In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services’ Case Number 5228

Hearing Date: July 11, 2001

Decision Issued: July 12, 2001

On March 29, 2001, Grievant was issued a Group II Written Notice of disciplinary action with removal for:

On April 27, 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 June 12, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On July 11, 2001, a hearing was held at the Agency’s regional office.

Grievant

Agency Representative

Human Resource Manager

Program Manager

Human Service Care Specialist

MR Programs Director

Whether Grievant should receive a Group II Written Notice of disciplinary action with removal.

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:

The Department of Mental Health Mental Retardation and Substance Abuse Services employed Grievant as a Human Services worker before his removal on March 29, 2001. He had received a Group II Written Notice on September 23, 1999 and a second Group II Written Notice discussed below. The Agency treats individuals with mental retardation and refers to these individuals as its clients.

Grievant worked with clients in the pica unit. These clients have a tendency to insert objects into their body cavities. Several times per day, Agency staff must conduct body checks of the clients and record the results on a sheet of paper. Grievant received training regarding how to conduct body checks and the need for documenting the results. (Agency Exhibit 10).

Grievant received several counseling letters regarding pica procedures. On January 7, 2000, Grievant received a memorandum advising him that he failed to properly document a pica procedure and that his actions were unacceptable and that future incidents would result in further disciplinary action. (Agency Exhibit 15). Twelve days later, on January 19, 2000, Grievant failed to document a body check. He received a formal letter of counsel on January 30, 2000. (Agency Exhibit 16).

On May 17, 2000, Grievant again failed to complete a body check on a client and the Agency issued him a Group II Written Notice with one-day suspension. (Agency Exhibit 2).

Agency staff including Grievant received a memo dated May 31, 2000 stating:

(Agency Exhibit 12). (Emphasis original). Staff including Grievant also received a separate memorandum on May 31, 2000 outlining the body check procedure and stating:

(Agency Exhibit 7). (Emphasis original).

On March 19, 2001, Grievant was responsible for conducting scheduled body checks of certain clients. (Agency Exhibit 8). He failed to properly document three body checks for a particular client. The Agency issued Grievant a Group II Written Notice and terminated him because of the accumulation of Written Notices.

Department of Human Resource Management’s Policies and Procedures Manual ("P&PM") Policy 1.60 sets forth the Commonwealth’s Standards of Conduct governing State employees. Unacceptable behavior is organized into three groups according to severity with Group I being the least severe and Group III being the most severe offenses. Group II offenses "include acts and behavior which are more severe in nature and are such that an additional Group II offense should normally warrant removal." An example of a Group II offense is:

(P&PM § 1.60(V)(2)(a).)¹

Properly documenting body checks is essential to treating clients. Medical professionals do not have the opportunity to observe clients at all times. They rely on Agency staff to report the conditions of clients. Body checks serve as the data upon which medical professionals decide whether to prescribe medications and alter behavioral treatment programs. Inaccurate or incomplete data can jeopardize patient care.

The Agency has taken extraordinary measures to make sure its staff know that: (1) they must conduct pica procedures as scheduled, (2) failure to document a pica procedure is the same as not having done the procedure, and (3) failure to conduct or document pica procedures will result in disciplinary action.

Grievant failed to document the pica procedures for a client and, thus, the Agency properly issued a Group II Written Notice.

Group II Written Notices are cumulative. A second active Group II Written Notice normally should result in the discharge of the employee. P&PM § VII(D)(2)(b). Including the notice giving rise to this grievance, Grievant has three Group II Written Notices, two of which were for failure to perform body checks. Grievant’s removal must be upheld.

Grievant contends he should be reinstated because he enjoys working with the clients, he is especially good at working with aggressive clients, and he treated the clients much like he would his own family. Grievant contends he simply made a mistake in failing to document even though he actually conducted the body checks.

Grievant has many skills and talents making him a good employee; unfortunately, he lacks one essential skill and that is a pattern of adequate documentation. Grievant admits to having made a mistake and regrets to having done so. The content of his character appears strong. The Agency has established, however, that an employee’s failure to document negates the other job qualities an employee may have. It is likely true that Grievant is very caring and competent at helping clients, but his inability to consistently document renders him unsuitable for employment with the Agency.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group II Written Notice of disciplinary action with removal is upheld.

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

¹ The Agency lists failure to follow a safety rule as the reason it issued the Group II Written Notice. Grievant's behavior, however, more closely parallels a failure to follow established written policy. The items listed under P&PM § 1.60(V)(B)(2) are a nonexclusive list of examples of behavior constituting a Group II offense.