ALJDEC decisions subject to certification as final

19A-1410087-NUR · State Board of Nursing · 2020-01-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE REGISTERED NURSE LICENSE NO. RN171133 ISSUED TO:

JACQUELINE AMIOT GONZALEZ,

RESPONDENT

No. 19A-1410087-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 13, 2019, October 16, 2019, and October 17, 2019, with the record held open until January 3, 2020.

APPEARANCES: The Arizona Board of Nursing was represented by Assistant Attorney General Elizabeth A. Campbell. Respondent Jacqueline Amiot Gonzalez appeared and was represented by Teressa M. Sanzio.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona State Board of Nursing (Board) has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to Sections 32-1606, 1663, and 1664 of the Arizona Revised Statutes. The Board also has the authority to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 to -1669 and A.A.C. R4-19-101 to -815.

Jacqueline Amiot Gonzalez (Respondent) holds Board-issued Registered Nurse License No. RN171133 in the State of Arizona, which was first issued in 2011.

On February 21, 2019, the Board issued a Complaint and Notice of Hearing, alleging that cause existed to discipline Respondent’s registered nurse license under A.R.S. § 32-1601(26)(d), (i), and (j); and A.A.C. R4-19-403(4), (26), and (31).

The Board referred the matter to the Office of Administrative Hearings (the OAH), an independent agency, for an evidentiary hearing. A hearing was held on August 13, 2019, October 16, 2019, and October 17, 2019.

The Board submitted eight exhibits and presented the testimony of Respondent; Peter Wittenberg, Senior Investigator with the Board; Janeen Dahn, Associate Director of Hearings and Monitoring with the Board. Respondent submitted ten exhibits and presented the testimony of Joshua Quick, Jason Spangler, Kymberly Schad, and Respondent.

Hearing Evidence

On or about October 24, 2014, the Banner Good Samaritan Medical Center (Banner) in Phoenix, Arizona, reported that Respondent was terminated following an investigation into allegations of sexual harassment and professional misconduct.

As a result, the Board initiated an investigation.

Respondent started her employment as a registered nurse with Banner in 2012.

On or about August 19, 2014, Respondent was coached about a concern raised by her peers. The summary of the discussion was documented as follows:

Molly Mazzo RN Manager and I met with [Respondent] to review a concern that was brought forward. It was reported to me that [Respondent] was overheard telling a colleague she had an alcohol problem. [Respondent] denied that this was true, she states the conversation was misheard. We then talked about professionalism and boundaries at work. Discussed the need to not have conversations about her private life in front of peers and patients. She agreed she tends to overshare details of her life that are not appropriate and she agreed to be much more cautious. Offered to be of assistance, look @ EAP, STD, if the need arises.

On or about October 15, 2014, Linda Scrofano, Banner Human Resources Consultant, recommended Respondent’s termination. In her write up of her investigation, Ms. Scrofano described the matter as follows:

Situation: Complaints were brought to, Abbi Heater, that [Respondent] was openly discussing her sexual activity on the unit during working hours within earshot of patients.

[Respondent] has refused to participate in the investigative process.

Background: After a thorough investigation, we have learned that [Respondent] has discussed specific sex acts, described in detail a specific doctor’s genitals, offered to show pictures of a coworker’s genitals to other coworkers, pushed herself up against a male employee while telling him that she wants her boobies all over him and she has made numerous comments within earshot of both her coworkers and patients that employees have considered lewd and inappropriate.

I attempted to reach [Respondent] via phone on Thursday, October 9, 2014 to set up an appointment for her to address these concerns through participation in the investigative process. A message was left on [Respondent’s] voice mail simply asking her to call back to set up a meeting with HR. [Respondent] did not return that call. On Friday, October 10th, [Respondent] sent an email to her Director, Charlotte Ciudad, indicating that she was resigning because HR was not contacting her to let her know what is going on with her employment status. Upon learning of this email, I again called [Respondent] on Monday, October 13th and left another message requesting that she call me to set up a time to meet. She did respond to this message on Tuesday, October 14th by calling me back. After calling me two or three times to change proposed dates, she finally settled on a meeting date of Wednesday, October 15, 2014 at 11:00 AM. [Respondent] then called me back late on Tuesday afternoon to state that she had spoken with counsel and that she would need to know the specifics of the investigation prior to agreeing to come in to meet with HR. I advised her that the topic of the investigation was an allegation of unprofessional conduct including alleged sexual harassment. [Respondent] indicated that without specific information, upon advice of counsel, she would likely not participate in the investigative process. I advised her that if she chose not to participate, a determination on the matter would be made without the benefit of her statement. [Respondent] stated that she would seek further advice from her attorney and would call back to advise whether or not she would participate in the investigative process. [Respondent] called back again on Wednesday morning to advise that she would not participate in the investigative process. She went on to say that she wanted it on record that whatever it is she is accused of she did not do it.

Assessment: Based on all of the information gathered during the investigation, it si my determination that [Respondent] has engaged in a pattern of unprofessional conduct over a significant period of time. This behavior was of a sexual nature towards her coworkers but potentially may have been overheard by patients.

