In the matter of Department of Corrections’ Case Number 5245

Hearing Date: July 26, 2001

Decision Issued: August 3, 2001

On February 7, 2001, Grievant was issued a Group I Written Notice of disciplinary action with demotion for:

On March 5, 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 July 2, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On July 26, 2001, a hearing was held at the Agency’s regional office.

Grievant

Grievant’s Representative

Warden

Chief Nurse

Licensed Practical Nurse

Nursing Coordinator

Whether Grievant should receive a Group I Written Notice of disciplinary action and disciplinary transfer.

After reviewing the evidence presented and observing the demeanor of each witness, the Hearing Officer makes the following findings of fact:

The Department of Corrections employed Grievant as the Head Nurse at one of its Facilities with a 24-hour staffed nursing unit. Nurses who are late or cannot work their scheduled shifts are required to contact Grievant regardless of whether Grievant is working or is off duty. Grievant usually works during the day, but she has an answering machine at her home to receive calls from nurses who cannot work in the evenings. Grievant also has a long distance pager so that nurses can page her and she then can return their calls.

Grievant was not working and was away from her home in the afternoon of January 27, 2001. The Licensed Practical Nurse ("LPN") was working her regularly scheduled shift beginning at 7 a.m. and ending at 7 p.m. Nurse R was supposed to relieve the LPN at approximately 7 p.m. At approximately 3:20 p.m., Nurse R called the LPN and said she was taking her sick child to the hospital. The LPN informed Nurse R that it would be all right for Nurse R to arrive late, but advised her to call Grievant to inform Grievant as well.

At approximately 5:10 p.m., Grievant called the nursing unit and spoke with the LPN to find out how the unit was operating. The LPN was in her usual "high-spirits" and informed Grievant that the unit was quiet and the shift was going well. She told Grievant that she had everything in control but that Nurse R had called and indicated she would be late to work. The LPN informed Grievant that Nurse R being late was not a problem because, the LPN would stay over until Nurse R arrived. Grievant replied she had not received any messages from Nurse R and Nurse R had not paged her. Grievant told the LPN, she would wait until Nurse R called her.

Grievant called the nursing unit again at approximately 8 p.m. and spoke with LPN. Grievant asked if Nurse R had arrived at work. The LPN responded that Nurse R was not yet at work but that the LPN would work an additional four hours pursuant to the Agency’s "draft" policy. Grievant told the LPN, Grievant would wait to hear from Nurse R.

At approximately 10:30 p.m., the LPN called the hospital were Nurse R had taken the sick child and spoke with Nurse R’s husband. Nurse R’s husband said the doctor had not yet seen the child.

At 1:20 a.m. the following morning, Nurse R called the LPN and she had just gotten home but may have to go back to the hospital with her child. The LPN told Nurse R to remain at home and the LPN would cover the remainder of her shift.

Nurse R never came into work. Neither the LPN nor Nurse R called Grievant to inform Grievant that the LPN would work a 24-hour period. Nurse R called Grievant’s home telephone number but did not leave a message on her answering machine. Nurse R did not page Grievant because she believed there was no telephone number at the hospital were Grievant could call Nurse R. Because Grievant never received a call from anyone indicating Nurse R did not arrive at work, Grievant assumed that Nurse R arrived to work later on that evening. Grievant first learned that the LPN had worked a 24-hour period on the following day.

After issuing a Group I Written Notice to Grievant, the Agency demoted her, reduced her salary, and transferred her to another facility because she had an active Group III Written Notice.

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.

An employee who has worked 24 hours without sleep may find it difficult to properly function. The Agency’s concern is understandable. Grievant should be disciplined if she knew or should have known that the LPN was working an additional shift.

Grievant and the LPN are the primary sources of information regarding what happened on January 27, 2001. The LPN testified credibly that she made a unilateral decision to work an additional 12-hour shift in order to cover for another nurse going through a crisis and that she did not tell Grievant of her decision. Grievant credibly testified that she was not aware the LPN had made that decision. Nurse R testified that she never left a message or paged Grievant and that she knew the Agency’s policy was to contact Grievant directly.

Grievant reasonably assumed that because Nurse R did not page her or leave a message on her answering machine that Nurse R went to the Facility to finish the remaining portion of her shift. The Agency contends Grievant knew or should have known the LPN was working an additional 12-hour shift. No evidence was presented, however, to contradict Grievant’s evidence that she did not know the LPN’s actions. No evidence was presented suggesting Grievant or the LPN had changed their stories over time or that they had coordinated their testimony or otherwise were not telling the truth.

The evidence is not sufficient for the Hearing Officer to conclude that Grievant knew or should have known that the LPN was working an additional 12-hour shift. The Agency has not met its burden of proof and the disciplinary action must be reversed.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group I

Written Notice of disciplinary action is rescinded. 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 full back pay resulting from the adverse salary action and credit for annual and sick leave that the employee did not otherwise accrue. 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