Belden Wadoc Wa Pab Appeal Reduction in Salary and Disability Separation 1997 Medical Misconduct
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\. 2818 C.lpilOI Bt,d. PO Bo\ .111')11 01> mpi.l. W.\ 'Hl:;U~·U·) 11 STATE OF WASHINGTON 13601 iBn.l0l81 fAX IJ60) ;5J·UlJ'J PERSONNEL APPEALS BOARD Seplember 15, 1997 CERTIFIED P-360-112-992 P-360-112-993 John R. Anhur Attorney at Law 10900 NE 8" SlrCCl Suite 850 Bellevue, WA 98004 RE: Annette Belden v. Department of Corrections, Reduction in Salary Appeal & Disabilitv Separation Appeal, Case Nos. RED-95-0060 & DSEP-96-0016 - - Dear Mr. Arthur: Enclosed is a copy of the order of the Personnel Appeals Board in the above-referenced matter. The order was entered by the Board on September 15, 1997. Sincerely, QUttLL~kL~ Kenneth J. Latsch Executive Secretary KJL:lh Enclosure cc: Annene M. Belden Michael Sellars, A.AG Jennie Adkins, DOC BEFORE THE PERSONNEL APPEALS BOARD STATE OF WASHINGTON 2 3 ANNETTE BELDEN, 4 s Appellant, ~ Case No. RED-95-0060 and DSEP-96-0016 vs. ~ 6 7 8 9 10 II ) ) DEPARTMENT OF CORRECTIONS, Respondent. ORDER OF DISMISSAL ) ) ) ) ---------------) These matters came before the Personnel Appeals Board, JUDITH MERCHANT, Chair; HOWARD N. JORGENSON, Vice Chair; and ROGER F. SANFORD, Member, pursuant to WAC 358-30-084. 12 13 WAC 358-30-084 provides in relevant part: 14 IS 16 17 18 19 20 21 22 23 24 (l) In all appeals filed with the personnel appeals board: (a) Where the parties have indicated that the case has been settled and ready for dismissal and where there has been no action by the parties during the preceding thirty days; or (b) When. the board deems it appropriate for lack of timeliness or any other jurisdictional matter where there is no question of fact; or (c) When a party refuses to participate in a prehearing conference pursuant to WAC 358-30-026(4); or (d) When the board is unable to contact the appellant at the last address and telephone number provided by the appellant, the executive secretary or hislher designee may mail notice to the appellant or the appellant's representative and to the respondent or the respondent's representative that the appeal will be dismissed by the board unless within fifteen days following the date of service of the notice a written request is made to the board and good cause is shown why the appeal should be continued as a pending case. (2) If no request is made, the matter will be brought before the board for dismissal. 2S 26 Personnel Appeals Board 2828 Capitol Boulevard Olympia, Washington 98504 The appeals of Annette Belden fall within the categories covered by the rule. Specifically, on July 2 16, 1997, the Personnel Appeals Board (PAB) was infonned that Ms. Belden had decided to drop 3 her appeals before the PAB. By letter dated July 22, 1997, the PAB contacted the Appellant's 4 Attorney and requested that the appeals be withdrawn. Subsequent to the July 22, 1997, letter from 5 PAB, there had been no action taken by either party to these appeals. 6 7 Therefore, on August 25, 1997, the PAB served the parties with a Notice of Potential Dismissal. 8 The notice stated that the appeals wO';1ld be dismissed, unless, within fifteen days following the date 9 of service, .the Board received a written request showing good cause why the appeals should be 10 continued as a pending case. Appellant received a copy of the notice by certified mail on August 11 26, 1997. Neither of the parties to this appeals have submitted a written request showing good 12 cause why the appeals should be continued as a pending case. 13 14 The Board having reviewed the files and records herein, being fully advised in the premises, now IS enters the following: 16 ORDER 17 NOW, THEREFORE, .IT IS HEREBY ORDERED that the appeals of Annette Belden are 18 dismissed. 19 DATED this 20 Ih4b day of -U..:..- , 1997. SHINGTON STATE PERSONNEL APPEALS BOARD 21 22 23 24 25 26 Personnel Appeals Board 2828 Capitol Boulevard Olympia, Washington 98504 2 BEFORE THE PERSONNEL APPEALS BOARD STATE OF WASHINGTON 2 3 ANNETTE BELDEN, 4 Appellant, ~ Case No. RED-95-0060 and DSEP-96-0016 vs. ~ 5 6 7 8 ) ) DEPARTMENT OF CORRECTIONS, Respondent. 