Illinois Department of Human Services v. Porter

SUPREME COURT CASES

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State: Illinois

Court: 4th District Appellate

Docket No: 4-08-0894 Rel

Case Date: 12/23/2009

Preview:NO. 4-08-0894 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

Filed 12/23/09

THE ILLINOIS DEPARTMENT OF HUMAN ) Appeal from SERVICES, ) Circuit Court of Plaintiff-Appellant and ) Sangamon County Cross-Appellee, ) No. 07MR467 v. ) CANDY PORTER, ) Defendant-Appellee and ) Cross-Appellant, ) and ) THE ILLINOIS CIVIL SERVICE COMMISSION, ) CHRIS KOLKER, RAYMOND EWELL, BARBARA ) J. PETERSON, ARES G. DALIAOIS, and ) BETTY BUKRABA, ) Honorable Defendants-Appellees and ) Patrick W. Kelley, Cross-Appellees. ) Judge Presiding. _________________________________________________________________ PRESIDING JUSTICE MYERSCOUGH delivered the opinion of the court: The Illinois Department of Human Services (Department) appeals the decision of the Illinois Civil Service Commission (Commission), Chris Kolker, Raymond Ewell, Barbara J. Peterson, Ares G. Daliaois, and Betty Bukraba, to suspend Candy Porter in lieu of discharge. Porter cross-appeals, arguing (1) the circuit

court had jurisdiction to consider the issues raised by Porter in her counterclaim for administrative review and (2) the Commission's finding that Porter committed abuse was against the manifest weight of the evidence. We affirm.

I. BACKGROUND For 18 years, Porter worked as a mental-health technician II at Murray Developmental Center (Center) in Centralia,

Illinois.

The Center is operated by the Department. Porter worked in Fir Cottage, which housed very low

functioning, developmentally disabled adults, most of whom were nonverbal. Porter's responsibilities included feeding and

bathing the residents. In September 2006, a coworker, Sandra Coats, accused Porter of two separate incidents of abuse against residents of Fir Cottage: (1) squeezing the hands of three residents to force them to eat and (2) hitting a resident on the back of the head and yelling "stop that rocking." A. The Charges Against Porter The office of Inspector General (OIG) investigated the allegations against Porter. In December 2006, OIG filed a report

on each incident, finding both allegations of abuse substantiated. On January 11, 2007, a predisciplinary hearing was held. On February 8, 2007, the Illinois Department of Central Management Services (CMS) sent Porter the Department's two written charges of recipient abuse and notified her that the Department was seeking her discharge. alleged as follows: "CHARGE [No.] 1: RECIPIENT ABUSE, in that during the week prior to September 1, 2006, Ms. Candy Porter, [m]ental [h]ealth [t]echnician II at the Murray Developmen- 2 The statement of charges

tal Center, working first shift on Fir Cottage, B1 unit, was seen to be 'squeezing' the hands of D.B., J.S., and S.G. in an effort to force these individuals to eat their meals. CHARGE [No.] 2: RECIPIENT ABUSE, in that on or about September 1, 2006, at approximately 10:30 a.m., Ms. Candy Porter, [m]ental [h]ealth [t]echnician II at the Murray Developmental Center, while working first shift on Fir Cottage, B1 unit, used her left hand to hit individual [J.D.] in [sic] the back of the head and yelled 'stop that rocking.'" Testimony at the March 2007 hearing established that charge No. 2 contained a typographical error that identified the resident as S.D. when in fact the resident was J.D. - 3 Porter affirmed at the

hearing that she knew the allegation was that she struck J.D. The charges alleged that Porter violated the following rules, regulations, policies, and procedures: (1) the Department's employee handbook, indicating that violation of any Department policy or regulation could result in disciplinary action up to and including discharge; (2) the Department's administrative directive No. 01.02.03.040, providing that an employee who fails to comply with Department rules will be subject to discipline up to and including discharge; (3) the Center's standard operating policy and procedure No. 320, prohibiting the mistreatment of mentally ill or developmentally disabled individuals and providing that an employee found guilty of mistreatment will be subject to discharge; (4) the Center's standard operating policy and procedure No. 11.1, defining abuse and requiring the reporting of abuse; (5) the Department's program directive No. 02.01.06.010, providing that it is a violation of Department policy to abuse an individual and that any employee who abuses an individual is subject to discipline, up to and including discharge; and (6) the Department's policy and procedure directive No. 01.05.06.08, providing that an employee who abuses a recipient may be subject to discipline, up to and including discharge. Commission. B. Evidence Presented at the Hearing At the March 7, 2007, hearing, the Department presented six witnesses: Porter (called as an adverse witness); Bradley - 4 Porter requested a hearing with the

