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Perez v. Fayad

United States District Court, D. Massachusetts

March 31, 2015

THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor, Plaintiff,

For United States Department of Labor, also known as, Labor, U.S. Department of, Plaintiff: David L. Baskin, Kelly M. Lawson, LEAD ATTORNEYS, Nathan P. Goldstein, U.S. Department of Labor, Boston, MA.

For Terri Fayad, D.M.D. P.C., N. Terry Fayad, Defendants: James M. Hlawek, LEAD ATTORNEY, Seyfarth Shaw, Boston, MA; Kerry M. Mohan, LEAD ATTORNEY, PRO HAC VICE, Seyfarth Shaw LLP, Chicago, IL.

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George A. O'Toole, Jr., United States District Judge.

This action, brought by the Secretary of Labor under section 11(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et. seq., was heard on a bench trial before this Court. The parties subsequently filed proposed findings of fact and conclusions of law. Having reviewed those proposals and the evidence at trial, I find and decide as follows.

I. Findings of Fact

I make the following findings of fact:

Defendant Dr. N. Terry Fayad, D.M.D., P.C. operated a dental practice in Beverly, Massachusetts. Defendant Dr. N. Terry Fayad, D.M.D, as an individual, owns, operates, and leads the practice. Fayad's wife, Laura Mancini, was the office manager for the practice. Mancini had the authority to discipline, hire, and fire employees.

In 2010, the defendants also employed two hygienists, Robyn Demand and Michele Philips, and one dental assistant, complainant Rhonda Healey. Demand left her employment with the defendants in 2011. Philips remained employed by the defendants at the time of trial.

As a dental assistant, Healey's duties included preparing operatories, breaking down and handling used instruments, sterilizing instruments, and cleaning up certain items, including sharps such as needles, after completion of dental treatments. At the office she had primary responsibility for disposing of used, contaminated needles. Fayad supervised the clinical-related work; Mancini supervised the administrative part of Healey's work. Fayad and Mancini felt Healey was good at her job. They had an excellent relationship with Healey and testified that they all were like family. When Healey began working for the practice in 2002, she was paid $20 an hour. By November 2010, she was being paid $27 an hour. Healey participated in a profit sharing plan while she was employed by the defendants.

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During her employment, Healey often assisted Fayad one-on-one with his various dental procedures. These procedures often required the use of anesthetic needles, for which precautions were implemented to avoid risk of exposure after contamination. One end of the needle was inserted into a carpule, a small glass cylinder containing anesthetic solution for patient procedures; the other end of the needle was placed into a patient's gum tissue during the procedure. After the needle was used, a plastic cap would be placed on the patient end of the needle. The contaminated needle would then be removed from the carpule and discarded in a dedicated sharps disposal container. Needle removal requires turning, pulling, and other manipulation of a contaminated needle. Fayad acknowledged that it was standard protocol in the dental industry to discard the contaminated needle in the sharps container with the cap still on.

Until October 2010, the practice had a policy of disposing of the contaminated needle without the carpule but with the cap still attached. This disposal method created more waste in the sharps container than it would if needles were discarded without the caps. In October 2010, Fayad decided to change the policy in order to decrease the rate at which the sharps containers were filled and therefore needed to be emptied. This was a purely practical decision; it had no medical purpose. Fayad developed one or more methods of removing the cap from the contaminated needle using hemostats (tong-or forceps-like instruments) so that only the needle was discarded in the sharps container. He demonstrated the method(s) to his staff.

Healey returned to work from a brief maternity leave on November 15, 2010. Fayad and Mancini were pleased to have her back. That day, Fayad demonstrated to Healey the new needle disposal method he had developed. Healey understood that she was supposed to use her hands to manipulate the needle, without a hemostat, although Fayad denies that he taught her this way. In the past, Fayad and Healey had used their hands when doing the standard protocol for needle disposal (disposing with a cap). Healey did not communicate to Fayad any discomfort or objection to the new method at that time or during the two following days, November 16 and 17. However, she expressed concern to Demand about its safety. She also did not follow the new procedure but continued discarding needles with caps as she had previously done. On the evening of November 17, Fayad and Mancini discovered that someone had been discarding needles with caps and suspected it was Healey.

On the morning of Thursday, November 18, Fayad asked Healey whether she had been following the new method. She told him that she had not because she felt uncomfortable about it. Fayad said that the needles in the sharps containers had to be uncapped. Healey interpreted this to mean that not only must she uncap contaminated needles moving forward, but she must also reach into the sharps containers and uncap those that were already discarded. Fayad did not understand this was her interpretation and has been adamant that he would never ask her to reach into a sharps container.

Fayad suggested that they should speak with Mancini about her concerns. When Healey told Mancini that she was uncomfortable handling the needles, Mancini responded that it was part of Healey's job.

The evidence is conflicting about the details of the conversation between Healey and Mancini, but I find that Healey left the office after the conversation that morning without notice to either Fayad or Mancini. Fayad and ...

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