In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services’ Case No. 5161

Hearing Date: April 16, 2001
Decision Issued: April 17, 2001

Grievant
Legal Representative for Agency
Hospital Medical Director
Five witnesses for Agency
One observer for Agency

Was the grievant’s conduct on January 1, 2001 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?

The grievant filed a timely appeal from a Group III Written Notice issued on January 31, 2001 because of alleged verbal and physical abuse of a training center client. Following a denial of relief at each resolution step, the Group III 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 Health Services Care Worker (HSCW) since 1996. On August 23, 1999, the agency issued a Group I Written Notice to the grievant because of an unacceptable level of absenteeism. On October 15, 1999, the agency issued a Group III Written Notice to the grievant because she threatened a coworker. The grievant was required to receive anger management training as a result of this disciplinary action. Both Written Notices remain active at the present time.

The grievant received Mandt System® training¹ for one day on February 3, 2000. She also received Human Rights Training on May 17, 2000. She received a copy of Departmental Instruction 201 "Reporting and Investigating Abuse of Clients" on April 14, 2000. She received a copy of the Employee Handbook on May 30, 1997.

The grievant was assigned to work in a cottage at an agency facility for the treatment of severely retarded and handicapped people. Two HSCWs were assigned to a cottage that contains five bedrooms, a family room and a dining area; seven clients resided in this cottage on January 1, 2001. At approximately 6:00 p.m., the seven residents were eating dinner in the dining area; the grievant and other HSCW were attending to the needs of the clients. The dining area has three tables. Three clients were seated at one table, two were at a second table and two more were seated at the third table. The grievant was cutting meat on a plate for a client at the third table who was unable to do so himself.

The second client at the third table was displeased with the grievant on the afternoon of January 1, 2001 because she had refused to go to the snack machine for him about 30 minutes prior to dinnertime. This client is verbal, ambulatory and functions within the mild range of mental retardation. As he sat at the table, the client expressed his unhappiness with the grievant and said he was going to "tell his mother." The other HSCW heard the grievant call the client a "big head" to which the client responded by telling the grievant that her mother was a "big head" too. The back and forth rapidly escalated into a shouting match that included the term "bitch" being used by both persons to refer to the other’s mother.

At this point, the grievant stabbed the client in the hand with the fork she was using. The client jumped up from his table, ran to the foyer area and yelled/cried to the grievant’s coworker that the grievant had stabbed him with a fork. The coworker, who had been placing a food tray on the tray cart, turned and observed the grievant still standing next to the client’s table with a knife and fork in her hand. This incident happened quickly and there was loud yelling by both the grievant and the client. The yelling was sufficiently loud that the grievant’s supervisor (who was making rounds at this time) heard it as she approached the cottage from a neighboring cottage.

As the supervisor entered the cottage, the client ran crying to her and stated that the grievant had stabbed him with a fork. The client had two puncture wounds that were bleeding freely at the base of his left index finger where it joins the palm. The medical director happened to be in the area at the time and arrived a few minutes later. He applied first aid for the wound. During the entire episode, the other HCSW was in the dining area or in the immediately adjoining foyer area. The client did not leave this area and did not go into his room prior to being injured. The other HSCW did not see the stabbing but did hear the client yell, jump up from his table and run to her in the foyer yelling that the grievant had stabbed him.

By about 8:30 p.m., the agency’s experienced investigator arrived at the cottage and conducted a thorough investigation by interviewing the grievant, the other HSCW, the client who had been stabbed and the other client who was sitting at the same dining table. He also spoke with the three other clients who had been in the dining area during the incident but concluded that their mental abilities were such as to either make interviews either impossible or unreliable. The two remaining clients averred that they were not in the dining area at the time and did not see anything.

In March 2000, the grievant was charged with assault and battery in an unrelated domestic incident that did not involve this employer. As a result of this charge, the court ordered the grievant to attend anger management counseling for eight weeks in March and April 2000.

