Brian Fuchs v. Riverbend Assisted Living , 2016 Ind. App. LEXIS 311 ( 2016 )

FILED
Aug 24 2016, 9:46 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
A. David Hutson Lucy R. Dollens
Natalie N. Short Jacob V. Bradley
Hutson Legal Quarles & Brady, LLP
Jeffersonville, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian Fuchs, August 24, 2016
Appellant-Respondent, Court of Appeals Cause No.
10A01-1602-PO-501
v. Appeal from the Clark Circuit
Court
Riverbend Assisted Living, The Honorable William Dawkins,
Appellee-Petitioner. Magistrate
Trial Court Cause No.
10C02-1512-PO-555
Barnes, Judge.
Case Summary
[1] Brian Fuchs appeals the trial court’s issuance of three workplace violence
restraining orders on behalf of employees of Riverbend Assisted Living
(“Riverbend”). We affirm.
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Issues
[2] Fuchs raises three issues, which we consolidate and restate as whether the trial
court properly issued the workplace violence restraining orders.
Facts
[3] Riverbend is an assisted living facility in Jeffersonville. Beginning in June 2014,
Fuchs’s mother was a resident at the facility. Fuchs’s mother had appointed
Fuchs and Cherie May as her co-attorneys in fact.
[4] Alexa Wheeler is the executive director of Riverbend, and she oversees the
operations of the facility. On February 16, 2015, Wheeler learned that Fuchs
was upset and wanted to talk to her. Wheeler called Fuchs, and he was very
upset and angry that his mother was missing a box of Q-tips. In the beginning
of April, Wheeler received another phone call from Fuchs. He was “extremely
upset” that his mother had not received a shower. Tr. p. 40. He was
“screaming at the top of his lungs,” and he would not stop screaming. Id. For
the first time in her twenty-five years as an executive director, Wheeler had to
hang up on a resident’s family member. Fuchs called back a few minutes later
and asked for the phone number of Wheeler’s supervisor, which she gave to
him. On August 3, 2015, Fuchs called Wheeler at 11:15 p.m. while she was
asleep. Fuchs “was screaming and hollering” about his mother not getting a
pain pill from Melissa Gahl, a certified nursing assistant, in a timely manner.
Id. at 43. Fuchs threatened to “come up and take care of it.” Id. at 66. In early
August 2015, Wheeler was also approached by a resident, who asked that
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Fuchs not be allowed in the dining room because he was “interrogating them”
about a resident counsel meeting. Id. at 49. Wheeler spoke to Fuchs and
reminded him that he was not supposed to talk to other residents and family
members and upset them. Fuchs got six inches from Wheeler’s face, screamed,
“B**ch,” and walked away. Id. at 49. Fuchs’s face was “blood red,” and
Wheeler thought he was going to push her. Id. at 50. According to Wheeler,
four long-term employees of Riverbend have threatened to leave their
employment because of Fuchs’s behavior.
[5] Carrie Smith is a qualified medication assistant at Riverbend, and her job
requires her to pass medications to residents and help them with their showers,
laundry, and daily living activities. On July 29, 2015, Fuchs’s mother asked
Smith for a food tray in her room. Smith told Fuchs’s mother that there would
be a charge for the tray, and Fuchs’s mother got “quite upset.” Id. at 29. That
evening, Fuchs started “yelling, saying, this is bulls**t, I’m calling the Vice
President.” Id. at 30. Fuchs was “towering” over Smith and was in her
personal space, and Smith told Fuchs to stop yelling and that she was just
following the policy. Id. at 31. Fuchs “just kept screaming and yelling,” and
“there was no calming him down.” Id. Smith walked out of the room and
walked away. She was “[v]ery intimidated” by Fuchs and was “scared.” Id. at
32. Smith now avoids Fuchs and goes the other way when she sees him
because she is afraid.
[6] Angela Rice is the business office director at Riverbend. On August 4, 2015,
Fuchs came to Rice’s office and demanded that she stop an automatic
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deduction that was being used to pay his mother’s bill. Rather than sit in a
chair in front of Rice’s desk, Fuchs came around Rice’s desk and was “literally,
right on top of [her]” and “towering” over her. Id. at 18. Fuchs bumped Rice’s
chair and arm, and she had to move out of his way. Fuchs was irate, and Rice
was afraid of him. She was backed into a corner and could not get away from
him. Rice felt intimidated and like she was in danger.
[7] In August 2015, Riverbend’s counsel sent Fuchs a letter informing him that he
was no longer permitted at the facility except “for the purpose of removing [his]
mother from the facility for visits within the facility’s normal visiting hours . . .
