Iowa judge: Spit and chewing tobacco led to ‘intolerable’ work environment

An Iowa man who quit his job due to the tobacco and saliva his co-workers spat on the floor has been awarded unemployment benefits.

Jeffrey Esaias resigned in late May from Novae Corp., a trailer manufacturing company with locations in Clarinda and Red Oak. Esaias had worked for the company since 2018, most recently on the welding floor.

State records indicate that although a company policy enacted in 2017 barred workers from spitting on the floor, some of the employees – particularly those who chewed tobacco at work — continued the practice.

According to state records, Esaias complained to a supervisor about the situation, saying he would often get his co-workers' saliva on him when he had to get on the floor, underneath equipment that was being worked on. He also complained about poor ventilation related to welders' smoke. When nothing changed, he complained again, warning his boss that he was considering quitting over the issue.

On May 29, Esaias told his boss he was resigning, effective in two weeks. The company then challenged Esaias' claim for unemployment benefits, which led to a hearing on Aug. 31.

Administrative Law Judge Alexis Rowe recently ruled against the company and awarded Esaias unemployment benefits, noting that the company had failed to respond to Esaias' complaints about the air quality and his co-workers' saliva.

Both issues “presented significant concerns" for employees' health and safety, Rowe found. “With the onset of COVID-19 in 2020, the failure to curb the practice of spitting chewing tobacco on the floor presented renewed safety concerns," Rowe stated, adding that the “saliva on the floor created an intolerable work environment."

Among the other Iowans whose requests for unemployment benefits recently went before a judge:

Helen Misiker, who was terminated from the Northwest Iowa Hospital Corp., after working for one year as a full-time certified pharmacy technician without having passed the Pharmacy Technician Certification Board exam for licensing. By law, the hospital was not permitted to employ her for more than one year with no license. Misiker took the exam twice while employed by the hospital and did not pass the exam. She was awarded unemployment, with a judge ruling that while the hospital could not legally continue to employ her, “failure to pass an exam is not considered misconduct."

Nathan Jackson, who began working at the Hilton Garden Inn in Iowa City in 2017. In December 2019, a an individual reportedly told a Hilton Garden Inn supervisor that an employee of the inn was selling illegal drugs, and also alleged that Jackson was buying and using drugs at work. At around that same time, a customer fell at the inn, which resulted in a review of security-camera video from inside the establishment. During that review, the supervisor saw Jackson and another employee go into an elevator-service closet several times. A security camera was then installed inside the closet, which produced video footage allegedly showing Jackson entering the room, taking a baggie containing white powder from his pocket, pouring the powder onto a flat surface and chopping it into lines, and then using a straw to snort the white powder up his nose. In February 2020, the supervisor called Jackson into an office and allegedly showed him screenshots of the video. Jackson reportedly did not deny using illegal drugs at work, and instead encouraged the supervisor to terminate other workers he claimed were using drugs at work. Jackson was fired at that time, but it wasn't until March 2021 that he filed for unemployment, leading to a recent hearing and a decision denying his claim.

An unidentified licensed practical nurse, working for an unidentified Iowa company, who resigned in March from her job caring for dependent adults. She resigned after witnessing another employee engage in unspecified conduct that violated the employer's policy on the physical abuse of residents. She reported the incident to a manager, as required by law, but the manager allegedly asked her to “turn a blind eye" to the matter. She then went to her boss and reported the matter. The next day, however, the same employee was at work and was working directly with the resident who had been victimized. When the nurse who reported the matter returned from a brief vacation days later, she was fired without explanation by her employer. The Iowa Workforce Development judge who heard the case has opted to keep confidential the names of the fired worker, as well as the employer, citing a “conflict" between laws that guarantee public access to unemployment-case information and laws that prohibit the disclosure of information pertaining to acts of abuse. (Acts of abuse are often publicly disclosed in police records, criminal court records and civil court records.)

Emily Lamoureux, who was employed as a nursing assistant at a nursing home run by Care Initiatives from August 2020 until December 2020 when she was fired. Lamoureux's employer claimed she gave a resident an ice cream bowl to drink water from at a time when glasses and bottled water were readily available. The incident allegedly prompted the resident to complain that he or she was “not a dog" and was paying $6,000 a month to reside in the facility. Lamoureux was also accused of the calling a resident “stupid" during that same shift – a comment that was reportedly heard by both the resident and another worker at the home. Lamoureux denied the allegations. She was awarded benefits, with the judge in the case noting that Care Initiatives provided no evidence or testimony to rebut her denials.

Artema Gray, who in April was fired from her job as city clerk for Silver City. According to state records, the state conducted “a periodic examination" of the city's finances last fall and an auditor then raised questions about apparent discrepancies between Gray's timesheets and payroll records, and about charges made to the city's credit card that did not appear to be work related. In April, the city asked Gray to turn in her laptop and keys, adding that she could either resign or she would be discharged. She chose to resign. She was awarded unemployment benefits, with the judge in the case noting she was effectively fired for issues that occurred prior to October 2020, and which her employer became aware of in February 2021. The misconduct that led to Gray's discharge “was no longer a current act" when she was fired in April, the judge found.

