ALJDEC decisions subject to certification as final

21A-202005205-NUR · State Board of Nursing · 2021-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE REGISTERED

NURSE LICENSE NO. RN121475

ISSUED TO:

MANUEL ERINEO GONZALES,

RESPONDENT.

No. 21A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 1, 2020, with the record held open until December 22, 2020 to allow the court reporter’s transcript to be a part of the record.

APPEARANCES: Respondent Manuel Erineo Gonzales appeared on behalf of himself. Assistant Attorney General Elizabeth Campbell appeared on behalf of the Arizona State Board of Nursing (Board).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

Respondent Manuel Erineo Gonzales holds Board issued registered nurse

(RN) license number RN121475, in the State of Arizona. Respondent’s license was summarily suspended prior to the hearing.

January 18, 2017

In January of 2017, Respondent worked as an RN for the Southwest

Veterans Affairs clinic (VA Clinic).

Loretta Chase, RN and has worked for the VA Clinic for

approximately 20 years. During the six months preceding the hearing, Ms. Chase worked as a Staff Nurse in the surgical unit.

4. On the afternoon of January 18, 2017, Respondent, Ms. Chase, and Linda Willeford-Ruggerio, RN worked in the call center at the VA Clinic. See Exhibit 1, Bates 002. A total of six nurses worked in the call center and sat about four feet apart.

5. At about 3:50 p.m. on January 18, 2017, Respondent said loudly and angrily that he was not going to stay until 5:00 p.m. taking calls. Respondent was agitated and insisted that there were 4 calls in the queue. Ms. Willleford-Ruggerio explained to Respondent that the queue was empty and that there was one call in Tucson. Later, Respondent stated that there were three calls waiting.

6. Ms. Chase noted that there were two calls in the queue: one from Los Angeles (A) and the other from Tucson. Because the LA call was in the queue after 3:30 p.m., LA and not Phoenix was responsible for taking the call. Ms. Chase heard

Ms. Willeford-Ruggerio tell Respondent to write down the names of the veterans that were left in the queue and the matter would be investigated.

January 19. 2017

7. On January 19, 2017, Ms. Chase discussed Respondent’s behavior on January 18, 2017 with the VA Clinic Nurse Manager, Lon McCarthy, in Mr. McCarthy’s office. See Exhibit 1, Bates 003. Respondent walked into Mr. McCarthy’s office and alleged that he was left to take all people in the queue. Respondent was angry and stated that he volunteered for the position and that he wanted more overtime. Mr. McCarthy and Respondent were face to face when Respondent told Mr. McCarthy, “Let’s take this outside.” Ms. Chase feared that a physical altercation would occur.

March 1, 2019

8. On March 1, 2019, while walking past the breakroom at the

VA clinic, Ms. Chase observed Respondent yell at a Team Leader, Teresa Jarique, for approximately 5 to 10 minutes. Respondent was upset about the assignment of nursing staff. Ms. Chase was concerned for Ms. Jarique’s welfare. Ms. Chase stated that Respondent’s behavior was not normal for any RN or human being. Ms. Chase testified, “There were like six personalities with Mr. Gonzales. There was a volatile volcano. There was a sulking, depressed Manny Gonzales.” See Transcript, pg. 65, lines 21-33.

December 9, 2019

9. Dr. Yakima Young-Shields is a nurse practitioner. Dr. Young-Shields is a primary care provider at the VA Clinic. Dr. Young-Shields has been a nurse practitioner for 18 years.

10. On December 9, 2019, Dr. Young-Shields was charting in her office at the VA Clinic when her co-worker D.V. came into her office. Dr. Young-Shields believed that D.V. was in the initial stage of having an anaphylactic reaction because hives were travelling up D.V.’s arms to her face. Dr. Young-Shields stated that after D.V. was stable, she went to the team lab where an epinephrine (EpiPen) was stored in the automated medication dispending machine (Omnicell). The EpiPen could potentially reverse the anaphylactic reaction. Dr. Young-Shields knew that Respondent might be working late in the team lab. Nurse Practitioners did not have access to the Omnicell. However, nurses had access to the Omnicell. Dr. Young-Shields stated that when she arrived at the team lab, Respondent was not present.

