In the matter of Department of Corrections Case Number 5207

Hearing Date: June 6, 2001
Decision Issued: June 13, 2001

On February 16, 2001, Grievant was issued a Group I Written Notice of disciplinary action for:

On March 2, 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 May 14, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On June 6, 2001, a hearing was held at the Agency’s regional office.

Grievant
Grievant’s Representative
Warden
Agency’s Representative
RN Manager
Assistant Warden Operations
Doctor
LPN

Whether Grievant should receive a Group I Written Notice of disciplinary action.

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 is employed as a nurse with the Department of Corrections. She began working for the Agency in July 1995. HerH3eHer shift is fromShe works from 4 p.m. until 12:30 a.m. in the Facility’s Medical Department. No evidence was presented of any previous disciplinary action being taken against Grievant.

When the Warden joined the Facility in 1998, it became apparent to her that there were problems with staff accountability in the Medical Department and she attempted to correct those problems through her nursing supervisor. In November or December of 2000, the nursing supervisor left the Facility on sick leave, and several months later resigned. Although doctors are not usually direct supervisors of nurses, the Warden chose to have the Doctor become the supervisor of the nursing staff, including Grievant. The Doctor had high expectations for her staff. She was quick to discipline staff who failed to comply with her instructions. On February 15, 2001, the Doctor was removed as a supervisor when the Agency was able to obtain a supervising nurse from a neighboring correctional facility.

Inmates live in six detached buildings. Three times each day, inmates leave their housing units and walk to the Medical building to receive their medication. Grievant works in the Medical building and is one of the nurses responsible for dispensing medication. She sorts, organizes, and packs prescription drugs for inmates. She is responsible for making sure inmates receive the drugs for which they are authorized to receive. To receive medication from Grievant, an inmate must show his identification. After receiving the medication, the inmate must take a drink of water and consume the pills in Grievant’s view. Grievant records whether the inmate consumed the medication. This practice is called "pill call" or "pill run" and lasts for approximately one and a half hours during normal working conditions.

When the Facility is in lockdown status, the pill call procedure changes. The Agency periodically schedules lockdowns in order to search the Facility for contraband. During a lockdown, inmates cannot leave their cells. Medication must be delivered to the inmates. Grievant’s customary responsibilities increase. Not only must she sort and organize the medication, she must pack it and place it on a delivery cart and, then roll the cart to each of the buildings. Delivering medication to the inmates adds an additional hour to the pill call procedure.

In addition to handling pill call, Grievant is responsible for reviewing inmate request for medical treatment. Routine requests for medical treatments are called "informal grievances" and emergency request are called "emergency grievances." Emergency grievances must be resolved within eight hours and informal grievances must be resolved in 15 days.

On January 24, 2001, the Facility was in lockdown status. The Doctor drafted an assignment sheet identifying additional assignments for Grievant and two other nurses to perform during their shifts. These assignments included completing emergency and informal grievances, updating routine paperwork, and re-stocking the treatment room. The Doctor handed the sheet to Grievant and instructed her to complete as many of the additional assignments as she could and to notify the nurse for the following shift where Grievant stopped on the assignment sheet so that nurse could begin at the point where Grievant stopped. Grievant did not believe she could complete many of the assignments on the sheet because the Facility was in lockdown. Grievant asked the Doctor if the Doctor wanted Grievant to stay late to complete the assignments. The Doctor said that was not necessary.

Grievant completed her regular duties and some of the additional duties requested by the Doctor. She informed the nurse on the following shift regarding how much of the assignment sheet she completed. Grievant misplaced the assignment sheet and did not return it to the Doctor as the Doctor had requested.

On January 25, 2001, the Facility was in lockdown status. The Doctor attempted to have Grievant perform additional duties just as the Doctor had requested the previous day. The Doctor attempted to hand an assignment sheet to Grievant. The Doctor described the interaction as follows:

(Grievant’s Exhibit 2).

Grievant completed her regular duties and also some of the additional assignments on the assignment sheet. She informed the nurse on the following shift of the assignments Grievant had completed. Near the end of Grievant’s shift on January 25, 2001, Grievant sent the Doctor¹ an email stating:

(Grievant’s Exhibit 3).

Grievant does not typically respond to the Doctor by sending an email about what she accomplished during her shift. She did so on January 25, 2001 because of the concerns expressed to her about her failure to turn in the assignment sheet on the previous day.

The Department of Corrections Procedure Manual ("DOCPM") 5-10 specifies unacceptable behavior and divides that behavior into three types of offenses according to their severity. Group I offenses include the least severe behavior requiring corrective action in the interest of maintaining a productive and well-managed work force. Inadequate or unsatisfactory job performance is a Group I offense. DOCPM § 5-10.15.

The Agency contends Grievant failed to complete and return the assignment sheet for January 24, 2001. The evidence showed that Grievant completed as many of the assignments on the assignment sheet as she could but failed to return the assignment sheet because she misplaced it. The Agency was unable to show any material consequences resulting from Grievant’s failure to return the assignment sheet. A copy of the assignment sheet was placed on the board in the office and was on the computer for other nurses to review. Grievant completed as much of the work as she could and notified the nurse on the following shift how much work had been completed. Grievant’s oversight simply does not rise to a level requiring disciplinary action in this instance.

The Agency contends Grievant failed to accept and complete the assignment sheet on January 25, 2001. The evidence, however, showed that Grievant accepted the assignment sheet, completed as many tasks as she could, notified the nurse on the following shift how much work had been completed and then responded by sending the Doctor an email notifying her of the status of the work assignments. The Agency has not met its burden of proof regarding Grievant’s failure to perform her duties on January 25, 2001.

Grievant was disrespectful to her supervisor. When the Doctor handed the assignment sheet to Grievant on January 25, 2001, Grievant was initially reluctant to take the sheet and then responded to the Doctor in a sarcastic manner. Grievant was not disciplined for being disrespectful. The Hearing Officer recommends that the Agency, in its sole discretion, counsel Grievant regarding how she should behave when she receives instructions from a supervisor and Grievant disagrees with the instructions or feels they are unreasonable.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group I Written Notice of disciplinary action is rescinded. GPM § 5.9(a). The Agency is directed to remove the Written Notice from the Grievant’s personnel file in accordance with Department of Corrections Procedures Manual § 5-10.19(B) (June 1, 1999).

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.

Carl Wilson Schmidt, Esq.
Hearing Officer