ALJDEC decisions subject to certification as final

08A-2008002-AJFD · Apache Junction Fire District · 2008-07-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 6, 2008 and May 15, 2008. Record remained open for post hearing submissions. The record closed on June 30, 2008. APPEARANCES: Michael R. Pruitt, Esq. for Tim O’Brien; Donna M. Aversa, Esq. for the Apache Junction Fire District ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ ISSUE The issue before this Tribunal is whether the determination made by the Apache Junction Fire District (“AJFD”) to terminate Tim O’Brien’s (“Appellant”) employment was taken without reasonable cause or was done arbitrarily. Procedural Issue Prior to the hearing being convened, AJFD filed a Motion for Judgment as a Matter of Law (“Motion”). The Administrative Law Judge took the Motion under advisement and provided an opportunity for Appellant to file a Response and AJFD to file a Reply after the evidentiary portion of the hearing concluded. Upon review of the filings made by the parties, the Administrative Law Judge concludes that the Motion is denied for the reason that the identification of information considered by Chief Flynn in reaching his determination to terminate Appellant’s employment with AJFD was a matter of contention and the weight to be given such evidence is a matter of discretion based upon the totality of the evidence presented including the credibility of the witnesses. FINDINGS OF FACT 1. Appellant is a firefighter/paramedic, who has been employed by the AJFD for about 18 years. He is also certified as an emergency medical technician (“EMT”). 2. During the latter part of 2006, Appellant was suspended for three days without pay based on improper conduct that occurred on October 2, 2006. After serving the three day suspension and attending counseling, Appellant grieved the disciplinary action. 3. On October 2, 2006, Appellant was assigned to AJFD Engine Crew #261 (“Crew # 261”), who responded to a call involving an individual (“patient”) who was confrontational and was handcuffed by the Apache Junction Police when Crew #261 arrived on the scene. 4. The call that Crew #261 responded to mentioned that the patient was complaining of having an aneurism. Crew #261 was under the supervision of Captain Dave McCormick (“Captain McCormick”). 5. In addition to the Apache Junction Police being on the scene, Southwest Ambulance arrived on the scene to transport the patient. There were two female Southwest Ambulance attendants, a paramedic and a driver/EMT. 6. The patient used profanity and acted combatively towards the Apache Junction Police, the crew of Southwest Ambulance and Crew #261. 7. Appellant took responsibility for providing care to the patient. Appellant attempted to assess the patient’s condition but the patient was uncooperative. 8. Apache Junction Police learned that the individual had an outstanding warrant in Mesa and placed a call to the Mesa Police Department. 9. The evidence of record established that the patient had personal items in a shopping bag and also had a knife and a hammer in his possession. 10. Although Appellant took the patient’s vitals, because there is no way to confirm an aneurism on-site, the decision was made to have the patient transported to Banner Baywood Hospital (“hospital”). 11. Appellant thought it best to accompany the Southwest Ambulance female attendants while they transported the patient to the hospital which was about a 15 minute ride. Captain McCormick, Appellant, the Southwest Ambulance driver and firefighter/paramedic Dave Pohlman of Crew #261 made a collaborative determination that Appellant should ride in the back of the ambulance with the patient. However, the record reflects that the Southwest Ambulance crew did not request that Appellant accompany them to the hospital and the Southwest Ambulance paramedic stated that she could handle the patient. 12. Captain McCormick questioned Appellant whether Appellant was going to ride in the Southwest Ambulance “to assist with the patient for safety reasons or if he wanted to aggravate the pt [patient] more.” Exhibit 5. 13. Appellant stated that he would ride in the ambulance for safety reasons. However, Appellant also acknowledged to Captain McCormick that he engaged in an unprofessional verbal exchange with the patient and that part of the reason he accompanied the crew of southwest Ambulance to the hospital was due to the anger the patient aroused in him. See Exhibit 1. 14. During the ride to the hospital, a verbal confrontation took place that formed the basis for the disciplinary action that Appellant grieved. 15. While the patient was strapped down in a gurney, he told Appellant that he served time in prison, that he was proficient in fighting and challenged Appellant to a fight. Appellant responded by challenging the patient to a boxing match at a gym that Appellant belongs to so that there would be a controlled environment with headgear and protection. 