Issue: Compliance, Documents; Ruling date March 23, 2001, Ruling #2001QQ; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; Outcome: Non-compliant (agency).

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution


COMPLIANCE RULING OF DIRECTOR


In the matter of Department of Mental Health, Mental RetardationSubstance Abuse Services

EDR Ruling Dated March 23, 2001

The grievant has requested a compliance ruling in his October 30, 2000 grievance initiated with the Department of Mental Health, Mental Retardation, and Substance Abuse Services (DMHMRSAS).1 The grievant claims that the agency has failed to (i) provide him with information that he requested relative to his grievance, (ii) respond to a memorandum, and (iii) accept the recommendation of the first step respondent.2 As relief, the grievant has requested that the information be released, or that the agency's allegation and disciplinary action be reversed.

FACTS

The grievant is employed as an Attending Physician at DMHMRSAS. On September 18, 2000, the grievant was issued a Group II Written Notice for alleged patient neglect/abuse. After the disciplinary action, the grievant made a series of requests to management for information and documentation.3

On October 30, 2000, the grievant initiated his grievance asserting that (i) the finding of patient neglect and the disciplinary action were unwarranted; (ii) the agency failed to provide due process, violated written Hospital policies, failed to provide due diligence and misinterpreted/misapplied written policy; and (iii) the allegation of abuse and its support by the Facility Director and the Human Resource Manager were retaliatory in nature. On that same day, the grievant requested information under the provisions of the grievance procedure.4 On November 1, 2000, the grievant notified the agency of noncompliance and requested a compliance ruling from this Department. Subsequently, on November 15, 2000, management responded to the grievant's request and forwarded information. The grievant reviewed management's response, determined that the agency was still in noncompliance and met with EDR staff on January 11, 2001 to clarify the remaining requests for information.5 These issues are discussed in turn below.

DISCUSSION

The grievance procedure requires both parties to address procedural noncompliance through a specific process.6 That process assures that the parties first communicate with each other about the noncompliance, and resolve any compliance problems voluntarily without this Department's involvement. Specifically, the party claiming noncompliance must notify the other party in writing and allow five workdays for the opposing party to correct any noncompliance. If the agency fails to correct the alleged noncompliance, the grievant may request a ruling from this Department. Should this Department find that the agency violated a substantial procedural requirement and that the grievance presents a qualifiable issue, this Department may resolve the grievance in the grievant's favor unless the agency can establish just cause for its noncompliance.7

Request for Records

The grievance statute provides that "[a]bsent just cause, all documents, as defined in the Rules of the Supreme Court of Virginia, relating to actions grieved shall be made available upon request from a party to the grievance, by the opposing party."8 This Department's interpretation of the mandatory language "shall be made available" is that absent just cause, all relevant grievance-related information must be provided.

The grievance statute further states that "[d]ocuments pertaining to nonparties that are relevant to the grievance shall be produced in such a manner as to preserve the privacy of the individuals not personally involved in the grievance."9 Documents, as defined by the Rules of the Supreme Court of Virginia, include "writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form."10 However, a party is not required to create a document if the document does not exist.11 To summarize, absent just cause, an agency must provide the grieving party with all relevant documents upon request, in a manner that preserves the privacy of other individuals.12

Both parties to a grievance should have access to such documents during the management steps and qualification phase, prior to the hearing phase. Early access to information facilitates discussion and allows an opportunity for the parties to resolve a grievance without the need for a hearing. To assist the resolution process, a party has a duty to conduct a reasonable search to determine whether the requested documentation is available and, absent just cause, to provide the information to the other party in a timely manner.

In this case, the grievant contends that the agency has not provided him with all requested information relevant to his grievance. First, the grievant claims that he has not been given information on the wound care practice of the physician whose review of the grievant's patient care led to the finding of patient neglect/abuse and the disciplinary action. During this Department's investigation, human resource management responded that although this information was not readily available within its specific division, the information could be obtained through other management channels. Significantly, the agency did not claim that the requested information is irrelevant, privileged, confidential, or that it does not exist; they simply have not made it available to the grievant.

