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O'Malley-Donegan v. MetroHealth System

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 13, 2017

ANN O'MALLEY-DONEGAN, PLAINTIFF-APPELLANT
v.
METROHEALTH SYSTEM, ET AL., DEFENDANTS-APPELLEES

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-847212.

          ATTORNEYS FOR APPELLANT Fred M. Bean Brian D. Spitz Spitz Law Firm

          ATTORNEYS FOR APPELLEES Jon M. Dileno David R. Vance Zashin & Rich Co. L.P.A.

          BEFORE: McCormack, P.J., Stewart, J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, JUDGE

         {¶1} Plaintiff-appellant Ann O'Malley-Donegan appeals from a judgment of the Cuyahoga County Court of Common Pleas that granted summary judgment in favor of her former employer MetroHealth System ("MetroHealth") and her former supervisor Tina Szatala. Appellant asserts that MetroHealth terminated her employment in retaliation for her reporting an abuse by a nursing aide who raised all four rails of a resident's bed to confine the resident. After a review of the record and applicable law, we affirm the judgment of the trial court.

         Substantive Facts and Procedural Background

         {¶2} This matter stemmed from an incident on the night of September 22, 2012, at MetroHealth's Prentiss Center, a residential care facility for long-term care. A State Tested Nurse's Aide ("STNA") was in charge of the care of two residents who shared a room. According to the aide, one of the two residents, who suffered from dementia and had a history of behavioral problems, was screaming and banging her head on the walls all night. The aide raised all four rails of the resident's bed and moved her roommate to the hallway so that the roommate could get some sleep.

         {¶3} Around 11:00 p.m., appellant, a licensed practical nurse ("LPN"), was about to begin her night shift at the Prentiss Center when another aide reported to her that a resident was "laying in her bed out in the hallway" outside her room. When appellant opened the door to the room to investigate, she found the other resident of the room on her chair with a night shirt on, while all four rails of her bed were raised. The resident in the room told appellant that the aide would not take her to the restroom and she got out of her bed by sliding to the bottom of the bed. Appellant put the two residents to bed and admonished the aide, advising her that raising all four bed rails and closing the door, thereby isolating the resident, was abusive conduct.

         {¶4} Appellant immediately verbally reported the incident to her intermediate supervisor, Hilary Lacerda. Sometime after midnight, she also provided a written statement to Lacerda, describing the aide's conduct as abuse. By early Sunday morning, two other managers, Evangeline Holleran and Beverly McQuaid, also learned about appellant's report of suspected abuse. To appellant's displeasure, the aide was not removed from her duty immediately - she still worked her 3-11 p.m. shift the next day, caring for the residents involved in the incident.

         {¶5} On Monday morning, September 24, 2012, the administrator of the Prentiss Center, Tina Szatala, learned of the incident and quickly reported the incident to the Ohio Department of Health ("ODH"), submitting a "Self Reported Incident Form." The form contained statements that "a staff member * * * believed another staff member was abusive and neglectful toward a resident, " and a box was checked for alleged physical abuse and neglect. There was also a notation in the form that all four of the resident's guardrails were raised.

         {¶6} In addition to reporting the incident to the ODH, MetroHealth conducted an internal investigation on the same day. It concluded the incident did not constitute abuse, but determined that the aide's conduct was contrary to MetroHealth's established practices. MetroHealth issued a Final Written Warning to the aide for her handling of the two residents.

         {¶7} In response to the incident, MetroHealth provided additional training to its staff about preventing resident abuse and neglect. On October 17, 2012, a meeting was held to address the care of patients with dementia and behavioral difficulties. Appellant interrupted the meeting and admonished the administration for failing to thoroughly investigate her report of abuse. She was told to wait until after the meeting to discuss her abuse allegation. On the same day, appellant telephoned ODH and alleged an aide's abuse of a resident and MetroHealth's failure to properly investigate the abuse. The next day, appellant went to the local police station and attempted to file a report of abuse but was advised to call the Elder Abuse Hotline.

         {¶8} After the October 17, 2012 meeting, Szatala requested a review from MetroHealth's legal department of the September 22, 2012 incident. The legal department recommended re-education of the staff concerning timely reporting of suspected abuse and neglect. On October 19, 2012, MetroHealth conducted the recommended training class. Appellant abruptly departed from the class. She later explained she left due to urinary problems and went to her doctor's office. Her doctor's notes indicated she reported a broken finger as well as urinary tract issues.

         {¶9} On October 24, 2012, ODH visited MetroHealth regarding the incident. It later issued a report regarding its investigation. ODH cited a prior incident involving the same resident where MetroHealth failed to ensure that the staff immediately report an allegation of abuse to their supervisor. Regarding the September 22, 2012 incident, the report noted that the STNA involved in the incident received disciplinary action for her conduct and also that the staff did not follow the abuse protocol that required an immediate notification to a supervisor. The report noted the entire staff received training regarding the protocol of reporting suspected abuse. It also noted that the facility had determined that no abuse occurred, and further that the administration met the required time frame for reporting to the state agency once the administration became aware of the allegation. It concluded the administration's investigation was complete and thorough.[1]

         {¶10} Appellant was dissatisfied with MetroHealth's responses to her report of the incident. She felt MetroHealth did not take her complaint of abuse seriously. She was displeased that MetroHealth did not immediately begin an investigation of the incident within 24 hours of the incident. She was also troubled that the aide involved was not immediately placed on leave pending the investigation - she still worked her normal shift on September 23, 2012, the day after the incident, caring for the same two residents involved in the incident. She felt aggrieved for having never been interviewed by either the administration or ODH regarding the incident.

         {¶11} Prior to the bed-rail incident, between 2009 and 2012, appellant received several disciplinary actions, most of which related to her disagreement with MetroHealth about the handling of patients with a certain bacterial infection: (1) in December 2009, she received a three-day suspension for a "temper-tantrum" over her workload; (2) in September 2011, she received a verbal warning for exceeding the scope of her authority as an LPN and disobeying a directive from a supervisor; (3) in October 2011, she received a written warning for violating patient standards; (4) in January 2012, she received a reprimand for failing to follow instructions; and (5) in March 2012, she received a "Final Written Warning" for improperly diagnosing a resident and failing to accurately document the resident's medical chart.

         {¶12} Six weeks after the bed-rail incident, on November 2, 2012, MetroHealth terminated appellant, citing the following policy violations: "(1) creating a hostile work environment; (2) disruption of business created [through] a refusal to follow procedures; and (3) repeated grossly inappropriate behavior." The disciplinary report cited her exhibition of an ongoing pattern of improper behavior, including her prior disciplinary actions in September 2011 for failure to follow procedures and March 2012 for grossly inappropriate behavior. It also cited her interruption of a training meeting and abrupt departure from another class.

         {¶13} Appellant filed a grievance regarding her termination. Her union, however, subsequently withdrew the grievance and decided not to pursue arbitration.

         {¶14} Sometime in 2013, appellant filed a complaint against MetroHealth and Szatala, claiming her discharge was retaliatory in response to her report of the abuse incident. Specifically, she claimed her discharge was retaliation prohibited by two statutes: R.C. 3721.24 and 4113.52. After ...


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