16. During the hearing, Appellant claimed that he made those remarks to the patient in an attempt at levity to defuse the situation. After the challenge, the patient remained silent for a period of time. However, the patient later on became aggressive and started a verbal confrontation with Appellant. The patient claimed that he could hit Appellant twenty times before Appellant could raise his hands. 17. Appellant acknowledged that he became angry and flicked his hand upward towards the patient about one or two feet away but did not hit the patient. Appellant claimed that he did this to show the patient that he could not strike Appellant twenty times before Appellant could react. 18. Upon arriving at the hospital, the Southwest Ambulance driver informed Appellant that his conduct in the ambulance upset her. 19. Upon return to the fire station, Appellant reported the incident to his immediate supervisor, Captain McCormick, who recommended that Appellant receive verbal counseling. 20. Captain McCormick, Appellant and the Southwest Ambulance driver met to discuss the incident. Although the driver of the Southwest Ambulance was concerned about how Appellant had acted in the ambulance, Appellant was not barred or prohibited from riding in a Southwest Ambulance. 21. An investigation of the October 2, 2006 incident ensued. Captain McCormick reported the incident to Battalion Chief Scott Slingluff (“Battalion Chief Slingluff”), his immediate supervisor. 22. As part of the investigation, Appellant met with Captain McCormick and Battalion Chief Slingluff to discuss the incident. Battalion Chief Slingluff interviewed Appellant, and reviewed reports of Captain McCormick and Southwest Ambulance crew. Battalion Chief Slingluff found the allegation that Appellant physically assaulted the patient to be unsubstantiated. See Exhibit 7. 23. Appellant stated to Battalion Chief Slingluff that “part of the reason that I accompied (sic) the Ambulance crew to the Hospital was due to my anger the patient aroused.” Exhibit 1. 24. Battalion Chief Slingluff concluded that no physical assault of the patient occurred but found that the verbal exchange that Appellant had with the patient was confrontational and violated AJFD policies. He found that Appellant became a contributing factor to an unsafe and potentially violent situation. Battalion Chief Slingluff recommended that Appellant be suspended for twenty-four hours, be placed on one year probation and be referred for mandated employee assistance counseling. See Exhibit 7. 25. A Pre-Disciplinary Review Panel (“Panel”) was formed consisting of Barbara Hernandez-Chamberlain, AJFD’s personnel officer, Deputy Fire Chief Zanella, and Acting Battalion Chief Ochs. See Exhibit 8. 26. The Panel was made aware that Appellant had offered to spar with the patient based on statements made by Appellant as well as reports and e- mails. 27. On November 1, 2006, the Panel issued its recommendation that included a three day suspension, disciplinary probation for one year, mandated employee assistance counseling, job performance improvement training, and the execution of a Last Chance Agreement. See Exhibit 8. The recommendation was signed by all of the members of the Panel and was approved by then Fire Chief John Flynn (“Chief Flynn”) on November 6, 2006. 28. Battalion Chief Slingluff issued a Notice of Disciplinary Action on November 1, 2006 that included the Panel’s recommendation. 29. Appellant served the three day suspension and entered into a Last Chance Agreement that he signed on November 5, 2006. The Last Chance Agreement provided Appellant and AJFD agreed to the above mentioned discipline. See Exhibit 10. 30. Believing that the discipline action taken was unfair, Appellant submitted a notice of grievance dated November 13, 2006 to Battalion Chief Slingluff. 31. Pursuant to Section 117.04, Appellant’s grievance was directed first to his Battalion Chief, then to the Deputy Chief and then forwarded to the Fire Chief. See Exhibit 13. 32. Section 117.05(E) of the AJFD Personnel Policy states that “[e]mployees shall be assured freedom from reprisal for using the grievance procedures.” Exhibit 13. 33. On November 13, 2006, Appellant filed a grievance of the disciplinary action with Battalion Chief Slingluff, who forwarded the grievance to Deputy Chief Zanella. See Exhibit 12. 34. On November 27, 2006, Appellant met with Deputy Chief Zanella and Appellant provided the information that he previously provided to the AJFD during the investigation of the October 2, 2006 incident. 35. On November 30, 2006, Deputy Chief Zanella issued a memo wherein he did not recommend any change be made to the discipline recommend by the Panel. Appellant then grieved Deputy Chief Zanella’s decision to Chief Flynn. See Exhibit 14. 36. Appellant met with Chief Flynn on December 13, 2006 and shared the same information that he provided to the AJFD during the investigation. 37. Section 117.04(4)(b) of AJFD Personnel Policy provides that the Fire Chief “may sustain, reject, or modify the disciplinary action invoked against the employee.” Exhibit 13. 