEFORE THE CIVIL SERVICE COMMISSION FOR THE STATE OF TENNESSEE TENNESEE DEPARTMENT OF ) CORRECTION, ) Petitioner, ) ) Docket No. 26.05-073198J v. ) ) BEATRICE ADEWOYE, ) Grievant. ) ) INITIAL ORDER PROCEDURAL THIS MATTER CAME to be heard the 13 th day of October 2005 before W. Jay Reynolds, Administrative Judge, Assigned by the Secretary of State, Administrative Procedures Division, and sitting for the Civil Service Commission. Mr. Bryce Coatney, Staff Counsel, represented the Department of Correction. Mr. Robert Waller, Warden of the facility, was present. Mr. Robert A. O Connell, Tennessee State Employees Association Staff Attorney, represented the Grievant, Beatrice Adewoye. The Hearing was held at the DeBerry Special Needs Facility, 7575 Cockrill Bend Industrial Boulevard, Nashville, Tennessee in the Warden s conference room. ISSUES The issue is whether the dismissal of the Grievant, for an unannounced absence while on duty, was proper pursuant to the Department of Correction policy, procedures, and rules. 1
EVALUATION OF THE EVIDENCE The impetus for this action was an incident of 24 June 2004. The Grievant abandoned her post at the Lois DeBerry Special Needs Facility (hereafter sometimes referred to as DSNF ), a State correctional institution in Nashville, Tennessee. The Tennessee Department of Correction policy and procedure requires that an employee obtain prior authorization from a supervisor for any absence from work. If a nurse employee finds it necessary to leave work before the end of shift at DSNF they are to notify the immediate supervisor. If the immediate supervisor is unavailable, then the nurse is to advise the house supervisor. The house supervisor carries a radio at all times and can be called, at any time, by any security officer. If any employee leaves the institution for any reason during an assigned shift, it is the employee s responsibility to sign out, or document the absence, so that the employee s record of time, pay, and leave benefits is adjusted, accordingly. Ms. Beatrice Adewoye worked as a licensed practical nurse (LPN) at the DSNF. On 24 June 2004, while Grievant was on duty, an anticipated family emergency arose regarding the Grievant s two minor children. A friend, sitting with the Grievant s children, informed the Grievant that it might not be possible to keep the children the entire day on the 24 th day of June 2004. The prior evening it was understood that if the sitter was not able to keep the children the entire day then they would be placed with an elderly acquaintance; and the Grievant would make arrangements to retrieve, or otherwise intervene. Ms. Adewoye admitted she knew the risks before she came to work on 24 June 2004. Ms. Adewoye did not report the plan or contingencies to her immediate supervisor, Ken Rourk, registered nurse (RN). Neither did she inform the house supervisor of her intention to leave. The testimony is inconclusive as to whether she informed co-workers, but this is irrelevant since protocol does not include co-workers. Mrs. Adewoye did not sign out when she left the facility. She was not missed until a patient on her unit fell from his wheelchair. A new employee/trainee summoned Mr. Rourk to assess the patient. After completing his assessment, Mr. Rourk wished to leave instructions for Mrs. Adewoye to write an incident report. He then learned that Mrs Adewoye had not been seen for more than an hour. Mr. Rourk alerted security, concerned 2
about possible foul play. Security and clinic personnel undertook a search of the facility until word came, from a security checkpoint, that Mrs. Adewoye had been seen leaving the building earlier that morning. Warden Waller, Mr. Rourk, and Ms. Blakely testified to the risks presented by Mrs. Adewoye s conduct. In the worst case, there is a risk of death to the patient if the nurse is not in attendance when a patient s status changes for the worse. There is a risk of compromise to patient care, generally. Facility and inmate/resident/patient security was compromised by the necessity of diverting security resources to the search for Mrs. Adewoye, which resulted in a risk of harm to others during such a diversion. A new trainee, unfamiliar with patient care, was on the floor. There was, finally, a particular risk of harm to the inexperienced trainee employee left alone on the floor amid a population of individuals with a demonstrated history of serious criminal behavior. Grievant was, prior to the date in question, involved in other documented incidents of negligent performance during assigned duties. She had left work, without permission