STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 78-439

)

MARY IGBINOBA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a final hearing in the above case on June 12, 1978, in Miami, Florida.

The following appearances were entered: Leonard Helfand, Coral Gables, Florida, for the Petitioner, Department of Health and Rehabilitative Services; and James K. Clark, of the firm Talburt, Kubicki, and Bradley, Miami, Florida, for the Respondent, Mary Igbinoba.

On or about January 24, 1978, the Department of Health and Rehabilitative Services officially notified the Respondent, Mary Igbinoba, that she was suspended from her employment for a period of five days without pay. The Respondent appealed the decision to the Florida Career Service Commission. In accordance with Section 120.57(1)(b)(3), Florida Statutes (1977), the Commission requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the hearing. The final hearing was scheduled by notice dated March 24, 1978.

The Department called the following witnesses at the final hearing: Pearlie Hicks, a Cottage Group Shift Supervisor II employed by the Department; Leon Rolle, a Cottage Group Shift Supervisor I employed by the Department; and Ernest Pratt, a Cottage Group Shift Supervisor employed by the Respondent. The Respondent appeared as a witness on her own behalf. Petitioner's Exhibit 1 and Respondent's Exhibit 1 were received into evidence at the final hearing. The

parties have submitted Post-Hearing Proposed Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. The Respondent is employed as a "cottage parent" at the Sunland Training Center in Miami, Florida. The Sunland Training Center is a residential facility for mentally retarded citizens. The Respondent has worked in this capacity for approximately five years. Other than the incident which gave rise to this matter, she has had no disciplinary problems during the course of her employment. She has received satisfactory evaluations, and she was described at the hearing by her supervisor as a good employee who has shown good judgment.

2. At the time of the hearing the Respondent had been on maternity leave from her employment since February, 1978. She was scheduled to return to work late in June, 1978.

   
   

3. On December 29, 1977 the Respondent was working as a cottage parent at "Geranium Cottage". Geranium Cottage is an independent living facility. Most of the residents are older clients who possess some degree of self help skills. Such clients frequently display aggressive behavior. Twelve clients resided at Geranium Cottage on December 29.

   
   

4. Roxie Days was one of the clients who resided at Geranium Cottage on December 29, 1977. Roxie Days is 25 or 26 years old, approximately 4 feet tall and 130 pounds. Ms. Days has been a frequent behavior problem, and it is well known to the Respondent and to the Respondent's supervisors that she frequently engages in violent acting out conduct. She is quite strong, and has hurt employees and other clients in the past.

   
   

5. At approximately 8:00 P.M. on December 29, five clients, including Roxie Days, were awake in Geranium Cottage. The other clients were asleep in the dormitory rooms. Roxie Days began misbehaving. She was under her bed giggling and laughing. She then got up on her bed and began throwing objects, turning over chairs and tables, and poking at other clients. She pushed one client down. The Respondent attempted to subdue her, and to protect other clients and herself. Eventually the behavior became so threatening that the Respondent felt she had no choice but to phone her supervisors at the field office to obtain assistance. She made the call at approximately 8:33 P.M. Pearlie Hicks and Leon Rolle are two group supervisors who were, at that time, working in the field office. They immediately left, and arrived at Geranium Cottage within five minutes.

   
   

6. Before the shift supervisors arrived at Geranium Cottage, Roxie Days directed her anger at the Respondent. She met the Respondent in the office where the telephone was located and attempted to grab a Coca Cola bottle. The Respondent got the bottle, and she perceived that Roxie Days was about to strike her. The Respondent threw the Coke bottle in the general direction of the client at the floor in order to frighten her away. This action succeeded in frightening the client and she ran from the cottage through the main entrance. Pieces of glass from the Coke bottle followed her out of the cottage door.

   
   

7. It was at this instant that Ms. Hicks and Mr. Rolle appeared. They observed the client running from the main entrance with pieces of glass sliding out the door. The Respondent immediately began sweeping up the glass, and was sweeping it toward the entrance when Ms. Hicks told her not to sweep it out the door. The three of them then cleaned up the area. Roxie Days was permitted to "cool off" outside, and eventually her anger subsided.

   
   

8. The Respondent prepared a written statement regarding the incidents. The statement was received in evidence at Petitioner's Exhibit 1. The Department elected to suspend the Respondent from her employment for a period of five days, and the Respondent has appealed the decision. The Respondent contends that her action in throwing the bottle was not inappropriate under the circumstances, and that it in fact had the intended result. The Respondent was five months pregnant at the time of the incident, and she was less able to handle a physical assault than under other circumstances. It was clearly not the Respondent's objective to injure the client, or to abuse her. Her objective was to divert the client, and to protect herself.

9. The Department contends that the Respondent mishandled the situation. The Department does not contend that the Respondent was guilty of patient abuse.

   
   

10. The evidence supports a conclusion that the situation was mishandled. The Respondent should have taken steps to obtain aid from her supervisor before she did. She may not have known immediately when the client began to giggle that violence was the next step, but she did know that was frequently the case, and under the circumstances of her being alone and pregnant, it was not appropriate to wait to see if violent acting out was going to occur. Even when she was threatened in the office, the Respondent should not have thrown the bottle. Broken glass at a facility such as this one can cause special hazards. Not only could Roxie Days have been injured, but other clients in the cottage, one of whom was a known self mutilator, were subjected to the hazards.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearing has jurisdiction over the subject matter of this proceeding, and over the parties. Section 120.57(1), Florida Statutes (1977).

    
    

12. The Department has established that the Respondent mishandled the situation that arose at Geranium Cottage on December 29, 1977. The Respondent did not abuse the patient and did not intend to injure the patient, but her action was, under the circumstances, inappropriate.

    
    

13. This case serves to dramatize the hard decisions that must be made on an instant basis by persons who serve on the front line of dispensing services to retarded citizens. The Respondent was undoubtedly placed in a very difficult situation. It is much easier, with the benefit of hindsight and an opportunity to ponder, to decide what action the Respondent should have taken. Nonetheless, the very real possibility that other clients could have been seriously injured by the broken glass justifies the taking of disciplinary action. A five day suspension is at the outer limits of appropriate action, but is justifiable under the circumstances.

    
    

14. The Respondent's appeal should be denied.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That a final order be entered by the Career Service Commission denying the relief requested by the Respondent, Mary Igbinoba, and dismissing her appeal.

DONE and ORDERED this 20th day of July, 1978, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Room 101 Collins Building

Mail: 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1978.

COPIES FURNISHED:

James Clark, Esquire Suite 701

City National Bank Building

25 West Flagler Street Miami, Florida 33130

Leonard Helfand, Esquire District XI

Department of Health and Rehabilitative Services

1320 S. Dixie Highway

Coral Gables, Florida 33146

Mrs. Dorothy B. Roberts

Career Services Appeals Coordinator Room 530 Carlton Building Tallahassee, Florida 32304

Docket for Case No: 78-000439

Orders for Case No: 78-000439