38. The Fire Chief is required to render a decision in writing to the employee within ten working days after receipt of the appeal. See Section 117.04(4)(c) of AJFD Personnel Policy (Exhibit 13). 39. Chief Flynn acknowledged that he did not issue a decision on the appeal within ten working days of receipt of the appeal. 40. On December 13, 2006, Chief Flynn re-opened the investigation of the October 2, 2006 incident and issued a notice of additional investigation into Appellant’s conduct. See Exhibit 17. 41. Chief Flynn testified that he decided to re-open the investigation after he met with Appellant during the appeal process. During that meeting, Appellant informed him that he would act in the same manner if in the future the same or similar situation presented itself to him. 42. On December 15, 2006, Appellant sought to withdraw his grievance which was declined by the Fire Chief. See Exhibit B. 43. On January 8, 2007, Appellant requested that his withdrawal of the grievance be disregarded and to continue with the appeal. See Exhibit C. 44. No determination was made on the original grievance and Appellant was placed on administrative leave pending the results of the investigation. In April 2007 Appellant sought to return to active duty. 45. Chief Flynn directed that Ms. Chamberlain and Battalion Chief Slingluff spearhead the investigation. Documents were reviewed and witnesses were re-interviewed. 46. Ms. Chamberlain drafted an investigative report dated February 9, 2007 that contained a recommendation providing several options of action to be taken with respect to Appellant. See Exhibit 19. 47. The approach adopted by Chief Flynn included the recommendation that Appellant undergo a fit for duty exam and an examination by a health care professional to determine if Appellant posed a threat to the workplace, himself and/or to others. 48. On March 19, 2007, Dr. John Beck (“Dr. Beck”) performed a fit for duty exam. The results showed that Appellant did not show any indication of aggressive or belligerent tendencies but indicated Appellant suffered from depression. Dr. Beck recommended that Appellant undergo treatment and be re-evaluated in 60-90 days. Dr. Beck determined that Appellant was capable of performing light duty work that did not involve direct firefighting or EMT services. 49. Subsequently, Appellant sought light duty work from AJFD and AJFD was unable to accommodate Appellant’s request because no light duty work was available. 50. On April 11, 2007, Appellant’s status was changed from administrative leave to sick leave because Appellant was not fit for duty at that time. Subsequently, Appellant was placed on family leave without pay. 51. On August 1, 2007, Appellant was seen by Dr. Beck in order for him to return-to-duty. Dr. Beck cleared Appellant for duty and Appellant was contacted on August 31, 2007 by AJFD to undergo a return-to-duty fitness exam that had to be rescheduled. Appellant underwent the exam which produced a positive drug test result that formed the basis of a decision made by Chief Flynn to terminate Appellant. 52. Appellant appealed the decision to terminate his employment based on the positive drug test to Chief Flynn. That issue was the subject of a hearing that came before the undersigned Administrative Law Judge and a decision was issued on December 19, 2007 reversing the termination decision. 53. According to Chief Flynn, the positive drug test result and the resulting decision to terminate Appellant’s employment with AJFD brought the investigation of Appellant regarding the October 2, 2006 incident to a halt pending the outcome of the termination determination based on the positive drug test. 54. After the determination was issued in the administrative hearing regarding the positive drug test and termination decision was reversed, Chief Flynn and Deputy Chief Campbell, who was selected to replace Chief Flynn as AJFD Fire Chief because Chief Flynn intended to retire, issued a Notice of Intent to Terminate Appellant’s employment with AJFD on January 11, 2008 (“Notice to Terminate”). 55. The Notice to Terminate (Exhibit 39) provided the specific grounds and facts for termination as being: 1. During Incident #2006-2751096, on 10/2/06, Firefighter/Paramedic Tim O’Brien threatened physical harm upon a patient by challenging the patient to engage in a sparin (sic)/boxing match during the patient’s ambulance transport to the hospital. Firefighter/Paramedic O’Brien initially revealed this information during his appeal to the Fire Chief. Firefighter/Paramedic O’Brien admitted that this incident occurred during the re-investigation interview, ordered by the Fire Chief, into this matter and in compliance with AJFD Personnel Policy 117.04.D.1. Firefighter/Paramedic O’Brien is in violation of AJFD Personnel Policy 113.01 Employee Conduct/Unbecoming Conduct and 113.14 Workplace Safety and Security and Prohibited behavior.

