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Donaldson v. Butler County

Commonwealth Court of Pennsylvania

June 23, 2015

Jo Ann Donaldson, Appellant
Butler County

Argued April 14, 2015

Appealed from No. 13-10728. Common Pleas Court of the County of Butler. Horan, J.

Edward A. Olds and Jaimie L. George, Pittsburgh, for appellant.

Michael K. English, Butler, for appellee.




Jo Ann Donaldson (Donaldson) appeals from the Butler County Common Pleas Court's (trial court) June 24, 2014 order affirming the Butler County Alternative Dispute Resolution (ADR) Panel's (ADR Panel) Findings of Fact, Conclusions and Determination (Determination) upholding Donaldson's discharge from her employment with the Butler County (County) Area Agency on Aging (Agency). The issues for this Court's review are: (1) whether there was just cause for the Agency's termination of Donaldson's employment, and (2) whether the trial court capriciously disregarded the parties' stipulation. Upon review, we reverse and remand.


Donaldson commenced her employment with the Agency in 2000.[1] In October 2011, Claimant was promoted to supervisor of the Agency's Adult Protective Services Unit. Her duties included " supervis[ing] protective service specialists who are engaged in the investigation of reports of elder abuse and the provision of services for older adults in need of protective services" in accordance with the Older Adults Protective Services Act (Act)[2] and Chapter 15 of the Commonwealth Department of Aging's Regulations (Protective Services Regulations).[3] Reproduced Record (R.R.) at 613a.

On April 11, 2013, the Agency received a Report of Need (RON) for an older adult client (Client) made by a care professional who had visited and tested Client. See R.R. at 668a-683a. The RON noted that Client had been diagnosed with dementia, was very confused and had a limited ability to conduct activities of daily living, yet her son and caretaker Richard Korber (Korber) left her alone for up to 19 hours per day. See R.R. at 670a-671a. According to the RON, Client had been hospitalized in January 2013 for failing to thrive, specifically, dehydration and the beginning stages of kidney failure. Id. Client was thereafter released from the hospital with the recommendation that she have 24-hour supervision. Korber initially agreed to and hired a service to provide the recommended care, but he discontinued the service in February 2013.

The RON also stated that, on April 5, 2013, Client developed an eye infection that required emergency surgery. Id. She returned home with oxygen on April 9, 2013 under her daughter Denise Scott's (Scott) care. The RON further provided that, before Client's eye surgery, Client's care plan consisted of either Korber or his wife visiting in the mornings to give Client her medications and breakfast, and in-home service care from 2:00 p.m. to 6:00 p.m. each day; Client was without supervision throughout the night until Korber or his wife visited some time the next morning. Id. It also reflected that Client often spent Sundays with her son Dennis Korber and that Scott visited from Erie every 4 to 6 weeks to care for her. Id. According to the RON, although Korber, Scott and Dennis Korber had been Client's joint powers of attorney (POA), Korber became Client's sole POA in January 2013 without his siblings' knowledge. Id. The RON identified Korber as the alleged perpetrator and sought Client's immediate referral to the Agency's Protective Services Unit. See R.R. at 672a-673a. The RON stated that Scott would care for Client until April 12, 2013. See R.R. at 672a.

On Friday, April 12, 2013, Agency Clinical Deputy Administrator Ricky Lake (Lake) instructed Donaldson to observe new Protective Service Investigator Steve Brown's (Brown) investigation of Client's circumstances.[4] As a result of the investigation, Donaldson believed Client was at risk of harm under Korber's care and instructed Brown to speak to Agency Protective Services Unit solicitor Ronald Thomas (Thomas) who thereafter initiated emergency guardianship proceedings for Client. The trial court appointed Cheryl Shuler (Shuler) as Client's emergency guardian. Shuler, not Donaldson, had Client removed from her home and placed into an assisted living facility. However, because Client became violent during the removal process, she was initially committed to a mental care facility.[5]

The County hand-delivered to Donaldson a Pre-Disciplinary Notice of Charges, Explanation of Evidence and Opportunity to Respond/Present Testimony (Notice) charging that " proper protocol of ensuring the safety/wellbeing of [Client] was not taken" and that the " [l]east restrictive/intrusive measure[s] were not utilized[,] therefore resulting in potential liability for the [A]gency." [6] R.R. at 589a. The Notice also informed Donaldson that her employment was being suspended until a Loudermill hearing[7] could be conducted. The hearing was conducted on April 26, 2013. See R.R. at 590a. Thereafter, by May 7, 2013 letter, the County notified Donaldson that her employment was terminated effective immediately, due to " significant and material procedural and client's rights violations in breach of the standards contained in the applicable sections of the [Pennsylvania C]ode and the [Agency's Policy and Procedure for Guardianship Cases (Agency's Guardianship Procedure)]." R.R. at 588a.