11. Dr. Young-Shields stated that she went to Dr. Downey’s office because she believed that Dr. Downey would have access to the EpiPen as the Chief Medical Officer. Dr. Young-Shields stated that she found Dr. Downey in his office and explained the “situation” to Dr. Downey. See Transcript, Line 5, pg. 26.

12. Dr. Young-Shields stated that she returned back to the team lab and ordered that Respondent give her the EpiPen. Dr. Young-Shields stated that she returned to her office where D.V. was waiting. Dr. Young-Shield stated that Dr. Mylan began administering care to D.V.. Dr. Young-Shields stated that she went back to the team lab because Respondent failed to promptly return with the EpiPen. Dr. Young-Shields stated that she found Respondent and Dr. Downey facing each other.

Dr. Young-Shields stated that Respondent was yelling at Dr. Downey and Respondent’s arms were flailing above his head. However, Dr. Young-Shields asserted that

Dr. Downey was quiet. Dr. Young Shields described the incident as an “unnatural encounter”. Dr. Young-Shields stated that was concerned for Mr. Downey’s safety.

Dr. Young-Shields asserted that she has been in many situations with Dr. Downey in the work place and had never heard Mr. Downey curse. Dr. Young-Shields stated that Respondent continued to yell when she asked him again to get the EpiPen. Dr. Young-Shields stated that she could not understand what Respondent was saying.

13. Ms. Young-Shields stood between Respondent and Dr. Downey and asked Respondent to get the EpiPen. Dr. Young-Shields stated that Respondent responded “Why can't you get it?" See Transcript, pg. 31, lines 20-21. Dr. Young-Shields testified that she responded, "Because I don't have access. That's why I asked you to get it." See Transcript, pg. 31, lines 22-23.

14. Dr. Young-Shields stated that she returned to D.V. whose condition had progressed. Dr. Young-Shields stated that the hives had traveled to D.V.’s forehead and D.V. stated that it felt like her scalp was on fire.

15. Respondent brought a wheelchair to Dr. Young-Shields and offered to transport D.V. to the hospital that was located on the opposite side of the street.

Dr. Young-Shields told Respondent that D.V. could not be put in a wheelchair in her condition.

16. Dr. Young-Shields eventually received the EpiPen. However, Dr. Young-Shields asserted that Respondent did not bring the EpiPen to Dr. Young-Shields at the time that he brought her the wheelchair.

17. Dr. Young-Shields disagreed with Respondent’s assertion at hearing that Dr. Downey is quick to get angry.

May 11, 2020

18. Bette Rogers is a Nurse Supervisor at the VA clinic. Ms. Rogers has worked for the VA for 15 years. Ms. Rogers has worked as a nurse for 21 years.

19. Ms. Rogers was responsible for investigating work incidents at the VA clinic. Ms. Rogers investigated the December 9, 2019 incident involving Respondent and D.V.

20. Following her investigation, Ms. Rogers recommended that Respondent be terminated for the following reasons:

Respondent delayed the provision of services to D.V. who was in an acute, emergency situation.

Respondent refused to follow the orders of Dr. Downey and Dr. Young-Shields

21. Ms. Rogers’s recommendation was overruled by Human Resources and

Executive Management.

22. Respondent was detailed to scanning documents for approximately 5 months.

22. The VA clinic management instructed Ms. Rogers to allow Respondent to return as a nurse and to notify staff of his return during the week of May 4, 2020. However, Respondent’s scanning supervisor had informed Ms. Rogers that Respondent had anger management issues.

23. On May 8, 2020, Ms. Rogers called Respondent and discussed those concerns. Ms. Rogers reviewed the expectations related to Respondent’s return. Respondent began discussing Dr. Young Shields. Respondent told Ms. Rogers that “the reason why he was so upset that day was because Dr. Young-Shields made him upset that morning, and he went in deciding that he is not afraid to get into people's faces and let them know how he feels.” See Transcript, pg. 76, lines 19-23.

24. At about 7:00 a.m. on May 11, 2020, Ms. Rogers sat at the front entrance of the VA clinic and pre-screened the public for COVID-19. When Respondent arrived, Ms. Rogers explained to Respondent that she wanted to have a discussion prior to him starting work. Ms. Rogers and Respondent walked back to Ms. Rogers’s office.

