Health & Hospitals Corp. (Henry J. Carter Specialty Hospital & Nursing Facility) v. Johnson OATH Index No. 1415/16 (Sept.

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1 Health & Hospitals Corp. (Henry J. Carter Specialty Hospital & Nursing Facility) v. Johnson OATH Index No. 1415/16 (Sept. 20, 2016) Petitioner did not establish that respondent, a licensed practical nurse, used profanity or was verbally and physically abusive towards a patient, or that respondent made threatening remarks towards an employee and a potential witness. ALJ recommends that the charges against respondent be dismissed. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of HEALTH AND HOSPITALS CORPORATION (HENRY J. CARTER SPECIALTY HOSPITAL & NURSING FACILITY) Petitioner - against - FIONA JOHNSON Respondent REPORT AND RECOMMENDATION NOEL R. GARCIA, Administrative Law Judge This employee disciplinary proceeding was referred by petitioner, the New York City Health and Hospitals Corporation, under section 7:5 of the Personnel Rules and Regulations of the Corporation. Petitioner charged respondent Fiona Johnson, a licensed practical nurse, with using profanity and being verbally and physically abusive towards a patient, with making threatening remarks towards an employee, and with threatening a potential witness in an attempt to interfere with the investigation into her alleged misconduct (ALJ Ex. 1). Respondent denied the charges. At trial, held on June 17 and July 13, 2016, petitioner relied on testimony from four witnesses, as well as video and documentary evidence. Respondent testified on her own behalf, and also offered the testimony of three witnesses and documentary evidence. For the reasons provided below, petitioner did not establish the charges.

2 - 2 - ANALYSIS Use of Profanity; Verbal and Physical Abuse (Specifications 1-3) In 2015, patient D.O. was a resident at petitioner s nursing facility (Tr. 6-7). D.O. s bedroom was located on the second floor, and she was provided a call bell to request assistance (Tr. 16, 36-7). In , respondent was assigned to the patient s unit for approximately 18 months, and provided care to D.O. several times (Tr ). Respondent wore a nametag while on duty (Tr. 218). On October 18, 2015, D.O. allegedly complained to a staff member that respondent had grabbed her in a rough manner and called her a derogatory name (Tr. 73). After an investigation by petitioner, a report on the incident stated that the allegations against respondent could not be substantiated (Pet. Ex. 5). Nevertheless, petitioner suspended respondent for 30 days, transferred her to another facility, and filed the foregoing disciplinary charges (Tr ). At trial, D.O. testified that on an unspecified date, a tall female nurse who was giving her a bath grabbed her right arm and called her a jackass. The nurse also said fuck me and told D.O. not to ring the damn bell (Tr. 8-9). The patient stated that she had seen the nurse before, but did not know her name. Upon observing respondent in the hearing room, D.O. testified that she had never seen respondent before, stating that [i]t s my first time seeing her now (Tr ). Ms. Jeremiah, an institutional aide in petitioner s housekeeping department, testified that on October 17, 2015, she saw respondent in D.O. s bedroom (Tr ). She heard respondent telling D.O. in a loud voice why are you crying or to stop the crying and to turn [her] back (Tr. 71, 93). The next day, a Sunday, Ms. Jeremiah saw D.O. sitting on her bed holding her hand. When she inquired why she looked sad, D.O. answered that a nurse had twisted her hand, and called her a jackass (Tr. 73). Ms. Jeremiah asked D.O. who did it, and D.O. responded that it was a tall lady. Ms. Jeremiah asked if it was Crystal, and then, if it was Fiona Johnson who did it. D.O. answered that it was not Crystal, but that it was Ms. Johnson who did it to her (Tr. 74, 100). At the suggestion of Ms. Thorpe 1, a certified nursing aide who entered the room and was informed of D.O. s allegations, Ms. Jeremiah waited until Monday evening to report the incident to her supervisor (Tr , ). After speaking to her 1 A review of the evidence reveals that the person addressed as Ms. Thorpe by the patient representative who investigated the incident is the same person called Ms. Topps by Ms. Jeremiah (Tr. 108; Pet. Exs. 2, 5). For clarity, the name Ms. Thorpe is used throughout this Report and Recommendation.