9 NOTICE OF POTENTIAL ) DISMISSAL ) ) ) ) ) 10 II Pursuant to the provisions of WAC 358-30-084, notice is hereby given that the above-referenced 12 matters have been noted for dismissal by the Personnel Appeals Board. 13 14 15 16 17 18 19 20 21 22 23 24 WAC 358-30-084 provides in relevant part: (1) In all appeals filed with the personnel appeals board: (a) Where the parties have indicated that the case has been settled and ready for dismissal and where there has been no action by the parties during the preceding thirty days; or . (b) When the board deems it appropriate for lack of timeliness or any other jurisdictional matter where there is no question of fact; or (c) When a party refuses to participate in a prehearlng conference pursuant to WAC 358-30-026(4); or (d) When the board is unable to contact the appellant at the last address and telephone number provided by the appellant, the executive secretary or hislher designee may mail notice to the appellant or the appellant's representative and to the respondent or the respondent's representative that the appeal will be dismissed by the board unless within fifteen days following the date of service of the notice a written request is made to the board and good cause is shown why the appeal should be continued as a pending case. (2) If no request is made, the matter will be brought before the board for dismissal. 25 26 Personnel Appeals Board 2828 Capitol Boulevard Olympia, Washington 98504 It appears that the appeals of Annette Belden fall within the categories covered by the rule. 2 Specifically, on July 16, 1997, the Personnel Appeals Board (PAB) was informed that Ms. Belden 3 has decided to drop her appeals before the PAB. By letter dated July 22, 1997, the PAB contacted 4 the 5 1997, letter from PAB, there has been no action taken by either party to these appeals. ~ppellant's Attorney and requested that the appeals be withdrawn. Subsequent to the July 22, 6 7 Therefore, the appeals will be dismissed unless, within fifteen days following the date of service of 8 this notice, the Board receives a written request showing good cause why the appeals should be 9 continued as pending cases. 10 II DATEDANDMAILEDthisiJ6 day of f1~ ,1997. 12 GTON STATE PERSONNEL APPEALS BOARD 13 14 15 16 cc: 17 18 Annette Belden, APP John R. Arthur;ATT Michael Sellars, AAG Jennie Adkins, DOC 19 \ 20 \ 21 22 23 24 25 26 Personnel Appeals Board 2828 Capitol Boulevard Olympia, Washington 98504 2 2828 Capitol Blvd. PO Box 40911 Olympia, WA 98504·0911 STATE OF WASHINGTON PERSONNEL APPEALS BOARD (360) 586-1481 fAX (360) 753·0139 July 22, 1.997 John R. Arthur Attorney at Law 10900 NE 8th Street, Suite 850 Bellevue, WA 98004 RE: Annette Belden v. Department of Corrections PAB Case Nos. RED-95-0060 and DSEP-96-0016 Dear Mr. Arthur: On July 16, 1997, you informed a mediator for the Personnel Appeals Board that Ms. Belden had decided to drop her appeals before the Board. However, the Board has not yet received a formal withdrawal of the appeals. Before we can close our files on Ms. Belden's appeals, we must receive a formal notification of withdrawal. In order to assist you with submitting the withdrawal, I have enclosed a withdrawal form. Please sign, date and return the form to us as soon as possible so that we can close our files on the matters. . Sincerely, ~ 6...,5:)0<_"",-\ Holly Galloway Senior Special Assistant to the Board Enclosure cc (without enclosure): Michael P. Sellars, AAG Jennie Adkins, DOC Annette Belden, APP o ~ .. . . "ot,\ "'. .-' ....... WASHINGTON STATE PERSONNEL APPEALS BOARD APPEAL STATUS REPORT (To be completed by.Medlaton) Date: Appeal Name: Appeal Number: The status ofthe above-captioned appeal is as follows: Cl The appeal was settled and a copy of the withdrawal order is attached. Cl The appeal was settled and the parties are going to withdraw. (J Appellant called to advise that he/she would withdraw. Cl The appeal has been settled but final paperwork has not been c,?mpleted. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ should be contacted by _ _ _ _ _--J. 19_ to be sure that the withdrawal is forthcoming. [J The appeal was' not settled in mediation. The case should now be set for pre-hearing conference and hearing by the board. The mediation case has not been scheduled, and the case is being returned to the Board for re-assignment Other . :t -l± Date ~. ::r1\ " . .