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.
Brian Fuchs appeals the trial court's issuance of three
workplace violence restraining orders on behalf of employees
of Riverbend Assisted Living ("Riverbend"). We
Fuchs raises three issues, which we consolidate and restate
as whether the trial court properly issued the workplace
violence restraining orders.
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.
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
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.
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.
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.
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.