In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case No. 5142

Hearing Date: March 14, 2001
Decision Issued: March 23, 2001

On October 3, 2000, Grievant was issued a Group I Written Notice of disciplinary action for:

On November 29, 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 he requested a hearing. On February 15, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On March 14, 2001, a hearing was held at the Agency’s regional office. Upon the 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
Human Resource Officer
Legal Assistant Advocate
Investigator
Assistant Director of Nursing
Registered Nurse
Night Shift AODRegistered Nurse Manager
Nurse Manager Coordinator

Whether Grievant should receive a Group I Written Notice of disciplinary action.

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 is employed at a Facility of the Department of Mental Health Mental Retardation and Substance Abuse Services. The Facility treats individuals with mental illness including patients who have been charged with crimes but have been determined to be incompetent to stand trial or found not guilty by reason of insanity. The Facility staff refer to these patients as their clients.

On August 27, 2000, a Mental Health Technician entered a client room and observed Client H with his pants half way down. Next to Client H was Client J. Client J stated to the Mental Health Technician "he made me do it, he made me beat him off."

The Mental Health Technician reported the incident to another employee who, in turn, reported the incident to Grievant. Grievant did not report the incident to his supervisor who was not working at the Facility at that time.

Grievant was the Administrator On Duty (AOD) when the incident occurred. The AOD is the senior most manager at the Facility. Grievant did not report the incident to his superiors because of his familiarity with the clients involved. He knew that the clients frequently masturbated and because of the relative sizes of the clients, it was unlikely that Client H could have forced Client J to sexually arouse him.

Another AOD reported the incident on the following day. An investigation began. The Investigator’s Report was submitted to the Agency’s Central Office for consideration. A Central Office Executive concluded that Grievant’s behavior did not rise to the level of Neglect under the Agency’s Client Abuse policy, Departmental Instruction 201. (Agency Exhibit 4). Instead, the Agency chose to pursue the matter as a violation of Policy RM-5A and issued Grievant a Group I Written Notice. The Agency’s Director of Nursing considered mitigating circumstances and concluded:

(Agency Exhibit 3).

The Agency has established a policy entitled "Management of Suspected Rape and Incidents of Possible Sexual Predation, Policy RM-5A." When a case of suspected rape or sexual predation is brought to the attention of an employee, the employee must immediately notify the nurse in charge of the unit. In addition, the Administrative Officer on Duty must provide assistance as necessary and report the incident to his or her supervisor.

If the allegation Client J made against Client H were true, Client H would likely have participated in sexual abuse of Client J under Virginia statute. Section 18.2-67.10 defines sexual abuse as "an act committed with the intent to sexually molest, arouse, or gratify any person, where: b. The accused forces the complaining witness to touch the accused’s [genitalia]."

The question is whether an allegation of sexual abuse constitutes rape or sexual predation such that Grievant had an obligation to report the incident to his supervisor. The Hearing Officer concludes Grievant did not have an obligation under the Policy to report the allegation to his superior.

Policy RM-5A does not define rape. Section 18.2-61 of the Code of Virginia defines rape as:

The allegation made by Client J did not involve sexual intercourse. Thus, Grievant did not fail to report an allegation of rape under the Policy RM-5A.

Policy RM-5A does not define "sexual predation." The word "sexual" is not difficult to define. It is clear that the allegation related to the "characteristic of sex, sexuality, the sexes, or the sex organs and their functions." American Heritage Dictionary (Third Edition). The meaning of the word "predation" is more difficult to decipher under the Policy.

Various dictionaries define "predation" as follows:

None of these definitions of predation can fairly place an allegation of sexual abuse into the meaning of sexual predation.

Before an employee can be disciplined for violating a written policy, the policy must be clear and readily understood by the typical employee. The Hearing Officer lacks the authority to re-write a policy to address what the Agency probably intended. Policy RM-5A is enforceable with respect to allegations of rape. It is not enforceable with respect to sexual predation because the typical Agency employee cannot readily understand the phrase.

The Agency’s disciplinary action represents its ongoing noble pursuit to protect its clients, staff, and Virginians from the consequences of inappropriate sexual activity within its Facilities. Unfortunately, Policy RM-5A is too poorly drafted to serve as a useful tool to accomplish the Agency’s goal.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group I Written Notice of disciplinary action is rescinded. GPM § 5.9(a)(2). The Agency is directed to remove the Written Notice from the Grievant’s personnel file in accordance with State policy.

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.

Section 7.2(d) of the Grievance Procedure Manual provides that 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