or notice, on more than one occasion. A discussion, including Ms Adewoye and her supervisors, addressing the wrongfulness of her behavior was conducted. As a result, Ms Adewoye was instructed to inform supervisors before any future absences and warned of possible termination for repeat offenses. Her signature, on a written memorandum of this discussion, demonstrated a clear understanding of its terms. Despite all the foregoing, Ms Adewoye chose to leave work again, without notice or permission, on June 24, 2004. CONCLUSIONS OF LAW Pursuant to The Rules and Regulations of Licensed Practical Nurses, Rule 1000-2-.13 (1) unprofessional conduct and negligence occurs when one (a) intentionally or negligently cause physical or emotional injury to a patient; (c) abandons or neglects a patient requiring nursing care; and (l) assigning unqualified persons to perform functions of licensed persons or delegating nursing care functions and tasks and/or responsibilities to others contrary to the Nurse Practice Act or rules and regulations to the detriment of patient safety; and others. The conduct of the Grievant by the unannounced, unapproved 3
absence while on duty violates the foregoing rules and regulations. The Grievant s lack of attention to a wheelchair bound inmate and leaving him in the care of a new employee violates the threshold responsibilities of the foregoing rules and regulations. The Commissioner is bound to fairly implement administrative policies and procedures. All Department of Correction supervisors at all levels shall actively manage the attendance and leave function in accordance with policies, procedures, and practices established by the Department of Personnel, and, as appropriate, more specifically described by the department through normal managerial communication. The Commissioner, through Warden Waller, followed procedure. The Warden fairly implemented policy in the best interest and protection of the institution with due consideration to the rights of the individual employee. Tennessee s Uniform Administrative Procedures Act contemplates that there should be full disclosure of all relevant facts and issues in a contested case proceeding before a State agency. See Tennessee Code Annotated, 4-5-312(b); also, Tennessee Code Annotated, 4-5-313(1), the agency is to render findings of fact and conclusions of laws based only upon the record of the contested case proceeding and on matters officially noticed therein. See Tennessee Code Annotated, 4-5-314(d). All evidence relevant to the challenged action is appropriate for consideration. See Opinion No. 84-282, Office of the Attorney General, State of Tennessee, 1984 WL 186368 (Tenn.A.G.). The Grievant received due process protection. A career service employee may be suspended, demoted, or dismissed from employment whenever just or legal cause exists. See Rules of the Tennessee Department of Personnel, Rule 1120-10-.02. Grounds for such disciplinary action, in pertinent part, may include the following: Negligence in the performance of duties Gross misconduct or conduct unbecoming an employee in the State service Acts that would endanger the lives and property of others (Tenn. Comp. R. & Regs, 1120-10-.06) The unannounced absence of Mrs. Adewoye constitutes negligence, gross misconduct, and an indifference to the necessary elements of a highly sensitive job. Further, her actions, while on duty, warrant disciplinary action. 4
The degree and kind of disciplinary action to be taken with a career employee is at the discretion of the appointing authority, per Tenn. Comp. R. & Regs., 1120-10-.02. When corrective action is indicated, however, the disciplinary action must be of the lowest degree appropriate to each area of misconduct. Tennessee Code Annotated, 8-30-330 (c). Progressive discipline does not require corrective action at the lowest possible degree. The operative concept within the rule is that the action taken be of the least severity that is appropriate to the problem to be corrected. The Tennessee Court of Appeals has held, The language of these provisions does not mandate application of discipline in a routine fashion without regard to the nature or severity of the behavior it is intended to address. The supervisor has discretion to determine what punishment fits the offense. Berning v. Tennessee Department of Correction, 996 S.W.2d 828 (Tenn. Ct. App., M.S., 1999). The level of discipline was a discretionary function of the institution and Warden Waller exercised same in an appropriate manner. A career service employee, who has completed probation, has a property right in her job. See Tennessee Code Annotated., 8-30-331(a). The Tennessee Civil Service Commission has jurisdiction to make the ultimate determination upon any property taking action against a career service employee. Tennessee Code Annotated., 8-30- 108(2). The Grievant has exhausted her administrative remedies. FINDINGS OF FACT 1. Grievant, Beatrice Adewoye, was employed by the Department of Correction, as a licensed practical nurse, at the Lois DeBerry Special Needs facility (DSNF). 