Ms. Rogers inquired with Respondent whether he knew basic life support and Respondent responded, “No.” Ms. Rogers and Respondent walked into Ms. Rogers’s office and Respondent sat in a chair near the door. Ms. Rogers shut the door because she and Respondent were discussing conduct issues including (1) workplace violence prevention, (2) the importance of effective communication and patient safety, and (3) the effect of rudeness and impatience to the provision of effective care and treatment.

25. Ms. Rogers stated that Respondent became restless, unhappy, and agitated. Ms. Rogers stated that Respondent made a fist. Respondent asked for his file. Respondent’s file was located in a drawer that Ms. Rogers had to lock due to “PHI”. The file drawer was located between Respondent and Ms. Rogers. As Mr. Rogers stood up, she realized that it was not a good idea to be between Respondent’s chair and her desk. Ms. Rogers did not recall what happened except that she landed under her desk and had trouble breathing. Ms. Rogers felt sick and wanted to go home. Ms. Rogers felt like she would pass out or throw up. Mrs. Rogers found Jenny Passalacqua, a nurse. Ms. Rogers asked Ms. Passalacqua to take her home. Ms. Rogers had three scratches on her chest and a line across her throat. Ms. Rogers had a red mark on her forehead that was new. Ms. Rogers could not recall how she received the injuries. The lanyard that hung around Ms. Rogers neck was gone.

26. Ms. Rogers was transported to Estrella Banner. Ms. Rogers was diagnosed with traumatic brain injury. Ms. Rogers receives therapy for her injury.

Ms. Rogers participates in vestibular balancing and brain rehabilitation. Ms. Rogers has foggy memories of the incident and flash backs. Ms. Rogers agreed on cross-examination that prior to May 2020, she had a cordial relationship with Respondent as his Supervisor.

27. Jennie Passalasqua is an RN and Case Manager at the VA Clinic.

Ms. Passalasqua was aware of Respondent’s return to work because Respondent was assigned to shadow Ms. Passalasqua.

28. When Ms. Passalasqua arrived to work on May 11, 2020, Ms. Passalasqua noticed that Ms. Rogers’s door was closed. Ms. Passalasqua did not hear any noise coming from Ms. Rogers’s office.

29. Ms. Passalasqua Ms. Rogers asked Ms. Passalasqua to take her home. Ms. Passalasqua looked at the doorway and observed Ms. Rogers with her right hand on her forehead and that her hair was disheveled. Ms. Rogers stated that she felt light-headed and needed to go home. Ms. Passalasqua explained that Ms. Rogers expressed, “I think I’m gonna throw up” and she went to sit down. Ms. Passalasqua noticed a red bump on Ms. Rogers’s forehead. Ms. Passalasqua noticed that Ms. Rogers’s scrub was torn and that there were scratches on her chest. Ms. Passalasqua asked Ms. Rogers what happened and Ms. Rogers began to cry and say that she believed that Respondent attacked her. Ms. Passalasqua took photographs at about 7:40 a.m. Ms. Passalasqua took scratches of the marks on her chest and the abrasion on the right side of Ms. Rogers’s head. Ms. Passalasqua stated that the mark on Ms. Rogers’s neck looked like a strangulation mark. Ms. Rogers was lightheaded, dizzy, and nauseous. She seemed to suffer from asphyxiation. Ms. Passalasqua testified that Ms. Rogers told law enforcement that Respondent attacked her from behind in her office.

30. On cross examination, Ms. Passalasqua explained that she had a very professional relationship with Respondent and that all the staff frequently discussed how much they loved Ms. Rogers.

31. Ms. Passalasqua explained that she has witnessed Respondent have outbursts with other co-workers. In one of Respondent’s outbursts with a co-worker, Respondent told the co-worker that they could “settle this” outside.

32. Kirk Olson is the Senior Investigator for the Board. Investigator Olson obtained the documents used in the Board’s investigation. Investigator Olson spoke to the VA and law enforcement regarding the incident. In the course of his investigation, Investigator Olson obtained a police report from the Phoenix Police Department. Officer Laura Castaneda authored the report. The report provided, in relevant part, as follows:

ON 5-11-2020 AT APPROX 0815 HOURS, WHILE ON ROUTINE PATROL IN MY ASSIGNED AREA, I RESPONDED TO THE VA CLINIC LOCATED AT 9250 W. THOMAS RD IN REFERENCE AN ASSAULT RADIO CALL.....

