Essman v. Nebraska Dept. of Health & Human Servs. ( 2014 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
ESSMAN V. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
RAYNETTE ESSMAN, APPELLANT,
V.
NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES, APPELLEE.
Filed November 10, 2014. No. A-13-840.
Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed.
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and John L. Jelkin for appellee.
MOORE, Chief Judge, and IRWIN and PIRTLE, Judges.
PIRTLE, Judge.
INTRODUCTION
Raynette Essman appeals from an order of the district court for Lancaster County
affirming the decision of the Nebraska State Personnel Board (the Board) to terminate her
employment with the Nebraska Department of Health and Human Services (the Department).
Essman worked at the Beatrice State Developmental Center (BSDC), and her employment was
terminated after she failed to timely report an incident of possible abuse. She argues that the
Department was not justified in imposing discipline and that termination was an excessive
disciplinary sanction. Based on the reasons that follow, we affirm.
BACKGROUND
BSDC is an intermediate care facility for persons with developmental disabilities. The
facility serves approximately 130 individuals with a wide range of disabilities, all residing at
BSDC. Residents at BSDC are vulnerable and often unable to recognize or report abuse
themselves.
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BSDC operates with federal funding from the Center for Medicare/Medicaid Services
(CMS). BSDC has experienced penalties in the past from CMS for not taking sufficient
corrective action when addressing alleged abuse/neglect, resulting in significant loss of federal
funding. Consequently, BSDC has adopted an abuse/neglect policy providing for zero tolerance
of client abuse/neglect and zero tolerance of failures to report possible abuse/neglect of BSDC
clients.
Under BSDC policy, all incidents either perceived or known to reflect abuse or neglect
are to be identified. BSDC staff are required to intervene when observing or suspecting abuse or
neglect and to immediately report any observed or suspected abuse/neglect to a shift supervisor,
or if the staff member wants to report anonymously, reports can be made to the BSDC
switchboard. Staff members are also required to report all suspected incidents of abuse/neglect
directly to Adult/Child Protective Services. According to the express terms of BSDC policy,
failure to report possible abuse/neglect will result in termination. Reporting requirements apply
to all BSDC staff.
Essman began her employment with BSDC on August 10, 2010, as a “Developmental
Technician II.” In February 2012, Essman was promoted to a “Developmental Technician Shift
Supervisor,” although she had not yet started this position at the time of the events in question.
Both jobs involved providing direct care for individuals living at BSDC and ensuring their
continued health and safety. Essman was trained on BSDC’s abuse/neglect policy when she was
hired and had training annually thereafter. On February 3, 2012, Essman received updated
training on BSDC’s abuse/neglect policy. As part of that training, Essman was required to take a
test over the policy to demonstrate her understanding of the policy. Essman achieved a perfect
score on the review test. Essman also testified she understood that under the abuse/neglect policy
she had to report any abuse or possible abuse and that a failure to do so would result in
termination of employment.
The event that led to Essman’s termination occurred while Essman was working the
overnight shift on February 20 into February 21, 2012. Around 7 a.m. on February 21, near the
end of her shift, a fellow employee, Holly Mick, told Essman that a resident had been abused.
Mick told Essman that injuries a resident had suffered about 10 days earlier, previously reported
to be the result of self-injurious behavior, were actually caused by two employees abusing the
resident. Mick said that the two employees held the resident face down on the floor, one holding
his legs and the other repeatedly slamming the resident’s face into the carpet. Mick also told
Essman that one of the employees had put a different resident in a “headlock” using his legs and
had threatened at least one other resident.
Essman left BSDC when her shift ended without reporting the abuse that Mick told her
about. While in her car getting ready to go home, she saw one of the shift supervisors, Deb
Lantz. Essman testified that she did not report to Lantz what Mick had told her because she
decided to “ponder this over.” She testified that she was not sure she should believe what Mick
had told her and that she thought her coworkers were possibly “trying to set [her] up to see how
far they could push [her]” based on a conversation the day before in which Essman indicated she
would report possible abuse.
