01-001546 Department Of Veterans Affairs vs. Henry Bishop Status: Closed Recommended Order on Thursday, September 27, 2001.

Summary: Failure of proof as to reason to dismiss elderly veteran for violent acts against other assisted living facility residents.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF VETERANS AFFAIRS , )

)

Petitioner, )

)

vs. ) Case No. 01-1546

)

HENRY BISHOP , )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held on

June 26, 2001, in Lake City, Florida, before Ella Jane P. Davis,

a duly-assigned Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : James Sloan, General Counsel

Dep artment of Veterans Affairs

Koger Center, Douglas Building, Suite 100

2540 Executive Center Circle, West

Tallahassee, Florida 32301-4746

For Respondent : Weyman T. Johnson,

Qualified Representative

Suite 2400

6 00 Peachtree Street, Northeast

Atlanta, Georgia 30308-2222

STATEMENT OF THE ISSUE

May Respondent be discharged from the Robert H. Jenkins

Veterans' Domiciliary Home of Florida for four violations of

Rule 55-11.009(1), Florida Administrative Code, as more fully

set out in the February 16, 2001, letter of dismissal.

PRELIMINARY STATEMENT

This case was referred to the Division of Administrative

Hearings on or about April 25, 2001.

At the commencement of the disputed-fact hearing on

June 26, 2001, Weyman T. Johnson was examined and accepted as

Respondent's qualified representative for purposes of this

cause.

Petitioner presented the oral testimony of Tom Leahy,

Craig Bracht, Marjorie Rigdon, and Paulette Tyler. Petitioner

had five exhibits admitted in evidence.

Respondent presented the oral testimony of Ted Cook and

Jerry Orwell and testified on his own behalf.

A Transcript was filed on July 31, 2001. The parties

stipulated to filing their proposals within 21 days of the

filing of the Transcript, or August 21, 2001. Petitioner filed

a Proposed Recommended Order on August 3, 2001. Respondent

filed his Proposed Recommended Order on August 21, 2001.

Petitioner's Amended Proposed Recommended Order apparently only

adds numbers to the paragraphs of the Petitioner's original

proposal and was not objected-to by Respondent. Therefore,

although late-filed, Petitioner's "corrected" Proposed

Recommended Order has been considered.

FINDINGS OF FACT

1. The Robert H. Jenkins Veterans' Domiciliary Home of

Florida (hereafter, "The Veterans' Home"), is licensed by the

Florida Agency for Health Care Administration as an extended

congregate care facility and is also licensed to provide limited

nursing services and limited mental health services. It is

commonly known as an "ALF," or "assisted living facility."

2. The Department of Veterans' Affairs has oversight of

The Veterans' Home. All of its residents are military veterans.

Some have significant physical limitations, such as missing

limbs and blindness. Approximately thirty of its 130 residents

suffer one or more forms of psychiatric disturbance, including,

but not limited to, geriatric conditions.

3. Respondent served with distinction in the United States

Navy during World War II. Thereafter, he graduated from college

and pursued a teaching career at P. B. Young Laboratory School.

He is now retired. He has been a continuous resident of The

Veterans' Home since approximately January 2000.

4. On February 16, 2001, Respondent was issued a letter of

discharge based on the following alleged incidents:

a. FAC 55-11.009(1)(b )3: Members shall

maintain a courteous relationship toward

other members and members of the staff. A

Behavior Management Report ( January 12,

2001 ), reflects that you verbally responded

inappropriately to another member.

b. FAC 55-11.009(1)(b) : Members shall

conduct themselves in a way that does not

endanger the safety or security of other

members of the home. A Behavior Management

Report ( February 2, 2001 ) reflects that you

hit another member in the stomach.

c. FAC 55-11.009(1)(b) : Members shall

conduct themselves in a way that does not

endanger the safety or security of other

members of the home. A Behavior Management

Report ( February 5, 2001 ) reflects that you

pushed another member.

d. FAC 55-11.009(1) : Members of the home

shall cooperate fully in the preservation of

order and discipline in the Home. Behavior

Management Reports ( February 13, 2001 and

February 15, 2001 ) reflect that you

attempted to interfere with nursing services

to another member. (Emphasis supplied).

5. The Veterans Home administrator testified that no

single incident was cause to dismiss Respondent, but that the

cumulative nature of the incidents was behind her decision.

6. No evidence r elated to the dates of February 2, 13, or

15, 2001, was offered.

7. Mr. Cook is a wheelchair-bound amputee, whom Respondent

regularly assists with daily living. On January 1, 2001,

Mr. Cook was unable to feed himself, and Respondent had,

according to their custom, prearranged a tray and two chairs in

the lunchroom so he could feed Mr. Cook. However, there were no

assigned chairs in the lunchroom, and another male resident,

Mr. Gordon Flash, took the seat in the lunchroom customarily

taken by Respondent. Respondent retaliated by pushing over the

chair in which Mr. Flash was seated.