Recommendation: Based on the facts available, I am recommending termination of employment for unprofessional conduct. This may be reportable to the AZ Board of Nursing which states the following conduct or practice should be reported: Conduct which leads to the dismissal for unsafe nursing practice or conduct or other unprofessional conduct

On or about October 17, 2014, Banner terminated Respondent’s employment based on the results of its investigation.

On or about November 26, 2014, Respondent returned an Investigative Questionnaire to the Board. In response to the question, “Do you have any previous criminal convictions?” Respondent did not disclose her June 19, 2003 arrest in Scottsdale, Arizona, that resulted in a January 4, 2004, conviction for driving with spiritous liquor in the body when under 21.

Respondent started her employment as a registered nurse with Dignity Health/St. Joseph’s Hospital & Medical Center (Dignity Health) in October 2014.

In March 2015, Dignity Health gave Respondent a verbal warning regarding inappropriate conduct.

On or about August 13, 2015, Respondent received a written warning from Dignity Health for “Inappropriate Conduct”. The description of the infraction was recorded as follows:

There have been multiple complaints regarding inappropriate conversations in the department regarding your sexual activities outside of the workplace. This includes showing pictures on your cell phone in the nursing area. This is offensive to your coworkers and unprofessional to the patient population that hears or witnesses these conversations. You were given a verbal warning in March 2015 in regards to inappropriate conduct as well as given the Code of Conduct policy.

The plan for improvement was listed as “[Respondent] will immediately refrain from personal and inappropriate conversations within the work environment. Cell phone usage is only permissable [sic] outside of the nursing area.”

On or about September 6, 2015, Respondent was handing off patients at the end of her shift in the emergency department. While within earshot of patients, Respondent told the incoming nurse that a certain patient was “being quite bitchy.” Respondent’s comments were heard by others.

On or about September 9, 2015, Respondent was working in the emergency department. At some point during her shift, she discharged a patient and erroneously included in the patient’s discharge paperwork a different patient’s discharge paperwork. The patient returned to the emergency room later in the day to return the wrong paperwork.

On or about September 10, 2015, Respondent was terminated from Dignity Health. The reason for the termination was documented as follows:

Rude and inappropriate interactions with others

Misuse of/Failure to properly care for protected health information

On or about October 25, 2015, Respondent applied for a job with Maricopa Integrated Health System (Maricopa). In her application, Respondent indicated her reason for leaving Dignity Health as “Scheduling Conflict” and her reason for leaving Banner as “Wanting ED experience.”

On or about November 3, 2017, Respondent received a written counseling from Maricopa. The facts leading to the written counseling were documents as follows:

Doing homework at work station during company time.

Lack of professionalism; Use of personal cell phone in the clinic, discussing personal life with other staff, use of profanities and vulgar language in clinic and around other staff.

Losing focus on the job.

Not getting along with coworkers.

Requesting prescription drugs from providers without an actual documented visit.

In April 2018, Respondent began working at Maricopa Ambulance as a Registered Nurse.

During the course of his investigation in 2018, Senior Investigator Wittenberg interviewed Charlotte Ciudad, Banner RN Manager; Molly Mazzo, Banner RN Supervisor; Kimberly Quigley, Dignity Health RN; Deanna Mast, Dignity Health RN; and Respondent.

During her June 25, 2018 interview, Ms. Mazzo disclosed to Mr. Wittenberg that Respondent had some minor issues while employed with Banner including discussing her personal problems, using inappropriate language, showing up late, and doing homework during slow times. Ms. Mazzo stated she believed Respondent was a good nurse and denied any knowledge indicating Respondent had a substance use disorder.

During her August 2, 2018 interview, Ms. Ciudad informed Mr. Wittenberg that she conducted the investigation of Respondent after she received complaints from male nurses and other healthcare providers indicating they felt they were being sexually harassed by Respondent. Ms. Ciudad interviewed five males who worked with or in the same area as Respondent and she recalled three or four of them described that Respondent went out of her way to rub her breasts up against them, offered them sexual favors together with comments that their spouses would never find out, and showed them nude or nearly nude and revealing photographs of herself on her cell phone. Ms. Ciudad indicated Respondent did not have any issues regarding patient care, documentation, or other areas of her practice.

During her August 13, 2018 interview, Ms. Quigley told Mr. Wittenberg that Respondent had been in a relationship with a paramedic while employed at Dignity Health. Ms. Quigley recalled having received five or six complaints about Respondent’s inappropriate conduct at work. When Ms. Quigley interviewed the twelve nurses who worked with Respondent, all twelve said Respondent was often inappropriately sharing personal information. Ms. Quigley stated that Respondent would share details of their relationship including their sexual encounters and had shown other nurses nude photographs of her boyfriend and nude photographs of her with her boyfriend.

During her August 15, 2018 interview, Ms. Holzworth related to Mr. Wittenberg that complaints had been made that Respondent had been describing things she did sexually with her boyfriend. Ms. Holzworth indicated that, during the investigation, Respondent acknowledged using profane and foul language in the workplace.

On or about May 15, 2018, Respondent participated in a telephonic interview with Mr. Wittenberg. Mr. Wittenberg recorded that Respondent admitted that she occasionally used profanity around coworkers, but never where a patient could overhear.