>, , ... .' JOHN R. ARTHUR ATTORNEY AT LAW 10900 N.E. 8TH STREET SUITE 850 BELLEVUE. WASHINGTON 98004 (206) 455·2022 16 July 1997 Jennifer Woods Attorney at Law 715 North 193rd Place Seattle, Washington 98133 Copy to: (1) (2) Client File Dear Ms. Woods: Annette Belden has decided to drop her appeals before the Board and will pursue her discrimination claims with the Washington State Human Rights Commission. This decision is based upon the fact that the Commission can award reimbursement of her attorney fees. I understand that Mr. Sellers has requested a meeting. If he still wishes to meet after being informed of this letter, he can contact me directly. I would not object to your assistance at such a meeting. Sincerely, /4I-1ctf&~ (J hn R. Arthur RECEIVEr JENNIFER WOODS Attorney at Law 715 North 193rd Place Seattle, WA 98133 (206) 546·9081 DEC 10 '990 ~& December 9, 1996 John R. Arthur Attorney at Law 10900 N.E. 8th Street, #850 Bellevue, WA 98004 Re: Michael P. Sellars Assistant Attorney General P.O. Box 40145 Olympia, WA 98504-0145 Belden v. Dept. of Corrections PAS Case Ho. RED-95-0060 Dear Counsel: This letter confirms the mediation date and time in the above referenced appeal. We will hold the mediation/pre-hearing conference January 28, 1997 at 10:00 a.m. at the Washington State. Reformatory. My understanding is that the Personnel Appeals Board will be assigning me the disability separation appeal file for Ms. Belden and that we will be mediating both the reduction in salary and the disability separation appeal on January 28, 1997. I will inform you both at once if I learn that I will not be assigned the disability separation appeal. By letter dated December 5, 1996, Mr. Arthur requested that he appear by telepho~e for the mediation. I believe we will be able to work something out to accommodate this request although I believe face to face mediation of parties and representatives is more effective. If Mr. Arthur can have Ms. Belden with him, then they will be able to conference privately with one another and with me. If Mr. Sellars can be with his client, then we may be able to hook up on a conference call. I am available to travel to the institution if that works best. Let me know how you see this working and we will set it up for the convenience of you both. Mr. Arthur sent me some documents pertaining to this mediation which I am happy to review. If Mr. Sellars would like to provide written background information, I will review it as well. Very e~ Jennifer cc: Kenneth Latsch r urs WO~dS , (to- ..\ (;,1ou J lett'" /'f\L.. {::..V\ovJ . 4:c.J STATE OF WASHINGTON 2828 Capitol Blvd. PO Box 40911 Olympia, WA 98504.0911 PERSONNEL APPEALS BOARD (360) 586-1481 FAX (360) 753·0139 December 2, 1996 Annette M. Belden 12304 - 227th Avenue SE Monroe, VVA 98272 RE: Annette M. Belden v. Department of Corrections, Disability Separation Appeal, Case No. DSEP-96-0016 Dear Ms. Belden: This letter is to acknowledge receipt of the above entitled appeal by the Personnel Appeals Board on November 18, 1996. For your information, we have enclosed a copy of the Personnel Appeals Board Laws & Regulations and our brochure entitled "Your Right To Be Heard." ~~ ~ e e r.;J;J... . atsch Executive Secretary KJL:lh cc: John R. Arthur, AIT Linda Dalton, AAG Jennie Adkins, PO z:\lh\newappl/belden.doc . .D 5L-P- '11JJ -OOIG:, RECEIVED NOV f 8 1996 November 12, 1996 ~~~~ Director, Department of Personnel 600 South Franklin Olympia, Washington 98504 Encl: (1) (2) (3) WAC 356-35-010 Medical Certification Letter of Disability Separation Copy to: (1) (2) (3) K. DuCharme Dr. Nochlin Dr. Reinking Dear Sir: I am requesting an appeal of my attached three page Disability Separation, dated October 15, 1996, from the Washington State Reformatory by Kenneth DuCharme, Superintendent. My termination is in violation of the attached WAC 356-35-010 Disability - Reasonable Accommodation - Separation - Appeals. My termination constitutes disability/handicap discrimination. I note the following: Article 1. An appointing authority may initiate a disability separation of a permanent employee only when reasonable accommodations cannot be provided. According to both of my physicians, Dr. Eugenia