Issue: Group III Written Notice with termination (verbal abuse of patient); Hearing Date: July 18, 2001; Decision Date: July 19, 2001; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; AHO: David J. Latham, Esquire; Case No.: 5239

When hired in September 1997, grievant certified that he received and read material in an orientation packet including a section on the reporting of abuse of patients. Since that time grievant has received refresher training on patient abuse ³on December 9, 1998, Mandt System® training ⁴on September 15, 1997, June 15, 1999, July 14, 1999 and July 25, 2000, and patient rights training on March 26, 1999 and September 26, 2000.⁵

On April 12, 2001 at about 5:20 p.m., grievant was working in the kitchen area of a residential building on the facility campus. Meals are prepared elsewhere on the campus, put on trays and transported to this building. On this date, grievant was distributing trays to the patients through a small window between the kitchen and a hallway adjacent to the cafeteria area. Because of dietary restrictions for some patients, patients are called one by one and trays are distributed individually to the specific patients for whom they have been prepared. Grievant called a female patient whose last name is of foreign origin. He mispronounced her name several different ways and the patient felt he was making fun of her name.

When the patient received her tray from grievant, she noticed that butter was missing and asked grievant for butter. ⁶Grievant responded with words to the effect of, "Listen bitch, what you got is what you get." The patient responded in kind, calling grievant a "fat, faggot bitch." Grievant said, "Don’t talk to me bitch, go sit down." The patient went into the cafeteria area. After eating her meal, she began crying and said, "It isn’t right for staff to call patients bitches." ⁷She reported the incident to a direct service associate (DSA). The patient did not know grievant’s name so the DSA brought her to the kitchen area where she pointed out the grievant. The patient asked grievant for his name and he asked why she wanted his name. The patient responded that she wanted to call the Patient Advocate. Grievant said he would call the advocate; he went to the telephone and did call the Patient Advocate.

The other DSA then took the patient upstairs to calm her down. Another DSA also called the Patient Advocate to report the matter. Two other female patients had been standing in the hall near the door from the hall into the kitchen area. She heard the verbal exchange between grievant and the first female patient and verified the essence of the interchange. The facility psychologist describes both patient/witnesses as high functioning, non-delusional patients. ⁸The investigation reflects that the patient/complainant does not have a history of lying and does not have a history of falsely accusing staff of abuse.

During the grievant/patient verbal exchange, one other employee was in the kitchen.⁹ This employee was not paying attention to the conversation and recalls only that, at one point, grievant turned toward him and asked, "Did she call me a fat faggot bitch?" The employee shrugged his shoulders because he had not heard the patient say that. Another employee was sitting in the cafeteria area near the hallway, however, she was able to hear primarily only the patient’s side of the exchange with grievant.

On April 12, 2001, grievant was working a double shift. He was reported by other employees to have been in a bad mood that day. Earlier that day, grievant had a misunderstanding with a registered nurse; he later told another employee to tell the nurse that, "she can kiss my ass." ¹⁰Grievant also acknowledged that he was annoyed at the other DSAs on his ward on April 12, 2001. ¹¹Grievant has freely used the word "bitch" in referring to females on other occasions. ¹²

Grievant was verbally counseled for verbal abuse of a patient on December 31, 1999; the counseling session was documented in writing. ¹³He also received a Group II Written Notice for an "talking down" to a patient on February 8, 2000; this disciplinary action was subsequently reduced to written counseling.¹⁴

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. ¹⁵

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 Training ¹⁶promulgated 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 [from employment]. ¹⁷The agency’s policy on patient abuse provides that abuse will be cause for the issuance of a Group III Written Notice.¹⁸

In evaluating the evidence in this case, the following factors were considered: 1) the agency’s investigator conducted a thorough and detailed investigation within two weeks of the incident; her testimony was credible and persuasive; 2) the witness statements obtained by the investigator were reasonably proximate in time to the event, which lends credence to their reliability; 3) grievant denies, under oath, that he committed the offense; 4) grievant’s two witnesses did not hear the entire verbal exchange and; 5) the patient/complainant and two other patient/witnesses state that grievant did call the patient a bitch. Circumstantially, three fellow employees verified that the patient was upset immediately following the incident and complained that grievant had called her a bitch.

In weighing this evidence, it is noted that the statements from the three patients are hearsay; accordingly, less evidentiary weight is assigned to each of the three statements. Nonetheless, when viewing the totality of the evidence, it must be concluded that more likely than not, grievant did call the patient/complainant a bitch. The cumulative weight of three direct witnesses plus the circumstantial verification from three employees outweighs the grievant’s denial. Therefore, the agency has demonstrated, by a preponderance of the evidence, that the grievant did verbally abuse the patient complainant by calling her a bitch on April 12, 2001.

The issue of whether grievant could, or should, have given the patient a pat of butter is a red herring. Grievant was not disciplined for failure to give butter to the patient but for calling the patient a demeaning name and intimidating her.

Grievant alleged that the patient/complainant was delusional; however, he presented no credible evidence to support this allegation. The testimony of grievant’s witness (a licensed practical nurse) that the patient was delusional was totally discredited by her inability to distinguish between a delusion and a hallucination. Moreover, the agency’s evidence established that the patient was not delusional, was in fact a high-functioning patient, and was well enough to be discharged from the facility soon after this incident occurred.

