Issue: Group III Written Notice (patient abuse); Hearing Date: January 5, 2001; Decision Date: January 11, 2001; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; AHO: David J. Latham, Esq.; Case No: 5105

Department of Employment Dispute Resolution

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services
Case Number 5105

Hearing Date: January 5, 2001
Decision Issued: January 11, 2001

APPEARANCES

Grievant
Representative for Agency
Hospital Director
Four witnesses for Agency

ISSUES

Was the grievant's conduct on August 12, 2000 subject to disciplinary action under the Commonwealth of Virginia Standards of Conduct? 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 III Written Notice issued on September 14, 2000 because of alleged abuse of a hospital patient. Following a denial of relief at each resolution step, the Group III Written Notice was upheld. During the grievance process, an offer was made to reduce the discipline to a Group II Written Notice; the grievant rejected this offer. Subsequently, the agency head qualified the grievance for a hearing.

The Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) (Hereinafter referred to as "agency") has employed the grievant as a Health Services Care Worker (HSCW) since January 25, 2000. She received MANDT¹ training for two days beginning on January 31, 2000 and additional Behavior Management training on March 28, 2000. She received a copy of Departmental Instruction 201 "Reporting and Investigating Abuse of Clients" on April 14, 2000.

On August 12, 2000, the grievant began her work shift at 7:30 a.m. One of the patients (hereinafter referred to as patient J) on the grievant's ward has been hospitalized for several years. Among other diagnoses, the patient has an Intermittent Explosive Disorder and an Antisocial Personality Disorder. On the morning of August 12, 2000, patient J was manifesting symptoms of these disorders. The registered nurse (RN) on duty medicated her early in the shift, and again soon thereafter. Two different drugs were used in an effort to calm the patient and to moderate her mood swings. Notwithstanding the medication, patient J continued to be a problem. For unknown reasons, patient J "fixated" on the grievant, following her around the floor, spitting on her, kicking at her and striking out at her.

At approximately 7:45 a.m., patient J requested that the grievant obtain clothes for her from the linen room². The grievant told patient J that she did not have clothes in the linen room. Patient J then approached another HSCW who allowed patient J to enter the linen room with him. Patient J grabbed a plastic bag containing clothes and ran to her own room. When the grievant observed this, she told the other HSCW to give the clothes to patient J but that she was not permitted to have the plastic bag³.

The grievant was coming down the hall at this time and, as she got to patient J's room, she asked patient J to give up the plastic bag. Patient J swung at the grievant but the grievant blocked the patient's hand. A struggle then ensued between the grievant and patient J during which the grievant grabbed Patient J by the front of her shirt and pushed her against a wall in patient J's room. Patient J's head hit the wall but she was not injured as a result of this encounter. Patient J hurled a derogatory racial epithet at the grievant. By this time, the grievant had torn a portion of the plastic bag and she left the room.

At approximately 8:35 a.m., the grievant was still being "targeted" by patient J. The grievant asked the RN on duty for permission to leave the ward, was granted permission and did leave for about 40 minutes returning at approximately 9:15 a.m. When the grievant was away from the ward, patient J became involved in a more serious physical altercation with another HSCW. During this encounter, the other HSCW pushed patient J against a wall forcefully enough to cause a 1 cm x 1 cm laceration on the top of her head. As a result of this injury, a staff physician was summoned to treat the wound. A hospital security officer was also called and a full-fledged investigation took place thereafter.

The hospital employs a trained investigator with three years' experience at the hospital and an additional three years of experience as an investigative police officer. The investigator interviewed all potential witnesses and participants, including the grievant, patient J, the RN, three other HSCWs, three additional patients, the treating physician and the security officer. The investigator then prepared a detailed investigative report, a summary time line of events on the morning of August 12, 2000 and her conclusions as to whom had culpability for the injury to patient J. She found that the grievant physically abused patient J by pushing her head against the wall.

First, patient J testified that the grievant entered her room, struggled with her, grabbed the front of her clothes and pushed her against the wall causing the back of her head to strike the wall⁴. Second, another HSCW was sitting in the shower room directly across the hall from patient J's room. Her written account of the encounter is virtually the same as that of patient J. A third witness, a patient, was walking by the room and saw the grievant and patient J "tussling." She also observed the grievant "Jack patient J up against the wall, her head went back struck the wall, then she slumped down onto some clothes in a chair." A fourth witness, a fellow HSCW, did not see the entire incident but heard the struggle in the patient's room, heard the verbal epithets uttered by the patient and saw the grievant exiting the patient's room with a portion of the plastic clothes bag.

The investigator reported the results of her entire investigation to the central office in Richmond. After review and deliberation in Richmond, it was concluded that patient abuse had occurred and that the grievant had violated the hospital's policy on Abuse of Patients, General Administrative Policy # 050-57, as well as departmental instruction 201, Reporting and Investigating Abuse and Neglect of Clients. Richmond then referred the case to the Hospital Director so that he could determine the appropriate level of discipline to be imposed.

The Hospital Director decided that a Group III Written Notice should be issued. He further determined that, because of the grievant's inexperience (seven months on the job), she had intervened in a dangerous situation without obtaining assistance from coworkers. He concluded that the grievant's inexperience was a mitigating factor and therefore, he decided not to discharge the grievant. The Written Notice was issued on September 14, 2000.

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.

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.B.3 of the Commonwealth of Virginia's Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60 provides that Group III offenses include acts and behavior of such a serious nature that a first occurrence normally should warrant removal. Among the examples of Group III offenses are:

f. Fighting and/or other acts of physical violence.

k. Threatening or coercing persons associated with any state agency (including, but not limited to, employees, supervisors, patients, inmates, visitors, and students) (Emphasis added).