Nochlin and Dr. Richard Reinking, only minimal accommodations are essential. My Employer has refused to mutually agree upon an enumeration of reasonable accommodations with my physicians for over two years. Article 2. My disability does not prevent my performance of the essential functions of my current job of RN3. Appropriate work is and was available while accommodations were to be worked out. I should have been given this work rather than an inappropriate separation without pay. Article 3. A disability determination and evidence was provided by my physicians that I am able to perform my duties with minimal accommodation. Article 5. I view the disability separation as disciplinary in keeping with management's consistent treatment of me since April of 1993. Page 1 of 2 Article 7. Both of my physicians have submitted statements that I am able to perform both the duties of my original position or other suitable positions. Dr. Nochlin's attached Medical Certification of 1 November 1996 establishes that I am currently able to work with, or without, reasonable accommodations. Respectfully submitted, ~~~ Annette M. Belden 12304-227th Avenue SE Monroe, Washington 98272 (360) 794-4123 Page 2 of 2 : WAC 356-35--010 Disability-Reasonable accommodation-Separation-Appeals. (1) An appointing authority may initiate a disability separation of a permanent employee only when reasonable accommodations cannot be provided. When the employee requests a disability separation. the appointing authorit)' is DOL required to consider reasonable accommodations. (2) If the disability pre'\'ents perfonnance of an essential function of the CWTent job. and there is no appropriate work av3ilable while ttying to reasonably accommodate the employee, the employee shall be allowed to use accrued vacation, sick, shared leave, exchange, and/or c:ompens:1lOl')' time. Ifthcre is no paid leave available or if the employee chooses not to use paid leave., the employee shall be placed on authorized leave wilhout pay. (3) When reasonable accommodations cannot be prodded, the employee may be separated by the appointing authority after written notice of. whichever is greater, (a) sixty calendar days; or. (b) the number of consecutive work days for which only accrued sick and vacation leave. as defined in WAC 356·18-050 and 356-18-090, could be used. Ifthe emplO}'cc is unable to work due to the disability during the notice period and there: u; no paid leaVe available. the absence shaU be considered approved leave without pay. The sixty eaIendar ~'s notice shall not be required when the emplo)'Cc requests and the appointing authority approves a shorter notice period. , (4) For purposes of this role, determinations of disability shall be made by an appointing authority only at tbe employee's written request or after obtaining a written statement from a physician or a licensed mental health professional. The appointing authority may require an employee to obtain a medical examination at agency ~se from a physician or a licensed mental health professional of tile agencYs choice. In such cases. the ageIltj· shall pfO\;de the ph)/sician or licensed mental health professional '\\ith the specification for the employee's class and a description of the employee's position. Evidence ma), be requested from the physician or licensed mental health professional regarding tile employcc'S abilit)" to perfonn the specified duties. (5) Agency initiated separations due to disability shall not be considered disciplinary actions and shall be appealable to the personnel appeals board At the time of notification that their empJO)1Dent will be temlinated because ofdisability, such employees shall be informed by the appointing authority oftheir right to appeal. The appeal must be filed in writing to the personnel appeals board as provided in Title 358 WAC within thirty calendar days after notice of separation is given. (6) During the notice period required by subsection (3) of this section the agency shall inform employees being separated due to disability that they may be eligible for benefits/assistance programs such as employees' insurance plans. Social ~ty, worker's compensation, veteran's benefits, public assistanec. disabillly retirement, and vocational rehabilitation. (7) The names ,of pennanent cmplO)'ccs who have been separated because of disabili~' shall be placed on reduction in force and promotional registers b)' the director of personnel as prmided in WAC 356-26-030 upon submission ofa statement from a physician or licensed mental health professional that th~' are able to perfonn the duties of the dass(es) for whieh the registers are established. [Stamtory Authority: RCW 41.00.040 and 41.06.150. 