On September 15, 2000, Grievant was issued a Group II Written Notice of disciplinary action with a suspension from September 18, 2000 to October 27, 2000 for:

(Agency Exhibit 3). On October 13, 2000, Grievant timely 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 October 25, 2000, Grievant was issued a Group III Written Notice of disciplinary action and terminated from her employment effective October 27, 2000 for:

(Agency Exhibit 4). Grievant timely filed a grievance on November 2, 2000 to challenge the termination. The outcome of the Third Resolution Step was not satisfactory to the Grievant and she requested a hearing. (Agency Exhibit 5).

The parties agreed to have the appeals consolidated and on January 25, 2001, the Department of Employment Dispute Resolution assigned both appeals to the Hearing Officer. On February 16, 2001, a hearing was held at the Agency’s regional office.

Grievant
Attorney for Grievant
Supervisor
Legal Advocate for Agency
Doctor
Director

1. Whether Grievant should receive a Group II Written Notice of disciplinary action with a suspension from September 18, 2000 to October 27, 2000.
2. Whether Grievant should receive a Group III Written Notice of disciplinary action with termination of employment.

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:

The Agency operates a Clinic which provides many valuable services to low-income and indigent individuals in the community. Among those services are obstetric and gynecology services. Grievant is a Registered Nurse and was employed at the Clinic as an Obstetric Clinic Coordinator. She worked with a great deal of autonomy and was a knowledgeable and caring employee. Grievant reported to the Nursing Supervisor who oversaw the Grievant’s unit as well as several other units within the Clinic. Grievant began working at the Clinic over a decade ago. The Supervisor began supervising the Grievant in April 1999.

The Clinic relies on an external group of medical practitioners who render services to the Clinic’s patients. The Doctor is one of the physicians who regularly attends the Clinic and treats patients there.

Grievant offered numerous letters of reference from medical professionals to establish that she was dedicated to excellent patient care. One physician who had worked with Grievant for approximately nine years stated,

(Grievant’s Exhibit 1). Grievant also presented evidence of consistently favorable performance evaluations. (Grievant’s Exhibit 3). The Agency does not dispute that the Grievant is a competent, capable, and dedicated professional.

On August 29, 2000, a physician treated a pregnant patient at the Clinic. The physician wrote an order requiring follow-up tests for the patient to rule out a probable diagnosis of Gestational Diabetes Mellitus. The order did not contain a diagnosis, contrary to the usual business practice. The tests were to be performed at a specialist’s office located outside of the Clinic.

Grievant was responsible for contacting the specialist’s office and completing the referral process so that the specialist could timely examine the patient. She contacted the specialist’s office receptionist and was informed that because the physician failed to include a diagnosis in the order, the specialist’s office would not see the patient until a diagnosis was made. Grievant wrote in the patient’s chart about the referral, "unable to do so until diagnosis is made." (Agency Exhibit 1). The person Grievant spoke with in the specialist’s office was likely an inexperienced employee who did not know that the specialist had a long standing practice of accepting referrals from the Clinic even without a diagnosis. The specialist followed this practice because the specialist was quite familiar with the doctors at the Clinic and the Clinic’s practice was to transfer the entire patient record thereby reducing the importance of a diagnosis.

Grievant spoke with her supervisor at least two times regarding the referral and the absence of a diagnosis. The Supervisor instructed Grievant to attempt to make the referral again by contacting another more appropriate person, such as a nurse, located within the specialist’s office. Grievant did not make any additional attempts to refer the patient to the specialist’s office. Grievant saw the patient again on August 30, 2000 and September 1, 2000. (Agency Exhibit 1).

On September 12, 2000, the patient returned to the Clinic. Upon review of the patient’s chart, the Doctor discovered that the patient had not been referred to the specialist as the physician had ordered. The Doctor confronted the Grievant and then informed the Supervisor. The Supervisor immediately began an investigation of the allegations. The Supervisor called the specialist’s office and confirmed that the specialist would treat the patient without a prior diagnosis. She spoke with other nurses in the Clinic regarding the necessary time and process for referrals. She reviewed the patient’s chart. The Supervisor had another nurse make the referral to the specialist. Late in the day on September 12, 2000, the Supervisor informed the Grievant of her concern about Grievant’s behavior.