8. Nurse Leahy observed a fresh cut on Mr. Flash's face as

a result of the January 1, 2001, altercation. No one observed

Respondent kick Mr. Flash. Mr. Flash was sent to a hospital

where he was diagnosed with one or two broken ribs. However, no

nexus by medically competent testimony tied Mr. Flash's broken

ribs to his January 1, 2001, altercation with Respondent.

9. The Home's administrator had previously observed

Mr. Flash taking the lunchroom chair in which Mr. Cook

customarily sat and concluded that Mr. Flash was the instigator

and Respondent was the reactor in the January 1, 2001, incident.

Nonetheless, she issued a written warning to both Mr. Flash and

Respondent. Respondent's warning charged him with violating

Rule 55-11.009(1), Florida Administrative Code, not cooperating

fully in the preservation of order and discipline in The Home

and subsection (8), not maintaining a courteous relationship

towards other residents and members of staff. Respondent

acknowledged receipt of this warning and knew that future

similar offenses could result in his dismissal from The

Veterans' Home.

10. Nurse Leahy, who reported the January 1, 2001,

incident, recommended that Mr. Flash and Respondent be kept

separated. After the January 1, 2001, incident, Respondent was

observed modifying his own behavior by moving himself and

Mr. Cook to other chairs in the lunchroom.

11. On January 12, 2001, Custodial Supervisor Craig Bracht

observed Respondent and another resident, Mr. Pullio, in a

hallway, pulling a legally blind female resident between them in

something akin to a tug-of-war. Respondent had cocked his arm

back, apparently threatening to hit Mr. Pullio if he did not

turn the female resident loose. Mr. Bracht asked the males to

"behave" and directed the female on her way. Mr. Bracht had

observed Mr. Pullio acting mildly erratic before. Mr. Pullio

has psychiatric infirmities. Mr. Bracht counseled Respondent

that what he was doing was not a good thing. Respondent and

Mr. Pullio went on their respective ways.

12. On February 5, 2001, Marjorie Rigdon, Nursing

Supervisor, witnessed Respondent pull Mr. Flash by his arm out

of a medication line and push Mr. Flash so violently that

Mr. Flash "staggered backwards" but "managed to catch himself

before he fell." Ms. Rigdon wrote a Behavior Management Report

memorializing this incident and recommending as alternative

means to prevent recurrence of such incidents, that Respondent

and Mr. Flash report for medication at different times or that

Respondent be missed.

13. Mr. Flash had a reputation for butting ahead in the

medication line. It is probable Mr. Flash broke in line out of

turn on February 5, 2001.

14. Misunderstandings regarding the medication line and

alleged breaking in line are frequent at The Veterans' Home.

Mentally impaired patients frequently will not wait in turn.

Counseling or case management concerning the problem is a

frequent occurrence. There was evidence that residents who

observed the February 5, 2001, incident were divided on whether

Respondent was a hero for defending fair play (waiting in line)

or a villain for interfering with Mr. Flash's position in line.

15. Mr. Flash voluntaril y checked out of The Veterans'

Home prior to the disputed-fact hearing.

16. Respondent has no known mental infirmity, but he has

frequently evidenced lack of patience and demonstrated

intolerance of mentally infirm residents. At the same time, he

has been a valiant defender of those physically infirm patients

he has been asked by the Home's staff to assist and those

physically infirm patients he has appointed himself to assist.

He has always responded to the administrator's requests to help

other residents. Even now, the administrator would trust him to

orient new residents.

17. As of the date of hearing, Respondent had resided at

The Veterans' Home for 18 months and had served as elected vice-

president of the Residents' Council for the last six months.

18. During the five months between the February 5, 2001,

incident and the date of hearing, Respondent's behavior seems to

have remediated. Instructed and cautioned by Mr. Orwell, the

elected President of the Residents' Council, Respondent has

modified his impatience and his aggressive behavior by writing-

up reports of residents' conflicts for resolution by the

Administrator or for mediation by the Residents' Council,

Mr. Orwell, or himself.

19. The administrator acknowledged Respondent's recent

good behavior but attributed it to the potential of the instant

cause to dismiss him from The Veterans' Home.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1), Florida Statutes.

21. The issue to be resolved in this proceeding concerns

whether Respondent should be dismissed from the R. H. Jenkins

Veterans' Domiciliary Home of Florida pursuant to the provisions

of Section 296.04(5), Florida Statutes, and Rule 55-11.009(2),

Florida Administrative Code.

22. The duty to go forward and burden of proof by a

preponderance of the evidence is upon Petitioner.

23. Section 296.04, Florida Statutes, provides, in

pertinent part,

(5)(a ) The administrator shall administer

and enforce all rules of the home, including

rules of discipline, and may dismiss any

resident of the home for any infraction of

the rules, subject to the approval of the

director.

24. Respondent is charged solely under Rule

55-11.009(1)(b) and (1)(b)(3), Florida Administrative Code,

which provides:

55-11.009--Order and Discipline of

Residents.

(1 ) Residents of the home shall cooperate

fully in the preservation or order and

discipline in the home.