93·14..()67 (Order 422), _ 356-35.010, tiled 6130/9'S. effective 8/1193. Statutory Authority; RCW 41.06.150. 87-02-038 (Order 267), _ 356-35"()lO, filed Ifll87~ 85·14-008 (Order 224), _ 356-35-010, filed 6/24185; 84-23-059 (Order 211), _ 356-35-010, filed 11120/84; 83.;24·002 (Order 193), _ 3S6-35..()IO, filed 11/28/83. Sramlory Authorit)r: RCW 41.06.150(17). 82-09-022 (Order 1(9), _ 356-35-010. filed 4/12182; 81-20.Q60 (Order 161). _ 356·3S.() 10. f1led 10/5/81; Order 58, _ 356-35-010, filed 9110n3.1 TOTAL P.03 StaJa of WashinglOn Medical Certification EmpJoy:nent Securpy Depanment I (2) The palient~s under my care for1his con -.3 'on: Ftcm: To: .3 patienrs ~dition: ;J (4) If pregnant, what is the expected date of birth? (3) Dale at onset:of the (5) Did y~ advi~ the priMt to leave work because of illness, cli;abUity or pregnancy? o Yea )(No Yes lJ No (6) Has !he palienl been unable to wot1< at any lIms? '1/ If Ves, pleas!, provide dates: From: 93 To: Has the patie~t been released as able 10 reSl.lme wor1<? ONo If Yes. F,ulllime C Part rime On what dale'? ~ ,j (8) Please identifY any res1ricticns or limitations the patient may have as . tha days or hours of worl<, type of wort<, or place of wot1c. because of hislher r en itt health: (9) . c:er1l~~lt,lat /1/CfY"A- : 'last. rp Tl'f)ated) (Q:Ex8ll'lin9dJ thi~ patient on: 'X G: . /I-I-?~ 11-1-9({, s sgnature ' Date o SECTION Two· This person unable to wori< becausa of a non·work related injury/Illness. Under RCW 50.06.020, benefits may be allowed : • to an otherwise eliSible individual who is reenlBring the work force after an absenee of not less than thirteen consecutive wa$ calendarweeks resulling from temporary IOtal physical disabUity because ofa nonwork related injury or illness. In orderforus to detennine1his person's, eligibilitY for benefits, we need the foRowing inlormalion from you. ( t) Diagnosis: ': I (3) Date bec:ame totally disabled for work: (4) Dale r~ to l8SUtn8 full-time wock: (5) I oer1ify thel the above individual was unable to work without &erious risk to hi$ or her h9alth during ttle period of tempanuy total c1isabllit{. x I Doc:tDr's License , Signal\lre Date Please Return To: Empk)yment security Department 3 P.O. Box 870 Everett, WA S8206 EMS e637 CR8\'.12193) ...... , .. CHAS:: ~IVE1.ANL> Secret1ty STATE OF WASHINGTON DEPARTMENT OF CORRECTIONS WASHINGTON STATE REFOR/lliATORY P.O. 80)( 777 • Monroe, Washington 98272-0777 October 15, 1996 CERTIFIED MAIL/RETURN RECEIPT REQUESTED Annette Belden 12304; 227th Avenue SE Monro~, WA 98272 Dear Mrs. Belden: This :is official notification of· your disability separation from your f position as Registered Nurse 3 with the Washington. state Refo~atory, effec~ive D~cember 14, 1996) pursuant to Merit System ·Rule356-34-010 O~sabil~ty - Separation - Appeal - Procedure. On M~rch 14, 1996, you were assigned to home due to some troubling incidents which had recently occurred. A copy of that letter is attached. It more fully outlines the concerns I had at that time. since ~hat time, I have attempted to receive a specific diagnosis of :your health condition in order to determine your ability/inability to perform your job duties. On August 22,. 1996, Dr. Reinking, your psychologist, responded to my inquiry regarding your condition. H~ stated, in .part, "The nature of Mrs. Belden's disability (i.e.,' P'I'SD) lIlajor depression, etc.) is not like a tbad back' ..• there are no physical or mental limitations that need to be imposed .. The nature of Mrs. Belden's condition requires that tne interpersonal/supervisory environment withln which she functions as a nurse be altered in ways I outlined in my July 22, 1996 letter .