Having concluded that disciplinary action was warranted in this case, consideration now turns to the appropriate level of discipline. As noted above, agency policy provides that patient abuse, whether verbal or physical, warrants a Group III Written Notice. The Hearing Officer concludes that a Group III Written Notice is the appropriate level of discipline given the agency policy and the facts in the case. However, the question of whether there are any mitigating circumstances requires further comment.

The agency issued a Group III Written Notice and terminated the grievant’s employment for his offense. In Section IV of the Notice, the agency noted that it considered as a circumstance to support termination, the fact that grievant had an active Group III Written Notice in his record. ¹⁹The Group III Written Notice to which the agency refers was issued on May 14, 2001 for an offense that occurred on May 3, 2001. The Hearing Officer finds that consideration of the May 3^rd offense in determining the appropriate level of discipline for the instant case was not appropriate for the following reasons.

First, when an employee commits an offense, the level of discipline to be imposed must be determined based upon any prior counseling and disciplinary action. In most cases, discipline is administered soon after the offense, as is required by the Standards of Conduct. ²⁰However, when the imposition of discipline is delayed for several weeks, and a second offense occurs during the interim, the second offense (and resulting discipline) may not be considered in determining the level of discipline for the first offense. Giving consideration to subsequent offenses and discipline is a violation of the principle of fundamental fairness.

Second, until an employee knows how severe is the discipline for the first offense, he does not know how much to modify his behavior to avoid future discipline. With respect to the instant case, if the agency had promptly issued discipline prior to the May 3^rd offense, it would have been impossible to consider the second offense as a circumstance to support termination of employment. That the agency delayed imposition of discipline for the first offense does not change the underlying principle that only discipline prior to the first offense may be given consideration.

The agency also relied on its assessment that grievant had been untruthful about two events to support its decision to discharge the grievant. First, the agency concluded that grievant had lied when he said he was late for a meeting with the facility director due to a family emergency. Grievant testified that he was a few minutes late because his father had been taken to a hospital emergency room and because he had a brief discussion with a nurse he encountered when he arrived at the facility campus. The agency did not rebut grievant’s testimony. Second, the agency relied on its conclusion that grievant had lied about attempting to call the Patient Advocate. During the hearing, however, the Facility Director acknowledged that he subsequently obtained evidence that verified grievant’s contention. Thus, the available evidence does not support the allegation that grievant lied about either event.

Therefore, neither the subsequent discipline in May 2001 nor the two events in the preceding paragraph support the decision to terminate grievant’s employment. However, it is concluded that there are other circumstances that do support the agency’s decision to terminate the grievant’s employment. First, the preponderance of evidence establishes that grievant was not truthful when he denied calling the patient a bitch. Second, grievant has had extensive training about patient rights, patient abuse and the need to treat patients with dignity and respect. Third, grievant has twice been counseled, in writing, because he had previously verbally abused patients.

The disciplinary action of the agency is affirmed.

The Group III Written Notice issued to the grievant on May 25, 2001, and his discharge effective May 25, 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

¹Exhibit 2.
²Exhibit 3. General Administrative Policy Statement Number 050-57, November 15, 1996.
³Exhibit 4.
⁴Exhibit 6. The main goal of The Mandt System® is to teach one how to effectively manage a potentially negative or even dangerous situation by calming one's own emotional response and managing one's own behavior so you can interact with other people positively. Page 7, The Mandt System® Student Manual, revised May 31, 1998.
⁵Exhibit 5. Grievant's Individual Training Record.
⁶The kitchen area has a refrigerator containing extra butter and other condiments that can be given to patients when the trays lack such items.
⁷Exhibit 1. Investigator's Summary, Witness Statement S-2, April 24, 2001.
⁸Both patient/witnesses, as well as the patient/complainant, had been discharged from the facility between the date of the incident and the date of the grievance hearing.
⁹Grievant and the other employee believe a third employee may have been in the kitchen but neither of them can identify this person.
¹⁰Exhibit 1. Pages 9 & 11, Investigator's Summary, April 26, 2001.
¹¹Exhibit 1. Page 10, Ibid.
¹²Exhibit 1. Page 11, Ibid.
¹³Exhibit 7, page 2. Memorandum to grievant, February 18, 2000
¹⁴Exhibit 7, page 5. Memorandum to grievant, April 19, 2000.
¹⁵§ 5.8 Department of Employment Dispute Resolution Grievance Procedure Manual
¹⁶Now known as the Department of Human Resource Management (DHRM).
¹⁷Exhibit 18. DHRM Policy No. 1.60, Standards of Conduct, September 16, 1993.
¹⁸Exhibit 3. Ibid.
¹⁹Although the agency initially discharged grievant in connection with this Group III Written Notice, it later reinstated him and imposed a three-day suspension in lieu of termination.
²⁰Exhibit 10. "As soon as a supervisor becomes aware of … an offense, the supervisor and/or management should use corrective action to address such behavior." (Underscoring added). Section VI.A, Standards of Conduct Policy No. 1.60, effective September 16, 1993.