Iowa Capital Dispatch is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Iowa Capital Dispatch maintains editorial independence. Contact Editor Kathie Obradovich for questions: info@iowacapitaldispatch.com. Follow Iowa Capital Dispatch on Facebook and Twitter.

Secrecy surrounding physician’s alleged incompetence now at issue in court case

The secrecy surrounding a state licensing board's investigation of a Waterloo surgeon twice accused of incompetence is now the subject of litigation headed for the Iowa Supreme Court.
At issue is the fact that patients who sue for malpractice have no way of knowing whether their doctor is the subject of an active, ongoing investigation by the Iowa Board of Medicine. And while the board might eventually take public action against the doctor, the process may take five or 10 years – long after the patients have had their day in court. In many cases, the board only discloses concerns about a physician once it has negotiated a settlement to a formal set of charges.

In the case at hand, a patient who sued his surgeon for malpractice lost at trial, but just five weeks later the board publicly accused the doctor of incompetent patient care dating back 10 years. Prior to the trial, the doctor's lawyers had claimed their client never had been the subject of a board investigation.

The case involves Dr. Eromosele Otoadese, a 68-year-old physician who practices vascular medicine in Waterloo. Earlier this month, Otoadese entered into a settlement agreement with the Board of Medicine, which accused him of professional incompetence. The board alleged Otoadese performed a carotid endarterectomy – a surgical procedure to remove a build-up of fatty deposits in an artery – without properly monitoring the patient for electrical activity in the brain.

Details about the patient have not been made public by the board, but in 2016, William McGrew of Waterloo sued Otoadese and the Northern Iowa Cardiovacular and Thoracic Surgery Clinic. McGrew alleged that in September 2014, Otoadese improperly performed a carotid endarterectomy on him, leaving him with facial droop and weakness on his left side, which indicated he had suffered a stroke. Two other doctors later concluded that operation and a subsequent attempt at corrective surgery were not warranted, the lawsuit claimed.

Otoadese denied any wrongdoing, and a jury sided with Otoadese and the other defendants in the case.

Board discloses settlement five weeks after trial

But in April 2019, just five weeks after the jury had returned its verdict, the Board of Medicine reported that it had entered into a settlement agreement with Otoadese over previously undisclosed concerns that he failed to provide appropriate medical care to five unspecified Waterloo patients between 2009 and 2014.

As part of that 2019 settlement, Otoadese was given a citation and warning and ordered to pay a $5,000 civil penalty. He was also ordered to complete a comprehensive clinical competency evaluation and was placed probation for a period of three years, subject to board monitoring.

Armed with that information, McGrew's lawyers sought a new trial, asserting that Otoadese's attorneys had falsely stated their client had not been the subject of any board investigations. They also argued that they should have been allowed to question Otoadese at trial regarding his loss of privileges to perform certain surgeries, as well as his termination from Cedar Valley Medical Specialists in 2012.

Otoadese's lawyers told the court the failure to disclose the board investigation was a mistake on their part, and that the information about Cedar Valley would have raised “collateral issues that would have been a waste of the court and jury's time and created suspicions, doubts, and potential hostilities towards Dr. Otoadese."

Judge denies request for new trial

In May, District Court Judge Kellyann Lekar denied McGrew's request for a new trial, ruling that Otoadese's loss of privileges “was not relevant to the issues to be decided by the jury in the present case and, further, even if relevant, had prejudicial effect that far exceeded any probative value that that evidence might provide."

As for the failure to disclose the board investigation to McGrew's lawyers, Lekar ruled that “a pending investigation is not proof of wrongdoing." She added that under Iowa court rules, information about a pending investigation would not have been admissible anyway, and couldn't even be used on cross-examination to impeach Otoadese's credibility.

McGrew is now appealing that ruling to the Iowa Supreme Court.

District court records indicate that Otoadese testified in a deposition that in 2008 or 2009 he had “voluntarily" surrendered his privileges to perform heart surgery at Allen Memorial Hospital, then sued the hospital, resulting in a confidential settlement. Otoadese's lawyers argued in court that Otoadese considered the actions taken against him at Allen Memorial Hospital to be “political" in nature, and that the cessation of his performance of open heart surgery had been “negotiated."

The records also indicate that in 2012, Otoadese was fired from Cedar Valley Medical Specialists, and that in a subsequent deposition Otoadese testified he had been “kicked out" of CVMS because the clinic was not able to secure insurance to cover his practice. In 2013, Otoadese opened Northern Iowa Cardiovascular and Thoracic Surgery Clinic.

In its recent settlement with Otoadese, the Board of Medicine said it had received information indicating Otoadese's privileges to perform certain peripheral arterial procedures had been “summarily suspended" at an unspecified hospital due to improper documentation practices with respect to eight patients.

Under the terms of his new settlement agreement with the board, Otoadese has been issued another citation and warning and ordered to pay a $2,000 civil penalty. He has also agreed that he will no longer perform peripheral arterial procedures in Iowa.

Otoadese did not respond to calls Wednesday from the Iowa Capital Dispatch.

Iowa Capital Dispatch is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Iowa Capital Dispatch maintains editorial independence. Contact Editor Kathie Obradovich for questions: info@iowacapitaldispatch.com. Follow Iowa Capital Dispatch on Facebook and Twitter.

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