{ "id": 637120, "name": "MARGUERITE ULYSSE, Plaintiff-Appellant, v. JOHN R. LUMPKIN, Director, The Department of Public Health, et al., Defendants-Appellees", "name_abbreviation": "Ulysse v. Lumpkin", "decision_date": "2002-11-12", "docket_number": "No. 1 \u2014 01 \u2014 2411", "first_page": "886", "last_page": "893", "citations": [ { "type": "official", "cite": "335 Ill. App. 3d 886" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "692 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "181 Ill. 2d 191", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821407 ], "year": 1998, "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0191-01" ] }, { "cite": "666 N.E.2d 347", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "281 Ill. App. 3d 108", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150179 ], "year": 1996, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0108-01" ] }, { "cite": "624 N.E.2d 1366", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "253 Ill. App. 3d 525", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5421928 ], "year": 1993, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/253/0525-01" ] }, { "cite": "606 N.E.2d 1111", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "153 Ill. 2d 76", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738801 ], "weight": 7, "year": 1992, "pin_cites": [ { "page": "94" }, { "page": "94" }, { "page": "88" }, { "page": "88" }, { "page": "88" }, { "page": "99" }, { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0076-01" ] } ], "analysis": { "cardinality": 713, "char_count": 14801, "ocr_confidence": 0.732, "pagerank": { "raw": 7.533416378157252e-08, "percentile": 0.44753111088715986 }, "sha256": "fd516f3893fbd5c76a7d3da83d128db3ad9d03b34eb5217c48d1de91c1617286", "simhash": "1:4b9cbc97c5c0df81", "word_count": 2383 }, "last_updated": "2023-07-14T21:04:10.004592+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARGUERITE ULYSSE, Plaintiff-Appellant, v. JOHN R. LUMPKIN, Director, The Department of Public Health, et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE CAHILL\ndelivered the opinion of the court:\nPlaintiff appeals an administrative decision removing her from the state registry of qualified certified nurse\u2019s aides (CNA) maintained by the Illinois Department of Public Health (the Department). We affirm.\nThe Department issued a formal notice to plaintiff on December 17, 1999, charging her with abusing a nursing home resident on November 11, 1999. Plaintiff asked for a hearing to contest the allegations. The following evidence was taken at the hearing.\nPlaintiff testified that she had been a CNA for eight years and had worked at Ballard Health Care Center for four. CNAs are responsible for feeding, changing and moving the residents to and from their beds. Gertrude Streeter was plaintiffs supervisor. Plaintiff had complained to Ballard management about Streeter\u2019s unfairness in assigning extra work. Plaintiff claimed she was assigned work other CNAs refused to do.\nPlaintiff worked the 6:30 a.m. to 2:30 p.m. shift. She had been caring for an Alzheimer\u2019s patient for three to four months. Plaintiff said that the patient was confused and could not remember what happened from one minute to the next. On November 11, plaintiff was trying to move the patient from a wheelchair into her bed. The patient began fighting and sliding down the chair. Plaintiff called to Streeter for help four or five times before she came. Streeter did not respond immediately because she was on the phone. Plaintiff tried to tie the patient down as instructed by Streeter. Plaintiff was kicked several times as she tried to restrain the patient. Plaintiff denied slapping the patient and claimed that she only held the patient\u2019s wrists while telling her to stop fighting. Plaintiff did not intentionally hit the patient. Plaintiff believed that Streeter reported otherwise because she and Streeter were mad at each other.\nPlaintiff was interviewed by Sam Ogunro and Sue Mikals on November 11. Ogunro is a nursing supervisor. Mikals is the vice-president of clinical operations for Ballard. Plaintiff told Ogunro and Mikals that she tried to grab the patient\u2019s hand but did not slap her, either on the face or the hand. Plaintiff told the patient she was being \u201cbad\u201d and to stop fighting. Mikals told plaintiff that she would be terminated because she had abused the patient twice \u2014 grabbing the patient\u2019s hand and telling the patient that she was bad. Mikals told plaintiff she could prepare a letter in response and deliver it to Mikals the next day. Plaintiff testified that she prepared a one-page letter and gave it to Mikals as instructed. Plaintiff offered a copy of the letter into evidence. The Department\u2019s objection to the letter\u2019s admission was sustained.\nGertrude Streeter testified that she worked at Ballard as a licensed practical nurse. Streeter was in charge of providing medical care to the residents, some of whom suffered from Alzheimer\u2019s. Streeter also supervised the CNAs, including plaintiff.\nStreeter said that, on November 11, 1999, she and plaintiff were working the same shift. At about 2 p.m. Streeter and plaintiff moved an Alzheimer\u2019s patient from a wheelchair to her bed. Both then left the room. Streeter and plaintiff returned to the room and noticed that the patient was trying to climb out of bed. Streeter and plaintiff helped the patient to sit up. The patient was agitated and flailed her arms and legs. Plaintiff tried to restrain the patient\u2019s left wrist with a wall restraint when the patient kicked her in the face. Plaintiff then slapped the patient in the face. Plaintiff slapped the patient again minutes later. Streeter told plaintiff that she was not supposed to hit the patient. Plaintiff said that if she was hit, she would hit back. Streeter examined the patient and noticed a red mark on her face. Streeter reported plaintiff\u2019s conduct to Sam Ogunro, the afternoon nursing supervisor.\nStreeter denied that plaintiff called several times for help in moving the patient before Streeter came to the room. Streeter did not remember being on the phone. Streeter said that if plaintiff called for help Streeter responded right away. Streeter denied that the slapping was accidental.\nStreeter testified that she and plaintiff were friends and there was no tension between them. There were no complaints about plaintiff hitting other patients. Streeter did not recall whether plaintiff filed complaints against Streeter based on workload assignments. Streeter said she divided the work evenly between the CNAs.\nSam Ogunro testified that he is a registered nurse and nursing supervisor for Ballard. Ogunro said that Alzheimer\u2019s patients were sometimes combative and hit CNAs caring for them.\nOgunro learned of the November 11 incident at 2:30 p.m., about one-half hour after he came on duty. Streeter explained to him that she and plaintiff were helping an agitated patient into bed when plaintiff was kicked and that plaintiff slapped the patient twice. Ogunro told Streeter that he was required to report the incident to his supervisor, Sue Mikals. Ogunro prepared a report for Mikals. The signed report detailed what Streeter had told Ogunro.\nOgunro met with Mikals. Ogunro was present when Mikals called Streeter in to relate what happened. Ogunro was also present when plaintiff was interviewed. Plaintiff denied slapping the patient in the face. Plaintiff said that after being kicked, she tapped the patient twice in the thigh and told the patient \u201cdon\u2019t do that, bad lady, bad lady.\u201d Ogunro said that plaintiff demonstrated what she had done by tapping Ogunro on the thigh. The pressure used was strong enough to cause injury.\nPlaintiff was told that her conduct amounted to verbal and physical abuse and that she would be terminated. Plaintiff responded that she had been provoked.\nOgunro testified he had a good working relationship with plaintiff but that they often worked different shifts. Ogunro also supervised Streeter when she worked evening shifts. Ogunro admitted that morning shift employees had complained to him about Streeter\u2019s unfairness in assigning work. Ogunro could not remember if plaintiff was one of those who complained.\nThe Department file was then offered into evidence. The file included a copy of the notice charging plaintiff with abuse, plaintiffs request for a hearing, a Department abuse report, a one-page report prepared by Streeter, a one-page report prepared by Ogunro, Ballard\u2019s policies and procedures, and a three-page report prepared by Mikals. Plaintiff objected to admission of the Mikals report when it was disclosed that Mikals would not be testifying. The objection was overruled.\nThe administrative law judge found that plaintiff committed physical abuse of a nursing home patient. The judge found plaintiffs testimony was self-serving and not credible. The finding of abuse was adopted by the Department. The trial court entered an order affirming the Department order on May 22, 2001.\nPlaintiff argues on appeal that three adverse evidentiary rulings violated her right to a fair hearing. Plaintiff cites no case law to support her argument. We are persuaded by none of her claims of error.\nPlaintiff first contends that the Mikals report was hearsay that should not have been admitted into evidence. We disagree.\nHearsay is not admissible in an administrative hearing as a general rule. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 94, 606 N.E.2d 1111 (1992). But the Department\u2019s regulations permit admission of \u201crecords and reports of health care facilities, doctors, nurses, physical therapists or other health care providers\u201d without foundation or proof so long as the report or record does not include \u201caffidavits or other documents specifically prepared for litigation.\u201d 77 Ill. Adm. Code \u00a7 100.13(j) (Conway Greene CD-ROM 2002). Section 100.13(h) allows otherwise inadmissible evidence so long as it is \u201ca type commonly relied upon by reasonably prudent persons in the conduct of their affairs.\u201d 77 Ill. Adm. Code \u00a7 100.13(h) (Conway Greene CD-ROM 2002).\nThe Mikals report documented an investigation into the alleged abuse of a nursing home resident. The report was not \u201cspecifically prepared for litigation\u201d but was instead required by Ballard\u2019s policies and procedures. The report also would have been reasonably relied on by those investigating an abuse allegation. The report was properly admitted into evidence. This result would not change if we were to agree that the Mikals report was inadmissible hearsay.\nThe record contains Streeter\u2019s eyewitness testimony and testimony by Ogunro, the supervisor to whom the abuse was reported within one-half hour of the event. Without reference to the Mikals report, the administrative law judge found Streeter and Ogunro more credible than plaintiff, whose testimony was discounted as self-serving. The administrative law judge then mentioned the Mikals report as \u201cyet another account\u201d of what happened. Where, as here, there is sufficient competent evidence to support an administrative decision, the admission of hearsay is not prejudicial error. Abrahamson, 153 Ill. 2d at 94.\nPlaintiff next claims that she should have been allowed to use the Mikals report during closing argument to show contradictions in Ogunro\u2019s testimony. Plaintiff cites no case law to support her single-paragraph argument.\nPlaintiff challenged the consistency of Ogunro\u2019s testimony during closing argument:\n\u201cCOUNSEL: In terms of Sam Ogunro\u2019s testimony, Sam appeared to have been very calm, cool and collected. He was allegedly approached in confidence. He didn\u2019t talk to [plaintiff]. He went straight to make a report, and when he did finally speak to [plaintiff] he demonstrated on his lap where and how [plaintiff] hit the leg. That\u2019s [inconsistent] with the report that he was a part of with Sue Mikals. So again I think that\u2014\nTHE COURT: How is it that he is part of Sue Mikals\u2019 report, I mean this report was generated\u2014\nCOUNSEL: He was at the meeting.\nTHE COURT: He was at the meeting, but the report that you are referring to, I believe that\u2019s page 8, 9, 10, and 11 of the Department\u2019s exhibit is the report generated by Ms. Mikals. I know the conclusion of it, it\u2019s got \u2014 it\u2019s not signed, but it says submitted by Susan Mikals, RN.\nCOUNSEL: Yeah. At the same time if you look at the language, the language reflects \u2014 second paragraph immediately after I received information from Sam I called Gertrude, and it talks about\u2014\nTHE COURT: This is Sue Mikals\u2019 report.\nCOUNSEL: Of what happened with both of them present in the room. The third paragraph talks about next, with Sam present, I attempted to contact [plaintiff]\u2014\nTHE COURT: Right, but these are Sue Mikals\u2019 \u2014 there\u2019s no mention that Sam Ogunro adopted this report or any of the representations in it, but\u2014\nCOUNSEL: Well, no, you\u2019re right, except evidently, part of what Sam had told her is contained in this report.\u201d\nBased on this exchange, the administrative law judge properly ruled that, because there was no evidence that Ogunro reviewed or adopted the Mikals report, Ogunro\u2019s testimony could not be contradicted with the report. Plaintiffs statement that Ogunro was \u201cpart of\u2019 the Mikals report is a misstatement of the evidence.\nPlaintiff next claims that a ruling barring admission of a one-page letter she drafted and delivered to Mikals also denied plaintiff her right to a fair hearing. We disagree.\nSection 100.12(b) of the Department\u2019s rules requires each party to produce all documents that will be used at a hearing 21 days before the hearing date. 77 Ill. Adm. Code \u00a7 100.12(b) (Conway Greene CD-ROM 2002). It is undisputed that plaintiff failed to comply with this requirement. Plaintiffs claim that the rule does not prohibit use of a document not timely produced overlooks section 100.13(1), which prohibits introduction of evidence not in compliance with section 100.12(b) absent a showing of good cause. 77 Ill. Adm. Code \u00a7 100.13(1) (Conway Greene CD-ROM 2002). Plaintiff made no showing of good cause here. The letter was properly excluded.\nPlaintiff last claims that the Department\u2019s decision is against the manifest weight of the evidence. Plaintiff argues that Streeter\u2019s vague and contradictory testimony that plaintiff slapped the patient twice was insufficient to sustain a finding of abuse. Plaintiff adds that the Mikals report is incompetent hearsay that we must exclude in determining the manifest weight of the evidence. See Polk v. Board of Trustees, 253 Ill. App. 3d 525, 537, 624 N.E.2d 1366 (1993). We already found that the Mikals report was properly admitted into evidence at the hearing and need not be excluded from our analysis. But we note that plaintiffs argument is unpersuasive whether or not the report is considered.\nA decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Abrahamson, 153 Ill. 2d at 88. The mere fact that an opposite conclusion is reasonable or that a reviewing court might have ruled differently will not justify reversal. Abrahamson, 153 Ill. 2d at 88. We will not substitute our judgment for that of the administrative agency. Abrahamson, 153 Ill. 2d at 88.\nPlaintiff\u2019s argument here attacks the credibility of witness testimony against her and urges us to reweigh the evidence to reach a different result. But it is not our function to reevaluate witness credibility or resolve conflicting evidence. Golab v. Department of Employment Security, 281 Ill. App. 3d 108, 112, 666 N.E.2d 347 (1996). We are charged only with determining whether the findings of fact are supported by the manifest weight of the evidence. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204, 692 N.E.2d 295 (1998). We conclude that the finding of abuse is supported by this record. We are aware that an abuse finding here removes plaintiff from the state registry of qualified CNAs and prevents her from working in a long-term care facility. We consider the severity of the sanction imposed in determining whether an administrative decision is against the manifest weight of the evidence. Abrahamson, 153 Ill. 2d at 99. But we defer to the expertise and experience of the Department in determining what sanction is appropriate to protect the public interest. Abrahamson, 153 Ill. 2d at 99.\nThe decision of the Department is affirmed.\nAffirmed.\nMcBRIDE, EJ., and BURKE, J., concur.", "type": "majority", "author": "JUSTICE CAHILL" } ], "attorneys": [ "William E. Dicks, Jr., of Chicago, for appellant.", "James E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Carol A. Cera, Assistant Attorney General, of counsel), for appel-lees." ], "corrections": "", "head_matter": "MARGUERITE ULYSSE, Plaintiff-Appellant, v. JOHN R. LUMPKIN, Director, The Department of Public Health, et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 1 \u2014 01 \u2014 2411\nOpinion filed November 12, 2002.\nWilliam E. Dicks, Jr., of Chicago, for appellant.\nJames E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Carol A. Cera, Assistant Attorney General, of counsel), for appel-lees." }, "file_name": "0886-01", "first_page_order": 904, "last_page_order": 911 }