Davis, the OIG investigator; Coats; coworker Stacy Bryant; Connie Eversgerd, the Center's labor-relations administrator; and Jamie Veach, the Center's director. Porter testified on her own behalf

and also called Eversgerd and Veach. Coats testified she had known Porter for over 20 years, having worked with her at the Center as well as a previous nursing home. lems. Coats and Porter got along well and had no prob-

Porter also testified that she and Coats had a positive Porter referred to Coats as "grandma" or

working relationship. "G-ma."

Coats testified that around September 1, 2006, she returned to the living room of the unit a few minutes early after her lunch break. Other residents were in the living room, but no Coats saw Porter sitting on a

other staff members were present.

couch next to J.D. with her arm around him. Porter testified that J.D. often rocked back and forth. Workers were directed to prompt him to stop rocking because the rocking sometimes caused J.D. to vomit. Coats testified that on

other occasions, Porter had told her, matter of factly, that it aggravated her (Porter) when J.D. rocked. Coats testified that as she entered the room, she saw Porter slap J.D. on the back of the head and heard Porter tell J.D. to "stop that rocking." When asked about J.D.'s reaction to

the slap, Coats testified, he "snapped forward and came back." Coats agreed it would take a significant amount of force to knock J.D. forward, but J.D. did not make a sound. - 5 The slap itself did

not make a sound either. "somewhat noisy."

However, Coats testified the room was

After seeing Porter hit J.D., Coats told Porter, "Leave that boy alone." lunch. Shortly after the incident, Coats told coworker Bryant what happened and asked Bryant if she had heard anything. could not remember what Bryant told her. Coats Porter stood up and said she was leaving for

However, on September

7, 2006, Coats told OIG Investigator Davis that Coats thought Bryant had heard Coats say "Leave that boy alone." As of the

date of the hearing, Coats was no longer sure whether Bryant heard anything. According to Coats, Bryant told the cottage director, Debbie Dunnavan, what happened. The first time Coats talked to

any supervisor about the incident was September 7, 2006. When asked whether she had ever seen Porter act inappropriately toward other residents, Coats testified that she witnessed Porter squeeze the hands of three residents, D.B., J.S., and S.G., while feeding them. Coats believed it occurred

about a week before the J.D. incident, which occurred around September 1, 2006. Coats could not recall at which meal it

occurred (although Investigator Davis testified that Coats told him it occurred during breakfast). Coats testified that she saw Porter feeding D.B. was approximately 10 feet away at another table. structed her view. Coats

Nothing ob-

Coats saw Porter squeezing D.B.'s fingers. - 6 -

D.B. pulled back, straightened his legs, and grimaced.

Coats

asked Porter "if she wasn't squeezing that boy's hand too tight." Porter said "she didn't think so." That same day, during the

same meal, Coats also saw Porter squeezing J.S.'s and S.G.'s hands too tightly. J.S. yelled out. J.S. and S.G. also appeared to pull back. Coats testified J.S. did sometimes yell out,

although it was not common for J.S. to react in that manner during feeding. Other staff members were present in the room No other coworker claimed to (The written state-

when Porter squeezed the hands.

have seen Porter squeeze residents' hands.

ments of four coworkers interviewed by Investigator Davis were admitted by agreement of the parties. Those documents reflect

that the four coworkers reported they had never witnessed Porter squeeze the hands of residents.) Coats did not say anything to Porter about Porter squeezing J.S.'s and S.G.'s hands. Coats testified she should The first time

have reported the hand squeezing but did not.