Section 201-1 of MHMRSAS Departmental Instruction 201 on Reporting and Investigation Abuse and Neglect of Clients states, in pertinent part: "The Department has zero tolerance for acts of abuse or neglect." Section 201-3 defines client abuse as:

Abuse means any act or failure to act by an employee or other person responsible for the care of an individual that was performed or was failed to be performed knowingly, recklessly or intentionally, and that caused or might have caused physical or psychological harm, injury or death to a person receiving care or treatment for mental illness, mental retardation or substance abuse. Examples of abuse include, but are not limited to, acts such as: assault or battery.

Black's Law Dictionary defines "Battery" as:

Any unlawful beating, or other wrongful physical violence or constraint, inflicted on a human being without his consent. Goodrum v. State, 60 Ga. 511. A willful and unlawful use of force or violence upon the person of another, Long v. Rogers, 17 Ala 540.

In the instant case, the agency has borne the burden of proof necessary to show, by a preponderance of the evidence, that the grievant's behavior on August 12, 2000 violated the Standards of Conduct. The weight of the evidence establishes that the grievant attempted to retrieve a plastic clothes bag from patient J who refused to relinquish the bag. The grievant and patient J then engaged in a brief physical struggle during which the grievant pushed patient J against a wall. Patient J's head struck the wall but she was not injured. The grievant's resort to physical force to retrieve the plastic bag did constitute an act of physical violence and did involve coercion of the patient.

The burden of proof now shifts to the grievant to demonstrate any mitigating circumstances. The grievant acknowledges that there was a physical altercation that began when patient J attempted to strike the grievant. The grievant blocked the blow but maintains that she did not push the patient against the wall. However, the weight of the evidence suggests otherwise because of the testimony from patient J and the three other witnesses mentioned above in the Findings of Fact. The latter three witnesses did not testify during the hearing because all three are no longer at the facility. The first HSCW has moved out of state, the patient has been discharged from the hospital, and the second HSCW resigned and his whereabouts are unknown. Because their written statements are hearsay evidence, less weight has been assigned to the evidence from these three witnesses.

Nonetheless, the Hearing Officer is persuaded that the written statements from these witnesses are reasonably credible for two reasons. First, the statements were obtained within a few days after the event. The witnesses' memory of the event was relatively fresh and therefore, these contemporaneous written statements are likely to be a fairly accurate recollection of what occurred. Second, a trained and experienced investigator conducted the hospital's investigation; that investigation was thorough, detailed, and objective. The investigator noted that the patient witness was considered to be a particularly credible witness because she likes the grievant but dislikes patient J.

In fairness, it must be observed that the first HSCW appeared to have been unusually proactive in her desire to report this incident and to encourage patients to join her in reporting. However, there is no evidence to suggest that the first HSCW had a hidden agenda, although the grievant has accused the first HSCW of sleeping while she was supposed to be monitoring patients in the shower room⁵. It is concluded that the first HSCW was actively interested in prosecution of the grievant so as to divert attention from the fact that she (the first HSCW) failed to come to the grievant's assistance during the encounter with patient J. It must also be noted that the second HSCW has been characterized as being "from another planet." However, even if this characterization is accurate, there is no evidence that his written statement is not his accurate recollection of the event.

The grievant further contends that she did not enter patient J's room during the altercation. She has adamantly maintained that her discussion with patient J occurred only in the hallway. However, the weight of the evidence established that the grievant did, in fact, enter patient J's room. The accounts of four people - patient J, a second patient and two other HSCWs - all place the grievant inside the room during the physical struggle. Moreover, the grievant's written statement dated August 12, 2000 states "M walked in the room and asked for the bag; I walked out." However, in her handwritten statement submitted prior to this grievance hearing, grievant stated "I never seen M enter J's room" (Exhibit 28, page 7).

In and of itself, the actual location of the struggle is irrelevant. However, the fact that the grievant has denied going into the patient's room when all other evidence indicates that she did enter the room, makes this detail relevant in assessing the grievant's credibility. Her own handwritten statements are directly contradictory regarding whether M entered patient J's room. It must be concluded that the grievant's continued denial of being in the room, and her inconsistent statements regarding M's presence in the room, taint the credibility of her overall testimony.

The grievant has also made much of the fact that the HSCW in the shower room did not come to her assistance during the encounter with patient J. This implies that the encounter was sufficiently disruptive that it would have been necessary for another HSCW to come to the grievant's aid. On the other hand, the grievant argues that the encounter was nothing more than a verbal discussion between her and the patient. These two positions are inconsistent with one another. Why would the grievant expect another HSCW to come running to her aid if there was no physical encounter?

Accordingly, the cumulative weight of the three witness statements, patient J's sworn account of the incident, and the tainted credibility of the grievant outweigh grievant's denial of her culpability. It is concluded that grievant did coerce patient J, which coercion led to a physical altercation between grievant and patient J. The Hearing Officer has carefully considered whether the level of discipline was appropriate for the conduct. The evidence supports a finding that the use of coercion and physical force does constitute a Group III offense. Because the potential for injury to the patient was substantial, a Group III Written Notice is the appropriate level of discipline. The grievant's inexperience in this position is sufficiently mitigating that her employment should not be terminated.

DECISION

The decision of the agency is affirmed.

The Group III Written Notice issued on September 14, 2000 shall remain in effect and shall remain active pursuant to the guidelines in Section VII.B.2 of the Standards of Conduct.

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