On or about August 28, 2018, Respondent participated in an in-person interview with Mr. Wittenberg and was accompanied by her attorney, Ms. Sanzio. Mr. Wittenberg recorded that Respondent admitted “to flirting and some frottage (rubbing herself against others in a sexual manner)” and that she discussed “her sex life with friends she was working with and she [was] surprised they complained.” Mr. Wittenberg indicated that Respondent “adamantly denied that she ever showed any nude photographs of anyone including herself to anyone.” Respondent also stated that during a conversation with her Maricopa manager addressing some of her issues, Respondent realized that she was creating the problems despite her earlier belief that other people were the problem. Respondent was referred to the Employee Assistance Program and she started counseling. Respondent stated she was still in counseling as of the time of the interview, but would not release her therapy records to the Board.

At hearing, Respondent denied making any such admissions during the interview.

On or about September 13, 2018, the Board reviewed Respondent’s case and voted to issue an interim order for Respondent to submit to a comprehensive psychological evaluation to include a sexual misconduct evaluation to be completed within 45 days of the service of the order.

On or about September 20, 2018, the Board issued the Interim Order.

As of the date of the hearing, Respondent had not completed the evaluation as ordered.

At hearing, Respondent testified that she had no information regarding the allegations at Banner when she refused to participate in the investigation and was ultimately terminated. Respondent indicated she did not participate based on the advice of her brother-in-law, an attorney in a different jurisdiction. Respondent denied engaging in any of the alleged sexually-related behavior she was accused of at Banner, Dignity Health, or Maricopa. Respondent indicated that in 2013 and 2014, her primary source of stress was her separation from her then-husband. Respondent stated she would have to make sure her children were safe, had been picked up, and were being properly cared for. Respondent indicated these concerns were the reason she used her cell phone while at work so much. Respondent testified that in August 2019, she was rehired at a different Dignity Health facility.

Respondent presented the testimony of character witnesses including former coworkers. Mr. Quick, Respondent’s co-worker at Banner, stated that the level of what one can share with co-workers depends on the individuals; that something may be offensive to one person, but may not be offensive to another person. Mr. Spangler, Paramedic Supervisor at Maricopa Ambulance, denied having heard of any inappropriate behavior from Respondent. Ms. Schad, Respondent’s co-worker at Banner, stated that when she went to lunch with Respondent, they would discuss personal topics such as Respondent’s children, ex-husband, and dates with a doctor.

CONCLUSIONS OF LAW

This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10).

The Board bears the burden of proof and must establish cause to penalize Respondent’s registered nurse license by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1120 (8th ed. 2004).

Respondent first argued that the Board lacked reasonable cause to issue the interim order, and therefore, Respondent’s failure to comply with the terms of the interim order cannot be the basis for a disciplinary action against Respondent’s license. Respondent asserted that she requested this hearing to challenge the interim order, however, no evidence was presented as to the timing and nature of Respondent’s hearing request. Regardless, the Complaint and Notice of Hearing issued in this matter does not indicate the Administrative Law Judge is charged with determining whether the interim order was properly promulgated. Rather, the Complaint and Notice of Hearing sets forth the issues for hearing to include whether Respondent committed unprofessional conduct when she failed to comply with the interim order.

The Administrative Law Judge makes no findings as to whether the Board had reasonable cause to issue the interim order. It was uncontested that Respondent did not comply with the interim order.

Respondent next argued that all of the allegations against her, especially those related to her sexually-related behavior, were based “on hearsay upon hearsay upon hearsay” and therefore, should not be found to have occurred. While it is true that the employers at issue failed to record or relate to the Board the name of the persons who filed complaints against Respondent, hearsay is admissible in proceedings before the Office of Administrative Hearings.

It is noted that each of the complaints noted in Respondent’s employment records lack specific details as to who filed the complaints, the exact nature of the comments made, and the timing of the conduct. However, the similarity of the complaints raised in three separate and distinct workplaces cannot be ignored. At Banner, Dignity Health, and Maricopa, Respondent was alleged to have overly shared details of her personal life with coworkers and to have shown coworkers explicit photos of her significant others and/or of herself on her cell phone. Those similarities, taken together, lend credibility to each of the other allegations.

On the investigative questionnaire, Respondent falsely answered that she did not have any previous criminal convictions.

Accordingly, the Board established that Respondent engaged in unprofessional conduct as defined by A.R.S. § 32-1601(26)(d), (i), and (j); and A.A.C. R4-19-403(4), (26), and (31). Thus, the Board established cause to impose a disciplinary sanction against Respondent’s license under A.R.S. § 32-1663(D) and A.R.S. § 32-1664(N).

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Board place Respondent Jacqueline Amiot Gonzalez’s Registered Nurse License Number RN171133 on a 36 month probation to include a comprehensive psychological evaluation (to include a sexual misconduct evaluation) to be scheduled within 30 days and completed within 60 days, and that Respondent complete all evaluator recommendations, and submit employer monitoring and reports.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification.

-54864001

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-137160-45720000Done this day, January 16, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing-54864001

001

-137160-45720000