Coats reported the hand squeezing to a supervisor was when she was "called on the carpet" for not reporting the September 1, 2006, incident regarding J.D. When asked why she waited to When

report the hand squeezing, Coats said she was not sure.

asked why she disclosed the information at all, Coats testified the information needed to be turned in, and she was there to protect the residents. However, Porter was her friend, and Coats testified she

Coats was sad that Porter was discharged.

received a written reprimand for failing to report the alleged - 7 -

abuse of J.D., D.B., J.S., and S.G.

(Eversgerd, however, testi-

fied Coats received an oral reprimand.) Bryant, a mental-health technician II, testified only regarding certain uncharged conduct that the administrative law judge (ALJ) admitted over objection on the ground that it was admissible only for the purpose of impeaching Porter's credibility. Bryant testified the incident occurred at the evening meal

on approximately September 1, 2006, although she did not believe it occurred on the same day as the incident regarding J.D. Bryant observed Porter squeeze S.G.'s hand while feeding her. Bryant told coworker Cathy McCown but did not report it to her supervisor, although she knew she was required to report it. Bryant testified she received a written reprimand for failing to report the incident. (Eversgerd, however, testified Bryant

received an oral reprimand.) Porter testified that she had worked at the Center from February 1988 through the fall of 2006. She knew that physical Porter agreed

abuse of a resident was absolutely prohibited.

that squeezing hands or striking a resident on the back of the head constituted physical abuse, but she denied having done so. Porter denied slapping J.D. Porter testified that it was not

difficult to get J.D. to stop rocking and that slapping him on the head might cause him stress and induce him to vomit. More-

over, Porter testified the couch where the incident allegedly occurred was in full view of the nurse's aide station. However,

she did not recall if anyone was at the nurse's aide station at - 8 -

the time. Porter also denied squeezing any of the residents' hands. Porter testified that she would face no adverse conse-

quences if the residents did not eat and agitating them or causing them pain would not cause them to eat. In addition, D.B.

and S.G. had feeding tubes and could be fed that way if they did not eat or drink enough. Moreover, Porter did not recall Coats

saying something to her about holding a resident's hand too tightly. According to Porter, it was not uncommon to gently hold a resident's hand while feeding. She did not recall, however,

whether she told Investigator Davis that she never held the residents' hands while feeding them. The following exchange

between Porter and the assistant Attorney General occurred regarding Porter's handwritten statement to Investigator Davis: "Q. Okay. I'm going to refer you to

what is A-4, page three of three on your report. It was asked to [sic] you, 'have you Could

ever held their hands while feeding?'

you tell me what your response is there? A. Q. 'No.' Okay. And it's my understanding

that you just testified that you do hold their hands while you're feeding? A. Well, just like holding like this,

but I'm not like talking like holding a grip, - 9 -

no. Q. Okay. And I believe you were also

asked here if you squeezed their hands, and you reported no; right? A. Q. Yeah, I don't squeeze hands, no. Okay. And then you were actually

asked if all you do is ever hold their hands while feeding, and your response to that question was [']no[']. times.['] It wasn't [']someIt wasn't

It wasn't [']maybe['].

[']I don't recall.['] that correct? A. Yes."

It was [']no[']; is

Porter's written statement to Investigator Davis provided, in part, as follows: "[S.G.] on a good day, feeds herself, you might have to help to finish up her meal. When you have to help, she will usually hold her head up & if not I will put *** a couple of my fingers under her chin to help hold it up. [D.B.] I have no problem with him, if he knows it is me feeding him, he will hold his head up the entire time [and] laugh at me. [J.S.] is fed. If he will not hold his

head up I will also put [two] fingers under - 10 -

his chin to help hold his head up. [Q.] When is it necessary to hold a

person that we serve's [sic] hand during feeding a meal? [A.] [Q.] Never that I know of! Have you squeezed the hands of Mr.

S[.] while feeding? [A.] No--it would make him mad--then he

would not eat. [Q.] Did you squeeze Ms. G[.'s] hand to

get her to eat? [A.] part. [Q.] Did you squeeze Mr. B[.'s] hand No--she feeds herself for the most

while feeding him? [A.] [Q.] No--he always eats good for me. When you are feeding the people we

serve, where are your hands? [A.] My left one has the spoon [and] my

right is either holding the plate or two fingers under their chin if necessary. [Q.] Have you ever held their hands

while feeding? [A.] [Q.] No. Is there a reason that you aware

of why anyone would allege that you squeeze - 11 -

their hands to get them to eat? [A.] Not to my knowledge."

