In the matter of University of Virginia’s Case Number 5184

Hearing Date: May 14, 2001
Decision Issued: May 18, 2001

Grievant was notified on February 27, 2001 that she would be terminated from her employment effective March 13, 2001. On March 5, 2001, Grievant filed a grievance to challenge the termination. The outcome of the Third Resolution Step was not satisfactory to the Grievant and she requested a hearing. On April 18, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On May 14, 2001, a hearing was held at the Agency’s regional office.

Grievant
Agency Representative
Director, Utilization Management
Supervisor
Two Utilization Management Coordinators
Clinical Instructor

Whether the University properly terminated Grievant in accordance with its Transfer and Promotion policy.

The burden of proof is on the University to show by a preponderance of the evidence that its termination of 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 was employed by the University of Virginia Medical Center for approximately 15 years until she was terminated effective March 13, 2001. For most of her career with the University, Grievant worked in the Operating Room as a Registered Nurse, Clinician III. Her evaluations show she was fully competent in her work in the Operating Room. (Grievant Exhibits 9 – 12).

On January 8, 2001, Grievant transferred from the Operating Room to a new position as a Utilization Management Coordinator ("UMC"). The transfer was lateral and Grievant retained her previous salary. (Agency Exhibit 1). She transferred because she was no longer physically able to work in the Operating Room.

A UMC is responsible for reviewing patient charts and contacting nurses, doctors, and other individuals to determine how a patient’s illness and treatment should be classified for the purpose of reimbursement from Medicare, Medicaid, and health insurance companies. For example, a UMC must collect information about a patient from several sources and then make a judgment as to what Diagnosis-Related Group ("DRG") best describes the patient’s health circumstances so that the Hospital can properly bill Medicare.

The University developed an orientation program for all new UMCs. This Program provides new UMCs with necessary resource manuals, establishes an eight-week course of on-the-job training, and offers periodic performance feedback with a final competency test. New UMCs work with a series of experienced UMCs. An experienced UMC is responsible for teaching the new UMC about a specific task of the position and for answering any questions the new UMC has about the duties of the position. Experienced UMCs are called Preceptors. Grievant worked with 11 Preceptors during an eight week time period giving her a broad perspective of the role of a UMC.

The orientation program included a detailed six-week Orientation Guideline listing each task or item to be accomplished by Grievant. As Grievant completed her tasks, the Preceptor would enter initials on the Orientation Guideline along with the date the task was completed. Grievant had between four and sixteen tasks to complete every week. (Agency Exhibit 2). The University also developed a six-page Skills Checklist listing 49 specific competencies expected of the employee. The checklist shows the date each competency was addressed and the Supervisor’s or Preceptor’s initials. (Agency Exhibit 21).

On January 10, 2001, Grievant met with a Preceptor to discuss a portion of the responsibilities of the UMC position. The meeting covered items ranging from routine daily organizational tasks to a detailed description of the five more common DRGs and commonly used Complications and Co-morbidities. (Agency Exhibit 3). Grievant continued the orientation program and met with other Preceptors over the next several weeks.

On January 25, 2001, the Supervisor met with Grievant to identify Grievant’s strengths and areas requiring improvement. (Agency Exhibit 7).

On February 9, 2001, the Director of Utilization Management and Supervisor met with Grievant to discuss their concerns with her performance. They identified nine specific areas in which she needed to improve her performance. The Director of Utilization Management decided to extend the orientation an additional two weeks in order to permit Grievant to become more proficient in her duties as UMC. The final UMC exam was delayed until February 23, 2001.

On February 16, 2001, the University issued a Formal Performance Improvement Counseling Form to Grievant. This form outlined the performance issues requiring improvement and identified five specific changes in performance that were required. The Form states "Failure of employee to correct performance may result in further disciplinary action up to and including termination of employment."

Grievant took the final DRG exam on February 23, 2001. All UMCs must score 70 percent or higher to pass the exam. Most new UMCs pass the exam with scores much higher than 70 percent. Grievant answered 24 of 36 questions correctly for a score of 66.67 percent. Grievant argued that one of the questions was ambiguous and the University agreed. After giving Grievant credit for that question, she had 25 correct answers out of 36 questions for a score of 69.44 percent. Her score remained below the passing percent of 70.

