In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case Number 5232

Hearing Date: July 23, 2001

Decision Issued: August 1, 2001

On March 22, 2001, Grievant was issued a Group II Written Notice of disciplinary action for:

She was also issued a Group III Written Notice of disciplinary action for:

Both notices provide for removal of Grievant effective March 22, 2001.

On April 23, 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 she requested a hearing. On June 20, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On July 23, 2001, a hearing was held at the Agency’s regional office. Upon Grievant’s motion, the Hearing Officer found just cause to extend the 30-day time period for issuing the grievance decision.

Grievant

Grievant’s Representative

Director of Health Services

Legal Assistant Advocate

Human Resource Analyst

Human Resource Manager

Director

Registered Nurse

1. Whether Grievant should receive a Group II Written Notice of disciplinary action with removal.
2. Whether Grievant should receive a Group III 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 Licensed Practical Nurse in its Infirmary. The Agency’s Facility provides services to individuals with mental retardation. The Infirmary is open 24 hours per day, seven days per week. Grievant worked the night shift (midnight until 8 a.m.) during one month and the day shift (8 a.m. until 4 p.m.) during the following month. Grievant had an active Group II Written Notice issued on February 10, 1999 for failure to follow a supervisor’s instructions. (Agency Exhibit 12.)

On February 11, 2001, Grievant was charged with driving under the influence of alcohol or other intoxicants in violation of Va. Code § 18.2-266. She appeared in Court with her attorney on March 13, 2001 and asked the Court to continue the case to another date. She was in the courtroom for approximately 20 to 30 minutes. On April 5, 2001, the Court convicted Grievant of the charge based on her guilty plea. She was fined, given a suspended sentence, and referred to an alcohol treatment program.

Grievant regularly attends medical appointments with two separate doctors whose offices are located in the same medical complex. Both Grievant’s residence and the Facility are within a 30-minute drive of the medical complex. She tries to schedule the two appointments on the same day but sometimes must schedule them on different days. When she schedules the appointments on different days, she tries to schedule the appointments on adjoining days.

When Grievant takes sick leave to attend medical appointments she typically takes eight hours of leave. For example, on January 4, 2001 Grievant requested eight hours of leave beginning at midnight and ending at 8 a.m. on February 28, 2001. The remarks section of her leave request states, "Dr. Appt." The Director of Health Services approved the request on January 16, 2001. On February 2, 2001, Grievant requested eight hours of sick leave beginning at midnight and ending at 8 a.m. on February 2, 2001 and eight hours of sick leave beginning at midnight and ending at 8 a.m. on February 5, 2001. The remarks section of her leave request states, "Dr.’s Appt. [follow up] mental health and pain management." Her request was approved by the Director of Health Services on February 2, 2001. (Grievant’s Exhibit 1).

On March 1, 2001, Grievant requested sick leave for eight hours during the day on March 13, 2001 and eight hours during the day on March 14, 2001. (Agency Exhibit 7). She had doctor’s appointments scheduled for those days and could not schedule the appointments on the same day because of doctor unavailability. The Director of Health Services approved the leave request. She attended those doctor’s appointments. Grievant presented the Agency with a doctor’s note dated March 14, 2001 indicating that she could not work on March 13, 2001 and March 14, 2001. (Agency Exhibit 8). Presenting a doctor’s note was Grievant’s customary practice and was expected by her supervisor.

When Grievant requested the sick leave on March 1, 2001 for a medical appointment on March 13, 2001, she did not realize she also had to appear in court on March 13, 2001. Only after contacting an attorney did she realize her court date was on March 13^th. She did not think to alter her sick leave request because she in fact did attend a medical appointment on March 13^th.

Unacceptable behavior is divided into three types of offenses, according to their severity. Group I offenses "include types of behavior least severe in nature but which require correction in the interest of maintaining a productive and well-managed work force." Department of Human Resource Management Policies and Procedures Manual ("P&PM") § 1.60(V)(B). 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." P&PM § 1.60(V)(B)(2). Group III offenses "include acts and behavior of such a serious nature that a first occurrence should normally warrant removal." P&PM § 1.60(V)(B)(3).

Under the Agency’s policy,¹"Employees who are arrested, charged or convicted [of a crime] must notify their supervisors within five (5) workdays of the event. Failure to report the event as required may result in disciplinary action." (Agency Exhibit 3). Failure to "comply with established written policy …" is a Group II offense. P&PM § 1.60(V)(B)(2)(a).

Driving under the influence of alcohol or other intoxicant is a class 1 misdemeanor. Va. Code § 18.2-266. Conviction of a Class 1 misdemeanor may result in confinement in jail for not more than twelve months and/or a fine of not more than $2,500. Va. Code § 18.2-11. Grievant’s criminal offense is one which must be reported under the Agency’s policy.

Grievant violated the Agency’s established written policy when she failed to timely report her arrest and conviction. Her behavior requires disciplinary action and the Group II Written Notice is upheld.

Grievant contends she did not know she had to report her arrest and conviction. The Agency’s evidence shows that if she did not know, she should have known. A copy of the policy was provided to Grievant and was discussed with her. (Agency Exhibit 1). In addition, the Agency maintains copies of its policies and procedures on computers to which Grievant would have easy access. The Agency also has its policies and procedures in binders in the office area where Grievant worked.

"Falsifying any records, including, but not limited to, vouchers, reports, insurance claims, time records, leave records, or other official state documents" constitutes a Group III offense. P&PM § 1.60(V)(B)(3)(b).

