Issue: Group II Offense (failure to follow supervisor's instruction); Hearing Date: December 19, 2000; Decision Date: December 28, 2000; Agency Name: Department of Corrections; AHO: David J. Latham, Esq.; Case No: 5100

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

In the matter of Department of Corrections Case Number 5100

Hearing Date: December 19, 2000
Decision Issued: December 28, 2000

PROCEDURAL ISSUES

Both parties were notified by facsimile and letter of the docketed date for the hearing. On December 18, 2000, the grievant requested a postponement because she said she needed additional time to prepare for the hearing. The request for postponement was denied because the grievant had not demonstrated that she could not have been fully prepared with the application of due diligence. At the hearing, the grievant appeared to be fully prepared and presented all available evidence. The grievant did not request a continuance to present any additional testimony or evidence.

APPEARANCES

Grievant
Representative for Grievant
Representative for Agency
Assistant Warden (at the time of Written notice)
One witness for Agency

ISSUE

Was the grievant's conduct on July 31, 2000 subject to disciplinary action under Procedure Number 5-10 of the Department of Corrections Procedures Manual? If so, what was the appropriate level of disciplinary action for the conduct at issue?

FINDINGS OF FACT

The grievant filed a timely appeal from a Group II Written Notice issued on August 15, 2000 because she failed to follow a supervisor's instructions to pass medication to the mental health patients on the night shift beginning on the evening of July 31, 2000. At the second resolution step, the Assistant Warden offered to reduce the discipline to a Group I Written Notice for unsatisfactory job performance. The grievant initially accepted this offer, however, she later reneged on the agreement and refused to sign the Group I Written Notice.

The Department of Corrections (hereinafter referred to as "agency") has employed the grievant as a licensed practical nurse (LPN) since 1997. She has a total of 11 years of experience as a LPN.

During the day on July 31, 2000, the grievant's supervisor (head nurse) became aware that medication scheduled to be distributed to patients at 6:00 a.m. was often not being distributed until day shift workers came on duty after 7:00 a.m.¹. Upon reviewing records of medication administration over the preceding month, the head nurse realized that the grievant had been the LPN failing to administer medication at 6:00 a.m. Often, this failure to give medication was not discovered until three hours later making the medication distribution three hours late. The head nurse was scheduled to end her work shift at 5:00 p.m. Accordingly, she left instructions with the charge nurse to direct the grievant to administer medications at 6:00 a.m. the following morning. The charge nurse would be on duty at 7:00 p.m. when the grievant reported for work.

On July 31, 2000, the grievant was working the night shift beginning at 7:00 p.m. and ending at 7:00 a.m. on the morning of August 1, 2000. Soon after the grievant arrived at work at 7:00 p.m., the charge nurse relayed the head nurse's instructions to the grievant. At about 9:00 p.m., the grievant placed a telephone call to the head nurse at her home. The grievant was angry and yelling when she spoke to the head nurse. The grievant said that she was not going to administer the medication to the eight patients in the Mental Health unit who required psychogenic drugs². The grievant said she would not care for the mental health unit, had too much work to do and could not do it. The head nurse explained to the grievant that it was her job and responsibility and that she should administer the medication in the morning. The grievant continued to refuse and threatened to turn in her resignation. The grievant then said that she didn't care what the head nurse said, that she would not care for the mental health patients. At this point, the head nurse directed the grievant to administer the medication on schedule and to consider that a direct order. The conversation ended nonproductively when one party hung up on the other party.³

Shortly thereafter, the head nurse called the grievant. She offered suggestions to the grievant on time management so that she could accomplish all of her responsibilities including the administration of the medication. She told the grievant to wait for her in the morning so that a face-to-face meeting could take place at the end of the shift. The grievant did not ask for any help during either conversation with the head nurse. The head nurse did not offer to return to the facility because she felt that the grievant could have handled the situation with proper time management and, by utilizing the certified nursing assistant (CNA) to cover the infirmary while the grievant was in the mental health unit (located approximately 75 feet down a hallway). A CNA is not permitted to dispense medication; a LPN or registered nurse must do it⁴.

The grievant did not administer any medication to the mental health patients as she had been instructed to do. At about 7:45 a.m. on the morning of August 1, 2000, the head nurse met with the grievant and with the nursing coordinator. During the meeting, the grievant continued to obstinately refuse to administer medication. She suggested that the medication times for some patients be changed. She also apologized for yelling at the head nurse during the telephone conversation the night before.

Following the meeting, the head nurse and her direct supervisor (the nursing coordinator) discussed what had taken place. Because the grievant had failed to comply with a direct instruction from her supervisor, and because of her abusive behavior in yelling at her supervisor, they concluded that the appropriate corrective action was a Group II Written Notice for failure to follow a supervisor's instructions. After the matter was investigated and reviewed by the Assistant Warden, the Written Notice was issued on August 15, 2000. The grievant refused to sign the Written Notice, again failing to follow the instructions of her supervisor.

