In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case Number 5225

Hearing Date: July 3, 2001

Decision Issued: July 5, 2001

Grievant

Two witnesses for Grievant

Representative for Agency

Legal Representative for Agency

Six witnesses for Agency

Did the grievant’s actions on May 3, 2001 warrant 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 14, 2001 because he had been found to be sleeping on the job. The grievant was initially discharged from employment as part of the disciplinary action. At the second resolution step, the Facility Director reinstated the grievant and imposed a three-day suspension. Grievant advanced his grievance to the third step and 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 for four years. He is a direct service associate. He normally works from 7:00 a.m. to 3:30 p.m.

The patients at this facility are mentally retarded, physically handicapped, mentally ill or some combination of these conditions. Patient escorts transport patients to the medical clinic. The patient is then taken to a waiting room until a physician or nurse can see the patient. After their medical problem is attended to, the patient is again brought to the waiting room until a van arrives to pick up the patient. Grievant was responsible to monitor the patients while in the waiting room to assure that they remained in the room and to assist them if necessary.

On May 3, 2001, grievant was assigned to watch patients during their visits to the medical clinic. At approximately 9:50 a.m., one patient was in the waiting room with the grievant. A program support technician came through the area to take the elevator to another floor. While waiting for the elevator, he noticed grievant sitting in an upholstered armchair with his head resting on the back of the chair and his eyes closed; he appeared to be asleep. At that time, a patient escort entered the waiting area and also noticed that the grievant appeared to be sleeping. The patient escort approached the grievant and, when she was less than one foot away, called grievant’s name three times. Grievant did not open his eyes, did not answer or in any other way acknowledge that he had heard the patient escort. At that point, another employee came into the area and asked a question of the patient escort. The patient escort walked from the waiting area to the hallway and noticed that the grievant had by then opened his eyes.

About five minutes later, a dental assistant observed grievant sitting in the waiting room; she noted that grievant appeared weak, pale and feverish. Grievant stated that he was not feeling well and that he believed his blood sugar was low. Grievant is diabetic and has taken medication for this condition since November 2000. When the grievant first began this medication, it would occasionally make him drowsy. On May 3, 2001, grievant had taken his daily dose of medication with breakfast. However, he did not feel drowsy or sleepy during the morning but did have a sore throat. Grievant had not worked the previous day, had not worked any overtime and was not working a double shift.

On April 17, 2001, grievant had been temporarily assigned to work as a patient escort. While performing this function for a few weeks, grievant was under the supervision of a different person than his regular supervisor. On May 8, 2001, the program nursing director to whom grievant’s temporary supervisor reported wrote a brief description of the May 3^rd incident on what is called an "Anecdotal Documentation" form which contains a section headed "Expectations/Corrective Action.",sup>1 She and the grievant’s regular supervisor (also a program nursing director) met with grievant, gave him a copy of the form and advised grievant of their expectations (that he remain awake while on duty). No corrective action was noted on the form; however, both nursing directors verbally advised grievant that his regular supervisor would decide what corrective action would be taken and advise him later.

On May 10, 2001, grievant’s regular supervisor notified him in writing that she had requested a Group III Written Notice with termination of employment.² The memorandum gave grievant four days within which to submit any evidence he might have.

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.³

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 Training⁴ 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.h 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 sleeping during work hours.⁵

The agency has demonstrated, by a preponderance of the evidence, that the grievant was sleeping during work hours. Although grievant denied sleeping, the credible testimony of two witnesses establishes that grievant was asleep sufficiently soundly that he did not respond when his name was called three times from one foot away. Moreover, grievant was unaware that the two witnesses were in the waiting room at the same time. His lack of awareness corroborates that, more likely than not, grievant was asleep during this time.