"Falsifying" is not defined by the P&PM, but the Hearing Officer interprets this provision to require proof of an intent to falsify by the employee in order for the falsification to rise to the level justifying termination. This interpretation is less rigorous but is consistent with the definition of "Falsify" found in Blacks Law Dictionary (6^th Edition) as follows:

The Hearing Officer’s interpretation is also consistent with the New Webster’s Dictionary and Thesaurus which defines "falsify" as:

Grievant was not attending a medical appointment for the 30 minutes she was in court on March 13, 2001. From this the Agency concludes Grievant was falsifying her leave records. The Hearing Officer finds that the Agency has not met its burden of proving Grievant falsified leave records because (1) Grievant credibly testified that she did not intend to falsify documents and (2) the Agency’s application of its policy did not show Grievant should have known that her actions would constitute falsification of leave records.

Credible Denial. Grievant credibly testified she did not intend to falsify her leave records by attending court on the same day she attended a doctor’s appointment. Although her court date was scheduled before she filled out her request for medical leave, she did not realize this while she was making the request for leave. She did not later change the request for leave because she in fact attended a doctor’s appointment on March 13, 2001.

Application of Sick Leave Policy. Under the Department of Human Resource Management Policy 4.55, employees are allowed to use their accrued sick leave to take time off from work "if an employee’s medically-related appointment(s) cannot be scheduled during his or her non-work hours." P&PM § 4.55(II)(A). The Agency’s Facility has a separate sick leave policy which provides, "Sick leave is the State’s way of protecting employees against loss of pay when they must miss work because of illness or injury. *** Sick leave may be used for absences due to illness, or for medical appointments that cannot be scheduled at times other than during work hours." Employees who wish to use sick leave must comply with a supervisor’s request for verification of the need to use sick leave. Forms of verification include "evidence that the employee has a medical appointment that could not have been scheduled during the employee’s non-work hours." (Agency Exhibit 4).

Both the Commonwealth’s and the Facility’s sick leave policies imply that if a medical appointment can be scheduled during non-work hours, then sick leave would not be allowed during work hours. In other words, sick leave for medical appointments may be taken only for medical appointments that cannot be scheduled outside of normal work hours.

Most doctor’s offices are open from 9 a.m. to 5 p.m. on Mondays through Fridays. Employees who work night shifts could easily attend doctor’s appointments at times outside of their normal work hours. If the Commonwealth’s and the Facility’s policies are applied as written, then night shift workers would rarely be able to take sick leave to attend doctor’s appointments. This would create a disparity between employees working day shifts (who would be able to take sick leave) and employees working night shifts (who would not be able to take sick leave). In addition, employees who work the night shift may be forced to attend medical appointments during the time they would normally be sleeping and return tired on the next shift.

Because the Agency has many employees working evening and night shifts and the Agency does not wish to allow a disparity between its employees, the Agency’s Facility has adopted an informal practice regarding sick leave for medical appointments. Employees working night shifts are permitted to take sick leave if they are scheduled to attend medical appointments during the daylight hours following their shift. For example, if an employee worked a night shift that ended at 8 a.m. and she had a medical appointment at 10 a.m. that morning, the employee would be permitted to take sick leave for the night shift. Even though the medical appointment was not scheduled during the employee’s work hours, the employee would be permitted to take sick leave.

The Hearing Officer cannot conclude that Grievant should have known that taking sick leave to attend a medical appointment was limited to the actual time she spent at the medical appointment. The Agency’s practice was to permit sick leave even when no medical appointment was scheduled.

Reduction Not Appropriate. Grievant failed to comply with the written sick leave policy. Under other circumstances, her behavior would justify a Group II Written Notice for failure to follow established written policy. The Hearing Officer will not reduce the disciplinary action to a Group II Written Notice because the Agency has failed to show that the policy is "established." Since the Facility’s informal policy permits employees on night shift to take sick leave to sleep, it does not appear that the written policy is followed as written.

Grievant now has two active Group II Written Notices. She could be removed from her employment. When the facts of this case are combined with the previous Group II Written Notice, terminating Grievant is not appropriate. Grievant must be reinstated. The Hearing Officer will award partial back pay from June 1, 2001.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group II Written Notice of disciplinary action is upheld, in part, but reversed to the extent the Agency seeks removal. The Agency’s issuance of a Group III Written Notice of disciplinary action is reversed. The Agency is directed to reinstate Grievant to her former position or, if occupied, to an objectively similar position. The Agency is further directed to provide Grievant with partial back pay from June 1, 2001 less any interim earnings that the employee received and credit for annual and sick leave that the employee did not otherwise accrue from June 1, 2001. GPM § 5.9(a).

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 "Agencies are authorized to develop personnel policies that do not conflict with policies and procedures that are published and distributed by the [Department of Human Resource Management.]" P&PM § 1.01. Department of Human Resource Management Policy 1.05 differs from the Agency's policy in that it only requires an employee to notify his or her supervisor of any conviction of "an alcohol beverage control law or law that governs driving while intoxicated, based on conduct occurring in the workplace." (Emphasis added.) If only the Commonwealth's policy applied, Grievant would not have been obligated to report her conviction because her use of alcohol did not occur in the workplace. The Agency's policy, however, is not inconsistent with the Commonwealth's policy - it is simply more stringent.

² Agencies have the authority to develop policies concerning the use of sick leave that are not inconsistent with state policy and law. See, Annotations to Department of Human Resource Management Policy 4.55.