Hearing Date: February 15, 2001

Decision Issued: March 6, 2001

On November 27, 2000, Grievant was issued a Group III Written Notice of disciplinary action with termination for:

On December 27, 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 January 10, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On February 15, 2001, a hearing was held. Upon motion of a party, the Hearing Officer found just cause to grant an extension of the 30 day time frame for issuing the decision because of the conflicting schedules of the parties.

Grievant
Grievant’s Counsel
Agency Representative
Supervisor
Special Activity Aide
Center Director
Administrative Investigator
Facility Director
Advocate
Registered Nurse
Assistant Program Manager
Second Shift Supervisor
Dispatch Operator
Dental Education Assistant

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:

Grievant was employed as a Human Care Service Worker with the Department of Mental Health Mental Retardation and Substance Abuse Services. She consistently had received favorable evaluations. Several witnesses testified she was a very good employee who worked well with clients.

The Agency’s facilities include dayhalls for the benefit of its patients. The Agency refers to its patients as clients. Clients and Agency staff gather in dayhalls for various group and individual activities. Dayhalls are rectangular in shape and about the size of one or two average size home garages. A typical dayhall has a large television set at one end, with several chairs and tables arranged throughout the room.

On November 8, 2000 at approximately 6:15 p.m., the Supervisor was sitting in the dayhall watching the local news on the television and observing the activities in the dayhall. The back of the Supervisor’s chair was next to the wall of the dayhall. Approximately 15 to 20 feet in front of the Supervisor was a row of three or four chairs. The chairs were large cargo style or crate style chairs made of boards. The front of each chair in the row was facing in the Supervisor’s direction. If someone were sitting in one of the chairs, that person and the Supervisor would be facing each other.

Grievant was mopping the floor in a hallway and into the dayhall. She was walking backwards while mopping and was using both hands to mop. The row of chairs was on her left side. In other words, the row of chairs was between the Supervisor and the Grievant; but the row of chairs was a few inches from Grievant’s left side.

The Client was sitting in one of the chairs in the row. The Client is a large heavy-set woman of average height. She has difficulty speaking but can understand oral requests.

The Supervisor testified that she watched Grievant mop behind a chair in which the Client was sitting and then push the Client in the back of the head forcing the Client’s head forward. The Supervisor called the Grievant’s first name. Grievant looked up briefly and then looked down to resume her work. The Supervisor immediately walked over next to the Client to make sure the Client was not injured. Once the Supervisor determined the Client was not injured, she left the dayhall and walked to the office of another supervisor located in another building to call the Facility Director. The Supervisor attempted to call the Facility Director at approximately 6:25 p.m. The other supervisor testified that the Supervisor appeared upset and indicated she saw the Grievant push a client.

There were at least four other staff in the dayhall sitting within 15 to 20 feet of the Grievant. They were located on the Supervisor’s right hand side and at the end of the dayhall opposite to the television. These staff were working with clients or engaged in other work activities. None of them saw the Grievant push the Client. One of them confirmed that the Supervisor called the Grievant’s first name, but none of them said the Supervisor walked over to the Client and observed whether the Client was injured. One witness stated that the Supervisor did not immediately leave the dayhall as the Supervisor claimed. Instead the Supervisor sat back in her chair and continued to watch television for approximately five to ten minutes before leaving the building.

At one point while she was mopping, Grievant thought she saw someone walk by and Grievant said words to the effect of "Next time make them do it themselves." The person Grievant spoke to was not nearby. She was attempting to inform a co-worker to let the clients put their shoes away instead of the staff person putting away shoes.

Once the Facility Director arrived at the Facility, Grievant was summonsed to meet with the Facility Director. The Grievant asked the Supervisor if she knew why the Facility Director wished to speak with the Grievant. The Supervisor did not answer immediately and then said they would discuss the matter later. When Grievant spoke with the Facility Director, Grievant denied pushing the Client. The Agency conducted an investigation and Grievant consistently denied pushing the Client to everyone who asked her.

Grievant testified that she did not push the Client. She said that she pushed empty chairs and did not recall seeing anyone sitting in the chairs although it was possible someone was sitting in a chair.

Grievant testified that she had a special friendship with the Client. Grievant spent much more time with the Client than with other clients. For example, Grievant would paint the Client’s fingernails and toenails and braid her hair.

The Client did not suffer any noticeable injuries or bruises. No medical examination of the Client was conducted by the Agency.

The Supervisor and the Grievant have different accounts of what happened. Both parties appeared credible. The best explanation of what happened on November 8, 2000 is that while Grievant was mopping the floor walking backwards she did not realize the Client was sitting in a chair behind her to her left side. Grievant pushed the chair in which the Client was sitting in an upward direction to straighten the chair. The chairs are large and it is likely the Client was sitting on the front edge of the chair. Grievant did not realize she had pushed the Client’s chair because she was focused on her work or otherwise ignoring her surroundings. Grievant did not intentionally push the Client.

There are several reasons why the Hearing Officer concludes that the Grievant did not intentionally push the Client. First, given the number of people in the dayhall who were in close proximity to the Grievant, someone other than the Supervisor would have seen Grievant’s action if she had turned and used her arm to forcefully push the Client. Lifting a chair to mop underneath it, however, would easily go unnoticed by others in the room. Second, Grievant was focusing on her mopping duties and was not concentrating on anything else. Grievant did not recall the Client sitting in the chair even though several witnesses confirmed that the Client was sitting in a chair in the row. Grievant thought she saw someone walk by and attempted to have a conversation with a person who was not actually present in the dayhall. Third, the Client was Grievant’s favorite client. It is unlikely Grievant would intentionally push a friend. Fourth, the events as described by the Supervisor could have resulted from Grievant pushing the Client’s chair and the Client moving her head forward to get up. This would give the appearance that Grievant pushed the Client. The Supervisor was sitting down and could not see through the Client, a large heavy-set woman, to see whether the Grievant was pushing the Client’s back or the back of the chair.

Grievant’s behavior is subject to disciplinary action. Many of the Agency’s clients are helpless and completely dependent on staff for their quality of life. Grievant must exercise a heightened degree of sensitivity to make sure she does not accidentally harm clients.

Grievant’s behavior does not rise to the level of client abuse under the Agency’s Departmental Instruction 201. This policy defines client abuse as:

Grievant did not knowingly, recklessly, or intentionally push the Client. Her actions cannot be defined as client abuse.

Grievant’s behavior rises to the level of a Group III offense. The Department of Human Resource Management’s Policies and Procedures Manual ("P&PM") does not specifically address Grievant’s behavior. The policy lists "Violating safety rules where there is a threat of physical harm" as a Group III offense. P&PM § 1.60(V)(B)(3). Grievant’s behavior is similar to violating a safety rule in the sense that her actions placed the Client at risk of physical harm. It is not appropriate to terminate Grievant because her actions were not intentional and she has a history of favorable employment performance. A period of suspension, however, is warranted.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group III Written Notice of disciplinary action with termination is reduced to a Group III Written Notice of Disciplinary action with 30 workdays suspension. GPM § 5.9(a)(2). P&PM § 1.60(IX)(B)(1). The Agency is directed to reinstate the Grievant to her former position or, if occupied, to an objectively similar position. GPM § 5.9(a)(1). The Agency is directed to provide the Grievant with back pay for the period of termination less any interim earnings that the employee received during the period of termination and credit for annual and sick leave that the employee did not otherwise accrue. GPM § 5.9(a)(3). P&PM § 1.60(IX)(B)(2). The Agency is directed to impose the 30 workday suspension from the date of removal.

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