Essman reported for work the next night, working the overnight shift on February 21 into
February 22, 2012. Essman worked the full shift without reporting the abuse Mick told her about.
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Essman worked again the following night, February 22 into February 23, and during that shift,
she told one of the shift supervisors, Suellen Johnson, about the possible abuse. Johnson
proceeded to call the “Administrator On Call,” pursuant to BSDC reporting requirements.
In the early morning hours of February 23, 2012, Essman completed several incident
reports describing what she had been told by Mick and her reasons for not immediately reporting
the possible abuse. Essman wrote that she delayed reporting because she was uncertain whether
or not the information she received from Mick was true, because she did not see the abuse
happen; she was worried she might be threatened if she reported the information; and she wanted
to make the report to her own shift supervisor, rather than report it to someone else.
Essman was placed on investigatory suspension due to her failure to timely report the
alleged abuse. BSDC’s investigations unit, in conjunction with the Nebraska State Patrol,
investigated the allegations of abuse as well as Essman’s delay in reporting the possible abuse.
Following the investigation, on May 10, 2012, the Department terminated Essman’s employment
at BSDC. Essman challenged her termination using the applicable grievance process. As part of
the grievance process, a hearing was held before the Board, and following the hearing, the Board
adopted the “Recommended Decision of the Hearing Officer” denying Essman’s appeal. The
Board found that discipline was justified pursuant to 273 Neb. Admin. Code, ch. 14, § 003
(2006), on two grounds: Essman’s violation of BSDC’s abuse/neglect policy, and her negligence
in the performance of her duties. The Board also found that termination was an appropriate
disciplinary sanction.
Essman appealed the Board’s decision to the district court for Lancaster County, which
affirmed the Board’s decision. The district court found that Essman failed to immediately report
possible abuse and that such failure was a plain violation of applicable policy. It further found
that Essman knew she was required to report possible abuse and had numerous opportunities to
do so. The court concluded that Essman’s failure to report the alleged abuse justified the
imposition of discipline and that termination was an appropriate sanction.
ASSIGNMENTS OF ERROR
Essman assigns, restated, that the district court erred in (1) finding that she violated
policy and, therefore, that the Department was justified in imposing discipline; (2) finding that
she was negligent in the performance of her duties; and (3) finding that termination of
employment was an appropriate disciplinary sanction.
STANDARD OF REVIEW
A judgment or final order rendered by a district court in a judicial review pursuant to the
Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for
errors appearing on the record. Ahmann v. Nebraska Dept. of Corr. Servs., 278 Neb. 29, 767
N.W.2d 104 (2009). When reviewing an order of a district court under the Administrative
Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Id.
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An appellate court will not substitute its factual findings for those of the district court
where competent evidence supports those findings. Id. “Competent evidence” means evidence
that tends to establish the fact in issue. Id.
Whether a decision conforms to law is by definition a question of law, in connection with
which an appellate court reaches a conclusion independent of that reached by the lower court. Id.
ANALYSIS
Violation of Abuse/Neglect Policy.
Essman first argues the district court erred in finding that she violated BSDC’s
abuse/neglect policy by failing to immediately report the possible abuse as told to her by Mick
and that therefore, the Department was not justified in imposing discipline.
Under the Nebraska Classified System Personnel Rules & Regulations, specifically 273
Neb. Admin. Code, ch. 14, § 003, disciplinary action may be taken for actions constituting any
one of 17 offenses. One of those offenses is for “[v]iolation of, or failure to comply with: . . .
policies or procedures of the employing agency . . . .” 273 Neb. Admin. Code, ch. 14, § 003.01
(2006).
BSDC’s policy for reporting abuse and neglect states:
It is policy that all incidents perceived or known to reflect abuse or neglect are identified.
Actions are taken and/or safeguards are implemented immediately and maintained at least
for the course of the investigation for designated significant incidents. All incidents of
reported Abuse/Neglect are reported to Adult/Child Protection Services and the ICF
Administrator (Administrator)/Administrator on Call (AOC). Failure to intervene and
report possible abuse/neglect per this policy will result in termination.
