| Nurse Is Suspended For Speaking Out Against Bad Treatment Accorded to the Patient By the Staff |
| Suspension and Lawsuit Follow Constitutionally Protected Speech on a Matter of Public Concern in a Public Institution |
Facts : Plaintiff, Lorece Teeters, has been employed at the Benton Service Center ("BSC") from 1972 to the present. Since 1974, plaintiff has been employed as a Licensed Psychiatric Technician Nurse ("LPTM"). Except for the incident which gave rise to this litigation, plaintiff's performance with BSC has been satisfactory and without controversy.
A patient by the name of Allison Pool ("Allison") was admitted to the BSC campus on January 11, 1984. Allison was initially assigned to Elm Court at BSC. Plaintiff, who at that time worked at Maple Court, had her first contact with Allison in March 1985 when Allison was assigned to Maple Court. Plaintiff had daily contact with Allison and observed her on a regular basis from March to August, 1985. Among other things, plaintiff assisted Allison with bathing, grooming and leaving Maple Court to attend classes. Plaintiff testified that Allison interacted and got along well with the other Maple Court patients, most of whom were elderly.
In August of that same year, Allison was transferred to Aspen Court to be placed in a behavioral modification program. Plaintiff had no contact with Allison until the following March.
Freedom of Speech: Nurse Is Suspended For Speaking Out
According to BSC records, Allison was assigned to Aspen because of her "maladaptive behaviors which included
manipulative behavior, refusal to follow instructions, refusal to care for herself, tantrums, aggression, and
destruction of property." She was placed in a behavior modification program on September 16, 1985. The program
included a provision for placing Allison in "time out" (requiring her to sit on a stool in a corner or facing
a wall for a period of seven minutes) when she engaged in unacceptable behaviors. Allison's mother, Patricia Pool,
approved the program designed for Allison, as did the Human Rights Chairperson, Jan Sikes, the Chief Psychologist, Phil
Daugherty, and the primary physician, Dr. Jack King. Thereafter, Allison was in a behavior modification program of one
kind or another during all times relevant hereto.
In March 1986, plaintiff was assigned to Aspen and remained there for roughly one year. During that time, she ministered to Allison at least once or twice a week. Plaintiff studied Allison's behavior modification program and, along with a number of co-workers, received some eight hours of instructions regarding the procedures to be utilized in implementing that program.. During these training sessions, plaintiff and her colleagues were admonished that they should not let their personal feelings interfere with implementation of the program. Although she had no real problem with the program as written, plaintiff did have objections to the manner in which the program was implemented.
Plaintiff testified that from March 1986 to March 1987 she observed that Allison was deprived of meals at least once a week and deprived of bathroom privileges at least once a month. It appears that most of these deprivations resulted from Allison being kept in time out for extended periods. Plaintiff also testified that Pat Lambert and Sharon Harris, behavioral management technicians, were on occasion "mean" to her. As examples, plaintiff cited instances in which Harris and Lambert would "tear up" Allison's bed and require Allison to clean herself and the immediate area whenever she urinated or defecated on herself.
In addition to those she personally observed, plaintiff learned of other incidents from co-workers in which Allison was deprived of meals or bathroom privileges, or both. Plaintiff testified that on numerous occasions she complained to one of her immediate supervisors, Registered Nurse Betty Esworthy, about the deprivations being visited upon Allison, but was told by Esworthy that she (Esworthy) did not write or run the program and there was nothing she could do because she just worked at BSC like plaintiff. Nothing ever came of any of plaintiff's complaints to her immediate supervisor.
On March 1, 1987, plaintiff was transferred from Aspen to Oak Court in the Lakeview building on the BSC campus, where she has continued to work until the present. Her transfer was apparently brought about by her dissatisfaction with and opposition to certain parts of Allison's program. On March 8, 1987, after completing her work shift, plaintiff went to defendant McDowell's house on the BSC campus to speak with him about Allison's treatment. At that time plaintiff informed McDowell that Allison was being deprived of meals and bathroom privileges and that Lambert and Harris were being mean to Allison. McDowell advised plaintiff that he "would take care of it." However, on several occasions later that month, plaintiff was told by another LPTN, Phyllis Bearden, that Allison was still being deprived of meals. When Plaintiff learned that such deprivations had occurred again on March 27, 1987, she concluded that McDowell was not going to correct the situation and she decided to telephone Patricia Pool to apprise her of the situation. After finishing work on Saturday, March 28, 1987, plaintiff placed an anonymous telephone call to Ms. Pool and relayed her concerns.
