Issue: Group III Written Notice with termination (client abuse, verbal); Hearing Date: June 21, 2001; Decision Date: June 21, 2001; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; AHO: Carl Wilson Schmidt, Esquire; Case No.: 5214
DEPARTMENT OF EMPLOYMENT DISPUTE RESOLUTION
DIVISION OF HEARINGS
DECISION OF HEARING OFFICER
In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case Number 5214
Hearing Date:
June 21, 2001
Decision Issued: June 21, 2001
PROCEDURAL HISTORY
On April 27, 2001, Grievant was issued a Group III Written Notice of disciplinary action with removal for:
Client Abuse (Verbal). Based on the findings of Investigation #707-01-019 as confirmed by the Department of Mental Health, Mental Retardation and Substance Abuse Services (DHMRSAS) Central Office.
On April 30, 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 he requested a hearing. On May 22, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On June 21, 2001, a hearing was held at the Agency’s regional office.
APPEARANCES
Grievant
Grievant’s Counsel
Agency Representative
Administrative Investigator
Shift Supervisor
Third Shift Supervisor
Medication Assistant
Supervisor
Facility Director
Charge Aide
ISSUE
Whether Grievant should receive a Group III Written Notice of disciplinary action with removal from employment.
BURDEN OF PROOF
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.
FINDINGS OF FACT
After reviewing the evidence presented and observing the demeanor of each witness, the Hearing Officer makes the following findings of fact:
The Department of Mental Health Mental Retardation and Substance Abuse Services employed Grievant as a direct care worker. Grievant had been employed by the Agency for 35 years before he was removed from employment on April 27, 2001. Witnesses testified that he performed his job in accordance with expectations and had no prior active disciplinary action. One co-worker testified Grievant had a calm, attentive work demeanor.
The Agency provides continuous housing and care for individuals with mental retardation. The Agency refers to its residents as clients.
The Client resides at the Facility. He is an individual with mental retardation and is verbally aggressive. He sometimes yells and curses staff and other patients.
On April 12, 2001, in the early morning (12:45 a.m.), the Shift Supervisor was sitting at her desk doing paper work when she overheard a conversation in the adjoining room between Grievant and the Client. She described the events as follows:
As I entered the living area I could hear [Grievant] talking to [the Client] who was standing in [the] hallway near the clients’ bathroom. [Grievant] [was] redirecting [the Client] to go back to his room. I heard him say that [the Client] wouldn’t be getting a newspaper1 because he had urinated on himself. I walked down the hallway checking/looking in on the clients who were in bed. When I got to [the Client’s] room, [Grievant] was waiting for him to get dressed.
I walked back up the hallway and went into my office where I closed the door and began going thru my papers. Moments later I could hear loud voices on the dayhall. I listened, and could hear [Grievant] say "You know damn well you didn’t have to lay there in that bed and pee like you did, you could’ve got your ass up out of that bed and used the bathroom. Now get your damn ass on over there …."
(Agency Exhibit 2).
The Shift Supervisor testified that she could hear the conversation between the Client and Grievant and Grievant was loud and upset. She could hear the Client speaking but could not discern his words.
The Shift Supervisor promptly reported what she had heard and the Agency began an investigation. Following the investigation, the Agency concluded Grievant engaged in verbal client abuse.
As part of the investigation, Grievant was asked to give a statement. On April 12, 2001, Grievant wrote:
Concerning the incident on 2-C on the night of April 11th, I asked a particular client to get up and go to the bathroom and I had a newspaper for him (he likes to look at the paper) but what I didn’t know at the time was that he had already wet the bed. I got kind of aggravated and fussed at him for wetting the bed. I told him he wasn’t going to get the newspaper because he had wet the bed. He became loud and wanted to go to the day-hall anyway. I lost my cool and might have said some things that weren’t nice which I am sorry for. I told [the Client] when he started getting loud he would have to be quiet or go back to bed.
The regular staff were all off on this particular night. I was acting charge. Sometimes things don’t go as smooth when the regular staff are off.
Regarding my (losing my cool) I have been taking some new medications Lipitor & Flomax for about a month which both do have some known side-effects. I think my nerves have been bothering me some too. My wife says she finds it very hard to sleep with me since I kick and jerk in my sleep.
I don’t know if there is any more that I can add to this one incident. I will admit to being a little hot headed sometimes and say things which I regret later [and] this is most definitely one of those times.
(Agency Exhibit 6). On the same day, Grievant also wrote a note to the Facility Director saying:
I wish to apologize for losing my cool last p.m. The incident concerned a client wetting the bed. I fussed at him for wetting the bed [and] he became angry and got loud and refused to go back to bed. I guess that’s when I got loud too. I don’t remember exactly what was said.
(Agency Exhibit 7).
Grievant had been taking prescription drugs called Flomax and Lipitor. The primary side effect of these drugs is dizziness. (Grievant Exhibits 1 and 2).
The Agency did not conduct a psychological examination of the Client. There is no evidence that the Client suffered any physical or emotional harm as a result of Grievant’s statements.
CONCLUSIONS OF LAW
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:
Abuse means any act or failure to act by an employee or other person responsible for the care of an individual that was performed or was failed to be performed knowingly, recklessly or intentionally, and that caused or might have caused physical or psychological harm, injury or death to a person receiving care or treatment for mental illness, mental retardation or substance abuse. Examples of abuse include, but are not limited to, acts such as:
(Agency Exhibit 9). The Agency’s Facility has a client abuse policy patterned after DI 201. (Agency Exhibit 10).
In order to meet its burden of proof, the Agency must prove (1) the words used by Grievant and (2) that the words were expressed by Grievant in a manner that had the reasonable effect of demeaning, threatening, intimidating or humiliating a client. Merely showing that an employee used curse words without showing their intended effect is insufficient to establish client abuse. It is not necessary for the Agency to show actual psychological harm to a client so long as it can show that there reasonably might be psychological harm.
The Agency has met its burden of proof to establish that Grievant used language that might have demeaned, threatened, intimidated, or humiliated the Client. Based on the Shift Supervisor’s testimony, it is clear Grievant was loud, upset, and was directing his demeaning and intimidating comments at the Client. The curse words used by Grievant do not in themselves constitute client abuse; but when placed in context, they illustrate the harshness of Grievant’s comments.
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). Departmental Instruction 201-8 specifically states that employees engaging in client abuse may be subject to termination. Consequently, an employee engaging in client abuse may be disciplined by issuance of a Group III Written Notice. The Agency’s issuance of a Group III Written Notice to Grievant is upheld.
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).
The Hearing Officer believes the punishment suffered by Grievant should be mitigated2 for several reasons. First, Grievant immediately recognized that his behavior was inappropriate and he promptly apologized. His demeanor throughout the investigation and during the hearing was one of sincere regret. He acknowledges he has learned an important lesson. Second, Grievant has worked for the Agency for 35 years. No evidence was presented showing Grievant had any prior disciplinary action taken against him. A co-worker testified he was a good employee. No evidence was presented contradicting the co-worker’s opinion. Grievant should receive a 30 workday suspension.
DECISION
For the reasons stated herein, the Agency’s issuance to the Grievant of a Group III Written Notice of disciplinary action is upheld, but the disciplinary action is reduced to a 30 workday suspension. The Agency is directed to reinstate the Grievant to his former position or, if occupied, to an objectively similar position. GPM § 5.9(a). The Agency is directed to provide the Grievant with back pay for the period of termination that exceeds the 30 workday suspension less any interim earnings that the employee received during that period 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).
APPEAL RIGHTS
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:
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:
Judicial Review of Final Hearing 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