Davis, the OIG investigator, testified that he investigated the two separate allegations of abuse against Porter. both cases, Davis found the allegations substantiated. Davis In

testified that when he interviewed Porter, she was not cooperative. However, Porter denied in writing and orally that she

abused any residents. Davis was unable to establish a date for the handsqueezing incident but found the incident occurred approximately one week prior to September 1, 2006, at the breakfast meal. Davis testified that no one corroborated Coats' testimony. The ALJ admitted the OIG reports "to the extent that the[] documents were relied upon by [the Department] in making the decision to discharge Porter." In addition, Porter's state-

ment to Investigator Davis about the hand-squeezing incident was also admitted as a statement inconsistent with Porter's testimony at the hearing. Several individuals testified about the appetite logs. An appetite log is a document that contains a list of the residents' names, a place to mark how much each resident ate or drank, and a place for the initials of the "monitor." Porter's

initials did not appear next to the name of D.B., J.S., or S.G. on any of the breakfast appetite logs for August 23, 24, 25, 26, or 27. Veach, the Center director, and Eversgerd, the labor- 12 -

relations administrator, both testified that the appetite logs were supposed to be accurate and, if they became aware of inaccuracies, the inaccuracies would be investigated. However, Coats

testified that the purpose of the appetite logs was to keep track of how much the residents ate and drank at meals. Although the

person that fed a particular resident was supposed to initial the appetite log, that did not always happen. Coats testified that

sometimes the appetite log did not get filled out or someone else asked how the resident ate and signed off on the appetite log. Coats had also observed occasions when one person fed a resident and his or her initials did not appear on the appetite log. However, if an individual does initial the sheet, that means he or she at least had some role in feeding the resident. Coats did

not recall whether anyone other than Porter fed D.B., J.S., and S.G. the day she saw Porter squeezing their hands. However, when

asked whether, to the best of her knowledge, Porter was the only one who fed D.B., J.S., and S.G. on the day in question, Coats responded, "yes." According to Coats, Porter should have iniWhen asked if it was a

tialed the appetite logs that day.

violation for Porter to have fed the individuals and not put her initials, Coats said it was, but that "[i]t happens all the time." Investigator Davis testified that he was familiar with appetite logs. Davis testified that the appetite logs were

supposed to be completed accurately and complete but that was not always the case. The initials were not always accurate because - 13 -

one person may start to feed a resident and another staff member may step in. Moreover, Davis testified that the purpose of the

appetite logs was to monitor food intake, not track who fed each resident. He used the appetite logs only to identify witnesses. Porter testified that the appetite logs should contain the initials of the person who fed the resident. If more than

one person feeds a resident, both initials should be listed, but that does not always occur. Porter testified the appetite logs

did not show her feeding D.B., J.S., or S.G. breakfast any of the days between August 23 and August 27, 2006. The Department

tendered, but the ALJ ultimately refused to consider, one appetite log for lunch and one appetite log for dinner the week prior to September 1, 2006. Veach, the Center director, testified he was the final decision maker. He reviewed the OIG reports but did not take

that information into consideration when determining whether Porter should be discharged. Veach explained that if the report

"states it's a substantiated case of abuse, it's automatic discharge." This was based on Department of Human Services

Secretary Carol Adams' unwritten zero-tolerance policy. Veach also testified that a medical examination is required after an allegation of abuse is made. Over a hearsay

objection, Veach testified that he had reviewed a report from a doctor who examined the residents. The report indicated one

resident--Veach believed it was D.B., but he was not sure-required a follow-up for a nondisplaced fracture on the left - 14 -

hand, fourth metacarpal.

By the time the specialist saw the

resident, the specialist could not determine the date the injury occurred because the injury had already begun to heal. Eversgerd testified she was familiar with Porter's personnel file. Porter only had one prior disciplinary action Porter had

relating to "some sick time usage many years ago." good evaluations.

