Issue: Group II Written Notice (unprofessional conduct and disruptive behavior); Hearing Date: January 8, 2001; Decision Date: January 9, 2001; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; AHO: David J. Latham, Esq.; Case No: 5108
Department of Employment Dispute Resolution
DIVISION OF HEARINGS
DECISION OF HEARING OFFICER
In the
matter of Department of Mental Health, Mental Retardation & Substance Abuse
Services
Case Number 5108
Hearing Date: January 8, 2001
Decision Issued: January 9, 2001
APPEARANCES
Grievant
Representative for Grievant
Representative for Agency
Supervisor
Three
witnesses for Agency
Two
witnesses for Grievant
ISSUES
Was the grievant's conduct on October 11, 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 II Written Notice issued on October 13, 2000 because of unprofessional conduct and disruptive behavior. Following a denial of relief at each resolution step, the Group II Written Notice was upheld. 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 registered nurse (RN) since 1996. The grievant had prior nursing experience as a licensed practical nurse (LPN) in a nursing home. Her supervisor and coworkers consider her a good nurse and she has received satisfactory or better performance appraisals.
On July 18, 1999, the grievant had a telephone conversation with her supervisor during which the supervisor advised the grievant that staffing needs could result in the need for the grievant to work overtime that evening. The grievant told her supervisor that she would not work overtime and that she was going home. When the supervisor reminded the grievant that mandatory overtime is a job requirement, the grievant said goodbye and hung up the phone. The supervisor called the grievant back but she refused to come to the telephone. The supervisor considered the grievant's behavior to have been rude and unprofessional. Subsequently, the supervisor conducted verbal counseling that was documented in writing, signed by the grievant and retained in the supervisor's file.
On October 22, 1999, the grievant received verbal counseling from another supervisor regarding her attitude. This discussion occurred in connection with the assignment of the grievant to the third floor. The grievant was unhappy about the assignment but appeared satisfied with the supervisor's explanation for the change. During the discussion regarding the grievant's attitude, the grievant stated that she had told the Director of Nursing that, if she got into an argument with anyone, she would walk away from it. The supervisor recommended that the grievant learn to control her temper and verbalize her thoughts only after thinking about them; the grievant said she would try to do so.
On February 14, 2000, the grievant was again given written counseling due to an incident on February 8, 2000, in which the grievant had criticized a LPN about the clothes she was wearing (sweatsuit). Because this criticism was given in the presence of a physician and coworkers of the LPN, it was considered unprofessional behavior. The supervisor counseled the grievant to make such comments to subordinates only in a private setting where coworkers cannot overhear the conversation. The supervisor also advised the grievant that "If any further unprofessional behavior is initiated by you, further disciplinary action may be recommended." The grievant refused to sign the written counseling documentation.
On June 12, 2000, the grievant confronted the Director of Nursing in the nursing station to complain about having patients assigned to her while she was also covering the Recovery Room. The Director of Nursing did not object to the grievant raising this issue but did object to the confrontational manner in which the grievant voiced her concern, as well as the fact that she was making her complaint in front of coworkers and other health care professionals in the area.
On August 16, 2000, the grievant and her supervisor had a discussion during which the grievant refused to perform a new admission. The grievant was visibly angry and further evidenced her anger by throwing patient charts on the nurse's station desk, frowning and refusing to respond to the supervisor. The supervisor told the grievant she wanted to speak to her (in private). The grievant loudly asked, "You want to speak to me right now?" and slammed a medication cart into a treatment cart. The supervisor and grievant went to a room where they had privacy and the supervisor told the grievant why her behavior was inappropriate and unprofessional.
On October 11, 2000, the grievant was upset about a recommendation that had been made to rotate staff between the second and third floors. She requested a meeting to air her views on the issue. The grievant's supervisor convened a meeting that included the Director of Nursing, the supervisor, the grievant, and three other registered nurses. During the meeting, the grievant was angry and upset. She spoke loudly and directed her unhappiness at another nurse who had no responsibility or control over staff assignments. The grievant's comments, amplitude of voice, tone of voice and her body language were all such as to cause the other nurse to start crying1. Shortly thereafter, the grievant walked out of the meeting. She was neither told to leave nor did she seek permission to leave. The meeting continued for another 20-30 minutes and matters were resolved among those in attendance.
As a result of what was considered to be unprofessional and disruptive behavior, the grievant's supervisor, the Director of Nursing and the Human Resources department met to discuss the matter and made a determination that a Group II Written Notice should be issued. The Notice was issued on October 13, 2000; the grievant refused to sign the Written Notice.
