In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case Number 5195

Hearing Date: May 16, 2001
Decision Issued: June 1, 2001

On March 21, 2001, Grievant was issued a Group III Written Notice of disciplinary action with removal for:

On March 23, 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 April 23, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On May 16, 2001, a hearing was held at the Agency’s regional office.

Grievant
Counsel to Grievant
Agency Representative
Shift Supervisor
Direct Care Worker
Administrative Investigator
Facility Director

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

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 has been employed with the Department of Mental Health Mental Retardation and Substance Abuse Services for over 20 years. She provides direct care services to patients (who are called clients) at the Facility.

The Client resides at the Agency’s Facility. She is in her 30s and is short and weights approximately 145lbs. The Client is self-abusive. She often slaps, hits, and bites herself and others. She is capable of injuring herself and others and has done so in the past. Grievant had worked with the Client before and knew the Client’s tendency for self-abuse and to injure others.

On March 3, 2001 at approximately 4:40 p.m., the Client was seated in a two-person couch in an open living area. Also seated in the couch was the Charge-Aide. The Charge-Aide was Grievant’s supervisor at the time. Grievant was assigned to a "one-on-one" with the Client because of the Client’s behavior problems. A "one-on-one" is where a staff member must be within arm’s length of a patient at all times.

Grievant observed the Client start biting her chair and hand so Grievant stood directly in front of the Client and bent downward towards the Client who was still sitting down. As Grievant was bending down, the Client reached up and grabbed Grievant’s clothing collar at the throat. This caught Grievant by surprise. Fearing she was about to be bitten by the Client, Grievant raised her right hand level with her right ear. The palm of her hand was open. She then swiftly brought her hand downward towards the Client’s left arm and pushed that arm to the Client’s left. There was the sound of a slap at the time Grievant pushed the Client’s arm away. Grievant was not trying to hurt the Client, Grievant was trying to protect herself and remove herself from the Client’s grasp.

As Grievant bent towards the Client, the Shift Supervisor opened the door to the living area. She was 38 feet away from the couch where the Client and Charge-Aide were sitting. The Charge-Aide saw Grievant raise her right hand up to her right ear with her palm open. Grievant then brought her right hand downward and across the Client’s face and toward the left side of the Client’s body. The Shift Supervisor did not see Grievant’s hand touch the Client’s face or see the Client move her face in a manner suggesting she had been hit in the face. The Shift Supervisor did not see whether Grievant’s hand hit any part of the Client’s body.

When medical professionals later examined the Client, the examination showed no marks on the Client’s face where Grievant would have hit her if the Shift Supervisor’s account had been correct. On the Client’s left forearm, however, there appeared a new red area approximately 6 and 1/3 inches by 3 inches.

The Agency has trained Grievant in the application of the Mandt System. The main goal of the Mandt System is to teach an individual how to effectively manage a potentially negative or dangerous situation by calming the individual’s own emotional response and managing the individual’s own behavior so the individual can interact with other people positively. (Mandt System Student Manual, page 7.)

The Agency has a duty to the public to provide its clients with a safe and secure environment. It has zero tolerance for acts of abuse or neglect and these acts are punished severely. Departmental Instruction ("DI") 201 defines client abuse as:

• Rape, sexual assault, or other criminal sexual behavior
• Assault or battery
• Use of language that demeans, threatens, intimidates or humiliates the person;
• Misuse or misappropriation of the person’s assets, goods or property
• Use of excessive force when placing a person in physical or mechanical restraint
• Use of physical or mechanical restraints on a person that is not in compliance with federal and state laws, regulations, and policies, professionally accepted standards of practice or the person’s individual services plan; and
• Use of more restrictive or intensive services or denial of services to punish the person or that is not consistent with his individualized services plan.

(Agency Exhibit 5). The Agency’s Facility has a client abuse policy patterned after DI 201. (Agency Exhibit 6).

For the Agency to meet its burden of proof in this case, it must show that (1) Grievant engaged in an act that she performed knowingly, recklessly, or intentionally and (2) Grievant’s act caused or might have caused physical or psychological harm to the Client. The Agency has established the second element but has not proved the first.

The Client’s left forearm showed a new red area approximately 6 and 1/3 inches by 3 inches. The Client had a history of being self-abusive such that she may bite, scratch, or slap herself. It is possible that the redness on the Client’s forearm resulted from self-abuse. It is more likely than not, however, that the redness resulted from Grievant’s grabbing the Client’s left arm because (1) the red area is approximately the size of a hand and (2) Grievant’s testimony showed she was standing above the Client moving her hand downward on top of Grievant’s arm. The Agency has established "physical harm".¹

Grievant did not knowingly or intentionally harm the Client. Her act was more of a reaction than anything else. She feared for her personal safety and acted to prevent herself from being injured. The Hearing Officer reaches this conclusion based on the Grievant’s and the Shift Supervisor’s description of the events as well as the fact that the Client was sitting next to the Grievant’s supervisor. It would seem unusual for Grievant to knowingly or intentionally harm a client when Grievant was well aware that her supervisor would see such misbehavior.