Eversgerd also came across language in Por-

ter's personal file characterizing her as a caring employee. Porter had no prior reports of abuse or neglect. However,

because of the substantiated allegation of abuse, termination was automatic. When asked the license ramifications for an employee

who abused a resident, Eversgerd testified that the employee's name will be placed on the "[Nurse] Aide Registry," which prevents an employee from working around residents cared for through the State. Due to the employees' failures to report the suspected abuse by Porter, the Department of Public Health placed the Center on "immediate jeopardy," the second highest level of discipline a facility can receive short of decertification. An

"immediate jeopardy" required a 10-day action plan be submitted to the Department of Public Health, which is then reviewed by CMS. In response to the "immediate jeopardy," Veach implemented

a policy increasing the punishment for a failure to report from progressive discipline (oral warning, written reprimand, et cetera) to a 10-day suspension for a first violation, 20-day suspension for a second violation, and discharge for a third - 15 -

violation. C. The ALJ's Recommended Decision On July 19, 2007, the ALJ entered a recommended decision that the written charges for discharge be found proved and that "sound public opinion recognized the prove[d] charges as good cause for *** Porter to no longer hold the position of [m]ental[-h]ealth [t]echnician II." The ALJ found that the

matter came down to the credibility of two witnesses and that Coats was more credible than Porter. The ALJ noted that Coats

and Porter got along professionally and personally, and Coats did not have a bias against Porter or a motive to testify falsely. Coats' testimony that she witnessed Porter slap J.D. and squeeze the hands of D.B., J.S., and S.G. was credible. The ALJ found

"nothing in [Coats'] tone, demeanor[,] or in the content of her testimony to indicate that Coats was lying, mistaken[,] or testifying falsely against Porter." The ALJ further found that Porter received good work evaluations, had no previous discipline, and appeared to care about the residents she served. was not credible: "Again, Porter flat out denied the charges. Porter did not state that she might have squeezed the residents' hands, or touched J.D.'s head, simply to get the residents' attention. She did not testify that there However, the ALJ found Porter

might have been physical contact as witnessed - 16 -

by Coats but there was no harm, and/or intent to harm, the residents. Rather, Porter tes-

tified that the events described in the charges simply did not happen." The ALJ also found Porter's statements regarding charge No. 1 were "inconsistent." Porter initially told Investigator Davis At the

she never held the residents' hands while feeding them.

hearing, however, Porter testified that she might "gently" hold a resident's hand during the meal. Coats and Bryant offered

credible testimony that they each witnessed Porter squeezing the hands of residents while feeding them, in direct contradiction to Porter's assertion that she never squeezed residents' hands. The ALJ also concluded: "Despite over 18 years of public service with the State of Illinois, no prior discipline, positive work evaluations, and an indication of genuine empathy for the residents she served, sound public policy warrants the discharge of [Porter.] Throughout

this case, [Porter] has flat out denied the allegations (as opposed to acknowledging that the events giving rise to the charges might have happened but the degree of force was misinterpreted or exaggerated by Coats). However, the preponderance of the evidence indicates Porter used physical force--a force - 17 -

that was not 'gentle'--to manipulate the residents' conduct. This behavior was not

necessary, nor reasonable, and it falls squarely under the definition of mistreatment and/or abuse. For the most part, the resi-

dents of Fir Cottage have the intellectual capacity of infants. Most residents are

nonverbal, barely able to meaningfully communicate with others. In sum, they are de-

fenseless and the behavior described in the charges, and ultimately proved at the hearing, is the antithesis of Porter's duty as a [m]ental[-h]ealth [t]echnician II: to protect and care for the residents. For these rea-

sons, sound public policy warrants the discharge of [Porter.]" D. The Commission's Decision In July 2007, Porter filed objections to the recommended decision, including objections to the ALJ's (1) credibility findings; (2) failure to give weight to the appetite logs showing Porter did not feed D.B., J.S., and S.G. breakfast during the time in question; and (3) failure to give any weight to the argument that Porter was denied her right to due process and to adequately defend against the charges because Porter did not know the date the abuse allegedly occurred. On July 19, 2007, the Commission, with one member - 18 -