3 - 3 - supervisor, Ms. Jeremiah reported the allegations to the human resources department, and later wrote a statement (Tr ; Pet. Ex. 2). Ms. Koroma, a patient representative, testified that after learning via that an incident had occurred with a patient, she conducted an investigation (Tr. 113). Ms. Koroma interviewed D.O., who told her that during the weekend and without provocation, a staff member grabbed her right hand and hurt her and called her a jackass (Tr. 114). When Ms. Koroma showed D.O. various photographs of male and female staff members, D.O. selected respondent s photograph and identified her as the staff member who mistreated her (Tr ; Pet. Exs. 4(a)-(h)). Ms. Koroma and another colleague co-authored a report memorializing the complaint and investigation (Pet. Ex. 5). The report states that D.O. alleged that the same staff member who provided her with morning care earlier, returned to her room and grabbed and squeezed her right wrist. The report notes that the incident occurred on Sunday, October 18, 2015, and not Saturday, October 17, 2015, as alleged in Specifications 1-3 (ALJ Ex. 1). The report further notes that D.O. initially stated that she did not exchange words with the staff member, but she then admitted that she hit the employee. At a subsequent interview conducted a few days later, D.O. added to her initial statement that the staff member told her not to ring that f-ing bell, and slapped her in the hand. The Koroma report concluded that the allegations against respondent could not be substantiated, in part because there were no signs that D.O. was physically abused (Tr. 143; Pet. Ex. 5). Respondent testified that on October 17, 2015, she was assigned as D.O. s treatment nurse (Tr ). In that role, respondent spent 15 to 20 minutes helping D.O. wash herself with baby wipes, replacing old dressings, and applying lotion (Tr ). At one point, D.O. slapped respondent s arm. Upon being questioned by respondent, D.O. explained that she did not want respondent to apply lotion to her face. Respondent then continued to apply lotion to the rest of the patient s body and left the room (Tr ). Respondent stated that she briefly stopped by D.O. s room on two other occasions on that day to assist D.O. with minor requests (Tr ). On October 18, 2015, respondent was assigned as the medication nurse. Accordingly, respondent visited D.O. several times throughout the day to administer D.O. s medication, and to

4 - 4 - answer any call bells (Tr ). Respondent denied that she was physically or verbally abusive, or that she used profanity towards D.O. during the two days in question. To the extent the parties have presented conflicting testimony on relevant facts, a credibility determination is required. In making a credibility determination, this tribunal may consider such factors as witness demeanor; consistency of the witness s testimony; supporting or corroborating evidence; witness motivation, bias, or prejudice; and the degree to which a witness s testimony comports with common sense and human experience. Dep t of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 5, 1998), aff d, NYC Civ. Serv. Comm n Item No. CD A (Sept. 9, 1998). As the alleged victim of respondent s mistreatment, D.O. s testimony formed the crux of petitioner s case. Yet the patient s testimony was often vague, confusing, contradictory, and generally unreliable. That is not to say the patient provided intentionally misleading or false testimony, but rather that her testimony was severely compromised by her poor recollection of events. Critically, D.O. did not identify respondent as the person who mistreated her, and stated that she did not know the name of the person who did. Petitioner suggested that because at trial respondent s hair was curly and she wore eyeglasses, but at the time of the alleged incident respondent s hair was straight and she did not wear eyeglasses, D.O. was unable to recognize her. However, a review of the video evidence established that respondent s appearance during the relevant dates was not significantly different from her appearance at trial. Tellingly, none of the other witnesses had any trouble recognizing respondent. Also, the patient described the nurse who mistreated her as wearing a brown shirt, but the video evidence showed that respondent was wearing a multicolored shirt on October 17, and a red shirt on October 18 (Tr. 10; Pet. Exs. 3(a), (b)). The patient described the same nurse as having worked there for [a] couple of days, but the uncontested evidence established respondent was assigned to the patient s unit for 18 months, provided care for her multiple times, and used a nametag (Tr. 14, ). In all, the patient s testimony indicated that respondent was not the person who committed the misconduct alleged. Petitioner attempted to use hearsay and circumstantial evidence to establish that, D.O. s testimony notwithstanding, it was respondent who mistreated the patient. Petitioner argued that because D.O. testified she was mistreated by the nurse who gave her a bath, and because respondent helped D.O. wash herself on Saturday, October 17, respondent committed the