The grievant is considered to be a good nurse who is thorough and professional. Her performance has exceeded expectations. The grievant has not previously received any disciplinary corrective action. Based on the good record previously established by the grievant, the Assistant Warden offered to reduce the discipline from a Group II to a Group I Written Notice. As noted above, the grievant first accepted and then later rejected this offer.

The grievant was responsible on the night shift for an infirmary with 46 patients and the mental health ward with 12 patients. A certified nursing assistant was assigned to assist the grievant⁵. There was one patient in the infirmary who had a central intravenous line and was being infused with Ganciclovir (a potentially carcinogenic agent utilized in the treatment of certain types of immunocompromised patients). This IV infusion ended at 9:00 p.m. and was restarted the following morning at 6:00 a.m.

APPLICABLE LAW AND OPINION

The General Assembly enacted the Virginia Personnel Act, Va. Code § 2.1-110 et seq., establishing the procedures and policies applicable to employment within the Commonwealth. This comprehensive legislation includes procedures for hiring, promoting, compensating, discharging and training state employees.It also provides for a grievance procedure. The Act balances the need for orderly administration of state employment and personnel practices with the preservation of the employee's ability to protect his rights and to pursue legitimate grievances. These dual goals reflect a valid governmental interest in and responsibility to its employees and workplace Murray v. Stokes, 237 Va. 653, 656 (1989).

Code § 2.1-116.05(A) sets forth the Commonwealth's grievance procedure and provides, in pertinent part:

It shall be the policy of the Commonwealth, as an employer, to encourage the resolution of employee problems and complaints . . . To the extent that such concerns cannot be resolved informally, the grievance procedure shall afford an immediate and fair method for the resolution of employment disputes which may arise between state agencies and those employees who have access to the procedure under § 2.1-116.09.

In disciplinary actions, the agency must show by a preponderance of evidence that the disciplinary action was warranted and appropriate under the circumstances. Employee Grievance Procedure, Virginia Department of Employment Dispute Resolution Rules for Hearing IV (D). The following procedural due process is required before disciplinary action:

Prior to . . . any disciplinary suspension, employees must be given
1. an oral or written notice of the offense,
2. an explanation of the agency's evidence in support of the charge, and
3. a reasonable opportunity to respond. Policy No. 2.10 does not specify either the composition of the panel or the number of panelists that should be on a panel.

To establish procedures on Standards of Conduct and Performance for employees of the Commonwealth of Virginia and pursuant to §§ 2.1-114.5 and 53.1-10 of the Code of Virginia, the Department of Personnel and Training promulgated Standards of Conduct Policy No. 1.60 effective September 16, 1993. The Standards of Conduct provide a set of rules governing the professional and personal conduct and acceptable standards for work performance of employees. The Standards serve to establish a fair and objective process for correcting or treating unacceptable conduct or work performance, to distinguish between less serious and more serious actions of misconduct and to provide appropriate corrective action. Section V of the Standards of Conduct Policy provides in paragraph B.4 that inadequate or unsatisfactory job performance constitutes a Group I offense. This same Group I offense provision is promulgated in Section 5-10.15.B.4 of the Department of Corrections Procedures Manual.

In the instant case, the agency has borne the burden of proof necessary to show, by a preponderance of the evidence, that the grievant failed to follow a supervisor's instruction. In fact, the grievant readily acknowledges that that his supervisor instructed the grievant to clean the penthouse restroom and, that the grievant failed to clean that restroom before he left work for an appointment with his physician. The burden of proof now shifts to the grievant to demonstrate any mitigating circumstances.

The grievant contends that her temporary absence from the infirmary would have created a very dangerous situation that may have jeopardized lives and her license to practice as a LPN. She suggests that, by leaving the infirmary to administer the medication in the mental health unit, she would have potentially put her license in jeopardy because she was leaving the patients in the infirmary unattended except for the CNA. The CNA stated that she was uncomfortable being left alone to monitor IV medication. However, as noted earlier, proper time management could have avoided this situation if the grievant had administered the mental health unit medication prior to initiating the IV infusion at 6:00 a.m. In any case, the grievant had brought this situation to the attention of the head nurse. When the head nurse directed the grievant to administer the mental health medication, the head nurse knew that the only staff person left in the infirmary would be the CNA. Thus, the head nurse had assumed responsibility for the situation. If there had been any repercussions, it would have been the head nurse who was responsible and in danger of losing her license, not the grievant.

In support of this argument, the grievant cites certain Virginia regulations (Exhibit 8) that govern the delegation of nursing tasks. These regulations address the delegation of "tasks and procedures." In this case, the grievant did not need to delegate any specific tasks or procedures to the CNA. She had only to tell the CNA to notify the grievant if any problem should arise while she went to the mental health unit. Such a responsibility could certainly have been delegated to the CNA no matter how little experience she may have had. The grievant also asserts that the head nurse had said that a LPN is to be in the infirmary at all times. The head nurse's testimony is that a LPN should always be in the infirmary unless there is someone else there to cover for the LPN, such as another LPN or a CNA.

