Issue: Group III Written Notice with Termination (physical abuse and verbal abuse); Hearing Date: May 10, 2001; Decision Date: May 14, 2001; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; AHO: David J. Latham, Esquire; Case Number: 5182

In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case Number 5182

Hearing Date: May 10, 2001
Decision Issued: May 14, 2001

Because of participant availability for the hearing, the earliest mutually available date on which the hearing could be docketed was the 28^th day following appointment of the hearing officer.

Grievant
Attorney for Grievant
Two witnesses for Grievant
Legal Representative for Agency
Chief of Program Support Services
Five witnesses for Agency
Observer for Agency

Was the grievant’s conduct on January 24 and 25, 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 and discharge from employment issued on February 13, 2001 because of alleged physical abuse of a training center resident and verbal abuse of training center residents. Following denial of relief at the third resolution step, 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 Human Services Care Worker (HSCW) since 1991. At the time of his discharge, grievant was a Lead HSCW. The grievant had one active disciplinary action - a Group II Written Notice issued for smoking in the facility. During the past five years, the grievant received overall "Exceeds Expectations" ratings on his annual performance appraisals.

During the course of his employment the grievant has attended a number of courses on behavior management, Mandt System® training,¹ functional communication, human rights, resident management and, maladaptive behavior. He most recently attended human rights training on October 4, 1999 and September 15, 2000. The agency maintains a written policy on abuse with which the grievant is familiar. He understands the definition of abuse found in that policy, which states, in pertinent part:

On January 24, 2001, the grievant was assigned to a cottage in which there are eight residents. The residents are all mentally retarded, ranging from mild to profound mental retardation. At about 7:00 p.m., the grievant was trying to get the attention of a mentally retarded patient diagnosed with hydrocephalus, autism and obsessive/compulsive disorder. The resident was seated at a dining table and the grievant was standing next to the table, which was situated adjacent to, and partially in, the entranceway to the dining room. The grievant was unsuccessfully in establishing verbal or eye contact with the resident. He reached across to the resident and with his left hand held the resident’s chin and raised his head so as to establish eye contact with the resident.³ Once eye contact was made, he was able to get the resident to pay attention to the instruction he was attempting to communicate.

Another HSCW had been retrieving clothes from a drier located in a small room across the hallway from the dining room and down a short corridor. When the grievant grasped the resident’s chin, the other HSCW had just entered the corridor and was approximately 15-20 feet from where the grievant and resident were. The resident was seated facing out of the dining room facing down the corridor where the other HSCW was standing. The grievant was facing the resident and has his back and/or right side toward the other HSCW. The other HSCW saw the grievant grasp the resident’s chin with his left hand and believed she saw grievant slap the resident’s face with his right palm from a few inches away from the resident’s face. She did not say anything to the grievant or report what she had seen. Two days later, after talking with another employee about the incident, she reported the matter to the facility director. No other employees witnessed the incident.

In her initial reporting of this incident, the other HSCW also stated that she had heard the grievant on multiple occasions speak to residents stating "sit your damn ass down," or when shaving them, "move your damn chin." As a result of the allegations, the facility director asked the program support services chief to conduct an abuse investigation. The grievant was suspended for ten workdays from January 26, 2001 through February 8, 2001. The investigator obtained written statements from the grievant, the complaining HSCW and 11 other staff people; he also interviewed the grievant’s supervisor. Only the complaining HSCW alleged physical abuse; the 12 other staff people have never witnessed any physical abuse by the grievant.

One HCSW said that on January 25, 2001, she heard grievant state to a resident, "Sit down or I’ll sit your ass down." The other 11 staff people had never heard any verbal abuse by the grievant. Following the investigation, the facility director issued the Written Notice and discharged the grievant on February 13, 2001.

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.⁴ 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.

The agency’s Classified Employee Handbook addresses the Standards of Conduct for agency employees. It 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. Violation of the State’s and agency’s policies on Client Abuse, Alcohol and Other Drugs, Harassment or Equal Employment Opportunity.⁵

The direct evidence in this case consists of an allegation of physical abuse by one person and the denial of that allegation by the grievant. There are no other witnesses. In such a "she said, he said" situation, the adjudicator must examine the credibility of the two witnesses. During the hearing, the demeanor and consistency of both grievant and the complainant gave no reason to question the credibility of either witness. Grievant steadfastly maintains that he grasped the resident’s chin but did not strike the resident’s face; complainant avers that she saw grievant slap the resident’s face. Given that the complainant was 15-20 feet away, and that the grievant’s back was towards her, it is possible that either she could not see clearly what occurred or she may have been mistaken about what she saw.