On the following day in the morning, the Supervisor informed the Grievant that disciplinary action would be taken against the Grievant. The Supervisor gave the Grievant a memorandum dated September 13, 2000 outlining the charges against her and stating that formal disciplinary action was being considered. Grievant became upset. She remained at work through a meeting and then left work at about 1:30 p.m.

The Supervisor later spoke with the physician who made the referral and the physician said Grievant had not spoken with him about adding a diagnosis to the referral. The physician would have written the diagnosis had the Grievant asked him to do so.

When she first learned that she may be subject to disciplinary action for failure to timely refer a patient, Grievant believed the Doctor was at least partly responsible for her pending discipline. On September 13, 2000, Grievant made numerous calls to the Doctor while she was working at the Clinic and after she left for the day. The Doctor was treating patients at a nearby hospital. To speak with the Doctor, the Grievant called the hospital receptionist who then paged the Doctor and referred the call to the Doctor’s location in the hospital. The Doctor did not know who was calling before he answered the telephone but recognized the Grievant’s voice when she spoke.

The Doctor later complained to the Supervisor about the excessive telephone calls. The Supervisor asked him to put his complaint in writing. After giving the matter some consideration, the Doctor drafted a memorandum dated September 27, 2000 to the Supervisor. The Doctor stated:

(Agency Exhibit 4).

The Supervisor showed the Doctor’s memorandum to the Grievant. Grievant wrote a memorandum to the Supervisor and stated:

(Agency Exhibit 4).

According to the Grievant, she called the Doctor in the morning of September 13, 2000 three times and each of those calls related to the health of a particular patient. She admits to making a fourth call to the Doctor and asking, "Why did you do this to me. Why did you write me up?"

The Doctor described his relationship with the Grievant as varying in intensity – during some months "he could do no wrong" and in other months "he could do nothing right". The Grievant testified that she and the Doctor (who were married but not to each other) had an intimate relationship that lasted from March 1996 until April 2000 at which time it ended by mutual agreement. She believed the past relationship may explain, in part, why the Doctor was making untrue allegations against her.

Grievant has a history of inappropriate telephone calls with other staff and the Doctor. The Supervisor maintained a record of some of the complaints made about the Grievant. In February 2000, several nurses complained that Grievant was abruptly hanging up the telephone without addressing their questions. On February 29, 2000, the Supervisor met with the Grievant to issue a formal counseling memorandum regarding the Grievant’s telephone interactions with hospital staff. (Agency Exhibit 2).

On April 27, 2000, the Supervisor received a telephone call from the Doctor complaining that he had received no fewer than 26 messages from Grievant on the prior day. Many of the messages "were rude and inappropriate (unprofessional comments, hang-ups, etc.)" On May 15, 2000, the Doctor reported to the Supervisor that the Grievant "had contacted him at the hospital about non-essential issues over the weekend during the time she was on leave from the clinic." (Agency Exhibit 2).

On May 26, 2000, the Supervisor issued a Group II Written Notice to the Grievant. Grievant was disciplined in part because of:

(Agency Exhibit 9).

On June 15, 2000, the Supervisor implemented a procedure requiring staff in the Obstetrics unit to record the date, time, name of physician, and reason for calling each time a physician was paged. (Agency Exhibit 6). The Supervisor implemented this requirement to measure how frequently the Doctor was being contacted by the Grievant. Grievant did not record any of the times she called the Doctor on September 13, 2000 while he was working in the hospital.

The Commonwealth of Virginia has established Standards of Conduct governing employee behavior. These standard are found in the Department of Human Resource Management’s Policies and Procedures Manual ("P&PM").