Patricia Pool contacted McDowell on March 31, 1987, and told him of the anonymous telephone call. During her conversation with McDowell, Ms. Pool opined that Allison's aggressiveness had worsened since she had been placed in the program. Later that same day, BSC suspended Allison's behavioral modification program.
Shortly thereafter, utilizing methods that were at best questionable, and were in all likelihood fraudulent, Harris obtained information from Southwestern Bell Telephone Company indicating that plaintiff was the person who had placed the anonymous call to Ms. Pool. Harris then passed the information on to Aspen Unit Manager Dr. Michael Wyrick, a behavioral psychologist at BSC, who in turn disseminated it to defendant Norton and other officials at the BSC campus. Pursuant to Norton's request, Saline County Prosecuting Attorney Joe Kelly Hardin served a subpoena upon Southwestern Bell seeking copies of plaintiff's telephone records for the date of March 28, 1987.
In correspondence from Southwestern Bell's Staff Manager for Security to Harding, the requested records were furnished indicating that plaintiff had indeed placed a call to Ms. Pool on March 28, 1987. Soon thereafter, Hardin supplied Norton with a copy of plaintiff's telephone records. In reliance upon those records, McDowell recommended to Norton that plaintiff be suspended from her duties without pay for 10 days commencing July 23,1987, and that she be placed on probation for six months beginning that same date. Norton agreed with McDowell's recommendation.
In meeting with McDowell on July 20, 1987, plaintiff was informed of the suspension and probation and advised that these sanctions were imposed on account of her failure to follow the in-house abuse policy, her failure to follow the channels of communication and levels of authority of the Nursing Service Policy, and her failure to follow the Employee Conduct Standard on confidentiality. No other reasons for the sanctions were articulated by any BSC official.
Both McDowell and Norton testified that the sanctions would not have been imposed against plaintiff if she had not placed the telephone call to Ms. Pool. On December 21, 1987, plaintiff filed the instant action against defendants contending that she had been disciplined in violation of rights secured to her under the First Amendment of the United States Constitution.
Court Decision
: In an action concerning job-related sanction as a result of speech, a plaintiff must demonstrate that the speech
or conduct, which she alleges as the basis of the
adverse employment decision, was entitled to constitutional protection; she must then show that this protected conduct
was a substantial or motivating factor in the adverse employment decision; the burden then shifts to the employer to
show by a preponderance of the evidence that it would have taken the same action absent the employee's protected
conduct.
The telephone conversation between plaintiff and Ms. Pool concerned the standard of care being provided to Allison Pool, a patient at a public institution. In addition, other remarks made by plaintiff both prior and subsequent to the telephone call addressed problems she perceived with some components of the behavior modification programs generally. Analyzing the content, form and context of the telephone conversation in question, as well as the other comments, the Court finds that plaintiff's speech did indeed touch on matters of the standard of care given to mental patients at public institutions.
Having decided that plaintiff's expressions constituted speech on a matter of public concern, the Court must now balance the interests of the employee as a citizen in commenting upon matters of public concern with the interests of the state as an employer in promoting the efficient and effective public service it must perform through its employees. "An employee's interest in freely commenting on matters of public concern must generally give way to the state's interest in efficiently fulfilling its responsibilities where the employee's speech significantly impairs her ability to perform her duties, disrupts working relationship and harmony among co-workers, or otherwise impedes the normal operation of the institution."
Applying these considerations to the case subjudice, the Court finds that plaintiff's interests in making the statement concerning Allison Pool's treatment and the behavioral modification programs outweigh whatever disruption or discord those statements might have caused.
Editor's Note: The court awarded the nurse her lost wages during the 10-day suspension.
Teeters v. Scott, Arkansas Dept. of Human Services, 733 F.Supp.1279; 1990 U.S. Dist.
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