Camilla Coppedge v. Connecticut Department of Developmental Services (2013)

MEMORANDUM OF DECISION

The plaintiff, Camilla Coppedge, appeals from a final decision of the department of developmental services (the department) issued on December 4, 2012, approving in entirety a proposed final decision rendered by a department hearing officer on October 23, 2012.   The final decision placed the plaintiff on the department's abuse and neglect registry, General Statutes § 17a–247b.¹

After a hearing held on October 5, 2012, the hearing officer made the following relevant findings of fact in the October 23, 2012 final decision:

* * *

2. Darlene St. Jean was the Assistant Director of Vocational Services for HARC [Inc., an organization providing services to those developmentally disabled].   She was employed by HARC for twenty-four years.

3. Shamiki Noland was a Job Coach for HARC for approximately three years.

4. Respondent was employed by HARC as a Job Coach.   As a Job Coach, Respondent administered programs for her clients and followed written behavior plans and protocols.   Respondent was terminated on June 18, 2010 for substantiated physical abuse.

5. HARC is licensed and funded by the Department.

6. On June 18, 2009 Respondent received refresher training in physical and psychological management.   This training addressed how to deal with verbally or physically aggressive clients in the least restrictive manner.   Redirecting a client would be appropriate if a client was using inappropriate language, but slapping them would not be appropriate.

7. On November 30, 2009 Respondent received training in abuse and neglect prevention and reporting.

8. Ms. Noland testified that on June 1, 2010 she worked at the Bulova Center.   She was working with two other employees, including the Respondent, and seven clients.   It was lunchtime and Client H called Respondent a “Bitch.”   Respondent responded by hitting Client H hard two to three times with an open hand around the mouth area.   Client H then backed away.   Ms. Noland considered Respondent's actions abuse, but she and her co-worker did not report the abuse until days later.   She had no explanation for why she waited to report the incident.

9. Ms. Noland examined Client H's face and client H did not have any visible bruises or red marks.

10. Ms. St. Jean testified that she investigated the incident involving Client H on June 1, 2010.   As part of her investigation, she interviewed Latoya Smith and Shamiki Noland, who reported the incident on June 2, 2010.   Ms. St. Jean also interviewed the Respondent, but she could not interview Client H because Client H was non-verbal.

11. According to Ms. St. Jean's interview of Ms. Smith, a Job Coach for HARC, and pursuant to a written statement signed by Ms. Smith on June 9, 2010, Client H was calling Respondent a “bitch” and Respondent slapped Client H forcefully in the mouth three times.   When Respondent slapped Client H she said “you're not going to start that today.”   Ms. Smith stated that she felt uncomfortable about the incident and after speaking with her co-worker they decided to report it.

12. According to Ms. St. Jean's interview of the Respondent and pursuant to a written statement signed by Respondent on June 9, 2010, the Respondent denied striking Client H. The Respondent stated that when Client H repeatedly called her a “bitch” she simply redirected Client H to sit down and do a puzzle.   The Respondent did not state whether Client H complied.   When asked how she could deny the incident when two co-workers witnessed her hit Client H, the Respondent stated that they were lying and were against her.

13. Respondent testified that she did not strike Client H and that she would never do that.   She further testified that she does not strike her own children or grandchildren.   When asked why Ms. Noland and Ms. Smith would lie about her hitting Client H., Respondent testified that she had two good clients that she believed Ms. Noland and Ms. Smith wanted.   She testified that she knew it was not appropriate to hit a client even if the client was verbally abusive.

14. Respondent submitted a written closing statement in which she denied striking Client H. She reiterated her belief that she was being wrongly accused and that the witnesses wanted to destroy her career.

The hearing officer concluded as a matter of law that the department met its burden of proving that (1) the plaintiff was an employee of HARC, (2) HARC was a department-funded employer, (3) the plaintiff was terminated due to allegations of abuse, (4) that the abuse allegations were substantiated by an appropriate agency (here, the office of protection and advocacy, ROR, Volume II, pp. 57–60), and (5) the evidence supported a finding of abuse.   The hearing officer's proposed order, affirmed by the commissioner of the department, was to place the plaintiff on the registry.  (Return of Record, ROR, Volume I, pp. 4–10.)   The plaintiff timely brought an appeal from the final decision.

The standard of review for an appeal from a ruling by the department has been stated by our Supreme Court as follows:  “Review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable ․ Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact ․ Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion ․ [A]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts ․ It is well settled [however] that we do not defer to the board's construction of a statute—a question of law—when, as in the present case, the [provisions] at issue previously ha[ve] not been subjected to judicial scrutiny or when the board's interpretation has not been time tested.   In such a case, our review of those provisions is plenary.”  (Citations omitted;  internal quotation marks omitted.)  Christopher R. v. Commissioner of Mental Retardation, 277 Conn. 594, 603, 893 A.2d 431 (2006).   See also Costello v. Commissioner of Developmental Services, 128 Conn.App. 286, 290, 16 A.3d 811 (2011).