dissenting, modified and adopted the recommended decision of the ALJ: "It is hereby determined that the written charges for discharge approved by the Director of [CMS], have been prove[d], but the unique factual circumstances surrounding the discharge did not rise to the level which sound public policy recognized as good cause for the employee to no longer hold the position. This is supported by [Porter's] 18

years of service to the State and the lack of a discipline on her record. The Commission

expressly finds that [Porter] committed the actions she is charged with, but in no way is this to be interpreted to mean that unwarranted physical contact with clients is an undisciplineable [sic] offense. The said

prove[d] charges warrant a 90-day suspension in lieu of discharge. It is further recom-

mended that [Porter] undergo any available training regarding the care of residents under her charge. This is a final adminis-

trative order subject to the Administrative Review Act." E. The Circuit Court Proceedings Affirming the Commission On August 21, 2007, the Department filed a complaint - 19 -

for administrative review.

The Department asserted that the

Commission's decision to suspend Porter for 90 days in lieu of discharge was arbitrary and capricious, contrary to mandatory Department policies, legally erroneous, and contrary to sound public policy. On September 6, 2007, Porter answered the complaint and filed a counterclaim for administrative review. In her

counterclaim, Porter sought administrative review of the Commission's decision to the extent it adopted the factual findings of the ALJ and imposed any discipline on Porter. Porter requested

the circuit court reverse the Commission's decision and order the Department to immediately reinstate Porter with back pay, benefits, and seniority. In September and October 2007, the Department and the Commission, respectively, each filed a motion to dismiss Porter's counterclaim asserting the circuit court lacked jurisdiction to consider it. In January 2008, the court dismissed the counterThe court

claim, finding the 35-day requirement jurisdictional.

held that Porter failed to independently file a complaint for administrative review within 35 days of the Commission's decision. The parties briefed the issue raised in the Department's complaint for administrative review. In her brief, Porter

asked the circuit court to review the Commission's factual findings. Porter also asked the court to take judicial notice of

two administrative proceedings. - 20 -

First, Porter asked the court to take judicial notice that the Department agreed to a dismissal of its Nurse Aide Registry petition against Porter. Porter attached (1) a February

2, 2007, letter to Porter from OIG Investigator Davis notifying Porter that due to the substantiated allegation of physical abuse, OIG would report her identity and the findings to the Nurse Aide Registry and (2) an August 21, 2007, notice of dismissal in a Department of Human Services proceeding (Nos. 07-NAR006, 07-NAR-007, OIG No. 5807-04, and OIG No. 5807-005), noting receipt of a stipulated agreement between the Department and Porter and Porter's request that "her appeal be withdrawn." Second, Porter asked the circuit court to take judicial notice of the final administrative order and decision and recommendation of Chief ALJ Naomi Bean Dunn's decision in Department of Public Health, State of Illinois v. Candy Porter, No. CNA 070013, pertaining to the same allegations as the instant case. Porter argued that "[b]ased upon the exact same charges and the same witnesses, the Department of Public Health found the same charges to be unsubstantiated and refused to revoke [Porter's] CNA [(certified nursing assistant)] license or to impose discipline on Porter." Porter attached (1) the January 17, 2008,

final order adopting the recommendations of the ALJ and providing "[t]he finding and allegations of resident abuse is NOT AFFIRMED and SHALL NOT be included in the Nurse Aide Registry"; and (2) the ALJ's recommended decision, dated January 15, 2008, in which the ALJ found Porter credible, did not find Coats' testimony - 21 -

credible, found that the behaviors witnessed by Coats did not rise to the level of abuse as "defined by the Act," and found the Department had not proved that Porter committed the abuse. On September 17, 2008, the circuit court held a hearing. No transcript of the hearing is contained in the record on

appeal. On October 16, 2008, the circuit court entered a written order. The court declined to take judicial notice of the

documents attached to Porter's brief that were outside the administrative record. The court also declined Porter's request

to review the Commission's factual findings because she did not timely file a complaint for administrative review seeking review of the factual findings. The court reviewed the Commission's

decision that Porter's abuse of the residents did not meet the standard for discharge and applied the clearly erroneous standard to its finding. The court held: "5. The Commission is the agency charg-

ed with administering the regulation at issue [(80 Ill. Adm. Code

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