(Emphasis supplied.)
The policy also provides that “All suspected or witnessed incidents of abuse/neglect are
reported immediately to the Shift Supervisor.” “Abuse” is defined under the policy as
knowingly, intentionally, or negligently causing or permitting an individual to be placed
in a situation that endangers their life or physical or mental health . . . . Any of the
following when directed towards an individual (including peer to peer) is considered
Abuse or Neglect and is a Serious Reportable Incident, which is reported to the Shift
Supervisor immediately.
Essman argues that she did not violate BSDC’s abuse/neglect policy because the
investigation revealed that there was no abuse of the resident as alleged and she did not observe
abuse or suspect that abuse had actually occurred. Rather, she only suspected that she was being
tested to see how far she would take a rumor.
Essman’s arguments are without merit. She was told of possible abuse on February 21,
2012, and failed to immediately report it. She did not report it before leaving work at the end of
her shift, did not report it during her shift the next night, and finally reported it while working the
second night after being told the information. The policy is clear that all abuse or perceived
abuse is to be reported immediately. Essman’s argument that she did not violate the policy
because she suspected that what Mick had told her was not true is irrelevant under the policy. It
is not an employee’s job or responsibility to investigate an allegation of abuse or to keep the
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information to herself while considering its truth. An employee’s responsibility is simply to
report possible abuse immediately, which Essman failed to do. Further, the fact that the abuse
allegations were determined to be unfounded is of no consequence, because the policy requires
that all possible abuse/neglect be reported immediately. If the possible abuse turns out not to be
true, that does not excuse an employee from failing to immediately report the possible abuse.
Essman testified that she had been trained in regard to the abuse/neglect policy and knew
that she had to report witnessed or possible abuse and that failure to do so would result in
termination. Essman became aware of possible abuse when Mick told her that a resident was
injured by two other employees. Essman failed to immediately report the possible abuse as
required by the policy, waiting 40 hours before finally reporting it to a shift supervisor. We
conclude that the district court did not err in finding that Essman’s failure to report the possible
abuse immediately was a violation of BSDC’s abuse/neglect policy and that the Department was
justified in imposing discipline. Essman’s first assignment of error is without merit.
Essman also assigns that the district court erred in finding that Essman was negligent in
the performance of her duties, another offense under 273 Neb. Admin. Code, ch. 14, § 003, that
allows for disciplinary action. However, although the Board had found that Essman was
negligent in the performance of her duties, the district court made no finding in regard to
Essman’s negligence. Essman acknowledges this in the argument section of her brief. Having
found that the imposition of disciplinary action was justified based on a violation of BSDC’s
abuse/neglect policy, it was not necessary for the district court to discuss the Board’s finding that
Essman was negligent in the performance of her duties. See Edwards v. Mount Moriah
Missionary Baptist Church, 21 Neb. Ct. App. 896, 845 N.W.2d 595 (2014) (appellate court is not
obligated to engage in analysis that is not necessary to adjudicate case and controversy before it).
Accordingly, because the district court did not reach the issue of whether Essman was negligent
in the performance of her duties, there is nothing for us to review and we do not address the
merits of this assignment of error.
Termination as Disciplinary Sanction.
Essman next argues that even if the evidence supports the conclusion that she violated the
policy, the termination of her employment was an excessive disciplinary sanction. Essman
argues that the nature and severity of the violation did not dictate the level of discipline imposed.
She further argues the Board failed to take into account that she had never been disciplined
before and that BSDC had promoted her to a supervisory position.
In part, 273 Neb. Admin. Code, ch. 14, § 001, provides:
The following types of disciplinary issues and levels of disciplinary actions [including
dismissal under 273 Neb. Admin. Code, ch. 14, § 001.06 (2006)] are described in a
progressive manner. However, the nature and severity of the violation will dictate the
level of discipline imposed. More severe levels of disciplinary action may be imposed
when a lesser action is deemed inadequate or has not achieved the desired results.
