Woman, nursing home in dispute over firing

A Winchester woman who has been arguing since March that she was wrongfully fired from a local nursing home will continue to receive unemployment benefits, despite claims of misconduct from her former employer. She recently filed a complaint with the Equal Employment Opportunity Commission.

Deshanna Baker has successfully defended two challenges from Fountain Circle Health and Rehabilitation Center that she provided poor patient care when she worked there as a licensed practical nurse.

It is uncommon to get a ruling in favor of the employee during the appeal process, said Terri Bradshaw, communications director for the state Office of Unemployment and Training.

Kentucky employers challenged 2,450 claims in August, and the state ruled in favor of the employee 741 times — about 30 percent of the time.

Baker filed the complaint with the EEOC in August, and the commission agreed to mediate. According to a letter to Baker from the EEOC, Fountain Circle was to be contacted regarding possible mediation, but current director Robert Hollins said he was not aware of any communication with the EEOC. The EEOC would not comment on the situation.

To receive unemployment benefits, an employee has to prove he or she was “discharged for reasons other than misconduct,” Bradshaw said.

Fountain Circle declined comment, citing state and federal laws prohibiting them from speaking about employment and personnel issues.

Baker was hired as a licensed practial nurse Aug. 8, 2009, at Fountain Circle, and was fired March 4, 2011. Her last day of work was Feb. 28.

At approximately 8 a.m. March 2, the respiratory therapist reported that a resident’s tracheotomy dressing did not look like it had been changed during the night shift, a company investigation document said. Company policy states tracheotomy dressings are supposed to be changed every shift.

Baker said she was not working when the incident allegedly occurred, but was notified via a telephone call on March 2 that an investigation was conducted and she was suspended. She was terminated March 4.
A nursing home document states the investigation was conducted by Assistant Director of Nursing Andrea Vanorio, Assistant Director of Administration Nancy Russell and social worker Brenda Harmon. Vanorio declined to comment.

According to the document, the resident was interviewed the day the incident was reported and, although Baker was not on duty that day, the patient allegedly said he did not “receive trach care on 11p-7a shift on different occasions by the night nurses. Resident is able to understand what is said to him and nods yes or no to reply. Resident identified the nurses by name that did not provide care to him.”

The document stated that the facility's respiratory therapist, Helen Bayes, reported the dressing had not been changed. Tracheotomy dressings have to be changed frequently, Bayes said, and even if the dressing had been changed during the night shift, it was likely that it would need changed again on the day shift. Bayes said she did not report anyone for not changing a tracheotomy dressing, but instead reported she was concerned because the patient's water bottle was empty.

Bayes is no longer employed at Fountain Circle because of health problems.

In a recording of the appeal hearing, Vanorio stated under oath that the resident “very explicitly told us on multiple different occasions she had not suctioned his trach, nor provided care for his trach, which he felt put him at risk.”

Former Fountain Circle employee Heather Curtis, currently a CNA¿at St. Joseph Hospital in Lexington, supported Baker’s claim that the resident could not speak. Curtis said she did not believe the resident could have named specific nurses. Bayes also said she did not believe the patient was physically able to make the claims.

After her termination, Baker said she met with Vanorio, Russell and Harmon to dispute the claims, in accordance with the open door policy of Kindred Healthcare, the parent company of Fountain Circle.

Baker said she asked for a copy of the investigation report at the meeting but did not receive one until it was subpeonaed for an appeal hearing with the Kentucky Division of Unemployment Insurance.
She also said she requested a second investigation be conducted but was never notified of an investigation. The investigation documents provided to the Division of Unemployment are dated March 2.

The open door policy states that the executive director/CEO must respond to employee concerns within one week.

The Kentucky Division of Unemployment Insurance ruled in both challengers from Kindred that the nursing home failed to prove willful misconduct.

Baker filed for unemployment benefits March 6, and Kindred Healthcare filed an appeal April 6. After a hearing in May, the Division of Unemployment Insurance Appeals Branch ruled in favor of Baker.