5 - 5 - misconduct on that day (Tr. 8-9, 52, ). Ms. Koroma s report, however, states that the patient claimed she was mistreated by a staff member on Sunday, October 18, a date on which respondent was assigned as the medication nurse. Instead, Ms. Bostick, a certified nurse s aide, admitted that she gave the patient care on Sunday while the patient washed her upper body (Resp. Ex. 2). It was uncontested that two days later a supervisor told Ms. Bostick that D.O. had made a complaint against her. Ms. Bostick was required to submit a written statement regarding her interaction with D.O. during that Sunday (Tr ; Resp. Ex. 2). Petitioner did not address if the complaint against Ms. Bostick was investigated, or provide the results of any such investigation. Ms. Koroma attempted to explain away the discrepancy about the date of respondent s alleged misconduct by testifying that D.O. claimed that the staff member who mistreated her was the one who provided her with morning care the day before, which was Saturday, not Sunday (Tr. 150). Ms. Koroma s testimony was not credible, as it plainly contradicted her contemporaneous report that the incident occurred on Sunday, there was no evidence she ever attempted to correct her report, and she offered her belated explanation only after the discrepancy was exposed during cross-examination. Based upon the Koroma report, I find that the patient stated she was mistreated by a staff member who helped her wash herself on Sunday, not Saturday. Such testimony casts further doubt that respondent was the person who committed the alleged misconduct. Ms. Koroma stated that D.O. picked respondent from a group of eight photographs of staff members assigned to the patient s unit, of which six of the photographs were of female staff members (Pet. Exs. 4(a)-(h)). However, Ms. Koroma did not specify if the photographs only included staff members who worked in the unit on Saturday, October 17, or if it also included staff members assigned to the unit on Sunday, October 18. Significantly, Ms. Bostick testified she did not work on Saturday, but did work on Sunday. But because not all the staff members in the photographs were identified at trial, it is unknown if Ms. Bostick was included in the photo array shown to the patient. In addition, a thorough review of the evidence reveals that six female staff members, not including Ms. Jeremiah, entered D.O. s room on the weekend in question: respondent (Tr. 219), Ms. Bostick (Tr. 187), Ms. Simpson (Tr. 222); Ms. Shaji (Tr ); Ms. Benitez (Tr ) and Ms. Thorpe (Tr , ; Pet. Ex. 2). Yet of the six photographs of female staff