Grievant argues that the two witnesses conspired to falsely accuse him of sleeping on the job. However, grievant had only worked with these two people for two weeks. Grievant has not shown any reason or motivation for the two witnesses to concoct a false story. Grievant also alleges that the patient escort (who is black) is racially biased against him because she had been overheard saying to a Caucasian employee, "Did he think we won’t gonna get his white ass fired." While such a statement might be an indicator of racial bias, other witnesses have never heard the patient escort say anything else that would support that conclusion. However, even if one assumes for the sake of argument that the patient escort is racially biased, grievant has not provided any evidence to support his assertion that she conspired with the other witness. Mere allegation is insufficient to carry the burden of persuasion.

Grievant argues that the "anecdotal documentation" he received on May 8, 2001 was supposed to be the extent of his corrective action. He inferred, without so stating, that receiving both the anecdotal documentation and the Written Notice amounts, in effect, to double jeopardy. The anecdotal documentation form is somewhat ambiguous. Because it includes language referring to "corrective action" and states that such notes "are treated as verbal counseling," a person receiving only the written form might reasonably conclude that such counseling was the full extent of corrective action. However, in the instant case, the credible testimony of the two supervisors who presented this form to the grievant established that grievant was told, in no uncertain terms, that the anecdotal documentation discussion was not the corrective action. Moreover, his regular supervisor told grievant during this meeting that she had yet to determine the appropriate corrective action but would notify him of her decision when they next met. Therefore, it is concluded that grievant was not subject to double jeopardy.

In any case, the Standards of Conduct provide that corrective action for commission of an offense can include "counseling and/or disciplinary action."⁶ Thus it is possible for a supervisor to counsel an offender soon after an incident so as to avoid a recurrence of the offense, but defer imposition of discipline until such time as management has had a chance to thoroughly evaluate the case and determine the appropriate level of discipline.

The grievant proffered unsworn, undated statements from three employees who said that they had not observed grievant sleeping at 9:45 a.m., 9:55 a.m., and at other times during the morning of May 3, 2001. The agency has not disputed the observations of these three employees. However, the fact that these three did not observe grievant sleeping at other times does not prove that grievant was awake at 9:50 a.m.

During the course of this hearing, grievant argued that the patient escort, the program support technician, a physician, his temporary supervisor, two program nursing directors and the facility director were all lying about portions of their testimony. However, he was unable to provide either any evidence to support his allegation or any motivation for these seven people to lie.

The facility director elected to mitigate the disciplinary action by reinstating grievant to his position because grievant stated (during the grievance process) that he was taking medication and because this was the first disciplinary action the grievant had received. Grievant told the facility director during the second step resolution meeting that the medication makes him drowsy. However, during the hearing, grievant acknowledged that he was not drowsy on May 3, 2001 and that the drowsiness had occurred when he had first started taking the medication in November 2000. Thus, grievant somewhat mislead the facility director and this, in part, resulted in a reduction of the disciplinary action.

Sleeping on the job is always considered a serious offense for any state employee. However, certain positions are held to an even higher standard because of the nature of the job. When a state employee is responsible for the safety and well being of patients, it is absolutely critical that the employee be alert at all times. Grievant was responsible to assure the whereabouts and well being of patients who were awaiting medical care or transportation. Plainly, he could not do so when he was sleeping. Even if grievant was sleeping for only a few minutes, a patient in his care could easily have wandered off resulting in the potential for injury or worse. Based on the seriousness of the offense and the mitigation already applied by the agency, the level of discipline applied is reasonable and justified. No basis has been demonstrated to further reduce the discipline.

The disciplinary action of the agency is affirmed.

The three-day suspension and the Group III Written Notice issued to the grievant on May 14, 2001 are AFFIRMED. The Written Notice shall remain in the grievant’s personnel file for the length of time specified in Section VII.B.2.c 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 The Anecdotal Documentation form contains a statement at the bottom that states, "Errors documented on anecdotal notes are treated as verbal counselings (sic) in progressive disciplinary actions."
² Exhibit 11.
³ § 5.8 Department of Employment Dispute Resolution Grievance Procedure Manual
⁴ Now known as the Department of Human Resource Management (DHRM).
⁵ Exhibit 18. DHRM Policy No. 1.60, Standards of Conduct, September 16, 1993.
⁶ Exhibit 18. Section VI.B, Ibid.