Hearing Date: February 27, 2001
Decision Issued: March 19, 2001

PROCEDURAL HISTORY

On October 5, 2000, Grievant was issued a Group III Written Notice of disciplinary action with termination for:

On October 17, 2000, Grievant filed a grievance to challenge the disciplinary action. The outcome of the Third Resolution Step was not satisfactory to the Grievant and she requested a hearing. On December 12, 2000, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On February 27, 2001, a hearing was held at the Agency’s regional office. Upon the motion of a party, the Hearing Officer found just cause to extend the 30 day time period for issuing a decision because a primary witness was out of the United States until the third week of February 2001 and the testimony of that witness was essential to the proceeding.

Grievant
Agency Representative

Program Manager

Two Human Services Care Workers
Compliance Program Manager
Facility Director
Registered Nurse
Two Witnesses
PM Shift Supervisor

ISSUE

Whether Grievant should receive a Group III Written Notice of disciplinary action with termination.

The burden of proof is on the Agency to show by a preponderance of the evidence that its disciplinary action against the Grievant was warranted and appropriate under the circumstances. Grievance Procedure Manual ("GPM") § 5.8. A preponderance of the evidence is evidence which shows that what is sought to be proved is more probable than not. GPM § 9.

After reviewing the evidence presented and observing the demeanor of each witness, the Hearing Officer makes the following findings of fact:

Grievant was employed as a Development Aide with the Department of Mental Health Mental Retardation and Substance Abuse Services. One of her responsibilities was to teach and train patients to be as independent as possible in the performance of their routine daily activities. The Agency refers to its patients as clients.

The Agency provides housing for several hundred clients. Clients live in groups of 6 to 10 in sections of buildings divided into open living areas surrounded by bedrooms.

On September 18, 2000, beginning at approximately 9:20 p.m., two Agency staff were standing outside of a resident building on a loading dock taking a work break. From the loading dock, they could see through an exterior window into a room in the adjoining building. They were standing approximately 20 feet from the window. The room inside was the sleep area for two clients.

The Client resided in a bedroom across from the bedroom of the two clients. The Client was described mischievous because he often sneaks out of his room at night after bedtime and enters the room of other clients. He sometimes scratches other clients and takes their covers off of them while they are sleeping.

While the two clients were in their room attempting to sleep, the Client scurried out of his room and into the room of the two clients where he was not permitted. Grievant observed the Client going into the bedroom and went into the bedroom as well. She turned on the light. Once the bedroom was illuminated, the two Agency staff standing on the loading dock could see inside the room through a thin sheer on the window. They saw the Grievant hitting the Client several times. The Client was in a hunched over position with his arms up and falling towards the floor.

Both witnesses were astounded at what they saw, but were uncertain of who was hitting a client and whether there might be some other explanation of what appeared to be happening. One witness went inside the building and pretended to need to obtain some powder from a back room. She borrowed keys from the Grievant and obtained the powder. She was unable to get near the Client to determine if he was all right. She returned the keys to Grievant and went back to the loading dock.

Once the witness returned to the loading dock, the bedroom light came on again. The Client had entered the bedroom again and the Grievant was chasing him and striking him. Once again the Client was hunched over attempting to protect himself from the blows delivered by the Grievant. Both staff clearly witnessed Grievant striking the Client.

The witnesses promptly notified the Facility Director and an investigation was done. A medical inspection of the Client showed he did not suffer any bruises to his body.

The first staff witness had not worked with the Grievant before and had no motive for speaking untruthfully about her. The Second staff witness and the Grievant were acquaintances and possibly friends. No evidence was presented suggesting the second witness had any reason to testify untruthfully about the Grievant. The Hearing Officer finds their testimony credible.

The Agency’s Departmental Instruction 201 defines client abuse as:

Grievant intentionally hit the Client in a manner that may have caused him physical or psychological harm. Assault and battery is defined as:

See Perkins v. Commonwealth, 31 Va. App. 326, 523 S.E. 2d. 512 (2000). Grievant battered the Client.

Grievant’s behavior rises to a level requiring disciplinary action. The Department of Human Resource Management’s Policies and Procedures Manual ("P&PM") sets forth three levels of offenses. Group III offenses are the most serious such that a first offense normally should warrant removal. Group III offenses include "acts of physical violence." P&PM § 1.60(V)(B)(3)(f). Thus, Grievant’s behavior constitutes a Group III offense. Grievant did not present any mitigating factors and none are obvious from the hearing records. Thus, Grievant’s termination should be upheld.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group III Written Notice of disciplinary action with termination is upheld.

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 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.

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.

Carl Wilson Schmidt, Esq.
Hearing Officer