(a ) Residents shall observe good health

habits and personal hygiene.

1. Except for any specific area designated

by the Administrator for such use, the use

of tobacco products inside the home is

prohibited. Areas shall be designated

outside the home for such use.

2. The use or possession of non-medicinal

alcohol, illegal drugs or any controlled

substance in the home or on the grounds of

the home, is prohibited. Prescription drugs

will be controlled by the home, and

administered or supervised by the home

staff.

3. Residents shall maintain their persons

and their living areas in a clean and

sanitary manner.

4. Residents shall submit to such physical

or mental examinations and shall cooperate

in such health or rehabilitative programs as

may be required by Health services.

(b ) Residents shall conduct themselves in a

way that does not endanger the safety or

security of other residents of the home.

1. Residents shall not bring anything into

the home or onto the grounds of the home

that endangers the safety or security of

other residents.

2. Residents shall not have personal items

in their possession that would constitute a

fire or safety hazard.

3. Residents shall maintain a courteous

relationship toward other residents and

members of the staff. Abusive, profane, or

obscene language shall not be used.

4. Residents shall dress appropriately for

the particular activity that they may be

engaged in from time to time.

5. Residents shall respect the property of

other residents and the facilities of the

home.

6. Illegal gambling shall not be permitted

at the home. (Emphasis supplied).

25. Rule 55-11.009(2), Florida Administrative Code, is in

accord with Section 296.04(5)(a), Florida Statutes, and empowers

The Veterans' Home administrator to discharge a resident, as

follows:

(2 ) The Administrator, subject to the

approval of the Director, is empowered by

Section 296.04, Florida Statutes, to dismiss

a resident of the home for any infraction of

these rules.

26. Respondent asserts that under the rule of ejusdem

generis , Rule 55-11.009(1)(b )3, should be interpreted in light

of the specific examples of "abusive, profane, or obscene

language," and that under the rule of noscitus a sociis ,

Rule 55-11.009(1)(b) should be considered in light of all six

examples listed therein. It is not necessary to address either

of these legalistic concepts because the law is clear that

Respondent may be dismissed, upon proper notice, for physical

violence.

27. Physical violence by Respondent against Mr. Flash on

January 1, 2001, and on February 5, 2001, and threatened

physical violence by Respondent against Mr. Pullio on

January 12, 2001, were proven.

28. As to the January 1, 2001, incident in which

Mr. Flash's head (and possibly more) was injured by Respondent,

Respondent's defense of his chair and Mr. Cook's "lunchroom

territory" is not acceptable behavior regardless of how

"provoking" Mr. Flash was, but this violent behavior was not

charged against Respondent as grounds for the proposed agency

action of dismissal from the facility, and at this late date, it

cannot form grounds for the proposed agency action of dismissal.

29. Although he previously had acknowledged a warning for

the January 1, 2001, chair incident, Respondent was not charged

with the January 1, 2001, chair incident in the February 16,

2001, letter of dismissal, which is the proposed final agency

action letter herein. Therefore, he cannot be dismissed for the

January 1, 2001, chair incident, even though it was proven to

have occurred.

30. Also, no evidence was adduced for the dates of

February 2, 13, and 15, 2001, for which dates Respondent was

charged. Consequently, he cannot be dismissed on those charges.

31. It was established that all three proven incidents

(January 1, January 12, and February 5, 2001) were provoked by

another resident. It was further proven that in the January 12

and February 5 incidents, the only incidents both charged

against Respondent and proven against him, another resident was

the aggressor and Respondent was reacting in defense of weaker,

less sophisticated residents.

32. There may be standards established as to the degree of

force permissible for an ALF employee to use in the defense of

residents against each other, but the degree of force

permissible for a citizen to use in the defense of his less

capable comrades has never been spelled-out by rule. Suffice to

say that "excessive force" by Respondent was not established

here.

33. Even if all three proven incidents were lumped

together, the undersigned is not satisfied that in light of

Respondent's subsequent rehabilitation, his continued presence

is detrimental to the overall functioning of The Veterans' Home

in attempting to fulfill its commitments to all residents and to

carry out its ultimate mission of providing for the well-being

of the residents.

34. Good cause for Respondent's dismissal has not been

demonstrated.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that the Department of Veterans Affairs enter a

final order which:

Rescinds the February 16, 2001, letter of dismissal and

returns Respondent to full status in the Robert H. Jenkins

Veterans' Domiciliary Home.

DONE AND ENTERED this 27th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of September, 2001.

COPIES FURNISHED:

James Sloan, General Counsel

Department of Veterans Affairs

Koger Center, Douglas Building, Suite 100

2540 Executive Center Circle, West

Tallahassee, Florida 32301-4746

Weyman T. Johnson,

Qualified Representative

Suite 2400

600 Peachtree Street Northeast

Atlanta, Georgia 30308-2222

Jennifer Carroll, Executive Director

Department of Veterans Affairs

Koger Center, Douglas Building, Suite 100

2450 Executive Center Circle, West

Tallahassee, Florida 32301-2222

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.