In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case Number 5223

Hearing Date: July 5, 2001

Decision Issued: July 10, 2001

Due to availability of the participants, the hearing could not be docketed until the 31^st day following appointment of the hearing officer.

Grievant

Three witnesses for Grievant

Legal Representative for Agency

Human Resource Manager

Eight witnesses for Agency

One witness ordered by Hearing Officer

Observer from Office of Attorney General

Was the grievant’s conduct on February 16, 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 March 8, 2001 because of inappropriate physical contact with a patient. In addition, the grievant was discharged from employment on March 8, 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 Direct Service Associate for 28 years.

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:

Hospital Instruction Number 3125 promulgates the facility’s policy regarding Staff/Patient Relationships and states, in pertinent part, that "Staff members are prohibited from engaging in sexual activity with patients."² During August 2000, grievant had taken training courses on human rights and patient abuse.³ The agency’s policy on patient abuse is found in Departmental Instruction Number 33 and states, in pertinent part:

On February 16, 2001, a group of approximately 15 patients was required to gather in the game room between 11:20 a.m. and 11:40 a.m. for a designated "homeroom." The purpose of "homeroom" is to account for the whereabouts of a specific group of patients to assure that none have wandered away from the facility. Following this brief accounting by two staff members, they took the patients, as a group, to the dining area for lunch. They estimate that they left for lunch between 11:38 a.m. and 11:40 a.m., according to the clock on the wall of the game room. Staff members are required to always lock empty rooms when leaving; the door locks automatically when pulled shut. The staff members locked the room behind them as they escorted the patients to lunch. All staff members have keys to the game room.

In one corner of the large game room is a small, enclosed office. A human services care worker (HSCW) is assigned to work in this office and monitor patients who may be in the game room. At approximately 11:35 a.m. (according to her best estimate) she was in her office and heard the noise in the game room dissipate as the patients and staff left for lunch. Less than a minute later, she arose from her desk and opened her office door to the game room because she had heard a door close. She saw the grievant and a female patient in the diagonally opposite corner of the room (near the door to the adjacent television room) approximately 35 feet away. The grievant was facing the patient, and had his hands on her hips; the patient had her hands on the grievant’s hips. The two had their faces touching and appeared to be kissing each other.

Grievant immediately turned and went through the door into the television room. The HSCW was so shocked at what she had seen that she "fell" back into her office.⁵ She then again looked out her doorway and by that time the patient was gone. She again returned to her desk and within a few moments, grievant appeared outside her office door making small talk about the weather. The HSCW mumbled a brief response and the grievant left the area. After sitting for about two minutes, the HSCW went to see her supervisor. The HSCW was so distraught that she was unable to write a statement about what she had witnessed. She related the incident to her supervisor (a senior recreation therapist) who wrote down what the HSCW told her. Another senior recreation therapist arrived while grievant’s supervisor was writing down grievant’s oral statements.

Grievant was conducting a group session in the first-floor music room from 10:30 a.m. to 11:20 a.m. Grievant remained in the music room for at least ten minutes after the session ended, talking with patients and rewinding the movie he had shown during the group session. At approximately 11:30 a.m., he took the VCR on a cart out of the music room and down a hall toward the elevator (located just past the game room). He encountered another employee who was going to the second floor and who volunteered to return the VCR to the second floor. Grievant had prearranged to meet his wife at 11:45 a.m. for lunch at a restaurant not far from the facility (9-10 minute drive by grievant’s estimate; 5-6 minute drive by the estimate of a witness who went to a restaurant across the street from grievant). He did arrive at the restaurant between 11:45 a.m. and 11:50 a.m.

The clocks in various facility rooms are battery-operated. The times on all the clocks vary from one to the other by several minutes and may be as much as five minutes off from the actual time. Some witnesses based their time estimates on the clocks, some used their own wristwatches and some just guessed or estimated the time references.

The patient’s psychiatrist testified that the patient had been providing sexual favors to the grievant for money for several months prior to the February 16, 2001 incident. Grievant had been disciplined previously for unwarranted touching of a fellow employee.

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.⁶

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 Training⁷ 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. 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.

The agency has borne the burden of proof necessary to demonstrate, by a preponderance of the evidence, that the grievant did kiss a patient on February 16, 2001. The testimony of the HSCW who witnessed the incident was extremely credible and persuasive. Moreover, she had previously considered the grievant to be a gentleman and always pleasant. She had no reason to dislike the grievant and no motive to fabricate a story. Her testimony was corroborated by her supervisor and another senior recreation therapist, both of whom observed the demeanor of the HSCW within a few minutes after the incident. Their testimony verified that the HSCW was very upset because she thought she had failed to protect the patient from being inappropriately touched by grievant.