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:

In disciplinary actions, the agency must show by a preponderance of evidence that the disciplinary action was warranted and appropriate under the circumstances.² The following procedural due process is required before disciplinary action:

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 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.3 of the Commonwealth of Virginia’s Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60 provides that Group III offenses include acts and behavior of such a serious nature that a first occurrence normally should warrant removal. Among the examples of Group III offenses is:

1. Fighting and/or other acts of physical violence.

The agency’s Employee Handbook³ addresses Standards of Conduct and Client Abuse. It includes an additional example of a Group III offense:

1. Violation of the State’s and agency’s policies on Client Abuse, Alcohol and Other Drugs, Harassment, or Equal Employment Opportunity (may be considered a Group III offense depending on the nature of the violation).

Section 201-1 of MHMRSAS Departmental Instruction 201 on Reporting and Investigation Abuse and Neglect of Clients states, in pertinent part: "The Department has zero tolerance for acts of abuse or neglect." Section 201-3 defines client abuse:

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 January 1, 2001 violated the Standards of Conduct. The testimony of the grievant’s coworker establishes that the grievant was observed with a fork in her hand standing next to the client’s dining table immediately after the client yelled that the grievant had stabbed him with a fork. The hearsay testimony of both the stabbed client and the other client at his table agree that the grievant did stab the client in the hand with a fork.

This case presents a special circumstance because neither of the two clients referred to in the preceding paragraph testified during the hearing. Accordingly, less evidentiary weight must be given to their hearsay statements as compared to the sworn denial of the grievant. However, both of the clients are mentally retarded and, although capable of testifying, their memories of the incident nearly three and one half months after the fact may be hazy. The Hearing Officer received credible firsthand testimony from the grievant’s supervisor and the medical director – both of whom arrived on the scene within one or two minutes. The agency investigator, who interviewed all the witnesses less than three hours after the incident, also provided credible and detailed testimony of what the clients had said that evening. Therefore, the combined testimony of four witnesses (including the coworker) plus the hearsay testimony of the two clients is sufficient to overcome the grievant’s denial.

The grievant denies stabbing the client. She contends that the client jumped up from the table and went to his room for several minutes. When he returned to the dining area, the client’s hand was bleeding and he was yelling that the grievant had stabbed him. Thus, the grievant’s contention is that the client went to his room and self-inflicted a double puncture wound upon his own hand. The Hearing Officer finds the grievant’s argument not credible for three reasons. First, both clients and the grievant’s coworker agree that the client never left the dining/foyer area. The statements obtained from the investigator and the supervisor’s testimony corroborate this.

Second, the agency’s psychologist testified that there is no history of this client deliberately self-inflicting wounds upon himself.⁴ Further, the psychologist is of the opinion that this client would not be likely to self-inflict a wound upon himself. Moreover, although this client has been known to lie on occasion, he will quickly recant and tell the truth when he is questioned in depth. In this case, the client never recanted and has maintained throughout that the grievant stabbed him.

Finally, there is a significant inconsistency in the two written statements prepared by the grievant on January 1, 2001. In the first statement, prepared within the first hour after the incident, the grievant states that the client left his table, went to his room for a few minutes and did not say he had been stabbed until after he returned from his room. The grievant prepared a second written statement for the investigator approximately four hours after the incident. In this statement the grievant states "(client’s name) jumped up from table walked toward his bedroom stating I am going to tell you stab me." Thus, in this second version, the grievant acknowledged that the client said he was stabbed before he left the dining area.

An offense such as this would almost certainly merit discharge from employment on a first occurrence by any employee. In this case, the grievant has two active Written Notices, one of which involves a similar lack of self control and an inability to manage anger. The grievant has offered no circumstances that would serve to mitigate the seriousness of the offense.

The decision of the agency is hereby affirmed.

The Group III Written Notice issued on January 31, 2001 and the discharge from employment are AFFIRMED. The disciplinary action shall remain active pursuant to the guidelines in Section VII.B.2 of the Standards of Conduct.

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.

David J. Latham, Esq.
Hearing Officer