By Barbara Haga, September 13, 2017
Sometimes a particular charge is used in a case that really piques my interest. Negligence is one of those charges, and this month I am writing about two cases where this charge was used.
Culpable negligence in performance of official duties is a failure to exercise the degree of care required under the particular circumstances, which a person of ordinary prudence in the same situation and with equal experience would not omit. In reviewing the penalty, it may be determined that a more severe penalty is appropriate if an act of carelessness or negligence results, or could result, in serious injury.
The Drug Box Case
This 2016 initial decision involved a removed employee named Shannon Publicover, who was a Firefighter/Paramedic GS-081-9 at the Marine Corps Base in Quantico, Virginia. All emergency vehicles at Quantico were outfitted with a drug box that was kept in a temperature controlled part of the vehicle and narcotics that were kept in another location in the vehicle. The events that led to the removal are outlined below.
Publicover reported for her 24-hour shift at 7:00 a.m. as scheduled. She was assigned to a vehicle that day that responded to six calls beginning with a first call at 7:07 a.m. It was not until her last call of the day at 6:47 p.m. that she needed to use drugs from the box, which is when she realized that the box on her vehicle could not be used because its seal had been broken. She reported this to her supervisor at 7:00 p.m.
Publicover explained to the Assistant Chief that she had been too busy during the day to check the drug box, and thus had not discovered it until the end of the shift. The patient was not harmed because Publicover was able to retrieve a sealed, usable drug box from the fire engine that had accompanied her on the sixth call, and thus had been able to continue treating her patient without undue delay.
The Assistant Chief testified that it was standard practice of Emergency Medical Service providers everywhere to check one’s equipment when coming on duty. When reporting to work, paramedics were required to insure their gear was ready and to perform vehicle checks. The check of the equipment took between 45 minutes and an hour to complete.
Publicover agreed that this was standard practice unless “something impaired that action.” She explained that the first call came in 7:07, so she had to discontinue the checks to respond.
The Assistant Chief agreed that, under the circumstances, she had to go on the call without completing the check and that six calls in a day was a busy day. However, he also believed that there was ample time in between calls to complete the check. The Assistant Chief reviewed the records of calls and found that her vehicle was not on a call for a total of 5.5 hours. The ambulance driver on Publicover’s crew that day gave a statement that since their first call came in seven minutes after the shift began, he had to truncate his own equipment check that morning, but he had completed his check later that morning while waiting at the hospital.
Publicover also argued that she was not completely responsible because the drug box had been unsealed and not replaced by the paramedic on the shift before hers. The Assistant Chief testified that the employee on the prior shift had been “dealt with,” although his testimony did not specify what the penalty was. There was testimony that other individuals who had engaged in similar misconduct had also been disciplined.
The Assistant Chief viewed the failure to check the box before 12 hours into her shift as a serious lapse that could have meant the different between life and death for any of the patients she was called to treat. That she was able to secure a drug box from another vehicle when she needed medication for the sixth patient was a case of good luck.
Her past record did not help Publicover because it showed that she had five prior short suspensions (none more than three workdays) in her eleven years of employment on charges of failure to follow proper procedures, inappropriate conduct, and negligent performance of duties.
The Administrative Judge (AJ) accepted management’s view of the seriousness of the situation, writing:
The appellant’s failure to complete her equipment check before 12 hours into her shift was a serious lapse that could have meant the difference between life and death for any of the patients she was called to treat. That she did not need the medications in the unusable drug box for five of the six patients she treated on the day in question was just a lucky occurrence. That she was able to secure a drug box from another vehicle when she needed medication for the sixth patient was, again, good luck. I note that even though the delay was slight, there was nevertheless a delay in the care she provided to that sixth patient, since medications were not available on her own vehicle but had to be purloined from another. That kind of delay could have caused death in other circumstances.
The Deciding Official testified that he did not believe the appellant took ownership of her actions because she blamed the incident on the paramedic on the shift before her and never apologized or admitted that her behavior was negligent. This led to his conclusion that there was little potential for her rehabilitation, and he had no confidence in her ability to perform her duties. The AJ also agreed that the past disciplinary record warranted the next step in progressive discipline and upheld the removal. Publicover v. Navy, DC-0752-15-0003-I-1 (2016) (ID).
The Dirty Instruments Case
The issues of remorse and potential for rehabilitation were dealt with squarely by the MSPB in 1994 in the case of Mack Williams. Williams was a Medical Supply Technician at the VA, GS-05, who was removed for careless and negligent workmanship on three occasions. Williams was responsible for placing barrier filters in the lids of containers in which surgical instruments were sterilized, but on three occasions in a very short period of time, he did not correctly perform that function. The AJ found that the instruments from the containers with improperly installed filters could not be used because they were considered contaminated, and that the errors could have caused surgical patients to become infected, if the errors had not been detected by medical personnel. In one instance, an improperly-sterilized container of surgical instruments was sent into a sterile field in an operating room prior to surgery; when the problem was noticed, the sterile field had to be reestablished, meaning that approximately $1,000 worth of medical supplies that were exposed to the surgical instruments had to be discarded unused, and surgery was delayed by 20 minutes.
The AJ found the errors to be serious breaches, but he found that Williams had shown remorse, that he had good potential for rehabilitation, that he had 22 years of satisfactory federal service, and that his disciplinary record consisted of only a 15-day suspension (the charge was unauthorized removal of government property and took place in 1992). In light of these considerations, the judge concluded that the maximum reasonable penalty under the circumstances was a 120-day suspension.
The Board took a very different view of Williams’ potential for rehabilitation and remorse, writing:
In any event, although an employee’s expression of remorse bears on the determination of an appropriate penalty for deliberate misconduct, whether the employee showed remorse is of little relevance where, as here, an adverse action is based on negligence. That the appellant is quite sorry that surgical instruments were contaminated does little to lessen the possibility of a recurrence of his negligence.
Moreover, we agree with the agency’s contention that there is no evidence to support a finding that the appellant has good potential for rehabilitation. The appellant was counselled about the importance of ensuring the proper placement of barrier filters on sterilization containers after the first incident, and yet, twice within the next 7 weeks, he failed to ensure proper placement of filters.
The Board reinstated the removal. Williams v. VA, 94 FMSR 5623 (1994), affirmed without opinion (Fed. Cir. October 18, 1995). Haga@FELTG.com