Nothing in DI 201 prohibits an employee from using physical force to prevent a client from injuring the employee. No evidence was presented suggesting Grievant’s training or professional judgment would require her to permit the Client to bite the Grievant. The Hearing Officer will not create such a duty when there is no evidence to show that such a standard governs Grievant’s behavior.

The evidence presented shows that it is appropriate for an employee to gain a physical release from a client who is grasping the employee’s clothing. The Mandt System Trainer Manual addresses "Release from Clothing Holds" as follows:

Grievant was authorized by The Mandt System Trainer Manual to attempt to release herself from the Client’s grasp. The question is whether she did so recklessly.

DI 201 does not define "recklessly". Blacks Law Dictionary (6^th ed.) defines "recklessness" as:²

The New Webster’s Dictionary defines "reckless" as: "wildly careless, reckless driving || indifferent to danger, reckless courage." These definitions draw a distinction between being merely negligent and being reckless.

Grievant did not act recklessly. Grievant’s reaction was not wildly careless or without regard to the possible danger to life or safety of the Client. Grievant’s behavior does not constitute client abuse under DI 201 or the Facility’s client abuse policy.

Although Grievant’s behavior was not reckless, her actions were contrary to the Mandt System. The Mandt System offers an example of how to gain release assuming a patient has used his right hand to grab the front left side of an employee’s shirt:

1. If the person grabs the front left side of your shirt with his right hand, try the following: Ask the person to please let go of your shirt and/or ask him what he wants.

2. Take your left hand and grasp your clothing about 8 inches from his hand (i.e. on the palm side of the person’s hand) in order to anchor your shirt.

3. Using your right hand to grasp as much of his right hand and wrist area as you can, look for the weak point or the weak area of the hold (i.e., Which way are his large knuckles pointing?). If the fabric is stretchy, anchor your shirt to take up the stretch.

4. Gain a physical release by using a quick, short movement:

a. Move his hand (pop the hand off) in the direction his large knuckles are pointing (up, down, to your left, or to your right) or …
b. Pull the fabric out, in the opposite direction his large knuckles are pointing (up, down, to your left, or to your right) or …
c. Do "a" and "b" at the same time. Move his hand (pop the hand off) in the direction his large knuckles are pointing, and at the same time pull the fabric out, in the opposite direction his large knuckles are pointing.

5. Release his hand and move away, or you may maintain a hold on his wrist or forearm if you desire to do any follow-up techniques, i.e., assisting, redirecting, or restraining (as a last resort), or you may let go and step away. Remain facing the person. Continue to monitor and de-escalate yourself and the situation.

(Agency Exhibit 4). Applying this example to the situation faced by Grievant but accounting for the fact that the Client used her left hand to grab the right side of Grievant’s shirt shows she failed to follow the Mandt procedures. Grievant did not use a quick, short movement to "pop" the Client’s hand in the direction of the large knuckles or pull the fabric out in the opposite direction of the large knuckles. Grievant used her right hand and brought it downward in a "swatting" motion onto the Client’s left forearm.

The Department of Human Resource Management has issued Policies and Procedures Manual ("P&PM) Policy 1.60 setting forth Standards of Conduct for State Employees. Unacceptable behavior is organized into three groups according to severity with Group I offenses being the least severe. Group III offenses include acts and behavior of such a serious nature that a first occurrence normally should warrant removal. P&PM § 1.60(V).

The Mandt System is intended to promote the safety of the Agency’s clients and employees. Failure to follow the Mandt System constitutes "Violating safety rules where there is a threat of physical harm" and, thus, is a Group III offense. P&PM § 1.60(V)(3)(g).

Disciplinary action may be reduced under Policy 1.60 if there are mitigating circumstances such as: (1) conditions that would compel a reduction to promote the interest of fairness and objectivity or (2) an employee’s long service or otherwise satisfactory work performance. P&PM § 1.60(VII)(C)(1).

Grievant has been employed by the Agency for 20 years. No evidence was presented of any prior disciplinary action being taken against her. In light of her long service and otherwise satisfactory work performance, the Hearing Officer finds mitigating circumstances such that Grievant should receive no more than a Group II Written Notice.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group III Written Notice of disciplinary action with termination is reduced to a Group II Written Notice of Disciplinary action. GPM § 5.9(a)(2). P&PM § 1.60(IX)(B)(1). The Agency is directed to reinstate the Grievant to her former position or, if occupied, to an objectively similar position. GPM § 5.9(a)(1). The Agency is directed to provide the Grievant with back pay for the period of termination 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.