.” Appellee’s Supplemental App. p. 10. On September 10, 2015, Riverbend
personnel had an informal meeting with Fuchs. They met with the
ombudsman for over two hours, but the issues were not resolved. Riverbend
then filed a petition with the Indiana State Department of Health to
involuntarily transfer Fuchs’s mother. After a hearing, an administrative law
judge determined, on November 4, 2015, that Riverbend had met its burden to
“show that the Facility staff and other Facility residents are endangered by
Resident A’s POA, Fuchs.” Id. at 11. However, the Facility failed to
demonstrate that “the Resident’s medical record has been documented, that a
discharge location has been identified, and that a discharge planning meeting
has been held as required.” Id. at 12. Consequently, the ALJ denied
Riverbend’s transfer request. The ALJ, however, suggested an alternative
option of seeking a workplace violence restraining order under Indiana Code
Chapter 34-26-6 to protect Riverbend’s employees.
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[8] On December 17, 2015, Riverbend filed petitions for workplace violence
restraining orders against Fuchs on behalf of four employees, Wheeler, Rice,
Smith, and Gahl. On December 29, 2015, Fuchs approached another
employee, Sonja Lewis, as she was taking the trash outside and started
screaming at her. Wheeler directed Lewis to call the police, and Fuchs was
asked to leave the facility.
[9] As of the January 2016 consolidated hearing on the petitions, Fuchs’s mother
no longer resided at Riverbend. The petition on behalf of Gahl was dismissed
at the hearing. After the hearing, the trial court granted the workplace violence
restraining orders against Fuchs on behalf of Wheeler, Rice, and Smith. The
restraining orders prevented Fuchs from entering Riverbend’s facility, among
other things. Fuchs now appeals.
Analysis
[10] Fuchs argues that the trial court erred by granting Riverbend’s request for the
workplace violence restraining orders pursuant to Indiana Code Chapter 34-26-
6. The restraining orders at issue here are similar to orders of protection issued
under Indiana Code Chapter 34-26-5. In such actions, the petitioner must
establish the allegations in the petition by a preponderance of the evidence.
A.S. v. T.H., 920 N.E.2d 803, 806 (Ind. Ct. App. 2010). In determining the
sufficiency of the evidence on appeal, we neither weigh the evidence nor resolve
questions of credibility. Id. We look only to the evidence of probative value
and reasonable inferences that support the trial court’s judgment. Id.
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[11] Indiana Code Section 34-26-6-6 provides that:
An employer may seek a temporary restraining order or
injunction on behalf of an employee to prohibit further violence
or threats of violence by a person if:
(1) the employee has suffered unlawful violence or a credible
threat of violence from the person; and
(2) the unlawful violence has been carried out at the employee’s
place of work or the credible threat of violence can reasonably be
construed to be carried out at the employee’s place of work by
the person.
A “credible threat of violence” is “a knowing and willful statement or course of
conduct that does not serve a legitimate purpose and that causes a reasonable
person to fear for the person’s safety or for the safety of the person’s immediate
family.” Ind. Code § 34-26-6-2. The term “‘unlawful violence,’ except for
lawful acts of self-defense or defense of others, means battery under IC 35-42-2
or stalking under IC 35-45-10.” I.C. § 34-26-6-5.
[12] The workplace violence restraining order statute, however, may not be
construed to:
(1) permit a court to issue a temporary restraining order
or an injunction that prohibits speech or any other
activity that is constitutionally protected or
otherwise protected by another law;
(2) prevent either party from representation by private
counsel or from pro se representation; or
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(3) expand, diminish, alter, or modify the duty, if any,
of an employer to provide a safe workplace for an
employee or another person.
I.C. § 34-26-6-15.
[13] Fuchs first argues that the trial court did not have authority to issue the
workplace violence restraining orders because Fuchs is his mother’s attorney in
fact. Fuchs relies on 410 Indiana Administrative Code Section 16.2-5-1.2(cc),
which provides that “[t]he facility shall not restrict visits from the resident’s
legal representative . . . except at the request of the resident.” “Legal
representative” includes an attorney in fact. 410 Ind. Admin. Code § 16.2-1.1-
34. According to Fuchs, the restraining orders violate Indiana Code Section 34-
26-6-15(1) because visiting his mother as her legal representative is protected by
the administrative code.
[14] Riverbend contends that we need not address the argument because Fuchs’s
mother no longer lives in the facility, and the argument is moot. Fuchs does
not dispute that his mother no longer is a resident at the facility. We agree that,
because Fuchs’s mother is no longer a resident of the facility, the facility is not
restricting visits from a resident’s attorney in fact, and Fuchs’s argument is
moot. Consequently, we need not address Fuchs’s contention that a resident’s
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attorney in fact cannot be prevented from visiting the resident by a workplace
violence restraining order.1
[15] Next, Fuchs argues that the evidence was insufficient to grant the workplace
violence restraining orders. Riverbend was required to demonstrate that its
employees suffered unlawful violence or a credible threat of violence from
Fuchs. I.C. § 34-26-6-6. In demonstrating that Wheeler, Rice, and Smith
suffered a credible threat of violence, Riverbend was required to show that
Fuchs engaged in a knowing and willful statement or course of conduct that did
not serve a legitimate purpose and that caused a reasonable person to fear for
the person’s safety or for the safety of the person’s immediate family.2 I.C. § 34-
26-6-2. According to Fuchs, the incidents were not credible threats of violence
because his conduct served a legitimate purpose and because the women did
not reasonably fear for their safety.
