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District of Columbia Fire and Medical Services Dep't v. District of Columbia Office of Employee Appeals

January 7, 2010


Appeal from the Superior Court of the District of Columbia (CAP7027-07) (Hon. Odessa F. Vincent, Trial Judge).

The opinion of the court was delivered by: Pryor, Senior Judge

Argued October 28, 2009

Before WASHINGTON, Chief Judge, REID, Associate Judge, and PRYOR, Senior Judge.

Appellant, District of Columbia Fire and Emergency Medical Services Department (FEMS), appeals the Superior Court order upholding the administrative decision of appellee, District of Columbia Office of Employee Appeals (OEA), which reversed the termination of the employment of Selena Walker, an employee of FEMS, on the basis of the timeliness of the removal action, as prescribed by D.C. Code § 5-1031 (a) (2001). Appellant contends the final administrative decision rendered by OEA misconstrued the statute, which governs disciplinary action taken against police, firefighters, and emergency medical service personnel; it also contends that the underlying findings and conclusions are unsupported by substantial evidence. Being unpersuaded by these challenges, we affirm.


At about 9:20 p.m. on January 6, 2006, a resident of the 3800 block of Gramercy Street, Northwest called 911 to report an unknown man in distress, lying on the sidewalk. Fire Department engine 20 (E-20) and a Metropolitan Police Department (MPD) unit responded during the ensuing half-hour, examining and treating the man, David Rosenbaum. Rosenbaum was incoherent and had been vomiting. Within minutes, a Fire and Emergency Medical Services (FEMS) ambulance (A-18) arrived on the scene. FEMS A-18's crew consisted of emergency medical technician and crew leader Selena Walker, who drove, and firefighter and crewmember Michael Deems. When Walker and Deems arrived at Gramercy Street, firefighters told them that their diagnosis was "ETOH," alcohol intoxication. Rosenbaum was put on a stretcher and placed in the ambulance. Walker returned to the driver's seat and did not examine Rosenbaum. Deems examined him and classified him as transport priority 3, "stable." With Walker driving and upon Walker's decision, Rosenbaum was transported to Howard University Hospital, even though Sibley Hospital was closer to the scene. The ambulance arrived at Howard at 10:18 p.m. Howard medical personnel discovered that Rosenbaum had a critical head injury. Rosenbaum died two days later. An autopsy determined the manner of death to be homicide and the cause to be blunt-impact trauma.

Within hours of Rosenbaum's arrival at Howard, in the early hours of January 7, 2006, supervisors directed Walker home on "administrative leave" and reassigned Deems to a fire engine. Both were instructed to submit written statements on the Rosenbaum call. In her January 7 statement, Walker wrote, "The report from E-20 was ETOH no other information was obtained from E-20. . . . I . . . transported the patient as a priority 3 to Howard University Hospital based on my partners findings." Later that morning, she was told that the patient should have been classified priority 1, "unstable," because of a hematoma and dilated, nonreactive pupils. On January 10, 2006, Walker was required to submit a second written statement. She wrote that she and Deems were "both basic EMTs with the same level of training" and that "[t]here was no particular reason for transporting to Howard rather than Sibley." On January 11, 2006, she submitted a third statement. "Based on the reports given by both E-20 and their F/F-EMT and my partner F/F-EMT Deems following their assessments," she wrote, "the patient was deemed a low priority and by protocol the patient was transported to Howard University Hospital."

Fire chief Adrian Thompson issued a public statement January 11, 2006, to announce that a "review of the incidents and circumstances" of FEMS' response to the Rosenbaum call was "complete." He stated: "Our operational review indicates that appropriate measures were taken and EMS providers met all standards of care as outlined in our protocols."

On January 18, 2006, a specially convened FEMS panel of leaders interviewed Walker, Deems, and four firefighters who had been at the scene. Walker was accompanied by a union representative. A memorandum labeled "Confidential Prepared in Anticipation of Litigation" reports the substance of these interviews. The panel interviewed Walker once, then Deems, then Walker a second time. The memorandum reveals that in her first interview, Walker said that on reaching Gramercy Street, "I asked myself: they sent us all the way over here for ETOH?" She denied any involvement in assessing or caring for Rosenbaum at any time. She said that Deems, of whose EMT certification level she was "not sure," had assessed Rosenbaum as priority 3. "When asked why she chose" Howard, "EMT-A Walker stated variously 'I don't know,' and 'I don't remember.'" Deems gave a different version of events:

FF/EMT-B Deems states that [while at the scene,] he told [an] MPD Officer that they were going to Sibley Hospital, as it was closest. He states that EMT-A Walker then said: "No, we are going to Howard."

When questioned further by the interviewers . . . FF/EMT-B Deems states: "Look you want to know the truth? She [EMT-A Walker] told me before we reached the scene that 'We're going to transport this patient to Howard,' because she needed to run her errands in that neighborhood, including going to the ATM and going by her house." He states that he ultimately deferred to EMT-A Walker on this issue because: "She was the ACIC [Ambulance Crewperson in Charge] and she has higher medical certification than me." . . . Asked if he believed at the time that patient care would be compromised by transporting the patient to Howard rather than Sibley or some other closer facility, he stated: "No."

Deems added that it was Walker who "assigned" the "final transport code" of priority 3 to Rosenbaum and that after leaving Howard, Walker drove A-18 to her home, "where her child 'came down and gave her some medicine while we waited outside.'" In her follow-up interview, Walker stated that she "probably" went to an ATM after Howard and "d[id]n't recall" going to any other destination.

On January 18, 2006, Mayor Anthony Williams announced the initiation of a "top to bottom review of this incident," supervised by the city administrator. The administrator asked the District of Columbia Office of the Inspector General (OIG) to determine, inter alia, whether FEMS employees followed rules, policies, protocols, and procedures, and whether Walker and Deems chose an appropriate hospital. Over the next five months, an OIG-appointed investigative team reviewed policies, rules, records, and reports and interviewed personnel who had participated in Rosenbaum's evaluation, care, and autopsy. On June 15, 2006, the OIG released its report. It found, inter alia, that the "highest-trained EMT" was "not in charge of [the] patient," that an "[i]ncorrect clinical priority" was assigned, that a "thorough patient assessment was not conducted," and that the decision to go to Howard "was not based on FEMS protocol."*fn1

The review determined that Walker chose Howard for "personal reasons." Moreover, the team found that Walker's decision "delayed the emergency hospital care that would have been available minutes earlier." Walker told OIG investigators that EMTs "can go where [they] want to go" with patients. "When asked if she wanted to go to Howard," she "initially said 'No,' then changed her answer to 'Yes' and said she knew the way to Howard from Gramercy Street." Walker also ...

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