In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case Number 5222

Hearing Date: June 28, 2001
Decision Issued: July 2, 2001

Due to availability of the participants, the hearing could not be docketed until the 28^th day following appointment of the hearing officer.

Grievant
Attorney for Grievant
Three witnesses for Grievant
Legal Representative for Agency
Human Resource Manager
Eight witnesses for Agency

Was the grievant’s conduct on April 6, 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 issued on May 2, 2001 because of alleged physical abuse of a patient. In addition, the grievant was discharged from employment on May 2, 2001. Following failure to resolve the grievance 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 Mental Health Technician (MHT) since May 2000. The grievant received Mandt System® training¹ on June 22, 2000.² She also read and received a copy of Departmental Instruction No. 201 regarding abuse and neglect of patients. Section 201-1 of MHMRSAS Departmental Instruction 201 on Reporting and Investigation Abuse and Neglect of Clients states, in pertinent part: "The Department has zero tolerance for acts of abuse or neglect." Section 201-3 defines client abuse:

The grievant was working the evening shift (3:00 p.m. to 11:00 p.m.) on Friday, April 6, 2001. The ward to which she was assigned had approximately 14-16 patients and was staffed by one registered nurse and four MHTs. The patients have a variety of mental and physical conditions; some are confined to wheelchairs, others are mentally retarded or mentally ill. At approximately 7:45 p.m., one MHT took the five patients who smoke to the building’s outside courtyard for a smoking break.⁴ The registered nurse also took a smoke break in the courtyard at about the same time. A second MHT was in a room where medication is kept and was preparing medication dosages for all patients. The giving of medication is a routine performed every evening before patients are bathed and put to bed. The grievant began the task of preparing the remaining 8-10 patients for bed. The whereabouts of one MHT during this time are uncertain. Some evidence suggests she was outside smoking, some suggests she was assisting grievant. For reasons explained below, it is concluded that, she may have taken a smoke break but probably also performed at least a portion of the evening care with grievant.

Patients are given showers twice per week on Monday and Thursday. On other nights, patients are given only a cursory sponge bath, especially those who may be fecal incontinent and require washing of their posteriors. This chore is performed in the shower room. If the patient is wheelchair-confined, it is necessary for two MHTs to lift the patient from the wheelchair to perform the required ablutions. One MHT can usually perform this task for compliant ambulatory patients, however, an uncooperative patient might require two MHTs. As each patient was bathed, one MHT escorts that patient from the shower room and summons another to come in. The grievant bathed an ambulatory patient and, at some point during the encounter, threw an empty shampoo bottle overhand at the patient. The bottle struck the patient high on the cheek just below the right eye.

The patient did not complain to anyone. He was later medicated and put to bed at approximately 10:00 p.m. None of the other staff noticed any injury to the patient by the end of their shift at 11:00 p.m. During the night shift (11:00 p.m. April 6 to 7:00 a.m. April 7), the patient apparently slept without incident until sometime after 4:00 a.m. At that time, the patient awoke to go to the bathroom and was seen by an MHT who responded to the alarm when he exited his room.⁵She noticed a reddish, puffy area beneath the patient’s right eye and referred him to the registered nurse.⁶ In response to a question from the nurse, the patient said a bottle had hit him. The nurse did not question him regarding how he was hit or who had thrown the bottle.

The patient in question is a 37-year-old male with a history of chronic psychotic illness, past history of substance abuse and a self-inflicted gunshot wound to the head in 1985 that significantly damaged the frontal lobes of his brain; his estimated IQ is in the mildly mentally retarded range.⁷ He presents a pleasant but mischievious demeanor. His attention span is limited but he is capable of understanding questions and responding to them accurately. He is difficult to understand because he speaks in a very soft whisper and at times, simply mouths his response without audible sound. During the hearing, the patient testified credibly that it was grievant who had thrown the shampoo bottle in an overhand manner and hit him on the right cheek. He said that grievant was neither angry nor joking with him when she threw the bottle. He did not know why she threw the bottle at him and said that no one else was present in the shower room at the time of the incident.

Staff who have known and worked with the patient for several years stated that the patient has a reputation for always being truthful and accurate. He is characterized as an "aggravator" who liked to annoy a particular client and, after being told not to do something by staff (repeatedly flush toilets), he would appear to agree but then would be found repeating the prohibited behavior soon thereafter. However, no witness including grievant, could identify anything about which the patient had ever lied. The staff psychiatrist who has known the patient for several years stated that the patient, "has not been known to give false information."⁸

The incident was reported to the Facility Director early on Monday morning, April 9, 2001. A trained and experienced investigator was promptly assigned to the case; he conducted a complete investigation, including photographs, and interviews with 14 people.⁹ The day shift employees observed no injury to the patient on April 6, 2001. In the first interview the investigator conducted with the patient, he initially said he was hit by a "drink" bottle but later said it was a "big" bottle but was not able to describe the type of bottle. The patient stated the incident occurred in the shower room. The investigator took the patient to the shower room and asked him to find what had hit him. The patient could not find what he was looking for in the shower area. When an adjacent supply closet was opened, the patient’s face lit up and he immediately reached in and took from the shelf a light green Suave shampoo bottle.