Grievant argues that the reaction of the HSCW to a mere kissing incident was a gross overreaction to the situation (thereby inferring that her version was contrived). The HSCW’s supervisor and the other recreation therapist described her as "crying profusely" and "crying hysterically." While an objective observer might well consider this to be an overreaction, the evidence is overwhelming that this was, in fact, the HSCW’s actual reaction. Whether she overreacted is not as important as the fact that she was reacting in a genuine way to what she had witnessed. Had she not witnessed the incident, she would not have reacted at all. Thus, the issue of her possible overreaction is a red herring.

The grievant makes much of the time lines in this case, contending that he could not possibly have been in the game room because he arrived at the restaurant for lunch at 11:45 a.m. – a drive of 9-10 minutes. The hearing officer finds little merit in this argument. The evidence established very clearly that the witnesses’ determination of time was based on different mechanisms. Some looked at clocks, some looked at wristwatches and some just made approximate guesses. Moreover, there was significant testimony that the time from clock to clock varied and that some of the clocks were several minutes off from the actual time.

Grievant acknowledges being in the hall outside the game room at about 11:30 a.m. His wife states that he arrived at the restaurant no earlier than 11:45 a.m. During that 15-minute interval, there was ample opportunity to have gone into the game room, had a 30-second encounter with the patient, leave the room and drive to the restaurant. While the HSCW in charge of the homeroom says she and the patients left the game room at 11:38 to 11:40 a.m., it is entirely possible that the actual time was five minutes or more earlier because of the inaccurate clocks.

The agency’s abuse policy requires that anyone witnessing patient abuse shall immediately report this information directly to the facility director.⁸ Here the HSCW failed to report directly to the facility director but went first to her supervisor. Grievant argues that this failure to follow the policy contaminated the case. This argument is another red herring. The preponderance of evidence establishes that the grievant did abuse the patient; the fact that the witness did not immediately go to the facility director does not change that fact.

The grievant had initially named the patient as a witness but elected not to call her. The particular facility at which this incident occurred has made it a practice not to call patients as witnesses in grievance hearings. However, the hearing officer determined that testimony of this patient was relevant and necessary. The hearing officer also determined by questioning her psychiatrist that she is not retarded, is able to remember the incident and that testifying in the hearing would not be unduly traumatic for her. The patient did testify, and acknowledged that she had been kissing a staff member but would not identify who that person was. She corroborated the details of where she was standing in the game room as provided by the witnessing HSCW. When asked if the person who kissed her was in the hearing room, she remained silent.

Following her testimony, the agency proffered a tape recording made by the investigator who interviewed the patient soon after the incident. Grievant objected to the tape recording because the patient had just testified in person. The hearing officer overruled the objection because 1) the patient had been unresponsive to key questions during the hearing, 2) it was apparent that the patient was intimidated (whether by the large number of people in the hearing room or by grievant’s presence could not be determined), 3) because the tape recording could be authenticated by the investigator and, 4) because the interview contains relevant information. During that tape recorded one-on-one interview, the patient was more forthcoming and did identify the grievant as the person who kissed her and touched her vagina.

Grievant argues that even if he did kiss the patient, she had consented to his advance. Moreover, he contends that there is no evidence that there has been any lasting or significant psychological damage to the patient. Such contentions (while suggestive of a mea culpa) are naught but obfuscation. The patient has significant psychiatric diagnoses and has been under treatment at this facility for nearly three years. Even if the kissing was consensual, and of no import to the patient, the grievant’s physical encounter was highly inappropriate because as the caregiver, such contact with a patient is always forbidden.

The decision of the agency is hereby affirmed.

The Group III Written Notice issued on March 8, 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

¹ Exhibit 5.
² Exhibit 2.
³ Exhibit 3. Course credit report for grievant.
⁴ Exhibit 4.
⁵ The HSCW did not actually fall down but used this expression to explain her disbelief at what she had seen.
⁶ § 5.8 Department of Employment Dispute Resolution, Grievance Procedure Manual, effective July 1, 2000.
⁷ Now known as the Department of Human Resource Management (DHRM).
⁸ Exhibit 5. Section 201