[16] We addressed a similar situation in Torres v. Indiana Family & Soc. Servs. Admin.,
905 N.E.2d 24 (Ind. Ct. App. 2009). There, Teresa Torres was a member of the
Indiana Council on Independent Living (“ICOIL”) and regularly attended its
1
We further note that Fuchs was a co-attorney in fact, and the workplace violence restraining order did not
prevent Fuchs’s mother from meeting with her other attorney in fact.
2
Fuchs also argues that, with respect to Rice, he did not commit battery when he bumped into her in her
office. Riverbend was required to demonstrate either that Rice suffered unlawful violence or that she suffered
a credible threat of violence. I.C. § 34-26-6-6. Riverbend alleged in its petition that Fuchs had made a
“credible threat of violence” against Rice. Appellant’s App. p. 32. Riverbend did not allege that Rice was
battered by Fuchs, although it did discuss the incident in its closing argument. We conclude Riverbend
presented sufficient evidence that Fuchs made a credible threat of violence against Rice. Consequently, we
need not decide whether Fuchs battered Rice.
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meetings. Carole Baker was a member of ICOIL and was the only FSSA
employee permitted to attend. Baker and other ICOIL personnel witnessed
outbursts from Torres during various ICOIL meetings. Baker and several
ICOIL members heard Torres yell and curse at various attendees, and she once
overturned a chair. One member witnessed Torres throw objects and engage in
verbal outbursts during at least fifteen meetings. During several meetings,
Baker had to have Capitol Police intervene.
[17] At a meeting on April 9, 2008, Torres complained that her assistive listening
device was not working. She threw the hearing device at the table and stated,
“this piece of sh*t doesn’t work and I’m tired of telling you.” Torres, 905
N.E.2d at 26. Torres stood up, continued to yell, and began pacing the room
with clenched fists. At some point, Torres picked up the end of an eight-foot
table and dropped it to the floor. She then threw or kicked a chair into the table
to get everyone’s attention. Torres screamed, “damn every one of you to hell”
and “f* * * every one of you motherfu* * * *g sons of b* * * *es, I hope you all
die. Do you hear me. I hope you die.” Id. ICOIL personnel adjourned the
meeting, and Torres jumped from her seat, started to yell again, and
approached the table. Torres threw the listening device and charged toward
Baker. Torres then leaned toward Baker and screamed: “And, you. You sit
there just staring at me and not blinking. At least I don’t have your disability.
I’m not ugly. I just can’t hear well.” Id. Torres jerked a microphone from the
table and grabbed a computer out of the hands of ICOIL’s president, who is
legally blind, and demanded to know who had purchased the equipment.
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[18] The trial court granted the restraining order, and on appeal, we rejected
Torres’s argument that a reasonable person would not fear her conduct.
Participants at the meetings testified that they were afraid of Torres, her
conduct was increasing in intensity and severity, and police intervention was
necessary on several occasions. Torres also argued that there was no “credible
threat of violence” because of her mere “protests” or “advocacy” on behalf of
herself and others. Id. at 30. We noted that “yelling, threatening, using
profanity, throwing metal devices, knocking over chairs, or charging people,
constitute behavior far beyond mere protestations or any type of advocacy
contemplated in the workplace.” Id. at 30. We concluded that the trial court
properly entered the workplace violence restraining orders.
[19] As in Torres, we conclude that Fuchs’s conduct qualifies as a credible threat of
violence with respect to Wheeler, Rice, and Smith. Fuchs repeatedly harassed,
screamed at, and intimidated Riverbend employees. Although Fuchs may have
been protesting the care his mother was receiving, his behavior went far beyond
advocating for his mother. Repeatedly screaming, threatening, cursing, getting
in employees’ faces, and backing employees into corners does not serve a
legitimate purpose. Further, Rice and Smith testified that they were scared of
Fuchs, and Wheeler testified that she was afraid Fuchs was going to initiate a
physical altercation with her. Given Fuchs’s repeated conduct, a reasonable
person would fear for his or her safety. Fuchs’s arguments to the contrary are
merely requests that we reweigh the evidence, which we cannot do. Riverbend
presented sufficient evidence to demonstrate that the employees suffered
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credible threats of violence from Fuchs at their place of employment. The trial
court properly entered the workplace violence restraining orders. 3
Conclusion
[20] The trial court properly granted the workplace violence restraining orders
against Fuchs. We affirm.
[21] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
3
Fuchs also argues that the trial court abused its discretion by admitting written statements of Melissa Gahl
and Sonia Lewis regarding their interactions with Fuchs. However, we must disregard any error or defect in
the proceeding that does not affect the substantial rights of the parties. Ind. Trial Rule 61. Riverbend
presented sufficient evidence to support the granting of the restraining orders on behalf of Wheeler, Rice, and
Smith without consideration of Gahl’s and Lewis’s statements. Any error in the admission of the statements
of Gahl and Lewis is harmless.
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