56. The Administrative Law Judge finds that the Notice to Terminate contains a factual error in that the information concerning Appellant challenging the patient to a boxing match was relayed upon first reporting of the incident and throughout the grievance and appeal process and was not just revealed on appeal. 57. Chief Flynn retired as AJFD Fire Chief in January 2008 and Chief Campbell assumed the role as AJFD Fire Chief. 58. Appellant appealed the Notice to Terminate to Chief Campbell who met with Appellant and union representative on February 4, 2008. 59. Both Chief Flynn and Chief Campbell testified that the positive drug test that formed the subject of the prior disciplinary action and administrative hearing was not considered in reaching the decision to terminate Appellant based on the October 2, 2006 incident. 60. Although Chief Flynn considered Dr. Beck’s report in which Dr. Beck found that no signs existed that Appellant posed a danger to himself or others and that Appellant is a passive individual who could return to active duty without restriction was one of several factors Chief Flynn considered and was not bound by Dr. Beck’s determination because Chief Flynn was responsible for making the threat assessment. 61. AJFD’s Code of Conduct prohibits fighting and requires a firefighter to act in a self-disciplined manner at all times on and off duty. 62. Chief Flynn determined that based on his knowledge of Appellant’s employment history with AJFD, the conduct that occurred on October 2, 2006, Appellant’s attitude that he did not do anything improper on October 2, 2006 and would act similarly if presented with a similar situation in the future and Chief Flynn’s experience caused Chief Flynn to conclude that Appellant was not willing to change his behavior, that Appellant did not conduct himself in a professional manner on October 2, 2006, that Appellant posed a safety and security risk to AJFD employees and the public and that appellant was a threat to the workplace. CONCLUSIONS OF LAW 1. Appellant has the burden of proving by a preponderance of the evidence that the disciplinary action taken by AJFD was not reasonable. AJFD Personnel Policy Section 118.05(c) and A.A.C. R 2-19-119. 2. The Administrative Law Judge has the authority to affirm, reverse or modify the termination determination of the AJFD Fire Chief but unless the Administrative Law Judge finds that the disciplinary action taken was arbitrary or without reasonable cause, the disciplinary action taken must be affirmed. AJFD Personnel Policy Sections 118.05(4) and (4)(a). 3. Appellant maintained that the action to terminate Appellant was taken in retaliation to his filing a grievance and must be viewed in the context of his employment history with AJFD, particularly, that Appellant prevailed in a recent administrative hearing wherein a determination to terminate Appellant’s employment based upon a positive drug test was reversed and instead of Appellant being reinstated, a termination notice was issued with respect to the October 2, 2006 incident. 4. In contrast to Appellant’s position, AJFD contended that Appellant grieved the disciplinary action taken by AJFD with respect to the October 2, 2006 incident and Chief Flynn acted within his authority to re-open the investigation of the incident and, as a result of such further investigation, determined that the appropriate disciplinary action should be termination of employment. 5. Appellant asserted that the AJFD Fire Chief was to render a decision on Appellant’s appeal within ten days of receipt of the appeal and did not do so. According to Appellant, the delay in rendering a determination and the events that occurred between the time the decision should have been rendered and the time when the decision to terminate was rendered evinces an ill will intent towards Appellant. 6. Appellant contended that the reason for the termination provided by AJFD during the hearing was not what was stated in the Notice to Terminate. It was not shown that it was inappropriate for Chief Flynn to consider the attitude of Appellant and his ability to act in a professional manner. The Administrative Law Judge concludes that Chief Flynn had discretion to consider such factors. General notice of the provisions of the AJFD Personnel Policy is sufficient to establish the grounds for termination though it would have been prudent to more fully articulate that consideration was given to Appellant’s failure to recognize that his conduct on October 2, 2006 was inappropriate and to Appellant’s statement that he would act in a similar manner if presented with the same or similar situation. 