An employee who fails to follow a supervisor’s instructions may be issued a Group II Written Notice of disciplinary action. P&PM § 1.60(V)(B)(2). "A Written Notice for a Group II offense is active for three years from its date of issuance to the employee." P&PM § 1.60(VII)(B)(2). "A second active Group II Written Notice normally should result in discharge." P&PM § 1.60(VII)(D)(2)(b)(1). An agency may suspend an employee with two Group II written notices for up to 30 workdays as an alternative to discharging the employee. P&PM § 1.60(VII)(D)(3)(c)(1).

Grievant failed to follow her supervisor’s instruction to contact the specialist’s office again and complete the referral process. If Grievant believed the specialist’s office would again reject her request, Grievant could have contacted the physician and obtained the diagnosis. Grievant’s failure to contact the specialist a second time and complete the referral process caused a several-week delay in treatment for a patient who was at risk of medical complications. Had the patient’s medical condition changed during the delay, the Clinic could have been exposed to possible legal liability.

Grievant contends that when she informed the Supervisor of the missing diagnosis, the Supervisor told Grievant that the Supervisor would assume responsibility for resolving the problem. It is unlikely, however, that Grievant’s account is true. Grievant does not raise this defense in any of the previous grievance steps. In addition, Grievant was in charge of the daily operations of the Obstetric unit and having the Supervisor make a referral would be inconsistent with the breadth of authority given to Grievant.

The Agency has established by a preponderance of the evidence that the Group II Written Notice should have been issued. Grievant already had an active Group II Written Notice. The Agency could have terminated her. Instead, it chose to suspend her for 30 days based on her otherwise good performance and value to the Agency. The Agency’s suspension is appropriate under the circumstances and is upheld.

An employee who threatens or coerces "persons associated with any state agency (including, but not limited to, employees, supervisors, patients, inmates, visitors, and students)" may be issued a Group III Written Notice of disciplinary action. A Group III offense is "of such a serious nature that a first occurrence normally should warrant removal." P&PM § 1.60(V)(B)(3).

Grievant and the Doctor present distinctly different accounts of the number and type of contacts they had on September 13^th. Both parties appeared credible but the Doctor’s version is more likely to be true for several reasons. First, Grievant was upset because she knew she would be disciplined for failing to make a timely patient referral and the Doctor had a role in bringing her error to the attention of her supervisor. Grievant had a motive to contact the Doctor and express her displeasure with his actions. Second, on several prior occasions, the Doctor has complained to the Supervisor that the Grievant was excessively and unnecessarily calling him. The Doctor’s complaint in this instance is consistent with his prior complaints. Third, Grievant admits to calling the Doctor during work hours on September 13^th but she failed to report the calls in the log book. If the three calls she claims she made in the morning were related to patient care, she would have recorded those calls.

Grievant argues that her intimate relationship with the Doctor may explain why the Doctor may have spoken untruthfully about their communications on September 13, 2000. The Hearing Officer disagrees. Assuming an intimate relationship existed between the Grievant and the Doctor, the relationship could explain why the Grievant felt comfortable enough to directly contact the Doctor to complain about his actions. Furthermore, Grievant testified the intimate relationship ended in April 2000 which is the same time period when the Doctor reported to the Supervisor that Grievant had contacted him 26 times during one day.

One of Grievant’s defenses to her termination is that she is a competent and capable nurse. Based on the testimony of several witnesses and the written references, there is no question that Grievant is an extraordinary capable and experienced nurse. Unfortunately, her level of competency is not a sufficient basis to overlook her behavior.

Grievant’s repeated inappropriate telephone calls were designed to intimidate and coerce the Doctor. The Doctor is associated with the Agency because he regularly provided services to the Clinic’s patients. The Agency has met its burden of proof to establish that a Group III Written Notice should be issued against the Grievant.

The Agency’s issuance to the Grievant of a Group II Written Notice of disciplinary action with suspension is upheld.

The Agency’s issuance to the Grievant of a Group III Written Notice of disciplinary action with termination is upheld. GPM § 5.9(a).

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