At the meeting with the head nurse on August 1, 2000, the grievant made a suggestion as to how medication could be dispensed to Mental Health patients when there is a staff shortage. The head nurse studied that recommendation and found that some changes could, indeed, be made. This commendable and constructive suggestion from the grievant occurred, however, after the incident that precipitated the Written Notice.

The grievant contends that her understanding was that whenever the night shift was short of nurses, the customary practice was that day shift people would administer medication to the Mental Health unit. The head nurse's testimony was that if a LPN is totally alone on the night shift, it is permissible for medication administration to be left for the day shift. However, in this case, a CNA was assisting the grievant. She could have covered for the grievant in the infirmary while the grievant was in the mental health unit administering medication.

The grievant also raised as a defense the fact that one patient in the infirmary had an intravenous infusion running. The credible testimony of the head nurse (unrebutted by the grievant) is that the IV was a central intravenous line that had been sutured in place by a physician. With this type of line, there are virtually no problems that can occur during infusion. In any case, the IV infusion was not being administered between 9:00 p.m. and 6:00 a.m. Thus, the grievant had an opportunity between 5:00 a.m. and 6:00 a.m. to administer medication to the mental health patients and return in ample time to monitor the IV infusion.

The grievant argues that any discipline other than counseling is inappropriate in this case because others have done the same thing and not received such discipline. By the "same thing" the grievant is referring to failure to distribute medication on the night shift. The Written Notice was not given to the grievant merely because the medication was not distributed on her shift; it was given to her because she refused to obey a direct instruction from her supervisor. While the grievant may have disagreed with that instruction, she had an obligation to carry out the instruction and then express her disagreement in an appropriate manner at a later time.

It is this issue that is at the heart of this case. Failing to do something because of a misunderstanding or because it is customarily not done is a problem that must be corrected, and counseling may well be the appropriate remedy in such situations. However, refusing to carry out a specific, reasonable and direct instruction from a supervisor is a far more serious offense. After one has apprised her supervisor of the situation, and the supervisor gives an instruction, the liability for that instruction shifts to the supervisor. The person receiving the instruction should carry it out unless it is plainly illegal, immoral or unsafe; in this case, the instruction was legal, moral and safe. The person who refuses to follow direct, reasonable instructions does so at her own peril.

The grievant has alleged that there has been retaliation since she filed her grievance. She contends that she has been given night shifts more often than others, that she has received less overtime than others have and that her paycheck of December 15, 2000 was not delivered to her on time. The allegations of disparate treatment regarding night shifts and overtime were not substantiated with any written evidence. The late paycheck appears, even by the grievant's own acknowledgement, to have been simply a one-time occurrence unconnected with the grievance situation. Even though there is insufficient evidence of any disparate treatment, the agency is encouraged to review these allegations and assure that night shifts and overtime are assigned according to established agency policy.

In summary, the agency has borne the burden of proof to show by a preponderance of the evidence either that the grievant refused to follow the direct and specific instructions of her supervisor. The grievant has not demonstrated sufficient mitigation to overcome her misconduct.

DECISION

The disciplinary action of the agency is affirmed.

The Group II Written Notice issued to the grievant on August 15, 2000 is upheld and will remain in the grievant's personnel file.

APPEAL RIGHTS

As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more detail, this hearing decision is subject to administrative and judicial review. Once the administrative review phase has concluded, the hearing decision becomes final and is subject to judicial review.

Administrative Review

This decision is subject to four types of administrative review, depending upon the nature of the alleged defect of the decision:

1. A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
2. A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management. This request must cite to a particular mandate in state or agency policy. The Director's authority is limited to ordering the hearing officer to revise the decision to conform it to written policy.
3. A challenge that the hearing decision does not comply with grievance procedure is made to the Director of EDR. This request must state the specific requirement of the grievance procedure with which the hearing decision is not in compliance. The Director's authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure.
4. In grievances arising out of the Department of Mental Health, Mental Retardation and Substance Abuse Services which challenge allegations of patient abuse, a challenge that a hearing decision is inconsistent with law may be made to the Director of EDR. The party challenging the hearing decision must cite to the specific error of law in the hearing decision. The Director's authority is limited to ordering the hearing officer to revise the decision so that it is consistent with law.

A party may make more than one type of request for review. All requests for review must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision. (Note: the 10-day period, in which the appeal must occur, begins with the date of issuance of the decision, not receipt of the decision. However, the date the decision is rendered does not count as one of the 10 days; the day following the issuance of the decision is the first of the 10 days). A copy of each appeal must be provided to the other party.

A hearing officer's original decision becomes a final hearing decision, with no further possibility of an administrative review, when:

1. The 10 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or,
2. All timely requests for administrative review have been decided and, if ordered by EDR or HRM, the hearing officer has issued a revised decision.

Judicial Review of Final Hearing Decision

Within thirty days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. The agency shall request and receive prior approval of the Director before filing a notice of appeal.

David J. Latham, Esq.
Hearing Officer