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Fuchs v. Riverbend Assisted Living

Court of Appeals of Indiana

August 24, 2016

Brian Fuchs, Appellant-Respondent,
v.
Riverbend Assisted Living, Appellee-Petitioner.

         Appeal from the Clark Circuit Court The Honorable William Dawkins, Magistrate Trial Court Cause No. 10C02-1512-PO-555

          ATTORNEYS FOR APPELLANT A. David Hutson Natalie N. Short Hutson Legal Jeffersonville, Indiana.

          ATTORNEYS FOR APPELLEE Lucy R. Dollens Jacob V. Bradley Quarles & Brady, LLP Indianapolis, Indiana.

          BARNES, JUDGE.

         Case Summary

         [1] Brian Fuchs appeals the trial court's issuance of three workplace violence restraining orders on behalf of employees of Riverbend Assisted Living ("Riverbend"). We affirm.

         Issues

         [2] Fuchs raises three issues, which we consolidate and restate as whether the trial court properly issued the workplace violence restraining orders.

         Facts

         [3] Riverbend is an assisted living facility in Jeffersonville. Beginning in June 2014, Fuchs's mother was a resident at the facility. Fuchs's mother had appointed Fuchs and Cherie May as her co-attorneys in fact.

         [4] Alexa Wheeler is the executive director of Riverbend, and she oversees the operations of the facility. On February 16, 2015, Wheeler learned that Fuchs was upset and wanted to talk to her. Wheeler called Fuchs, and he was very upset and angry that his mother was missing a box of Q-tips. In the beginning of April, Wheeler received another phone call from Fuchs. He was "extremely upset" that his mother had not received a shower. Tr. p. 40. He was "screaming at the top of his lungs, " and he would not stop screaming. Id. For the first time in her twenty-five years as an executive director, Wheeler had to hang up on a resident's family member. Fuchs called back a few minutes later and asked for the phone number of Wheeler's supervisor, which she gave to him. On August 3, 2015, Fuchs called Wheeler at 11:15 p.m. while she was asleep. Fuchs "was screaming and hollering" about his mother not getting a pain pill from Melissa Gahl, a certified nursing assistant, in a timely manner. Id. at 43. Fuchs threatened to "come up and take care of it." Id. at 66. In early August 2015, Wheeler was also approached by a resident, who asked that Fuchs not be allowed in the dining room because he was "interrogating them" about a resident counsel meeting. Id. at 49. Wheeler spoke to Fuchs and reminded him that he was not supposed to talk to other residents and family members and upset them. Fuchs got six inches from Wheeler's face, screamed, "B**ch, " and walked away. Id. at 49. Fuchs's face was "blood red, " and Wheeler thought he was going to push her. Id. at 50. According to Wheeler, four long-term employees of Riverbend have threatened to leave their employment because of Fuchs's behavior.

         [5] Carrie Smith is a qualified medication assistant at Riverbend, and her job requires her to pass medications to residents and help them with their showers, laundry, and daily living activities. On July 29, 2015, Fuchs's mother asked Smith for a food tray in her room. Smith told Fuchs's mother that there would be a charge for the tray, and Fuchs's mother got "quite upset." Id. at 29. That evening, Fuchs started "yelling, saying, this is bulls**t, I'm calling the Vice President." Id. at 30. Fuchs was "towering" over Smith and was in her personal space, and Smith told Fuchs to stop yelling and that she was just following the policy. Id. at 31. Fuchs "just kept screaming and yelling, " and "there was no calming him down." Id. Smith walked out of the room and walked away. She was "[v]ery intimidated" by Fuchs and was "scared." Id. at 32. Smith now avoids Fuchs and goes the other way when she sees him because she is afraid.

         [6] Angela Rice is the business office director at Riverbend. On August 4, 2015, Fuchs came to Rice's office and demanded that she stop an automatic deduction that was being used to pay his mother's bill. Rather than sit in a chair in front of Rice's desk, Fuchs came around Rice's desk and was "literally, right on top of [her]" and "towering" over her. Id. at 18. Fuchs bumped Rice's chair and arm, and she had to move out of his way. Fuchs was irate, and Rice was afraid of him. She was backed into a corner and could not get away from him. Rice felt intimidated and like she was in danger.

         [7] In August 2015, Riverbend's counsel sent Fuchs a letter informing him that he was no longer permitted at the facility except "for the purpose of removing [his] mother from the facility for visits within the facility's normal visiting hours . . . ." Appellee's Supplemental App. p. 10. On September 10, 2015, Riverbend personnel had an informal meeting with Fuchs. They met with the ombudsman for over two hours, but the issues were not resolved. Riverbend then filed a petition with the Indiana State Department of Health to involuntarily transfer Fuchs's mother. After a hearing, an administrative law judge determined, on November 4, 2015, that Riverbend had met its burden to "show that the Facility staff and other Facility residents are endangered by Resident A's POA, Fuchs." Id. at 11. However, the Facility failed to demonstrate that "the Resident's medical record has been documented, that a discharge location has been identified, and that a discharge planning meeting has been held as required." Id. at 12. Consequently, the ALJ denied Riverbend's transfer request. The ALJ, however, suggested an alternative option of seeking a workplace violence restraining order under Indiana Code Chapter 34-26-6 to protect Riverbend's employees.

         [8] On December 17, 2015, Riverbend filed petitions for workplace violence restraining orders against Fuchs on behalf of four employees, Wheeler, Rice, Smith, and Gahl. On December 29, 2015, Fuchs approached another employee, Sonja Lewis, as she was taking the trash outside and started screaming at her. ...


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