7. AJFD asserted that because the investigation was re-opened and there was an intervening disciplinary action taken including an appeal and administrative hearing that halted and sidelined the instant disciplinary action. 8. The Administrative Law Judge finds that technically the AJFD Fire Chief was required to render a decision on the appeal within ten days of receipt of the appeal. However, the re-opening of the investigation, which the Administrative Law Judge finds was justified, caused a tolling of that requirement. The Administrative Law Judge does not find any ill intent that can be attributed to AJFD due to a delay in rendering the termination decision in light of the intervening disciplinary action and proceedings that took place with respect to the positive drug test. Nor does the Administrative Law Judge find that the drug test disciplinary action bear any relevance to this matter other than it halted the instant disciplinary matter from proceeding further pending the outcome of that matter. 9. The Administrative Law Judge concludes that the weight of the credible evidence of record established that Appellant’s conduct on October 2, 2006 fell below the standards required of a firefighter/paramedic and posed a threat to a patient. 10. Appellant’s failure to recognize that such conduct fell below the standards and that he would act similarly if presented with the same or similar situation as well as the conduct itself established that Appellant poses a threat to the workplace. 11. The Administrative Law Judge concludes that actual physical confrontation did not occur does not alter the fact that instead of providing appropriate care to the patient, Appellant engaged in verbal altercation, that he also challenged the patient to spar with him, which necessarily involves physical contact, and Appellant also flicked his hand towards the patient. The fact that the patient remained silent after Appellant’s conduct for a period of time does not justify such conduct for there are various reasons why the patient would have remained quiet after such conduct, including being fearful of Appellant. 12. The Administrative Law Judge is not persuaded by Appellant’s characterization after the fact that his verbal responses to the patient and his physical action were taken with levity in an attempt to defuse the situation and concludes that such conduct occurred due to anger and a lack of self-restraint. 13. Appellant’s contention that the termination decision was made without reasonable cause is refuted by the fact that Chief Flynn and Chief Campbell considered the reports generated during the investigation and re-opened investigation including but not limited to the interviews of Appellant and others, Dr. Beck’s reports, and Appellant’s employment performance history at AJFD. 14. The evidence of record established that Chief Flynn considered Dr. Beck’s reports along with the reports generated during the investigation and re-opened investigation as well as interviews and concluded that Appellant violated AJFD policies and was a threat to the workplace. Consequently, the determination made by Chief Flynn to terminate Appellant was not made arbitrarily or without reasonable cause nor was the appeal decision to uphold that determination made by Fire Chief Campbell made arbitrarily or without reasonable cause. The termination determination is within the permissible range of discipline permitted under AJFD Personnel Policies. 15. Appellant failed to prove by a preponderance of the evidence that the employment action taken, AJFD’s termination of Appellant’s employment, was not reasonable. 16. Because the weight of the credible evidence of record established that the decision to terminate Appellant was reasonable and was not done arbitrarily, Personnel Policy Section 118.05(4)(a) requires that the termination determination be affirmed. ORDER AJFD’s decision to terminate Appellant is affirmed. Done this day, July 2, 2008.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Barbara Hernandez-Chamberlain 565 N. Idaho Rd. Apache Junction, AZ 85219

Donna M. Aversa, Esq. Leonard & Felker, P.L.C. 7440 N. Oracle Rd., Bldg. 2 Tucson, AZ 85704

Michael R. Pruitt, Esq. Jackson White Attorneys at Law North Center, Suite 200 Mesa, AZ 85201

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826