Although not stated in the position description, the UMC position requires someone with an outgoing or extroverted personality. A UMC must constantly contact (and in some cases annoy) nurses, physicians, and other individuals to obtain information about particular patients. Grievant does not have this personality type. She is more reserved and "quiet".

University Medical Center Policy Number 116 governs transfers of Medical Center employees. (Agency Exhibit 19). This policy is intended to encourage "employees to voluntarily seek position and transfer opportunities within the institution." The University complied with portions but not all of the material provisions of Policy 116.

Policy 116 requires transferring employees to complete "a three month competency assessment to demonstrate that they meet the performance expectations for the new position." (Emphasis added). Grievant began her new position on January 8, 2001. She was terminated effective March 13, 2001.

The Policy anticipates at least a three-month period of employment for an employee transferring to a new position. The University terminated Grievant in approximately two months. Grievant must be reinstated to her position with her termination not any sooner than April 8, 2001.

The University argues that the policy allows up to three months for the assessment period. This argument lacks merit because the policy clearly states three months and not up to three months.

Policy 116 requires the employee and supervisor to meet within the first two weeks of employment in the new position or as soon as practicable (1) to review the performance expectation guidelines, role description, and competency checklists specific to the position and (2) establish performance expectations for each performance factor. Although the University may not have met every detail of this requirement, its orientation program served as substantial compliance of the requirement.

Policy 116 states:

Although the University did not use the Annual Performance Planning & Appraisal form, its failure to do so is harmless error. Grievant and the Supervisor discussed and documented specific goals and objectives and set performance expectations. Using the form would not have changed Grievant’s performance or the University’s actions towards her.

Policy 116 requires the supervisor to observe and monitor the employee’s performance to determine if the employee’s performance meets the expectations established during performance planning. Any areas of unsatisfactory performance should be promptly addressed with the employee and documented with a Formal Performance Improvement Counseling Form. The documentation should explain how performance needs to improve in order to continue employment in the position.

The Supervisor monitored Grievant’s performance and when concerns arose spoke with Grievant about those concerns. For example, on January 25, 2001, the Supervisor and Grievant met to discuss Grievant’s strengths and areas of improvement. They also established goals for Grievant. (Agency Exhibit 7). On February 16, 2001 Grievant was given a Formal Performance Improvement Counseling Form describing required specific changes in performance and the time frame in which the changes must occur. Grievant’s orientation period was extended and her date to take the proficiency test was delayed from February 7, 2001 to February 23, 2001 to allow her additional time to prepare. The Form states that Grievant had to pass the proficiency test by answering at least 70 percent of the questions correctly.

If the supervisor determines that the employee has not demonstrated the skills, knowledge, or performance outlined during the performance planning, Policy 116 allows the University to terminate, demote, or transfer the employee.

The University has met its burden of proving that Grievant has not demonstrated the skills, knowledge, or performance required to be a UMC. Grievant was notified of the University’s concerns about her performance and she was given adequate opportunity to improve her performance. When Grievant’s performance did not improve, the University was justified in seeking to remove her from the UMC position.

The evidence presented showed that there were no positions within the Utilization Management area in which Grievant could be transferred or demoted. The evidence also showed that Grievant could not be returned to her former position because of her medical limitations. Thus, the University properly concluded that Grievant should be terminated.

The UMC is a very difficult position requiring the employee to have vast knowledge of many areas of health care and in-depth knowledge of definitions of specialized classifications. It is understandable that even someone with Grievant’s many skills and talents may have difficulty performing the duties of a UMC. Grievant did her best to learn the skills required of a UMC, but she is not best suited for that position.

For the reasons stated herein, the Agency’s termination of Grievant is modified to delay termination until April 8^th, 2001. The Agency is directed to provide the Grievant with back pay for the period from March 13, 2001 until April 8, 2001 less any interim earnings that the employee received during the period of termination and credit for annual and sick leave that the employee did not otherwise accrue. GPM § 5.9(a)(3). P&PM § 1.60(IX)(B)(2).

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.