No staff person could recall grievant ever falling out of his bed at night. There is no history of this patient ever self-inflicting injury. Grievant denies throwing a shampoo bottle at the grievant. She testified during the hearing that she does not remember whether she bathed the patient on the evening of April 6, 2001. The registered nurse (RN) in charge of the evening shift on April 6, 2001 recalled that grievant had told him she had performed the evening care for non-smoking patients.¹⁰

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. ¹¹

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 Training¹² 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.

Section V.B.3 of the Commonwealth of Virginia’s Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60 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 fighting and/or other acts of physical violence. The agency’s Classified Employee Handbook also addresses Standards of Conduct and provides that Group III offenses include violation of the State’s and agency’s policies on Client Abuse.¹³

Grievant argues that because this incident occurred on a Friday night, there should not have been a shampoo bottle in the shower room (Thursday was the shower night). However, the mere fact that shampoo bottles may be stored in a closet on non-shower nights, does not prove that on the night in question, an empty shampoo bottle could not have been left in the shower room from the preceding evening. Under examination, grievant could not state that a shampoo bottle was not in the shower room, only that if there was, it shouldn’t have been there.

Grievant made much of the fact that the patient’s injury was not discovered until several hours after it had occurred. Administrative knowledge is taken of the fact that signs of minor injuries are not necessarily always visible immediately following the trauma. A wide variety of factors can affect the appearance of redness and bruises and such factors vary significantly from one person to another. Since other staff members were unaware of this incident, they would have no reason to be closely examining the patient for signs of injury. Cursory viewing of the patient during routine encounters (bed checks, giving medication, etc.) would not necessarily have been sufficient to make this minor injury apparent to the casual viewer. Puffiness often accelerates while one is sleeping and therefore it is not surprising that the patient’s injury was much more apparent after he had been sleeping for approximately six hours.

During the investigation of this matter by the agency, grievant had contended to the Facility Director that other MHTs could verify that she was never alone with patient on the evening of April 6, 2001. The Director instructed the investigator to reinterview the MHTs; none corroborated the grievant’s version of events. One MHT stated that grievant had called her late on April 30, 2000 and asked her to state that she was with grievant during the time of the evening care on April 6, 2001. That MHT refused to so state because that was not true. Grievant denies asking this coworker to alter her statement. Grievant has not shown any logical motivation for this coworker to voluntarily state that grievant had asked her to lie.

Grievant has suggested that another client could have been responsible for the injury. In December 2000, another client had struck the patient causing a black eye. Since that time, the patient had been moved to a single room, an alarm system was installed to alert staff to every ingress to or egress from the room and, the patient had been on 15-minute observation status. This required that a staff member personally observe the patient every 15 minutes to verify his whereabouts (and incidentally) to note any untoward situations. While the theoretical possibility exists that another client could have battered the patient, there is no evidence whatsoever to suggest how this could have occurred.

Grievant hints darkly that, during the weekend of April 7-8, 2001, other staff members could have developed the testimony to implicate grievant before the investigation began on Monday morning. In theory, it is possible that another staff member could have injured the patient. However, for this to have occurred, a very detailed cover-up would had to have been arranged between that person and the patient so that the patient would falsely state that grievant (rather than someone else) threw the bottle. This scenario is highly unlikely because of the patient’s reputation for telling the truth and, because it is probable that there would have some unraveling of such a plot during the nine plus hours of testimony taken in this hearing.

Grievant felt that her version of this event should automatically be taken over the word of a patient. This contention is not only without merit, but also it is indicative of her attitude toward patients. The record reflects that this particular patient is not hospitalized of his own free will; in the past he has expressed the desire to leave the facility.¹⁴ The veracity of the patient cannot be judged on the basis that, merely because he is a patient his word is somehow suspect. Rather, one must look to the past history of that patient to judge whether he has a propensity to tell the truth. Here, although this patient is annoying to others, and although he has many disabilities and problems, he has not been shown to lie. In fact, his reputation is for telling the truth.

Finally, grievant disavows any direct attempt to suggest that others conspired against her. Instead, she contends that everyone else is mistaken in certain aspects of their testimony. Given the overwhelming number of witnesses whose testimony disagreed with that of the grievant, this contention must be given little credence. In summary, the agency has demonstrated, by a preponderance of evidence, that it is more likely than not that grievant did throw an empty shampoo bottle at a patient on April 6, 2000 causing a slight bruise underneath his right eye. Therefore, pursuant to the agency’s policy of zero tolerance for patient abuse, disciplinary action is warranted.

The decision of the agency is hereby affirmed.

The Group III Written Notice issued on May 2, 2001 and the discharge from employment are AFFIRMED. The disciplinary action shall remain active pursuant to the guidelines in Section VII.B.2 of the Standards of Conduct.

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