6 - 6 - members shown to the patient, one appeared to have the initials D.C. (Pet. Ex. 4(b)), another had the initials S.J. (Pet. Ex. 4(c)), one was Ms. Benitez (Pet. Ex. 4(a)), one was respondent (Pet. Ex. 4(f)), and two are unknown (Pet. Exs. 4(e), (g)). Therefore, it appears that not all of the female staff members who were assigned to the patient s unit during the days in question were part of the photo array. As such, the photo array shown to the patient was incomplete, and potentially suggestive. In sum, Ms. Koroma s testimony that D.O. picked respondent from a photograph as the person who mistreated her was insufficient to overcome the patient s failure to identify respondent at trial, or the evidence that the alleged misconduct occurred on Sunday, when another staff member helped wash the patient. I also did not credit Ms. Koroma s testimony that at a subsequent interview, D.O. specifically identified respondent as the person who told her not to ring that f-ing bell, and slapped her on the hand (Tr ). This additional allegation was made after the investigation had closed, and in the addendum to her report Ms. Koroma noted only that such actions were committed by an employee (Pet. Ex. 5). Further, I reject petitioner s argument that respondent injured the patient (Tr. 249). Ms. Koroma testified that a physician assessed the patient following the alleged incident and found no signs of physical abuse (Tr. 143). While it appears the patient s arm was at some point placed in a cast, petitioner presented no reliable evidence as to when the cast was placed on D.O., what injury was sustained, or that respondent caused any injury (Tr. 144). Petitioner also relied on Ms. Jeremiah s testimony that on the Saturday in question, she heard respondent tell D.O. in a loud voice why are you crying or to stop the crying and to turn [her] back, and that such testimony was corroborated by the video evidence (Tr. 71, 93). According to Ms. Koroma, the video evidence displays the hallway outside of D.O. s room, and it depicts Ms. Jeremiah, respondent, and other staff members walking in the hallway, and going in and out of rooms (Pet. Ex. 3(a)). However, after initially testifying that the first door on the left of the hallway was the entrance to D.O s room, on cross-examination Ms. Koroma testified she was not sure which door was the entrance (Tr. 148). Therefore, while it was uncontested that respondent and Ms. Jeremiah were in the hallway near D.O. s room on Saturday, the video did not help demonstrate if or when Ms. Jeremiah overheard any statements respondent made to the patient.

7 - 7 - Ms. Jeremiah testified that the next day she saw D.O. sitting on her bed holding her hand, and that D.O. told her that a nurse had twisted her hand and called her a jackass (Tr. 73). But Ms. Jeremiah s testimony did not specify whether this encounter with the nurse took place on either Saturday or Sunday. Also, D.O. first told Ms. Jeremiah that the nurse was a tall lady, but then claimed that it was respondent who mistreated her only after Ms. Jeremiah mentioned respondent s name. Yet D.O. did not identify respondent by name when she was interviewed by Ms. Koroma a day or two later, or at trial (Tr. 144; Pet. Ex. 5). Ms. Jeremiah s testimony was suspect and not credible, as she admitted that prior to the incident in question, she received a transfer from the second floor by telling her supervisor you have to get me out of there, otherwise, I m quitting because she felt bullied by respondent and another nurse (Tr , 95-96, 99). Her additional testimony that in the last moments of her last day assigned to the second floor she coincidentally received a serious complaint against the very individual that caused her to request the transfer was also unconvincing (Tr ). After receiving the complaint, Ms. Jeremiah claimed that Ms. Thorpe walked into D.O s room and was informed of D.O. s allegations. Ms. Koroma testified that a written statement was requested from the staff member who was in the room when D.O. made the alleged complaint to Ms. Jeremiah, presumably Ms. Thorpe (Tr. 155). Yet Ms. Thorpe was not called to testify, nor was any written statement she authored submitted into evidence, with no explanation given. In contrast, respondent credibly and consistently testified about the various times she interacted with the patient on the weekend in question, and firmly denied verbally or physically abusing the patient, or using profanity towards her. Ms. Shaji, Ms. Bostick, and Ms. Benitez all credibly testified and submitted written statements that they interacted with D.O. during that same weekend, and that D.O did not complain that she had been abused, cursed at, or injured (Tr. 174, 188, 200; Resp. Exs. 1-3). Specification 1 alleges that respondent directed the patient to turn her back and stop crying, called the patient a jackass, and told the patient not to ring that damn bell and/or not to ring that fucking bell. Specification 2 alleges that respondent used profanity towards the patient.

