In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case Number 5174

Hearing Date: April 23, 2001
Decision Issued: April 24, 2001

Grievant
Legal Representative for Agency
Training Center Director
Three witnesses for Agency

Was the grievant’s conduct on January 23, 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 February 7, 2001 because of alleged physical abuse of a training center client. In addition, the grievant was discharged from employment on February 7, 2001. Subsequently, the agency head qualified the grievance for a hearing.

The Department of Mental Health, Mental Retardation and Substance Abuse Services (Hereinafter referred to as "agency") has employed the grievant as a Developmental Disability Specialist (DSS) since 1996. The grievant had one active disciplinary action - a Group II Written Notice issued to the grievant on January 18, 2001 because he reported to work four hours late. The grievant received Mandt System® training¹ when first hired in 1996 and received recertification training in 1997, 1998, 1999 and 2000. He was promoted to DSS II in November 2000.

On January 23, 2001, the grievant was assigned to a cottage in which there are 10 residents and a total of three staff people. As a DSS II, the grievant was the senior staff person and supervisor in charge of the cottage. The grievant, one other staff member and three clients were sitting in the television room. One client, who was sitting by himself on a sofa, is retarded and has bipolar syndrome. The grievant was sitting on another sofa about ten feet away. The second staff member was sitting at a desk about 10-12 feet away from the client and had a clear view of both the grievant and the client. The third staff member was sitting in the dining room and could not see what took place in the television room.

At approximately 7:00 p.m., the client had been shaking hands with the other clients in the room. He then asked to shake the grievant’s hand and grievant acquiesced to this request. The client wanted to continue shaking hands for a longer period of time. Grievant told the client to go sit down on the sofa. The client sat down and soon began banging the back of his head against the wall behind the sofa. The grievant repeatedly told the client to stop but the client continued to bang his head against the wall. The grievant walked over to the client, stood in front of him and said words to the effect of, "Fine, if you want to bang your head, let me help you." He then placed his hands on either side of the client’s head and pushed his head back against the wall once. The grievant then returned to his sofa and the client resumed banging his head against the wall.

Grievant then told the client he would be placed in "time-out." ²Grievant and the other staff member then placed the client in the time-out closet for about 10-15 minutes. When the client was released from the time-out closet, he was calm for the rest of the evening and did not resume the head-banging behavior.

The other staff member who witnessed this incident was working the 1:45 to 10:15 p.m. shift on January 23, 2001. He then worked a "double shift" by continuing to work from 10:15 p.m. until 6:00 a.m. on January 24, 2001. When his shift ended, the staff member was exhausted and went home to sleep. On the evening on January 24, 2001, the staff member was still concerned about what he had witnessed and called his supervisor (a team leader) to discuss the incident. She advised him to report the incident to the facility director. The staff person then called the facility director at approximately 11:30 p.m. that same evening. The director assigned a person to investigate the incident. That person began his investigation the following morning of January 25, 2001. The investigator concluded that the grievant had abused the client. The facility director issued a Group III Written Notice on February 7, 2001 and discharged the grievant the same day.

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.³ The following procedural due process is required before disciplinary action:

Prior to . . . any disciplinary suspension, employees must be given

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:

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

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:

The evidence in this case is primarily limited to the testimony of those who witnessed the incident. Although there were three clients in the room, the agency did not proffer their testimony, presumably because of their diminished mental capacities. Thus, the only eyewitnesses to the incident who testified during the hearing were the grievant and his coworker. The grievant denies the allegation of abuse. He agrees that the incident happened essentially as described above but he denies pushing the client’s head into the wall. The coworker’s testimony was consistent, clear and credible. The coworker’s supervisor testified that she has always found him to be truthful.

Grievant has had a good relationship with his coworker during the less than one year that the coworker had been employed by the agency. Grievant is unable to point to any motive that the coworker may have had to falsify his testimony except speculation that the coworker may have been jealous because grievant was promoted in November 2000. The grievant had been employed for four years when he was promoted; the coworker had been employed for only six months. It does not stand to reason that the coworker would have expected to be promoted over the grievant, who had nearly eight times as much experience. In any case, there is no evidence to show that jealousy motivated the coworker.

Grievant also suggests that the coworker’s delay of a full day in reporting the incident is an indication that the coworker’s account is not truthful. However, the coworker’s reasons for delay (double shift, exhaustion, time to sleep) are logical and understandable. Grievant intimated that the coworker had discussed the incident with other staff before reporting it. This is also understandable given that the coworker knew he was taking a risk by reporting his own supervisor for a very serious offense. Grievant speculates that the coworker and other staff may have hoped to eliminate competition for the supervisor’s position by getting him fired. While such an idea is within the realm of possibility, grievant has provided no evidence or testimony to support this speculation.

Grievant further observes that he frequently uses his hands to communicate sign language when dealing with clients. Some clients are deaf and the grievant has learned sign language. Grievant says that he was gesturing in sign language to the client and that his coworker may have misunderstood his hand movements. However, this is not a credible assertion. The client involved in this incident is not deaf and therefore, there was no need to use sign language. Moreover, even if grievant did utilize signing, such hand movements could not be mistaken for holding a patient’s head and pushing him into a wall.

In summary, the agency has borne the burden of proof necessary to show, by a preponderance of the evidence, that the grievant’s behavior on January 23, 2001 violated the Standards of Conduct. Deliberately pushing a client’s head into a wall clearly meets the definition of abuse. Based on the evidence presented, it is more likely than not that the grievant did abuse the client by pushing his head into a wall.

The decision of the agency is hereby affirmed.

The Group III Written Notice issued on February 7, 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