Donaldson exercised her right under the County's ADR Program to have the ADR Panel review her discharge.[8] The ADR Panel conducted hearings on September 13, 2013 and October 9, 2013. The ADR Panel issued its Determination on February 20, 2014, holding that " the County has produced more than sufficient evidence in this proceeding to support [its] decision . . . to terminate [Donaldson's] employment for cause." R.R. at 10a. Donaldson appealed to the trial court, which without taking any new evidence, heard argument on May 29, 2014. By June 24, 2014 opinion, the trial court affirmed the ADR Panel's Determination. Donaldson appealed to this Court.[9]

Donaldson argues that she was improperly discharged under circumstances in which her actions were in conformity with the Act and its regulatory mandates, in that she acted to protect Client under circumstances in which Client's responsible caregiver was an alleged perpetrator of Client's neglect.


Initially, we clarify that the County's ADR Program mandates that removal actions

shall be reviewed in light of merit criteria. . . . [M]erit criteria shall mean whether the infraction(s) committed . . . logically or rationally touch upon the employee's competency and/or ability to perform their job duties or whether the infraction(s) . . . hampered or frustrated the execution of the employee's job duties.

R.R. at 132a. Section 9.0(a) of the County's ADR hearing rules requires the County to prove by a preponderance of the evidence that Donaldson's action or inaction on April 12, 2013 warranted her removal. See R.R. at 144a.

The County contends that " [a]lthough [Donaldson] was in a position that required the use of judgment, [her] right to use her judgment was not unfettered. [Donaldson's] judgment in seeking an emergency guardianship was erroneous, in light of the protocols that she should have applied to this particular situation." County Br. at 13.

According to Donaldson's job description, as Protective Services Supervisor, she was required to " function in accordance with the [Act] and the Protective Services [R]egulations[,]" and " with established . . . policies and procedures." R.R. at 614a-615a. Section 102 of the Act provides:

It is declared the policy of the Commonwealth of Pennsylvania that older adults who lack the capacity to protect themselves and are at imminent risk of abuse, neglect, exploitation or abandonment shall have access to and be provided with services necessary to protect their health, safety and welfare. It is not the purpose of this act to place restrictions upon the personal liberty of incapacitated older adults, but this act should be liberally construed to assure the availability of protective services to all older adults in need of them. Such services shall safeguard the rights of incapacitated older adults while protecting them from abuse, neglect, exploitation and abandonment. It is the intent of the General Assembly to provide for the detection and reduction, correction or elimination of abuse, neglect, exploitation and abandonment, and to establish a program of protective services for older adults in need of them.

35 P.S. § 10225.102 (emphasis added).

Section 303(a) of the Act requires that an agency " provide for an investigation of each report . . . [which] shall be carried out under regulations issued by the [D]epartment. These regulations shall provide for the methods of conducting investigations under this section . . . ." 35 P.S. § 10225.303(a) (emphasis added). " Investigation" is defined in the Protective Services Regulations as " [a] systematic inquiry conducted by the agency to determine if allegations made in a [RON] can be substantiated, or if the older adult referred to in the [RON] is an older adult in need of protective services, or both." 6 Pa. Code § 15.2 (emphasis added). Section 15.42 of the Protective Services Regulations requires that " [t]he investigation of a report categorized as priority shall be initiated as soon as possible. The agency shall assure that reasonable attempts to initiate the investigation will be made within 24 hours after the report is received." 6 Pa. Code § 15.42(a)(2).

A report is substantiated " [w]hen an investigation confirms the details of a report . . . or determines that the subject of the report is an older adult in need of protective services[.]" 6 Pa. Code § 15.44(a). " Older adult in need of protective services[]" is defined as " [a]n incapacitated older adult who is unable to perform or obtain services that are necessary to maintain physical or mental health, for whom there is no responsible caretaker and who is at imminent risk of danger to his person or property." 35 P.S. § 10225.103. " Caretaker " is defined by the Protective Services Regulations as " [a]n individual . . . that has assumed the responsibility for the provision of care needed to maintain the physical or mental health of an older adult." 6 Pa. Code § 15.2. A " [ r ] esponsible caretaker " is one

who is able and willing to provide the basic care and protection necessary to maintain the physical or mental health of an older adult. A caretaker reported to have . . . neglected . . . an older adult is presumed, subject to an investigation under this chapter, to ...

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