2. Tennessee Department of Correction policy and procedure requires an employee to obtain authorization for any absence from work. 3. Prior incidents of absences familiarized Mrs. Adewoye with the rules regarding leaving work without authorization. Alternatively with the consequences of leaving work without authorization. 5
4. June 24, 2004 Mrs. Adewoye was present at the beginning of her shift but left, while on duty, without notice to her supervisors. Ms Adewoye was working on the Skill 1 Unit in the DSNF Health center, under the supervision of Ken Rourk, RN. She admits to leaving without permission and without informing Mr. Rourk or the house supervisor. She testifies to leaving because of a personal emergency involving the care of her child. She claims to have told Nurse Gwen Bryant she was leaving due to an emergency. 5. Mrs. Adewoye did not have an emergency; inasmuch that the event was anticipated with prior knowledge and recognition of problems posed with given circumstances. 6. Mrs. Adewoye left a trainee at her post on 24 June. 7. During her absence, an inmate patient fell from a wheelchair. 8. Mr. Rourk was summoned to assess the patient and, in so doing, became aware of Ms Adewoye s unauthorized absence. This resulted in a search of the facility, for the missing employee, by security and clinic personnel. The diversion posed a possible risk to patient care. An inexperienced trainee employee, left alone on the floor amid a population of individuals with a demonstrated history of serious criminal behavior, was also at risk. 9. The testimony of Beatrice Adewoye is not a credible source. DECISION Based on a thorough evaluation of the entire record, it is the decision of the Administrative Judge that the Department s termination of the Grievant s employment was proper and appropriate under the law. 6
ALL OF WHICH IS THEREFORE ORDERED, ADJUGED AND DECREED. ENTER this 3 rd day of February 2006. W. JAY REYNOLDS ADMINISTRATIVE JUDGE FILED in the Administrative Procedures Division, Office of the Secretary of State, this the 3 rd day of February 2006. CHARLES C. SULLIVAN, II, DIRECTOR ADMINISTRATIVE PROCEDURES DIVISION 7
MISCELLANEOUS NOTES- INFRA. Ms. Adewoye appeals the termination of employment as an unfair dismissal or separation. She seeks to overturn the decision to terminate, with recovery of back pay and benefits. and the theory of progressive discipline. Arbitrary and capricious. Apply rational basis test and the need for heightened standards because of sensitive mission. i.e. inmate management. Liability issue to BA as well as the inmates and the institution. Indifference, disregard or without the capacity to appreciate the gravamen of her actions. Silent acquiescence to being paid for time not at work is tantamount to Falsification of Documents. Endorsement of funds. Counseling for job duty discrepancy was provided to Beatrice Adewoye BA acknowledged deficits in job performance and consequences by signing job performance review. This is not the first occurrence of unannounced absence by BA. No written warning was given to Beatrice Adewoye prior to termination. 10. Beatrice Adewoye was not paid for the period she was not on duty. Sensitive Department of Corrections is a State Agency. 11. 12. On or about September 22, 2003, Ms Adewoye left her assigned shift, without signing out, and without obtaining required authorization as instructed. She was absent from her job for at least two hours on that date (TR 17-18, 26; Ex.1). When confronted about this incident, Ms Adewoye gave conflicting accounts; finally admitting leaving work to attend class at a local college (TR 26, 32-34). 13. A 8
14. As a result, Ms Adewoye was instructed to clock out and advised time absent would be deducted from her pay. A memorandum signed and dated by Ms Adewoye, documents a discussion involving Ms Adewoye, Ms Blakely, and Maria Nance, RN (Director of Nursing). The instructions were not to leave work before the end of a shift without telling a supervisor. Termination would result, should this situation reoccur. (TR33). 9
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