JAMES E. MARLEAU, Petitioner
MAINE STATE BOARD OF NURSING, Respondent.
ORDER ON 80C APPEAL
Jeyce A. Wheeler Justice, Superior Court
Before the court is petitioner's Rule 80C appeal of a decision of the State Board of Nursing ("the Board"). The Board imposed a warning, a three-year probationary period, and costs of the hearing on petitioner as discipline for unprofessional conduct. For the following reasons, the Board's decision is affirmed.
Petitioner James Marleau has been a registered nurse since September 2011. (R. at 14.) In March 2012, Marleau began working at Marshall Health Care-a long-term care facility for the elderly (R. at 15.) At Marshall, Marleau was allegedly involved in two incidents with patients for which he was disciplined by the Board. (R. at 15.) The relevant facts for each incident are described below. The patients are identified by their initials as "CT" and "MV".
Patient CT had cognitive impairments, and according to Marleau she was "sexually aggressive." (R. at 18.) Marleau testified that on multiple occasions CT attempted to grab his penis. (R. at 17.) CT's patient care plan included a note that CT "likes male attention." (R. at 17.) Marleau interpreted this to mean that she had a baseline behavior of sexual inappropriateness towards male staff. (R. at 17.) Susan Weaver, a certified nursing assistant ("CNA") at Marshall confirmed that CT had a history of acting sexually towards males. (R. at 26.)
Weaver testified about an interaction with CT on November 7, 2012. (R. at 26.) On that day, Weaver told CT that she would go get the charge nurse because CT had a headache. (R. at 26.) After learning that Marleau was the charge nurse, CT became upset and told Weaver that she did not want him brought to her room. (R. at 26.) CT went on to state that Marleau had previously entered her room and fondled himself in front of her. (R. at 26.) Weaver did not personally witness any inappropriate behavior between CT and Marleau. Marleau denies that anything inappropriate occurred.
Patient MV was blind and also had cognitive impairments. (R. at 15.) According to Josee McFarlane, another nurse who worked at Marshall, MV was in a wheelchair and would often feel for people with her hands because she could not see. (R. at 27.) According to the testimony of the staff at Marshall, including Marleau, MV was generally not sexually aggressive or inappropriate with staff. (R. at 19, 28, 29, 32.)
On November 8, 2012, Marleau was involved in an incident with MV. According to McFarlane, Marleau was standing at a cart preparing medications for another patient when MV came up behind Marleau sweeping her arms back and forth. (R. at 28.) When she reached Marleau, she hung on to him. (R. at 28.) McFarlane observed this and removed MV from Marleau and locked MV's wheelchair so she could not bother Marleau again. (R. at 28.) Somehow, MV's wheelchair became unlocked because a little while later, McFarlane noticed that she was again grabbing Marleau. (R. at 28.) As McFarlane was removing MV for the second time, Marleau made a comment that "she was at the right height." (R. at 28.) McFarlane interpreted Marleau's statement as an offensive sexual remark. (R. at 28.)
Becky Sue Guptill, a housekeeper at Marshall, also testified about the incident. She said she observed MV wheel up behind Marleau and put her hand up the back of his shirt. (R. at 29.) She overheard Marleau say, "look, she's coming around the front." (R. at 29.) Marleau then turned around to face MV and started running his fingers through her hair "in kind of a Mohawk fashion" and Marleau said "she's at the right height now." (R. at 29.) Guptill interpreted Marleau's actions as very inappropriate and sexual behavior and that his comment was demeaning. (R. at 29.)
Shannon Todd, Director of Nursing at Marshall at the time, testified about the subsequent investigation of the incident. As part of the investigation, he interviewed Marleau. (R. at 31.) During the interview, Todd testified that Marleau admitted that his comment was sexually inappropriate. (R. at 31.)
According to Marleau, he was fixing MV's hair because it was disheveled. (R. at 22.) The second time MV grabbed him, Marleau testified that she went for the drawstring on his pants. (R. at 22.) Marleau claims that when he said "she's at the right height" he meant that she was at the right height to touch his genitalia. When he told Todd that "it was sexually ...