•.. " Dr. Reinking further suggested a· "face-to-face discussion be our next step". A copy of that letter is attached. On September IS, ~996, Deborah Addleman, Affirmative Action Offxcer, and L: Nani McLaughlin, personnel supervisor, met with Dr. Reinking. The meeting was held to discuss possible adjustments to your RN 3 position. Or. Reinking had three solutions: (1) reassign you to another RN 3 position in the geographic location; immed~ate (2) appoint you to a position with equal·salary outside the nursing profession; october 15, 1996 Page Two Department p~ovid~ t~aining for you and appoint you to another profess~on w~thln the same pay range; (3) the Dr. Reinking said he would not agree to an accommo<;lation which would!require you to lose salary and benefits or require a further commute for you. None :of the solutions that were offered by Dr. available. Reinking are (1) There are no vacant RN (2) There are no vacant positions with the Monroe Command. that are at the same salary range (49N) and for which you qualify; (3) An equivalent position within your salary range would require a Bachelor's Degree. The Department has never paid for someone to attain an undergraduate degree, nor would this be considered a reasonable accommodation. :3 position in the Monroe Command; There~ore, given the lack of options available and Dr. Reinkins's statement that he would not agree to any other accommodation, you are being separated from your position as a Registered Nurse 3. This ~ction is being taken without prejUdice and may be rescinaed at any time during the 60-calendar-clay period by submitting a statement from your physician or mental health professional that you are able to perform the.essential functions of your position withOut restriction~ records indicate t.hat you have 76.9 hours accrued vacation leave and 8 hours of sick leave. r will allow you to use the balance of your sick and vacation leave before December 13, 1996. A supply of "Leave Request" forms is enclosed. Our Since you are a vested employee, you may be eliqible for non-duty disability retirement. You are advised to contact the Department of Rstirement systems, P.O. Box 48380, Olympia, Washington 98504A brochure from the Department of 8380 . or call 360-109-4700. Retirement Systems describing disability benefits is en~losed. ,tt is also suggest.ed that you contact the social SecurJ.ty Of~J.ce regarding disability social security retirement. Another poss,ible resource is Tom Gohm at the Department of p.erson~el who ,J.s a disability personnel specialist. He can be reached ~n Olympla at 360-586-0164. .. >4.t..1 .. J.M.. .;. .' iZ:::z~"".:-<,"·,(,,:.r:;:m,·M#· . ... v:·, .. "Y.'·' .~.".y:.,~. .~ . october 15, 1996 Page Three The Merit system Rule on disability separation, a: copy is enclosed P7o~ides that you ~ay a~p~al this term~nation due to disability by fl.ll.ng a!1 appeal l.n wrl.tJ.ng to the Dl.rector of· Personnel, stat.e Department of personnel, 600 South Franklin, olympia, Washington 98504, within 30 calendar days of this letter. your letter must state .that a disability does not exist. Additionally, you have the right to have your name placed on the reduction-in-force register and any current promotional registers by the Director, Department of Personnel, provided you have sub~itted to the Director a current physician's statement that you are physically able to perform the duties of the class(es) for which the registers are established. Your service with the state of washington since February 15, 1983 is appreciated. I regret that your condition has made a disability separation necessary. prior to receiving your final paycheck, please return any items of state property such as picture IO, key chits, etc. If you have any questions concerning this matter, please contact ei the:r mysel f or Cheryl Landers, Area Personnel Manager' (until L. Nani McLaughlin returns from vacation on October 21, 1996). Cheryl may be reached at 794-22BO at the Monroe Command House. Sinc~relYI !;l\ ~ Krn~Charme Superintendent KDC:jh :Enclosures cc: Chase Riveland, secretary, Department of Corrections Dennis Karras, Director, Department of Personnel Jennie Adkins, Director, Division of HUDan Resources Eldon Vail, Assistant Director, Division of prisons Cheryl Landers, NW Area Personnel Manager L. Nani McLaughlin, Personnel supervisor EOHR File