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.2 of the Commonwealth of Virginia's Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60 provides that:
Group II offenses include acts and behavior which are more severe in nature and are such that an accumulation of two Group II offenses normally should warrant removal.
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 October 11, 2000 was unprofessional and disruptive. On this occasion, the grievant's conduct directed to her coworker was perceived by her coworker to be so angry, rude, loud and negative that the coworker was reduced to tears. This reaction was observed by the grievant's supervisor, the Director of Nursing and coworkers in the room. Such behavior clearly warrants disciplinary action.
The agency has also established that the grievant's behavior over a prolonged period of time has been, at different times, rude, unprofessional, confrontational, insubordinate or lacking in self-control. The previous incidents (cited above in the Findings of Fact) document such behavior. The grievant argues that the prior incidents should not be considered because they were not specifically identified in the Written Notice2. The Hearing Officer disagrees for two reasons. First, such incidents establish a pattern of conduct by the grievant that documents that her behavior on October 11, 2000 was not an isolated situation. Second, the prior incidents establish that the agency had previously counseled the grievant both verbally and in writing. Therefore, such incidents are relevant to the issue being adjudicated in this case.
Of considerable concern is the grievant's insubordinate behavior on more than one occasion. On two separate occasions, she refused to sign documents presented to her. Such requests were reasonable instructions from a supervisor for the purpose of documenting that disciplinary action had been taken. On at least two occasions the grievant refused to perform tasks assigned by a supervisor. A refusal to follow direct instructions is insubordinate; a Group II Written Notice would have been entirely appropriate in both cases had they been issued immediately subsequent to either of those incidents3.
As a registered nurse, the grievant is in a very responsible position. Not only is she accountable for the welfare of patients in her charge, but she also has an obligation to set a proper example for other healthcare workers such as the LPNs and CNAs (Certified Nursing Assistants) who work in her area. The behaviors documented by the agency in this case are wholly inappropriate for one in the grievant's position.
In attempting to mitigate her conduct, the grievant contends that she was only asking questions. The agency has acknowledged that the grievant has a right to ask questions and discuss issues of concern to her. However, what is at issue here is 1) the appropriate time for such discussions and 2) the appropriate demeanor when raising such issues. Asking controversial questions in front of coworkers is not the appropriate time or place; rather, such queries should be put to a supervisor in a private setting. Similarly, asking questions in a loud, confrontational manner is not appropriate; issues should be discussed in a calm and dispassionate manner so that emotion does not cloud clear judgement4. The grievant also notes that some of the memos in the supervisor's file were not brought to her attention. While bringing such memos to the grievant's attention would have been instructive to her, the fact remains that the events described in the memos did occur and verbal discussions were held between supervisor and grievant.
Finally, the grievant argues that a Group II Written Notice is not the correct level of discipline in this case. It is true that the grievant's unprofessional and disruptive behavior does not match any of the specific examples for Group II offenses cited in the Standards of Conduct. However, since the examples are not all-inclusive, one could nonetheless conclude that a Group II Written Notice is appropriate if the behavior is deemed sufficiently severe in nature.
Although some of the grievant's earlier insubordinate behavior might have justified a Group II offense at the time, the agency did not take such action. Thus, the Hearing Officer must conclude that the Written Notice issued on October 13, 2000 related primarily (although not exclusively) to the incident on October 11, 2000. That incident involved behavior that was both unprofessional (abruptly leaving a meeting that the grievant herself had requested) and disruptive (berating an innocent coworker to the point of tears). Based on the prior written counseling during the preceding 15 months, the time had come to escalate the disciplinary action. One of the examples of a Group I offense is found in Section V.B.1.e of the Standards of Conduct - disruptive behavior. The Hearing Officer concludes that a Group I Written Notice is the most appropriate level of discipline in this case.
DECISION
The disciplinary action of the agency is modified.
The Group II Written Notice issued to the grievant on October 13, 2000 is VACATED. The Group II Written Notice shall be removed from the grievant's personnel file and retained by the agency pursuant to the procedure outlined in Section VII.B.4.b of the Standards of Conduct.
The agency shall prepare
a Group I Written Notice for unprofessional and disruptive behavior for the
grievant's conduct on October 11, 2000. The grievant shall sign such Written
Notice, which shall be retained in her personnel file until October 12, 2002.
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