UPON MY ARRIVAL I MADE CONTACT WITH DEPARTMENT OF VETERAN AFFAIR, FEDERAL POLICE OFFICER HEFLIN #3739, WHO ESCORTED ME TO THE VICTIM, BETTY ROGERS. OFC HEFLIN EXPLAINED AN EMPLOYEE, REGISTERED NURSE, AP1 [APPELLANT], WAS INSIDE [MS. ROGERS’S] OFFICE WHEN HE ATTACKED AND ASSAULTED [MS. ROGERS], OFC HEFLIN RELATED [MS. ROGERS] IS [APPELLANT’S] SUPERVISOR AND THEY WERE HAVING A DISCUSSION WHEN MANUEL BECAME ANGRY AND A STRUGGLE ENSUED. OFC HEFLIN BELIEVES MANUEL CHOKED BETTY WITH HER LANYARD, HIT HER ON THE HAD WITH AN UNKNOWN OBJECT AND SCRATCHED HER CHEST. OFC HEFLIN STATED HE WAS NOT IN THE OFFICE. HE DID NOT KNOW THE INCIDENT HAD OCCURRED.

I THEN ATTEMPTED TO INTERVIEW VICTIM BETTY ROGERS, HOWEVER SHE WAS IN AND OUT OF CONSCIOUSNESS, SHE WAS VERY DAZED AND CONFUSED. I ASKED HER IF SHE LOSS CONSCIOUSNESS AND SHE STATED SHE BELIEVES SHE DID HOWEVER, SHE IS NOT SURE AS SHE DOES NOT RECALL ANYTHING. [MS. ROGERS] WAS VERY LETHARGIC AND SLOW TO SPEAK. [MS. ROGERS] RECALLS BEING IN HER OFFICE TALKING TO [APPELLANT], ABOUT HIS RECENT DISCIPLINE, SHE FURTHER RECALLS, [APPELLANT] GETTING UPSET BECAUSE HE COULD NOT ACCESS HIS LOCKED DRAWER. WHEN [MS. ROGERS] REALIZED [APPELLANT] WAS BECOMING ANGRY SHE TURNED AROUND TO LEAVE AND THAT IS ALL SHE RECALLS. I ADVISED DISPATCH TO CALL PHOENIX FIRE DEPARTMENT TO THE SCENE TO ASSESS HER MEDICAL CONDITION. PHOENIX FIRE ENGINE 40/A SHIFT ARRIVED ON SCENE AND TRANSPORTED [MS. ROGERS] TO BANNER ESTRELLA MOUNTAIN PRECINCT FOR FURTHER MEDICAL EXAMINATION.

33. Respondent testified that nurse working in the call center would sign off at 3:30 p.m. because Mr. McCarthy would leave by that time. Respondent stated that Ms. Chase had a personal vendetta against him because Respondent reported a nurse and Ms. Chase to Mr. McCarthy for leaving early. Respondent explained that on January 18, 2017, many patients were left in the queue. Respondent stated the he was not “spirited” and never threatened anyone. Respondent asserted that he did not raise his voice. Respondent testified that perhaps Ms. Chase “perceived” his voice to be angry.

34. Respondent asserted that the purpose of him telling someone “we can take this outside” was so that was so that he could have a private cordial discussion with the individual.

35. Respondent stated Ms. Chase refused to take COVID patients. On Ms. Chase’s last day at work, Respondent stated that he bought Ms. Chase a cake and a bag of candy. Respondent stated that they hugged. Respondent stated that he prayed with Ms. Chase for her eye surgery.

36. Regarding the December 2019 incident, Respondent asserted that he was scrubbing at his desk at about 4:45 p.m. when Dr. Young-Shields walked in and asked for his assistance with D.V. Respondent stated that D.V. had a rash. Respondent stated that he went to the room where D.V. was located. Respondent testified to the effect that although D.V. had a rash, she was awake, alert, and orientated. Respondent stated that D.V.’s vital signs were stable and there was no airway involvement. Respondent stated that he has been a critical care nurse for 30 to 40 years, including work in the ER. Respondent asserted that D.V. was not in anaphylactic shock but was having an allergic reaction.