8 - 8 - As claimed by Ms. Jeremiah, respondent told D.O. to turn [her] back, but such instruction by a nurse was not inappropriate when helping to wash a patient. Similarly, there was no offense in a nurse asking a patient why are you crying. While telling a patient to stop the crying may sound unsympathetic, such a statement did not amount to verbal abuse. Accordingly, any statements Ms. Jeremiah overheard respondent make to the patient on Saturday did not constitute misconduct. While I credited D.O s testimony that a staff member called her a jackass, told her not to ring the damn bell, and stated fuck me, the evidence did not establish that respondent made these statements. As petitioner did not establish that respondent used profanity or was verbally abusive towards the patient, Specifications 1 and 2 should be dismissed. Specification 3 alleges that respondent slapped the patient and/or clutched or twisted the patient s arm. Once more, while I credited D.O. s testimony that she was grabbed by the wrist, the evidence did not establish that it was respondent who did so. I credited respondent s testimony that she did not physically abuse the patient, and did not credit Ms. Koroma s uncorroborated hearsay report that respondent struck patient in a slapping manner. Accordingly, Specification 3 should be dismissed. Verbal Threats (Specifications 4-5) Specifications 4 and 5 allege that respondent made threatening remarks towards Ms. Jeremiah, and that respondent later made additional threats in an attempt to interfere with the investigation into her misconduct (Tr. 250; ALJ Ex. 1). Specifically, Ms. Jeremiah testified that on October 20, 2015, respondent s friend told her that respondent had threatened to beat [Ms. Jeremiah] up if she saw her. Ms. Jeremiah refused to divulge the name of respondent s friend at trial (Tr , 103). As Ms. Jeremiah did not directly hear respondent make any threatening remark, but instead heard it from an unidentified source, her testimony was hearsay upon hearsay. While such testimony is admissible under our rules, in cases where a charge is based primarily on hearsay, hearsay has been deemed sufficiently reliable only if the statement is detailed and corroborated. Human Resources Admin. v. Green, OATH Index No. 3347/09 at 8 (Nov. 18, 2009) (citing Calhoun v. Bailar, 626 F.2d 145, (9th Cir. 1980)); Dep't of Environmental

9 - 9 - Protection v. Ginty, OATH Index No. 1627/07 at 16, 20 (Aug. 10, 2007). Further, double hearsay has a diminished reliability, particularly when it is the main evidence on a crucial issue. See Business Integrity Comm n v. Liberty Water & Sewer, LLC, OATH Index No. 983/13 at 5 (Jan. 25, 2013) (though hearsay is admissible, hearsay upon hearsay has been held to have diminished reliability ); Taxi & Limousine Comm n v. Singh, OATH Index No. 984/07 at 6 n.1 (Jan. 26, 2007) (double hearsay statement on critical issues found to be conclusory and unreliable ). Here, the testimony that respondent told a friend that she would beat up Ms. Jeremiah if she saw her was uncorroborated and unreliable hearsay upon hearsay, and was insufficient to prove the charge. As to Specification 5, Ms. Jeremiah stated that she was approached by Mr. Ortiz, her union representative (Tr ). Mr. Ortiz told Ms. Jeremiah to testify that sometimes patients usually scream and... make up things just to get attention. Mr. Ortiz also stated to her that [petitioner] don t care about you. But when you re on the street, you never know what will happen to you (Tr ). Even if such remarks are construed as an implicit threat, petitioner presented no evidence that respondent was in any way responsible for such remarks to Ms. Jeremiah. Accordingly, the evidence did not establish that respondent made threatening remarks towards Ms. Jeremiah, as alleged in Specifications 4 and 5, and the charges should be dismissed. FINDINGS 1. Petitioner did not establish by a preponderance of the credible evidence that on October 17, 2015, respondent used profanity, or was verbally and physically abusive towards a patient, as alleged in Specifications Petitioner did not establish by a preponderance of the credible evidence that respondent made threatening remarks towards an employee, or that respondent threatened a potential witness in an attempt to interfere with the investigation into her alleged misconduct, as alleged in Specifications 4 and 5.

10 CONCLUSION The charges should be dismissed. In addition, respondent s pay should be restored for the 30 work days during which she was suspended. September 20, 2016 Noel R. Garcia Administrative Law Judge SUBMITTED TO: ROBERT K. HUGHES Executive Director APPEARANCES: CHRISTINA E. PAPADOPOULOS, ESQ. Attorney for Petitioner RICHARD J. WASHINGTON, ESQ. Attorney for Respondent