Grievant elicted testimony from the complainant that, in theory, might explain how complainant could be mistaken about her observation. Complainant’s father had abused her as a child and she had recently learned that grievant and her father knew each other at that time. This raises a theory of associative transference which, however, was not developed or proven during the hearing. The hearing officer considers this to be too speculative to be determinative in this case.

Because there is not a preponderance of direct evidence to prove the allegation, the next best evidence is circumstantial. There is a total absence of any circumstantial evidence to support the allegation. On the other hand, of 12 people who gave statements to the investigator, 11 had never seen or had any knowledge of physical abuse by the grievant at any time. While such circumstantial evidence is insufficient to prove that grievant did not slap the resident, it suggests that such an action was not consistent with past performance observed over several years. In summary, the agency has not proven, by a preponderance of evidence, that the grievant physically abused a resident on January 24, 2001.

The grievant did not deny using the words "damn" or "ass" in speaking to residents; he stated only that he "did not remember" using such words. Two witnesses, however, have heard grievant use such words in speaking to residents. Grievant acknowledges that he has told residents, "Sit down or I’ll sit you down." While grievant considers such a statement to be giving the resident a choice, the agency considers such a statement to be threatening and intimidating. Certainly, if this statement were spoken softly, pleasantly and with a smile, it might not be perceived as threatening or intimidating. However, when spoken firmly or harshly, there is a high probability that it would be perceived as a threat or intimidation.

Grievant acknowledges that he makes this statement when other verbal persuasion has failed. It is far more likely than not, that by the time all other verbal cajoling has failed, one is more apt to speak firmly and in a tone of voice that would be perceived (especially by a person of diminished mental capacity) as threatening and intimidating. Therefore, the preponderance of evidence, including the grievant’s own admission, reflects that grievant has spoken to residents using language that is threatening and/or intimidating.

Section 201-1 of MHMRSAS Departmental Instruction 201 on Reporting and Investigation Abuse and Neglect of Clients states, in pertinent part: "It is expected that a facility director will terminate an employee(s) found to have abused or neglected a client." However, the policy goes on to explain that mitigating factors may warrant a penalty less than termination.⁶

In this case, there are several facts that must be considered: 1) the grievant’s past job performance has consistently exceeded expectations for several years, 2) he has been particularly cited for going above and beyond in dealing with residents and their parents, 3) one of grievant’s witnesses was the parent of a resident in grievant’s charge who has visited her son more than 100 times at the facility, often unannounced; she presented very credible and persuasive evidence regarding the excellent care given her son by the grievant, 4) no employees but the initial complainant have alleged or witnessed physical abuse by the grievant, 5) the grievant has no prior disciplinary action or corrective action relating to inappropriate resident care, 6) the grievant’s supervisor has never heard or seen any abuse by the grievant, 7) the agency’s medical director praised the grievant for his genuine interest in patients and their families and, 8) the grievant’s supervisor considers the grievant to be more truthful than the complaining HSCW. All of these facts may, and should, be considered as mitigating circumstances in this case.

The abuse proven by the agency in this case is verbal abuse. Without minimizing the seriousness of the offense, the type of verbal abuse herein must be considered as being on the least serious end of a spectrum of possible verbal abuse. This too must be considered as a mitigating circumstance in this case. In view of the fact that the grievant did verbally abuse residents, he has committed the Group III offense cited above. However, there are sufficient mitigating circumstances to conclude that discharge from employment is too harsh a penalty in this case.

The decision of the agency is hereby modified.

The Group III Written Notice issued to the grievant on February 13, 2001 is VACATED. This Written Notice shall be removed from the grievant’s personnel file and retained by the agency pursuant to the procedure outlined in Section VII.B.4.b of the Standards of Conduct policy.

The agency shall prepare a revised Group III Written Notice that refers only to the verbal abuse of residents. The grievant shall sign the Written Notice, which shall be retained in his personnel file for the period specified in Section VII.B.2.b of the Standards of Conduct.

The grievant is reinstated to his position effective immediately.

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