37. Respondent stated that Dr. Young-Shields asked him what she should do. Respondent suggested that Dr. Young-Shields call 911. Dr. Young-Shields told Respondent to stay with D.V. Respondent monitored D.V.’s vitals and her level of consciousness. Respondent stated that D.V. was not in an emergency situation. Respondent stated that Dr. Young-Shields went to look for Dr. Downey. Respondent asked Dr. Young-Shields if she wanted a wheelchair for D.V. Dr. Young-Shields returned with Dr. Downey and asked for the EpiPen. Respondent went to retrieve the EpiPen and Dr. Downey followed him. Respondent stated that he could not recall his password to the Ominicell and that Dr. Downey began yelling at him. Respondent asked Dr. Downey stop screaming. Respondent stated that he was trying to recall his password to the Omnicell. Dr. Downey hit Respondent with his body and came close to his face. Dr. Young-Shields walked in and placed herself in between Respondent and Dr. Downey. Respondent retrieved the EpiPen. Respondent asserted that he did not refuse to retrieve the EpiPen. Respondent stated that he helped put D.V. in the wheelchair.

38. Respondent testified that ultimately, he received conflicting orders. Respondent stated that the VA conducted an investigation into the December 2019 incident and found that he did nothing wrong.

39. Respondent stated that Dr. Young-Shields called him later and thanked him for his assistance with D.V. The next morning, Respondent was detailed to scanning. Respondent asserted that he should not have been detailed to scanning for more than 3 months according to the VA’s policy.

40. Respondent denied that he assaulted Ms. Rogers.

41. Respondent alleged that Ms. Rogers cut the top of her scrub where it is torn. Respondent described the tear as a clean cut. Respondent alleged that Ms. Rogers cut the scrub because she could not tear it apart.

42. Respondent stated that his former lawyer told him that Ms. Rogers’s fingernails were never submitted for DNA analysis because there was “no case to go after.”

43. Respondent stated that during the hearing, Ms. Rogers said that she tried several times to terminate Respondent. Respondent testified that Ms. Rogers’s motive for fabricating the story was because she tried several times to terminate his employment but was unsuccessful.

44. Respondent stated that he was in Ms. Rogers’s office for no more than about 5 minutes on the morning of May 11, 2020. Respondent alleged that five minutes was not enough time to discuss codes of conduct. Respondent stated that Ms. Rogers told him to go downtown to complete his CPR certification and that he would have more paperwork to sign when he returned. Respondent stated that he asked Ms. Rogers about her mother-in-law and that she encouraged him to “get going” so that he could find a place to park. Respondent denied that his drawer was locked. Respondent stated that he had the keys to the drawer and that he did not need to ask Ms. Rogers for his keys.

45. Responded stated, “....God is my witness. I never touched Bette.”

46 Respondent contended that there was no physical evidence connecting Ms. Rogers’s injuries to him. Respondent stated, “And they're basing this all on hearsay, her word against mine.” See Transcript, pg. 149, lines 15-16.

CONCLUSIONS OF LAW

This matter lies within the Board’s jurisdiction under Ariz. Rev. Stat. § 32-1606(A)(8).

The Board bears the burden of persuasion to establish cause to penalize Mr. Gonzales’s registered nurse license. Ariz. Rev. Stat. § 41-1092.07(G)(2);

The Board’s burden is a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

The facts, as set forth previously, establish that Mr. Respondent committed unprofessional conduct as defined by Ariz. Rev. Stat. section 32-1601(26)(d),(g), (h), (j); A.A.C. R4-19-403(1)(A),(2), and (31).

Because Respondent has committed unprofessional conduct, the Board had authority to suspend and revoke his registered nurse license. Ariz. Rev. Stat. § 32-1663; and § 32-1664.

7. Considering the facts and circumstances of this matter, it is recommended

that the Board’s decision to suspend Mr. Gonzales’s registered nurse license be upheld.

8. The Board has established cause to impose disciplinary sanctions against Respondent’s license under A.R.S. §§ 32-1663 and 32-1664.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that Board’s order summarily suspending Respondent’s license be upheld.

It is further recommended that the Board revoke Respondent Manuel Erineo Gonzalez’s Registered Nurse License No. RN121475.

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.

Done this day, January 11, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing