United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC  20036-3457

ON BRIEFS:

Anne R. Godoy, Attorney; Heather R. Phillips, Counsel for Appellate Litigation; Edmund C. Baird, Associate Solicitor of Labor for Occupational Safety and Health; Seema Nanda, Solicitor; U.S. Department of Labor, Washington, D.C.

For the Complainant

        Eric J. Neiman, Esq.; Lewis, Brisbois, Bisgaard & Smith LLP, Portland, OR

                For the Respondent, UHS of Delaware, Inc.

Dion Y. Kohler, Esq.; Jackson Lewis P.C., Atlanta, GA

For the Respondent, Premier Behavioral Health Solutions of Florida, Inc., d/b/a Suncoast Behavioral Health Center

DECISION

Before:  ATTWOOD, Chairman and LAIHOW, Commissioner.

BY THE COMMISSION:

BACKGROUND

Suncoast is divided into three patient care units—a youth unit, an adult unit for acute patients, and an adult unit for those with sensitivity disorders.  When patients first arrive at the hospital, they are initially processed by intake specialists.  During their stay, patients receive direct care from mental health technicians (MHTs), registered nurses (RNs), therapists, and psychiatrists.  The duties of the MHTs, who are primarily responsible for ensuring the patients’ safety on the units, include checking on patients during rounds conducted every 5 to 15 minutes and continuously monitoring certain high-risk patients.  RNs directly supervise the MHTs and are also responsible for providing nursing care that includes patient assessments and the administration of prescribed medications.  Therapists conduct psychosocial assessments of the patients and provide group therapy, while psychiatrists conduct psychiatric evaluations, prescribe medications, issue restraint and seclusion orders, and lead teams that determine how to treat the patients.

DISCUSSION

“To prove a violation of the general duty clause, the Secretary must establish that:  (1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) a feasible and effective means existed to eliminate or materially reduce the hazard.”  UHS of Westwood Pembroke, Inc., No. 17-0737, 2022 WL 774272, at *2 (OSHRC Mar. 3, 2022), petition for review filed, Docket No. 22-1845 (3d Cir. May 2, 2022).  The Secretary must also establish that “the employer knew or, with the exercise of reasonable diligence, could have known of the hazardous condition.”  Id..

In his amended citation, the Secretary proposes eight abatement measures, each of which the judge concluded would be feasible and effective.  Based on our review of the record, including how the parties litigated the abatement element of the Secretary’s burden, we find that these measures were alleged “as a process-based approach to abate the cited [workplace violence] hazard.”  Westwood, 2022 WL 774272, at *8 (recognizing that abatement measures alleged as parts of a process “aligns with the nature of workplace violence, which . . . arises in different contexts and conditions at [the cited psychiatric hospital], necessitating different abatement measures”).  

Accordingly, based on the judge’s undisputed findings, we conclude that the Secretary has established a general duty clause violation.  Therefore, the only remaining issue on review is whether, as the judge concluded, Respondents are liable for the violation as a single employer under the Act.  Having considered the voluminous record evidence on this issue, we conclude that Suncoast and UHS-DE operated as a single employer.  

The Secretary bears the burden of establishing a single-employer relationship.  FreightCar Am., Inc., No. 18-0970, 2021 WL 2311871, at *5 (OSHRC Mar. 3, 2021); Loretto-Oswego Residential Health Care Facility, 23 BNA OSHC 1356, 1358 n.4 (No. 02-1164, 2011) (consolidated), aff’d, 692 F.3d 65 (2d Cir. 2012).  The factors relevant to determining if such a relationship exists include whether the cited entities “share a common worksite, are interrelated and integrated with respect to operations and safety and health matters, and share a common president, management, supervision, or ownership.”  FreightCar, 2021 WL 2311871, at *5; S. Scrap Materials Co., 23 BNA OSHC 1596, 1627 (No. 94-3393, 2011).  

Common worksite

On review, Respondents argue that the common worksite factor requires employees of both companies to be exposed to the same workplace hazards.  This argument, however, was rejected by the Commission in Westwood:  “[M]utual employee access to a hazard is not a precondition to establishing the common worksite factor.”  2022 WL 774272, at *3.  Moreover, unlike Westwood, at least one UHS-DE employee—the CEO—was exposed to the hazard of workplace violence, as her testimony shows that she interacts with patients and the record shows that she is occasionally present in the patient units during the hospital’s “senior leadership rounds.”

Interrelation and Integration

We also conclude, as the judge found, that an abundance of evidence shows Suncoast and UHS-DE are “interrelated and integrated with respect to operations and safety and health matters.”  FreightCar, 2021 WL 2311871, at *5.  This evidence includes (1) the role of Suncoast’s CEO at the hospital as an employee of UHS-DE, (2) UHS-DE’s additional managerial responsibilities at the hospital as outlined in its management agreement with Suncoast and corroborated by testimony from various UHS-DE employees, and (3) Suncoast’s use of UHS-DE’s policies, forms, and templates.

Suncoast’s CEO

Suncoast’s CEO is an employee of UHS-DE who manages Suncoast’s day-to-day operations and is supervised by a UHS-DE vice-president.  The CEO is responsible for hiring and directly supervising at least eight of the hospital’s director positions, which include the medical director and the directors of nursing, clinical services, business development, plant operations, marketing, risk management, and human resources.  The CEO also manages the hospital’s regulatory compliance and, along with the CFO (another UHS-DE employee), oversees Suncoast’s finances.  Westwood, 2022 WL 774272, at **4-5 (examining role of Pembroke CEO, as employee of UHS-DE, to determine extent of interrelation and integration between Pembroke and UHS-DE).

Contrary to Respondents’ claim that the CEO is not involved with the management of patient care or the administration of clinical treatment at Suncoast, the record shows that she does have a role in these areas and, as relevant to this case, that role also concerns safety and health issues, such as workplace violence.  Loretto-Oswego, 23 BNA OSHC at 1359-61 (considering involvement in both “general administrative matters” and “safety and health matters” to assess companies’ interrelation and integration of operations).  Specifically, Suncoast’s medical director and physicians all report to the CEO, who ensures that the physicians follow the applicable regulations and submit proper documentation, and that the hospital has “coverage for the physicians.”  The CEO also receives and considers requests from nursing supervisors seeking additional staff during shifts if there are patients whose behavior makes them “more challenging to work with.”  

In addition, the CEO participates in senior leadership rounds of the hospital’s units, during which she reviews staffing assignment sheets and reports from MHTs, and assesses unit security and the cleanliness of the units and nursing stations.  See Westwood, 2022 WL 774272, at *4 (rejecting UHS-DE’s argument that clinical and administrative functions are kept separate based, in part, on Pembroke CEO’s testimony that he was responsible for making sure clinical process “ ‘happened the way it should’ ”).  Specific to workplace violence, the CEO has the authority to approve or change Suncoast’s workplace violence policy and meets with Suncoast’s directors to discuss compliance with the hospital’s workplace violence plan.  She is also made aware of any workplace violence incidents at the hospital through reports, meetings, and discussions with patients and staff.

        On top of these multiple responsibilities, the CEO sits on numerous committees at Suncoast that develop and implement hospital policy on various matters ranging from the addition of physicians (Medical Executive Committee) to insurance issues (Utilization Management) and healthcare compliance (Performance Improvement Committee).  Some of the committees on which the CEO sits specifically address patient and employee safety.  For example, one purpose of the Patient Safety Council is to examine safety-related issues, including “instances of patient aggression resulting in injury.”  Similarly, the Environment of Care Committee is tasked with examining “everything environmental through the hospital from a safety standpoint,” such as whether barriers should be installed at the intake desk.  Moreover, the Governing Board, which includes the CEO and her immediate supervisor (a UHS-DE regional vice-president), has overarching authority at Suncoast, in that it approves or recommends changes to any actions—including those relating to workplace violence—approved by Suncoast’s other committees.  

Finally, the CEO leads or participates in various types of staff meetings at Suncoast that address matters ranging from policy changes and staff morale to workplace incidents and patient treatment.  As with the committee meetings, some of these staff meetings specifically address patient and employee safety.  Every weekday morning, for example, the CEO participates in a “flash meeting,” during which the CEO, CFO, and certain Suncoast directors discuss patients and incidents from the previous day.  

UHS-DE’s additional managerial responsibilities at Suncoast

Respondents assert that UHS-DE’s role at Suncoast is limited to administrative functions.  The record shows, however, that Suncoast’s CEO is involved in every facet of the hospital’s operations and that UHS-DE’s additional managerial responsibilities at the hospital—regardless of whether they are labelled administrative—directly impact patient care, regulatory compliance, employee training, and employee safety and health.  

First, both the management agreement and testimony from UHS-DE employees show that UHS-DE recruits, hires, and employs Suncoast’s entire C-suite leadership—at the time of OSHA’s inspection, this included Suncoast’s CEO, CFO, and COO-in-training.  UHS-DE also handles payroll for Suncoast’s C-suite leadership as well as any independent contractors who work at the hospital.  And UHS-DE provides and manages employee benefits—including retirement and medical insurance—for Suncoast and even gives employees the opportunity to purchase “UHS stock” at a discount.

Second, UHS-DE provides a variety of technology services to Suncoast, some of which relate to patient care and employee safety and health.  UHS-DE, for example, facilitates access by Suncoast and other centers to “MIDAS,” a system that includes incident reports following episodes of patient aggression.  Suncoast also uses a risk management website managed by UHS-DE that contains “benchmarks” for patient aggression, restraints, and seclusion.  UHS-DE sets these benchmarks for all UHS, Inc. centers, including Suncoast, and each center’s risk manager is expected to meet them.  And, at UHS-DE’s instruction, Suncoast switched from a paper-based system for reporting employee injuries for workers’ compensation claims to an electronic system managed by a third-party vendor.  UHS-DE also requires the hospital to use other technology services that, although not related to safety and health, are integral to Suncoast’s administrative operations.  For example, UHS-DE facilitates the use of the same virtual private network by all UHS, Inc. subsidiaries, including Suncoast, and assigns email addresses with the same domain—“@uhsinc.com”—to the subsidiaries’ employees.

Third, UHS-DE provides a variety of financial services to Suncoast.  A regional finance director from UHS-DE’s financial department provides Suncoast’s CFO with day-to-day support.  Suncoast’s CEO and CFO, both of whom work for UHS-DE, prepare Suncoast’s annual budget, and then submit it to a UHS-DE vice-president for approval.  See Westwood, 2022 WL 774272, at **4-5 (rejecting judge’s finding that “Pembroke primarily develops and sets its own budgets” based on evidence that Pembroke’s CEO and CFO, both UHS-DE employees, develop the hospital’s budget, “which is then reviewed and approved by higher-level UHS-DE employees”).  UHS-DE’s control over Suncoast’s budget undoubtedly has a profound impact on all of the hospital’s operations, from its ability to provide adequate staffing for patient care to funding safety and health measures.  UHS-DE also pays taxes and assessments on behalf of Suncoast from accounts that UHS-DE opened for Suncoast, and UHS-DE controls a “Reserve Account” for Suncoast, which can be used to pay for capital improvements at the hospital subject to UHS-DE’s approval.

Fourth, UHS-DE’s compliance department provides support to Suncoast that includes training on health care-related regulatory and privacy issues.  This department also oversees audits of UHS, Inc.’s centers, including Suncoast, that focus on health care regulatory compliance, and include reviewing submissions from the centers’ compliance committees and providing analysis and guidance following the audits.  The department manages a compliance hotline that can be used by any Suncoast employee to anonymously report violations of rules and regulations.  Suncoast initially investigates any complaints made to the hotline, but the resulting report is sent to UHS-DE.  And typically, the CEO—a UHS-DE employee—is the individual at Suncoast who determines how to conduct such investigations.

        Fifth, UHS-DE provides training to Suncoast employees.  UHS-DE contracts with Handle with Care—a behavioral management system used by some UHS, Inc. centers—to provide training to hospital workers.  UHS-DE also provides materials about and training for verbal de-escalation.  Such training directly bears on workplace violence caused by patients, the very hazard cited here.  UHS-DE manages a learning management platform that Suncoast uses for annual employee training and requires that Suncoast employees be trained on a “code of conduct” included in its compliance manual.  This code includes “the standards” that all employees are required to follow, such as raising concerns about patient care or legal compliance without fear of reprisal.

Finally, various UHS-DE departments not already mentioned above have a range of responsibilities at Suncoast—from clinical services and risk management to legal services and construction—and some of those responsibilities directly concern patient care or employee safety and health at Suncoast.  UHS-DE’s clinical services department conducts an annual regulatory audit at Suncoast that includes auditing medical charts and observing patient treatment.  UHS-DE’s risk management department assigns a regional risk manager to each UHS, Inc. center—including Suncoast—to provide day-to-day support to the center’s onsite risk manager.  The UHS-DE regional risk manager also conducts annual site visits to review Suncoast’s risk management program to ensure that it complies with UHS-DE requirements.  UHS-DE’s insurance and loss control departments are also involved when workplace incidents occur at the hospital.  For example, if an incident results in injury to a Suncoast patient, the hospital reports possible claims to the insurance department and UHS-DE determines what needs to be done to prepare for possible litigation or regulatory surveys.  If an incident results in injury to a Suncoast employee, the hospital reports that injury to the loss control department.

UHS-DE departments provide the hospital with other services as well.  UHS-DE’s legal department, for example, reviews real estate contracts, locates and retains outside counsel for Suncoast in the event of a lawsuit, and reviews all of Suncoast’s contracts for products and services.  When a UHS, Inc. center such as Suncoast is entertaining a significant construction project, it is UHS-DE’s design and construction department that assists “in scoping the project,” hiring vendors, and reviewing bids.  And UHS-DE’s supply chain department is involved in the purchasing of inventory and supplies at Suncoast—UHS-DE negotiates contracts through the supply chain rather than on an individual facility basis, and Suncoast in turn uses vendors that are registered in UHS-DE’s approved supply chain.

        Based on this evidence, we find that as with the CEO’s role at Suncoast, Respondents grossly mischaracterize UHS-DE’s managerial responsibilities at the hospital.  Rather than being limited to “resource sharing,” as Respondents argue, the record shows that UHS-DE’s control and influence extends to all facets of Suncoast’s operations, including those that specifically concern the safety and health of both patients and employees.

Suncoast’s use of UHS-DE’s policies and templates

The parties stipulated that Suncoast uses various final and template forms provided by UHS-DE for policy purposes.  For instance, UHS-DE provided the template for Suncoast’s “Employee Handbook,” which includes sections on “Safety and Security” and “Workplace Violence.”  Suncoast’s only revision to this template was to insert the hospital’s name.  

On review, Respondents rely on the Commission’s decision in FreightCar to argue that the judge, when evaluating these various forms, “failed to give any consideration to the ‘necessary context’ of how” Suncoast and UHS-DE actually operate.  2021 WL 2311871, at *5.  But in contrast to the circumstances of FreightCar, the UHS-DE forms undeniably reflect the two companies’ interrelation and integration.  Cf. id. at *6 (finding that “the evidence does not address the extent, if any, to which FreightCar America, Inc. is involved in operational and safety and health matters at the Cherokee facility”).  Moreover, unlike the forms at issue in FreightCar, the record here explains the creation and use of the forms that UHS-DE provided.  Cf. id. at *5 (finding that visual representation of “FreightCar America” throughout facility “lacks the necessary context,” as it could simply be use of “common brand name” rather than evidence of interrelation or integration).  The record shows, for example, that Suncoast typically does not make substantive edits to UHS-DE’s template forms and that some of these UHS-DE forms, such as PowerPoint training on trauma-informed care and patient observation rounds, are provided to the hospital in final form, not subject to change.  And to the extent these forms include policies and procedures that Suncoast employees are required to follow, Suncoast’s CEO—a UHS-DE employee—is ultimately responsible for establishing these policies and procedures, and Suncoast’s Governing Board, which consists of Suncoast and UHS-DE managerial employees, is tasked with approving or recommending certain policy changes.

Considering the totality of this evidence, particularly the CEO’s role at Suncoast as a UHS-DE employee, we find the Secretary has established that Suncoast and UHS-DE are highly interrelated and integrated “with respect to operations and safety and health matters.”  Id.; see Westwood, 2022 WL 774272, at **4-5 (concluding that UHS-DE and Pembroke were “interrelated and integrated regarding operations, including safety and health matters,” where record established “UHS-DE’s direct involvement in supervising Pembroke staff and in providing patient care,” as well as UHS-DE’s “control of and influence over the hospital’s budget and finances, [and] clinical and operational aspects of running the hospital, such as regulatory compliance, licensing, quality of clinical care, and clinical programming”).  

Common Ownership, Officers, and Management

Finally, we agree with the judge’s finding that Suncoast and UHS-DE share common officers, management, and ownership.  It is undisputed that UHS, Inc. is the common owner and “ultimate corporate parent” of Suncoast and UHS-DE.  Further, the record shows that the two companies had a common officer—Suncoast’s corporate president was also the president of UHS-DE’s behavioral health division.  Indeed, as Suncoast’s president, this corporate officer signed the management agreement that defines the relationship between the two companies.  

As to shared management, Suncoast and UHS-DE are “linked” through the hospital’s CEO and CFO, both UHS-DE employees supervised by higher-level UHS-DE managers.  See Westwood, 2022 WL 774272, at *6 (finding that “the cited entities are linked through Pembroke’s CEO and CFO who are UHS-DE employees supervised by higher-level UHS-DE managers”); cf. S. Scrap Materials Co., 23 BNA OSHC at 1627 (common management factor not met where entities were owned by same parent company and shared company president but record lacked evidence “supervision or management at the two subsidiary companies’ scrap yards was shared”); Loretto-Oswego, 23 BNA OSHC at 1359 (“At the time of the violations, LMC and the three affiliates shared the same president, chief executive officer, and chief financial officer.  This outward appearance of a common identity gives way, however, . . . because the record shows that on a day-to-day basis, administrative personnel at Loretto-Oswego operated independently of LMC.”).  Suncoast’s CEO reports to a UHS-DE regional vice president in the company’s behavioral health division.  This vice-president’s responsibilities include day-to-day healthcare operations of Suncoast and other assigned centers.  In addition, as previously discussed, Suncoast’s CFO receives day-to-day support from a UHS-DE regional finance director, and Suncoast’s CEO and CFO prepare the hospital’s annual budget and share it with UHS-DE management, which has approval authority.  

SO ORDERED.

/s/                                       

Cynthia L. Attwood

Chairman

/s/                                       

Amanda Wood Laihow

Dated:        February 28, 2023                                Commissioner

LAIHOW, Commissioner, concurring:

I agree with Chairman Attwood that the Secretary has proven the alleged general duty clause violation, as well as its serious characterization.  I also agree with my colleague that, given our other findings, we are not compelled to address the economic feasibility of the third and fourth abatement measures proposed in the amended citation in order to affirm the violation.  Nonetheless, for the reasons explained below, I find that the circumstances of this case warrant review of the economic feasibility of those measures.  

For any alleged violation of the general duty clause, the Secretary carries the burden of establishing that “feasible means existed to eliminate or materially reduce the hazard.”  Erickson Air-Crane, Inc., No. 07-0645, 2012 WL 762001, at *2 (OSHRC Mar. 2, 2012).  To prove feasibility, the Secretary must show that a proposed abatement measure is both “economically and technologically capable of being done.”  Beverly Enters., Inc., 19 BNA OSHC 1161, 1191 (No. 91-3144, 2000) (consolidated); UHS of Denver, d/b/a Highlands Behavioral Health Sys., No. 19-0550, 2022 WL 17730964, at *1 (OSHRC Dec. 8, 2022) (“The only remaining issue before the judge was whether the Secretary had established the feasibility of the proposed abatement measures, a burden that includes their economic feasibility.”).  As discussed in our decision today, the Secretary listed eight abatement measures in the amended citation, each of which the judge concluded is both feasible and effective.  Respondents do not challenge the judge’s findings with respect to six of these proposed measures.  In one of the Petitions for Discretionary Review, however, Respondents requested review of the economic feasibility of the third and fourth abatement measures proposed by the Secretary.  These measures would require Suncoast to hire additional security personnel to monitor for patient aggression at intake and on the units during all shifts, and to respond as needed to such incidents.  In its briefing notice, the Commission specifically requested the parties to brief “[w]hether the judge erred in concluding that the third and fourth ‘means of abatement’ listed in the amended citation are economically feasible.”      

Although I agree with my colleague that the economic feasibility of the third and fourth abatement measures is not a dispositive issue here, the Commission retains broad discretion to reach important issues that warrant review.  Commission Rule 92(a), 29 C.F.R. § 2200.92(a) (“Unless the Commission orders otherwise, a direction for review establishes jurisdiction in the Commission to review the entire case.  The issues to be decided on review are within the discretion of the Commission.”).  I would exercise that discretion here and address the feasibility of these proposed abatement measures.  As with abatement measures proposed in other general duty clause citations, these proposed measures are akin to the requirements of a promulgated standard, but are not subject to the same rigorous notice and comment rulemaking process.  29 U.S.C. § 655(b) (stating how Secretary may promulgate, modify, or revoke an “occupational safety or health standard”); see Am. Iron & Steel Inst. v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991) (“To prove economic feasibility [of a promulgated standard], OSHA must construct a reasonable estimate of compliance costs . . . .”) (citation omitted).  Indeed, employers are often forced to rely on the Commission’s review of a general duty clause citation’s proposed abatement measures to determine their compliance obligations.  See Integra Health Management, Inc., No. 13-1124, 2019 WL 1142920, at *15 (OSHRC Mar. 4, 2019) (Sullivan, J., concurring) (noting that “a check on the application of the general duty clause is necessary,” particularly when “a broad hazard such as workplace violence” is at issue, because fair notice is “inherently problematic” under the broad language of the clause and the Secretary, therefore, often relies on OSHA guidance to the regulated community—not subject to notice-and-comment rulemaking—to establish general duty clause requirements).  Accordingly, in my view, it is important for the Commission to ensure that proposed abatement measures, such as the ones in this case, are properly vetted—i.e., that the Commission assesses their feasibility and effectiveness.  See, e.g., UHS of Denver, 2022 WL 17730964, at *6 (remanding for judge to “assess the record as it stands, make any necessary factual findings, and decide whether the Secretary has proven that the proposed abatement measures are economically feasible”); RoadSafe Traffic Sys., Inc., No. 18-0758, 2021 WL 5994023, at **8-9 (OSHRC Dec. 10, 2021) (after reviewing evidence, finding that proposed abatement method was both feasible and effective); Waldon Health Care Ctr., 16 BNA OSHC 1052, ­­­­1064 (No. 89-2804, 1993) (consolidated) (after reviewing evidence, finding that “the Secretary failed to fulfill his burden of establishing that [the proposed abatement measure] was economically feasible . . . .”).

Here, I would find the Secretary has failed to prove that the third and fourth abatement measures are economically feasible.  The record shows that these two measures would require Suncoast to hire staff to fill six 8-hour shifts for every 24-hour period and the abatement measures dictate that these staff members “not be given other assignments such as patient rounds, which would prevent the person from immediately responding to an alarm or other notification of a violent incident.”  As Respondents point out, the Secretary’s expert, Dr. Jane Lipscomb, admitted that she did not consider “the economic costs” of adding these staffing positions and there is no other evidence in the record providing that information.

The Secretary puts forth several arguments purporting to show that he established the abatement measures’ economic feasibility, but these post hoc rationalizations fall completely short.  For example, the Secretary parrots the judge’s finding that Respondents’ “partial implementation” of the proposed staffing measures—a “float” and an intake mental health technician were added to certain shifts—show they are feasible.  The record, however, reflects that these added positions not only remained vacant for long periods of time, but required employees in those positions to perform job tasks not related to security and provided limited coverage (8 hours as opposed to 24 hours a day).  Equally unpersuasive is the Secretary’s argument that feasibility is established because other “similarly situated psychiatric hospitals” make effective use of security guards.  The evidence relating to these other facilities provides little to no meaningful points of comparison to Suncoast:  the facilities are either of differing size or their size is unknown; some serve different functions (several, for example, are large hospital complexes); the guards’ duties at these facilities are either different from the ones proposed in the citation or unknown; and most notably, it is not clear how the staffing positions at these facilities impacted the overall finances of the businesses that owned them.  See Waldon Health Care Ctr., 16 BNA OSHC at 1063-64 (finding “Secretary failed to fulfill his burden of establishing [prophylactic vaccination as a proposed abatement measure] was economically feasible,” because “on this record, it is not possible to determine whether the nursing homes could have absorbed or passed on the significant costs of prophylactic vaccination without endangering their economic position”).

The Secretary’s other arguments fair no better.  The Secretary claims that industry experts have recommended the third and fourth abatement measures and asserts that this proves their economic feasibility.  But there is simply no proof in this case to support such a claim.  As noted, Dr. Lipscomb was directly asked if she considered the economic costs of implementing her recommendations for these staffing measures, and she answered, “No, I did not.”  The Secretary also claims that Respondents’ own policies emphasize the need for security, thus undermining their assertion that the addition of the staff specified in the abatement measures is not economically feasible.  This too misses the mark.  Respondents’ internal policy documents are about security in general, not the additional security staffing proposed in the two abatement measures.  And as is clear under Commission precedent, it is not Respondents’ burden to establish the proposed measures are economically infeasible—rather, it is the Secretary’s burden to prove that they are feasible.  UHS of Denver, 2022 WL 17730964, at *1; Beverly Enters., Inc., 19 BNA OSHC at 1191; Waldon Health Care Ctr., 16 BNA OSHC at 1064.

The Secretary’s final argument is that “publicly available financial information” on UHS Inc.’s website shows it is a “multi-billion-dollar company” that would remain economically viable even with the hiring of additional staff members.  However, as Respondents note, this webpage is not part of the record.  Additionally, even if it were, such information is hardly relevant given that it appears to reflect the combined revenue of all UHS, Inc. entities, rather than the specific two companies at issue here—UHS-DE and Suncoast.  Although “[t]he Commission has held that matters of economic feasibility are properly considered on a company-wide basis,” the Secretary points to no evidence here that would support treating all the entities associated with UHS, Inc. as a single company.  W. Point Pepperell, Inc., 9 BNA OSHC 1784, 1796 (No. 77-4297, 1981).  

One last point bears noting.  This case is just another in a series of recent matters where the Commission has been faced with the issue of economic feasibility for an alleged general duty clause violation.  In UHS of Denver, for example, the Commission remanded for the judge to determine whether the Secretary had in fact established economic feasibility—notably, the Secretary faulted the employer for having “provided no evidence that it could not afford to implement [the proposed abatement] measures” even though our precedent makes clear that this burden rests with the Secretary.  2022 WL 17730964 at **2-3.  And in a recent decision in another case, United States Postal Service, the Commission found that the Secretary provided no cost estimates for any of his proposed abatement measures, let alone proof that their implementation would not threaten the Postal Service’s economic viability.  Docket No. 16-1713, slip op. at 20-24 (OSHRC Feb. 17, 2023) (consolidated).  The case currently before us is yet another reminder for the Secretary that economic feasibility is a critical part of his prima facie case.  

For all these reasons, I would address the economic feasibility of the third and fourth abatement measures and conclude that the Secretary failed to establish that these measures were, in fact, feasible.

/s/                                       

Amanda Wood Laihow

Dated:        February 28, 2023                                Commissioner

__________________________________________________________________________

 

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

Appearances:

Kate O’Scannilain, Solicitor of Labor

Tremelle I. Howard, Acting Regional Solicitor

Karen E. Mock, Counsel for Occupational Safety and Health

Lydia J. Chastain, Senior Trial Attorney

Shelly C. Anand, Trial Attorney

U.S. Department of Labor, Office of the Solicitor, Atlanta, GA

                For the Complainant

Carla J. Gunnin, Esq.

Raymond Perez, II, Esq.

Jackson Lewis P.C., Atlanta GA

For UHS of Delaware, Inc. and Premier Behavioral Health Solutions of Florida, Inc., d/b/a Suncoast Behavioral Health Center

Before: Dennis L. Phillips, Administrative Law Judge

DECISION AND ORDER

At the close of OSHA’s investigation, on April 24, 2018, a Citation was issued to Suncoast and UHS of Delaware Inc. (“UHS-DE”) (collectively with Suncoast, “Respondents”).  (Ex. 1.)  The Citation alleges a repeat violation of 29 U.S.C. § 654(a)(1), the provision commonly referred to as the general duty clause, for failing to furnish a place of employment free from the recognized hazard of workplace violence.  Id.

In addition to Respondents’ challenge to the Citation, the Secretary’s March 29, 2019 Motion for Sanctions for Respondents’ Destruction of Relevant Video Surveillance Evidence (“Sanctions Motion”), renewed by the Secretary in his post trial brief, is also pending before the Court.  (Sec’y Br. 197-201.)  In its Order Denying without Prejudice Complainant’s Motion for Sanctions dated April 18, 2019 (“Sanctions Order”), the Court granted in part and denied without prejudice in part the Sanctions Motion.  

For the reasons discussed, the Sanctions Motion is now GRANTED to the extent indicated herein.  Further, the Citation is AFFIRMED as a serious violation, and a $12,934 penalty is assessed.

1. I.Jurisdiction 

1. II.Preliminary Matters 

   1. A.Corporate Structure 

The CEO, along with other administrators, conducts routine audits and “rounds” to ensure that Suncoast followed safety policy.  (Tr. 1613, 3113; Ex. 251 at 3942.)  These audits include observing employee behavior in the units and reviewing documentation.  (Tr. 1613-14; Ex. 251 at 3942.)  Employees raised safety issues, including those related to the hazard of workplace violence with the CEO.  (Tr. 1382-83.)  In addition, after the Citation’s issuance, the CEO worked to improve safety issues such as how law enforcement brings patients to the facility.  (Ex. 35.)

1. 1. B.Motion for Sanctions 

During discovery, the Secretary filed a Motion to Compel seeking all videos relevant to a particular document request, which was granted on December 4, 2018.  (First Produc. Order 4, 10, 11.)  When Respondents indicated they could not comply with the Production Order because the videos were not available, the Secretary moved for sanctions alleging that Respondents destroyed relevant video surveillance evidence.  (Sanctions Mot. 1-2.)  In ruling on the Sanctions Motion, the Court found that the Secretary established Respondents had an obligation to preserve certain evidence and that such evidence was relevant to and would support the Secretary’s claims.  (Sanctions Order 12-13.)  In other words, Respondents should have preserved videos related to workplace violence incidents, and the failure to do so was prejudicial to the Secretary.  Id.

However, because the record at that time was insufficiently developed on Respondents’ state of mind, the Court withheld its ruling on the type of sanctions, if any, to be imposed for Respondents’ destruction of evidence.  Id.  Instead, the Court permitted the parties to elicit further evidence regarding whether Respondents intended to deprive the Secretary of the evidence at trial.  Id.  After the parties adduced further evidence during the trial, the Secretary renewed his Sanctions Motion, arguing the record establishes that sanctions are appropriate for Respondents’ destruction of evidence.  (Sec’y Br. 197-201.)  

1. 1. 1. 1.Background of Discovery Dispute 

1. 1. 1. 2.Incidents of Workplace Violence Occurring from February 3, 2016 through October 25, 2017  

Nurse started walking backwards after giving injection and patient kicked her foot out in a reflex motion, “barely” touching nurse with her toes, who then lost her balance and fell into the wall. …  The nurse was unsteady on her feet as she was walking backwards and the patient accidentally knocked her off balance.  Staff members are not to walk backwards and should walk with steady gait.  

On February 27, 2017, MHT JJ strained his right knee when restraining an aggressive patient who began to break a chair.  He was on job transfer or restriction for 17 days.  (Ex. 7 at 373, 380.)  On March 9, 2017, a patient hit, kicked, and spit on staff, including into Therapist PY’s right eye, in the Turtle Cove unit.  (Tr. 2904-06; Ex. 54.)  On March 30, 2017, MHT MM #1 was scratched and bruised, with his left elbow swollen, when he stopped a patient from trying to escape with his badge.  (Ex. 55.)

On May 25, 2017, while administering medications, a patient used both hands to pull RN ET’s right arm and injured her shoulder.  X-Rays showed her shoulder to be strained, and she was placed on light duty while she completed about two to three months of physical therapy.  (Tr. 1348-1356; Ex. 57.)  She missed 3 days of work and was on transferred or restricted work for 72 days.  (Ex. 7 at 373.)  The incident occurred at the nurses’ station and cameras should have been able to record the incident.  RN ET was not shown any video of the incident.  (Tr. 1362.)  

On May 30, 2017, Therapist PY suffered a torn rotator cuff and strained right lower back due to a workplace violence incident at the nurses’ station.  He missed 18 days of work and was on restricted or transferred work for 162 days.  (Ex. 7 at 373, 386, Exs. 58, 92 at 36.)

On July 26, 2017, a patient attacked staff at the day area of Turtle Cove.  Using her fingernails, a patient scratched both forearms of MHT NA, causing a small cut.  (Tr. 2906-08; Ex. 59.)  

I couldn’t see because I was blinking trying to see, but I had so much blood coming down in my eyes, I couldn’t even see.  I was choking on blood too because I was stabbed through the mouth there on top of my head and behind the left ear.  Plus my face was all beaten up and I was all bruised up from other blows ….

RN RO testified that it “took about ten minutes for 911 to arrive.”  (Tr. 502.)  In shock, he was taken to the hospital by ambulance on a stretcher.  (Tr. 503-05; Ex. 27.)  His injuries included “a severe concussion,” “neck injuries,” an arm injury, multiple bruises throughout the body, “terrible tinnitus,” and headaches.  (Tr. 170, 502; Ex. 4.)  He received “facial stitches to lower lip and upper right forehead.”  (Ex. 60.)  RN RO also lost consciousness multiple times.  (Tr. 170; Ex. 4.)  He missed 27 days of work and was on restricted or transferred work for 127 days.  (Ex. 4 at 305, Ex. 7 at 373.)  This incident is referred to herein as the “RN RO Attack”.  (Tr. 100, 464-65, 489-507, 563, 1045, 1064; Exs. 4, 28, 60.)  MHT BG testified that during the melee, the patient also stabbed Supervisor SL in the leg with a pen and she was also bleeding.  (Tr. 644, 677, 1064.)

Local law enforcement also investigated the RN RO Attack and requested the video as part of its review.  (Tr. 2934.)  Suncoast consulted legal counsel about the request.  (Tr. 2558, 2934-37.)  Though he could not recall when he copied the video footage onto a DVD or turned the DVD containing the video footage over to local law enforcement, there is no dispute that Mr. Curl preserved the available video of the RN RO Attack.  Mr. Curl said that he did not keep a copy of the DVD he gave the sheriff’s department.  (Tr. 2934, 2999-3002; Ex. 28.)  

On September 13, 2017, Night Supervisor RN CC was hit and swung at twice in the hallway by a verbally aggressive, very intoxicated patient reinjuring a lower back injury when she twisted her body trying to avoid the second hit.  Her back “really started to hurt” near the end of her shift.  As a result, she was put on light duty for about 28 days.  The Risk Management Worksheet for the incident states that “DRM [Director of Risk Management] reviewed incident on camera.”  (Tr. 1427-31, 1461-63, 1470-71, 1827; Ex. 7 at 373, Ex. 61).  On September 26, 2017, MHT AS suffered a strained right shoulder injury breaking up a fight involving three patients in the Day Area.  (Ex. 7 at 392, Ex. 62.)    

1. 1. 1. 3.OSHA’S Investigation 

On about November 8, 2017, CO Trouche began an on-site inspection of the Suncoast facility.  (Tr. 91, 99-101, 104, 346, 353; Exs. 4, 9.)  She conducted an opening conference with CEO Hamilton and Risk Manager Curl.  At that time, Respondents did not allow the CO to walk through the facility.  (Tr. 129; Ex. 9.)  In her first document request, CO Trouche requested to be provided with OSHA 300 logs (Log of Work-Related Injuries and Illnesses) for 2015 through 2017, OSHA 300A summaries (Summary of Work-Related Injuries and Illnesses) for 2014 through 2016, OSHA 301 reports (Injury and Illness Incident Report), EARs pertaining to workplace violence, any workplace violence risk assessment, any documents pertaining to workplace violence policy, programs, training, and educational material, and any plans for emergency action, infectious controls, disease, ergonomics, and slips, trips, and falls.  (Tr. 104-06, 112, 353-55.)  She was given OSHA 300 logs, OSHA 300A summaries, OSHA 301 reports, and EARs on November 8, 2017.  She gave Respondents seven days to collect other documents.  (Tr. 106-07, 110, 355; Ex. 7.)  

In January 2018, CO Trouche returned to Suncoast to conduct further interviews.  She made another document request in early January 2018, but did not include another request for video.  (Tr. 436-37.)  

1. 1. 1. 4.OSHA’S Citation and Resulting Litigation 

The Secretary filed and served his Complaint, which largely mirrored the allegations set out in the Citation, on May 21, 2018.  On June 2, 2018, Respondents filed their Answer to the Secretary’s Complaint.  The Answer includes several affirmative defenses.  These stated defenses make clear Respondents’ view that their response to workplace violence incidents was adequate.  

On August 9, 2018, the Secretary served his First Request for the Production of Documents (First Produc. Request), seeking video of incidents related to the cited hazard from February 3, 2016, through the date of the request (August 9, 2018).  Respondents initially provided no videos in its October 11, 2018 response to the Secretary’s First Produc. Request.  (Ex. 92 at 8.)  In particular, they did not produce: (1) video of the RN RO Attack, (2) video of incidents in their possession when they received the October 25, 2017 NOI, (3) video of incidents in their possession when they received the OSHA Subpoena, including the six videos of the incidents that occurred between April 9 and April 11, 2018, or (4) any video of incidents that occurred after they filed their April 30, 2018 Notice of Contest.  Id.  Instead, Respondents indicated that they only keep videos for thirty days and represented that they had nothing responsive to the request.  (Ex. 92 at 8, Hamilton Dep. Ex. 14.)  The response does not indicate why there was no video of the July 12, 2018 incident, which was less than thirty days before the First Produc. Request or explain whether it could obtain the video of the RN RO Attack from Manatee County.  Id.  Nor does it discuss any attempts to search to confirm whether any relevant video remained preserved on its hard drive despite the passage of time.  Id.  

Videos of incidents of workplace violence are relevant and discoverable.  Mr. Curl told OSHA in writing that the facility’s video surveillance system was part of its program for preventing workplace violence.  (Tr. 2943; Ex. 6 at 5.)  Suncoast’s Medical Director, Dr. Randolph Hemsath, testified that Suncoast had “videos of stuff that happens in real time.  And there are people that review those videos and look and see what’s going on and whether or not events were handled appropriately.  So we have a process for going through that.”  (Tr. 2073-75.)  Likewise, in their post trial brief, Respondents argue that the videos in existence support their claims of adequate abatement.  (Resp’t Br. 48-50.)  See Apple Inc. v. Samsung Elecs. Co., Ltd., 888 F.  Supp. 2d 976, 993 (N.D. Ca. 2012) (inferring that the destroyed evidence went to the case's merits).  

After discovery for this matter closed, on March 29, 2019, the Secretary filed his Sanctions Motion, which sets out seven incidents of workplace violence occurring between October 2, 2017 and July 12, 2018, for which videos from the facility’s surveillance system were destroyed and sought appropriate sanctions for the destruction of this evidence.  (Sanctions Mot. 11-12.)  

5.        Rules 26 and 37 – Discovery of Electronically Stored Information

1. 1. 1. 1. a)Video of Patient on Staff Attacks Should Have Been Preserved 

Rule 37(e) does not place the burden of proving or disproving prejudice on any particular party.  Fed. R. Civ. P. 37(e)(1) advisory committee’s note to 2015 amendment.  However, where the content of the lost information may be fairly evident, the information may appear to be unimportant, or the abundance of preserved information is sufficient, it may be reasonable to require the party seeking curative measures to prove it has suffered prejudice as a result.  Id.  In the circumstances of this matter, it is appropriate to place the burden of proving prejudice on the Secretary.  See Eli Lilly & Co. v. Air Exp. Intern. USA, Inc., 615 F.3d 1305, 1318 (11th Cir. 2010) (finding, in case not involving ESI, “a party moving for sanctions must establish, among other things, that the destroyed evidence was relevant to a claim or defense such that the destruction of that evidence resulted in prejudice”).  

Prior Orders make it plain that the destroyed video evidence was relevant, discoverable, and Respondents should have preserved it.  (First Produc. Order 5-9; Sanctions Order 12-13.)  Nonetheless, Respondents renew their argument that they had “no legal duty to preserve the video footage.”  (Resp’t Reply Br. 14.)  Not surprisingly, they cite no relevant precedent for this proposition.  

Respondents’ view that the Secretary needed to enforce OSHA’s Subpoena in federal district court does not undermine this basic principle.  (Resp’t Reply Br. 15-16.)  At best, Respondents’ arguments relate to whether the materials had to be turned over immediately upon the issuance of the OSHA Subpoena, not whether the evidence could be destroyed.  A subpoena is not even necessary to trigger the responsibility to preserve relevant evidence.  Fed. R. Civ. Proc. 37(e) (establishing that the “anticipation or conduct of litigation” triggers the responsibility to preserve evidence).  

OSHA’s Subpoena also separately and explicitly put Respondents on notice of the need to retain video of workplace violence and that litigation was likely.  Thus, Respondents’ position that it had no duty to preserve the April 8 through April 11, 2018 videos is rejected, and the prior Court ruling that these videos needed to be preserved, as they were, stands.  

1. 1. 1. 1. b)Failure to Take Reasonable Steps to Prevent the Destruction of ESI 

Having found no reason to set aside the ruling in the Sanctions Order that the identified videos were relevant, discoverable, and should have been preserved, the next issue is whether Respondents took reasonable steps to prevent the destruction of videos that ought to have been preserved.  Fed. R. Civ. P. 37(e); Paisley Park Enters., Inc. v. Boxill, 330 F.R.D. 226, 233 (D. Minn. 2019) (finding that party failed to take reasonable steps to preserve text messages).

As discussed, Mr. Curl only preserved a few videos of incidents that occurred about one week before the OSHA Subpoena was served.  (Tr. 2938-39, 2942.)  CEO Hamilton and counsel were consulted about the OSHA Subpoena.  (Tr. 2559, 2941-42.)  And yet, there is no evidence that the NOI, CO’s visits, OSHA Subpoena, Citation, or Notice of Contest triggered any type of litigation hold for relevant discoverable evidence related to the cited hazard.  (Tr. 2938-39, 2942.)  While not in and of itself determinative, the absence of a litigation hold is relevant to assessing whether there was spoliation.  See, e.g., Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012).

The deletion of the videos was not accidental or the result of circumstances beyond Respondents’ control.  Respondents have the capability to preserve video.  (Tr. 2926-27.)  They can, and do record, from their video feed, incidents pertaining to workplace violence and preserve such evidence.  (Tr. 439.)  UHS-DE and Suncoast have an incident evaluation process and routinely preserve videos related to violence between patients and staff.  (Tr. 2924, 2926-27; Mot. to Compel at Ex. G.)  For example, if UHS-DE believes that an incident may lead to legal action brought by a patient or his or her representative, then Mr. Curl preserves any relevant video.  (Tr. 2926-27; Mot. to Compel at Ex. G.)  

UHS-DE is a large, sophisticated entity that manages healthcare facilities throughout the country.  (Tr. 2331; Ex. 9; Stips. 12-14; King Dep. 14-17, Meloni Dep. 58-61, Phillips Dep. 24.)  Mr. Curl was supported by and able to consult with UHS-DE employees regarding incidents, including a risk manager and counsel.  (Tr. 128-29, 2925-26, 2939-42; Curl Dep. 25, 28-29; Meloni Dep. 41-42; Stip. 14.)  Also, Mr. Curl confirmed that he consulted UHS-DE employees and counsel after receiving the OSHA Subpoena.  (Tr. 2925-26, 2940, 2942.)  He knew how to and could preserve video.  (Tr. 2925-26, 2939-40.)  He and CEO Hamilton (a UHS-DE employee) were aware of and participated in OSHA’s investigation from its inception.  (Tr. 128-29; Ex. 20.)  

1. 1. 1. 1. c)Fed. R. Civ. P. 37(e) Provides Relief for Destroyed ESI 

Federal Rule of Civil Procedure 37(e) makes plain that when a party fails to take reasonable steps to preserve ESI a court may take action to cure the prejudice (if any) that results.  A court may remedy the prejudice caused by a failure to act; no affirmative act of destruction is required:

(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.

Fed. R. Civ. P. 37(e).  See ML Healthcare, 881 F.3d at 1309 (explaining that Fed. R. Civ. Proc. 37(e) was amended “to address the spoliation of electronically stored information like the video at issue here”); Sosa v. Carnival Corp., No.18-20957, 2018 WL 6335178, at *8-10 (S.D. Fla. Dec. 4, 2018) (discussing cases and concluding that video from a closed-circuit system was ESI and Fed. R. Civ. Proc. 37(e) governed sanctions for its spoliation), reconsideration denied, No.18-20957, 2019 WL 330865 (S.D. Fla. Jan. 25, 2019).  

Rule 37(e)(1) allows for curative measures when lost ESI causes prejudice to another party.  In contrast, Rule 37(e)(2) provides for more severe sanctions when the loss of ESI occurred with “intent to deprive another party of the information’s use in litigation.”  Fed. R. Civ. P. 37(e).  See also advisory committee’s notes to 2015 amendment (“The better rule for the negligent or grossly negligent loss of [ESI] is to preserve a broad range of measures to cure prejudice caused by its loss, but to limit the most severe measures to instances of intentional loss or destruction.”).  

1. 1. 1. 1. d)Curative Measures under Fed. R. Civ. Proc. 37(e)(1) 

Litigation was reasonably anticipated in this matter as early as October 25, 2017.  (Stip. 5; Sanctions Order 12.)  See Zubake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003) (duty to preserve evidence arose “at the latest” when an employee filed a charge with a governmental agency); Reed v. Royal Caribbean Cruises, Ltd., No. 19-24668-CIV-Lenard/O’Sullivan, 2020 WL 5878814 (S.D. Fla. Oct. 2, 2020) (finding that defendant had an obligation to preserve video available at the time its employee completed an incident report); Peskoff v. Faber, 251 F.R.D. 59, 62 (D.D.C. 2008) (threat of litigation should have prompted defendant to “deactivate network maintenance tools that automatically delete electronically stored information”).

Briefly, the duty to preserve is broader than the duty to produce in discovery.  Food Lion, Inc. v. United Food and Commercial Workers Int’l Union, 103 F.3d 1007, 1012 (D.C. Cir.1997); Point Blank Solutions, Inc. v. Toyobo Am. Inc., No. 09-61166-CIV, 2011 WL 1456029, *12 (S.D. Fla. Apr. 5, 2011) (noting that relevance for purposes of discovery “is an extremely broad topic”).  For example, a party may have a duty to preserve information that turns out to be protected by privilege or is not admissible.  In Bistrian v. Levi, 448 F. Supp. 3d 454 (E.D. Pa. 2020), the government had a video recording system which, like Suncoast’s, overwrote videos every three to four weeks.  Id. at 469.  The court found that the government “reasonably should have anticipated the litigation” soon after one inmate attacked another and taken steps to preserve relevant video.  Id.  It did not matter that the plaintiff failed to file his claim within the time before the video was overwritten.  Id.  

“An evaluation of prejudice from the loss of information necessarily includes an evaluation of the information's importance in the litigation.”  Fed. R. Civ. P. 37(e)(1) advisory committee’s notes to 2015 amendment.  The rule leaves judges with discretion to determine how best to assess prejudice and what curative measures are necessary.  Id.  See also Barbera v. Pearson Educ., Inc., 906 F.3d 621, 628 (7th Cir. 2018) (upholding magistrate judge’s sanction for destroyed email chain).  The Court is tasked with determining the weight to give to the parties’ evidence and to evaluate its credibility.  See DVComm, LLC v. Hotwire Comm., LLC, et al., Civ. A. No. 14-5543, 2016 WL 6246824, at *1 (E.D. Pa. Feb. 3, 2016) (imposing sanctions after evaluating the credibility of alleged spoliators).

The destroyed videos relate to multiple issues, particularly: (1) the existence of a hazard in the workplace; (2) employee exposure to that hazard; (3) whether the hazard was capable of causing serious injury or death; (4) Respondents’ knowledge of the hazard; (5) abatement of the hazard, and (6) the gravity element of the penalty calculation.  

This leaves the issues of abatement, and if a violation is established, its gravity.  Looking first at abatement, the parties did not reach any stipulations directly regarding abatement.  Respondents argue that there was no prejudice because they maintained written records related to several workplace violence incidents, and witnesses were available to provide some information about incidents for which it failed to preserve the videos.  (Resp’t Br. 50, 52-53.)  

The written records and availability of certain witnesses are not an adequate remedy for the ESI’s destruction in this matter.  See Woodward v. Wal-Mart Stores E., LP, 801 F. Supp. 2d 1363, 1373 (M.D. Ga. 2011) (finding that employee testimony about an event “hardly works” to address the loss of video); Storey, 2017 WL 2623775, at *5 (discussing the “unique and irreplaceable nature” of video evidence); Moody v. CSX Transp., Inc., 271 F. Supp. 3d 410, 429-30 (W.D.N.Y. 2017).  In CSX, the railroad failed to preserve ESI from the train’s event recorder.  271 F. Supp. 3d at 429-30.  The ESI would have conclusively established whether a bell rang before the train began to move.  Id.  The court found that the plaintiff was prejudiced by the destruction even though there was other evidence as to whether there was a sound was emitted, and the event recorder might not have supported the plaintiff’s claim.  Id.  Prejudice under Rule 37(e) may be found when the destruction causes a party to “piece together information from other sources.”  In re: Ethicon, Inc., No. 2:12-cv-00497, 2016 WL 5869448, at *4 (S.D.W. Va. Oct. 6, 2016); Abdulahi v. Wal-Mart Stores E., L.P., 76 F. Supp. 3d 1393, 1396-97 (N.D. Ga. 2014) (other evidence consisting of emails and testimony did not remove prejudice caused by the employer’s destruction of video footage).  

The other evidence's inadequacy as a replacement for the destroyed videos is made apparent by examining the video from the few incidents for which it was available.  For the RN RO Attack, the EAR’s mild language bears little resemblance to the severity of the incident seen in the video.  (Tr. 152-166; Exs. 4, 28.)  Among other things, Respondents’ claim about the swiftness with which endangered employees are assisted rings hollow as one watches the employee sustain blow after blow.  It took five staff members, including four women, to eventually physically restrain the attacker.  (Tr. 380-82; Ex. 28.)  

The destroyed ESI would have been favorable to the Secretary’s claims that Respondents’ abatement was inadequate and that certain of the proposed abatement measures could have reduced the hazard.  See Storey, 2017 WL 2623775, at *5 (issuing sanctions for spoliation of videos, including precluding evidence or argument that the contents of the videos corroborated the defendants' version of events); Jenkins, 2017 WL 362475, at *18 (ordering similar sanctions for an automatically overwritten video); Coward v. Forestar Realty, Inc., No. 4:15-CV-0245-HLM, 2017 WL 8948347, at *9 (N.D. Ga. Nov. 30, 2017) (allowing arguments to the jury concerning the effect of the loss of the videos).

1. 1. 1. 1. e)Further Relief under Fed. R. Civ. 37(e)(2) is Available 

Beyond addressing prejudice caused by the destruction of evidence, courts may also impose sanctions if a party acted with the intent to deprive the opposing party of the information’s use in the litigation.  Fed. R. Civ. Proc. 37(e)(2).  The Secretary requested definitive rulings that the destroyed videos would have shown that Respondents’ response to the cited hazard was insufficient and that the abatement measures the Secretary proposes would have prevented or lessened the severity of the injuries to employees.  (Sanctions Mot. 4; Sec’y Br. 199-200.)  The Secretary also requested dismissal of Respondents’ contest of the Citation as a sanction.  Id.  The Sanctions Order left unresolved whether Respondents had the requisite state of mind required to take actions beyond those necessary to cure the prejudice caused by the lost ESI.  (Sanctions Order 11-12.)  

The Secretary asks for an inference that Respondents acted with the intent to deprive because Respondents failed to prevent the destruction of relevant, discoverable ESI after litigation was not only anticipated but had commenced.  (Sec’y Br. 199.)  The Secretary argues that Respondents engaged in a pattern of discovery abuses by refusing to comply with the OSHA Subpoena and then denying that they had any videos before finally turning certain ones over after being ordered to do so by the Court.  See Marrocco v. Gen. Motors, Corp., et al., 966 F.2d 220, 224 (7th Cir. 1992) (in a non-ESI matter, giving particular weight to the fact that the offending party waited months before it attempted to investigate the lost evidence, and delayed even longer before informing their opponents that key evidence was missing); Ala. Aircraft, 319 F.R.D. at 741 (finding sufficient circumstantial evidence to conclude party acted with an intent to destroy ESI).  Respondents offer no explanation for why they departed from their own written video retention policy.  See Brown v. Chertoff, 563 F. Supp. 2d 1372, 1381 (S.D. Ga. 2008) (awarding sanction for spoliation when Government was culpable for violating its own policies and for failing to take notice that litigation was likely).  Nor do Respondents explain any steps they took to preserve videos of the hazard taken after receiving the NOI or after litigation commenced through August 9, 2018.  See Ottoson v. SMBC Leasing & Fin., Inc., 268 F. Supp. 3d 570, 582 (S.D.N.Y. 2017) (finding sanctions appropriate when it could be inferred that party either took no steps to preserve emails or simply failed to produce them); Ala. Aircraft, 319 F.R.D. at 739-42 (finding duty to preserve triggered before a letter attempting to terminate a contract was sent and even though party with the control of the ESI may not have anticipated the exact nature of the future litigation).  

Suncoast and UHS-DE employees were aware of the utility of reviewing videos to assess safety hazards.  Indeed, they claimed it was part of their WVPP.  CEO Hamilton, a UHS-DE employee, explained how senior staff, including herself, would conduct weekly “rounds” of the units by reviewing video from the recording system to look for safety concerns.  (Tr. 2362-67.)

Although Respondents had the requisite state of mind to permit the imposition of any of the remedies available under Fed. R. Civ. P. 37(e)(2), the harshest of sanctions this rule permits are not appropriate here.  The “remedy should fit the wrong.”  Advisory committee’s notes to 2015 amendment.  Here, the most biting sanctions are unnecessary.  The Secretary is not entitled to a dismissal of Respondents’ contest of the Citation based on the spoliation.  Instead, the Court will: (1) reject Respondents’ argument that the destroyed video would have been favorable to their defenses; (2) find that the destroyed videos would have supported the Secretary’s claims regarding the insufficiency of Respondents’ existing abatement; (3) find that the destroyed videos would have supported the Secretary’s claims regarding the effectiveness of certain of his proposed abatement; and (4) find that the destroyed videos support the Secretary’s conclusion regarding the gravity of the violation.  See Envision Waste Servs., LLC, No. 12-1600, 2018 WL 1735661, at *10 (O.S.H.R.C., Apr. 4, 2018) (concluding that the failure to produce authentic documents corroborated evidence of employer’s non-compliance).

Further, the Court will consider awarding the costs of the Secretary pursuing his Sanctions Motion.  See Fed. R. Civ. Proc. 16(f)(2); Fed. R. Civ. Proc. 37; NL Indus., Inc., 11 BNA OSHC 2156, 2168 (No. 78-5204, 1984).  If the Secretary wishes to pursue reimbursement for the costs incurred in connection with his Sanctions Motions, he shall file with the Court and present an accounting of those costs to Respondents within four days of the issuance of this decision.  He may include any relevant authority supporting the awarding of costs.  Respondents, if they wish, may, within four days of receiving the accounting, file with the Court any objections to the Secretary’s accounting or the authority relied on for awarding such costs.

        6. UHS-DE Responsibility

Respondents also contend that UHS-DE should not be held responsible for destroying any evidence because Suncoast, not it, owned the video system. (Resp’t Reply Br. 13.)  UHS-DE and Suncoast work together to discuss workplace violence incidents.  (Tr. 2924-27, 2950; Balsamo Dep. 14-15.)  Together they reached decisions regarding the preservation of videos taken on Suncoast’s premises.  (Tr. 2924, 2931.)  Mr. Curl reported incidents to two UHS-DE employees, CEO Hamilton and Ms. Pearson.  (Tr. 2924, 2934, 2948; Curl Dep. 40.)  These employees would then evaluate incidents with him.  (Tr. 2925-26, 2931, 2950; Curl Dep. 40; Meloni Dep. 41-42.)

Suncoast alone did not decide to allow the system to overwrite the recordings.  As Mr. Curl succinctly put it, “I’m not making those calls on my own.”  (Tr. 2936, 2948.)  It was at UHS-DE employees' direction that he either preserved or permitted the destruction of video surveillance of workplace violence events.  (Tr. 2926-27.)  

Respondents point to no evidence suggesting that UHS-DE independently could not control whether videos were preserved or destroyed.  See Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995) (stating that the evidence must “be within the party's control”); Watson v. Edelen, 76 F. Supp. 3d 1332, 1343 (N.D. Fla. 2015) (finding, in a matter decided before the 2015 amendments to Rule 37(e), “it is essential that the evidence in question be within the party's control, that is, the party actually destroyed or was privy to the destruction of the evidence.”).  EARs and Sedgwick reports were sent to UHS-DE, and at least one of its on-site employees was routinely involved in reviewing workplace violence incidents, including the assessment of whether to preserve video of such incidents.  (Tr. 2934.)  

The NOI giving notice of the start of OSHA’s investigation was addressed to “Suncoast Behavioral Health Center Attn: Janet Sweeny.”  (Ex. 5.)  While the record does not conclusively establish that DON Sweeny was a UHS-DE employee, there is no confusion about whether a UHS-DE employee participated in the meetings with CO Trouche, including when she requested video evidence.  (Tr. 129.)  In addition, the OSHA Subpoena addressed both UHS-DE and Suncoast.  (Tr. 172; Ex. 79.)  UHS-DE’s employee, CEO Hamilton, accepted service of the OSHA Subpoena.  (Tr. 2929; Ex. 79.)  The OSHA Subpoena was discussed with UHS-DE employees and counsel for that entity.  (Tr. 2950.)  Likewise, both entities were cited for the violation at issue.  (Ex. 79.)  And, both entities commenced this litigation by filing Notices of Contest.  (Stip. 6.)  UHS-DE’s own employees were aware of incidents of workplace violence, whether there was video of such incidents, and could control whether the video was preserved or overwritten.  Its own employees routinely reviewed video to assess the safety of the units.  (Tr. 2363-65.)  Respondents share culpability in the destruction of relevant ESI that should have been preserved in anticipation of litigation.

1. III.DISCUSSION 

   1. A.Expert Testimony 

During the trial, both sides offered expert testimony.  Janet Lipscomb, RN Ph.D., and Howard Forman, MD, testified on behalf of the Secretary.  (Sec. Br. 123-28, 134-36.)  Monica Cooke, RN, testified for the Respondents.  A written report by each expert was admitted into the record.  (Exs. 81, 83, 264.)  Although each person satisfied the threshold requirements to be qualified to offer expert testimony, their respective opinions are not entitled to equal weight.  RN Cooke was found qualified as an expert regarding: (1) the feasibility of the recommended abatement measures, (2) Respondents’ use of many of the recommended feasible abatement measures, and (3) industry standard practices in behavioral health hospitals.  (Tr. 3060-65; Am. Joint Pre-Hr’g Statement at 15.)

When questioned about why she did not ask employees about key matters, she explained there was “no way [she] could get into all that information and detail” in the short amount of time Respondents gave her to talk with her interviewees.  (Tr. 3043-44, 3049-50.)  Similarly, although she indicated that she reviewed various documents that are part of Respondents’ alleged abatement program, she did not check records for accuracy or consistency.  (Tr. 3042-47, 3051, 3053, 3055.)  For example, she claimed that workplace violence events were communicated in Situation, Background, Assessment, Recommendation (“SBAR”) reports but did not review any such reports.  (Tr. 1613, 3049, 3153-54; Ex. 224.)  Nor are any completed SBAR reports part of the trial record.  (Tr. 3049.)

RN Cooke did not conduct the depth of review she typically does when retained as a consultant assessing workplace violence programs at behavioral health facilities.  (Tr. 3044.)  She did not perform a risk assessment or prepare a report with findings and recommendations for abating the hazard.  (Tr. 3037.)  In her own opinion, a risk assessment would have required, among other things, additional time and validating the information leadership told her.  (Tr. 3038-39.)  She was not asked by Respondents to “identify risks” at the facility.  (Tr. 3037-38.)  Nor did she assess whether Respondents were doing everything possible to reduce workplace violence.  Id.  She did not provide any opinions on whether there were feasible means of abatement that Respondent could have implemented.  And she was “not in a position to evaluate” whether there was anything Respondents could be doing to reduce instances of workplace violence.  (Tr. 3038; Sec. Br. 128-34.)

At trial, Dr. Lipscomb offered her opinions on a variety of subjects, including abatement measures Respondents could have implemented to materially reduce the hazard of workplace violence.  She testified:

Q. Briefly, can you just tell us quickly what opinions you have reached about this matter?

A. I reached the opinion that employees at Suncoast Behavioral Health were exposed to the hazard of workplace violence, that it is – they are at risk of incurring serious harm, injury from workplace violence, that workplace violence is well-recognized as a hazard in healthcare, especially in behavioral health, that the employer recognized workplace violence as a hazard, and there are feasible abatement measures, specifically the ones that were included in the OSHA citation and in my report, that would materially reduce the hazard.

(Tr. 1525-26, 1658. 1676-78; Ex. 81; Sec. Br. 128, 142-75.)  

She based her review on the OSHA investigative file, Respondents’ responses to the Secretary’s Discovery Requests, deposition transcripts, witness testimony at trial, scientific literature on workplace violence prevention, and her experiences at conferences.  She scanned in about 15,000 pages of documents that were produced.  (Tr. 1629-30, 1636, 1650, 1801; Exs. 81, 84-85.)  She concluded that the abatement measures set out in the Amended Complaint were available and could be implemented feasibly by Respondents and would materially reduce the hazard of workplace violence.  (Tr. 1658-59, 1664, 1676-78; Exs. 3, 81; Sec. Br. 128, 142-75.)  

Like Dr. Lipscomb, he concluded that Respondents’ approach to managing patient aggression was inadequate and that the abatement measures proposed by the Secretary would “lead to a far safer work environment for the staff.”  (Ex. 83 at 6, 11; Sec. Br. 159-60, 164-65, 169.)  

While RN Cooke’s testimony and report met the minimum admissibility requirements, it is not entitled to the same weight as the testimony and reports of Drs. Lipscomb and Forman.  Her opinions were not well supported by research.  Her speculation about Respondents’ implementation of policies and procedures was not borne out by employee testimony or other record documents.  

1. 1. B.Legal Standard 

The general duty clause requires every employer to provide its employees with a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  29 U.S.C. § 654(a)(1).  As interpreted by the Commission, to establish a violation of this clause, the Secretary must show: (1) there was an activity or condition in the employer’s workplace that constituted a hazard to employees; (2) either the cited employer or its industry recognized that the condition or activity was hazardous; (3) the hazard was causing or was likely to cause death or serious physical harm; and (4) there were feasible means to eliminate the hazard or materially reduce it.  Waldon Health Care Ctr., 16 BNA OSHC 1052, 1058 (No. 89-3097, 1993).  The evidence must also show the employer knew, or with the exercise of reasonable diligence, could have known of the hazardous condition.  Otis Elevator Co., 21 BNA OSHC 2204, 2207 (No. 03-1344, 2007).

1. 1. C.Presence of a Hazard to Which Employees Were Exposed 

Under Waldon’s four-part framework, the first element the Secretary must prove is that “a condition or activity in the workplace presented a hazard.”  16 BNA OSHC at 1058.  The parties stipulated to the presence of the hazard of workplace violence and that employees were exposed to it. (Stip. 7.)  

1. 1. D.Recognition and Knowledge of the Hazard 

Besides hazard recognition, the Secretary must also show the employer’s knowledge of the hazardous condition.  Burford’s Tree, 22 BNA OSHC 1948, 1950 (No. 07-1899, 2010), aff’d, 413 F. App’x 222 (11th Cir. 2011) (unpublished).  Establishing knowledge does not require showing that the employer was actually aware it was violating the Act.  See e.g., Peterson Bros. Steel Erection Co., 16 BNA OSHC 1196, 1199 (No. 90-2304, 1993), aff’d, 26 F.3d 573 (5th Cir. 1994).  Knowledge is established if the record shows the employer knew or should have known of the conditions constituting a violation.  Peacock Eng’g Inc., 26 BNA OSHC 1588, 1592 (No. 11-2780, 2017).  

As explained, Respondents permitted the destruction of evidence related to their knowledge and recognition of the hazard.  If necessary, to cure the prejudice caused by the destruction, the Secretary would be entitled to a finding that this element was met.  Such a finding is unnecessary as the record includes extensive evidence of Respondents’ recognition of the hazard and its presence at the worksite.  

1. 1. E.Serious Physical Harm 

That attack was not RN RO’s only experience with workplace violence at Suncoast that caused him serious physical harm.  Two months later, as discussed above, another patient leaped over the nurses’ station and stabbed him in the neck and face with a pair of scissors.  (Tr. 499-500; Ex. 28.)  He was wounded and suffered another concussion.  (Tr. 511-12.)  He required stitches and suffered multiple bruises “through the body.”  (Tr. 170; Exs. 4, 60.)  Besides stabbing RN RO, the patient also stabbed a supervisor in the leg during this incident.  (Tr. 644.)  

A second RN described similar experiences with workplace violence at Suncoast, including being attacked by a patient twice in a single month.  (Tr. 878.)  During the second incident that occurred on November 22, 2016, RN VG was kicked with sufficient force that she fell over backwards.  (Tr. 878, 893-94.)  The incident left her with a broken hip and multiple broken ribs.  (Tr. 889-91.)  As discussed, RN VG was hospitalized, had surgery, and was sedated for eight days before being transferred to a rehabilitation facility.  She returned to “light duty” on February 14, 2017 after missing 91 days of work. She was on transferred or restricted work for 21 days.  (Tr. 884-907, 933-46; Ex. 7 at 400, Ex. 49.)  

On March 18, 2018, an aggressive, combative, and defiant patient tried to instigate fights with other patients while pacing up and down the hallway.  Staff escorted the patient to her room, where she spit on staff and kicked RN NH in the middle of her back while she was “attempting to secure the patient’s legs in the restraint.”  RN NH suffered “Back swelling, bruise or pain from direct blow to the back.”  (Tr. 2210-13, 2226-36; Ex. 68.)  

Risk Management Worksheets and RSOs describe multiple injuries related to the cited hazard that occurred on the same date.  At 1:45 p.m., April 9, 2018, a patient bit RN ED’s lower right forearm in the Turtle Cove unit.  The bite wound was “2cm long and broke skin.”  At 2:33 p.m., April 9, 2018, an irritated and physically aggressive patient attacked staff and hit a staff member in the eye.  (Ex. 70 at 2415-22, 2467-69.)  At 6:00 p.m., on April 9, 2018, a patient kicked staff member LB in her left knee at the Turtle Cove unit.  At the same date, time, and location, a patient bit MHT MG’s left hand.  (Tr. 2725; Ex. 70.)  Later, at 8:55 p.m., a patient kicked, hit, and bit staff in his room and continued to try to do so after being placed in a seclusion room.  (Tr. 2724-25; Ex. 70 at 2407-14, 2470-73, 2500-01.)

1. 1. F.Abatement 

Having shown that the worksite had a recognized hazard capable of causing serious physical harm to employees, the Secretary must then establish that the employer failed to render its workplace free of the hazard.  There is no dispute that the hazard remained in the workplace throughout OSHA’s investigation and beyond.  However, the requirement to have a workplace free of recognized hazards is limited to preventable hazards.  Nat’l Realty & Constr. Co., Inc. v. OSHRC, 489 F.2d 1257, 1265-66 (D.C. Cir. 1973).  When an employer has already undertaken methods to address a hazard, the Secretary must show that those methods were inadequate.  U.S. Postal Serv., Nat’l Ass’n of Letter Carriers, 21 BNA OSHC 1767, 1773 (2006).

Respondents argue that it took several actions to address the hazard and that their measures were adequate to address it.  (Resp’t Br. 43.)  Respondents had a WVPP, which included written policies and training.  (Exs. 10-11; Resp’t Br. 44-48, 60-63.)  According to Respondents, its WVPP was not a standalone policy “but encompassed a number of different policies and procedures.”  (Tr. 3108-21; Resp’t Br. 44-45; Ex. 264 at 4-5.)

1. 1. 1. 1.High Number of Injuries 

Higher than average injury rate is a relevant measure of the sufficiency of Respondents’ program.  SeaWorld, 748 F.3d at 1215 (existing safety procedures held inadequate where evidence showed employer’s training and protocols did not prevent continued injuries).  Injuries and incidents are not dispositive, but they do support the Secretary’s claim that the abatement methods as implemented were inadequate.

1. 1. 1. 2.Inadequate Policies & Procedures 

Respondents, in their brief, allege that their abatement included: (a) written policies; (b) management commitment to those policies and employee participation in patient care; (c) worksite analysis, hazard identification, prevention, and control; (d) post-incident debriefings; (e) program evaluation; (f) training; (g) staffing, and (h) relationship with local law enforcement.  (Resp’t Br. 45-48.)  No single document described these things as comprising the WVPP.  Nor did any witness list the elements of this program in a single explanation of the facility’s response to the hazard.  

Instead, after being led by counsel, Respondents cited bits of various documents and policies in an attempt to claim that the cobbled-together collection was a comprehensive and effective approach to abating the cited hazard.  The record reveals the Respondents’ WVPP to be an after-the-fact scattershot attempt to claim they had adequate policies and procedures for a known serious hazard.  The program was not implemented as written, not backed by a commitment to the policies or employee participation in addressing the hazard, and not guided by sufficient analysis.  (Ex. 81 at 18.)  The clinical policies and procedures Respondents claim show adequate abatement focus on individual patient aggression without sufficiently addressing employee injuries, risk factors, and post-incident corrective measures.  Id.  At bottom, Respondents did not have the workplace violence prevention program they claimed they did.  See BHC, 951 F.3d at 567 (emphasizing policy implementation when assessing whether a facility effectively abated the hazard of patient on staff violence).  Instead, the incomplete implementation and insufficient staffing rendered the WVPP ineffective and led to additional actual and potential injuries.  (Tr. 1945-46; Ex. 81 at 18.)  

1. 1. 1. 1. a)Workplace Violence Policy & Workplace Violence Training PowerPoint 

The Workplace Violence policy’s stated purpose is to guide “supervisors.”  (Ex. 10 at 654.)  In the event of an act of violence, the policy directs employees to “call the Security department and/or 911.”  Id. at 656.  The document does account for the fact that there was no such security department at Suncoast to call.  (Tr. 1807.)  Further, employees received conflicting information about whether utilizing 911 was appropriate and repeatedly delayed doing so.  (Tr. 423, 891, 900, 907.)  The RN RO Attack illustrates this confusion.  In the midst of trying to protect himself and his co-workers from a violent patient, RN RO asked his supervisor to call 911 early on in the incident.  She initially refused to do so.  As the situation developed, she eventually called 911.  The delay wasted critical time.  (Tr. 100, 424, 464-65, 478-79, 489-507, 512, 563, 641-43, 1045, 1064; Exs. 4, 28, 60.)

Respondents argue that the UHS PowerPoint supplemented the Workplace Violence policy.  (Resp’t Br. 3-4.)  The UHS PowerPoint cites violence by patients as a form of workplace violence and refers to elements of the facility’s Workplace Violence policy.  It states, “Most aggressive or violent events are caused by patients.”  (emphasis in original) (Ex. 11 at 660, 666.)  Like the Workplace Violence policy, the UHS PowerPoint states that the facility has “zero tolerance for violence of any kind” and applied to both employees and patients.  (Exs. 10, 11 at 662-63, 672.)  Employees explained that these claims of a “zero tolerance” policy were “a joke because patients are … acting out in a violent way towards staff. … it’s tolerated.”  (Tr. 1668.)  Respondents do not have an effective zero-tolerance policy for patient on staff violence.  (Tr. 197, 624-25.)  

1. 1. 1. 1. b)Other Written Policies 

Collectively the documents do not set out a comprehensive, coordinated, or site-specific approach to patient on staff violence.  Id.  They concern “how to deal with the different behavioral issues of the patients,” not worker safety.  (Tr. 403-5.)  Further, when shown the documents that allegedly made up the WVPP, employees did not recognize them or “were not even aware that those documents existed.”  (Tr. 404-5, 1688.)  

1. 1. 1. 1. c)Management Commitment & Employee Participation 

The Secretary argues that management was not committed to implementing their WVPP and failed to engage employees on mitigating the hazard.  Dr. Lipscomb described management commitment as a “foundational element” for an effective WVPP.  (Tr. 1666.)  Respondents did not adequately solicit information from direct care staff about the hazard or act on the information received.  (Tr. 1665-66.)  Employees described times when they reached out to the CEO, the DON, or the Director of Risk Management with concerns about how Respondents addressed the hazard.  (Tr. 649, 765-69, 1666; Exs. 24-25.)  The requests to better address the hazard were, at best, ignored, and regardless of the response given to the concerns, the Respondents did not implement any meaningful changes to mitigate the hazard better.  (Tr. 273, 299-300, 522, 569-70, 880, 1947, 1665-69.)  

Q. Why is there so much turnover, do you think?

(Tr. 1497.)  When asked during cross examination immediately following whether she felt safe at Suncoast, Night Supervisor RN CC stated, “There are nights I feel very unsafe there.”  (emphasis added) (Tr. 1498.)  

1. 1. 1. 1. d)Worksite analysis, hazard identification, prevention, & control 

Respondents allege that throughout a patient’s stay, “there is attention paid to analyzing and identifying risk factors.”  (Resp’t Br. 46.)  They indicate the use of multiple methods to address patient aggression, starting with the intake procedures, continuing with developing and updating treatment plans, and the routine observation of patient behavior.  Id.  

The Secretary showed severe flaws in the intake procedures and the efficacy of the observation rounds as conducted.  In addition, although nurses’ workstations were the location of many staff injuries, Respondents failed to make safety changes facility-wide to mitigate the hazard.  

Intake

After intake, staff brought patients into the units.  When a patient’s violent history was not identified in intake, direct care employees would not have this information, even if the patient had previously assaulted staff.  (Tr. 229-30, 722, 1360.)  This was not a theoretical risk.  Two MHTs were injured by patients who had previously assaulted other employees.  (Tr. 234-35, 971-72; Ex. 70.)  A patient threatened the MHT early in the shift and then later injured her.  (Tr. 971-72.)  The MHT explained that if she had been promptly informed of the patient’s violent history, which included breaking a caregiver’s jaw, she would have insisted on additional precautions after the first time the patient threatened her.  (Tr. 972.)  

Rather than going through intake, some patients were direct admissions, meaning that the facility had already agreed to accept them into the hospital upon arrival.  (Tr. 229-30, 722, 1360.)  Staff brought such patients directly to the units.  (Tr. 722, 1360.)  Employees working in the units would have no information on the history of violence until after assessments were completed.  (Tr. 231-32, 722-23, 829, 1360; Sec. Br. 66.)  The patient could be in the unit for many hours before medical staff completed the assessments.  (Tr. 829-30, 1112; Ex. 83 at 7-8.)  

For example, it may take up to twenty-four hours before a patient is assessed by a psychiatrist, and other parts of the initial assessment can take up to 72 hours after admission.  (Tr. 2319, 2743; Ex. 212.)  The direct care staff is left to manage emergencies without the guidance of the more highly trained medical professionals.  (Ex. 83 at 8.)  Dr. Forman found this “particularly troubling” because intake and the initial part of hospitalization is when patient behavior is the most “unpredictable.”  Id.  In his view, the likelihood of a patient harming a staff member is highest during intake, and the first day at the facility.  Id. at 6, 8.  The delays in these assessments rendered them less effective at abating the hazard than Respondents claim.  Id.  

Respondents’ Workplace Violence policy and the UHS PowerPoint recognized the role of patient history in preventing workplace violence incidents.  (Ex. 10 at 655; Ex. 230.)  The Workplace Violence policy cites a “history of violent, intimidating or destructive behavior” as a characteristic that might be “indicative of posing a potential threat.”  (Ex. 10 at 654-55.)  The UHS PowerPoint explained that employees should know a “patient’s potential for violence and how to manage aggressive behaviors.”  (Ex. 230 at 670.)  Despite this recognition, information about patients’ past aggression, even if it occurred at Suncoast, was not consistently conveyed to employees directly caring for the patients.  Employees in the intake department or coming from other units to assist would not see the precaution forms before having to interact with violent patients.  (Tr. 522, 2945-46.)  The Secretary showed that Respondents’ intake procedures, as implemented, did not adequately abate the hazard.  (Tr. 1696-99; Ex. 83 at 7-8.)  

Patient Observation Rounds

Respondents indicate that their observation program of patients on the units is part of the WVPP.  (Tr. 386, 2871; Exs. 5-6, 221, 233; Hamilton Dep. 60-61.)  Under the program, patients can be assigned different observation levels.  (Tr. 115, 2062-63; Ex. 6 at 264, 14, 208, 221.)  The program calls for an employee to check patient behavior at least every fifteen minutes.  (Tr. 2063, 2871-72; Exs. 6 at 264, 221.)  This is referred to as “Q15 checks.”  (Tr. 2062-63, 2871-72; Ex. 6 at 264.)  Some patients are observed every five minutes, “Q5 checks,” if their condition warrants it.  (Tr. 2063; Ex. 6 at 264.)  Staff conducting the Q15 or Q5 checks follow a checklist that sets out particular “risk factors” to look for when observing the patients.  (Tr. 529, 548, 2062; Ex. 221.)  However, the checklist does not specify whether the patient has aggressed against staff during his or her current or previous hospitalizations.  (Exs. 14, 56 at 1493, 1507-8.)  

Two of the checklists Respondents produced occurred after the issuance of the OSHA Subpoena for videos.  (Tr. 2887-89; 2898-2899; Exs. 72-73.)  As addressed in the Sanctions Motion discussion, had Respondents preserved video of these incidents, such evidence could have answered which document was correct, the checklist or the EAR.  Considering the video destruction, Mr. Curl’s twisted hypotheses about how the checklists and the EARs could both be accurate is rejected.  The Court credits the evidence that observation rounds, as conducted, did not sufficiently abate the hazard.  

Dr. Forman concluded that while the record suggests patient checks were documented, this had little utility for abating the hazard because of how the policy was implemented.  (Tr. 3395-96, 3399-3401.)  He cited an MHT being punched despite the check form repeatedly indicating the calmest rating.  (Tr. 3399-3401.)  In Dr. Forman’s view, the form was false for that patient.  (Tr. 3401.)  Even when accurate, because Respondents relied solely on employees from the different units to respond to emergencies, an employee would often have to address an emergency without reviewing the Patient Observation information.  (Tr. 529.)  

RN Cooke also questioned the utility of Respondents’ patient observation rounds as abatement, albeit for different reasons than Dr. Forman.  In her view, the purpose of the checks was to know that the patient was on the unit.  (Tr. 3078.)  She considered the round’s purpose to be “not even so much what they’re doing” but understanding that “we haven’t lost them.”  Id.  In her view, given the number of patients a single staff person is checking on, “there’s not a whole lot they can do, except make sure the patient is where they need to be.”  (Tr. 3079.)  There is no time “for a lot of interaction.”  Id.  

The Secretary showed that, as implemented, the Patient Observation Rounds were not effective at abating the hazard.

1. 1. 1. 1. 1. (3)RN Reports/SBAR 

This failure to consistently and accurately convey violent histories reduced the effectiveness of Respondents’ abatement efforts.  Dr. Lipscomb explained that “one of the most well-recognized risk factors for violence is a history of violence.”  (Tr. 1699.)  Respondents' failure to communicate this information to the frontline workers directly involved in patient care significantly undermined the abatement’s utility.  Dr. Forman agreed, explaining that Respondents’ approach was insufficient to protect staff members from violent patients.  (Ex. 83 at 10.)  

1. 1. 1. 1. 1. (4)Leadership & Other Rounds 

“Leadership” or Administrator on Call (“AOC”) rounds were conducted on each of the three shifts, for a total of three rounds per week.  (Tr. 1456-57, 1614, 2363.)  They involved checking to ensure the patient observation checklists and assignment sheets were filed out and looking for issues.  (Tr. 1989-90.)  The night shift AOC rounds were “usually” done by video as opposed to in-person walkthroughs.  (Tr. 2363.)  Respondents assert that this was effective despite also arguing that several areas of the facility could not be seen on the videos and arguing that videos of incidents were not helpful.  CEO Hamilton also claimed that staff conduct patient safety rounds on the units every day.  (Tr. 2360-61.)  No documentation regarding findings from these rounds was provided and no one tasked with conducting these rounds testified about them.  

Respondents’ post trial brief also refers to “EOC rounds” as part of their abatement.  (Resp’t Br. 20.)  At trial, CEO Hamilton could not recall whether the frequency of these rounds was monthly or quarterly.  (Tr. 2363.)  Only one page of the meeting minutes from a single post-Citation meeting of the EOC committee is included in the record.  (Ex. 35.)  This document discusses the implementation of Supervisor Senior Leadership Observation rounds.  Id.  There are no documents in the record related to findings from these rounds during or before OSHA’s investigation.  The record does not establish that the leadership and any other rounds, as conducted, sufficiently abated the hazard.  

1. 1. 1. 1. 1. (5)Code Gray Procedures 

The Secretary showed Respondents’ code grey procedures were not fully implemented as conceived and did not effectively abate the hazard.  (Ex. 81 at 22-24; Sec. Br. 81-83.)  

1. 1. 1. 1. 1. (6)Workstations 

Dr. Lipscomb found that the “nurses’ station between [two of the units], as it’s configured, poses a risk to staff and patients, and that it needs to be reconfigured.”  (Tr. 1939.)  As explained in more detail in the next section, whatever worksite analysis Respondents did, they failed to recognize how the configuration contributed to the risk to employee safety.  The Secretary showed that Respondents’ worksite analysis was ineffective at abating the hazard.

1. 1. 1. 1. e)Inadequately protected employee workstations 

Respondents Behavioral Management Program identified several “high risk areas” at the facility such as the “direct care areas” and “most particularly the acute care units.”  (Ex. 19 at 731.)  Staff repeatedly raised concerns about the lack of a protective barrier to management, expressing how additional protection could prevent injuries.  RN RO told managers, including CEO Hamilton, before the RN RO Attack that a barrier should be installed at the nurses’ station for safety.  Nothing was done.  (Tr. 521-22, 1283, 1356, 1358.)

Dr. Forman concurred, indicating that the workstation’s configuration created a risk that patients can enter the nurses’ station and pick up items and use them “to stab, to cut, to bludgeon nurses or nurses’ aides.”  (Tr. 3413.)  Respondents allowed patients to obtain “the very items” that are properly considered contraband under Respondents’ policies.  (Tr. 385, 3414; Ex. 200.)  If a patient had a hole puncher or stapler in their possession, employees were to remove it, and the patient would not have access to it for the duration of their stay.  (Tr. 3414-15; Exs. 200, 204.)  And yet, the low barriers permitted access to these same items that could be used to injure employees.  (Tr. 1251, 1278-79, 3413-15; Ex. 9 at 324, Ex. 28.)  The Secretary showed that the nurses’ workstations, except in the intake area, were not effective at abating the hazard.  

In addition to the nurses’ stations, the Secretary also cites inadequate protection for the kitchen staff.  Respondents argue that the configuration was adequate and that not all patients were permitted in the kitchen area.  VN, who worked both as a kitchen aide and MHT, refuted management’s claims about patient access to the kitchen area.  She indicated that she was attacked by a patient who was supposed to be “on precautions.”  (Tr. 1010-13.)  The patient had hit, bit, and threatened staff, yet whatever the “precautions” were, they did not prevent the patient from gaining access to the kitchen and its staff.  (Tr. 1011.)  

VN’s experience highlights the flaw with Respondents’ reliance on rules rather than engineering controls to address workplace violence.  (Tr. 1663-65, 1676; Ex. 81 at 20.)  The Secretary showed that the nurses’ station’s configuration and access to the kitchen area were not sufficiently effective at abating the hazard.  Respondents need to reconfigure the nurses’ station to include design features that prevent patients from jumping over, reaching into, or otherwise entering the nurses’ station.  The Court finds that this is a feasible abatement measure that would materially reduce the hazard of workplace violence and prevent incidents of future serious and/or disabling staff injuries.  (Tr. 1861-62; Ex. 2 at 4, ¶ 2.)

1. 1. 1. 1. f)Post-Incident Investigation and Debriefing 

Respondents identified the post-restraint debriefings as part of their existing abatement.  (Tr. 2900-1, Ex. 20.)  The Secretary argues that Respondents’ incident investigation and debriefing procedures were not sufficiently comprehensive and poorly implemented, rendering the program ineffective at abating the hazard.  (Sec’y Br. 170.)  

Further, although the UHS PowerPoint explains that “threats” are a form of violence, Respondents did not actually require employees to report threats.  (Tr. 2217-2218.)  Employees were told to only “report life threatening situations.”  (Tr. 704-5, 818-19, 833, 1717, 2176.)  Such instructions leave out a whole range of serious physical harm.  A RN was called a vile racial slur, and it was considered “part of the job.”  (Tr. 2010-11.)  

RN VL described being threatened with violence more than ten times.  (Tr. 704-5, 818, 833.)  She was not told to complete incident reports for any of the threats.  Id.  A third nurse, RN CMC, was threatened “too many to count.”  (Tr. 1093.)  The threats included patients graphically saying they would kick her, hit her, or “be waiting for her when she left the facility.”  Id.  Such incidents “happened a lot,” and it was “tolerated” as just “the way things were.”  (Tr. 1094.)  Similarly, Respondents’ “master” trainer for the Handle With Care program, SS, indicated that although he was told by patients, “I’m going to hurt your family, I’m going to … beat you up, tear you up,” he never reported or documented these or any other threats.  (Tr. 2168, 2176.)  

Even without clear instruction or standardized reporting mechanisms for threats of workplace violence, some employees still reported threatening behavior to management.  (Exs. 24, 26.)  Rather than acting on the information to limit the potential for workplace violence, employee reports were ignored or dismissed outright.  (Tr. 632-33, 1665-69; Ex. 24.)  One MHT was verbally assaulted with inappropriate sexual threats.  (Tr. 227.)  She reported the incident to the unit nurse, but neither the nursing supervisor nor any other manager discussed the incident with her.  Id.  Even a threat written in blood was summarily dismissed without any assessment of the need for preventative action.  (Tr. 627, 632-33; Ex. 26.)  Threats of violence against particular staff members did not result in changed assignments.  (Tr. 969-70, 976.)

By failing to track verbal assaults and behavior that stopped short of physical violence, Respondents missed opportunities to prevent workplace injuries.  (Tr. 1663.)  Appropriate risk assessment requires consideration of threats and harassment.  (Tr. 1663, 1669, 1709.)  Respondents’ practice of ignoring employee reports of threats made it less likely employees would report troubling behavior in the future and showed management’s lack of commitment to addressing the problem.  (Tr. 1669-71, 1674-75.)  Dr. Forman explained that “just the impression that violence and threats will be taken seriously can prevent further violence.”  (Ex. 83 at 11.)  The failure to have a process for investigating or debriefing incidents where a patient threatened an employee limited the effectiveness of Respondents’ debriefing program.  

Dr. Lipscomb concluded there was a lack of meaningful debriefing and risk mitigation following incidents of patient-on-staff violence.  (Ex. 81 at 21.)  Debriefing is “essential” for implementing hazard controls to prevent future workplace violence incidents.  Id. at 36.  The Secretary showed that this aspect of Respondents’ WVPP was not sufficiently effective at abating the hazard.  

1. 1. 1. 1. g)Program Evaluation  

The flaws cited above in the discussions about incident investigation and debriefing also undermined the effectiveness of any program evaluation Respondents conducted.  Respondents argue it tracked workplace violence incidents through EARs.  EARs were not specific to injuries from workplace violence.  (Ex. 7.)  The forms do not seek any root cause analysis or critical assessment of why an employee was injured or how the injury could be prevented.  (Exs. 36-42, 44-45, 48-50, 52-77.)  EARs were not provided to co-workers or included with patient charts.  The Director of Risk Management was not sure if his department even kept copies of EARs.  (Tr. 2848.)  

Although Respondents talked about tracking and trending, Dr. Lipscomb found that, in practice, there was little analysis of the hazard.  (Tr. 1674.)  Respondents collected data but failed to use it.  Id.  And they did not encourage workers to report all injuries and threats.  Id.  Workers would say they had not been injured, but then reveal they were repeatedly slapped and kicked.  (Tr. 1088, 1674-75.)  Even when it occurred, the discussion of employee injuries during committee meetings was “very cursory.”  (Ex. 81 at 18.)  Numbers of injuries were noted but there is no record of notable discussion regarding engineering or administrative controls to prevent similar future incidents.  Id.  The Secretary showed that, as implemented, Respondents’ approach was deeply flawed and failed to abate the hazard effectively.

1. 1. 1. 1. h)Training 

Respondents had two training programs directly related to workplace violence: (1) the UHS PowerPoint, and (2) the annual Handle with Care and Verbal De-escalation (“Handle With Care”) training.  (Tr. 112-13, 118, 226, 701; Exs. 6, 11, 15-16, 18, 235-37, 238, 243, 245.)  The Secretary identified significant issues, which undermined the effectiveness of Respondents’ training program at abating the hazard.  See BHC, 951 F.3d at 562 (emphasizing the importance of effectively using training materials).  Dr. Forman opined that Respondents are insufficiently training their “staff to address workplace violence regardless of … what the policy is written, in terms of the way that it’s executed, that it’s insufficient.”  (Tr. 3520-21.)  

Looking first at the UHS PowerPoint, the Secretary faults the glaring disconnect between the actions the training calls for and what occurred in practice.  For instance, as discussed, while the slides call for reporting threats and indicate the facility has a “zero tolerance for violence of any kind,” this was not true.  (Tr. 894, 1668; Ex. 230.)  

Besides the UHS PowerPoint, most employees also received Handle With Care training upon hiring, and then there was an annual re-certification.  (Tr. 2102, 2104; Exs. 15-16, 234-35, 245.)  The program purports to teach self-protection techniques and approved methods of restraining a patient.  (Tr. 2102.)  The focus of the training is to teach employees how to protect patients when intervening.  (Tr. 2130.)

During the time of OSHA’s investigation, outside of the annual training, employees did not regularly participate in drills to practice the skills taught.  (Tr. 205-06, 901, 996, 2198; Ex. 81 at 22.)  Respondents themselves appeared to recognize the need for drills and additional safety meetings.  (Tr. 2766; Ex. 251 at 2780-81, 3811, 3883.)  But, Mr. Smith, the Handle With Care trainer, indicated that there was only one drill involving three people in the more than three years he worked at Suncoast.  (Tr. 2196-98.)  He could not recall the year the drill occurred.  (Tr. 2197.)  Although he claimed the drill was documented, no such documentation was produced in discovery or offered at trial.  (Tr. 2197; Ex. 92; Sec’y Br. 42 n.6.)  

Even if Respondents’ rationale for not training doctors, there is no similar justification for limiting the kitchen staff’s training to the UHS PowerPoint.  (Tr. 1503.)  Kitchen staff interacted with patients in the dining room at every meal, and patients had access to the kitchen.  (Tr. 977-78.)  A cook indicated that the kitchen was rarely locked, despite the presence of items considered contraband if found elsewhere in the facility.  (Tr. 384-85, 977-78, 3112; Ex. 200.)  She described patients throwing utensils and trays.  (Tr. 977, 1010.)  Respondents argued that not all patients were permitted in the dining area adjacent to the kitchen.  However, even patients “on precautions” sometimes still were mistakenly given access to the dining room.  (Tr. 1011-12.)

Respondents also offered a list of other trainings various employees may be required to take.  (Ex. 224.)  Only the titles of these sessions were provided.  Id.  None of the titles refer to workplace violence, and nearly all appear to focus on patient care.  Id.  Whatever content these trainings included, how they might have mitigated the hazard, or their effectiveness at doing so was not established.  The Secretary established that Respondents’ training program did not adequately abate the hazard.  

1. 1. 1. 1. i)Staffing - Insufficient staff to respond to workplace violence incidents 

The Secretary argues that there was not enough staff to respond to workplace violence incidents adequately.  (Sec’y Br. 152-54.)  As explained in the training discussion, dozens of employees, although trained, could not properly be considered available to respond to violent incidents because they were not physically capable of performing the restraints and self-defense techniques taught.  (Tr. 1271, 1447-50, 3221; Ex. 23.)  Other times there was just not enough staff.  Dr. Lipscomb argued that there were many instances where the absence of staff resulted in employees getting injured.  (Tr. 1686-87.)

RN Cooke argued that deficiencies in employees’ ability to perform the techniques were not important because four or five people responded to violent incidents.  (Tr. 3164-65.)  Her opinion is rejected as insufficiently supported.  Employees explained that sometimes they were working alone or that there were only two employees assigned to a unit at night, and during the time of OSHA’s investigation, only one person in the intake department.  (Tr. 626, 637, 678-9, 703, 751, 763, 1055, 1103, 1167, 1692, 2283; Ex. 24.)  At night, it was a “skeleton crew.”  (Tr. 1045, 1332, 1444.)  There were often not four or five people who could respond to a violent incident; sometimes, not even a single person responded to a call for help.  (Tr. 751, 761, 764, 1045, 1108-10, 1167, 1404, 1697, 1741; Ex. 9 at 325.)  At least one employee needed to remain in each unit at all times.  (Tr. 205, 1236-37, 1697.)  Sometimes, calling a code was pointless because there was “no one else to respond.”  (Tr. 1314, 1324, 1333.)  Further, Respondents took no steps to ensure that at least one person could complete the techniques in each unit.  RN Cooke assumes that would be the case without support.  (Tr. 2194-95, 3164.)  

DON Phillips, who began working at Suncoast after the Citation’s issuance, indicated she would consider requests for additional staff to address patient aggression.  (Tr. 1597.)  However, she did not proactively consider the number of admitted patients with histories of violence against staff or how many were identified as “high risk” for aggression in their intake or nursing assessments.  (Tr. 1594, 1597, 2581-82.)  She did not know how many patients were identified on the high-risk alert forms as aggressive on a day-to-day basis.  (Tr. 1564.)  Her understanding was that the high-risk alert forms were used for the precautions taken, not for staffing levels.  (Tr. 1593-94.)  She did not review the information on the high-risk notification forms routinely, and thus it was not used to inform her daily staffing decisions.  (Tr. 1594.)  In practice, the assignment of “high risk,” was a distinction without meaning.  According to CEO Hamilton, “every patient gets a high risk alert.”  (Tr. 1594, 2582.)  Neither the patient files nor the high-risk alert notifications resulted in increased staff levels.  (Tr. 1597, 2582.)  

MHT CCM explained, “nine times out of ten,” the unit lacked sufficient staffing to handle violent patients.  (Tr. 1198.)  Phone calls requesting assistance went unanswered “probably every day.”  (Tr. 756, 1109, 1114.)  In an anxious series of texts, one employee explained how frightened she was working alone in intake on a particular shift with a very aggressive patient.  (Ex. 24.)  CEO Hamilton wrote back to MHT CC but took no responsive action, either at the time or subsequently.  (Tr. 2589-90; Ex. 24.)  Multiple employees testified that their requests for additional staffing to handle aggression were belittled, ignored, or dismissed.  (Tr. 299, 522, 1078, 1198, 1665-69; Exs. 24-25.)  Employees who brought up staffing issues or enclosing the nurses’ station to management were “severely scolded” and told to “hush up.”  (Tr. 522.)  Dr. Lipscomb testified that it was “unconscionable” for front-line MHTs and RNs recommending improvements to be told that “maybe behavioral health isn’t for you if you can’t accept this high risk of being assaulted and potentially having a disabling injury on the job.”  (Tr. 1666-67, 1672-74.)  The Court credits the employee testimony about denials for staff increases and enclosing the nurses’ station.  

Respondents also point to the creation of a “float” MHT position on the night shift after the RN RO Attack.  (Resp’t Br. 47; Tr. 361, 2396.)  This float was to assist when other staff went on breaks, handle transferring patients from intake to the units, and assist with patient inventory and documentation.  (Tr. 1339, 1378, 2143.)  

Daily law enforcement escorted individuals in handcuffs to the facility.  (Tr. 650, 707, 863, 1110, 1114.)  Intake staff would ask patients about criminal history, but they did not look up criminal records, and patients would not consistently share information about their histories.  (Tr. 720, 822, 1113-18, 1301.)  Particularly during the intake process, staff know little about the patient’s condition or propensity for violence.  (Tr. 720, 1112-4, 1301, 1360, 2356-57.)  This is still the case for patients that were previously violent against staff at Suncoast.  For instance, the patient involved in the RN RO Attack returned to the facility about a year after that incident.  There was nothing about his previous violent attack on staff or his subsequent arrest in the computer system to alert the staff member upon his arrival.  (Tr. 2356-57.)  Likewise, another employee working in intake did not know that a patient she was assessing alone had assaulted a co-worker leaving that person with a broken hip during a prior admission.  (Tr. 1114-18.)  

While the employee working in intake could call for assistance, routinely there would be no response even after repeated requests.  (Tr. 1103, 1109-10, 1697.)  Sometimes the phone would be answered, only for the employee to be told no one could come help deal with the threatening behavior.  (Tr. 763-64.)  When RN CMC was working alone in intake, law enforcement officers arrived with an irate patient.  (Tr. 1108-09.)  The patient was psychotic and threatening.  (Tr. 1109.)  She called each of the three units twice, letting the phone ring numerous times during each call, and there was still no response to any of her calls.  (Tr. 1109-10.)  RN VL also explained how sometimes two or three police officers would bring someone to the facility, unable to control them.  (Tr. 768.)  She alone was then expected to take over.  Id.  Dr. Lipscomb bluntly described the situation as a “fatal injury waiting to happen.”  (Tr. 1697.)  

Dr. Forman also criticized the limited intake staffing and the absence of a psychiatrist during the intake process.  (Tr. 3353-57; Ex. 83 at 6-7.)  He was particularly troubled by the presence of a single employee during the night shift.  He explained that night is a perilous time for intake because drug and alcohol use increases, which, in turn, increases the likelihood of violent behavior.  (Tr. 3422-23.)  Dr. Forman described an example where the patient who attacked RN RO at about 3:30 a.m., May 23, 2017, arrived at Suncoast at about 4:45 p.m., the day before.  Dr. Forman said the patient was not seen by a psychiatrist at Suncoast.  (Tr. 3353-66; Ex. 56.)  

The Secretary showed that Respondents’ approach to staffing did not sufficiently abate the hazard.  (Sec. Br. 83-86.)

1. 1. 1. 1. j)Relationship with Local Law Enforcement 

While Respondents claimed that law enforcement would stay with patients until they calmed down and would also assist with bringing certain patients directly to the units, there was no evidence of a shared understanding on the part of the law enforcement officers during OSHA’s investigation.  (Tr. 650, 709, 1110-11, 1911-12.)  There was no written agreement with local law enforcement agencies.  (Tr. 1911-12, 2346; Sec. Br. 97-100.)  Although Lieutenant Perez of the Manatee County Sheriff’s Department was a part of the UHS-PSC, he rarely attended the meetings.  (Tr. 2342, Ex. 251; Sec. Br. 99-100.)  CEO Hamilton acknowledged that the UHS-PSC did not discuss an arrangement whereby law enforcement would stay with patients until they calmed down or whereby officers would assist with bringing patients directly to the units until after the Citation’s issuance.  (Tr. 2343.)  

CO Trouche testified that she learned during her investigation that “there was not a clear understanding, especially with the RN supervisor, if they were allowed to contact local law enforcement.”  She said, “[t]here was a few minutes there that were wasted according to the statements because she was not even aware that that was a possibility or something that she was allowed to do.”  (Tr. 167-68, 423-24.)  

The Secretary showed deficiencies in how staff and law enforcement worked together and refuted Respondents’ claims.  Respondents’ working relationship with law enforcement was not effectively abating the hazard at the time of the OSHA inspection,

1. 1. 1. 3.Respondents’ WVPP Was Inadequate 

Respondents produced a flurry of paper alleging their WVPP reflected a robust program.  But most of the documentation related to patient care, not worker safety.  (Tr. 403-4.)  Respondents attempted to point to “bits all over the place.”  Id.  They lacked a “cohesive or comprehensive” WVPP.  (Tr. 404, 1664-67, 1942-43; Ex. 81.)  When asked if Respondents had a written, comprehensive WVPP, Dr. Lipscomb responded with “a definite ‘no’.”  (Tr. 1942-43.)  The documents that Respondents allege comprised their program “do not sufficiently address the employee injury, risk factors and corrective measures to be taken post incident.”  (Ex. 81 at 18.)  

1. 1. G.Feasibility of Proposed Abatement 

Having found that Respondents’ approach to addressing the hazard was inadequate, the Court next examines whether the Secretary identified feasible means to reduce the hazard materially.  See Integra, 27 BNA OSHC at 1849-50.  “The Secretary must ‘demonstrate both that the measures are capable of being put into effect and that they would be effective in materially reducing the incidence of the hazard.’ ”  Mo. Basin Well Serv., Inc., 26 BNA OSHC 2314, 2319 (No. 13-1817, 2018) (citation omitted).  To meet his burden, the Secretary must show the proposed actions have to be “recognized by safety experts as feasible.”  See Beverly Enters., 19 BNA OSHC 1161, 1191 (No. 91-3144, 2000) (consolidated).  However, the Secretary does not have to show that “the precaution’s use has become customary.”  Id.  The Secretary need only show that the abatement method would materially reduce the hazard, not that it would eliminate the hazard.  Arcadian Corp., 20 BNA OSHC 2001, 2011 (No. 93-0628, 1004) (citing Morrison-Knudsen, 16 BNA OSHC at 1122).  

The Secretary identified eight actions to abate the hazard.  Briefly, the proposed abatement requires: (1) developing a comprehensive written WVPP; (2) redesigning of nurses’ workstations to prevent patients from entering; (3) designating specific staff to monitor patients for potential aggression and respond to violent events in the units; (4) designating a particular staff member with specialized security training to be available at intake on all shifts; (5) revising intake procedures; (6) revising procedures for when law enforcement brings potential patients; (7) training about workplace violence prevention and response for all workers; and (8) investigating each act of workplace violence.  (Ex. 2.)  

1. 1. 1. 1.WVPP (Proposed Abatement Method 1) 

The first aspect of the Secretary’s proposed abatement is to revise and expand Respondents’ existing WVPP.  Specifically, the Secretary proposes that Respondents:

[(a)] Develop, integrate, and implement workplace violence policies and programs, including but not limited to, the workplace violence policy manual and the workplace violence prevention PowerPoint presentation, into one written comprehensive Workplace Violence Prevention Program (WVPP). This WVPP must include a worksite-specific hazard analysis that addresses patient-on-employee violence and describes hazard prevention and control measures. The WVPP must also provide for the participation of direct care staff such as Mental Health Technicians and Registered Nurses, e.g., through the committees that discuss workplace violence incidents, including, but not limited to, the Environment of Care Committee. [(b)] Provide copies of the WVPP and make it readily available to all staff. [(c)] Annually review the WVPP and update as necessary. Provide bi­ annual training on the WVPP to all staff.

(Tr. 197-98; Ex. 2 at 3.)

There is no evidence that any of these elements are not technically feasible or would increase the hazard.  Dr. Lipscomb explained that the proposed abatement is consistent with existing guidelines and codified into law in a number of states.  (Ex. 81 at 18.)  These revisions to Respondents’ WVPP would materially reduce the hazard of workplace violence and reduce the number and severity of future incidents of staff injuries.  Id.  She opined that a 10% reduction in the number of workplace violence incidences “would be a material reduction.”  (Tr. 1925.)

Dr. Lipscomb, supported by peer-reviewed literature, explained how Respondents could feasibly implement a comprehensive WVPP as described in this abatement method.  (Tr. 1675-76; Ex. 81 at 13-18.)  Neither RN Cooke nor any other witness refuted Dr. Lipscomb’s views about this abatement method's feasibility and effectiveness.  

The Secretary indicates that this abatement step requires an annual review of the WVPP and bi-annual staff training.  Respondents argue that the frequency of their program review and training is sufficient.  

The Secretary showed that Respondents did not regularly review and update their WVPP.  See BHC, 951 F.2d at 562 (discussing the importance of review and updating workplace violence policies).  The Commission has held that an abatement method calling for action to be taken as needed was not sufficiently specific.  Mid-South Waffles, Inc., No 13-1022, 2019 WL 990226, *6 (O.S.H.R.C. Feb. 15, 2019).  The Secretary needed to identify the specific additional steps necessary.  Here, the Secretary specifies how often Respondents need to review the WVPP and the frequency of training on it.  He identified the “specific additional steps” that Respondents must take to rectify their existing approach to the hazard, as required by Mid-South.  Id.  That is, modifying the frequency with which they review the WVPP (annually rather than periodically) and altering the training frequency from upon hiring and then “as needed” to twice a year.  

The only aspect of this proposed abatement not sufficiently supported by the record is the need to provide copies of the WVPP to all staff if the document is accessible and Respondents adequately train employees in the manner called for by this abatement action.  Dr. Lipscomb plainly acknowledged a WVPP has to be in writing to be well thought out and communicated.  (Tr. 1665.)  But the overwhelming value of the program is in its implementation, not “the paper it’s written on.”  Id.  The Secretary did not show that physical copies of the WVPP instead of employees having access to the written program would materially reduce the hazard.  

Accordingly, the Secretary established that a feasible and effective method of abatement includes acting to:

Respondents must make the WVPP accessible to all staff, “annually review the WVPP and update as necessary” and “provide bi­annual training on the WVPP to all staff.”  (Tr. 197-98, 1669-71; Ex. 2 at 3.)

1. 1. 1. 2.Nurses’ Workstations (Proposed Abatement Method 2) 

The second element of the Secretary’s proposed abatement is to re-configure the nurses’ workstations:

Reconfigure the nurses' workstations to include design features that prevent patients from jumping over, reaching into, or otherwise entering into the workstations.  Ensure items in the workstations, such as but not limited to scissors, hole punchers, staplers, telephones, cords, pens, computers, computer peripherals, and other items are not accessible by the patients, so they cannot be used as weapons.  All scissors at the facility should be replaced with childproof scissors.

Dr. Forman explained how revising the workstation configuration would reduce the hazard of workplace violence.  (Tr. 3413.)  Having approximately five-foot-high barriers prevent patients from jumping over but still permits sufficient interaction between patients and staff.  (Tr. 3411-12, 3416.)  Features that prevent patient access to the nurses’ station mitigate the risk of a patient entering the area and picking up items “to stab, to cut, to bludgeon nurses.”  (Tr. 3413.)

Dr. Forman detailed how facilities he was familiar with had higher barriers and designated work areas behind doors where office supplies were kept.  (Tr. 3414-15.)  Such an approach effectively prevents patient access to these items that indisputably could seriously injure staff.  Id.  He noted that if a patient had the same types of things present in the workstation, they would be considered “contraband” under Respondents’ policy, which required removing such things from patients.  (Tr. 384-85, 3414; Exs. 200, 204.)  However, Respondents permitted access to these same items by leaving the nurses’ station exposed.  (Tr. 3414-15.)  

1. 1. 1. 3.Designated Staff for Aggression and to Respond to Violence (Proposed Abatement Methods 3 & 4) 

The third element of the Secretary’s proposed abatement method is to designate staff with security training to prevent and respond to aggression and violence:

Designate specific staff with specialized training in security to monitor patients for potential aggression on all shifts and to assist in preventing and responding to violent events occurring in the units.  Designated staff must have the physical capability to effectively respond to aggressive patients.  The staff designated to monitor and respond to patient aggression should not be given other assignments such as patient rounds, which would prevent the designated person from immediately responding to an alarm or other notification of a violent incident. Conduct periodic drills for psychiatric crisis/patient aggression (currently known as “Code Grey”) to allow all designated staff to practice and evaluate their skills in real-life settings.

This element and element four address the need for staff designated to monitor patients for potential aggression and an additional staff member to help prevent and respond to violent events.  Abatement method three refers to having designated staff for preventing and responding to violence, and the fourth abatement step refers to the need for staff in the intake unit.  Specifically, the fourth abatement method calls for:

An additional designated staff member with specialized training in security should be available at intake on all shifts.  This staff member should have the physical capability to respond to aggressive patients.  This staff person should not be given other assignments such as patient rounds, which would prevent the person from immediately responding to an alarm or other notification of a violent incident.

Respondents do not contest the feasibility of these abatement steps, and their partial implementation of this abatement supports the Secretary’s feasibility argument.  Similarly, their existing Behavioral Management Program called for an “adequate number of physically qualified staff” to be available for each unit.  (Tr. 122; Ex. 19 at 731.)  The number of staff was supposed to increase with patient acuity under this policy.  Id.  

Dr. Lipscomb opined that having an employee with security training and the physical ability to handle aggressive patients to help prevent and respond to violent events would materially reduce the hazard.  (Tr. 1692-96; Ex. 81 at 25-26, 28.)  She cited a case study where officers were trained to respond to psychiatric emergencies and assume a supportive role to staff to support.  Id.  Dr. Lipscomb testified that trained security personnel were not accessible to workers in a timely manner.  Respondents definitely did not have adequate staffing available at all times to protect or aid workers against assaults or other violence.  (Tr. 1943-44.)  As discussed, the Secretary showed how Respondents’ approach of simply providing training without regard to whether the employee was physically capable of performing the techniques was ineffective.  There needs to be someone who can stop what they are doing and respond to aggression.  (Ex. 81 at 26-28.)  Staff who are assigned to care for a patient on a 1:1 basis or are responsible for continual patient checks cannot respond to actual or potential aggression.  Id. at 22.  

Abatement method three also calls for periodic drills for staff to practice responding to psychiatric emergencies.  (Tr. 206, 214; Ex. 2 at 4.)  Employees explained how drills would reduce the hazard.  (Tr. 646, 902, 1195, 1376.)  Dr. Lipscomb provided expert testimony that periodic drills, as this abatement step proposes, were feasible and would materially reduce the hazard by allowing the response team time to practice and evaluate their skills in real-time situations.  (Tr. 1732-33; Ex. 81 at 22, 26.)  She refuted RN Cooke’s opinion that drills were unnecessary because the job provided sufficient “real life scenarios.”  (Tr. 1733.)  Dr. Lipscomb identified this flawed logic.  By practicing the techniques mostly in “real life,” employees were repeatedly injured.  Id.  “If staff were sufficiently trained, and there were sufficient numbers to implement the training successfully, they wouldn’t have all these staff injured in the process of restraining patients.”  Id.  Mr. Curl also explained that drills were subsequently implemented after the Citation’s issuance and that they were “another good time for staff member to just ask their Handle With Care trainers for help.”  (Tr. 2766.)  

The Secretary established that abatement methods three and four are feasible and effective at abating the cited hazard.  See Pepperidge Farm, 17 BNA OSHC at 2034 (viewing “successful use of a similar approach elsewhere” and expert testimony as elements of an effective abatement method).  

1. 1. 1. 4.Revise Intake Procedures (Proposed Abatement Method 5) 

The Secretary’s next abatement step calls for the revision of intake procedures to flag patients with a history of violence and ensure the information is communicated:

Revise intake procedures to ensure specific information about an incoming patient's history of violence, including, but not limited to, history of violent acts against staff members at this facility and others, is transmitted to all care providers on all shifts, prior to the patient's admission to the unit.  Ensure that a "flag" specifying the history of violence (including if a patient had previously assaulted staff and the most recent assault) is available to all staff that may interact with the patient.  Assure that mental health technicians ("MHTs") have dedicated time to review all intake information on a patient before working with them.

The Secretary established that these actions are technically feasible.  Respondents already had procedures for obtaining a patient’s history of violence and to flag some patient risks, such as seizures or falling.  (Tr. 208-9.)  They just did not appropriately flag risks to employees.  (Tr. 208-10, 832, 1264, 1698-1703.)  

RN Cooke discussed “electronic” flags as beneficial.  (Tr. 3152.)  She appeared either not to realize or to have forgotten that Suncoast does not have electronic medical files and that such information was contained in less accessible paper files.  (Tr. 264, 2061, 2356-57.)  Her testimony undermines Respondents’ claim that they could not “flag” a patient.  (Resp’t Br. 27.)  Respondents point to no regulation, law, or guidance that precludes the type of abatement proposed here.  Indeed, both experts appear to agree to it being beneficial.  Neither RN Cooke nor anyone else testified about or pointed to any evidence that this abatement method could not legally be implemented.  Id.  

Published literature supported Dr. Lipscomb’s opinion.  (Tr. 1661.)  Dr. Forman also provided support that this method was both feasible and effective at addressing the hazard.  (Tr. 3356.)  He explained that on-site employees frequently contacted off-site doctors for medical orders for new patients or to revise orders for existing patients.  (Tr. 3380-81; Ex. 83.)  Neither the intake nurse nor the remote physician had ready access to the larger paper files or a readily identifiable “flag” about assaultive risk.  (Tr. 832, 3356.)  In his view, such historical information on assaultive risk would inform opinions on how patient care should be managed to mitigate the risk to themselves and others.  (Tr. 3356.)  The Secretary met his burden for this abatement method.

Alter How Law Enforcement Brings Patients to the Facility (Proposed Abatement Method 6)

The Secretary’s sixth proposed abatement measure relates to improving the arrangements with local law enforcement.  It calls for a law enforcement liaison position to develop agreements with law enforcement and for Respondents to consider written agreements governing arrangements with the authorities who bring patients to the facility:

Create a law enforcement liaison position to develop relationships and agreements with law enforcement entities who most often bring patients to the worksite.  Consider establishing a written agreement with the law enforcement entities that describes how officers will assist with aggressive patients brought into the facility, e.g., officers will keep patient handcuffed until the patient is completely calm and if the patient is not calm, the law enforcement entity will keep the patient cuffed and escort the patient with facility staff to an appropriate location within facility where the patient will remain cuffed until calm or the facility staff can administer medication to calm the patient.

Dr. Lipscomb discussed the importance of behavioral health facilities, “having a close working relationship with law enforcement.”  (Tr. 1703-11; Ex. 89 at 19.)  She explained that a formalized process for bringing in involuntary patients would reduce the volatility of such situations, thereby reducing the risk for employees.  (Tr. 1703-04.)  In her view, it was something that any “high-risk workplace should be doing and should have been doing a long time ago.”  (Tr. 1704.)  

Thus, after the Citation’s issuance, Respondents adopted this abatement method by entering into a more formalized, albeit oral, arrangement after considering the feasibility of a written agreement.  Id.  As they have been able to meet this abatement's requirements, so there is no concern that Respondents cannot feasibly implement this abatement method.  See BHC, 951 F.3d at 556 (rejecting employer’s feasibility arguments when it had “embraced” the measures “at least on paper”).  The Secretary met his burden concerning this aspect of the Secretary’s proposed abatement.

Training & Identifying Who Is Available to Assist (Proposed Abatement Method 7)

The Secretary showed deficiencies in the scope and frequency of employee training.  The specific additional steps the Secretary proposes to address the issues are:

The Secretary argues that these steps are technically feasible and will address the deficiencies in the training program.  (Tr. 203-04, 213-14; Ex. 81 at 20.)  Respondents do not rebut the Secretary’s evidence of feasibility.  Indeed, they cite having trained employees as part of their abatement program.  (Ex. 6.)  They added unit meetings partway through OSHA’s investigation and planned drills after the Citation’s issuance.  (Ex. 251 at 3780-81, 3811, 3818, 3883.)  Mr. Curl also modified the workplace violence training to use something “more tailored” by the time of the trial and made other improvements while the proceedings were pending.  (Tr. 2787, 2969.)  Rather than dispute that this method can be implemented, Respondents contend these actions will not materially reduce the hazard.

They’ve [walkie-talkies] always been at the facility.  Staff have chosen not to use them, some staff choose to use them.  Maybe that’s indictive of how safe they feel.  If they have walkie-talkies and they don’t need – feel like they need them, maybe they feel safe.  I don’t know.  

(Tr. 3160-61.)  In this regard, the Court finds RN Cooke to be misinformed.  The Court also finds RN Cooke’s assertion that the staff’s lack of use of walkie-talkies prior to the Citation’s issuance is indicative that staff may have felt safe to be a great leap without any basis of fact and is rejected.  Similarly, RN Cooke incorrectly asserts in her expert report that “Panic buttons are installed at each unit nursing station and in the group rooms.  They are functioning and accessible and immediately summon assistance.”  (Ex. 264.)  The Court found there were no panic buttons at Suncoast, including at the nurses’ station and in patient rooms.  (Tr. 265, 999, 1057, 1166, 1362; Ex. 264 at 7, ¶ N.)

Witnesses expressed uncertainty about what a code team was, when to call a code, and when (if ever) to call law enforcement.  (Tr. 272, 383-84, 498, 891, 900, 907, 994, 1739, 2565.)  Even supervisors hesitated to call law enforcement or waited until senior officials directed them to do so.  (Tr. 498, 900, 712.)  

The second part of this abatement method addresses the failure to have a sufficient number of workers who were both trained and fully capable of implementing the techniques be available to respond to workplace violence incidents.  Respondents considered an employee trained to handle violent patients if the employee attended the Handle With Care training session.  It did not matter if they could not complete the techniques.  When supervisors assigned staff to a shift, the scheduler did not consider whether enough of the selected workers were fully capable of implementing the techniques taught during the training session.  (Tr. 1450-51, 1509, 1512, 1717-18.)  The abatement method does not call for firing or refusing to hire individuals physically unable to complete the techniques.  (Tr. 1717-18.)  Rather, it requires the availability of enough individuals who can perform the techniques.  (Tr. 1718.)  In her expert report, Dr. Lipscomb opined that “additional opportunities to practice techniques taught in HWC [Handle With Care] System, in real life situations and, or drills, along with rigorous evaluation of physical intervention technique and opportunities for remediation, will materially reduce the risk of future staff injury.”  (Tr. 1732-33; Ex. 81 at 35.)  The Court agrees.

The Secretary identified the specific additional steps Respondents needed to have in place as of the time of the Citation’s issuance regarding training and ensuring the availability of enough people on each shift capable of performing the techniques called for by the training program.  See BHC, 951 F.3d at 561-63 (accepting the ALJ’s finding that the Secretary’s proposal for enhanced targeted employee training about handling patient on staff violence was part of an effective abatement program).  The Secretary’s proposed actions will address the deficiencies and contribute to a material reduction in the hazard.  (Tr. 1717.)

1. 1. 1. 7.Incident Investigation & Debriefing (Proposed Abatement Method 8) 

The next aspect of the abatement the Secretary calls for is to augment Respondents’ incident investigation and debriefing procedures.  

Conduct an investigation and debriefing after each act of workplace violence with the attacked and/or injured employee and other involved employees, including root cause or similar analysis, lessons learned, and corrective actions to prevent reoccurrence.  Provide the attacked and/or injured employee and other involved employees with an opportunity to provide feedback about specific measures that could prevent such future incidents. Review and evaluate each workplace violence related incident, both on a case-by-case basis and to monitor for trends in areas with high rates of incidents such as the acute units.

Respondents had no single location for documenting or reporting instances of patient violence against staff members.  Instead, they had a hodgepodge of different forms stored in different locations.  (Tr. 2696-99, 2848.)  Debriefing forms after patient restraints were kept in the patient’s paper medical file.  (Tr. 2707, 2838-39.)  Employee injuries were reported to Human Resources via an EAR.  (Tr. 2723-24, 2838.)  They did not include a section where anyone involved could write what could have been done to prevent an injury.  (Tr. 1267; Ex. 56.)  Some incidents were documented in Risk Management Worksheets.  (e.g., Ex. 51 at 1143-49.)  However, Mr. Curl acknowledged he would not typically use the Risk Management Worksheets.  (Tr. 2617.)  

Dr. Lipscomb provided expert testimony supporting that this abatement method was feasible and would materially reduce the hazard.  (Tr. 1675, 1741-43; Exs. 81 at 39, 89 at 22-24.)  She also identified how pre-Citation meeting minutes often did not address patient on staff injuries.  Those participating in the safety meetings lacked information needed to lead to “strategies for prevention.”  Id.  The proposed abatement calls for Respondents to fully implement their existing program and extend it to cover all workplace violence incidents, as opposed to focusing only on those incidents where a patient is injured, restrained, or secluded.  See  Con Agra, 11 BNA OSHC at 1145; SeaWorld, 748 F.3d at 1215.  

The Secretary showed that this abatement method is both feasible and effective.  

1. 1. H.General Duty Clause Not Unconstitutionally Vague as Applied 

These claims do not withstand scrutiny.  As the D.C. Circuit explained, neither a context-sensitive reasonableness standard, nor an unquantified precautionary threshold is necessarily vague.  BHC, 951 F.3d at 566 (evaluating the employer’s claim that a general duty clause violation at a psychiatric health facility was unconstitutional).  “Even if the scope of a general standard ‘may not be clear in every application,’ where its ‘terms are clear in their application to’ the conduct at issue, the ‘vagueness challenge must fail.’ ”  Id. quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 21 (2010).

In BHC, the employer made arguments very similar to the ones Respondents now raise.  951 F.3d at 566.  D.C. Circuit’s reasoning is applicable and compelling.  Here, like in BHC, the Secretary identified specific measures, including an overarching WVPP, needed to meet the general duty clause’s requirements and protect staff from patient violence at a behavioral health facility.  Id.  The proposed “measures accord with well-known industry best practices and peer-reviewed research.”  Id.  Further, “the need for full and consistent implementation of such measures is or should be evident to reasonably prudent managers of any major psychiatric inpatient hospital.”  Id.  

Similar to SeaWorld and BHC, the application of the general duty clause “here turns in significant part on the employer's failure to extend throughout its workplace the very safety measures it had already applied, albeit inconsistently.”  Id.  Just as Chief Judge Rooney was troubled by the disconnect between BHC’s written policies and its actual practices, this Court also finds that Respondents did not implement the abatement they claimed.  Id.  Like in BHC, Respondents here “can hardly object that it was blindsided by the utility of measures it had already embraced, at least on paper.”  Id.  

In this matter, unlike many cases where fair notice is contested, there is no debate Respondents knew what the hazard was and that their employees were exposed to it.  (Stips. 7-8, 12.)  See Bethlehem Steel Corp. v. OSHRC, 607 F.2d 871, 875 (3d Cir. 1979) (finding that fair notice is addressed by the requirement that the hazard is recognized).  Patient attacks on employees were not idiosyncratic events.  They routinely occurred.  See Gen. Dynamics Land Sys. Div., Inc., 15 BNA OSHC 1275, 1285 (No. 83-1293, 1991) (accidents put the employer on notice of the hazard), aff’d, 985 F.2d 560 (6th Cir. 1993) (unpublished).  Respondents were aware of these events through the EARs and the direct knowledge of supervisors.  Nor is there any dispute that experts familiar with the industry would take the hazard into account when prescribing a safety program.  See Nat’l Realty, 489 F.2d at 1266.  Both experts recognized that any risk assessment of the facility would include assessing workplace violence.

The Secretary showed that, at the time alleged in the Citation, Respondents’ existing measures for addressing patient on staff violence were insufficient, and Respondents failed to implement feasible measures capable of materially reducing the hazard.  See CF&T Available Concrete Pumping, Inc., 15 BNA OSHC 2195, n.9 (No. 90-239, 1993) (noting that the “mere existence of a safety program on paper does not establish that the program was effectively implemented on the worksite”); Pepperidge Farm, 17 BNA OSHC at 2007-8 (employer failed to implement abatement it identified).

Neither the need for an implemented program nor the contents of an appropriate program were unknowable to Respondents.  In Integra, the Commission rejected the employer’s constitutional vagueness challenge because the proposed abatement measures were “available to, and readily knowable by the industry.”  27 BNA OSHC at n.15.  In that case, akin to the matter at hand, the abatement derived from OSHA’s Workplace Violence Compliance Directive.  Id.  

Moreover, in 2016, OSHA specifically identified employee exposure to workplace violence at this worksite and explained the steps necessary to determine effective abatement.  (Ex. 3.)  Respondents attempt to turn this written warning on its head, claiming that rather than providing clear notice of the presence of a hazard that it somehow provides immunity from citing the hazard in the future.  (Resp’t Br. 36.)  The purpose of an OSHA Hazard Alerts is “to assist employers in meeting their responsibilities and regarding hazards in the industry.”  Marion, 1980 WL 10108, at *4.  The Hazard Alert Letter explained that the hazard of workplace violence was present and that they needed to evaluate and implement effective abatement measures.  17 BNA OSHC at 2003-4, 2007-8 (memos from insurer put the employer on notice of lifting hazards and provided abatement methods).  Like Pepperidge Farm, the Hazard Alert Letter did not just tell Respondents that “a problem existed,” it also told Respondents how to mitigate the hazard.  Id. at 2007.  Respondents’ claims that the letter excuses their failure to assess their WVPP and take action to mitigate the hazard are rejected.  Id. at 2008 (finding a willful violation of the general duty clause when employer was made aware of a hazard but failed to implement any abatement measures over the subsequent year); Martin v. OSHRC, 941 F.2d 1051, 1058 (10th Cir. 1991) (finding that CO’s discussion of program requirements with company provided actual notice and this was “fatal” to employer’s due process claim).  

Respondents made no attempt to offer evidence of the supposed “facts” for which they now seek judicial notice.  (Resp’t Br. at 40.)  The Secretary “strongly” objected to the Court considering information outside of published decisions and the facts within the record.  (Sec’y Reply Br. 10, n.2.)  The Court agrees that Secretary had no opportunity to address Respondents’ characterization of the supposed facts regarding the hazard present at HRI and BHC and how those entities did, or did not, address it.  While Courts regularly consider case law to address the legal effect (if any) of such decisions, this does not extend to factual findings in unrelated proceedings.  Fed. R. Evid. 201.

1. 1. I.Characterization 

The Secretary argues this violation is repeat.  (Sec’y Br. 175, 196.)  A repeat characterization requires two findings.  First, the past and present violations must be substantially similar.  Potlach Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979); Lake Erie Constr. Co., 21 BNA OSHC 1285, 1289 (No. 02-0520, 2005) (similarity of hazards is a “principle factor” in assessing the appropriateness of a repeat characterization).  Second, both violations must have been issued to the same employer.  Id.  

Looking first at the “principle factor” of similarity, the Secretary relies on a prior section 5(a)(1) violation issued to Lowell, a UHS affiliated entity.  (Tr. 10, 217-19, 371, 1691-92.)  That citation, which resulted from OSHA Inspection No. 1009736, became a final order on May 27, 2016.  (Tr. 10, 217; Stip. 12; Ex. 1.)  When relying on a previous general duty citation to support characterizing a subsequent citation as repeat, the Secretary must show substantial similarity based on the circumstances surrounding the hazard.  GEM Indus., Inc., 17 BNA OSHC 1861, 1865-66 (No. 93-1122, 1996) (declining to rely on a previous 5(a)(1) citation to support characterizing a subsequent violation of a specific standard as repeat), aff’d, 149 F.3d 1183 (6th Cir. 1998); Potlach, 7 BNA OSHC at 1064 (concluding that a violation of the general duty clause may be “found to be repeated on the basis of either a prior section 5(a)(1) or section 5(a)(2) violation”).  

1. 1. J.UHS-DE & Suncoast Acted as Single Employer for Purposes of OSH Act Liability 

UHS-DE also argues it should be dismissed from the Citation.  (Resp’t Br. 6, 73.)  The Secretary showed that UHS-DE’s own employees were exposed to the hazard, UHS-DE recognized the hazard, knew of its presence at the Suncoast location, had a significant role in both the development and implementation of the abatement in place at the time of the Citation’s issuance, and that its employees will need to implement many aspects of the abatement.  

First, in terms of exposure, while UHS-DE employees were in much less frequent contact with patients than other workers, they still were regularly present in the units.  (Tr. 1417-18, 2362-64, 2383-84; Exs. 92, 251.)  Second, UHS-DE stipulated that it recognized the hazard.  (Stip. 8.)  Third, workplace violence is recognized as a hazard by the relevant industry.  (Tr. 93.)  In addition, UHS-DE had actual knowledge of the hazard’s presence and that it was causing serious physical harm.  Its own employees reviewed video of workplace incidents and reviewed EARs routinely.  (Tr. 2365-72; Ex. 222.)  Fourth, as to the abatement's sufficiency, Suncoast relied on policies and training materials about the cited hazard UHS-DE developed.  (Stips. 14, 21.)  UHS-DE’s employee, CEO Hamilton, aided by other UHS-DE employees, oversaw many aspects of the facility’s WVPP.  Under the current leadership structure, the CEO and other UHS-DE employees would need to approve and cooperate to implement any abatement.  In short, the Secretary satisfied each element of the Walden test.  

The Secretary sets out another theory for citing UHS-DE, arguing UHS-DE and Suncoast acted as a “single employer” for purposes of the OSH Act.  (Sec’y Br. 176, discussing C.T. Taylor Co., Inc., 20 BNA OSHC 1083, 1086-88 (No. 94-3241, 2003).)  Under Commission precedent, in certain circumstances, the purposes of the OSH Act, including effective enforcement, “are well served” by holding two separate legal entities equally responsible for a cited violation.  20 BNA OSHC at 1086.  In C.T. Taylor, the Commission concluded that if “two entities were treated as separate employers,” then one of the employers “would avoid a degree of responsibility and penalties for the willful conduct of its handpicked foreman.”  Id. at 1087.  

1. 1. 1. 1.UHS-DE & Suncoast Have Interrelated & Integrated Safety and Health Operations 

UHS-DE and Suncoast have interrelated and integrated safety and health operations, particularly concerning the cited hazard.  All UHS-DE managed facilities follow the UHS-DE code of conduct.  (King Dep. 15-21, 36-37; Meloni Dep. 95, 132-33.)  UHS-DE trained its selected CEO for the Suncoast facility and every other one of its employees on the UHS-DE code of conduct.  (King Dep. 15-21, 36-38, 41-48; Meloni Dep. 132-33.)  UHS-DE provides management training for front-line supervisors at Suncoast.  (King Dep. 37, 41-48.)  It provided both training and education materials to Suncoast, including training and materials addressing the cited hazard.  (Tr. 119, 370, 835, 2168-69, 2579; Curl Dep. 23-24; King Dep. 13-15, 22, 36-38, 41-48.)  UHS-DE ensures that the facilities it manages, including Suncoast, comply with all applicable laws and regulations, including the OSH Act.  (Meloni Dep. 76-77; Ex. 6 at 104, ¶ 3B(6).)  Suncoast’s CEO, a UHS-DE employee, had multiple responsibilities related to preventing workplace violence, including overseeing the WVPP and training.  (Hamilton Dep. 27.)  Employees brought concerns related to the hazard to a UHS-DE’s employee.  (Tr. 514; Exs. 24-25.)

Nearly all of the abatement Respondents claim to have had in place for the cited hazard was developed by UHS-DE, and its employee, CEO Hamilton, was ultimately responsible for implementing it. (Hamilton Dep. 27, 50-51.)  Suncoast relied on UHS-DE training and educational materials about risk management in general and workplace violence specifically.  (Tr. 370, 378, 2785-86; Exs. 11, 243; King Dep. 18, 25, 31-32, 34-38, Exs. 12-13, 30.)  UHS-DE employees provided surveys of and training to Suncoast employees.  (Tr. 119, 2168-69, 2579; Curl Dep. 23-24.)  The UHS PowerPoint, which Respondents’ claim was a key component of their WVPP, is a collection of PowerPoint slides with the UHS logo on every slide.  (Ex. 11.)  None of the slides refer to Suncoast or Premier Behavioral Health.  Id.  UHS-DE decided that patient observation rounds are the way Suncoast would monitor its patients.  (Hamilton Dep. 61.)  Suncoast had to follow UHS-DE’s policy regarding solo restraints of patients.  (Tr. 777.)  UHS-DE also developed the verbal de-escalation program used at the facility.  (Tr. 2102-03, 2129.)  For restraint and seclusion training, UHS-DE required Suncoast to use either Handle With Care or a Crisis Prevention Institute training program.  (Tr. 2100, 2578-79, 3239.)  UHS-DE contracted with the vendor for the use of the Handle With Care training program at Suncoast.  Id.

Suncoast used many other UHS-DE policies related to workplace safety, including the EAR Forms, Preventing Workplace Violence PowerPoint, Employee Handbook, Milieu Management, Trauma Informed Care PowerPoint, Patient Observation Rounds PowerPoint, Verbal De-Escalation Training, the Risk Management All Staff Orientation, and the Risk Management Worksheet.  (Tr. 114, 116, 120, 127, 483, 1179, 1354, 1435, 2103-4, 2575-76, 2785-86; Exs. 11-14, 18, 56, 92, 95, 220, 231-32, 243; Hamilton Dep. 51-52, 54, 61, Exs. 6, 10; Balsamo Dep. 25; King Dep. 11, 13, 18-19, 25, 30-31; Meloni dep. 124-25; Ex. 10.)  Suncoast’s Risk Manager used data provided by UHS-DE to assess the facility’s performance.  (Tr. 2655-56, 2659, 2859-61, 2867-68; Ex. 250.)  UHS-DE set the safety benchmarks Mr. Curl used to assess risk.  (Tr. 2676-77, 2679, 2867; Ex. 250.)  

Respondents claim that Suncoast had the “option” to edit certain policies, but the documentation and testimony show that it did not make substantive edits to these documents.  (Tr. 2575-76; Exs. 10, 12-13, 21, 95; King Dep. 12; Balsamo Dep. 25-26.)  Further, the person who could choose to make the edits was typically another UHS-DE employee.  (Tr. 2570; Hamilton Dep. 50.)  For example, CEO Hamilton signed the form letter at the start of the employee handbook without making any edits.  And Suncoast’s governing board, which included multiple UHS-DE employees, approved the facility’s policies and procedures.  (Tr. 2569-70.)  

1. 1. 1. 2.Management & Ownership 

UHS-DE provides management services for Suncoast and other UHS affiliated entities, pursuant to similar management agreements UHS-DE’s legal department creates.  (Tr. 128, 218, 367, 1691-92; Meloni Dep. 25, 33-34, 36-44, 60; Hamilton Dep. Ex. 5; Ex. 92 at 19, Resp. to Int. Nos. 12-13.)  There is no evidence that Suncoast or any other UHS affiliate could select a management company other than UHS-DE.  See Altor, 23 BNA OSHC at 1464 (evaluating inter-reliance of two businesses and citing the fact that both entities always did business together).  UHS-DE administers Suncoast’s benefits, internet, and email access, contracting, purchasing, and liability.  (Tr. 1417, 2576-78; Ex. 25; Balsamo Dep. 22; Meloni Dep. 39-40, 55-57, 68-69, 76-77, 82-83; Curl Dep. 40.)  It provides information and legal services to Suncoast.  (Tr. 2950; King Dep. 13, 15; Balsamo Dep. 15; Meloni Dep. 33, 39-42; Curl Dep. 40.)  The UHS-DE legal department reviews contracts before Suncoast enters into them.  (Meloni Dep. 55-56.)  

UHS-DE pays the physicians who work at Suncoast under contract.  (Meloni Dep. 61-63, 85.)  UHS-DE employees prepare Suncoast’s annual budget, then the UHS-DE Regional Vice President and the UHS-DE operations management approve it.  (Tr. 2293, 2577; Meloni Dep. 47-48.)  UHS-DE must approve all capital improvements over $500.  (Tr. 2577-78; Hamilton Dep. 93-94.)  For projects over $5,000, UHS-DE, not Suncoast, makes the purchases from vendors directly.  (Tr. 2577-78.)  

“Upper management” of Suncoast are direct employees of UHS-DE.  (Tr. 128-29; Meloni Dep. 39; Phillips Dep. 14.)  UHS-DE is responsible for “the retention or hiring of the C-suite leadership in a given facility,” including at Suncoast.  (Tr. 128, 2293, 2297, 2568-69; Ex. 92 at 1-2; Stip. 11; Meloni Dep. 39, Ex. 6, 35-36; King Dep. 20-22, 24.)  UHS-DE is involved in the interview process for the CEO, CFO, and COO for Suncoast.  (King Dep. 21.)  It hired the CEO to manage Suncoast.  CEO Hamilton and Suncoast’s CFO and COO are paid directly by UHS-DE.  (Tr. 2569; King Dep. 21-24, Ex. 5; Meloni Dep. 61-62; Ex. 92 at 1.)  At least three high-ranking officials, including the CEO and CFO, at Suncoast were direct employees of UHS-DE.  (Tr. 128, 179, 370, 2293-97, 2568-69; Ex. 9.)  Debra K. Osteen was employed by UHS-DE as the President of the Behavioral Health Division when OSHA inspected the Suncoast worksite.  (Meloni Dep. 29-30, Ex. 35.)  At the same time, she also served as Suncoast’s President and Director.  (Meloni Dep. Ex. 35; Ex. 92 at 47.)  The CFO handles Suncoast’s financial matters and has an office at Suncoast.  (Tr. 2297; Ex. 92; Hamilton Dep. 50.)  He sits on the performance improvement and financial committees for Suncoast.  (Curl Dep. 20.)  The CEO, her supervisor, another UHS-DE employee, and the CFO all sit on Suncoast’s governing board.  (Tr. 2293-94, 2526, 2568-70; Curl Dep. 19; Hamilton Dep. 20.)  This governing board approves Suncoast’s policies and procedures.  (Tr. 2570.)  CEO Hamilton consulted with her clinical resource, Gail Leonard, another UHS-DE employee, when CEO Hamilton considered enlarging the nurses’ station in either 2017 or 2018.  (Tr. 2592-93; Sec. Br. 100-23.)

The CEO provides a monthly report to her supervisor, another UHS-DE employee.  (Tr. 2294; Hamilton Dep. 20-21, 25-27.)  At times, these reports include incidents involving patient aggression that led to staff injuries.  (Hamilton Dep. 25-27.)  

1. 1. 1. 3.Common Worksite 

UHS-DE and Suncoast share a common worksite.  Suncoast’s corporate filings list the address of its corporate offices as 367 S. Gulph Road, King of Prussia, PA.  (Meloni Dep. Ex. 35; Ex. 9 at 309.)  UHS-DE’s filings provide the same address for its corporate office.  Id.  Job listings were posted on both UHS-DE and Suncoast’s websites.  (Balsamo Dep. 49.)  Some employees applied for their jobs at the Suncoast location through UHS’s main website.  (Tr. 224-25, 371; Hamilton Dep. 39-40; Balsamo Dep. 18-19.)  All employees at UHS-DE managed facilities have an email address ending with “@uhsinc.com.”  (Tr. 1417; Meloni Dep. 72; Curl Dep. 29.)  

Respondents do not dispute that the same location in King of Prussia serves as the corporate office for both Suncoast and UHS-DE.  They only argue that OSHA sent the Citation to the worksite, not the corporate office.  (Resp’t Br. 74.)  While relevant, the location of where OSHA sent the Citation is not determinative of whether the entities shared a common worksite.  The Citation was sent to the inspection site, where both UHS-DE and Suncoast employees worked.  (Stip. 11; Tr. 1417; Ex. 92; Hamilton Dep. 50.)  

In addition to the shared King of Prussia address, both Suncoast and UHS-DE employees worked together at the inspection site.  A UHS-DE employee oversaw operations and is present at Suncoast daily.  (Tr. 1810; Hamilton Dep. 50.)  Much like the situation in C.T. Taylor, UHS-DE’s “handpicked” supervisor oversaw the work of the Suncoast employees involved with implementing the WVPP.  20 BNA OSHC at 1087.

UHS-DE and Suncoast acted as a “single employer” for purposes of the OSH Act liability.  Thus, either as a result of its direct employment of exposed workers, or as acting as a single employer with Suncoast, UHS-DE was appropriately cited, and its request to be dismissed from the Citation is denied.

1. IV.Penalty 

“Regarding penalty, ‘the judge is empowered to affirm, modify, or vacate any or all of these items, giving due consideration in his penalty assessment to ‘the size of the business of the employer . . ., the gravity of the violation, the good faith of the employer, and the history of previous violations.’ ”  Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 446 (1977) (quoting 29 U.S.C. § 666[j]).  These factors are not necessarily accorded equal weight.  J.A. Jones Constr., 15 BNA OSHC 2201, 2216 (No. 87-2059, 1993) (citation omitted).  “The gravity of the violation is the ‘principal factor in a penalty determination and is based on the number of employees exposed, duration of exposure, likelihood of injury, and precautions taken against injury.’ ”  Jim Boyd Constr., Inc., 26 BNA OSHC 1109, 1114 (No. 11-2559, 2016) (quotation omitted).

None of the other penalty factors warrant a reduction in the penalty amount.  Approximately 80-100 employees worked at the facility, with most facing at least potential exposure to the cited hazard.  (Tr. 219-21, 1501; Hamilton Dep. 24.)  Most were exposed to the hazard on a frequent basis.  (Tr. 220.)  As for good faith, Respondents’ destruction of evidence undermines arguments regarding cooperation with the OSHA investigation.  The CO also concluded that no penalty adjustment for good faith was warranted.  (Tr. 221.)  

Considering the four factors, with particular weight on the violation’s gravity and limited good faith, the Court finds $12,934 to be an appropriate penalty amount.  

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The preceding constitutes the findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

        Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

        Citation 1, Item 1 for a violation of section 5(a)(1) of the OSH Act is AFFIRMED as SERIOUS, and a penalty of $12,934 is ASSESSED.

SO ORDERED.

                                                        /s/___________________________

                                                        The Honorable Dennis L. Phillips

                                                                U.S. OSHRC Judge

Dated April 20, 2021