The plaintiff first argues that the department did not comply with its own regulations on bringing the proceeding to a hearing.   HARC conducted an investigation immediately after June 1, 2010 and prepared a report.  (ROR, Volume II, pp. 24–54.)   It terminated the plaintiff on June 18, 2010.  (ROR, Volume II, p. 24.)   The office of protection and advocacy (OPM) completed its report on September 14, 2010.  (ROR, Volume II, p. 57.)

The department's notice of a hearing was given on September 5, 2012.   Regulation § 17a–247e–8(a) provides that such notice is to be given within 45 days of HARC's notice to the department, given at the conclusion of the OPM investigation.   The plaintiff relies on the late notice to overturn the hearing officer's decision.

The court has previously rejected this argument, based on the failure to follow this regulation, in Holly v. Commissioner, Dept. of Developmental Services, Superior Court, judicial district of New Britain, Docket No. CV 09–4019654 (December 3, 2009) for two reasons:  First, “[T]he deadlines set forth in the DDS regulations are not jurisdictional or mandatory, but discretionary.   See Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 270, 777 A.2d 645 (2001);  Turley v. Wilson–Coker, Superior Court, judicial district of New Britain, docket No. CV 030520265 (June 7, 2005, Owens, J.) [39 Conn. L. Rptr. 484] (decision not issued within 90 days).”

Secondly, “Regarding the missed deadlines in the DDS regulations, the plaintiff has failed to show prejudice.”  Papic v. Burke, 113 Conn.App. 198, 223, 965 A.2d 633 (2009).   The plaintiff was not affected by the placement on the registry until such time as the department's order became effective.   She has been eligible for employment even after her termination by HARC. See also Ford v. Dept. of Developmental Services, Superior Court, judicial district of New Britain, Docket No. CV 11–6012983 (July 10, 2012) [54 Conn. L. Rptr. 301];  Gardner v. Dept. of Developmental Services, Superior Court, judicial district of New Britain, Docket No. CV 12–6016756 (March 6, 2013).

The plaintiff also contends that the hearing officer's decision improperly relied on hearsay statements from persons who did not appear at the hearing.   However, pursuant to § 4–178(1), a hearing officer may consider any evidence provided it is not irrelevant, immaterial or unduly repetitive.   Hearsay is permitted in administrative proceedings so long as it is sufficiently trustworthy.   See Addona v. Administrator, Unemployment Compensation Act, 121 Conn.App. 355, 363, 996 A.2d 280 (2010).   Here, there were two witnesses at the hearing, a record of a third witness and documentary evidence to support the out-of-court statements.

The plaintiff contends that the hearing officer should not have accepted the two eye-witnesses' accounts of her confrontation with the disabled person.   She states that these witnesses did not like her and were jealous of her.   She also states that they delayed in reporting the incident for a few days.   The decision to accept the statements of witnesses and to make credibility determinations is, however, left to the discretion of the hearing officer.   “The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and, if there is evidence ․ which reasonably supports the decision of the [agency], [a court] cannot disturb the conclusion reached by [it].”  (Citations omitted;  internal quotation marks omitted.)  Matthew M. v. Dept. of Children & Families, 143 Conn.App. 813, 831 (2013).   The hearing officer found that the two eye-witnesses were to be credited instead of the testimony of the plaintiff.  (ROR, Volume I, p. 9.)

Finally, the plaintiff contends that the final decision was not supported by substantial evidence.   Based on the record, and under the case law as set forth above, the court finds that there was substantial evidence to support the final decision.  (ROR, Volume III, transcript, pp. 78–96.)

The court concludes that the department has not acted unreasonably, arbitrarily, illegally or in abuse of discretion in placing the plaintiff on its registry, and therefore the appeal is dismissed.

Henry S. Cohn, Judge

FOOTNOTES

FN1. The plaintiff is aggrieved for the purposes of § 4–183(a) by this placement.  General Statutes § 17a–247b provides, in relevant part, as follows:(a) The Department of Developmental Services shall establish and maintain a registry of individuals who have been terminated or separated from employment as a result of substantiated abuse or neglect.   The department shall, for the purposes of maintaining the registry, be capable of responding to inquiries in accordance with subsection (c) of this section as to whether an individual has been terminated or separated from employment as a result of substantiated abuse or neglect.   Such capability may include response by telephone voice mail or other automated response for initial inquiries..  FN1. The plaintiff is aggrieved for the purposes of § 4–183(a) by this placement.  General Statutes § 17a–247b provides, in relevant part, as follows:(a) The Department of Developmental Services shall establish and maintain a registry of individuals who have been terminated or separated from employment as a result of substantiated abuse or neglect.   The department shall, for the purposes of maintaining the registry, be capable of responding to inquiries in accordance with subsection (c) of this section as to whether an individual has been terminated or separated from employment as a result of substantiated abuse or neglect.   Such capability may include response by telephone voice mail or other automated response for initial inquiries.

Cohn, Henry S., J.