The rule also requires consideration of the type and frequency of previous offenses, the period of
time elapsed since a prior offense, and consideration of extenuating circumstances.
Nebraska courts have upheld termination as an appropriate sanction in cases where it is
the employee’s first infraction and where the violation involves the safety and security of
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residents and/or the facility, as in the instant case. For example, in Nebraska Dept. of Health &
Human Servs. v. Hansen, 238 Neb. 233, 470 N.W.2d 170 (1991), the plaintiff worked for the
Department of Correctional Services and his supervisor observed him sleeping at his post. The
plaintiff’s employment was terminated based on the risk created by his actions, despite his
average to above-average performance during his 10 years of employment. The plaintiff argued
that the Department of Correctional Services’ concern about a fire or suicide while he was
sleeping was based solely on speculation and conjecture. The Supreme Court held that actual
harm is not required to impose discipline; an employee’s violation of a rule which comprises the
security and integrity of the facility is sufficient for disciplinary action.
In Nebraska Dept. of Health & Human Servs. v. Williams, 16 Neb. Ct. App. 777, 752
N.W.2d 163 (2008), the plaintiff worked for the Department and failed to perform precautionary
checks on at-risk patients within the required 10-minute intervals for a period of nearly an hour.
The plaintiff was terminated from his employment. He had been employed with the Department
for 10 months with positive performance evaluations and no formal discipline. Again, although
no harm resulted, this court upheld the termination based on the risk of harm to the safety and
security of the facility caused by the plaintiff’s violation of the Department rule.
Finally, in Petersen v. Nebraska Dept. of Health & Human Servs., 19 Neb. Ct. App. 314, 805
N.W.2d 667 (2011), the plaintiff admitted that he had smoked marijuana prior to beginning his
shift and was terminated because his offense had the potential to affect his job performance and
jeopardize the safety and security of the facility. The plaintiff had worked for the Department for
28 years without receiving formal discipline.
Like each of the employees in the cases above, Essman was required to ensure the safety
of the facility’s residents. Essman’s primary responsibility was to provide direct care for
individuals living at BSDC and to ensure their continued health and safety. The evidence shows
that the residents are vulnerable and often cannot recognize or report abuse themselves. Despite
her responsibility to ensure the safety of the residents and the policy requirement to report any
possible abuse, when Essman learned of possible abuse, she failed to immediately report it.
During the time she waited to report the possible abuse, she placed the individual residents who
were the subject of the possible abuse at risk of harm, as well as all the residents of BSDC. In
addition, she placed the entire facility itself at risk of losing funding and potentially having to
close. As previously stated, BSDC was penalized in the past for not taking sufficient corrective
action when addressing alleged abuse/neglect, resulting in the loss of significant federal funding
from CMS. Consequently, in order to ensure continued CMS funding, BSDC adopted the subject
policy, providing for zero tolerance in regard to abuse/neglect as well as the reporting of possible
abuse/neglect. The abuse/neglect policy specifically states that failure to report possible abuse
will result in termination. Essman was trained on the abuse/neglect policy, and she testified that
she knew that pursuant to the policy, the consequence for failing to immediately report abuse
was termination.
The fact that Essman had not been previously disciplined and was promoted to a
supervisory position, as well as other extenuating circumstances cited by Essman, does not
outweigh the risk to which she subjected BSDC residents and the facility itself. Given that we
are reviewing this matter pursuant to a de novo review, because the issue is a question of law, we
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conclude that termination was an appropriate level of discipline and that the district court did not
err in so finding.
CONCLUSION
We conclude that the district court did not err in finding that Essman violated BSDC’s
abuse/neglect policy and that the Department was justified in imposing discipline under 273 Neb.
Admin. Code, ch. 14, § 003. We also conclude that the district court did not err in finding that
termination of employment was an appropriate disciplinary sanction. Accordingly, the order of
the district court is affirmed.
AFFIRMED.
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