In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case No. 5153

Hearing Date: March 30, 2001
Decision Issued: March 30, 2001

On January 13, 2001, Grievant was issued a Group III Written Notice of disciplinary action with a 30 calendar day suspension for:

On January 30, 2001, 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 March 2, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On March 30, 2001, a hearing was held at the Agency’s regional office.

Grievant
Grievant’s Representative
Agency’s Party Designee
Legal Assistant Advocate
Supervisor
Facility Director

Whether Grievant should receive a Group III Written Notice of disciplinary action with suspension.

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 as a Safety and Security Technician for the Department of Mental Health Mental Retardation and Substance Abuse Services. She is responsible for maintaining security, custody, and control over patients in the Forensic Services Program. (Agency Exhibit 1). The Agency refers to its patients as clients.

Grievant’s Supervisor became a supervisor at the Facility on November 11, 2000. Prior to this, she had been a part-time security officer at the Facility beginning on March 23, 2000. She works the 10 p.m. to 6 a.m. shift.

On November 29, 2000, the Supervisor and another supervisor held a meeting with their security staff and informed the staff that they needed to continue to stay alert and that if they were found not to be alert, action would be taken against them. Grievant did not attend that meeting but she was informed by the Supervisor of the items discussed at the meeting. Grievant signed a copy of the meeting notes stating that staff should be alert. (Agency Exhibit 2).

On December 24, 2000 at approximately 4:30 in the early morning, Grievant and a Forensic Medical Health Technician (FMHT) were providing security and support for a client requiring two to one physical supervision. The Agency considered the Client to be at high risk of suicide because the Client had made several attempts to kill himself and had assaulted other clients. Two to one physical supervision means two staff members must be within close distance of a client at all times.

The Client was asleep in his bed in a small bedroom with a dim light on. Adjacent to the door to the Client’s room was another small room with one side opening through a door to the Client’s bedroom and the opposite side opening through a door to the hallway. Grievant and the FMHT were seated in the room with a 13-inch television turned on. The television was located approximately 3 feet from the Grievant. The room light was off, but the light from television shown into the room. The sound on the television was set low enough not to awaken the Client. Grievant was seated near the door that connected the hallway.

The Supervisor pushed open the door from the hallway into the room where Grievant and the FMHT were seated. The Supervisor entered the room far enough to observe that both Grievant and the FHMT were sleeping. The Supervisor observed Grievant slouched in the chair with her hips towards the front of the chair and the left side of her back towards the right side of the chair. Her head was tilted back such that she was facing more towards the ceiling than the television in front of her. Her eyes were closed and her mouth was slightly open. Her breathing was consistent with sleeping.

The Supervisor observed the Grievant for a short period of time and then tapped the Grievant on her right shoulder and said "Wake up". Grievant did not respond but the FMHT who was also sleeping awoke. The Supervisor tapped the Grievant on the shoulder again and the Grievant awoke. The Supervisor then asked if they needed anything and remained in the room watching television for a few minutes. The Supervisor did not confront Grievant at that time about sleeping because she did not want to do so in front of the FMHT whom the Supervisor did not supervise. The Supervisor informed her superior, the Captain, shortly thereafter and the Supervisor was instructed to draft a memorandum describing what happened.

On December 26, 2000, the Supervisor met with the Grievant and informed her that disciplinary action would be taken against her for sleeping. Grievant was shocked and upset at the allegation.

The Captain reviewed the memorandum describing the incident which Grievant began drafting on December 24, 2000. The Captain asked the Supervisor to correct some typographical errors and to add a statement of what happened during the December 26, 2000 meeting. The Supervisor drafted the following account:

(Agency Exhibit 3).

On January 13, 2001, a Group III Written Notice with a 30 calendar day suspension was issued against Grievant. (Agency Exhibit 4). Grievant has prior active disciplinary action consisting of a Group I Written Notice issued on June 13, 2000 for excessive tardiness. (Agency Exhibit 6).

"Sleeping during work hours" is a Group III offense under the Department of Human Resource Management’s Policies and Procedure Manual ("P&PM"), Policy 1.60(V)(B)(3)(h). The Agency has established by a preponderance of the evidence that the Grievant was sleeping. The Agency could have terminated her but chose not to do so. The disciplinary action is upheld.

The Grievant and the Supervisor have very different accounts of what happened in the early morning of December 24, 2000. Grievant testified that she knew the Supervisor would be arriving shortly to make her rounds and that the Grievant was awake when the Supervisor opened the door. Grievant also testified that the Supervisor tapped her on the leg and not on the shoulder. Grievant said she responded to the Supervisor and was shocked to later learn of the Supervisor’s accusation.

This is a difficult decision to make. The Hearing Officer believes the Supervisor’s account because her testimony was especially credible based on her demeanor. No evidence was presented suggesting the Supervisor and the Grievant had a history of confrontations or otherwise suggesting the Supervisor had any motive to falsely accuse Grievant of sleeping during work hours.

Although the Hearing Officer upholds the disciplinary action, some of the Supervisor’s testimony raises some concerns. The Supervisor became a supervisor at the Facility in November 2000. During the month of December 2000 she issued written notices for sleeping during work hours to at least three of the five employees she supervised. This seems unusual and could reflect that the Supervisor excessively disciplined her subordinates. On the other hand, it could indicate that existing staff had been used to a lesser standard and the Supervisor began enforcing the standard outlined in the meeting on November 29, 2000. The Grievant knew of the other employees who had been disciplined for sleeping but did not call any of them as witnesses to try to establish a pattern of behavior on the part of the Supervisor. In any event, the evidence was not developed sufficiently for the Hearing Officer to conclude that the Supervisor’s testimony was not credible.

Grievant argues that the disciplinary action should be reversed because the Agency issued the Written Notice twenty days after becoming aware of the offense rather than issuing the notice immediately as required by P&PM § 1.60(VI)(A).

Although Grievant is correct that the Agency failed to timely issue the Written Notice, that failure is a harmless error in this instance. P&PM § 1.60(VI)(A) requires an employee’s supervisor to issue a Written Notice as soon as the supervisor becomes aware of the problem. The Facility’s practice is to have disciplinary action reviewed by the Human Resource Office and the Facility Director before permitting a supervisor to issue a Written Notice. Because Grievant’s offense occurred during the middle of the holiday season when many staff were on vacation, the Written Notice for Grievant could not be issued sooner. The Agency has explained its delay in issuing the notice. In addition, P&PM § 1.60 does not specify any consequences to a State agency for failure to timely issue a Written Notice and the Hearing Officer lacks the authority to supplement the State policy.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group III Written Notice of disciplinary action with suspension is upheld.

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