In addition, the grievant has asked the agency to produce "any other information about me in the possession of any state employee or anyone under contract to the state."13 Management responded that this request was "overly broad, voluminous, and overly burdensome to produce."14 In subsequent communications, the grievant narrowed his request by asking for "any and all records (written, electronic, taped or otherwise) relating to the allegation, investigation, and substantiation of the abuse and any and all such records containing references to [his] performance or behavior" in the files of at least eight agency personnel that have "not already been provided in response to [his] FOIA request."15

This Department has not, and at this stage, could not review the requested documents. Nevertheless, as described, the following documents appear to be relevant to the grievance: (i) documents concerning the wound care practice of another physician, which relate to the reviewing physician's qualifications and may be relevant to understanding the basis for the physician's review and findings, such as the approved standard of care and mitigation issues, and (ii) documents that may be in the possession of eight agency personnel concerning the allegations in his Written Notice. The admissibility, materiality and weight to be given any such documents would necessarily best be left to a hearing officer as fact finder.

Thus, because the requested documentation appears to be relevant to the grieved disciplinary action, the agency is directed to conduct a reasonable search to obtain the documentation and to provide such to the grievant. For example, with respect to requested documentation that may be in the possession of the eight personnel named by the grievant, these individuals can be asked to review their own documents (e.g., emails, memoranda, case files, notes, tapes, etc.) related to the issues presented by the grievant and to provide any relevant documentation in their custody to management. After a reasonable search, the agency should respond to the grievant's requests by providing the requested documents or a specific written explanation as to why any of the requested information will not be provided (e.g., no such documents exist, the documents exist but are protected by a legal privilege, the documents would be overly burdensome to collect). Further, any documentation provided to the grievant should be redacted, where appropriate, to protect the legitimate privacy interests of third parties, and the agency may charge the grievant the actual cost to retrieve and duplicate the documents.

If the grievant is dissatisfied with management's production of documents and/or written response to his request, he may raise the issue through a prehearing conference with the hearing officer appointed to conduct his hearing. Disciplinary actions automatically qualify for a hearing, and hearing officers are authorized to issue orders for the production of documents or the appearance of witnesses, generally by conducting a pre-hearing conference.16 At that time, the hearing officer will have the authority to determine whether any specific document sought by either party should be produced, and in what form, given the applicable facts and issues that may emerge in that setting.

If either party to this grievance believes that the hearing officer has exceeded his authority or has failed to comply with the grievance procedure by ordering or failing to order the production of any documents, that party may then request a compliance ruling from this Department on the hearing officer's exercise of authority. While a hearing officer does not have subpoena power, he or she has the authority to draw factual inferences if a party, without just cause, fails to produce relevant documents or fails to make available relevant witnesses. Thus, although a hearing officer cannot compel an agency to produce a document, the agency's failure to do so could result in an adverse inference drawn against it with respect to any factual conflicts resolvable by that evidence.17 In other words, if documents are withheld absent just cause, and those documents could resolve a disputed material fact pertaining to the grievance, the hearing officer could resolve that factual dispute in the grievant's favor.18

Finally, the grievant asserts that this Department should award him a decision on the merits of his grievance because management has demonstrated a pattern of obstruction of the grievance process with respect to his requests for production of documents, including misinformation and untimely responses. Information forwarded to this Department indicates that, although there may have been some initial confusion on management's part, in general, management did not respond to the grievant's inquiries in an appropriate or timely manner as contemplated by the grievance procedure. However, for this Department to award a decision to the grievant on the basis of noncompliance would be an improper exercise of discretion in this case, which involves critical patient care issues best left, at this point, to a careful determination on the merits by a hearing officer.

Request for Response to the Break In Service Memorandum

The grievant asserts that management failed to respond to his June 21, 2000 memorandum regarding hospital patient care.19 Further, the grievant asserts that the substance of management's response would bear a direct relation to his grievance issues. Management forwarded the memorandum to the facility's Medical Director, who did not respond.20 A party's failure to respond to the issues raised by the other party's memorandum does not violate any procedural requirement of the grievance process, which, unlike civil litigation, does not provide for the use of interrogatories to obtain relevant information.21

Resolution Steps

At the first resolution step, the grievant's immediate supervisor recommended a reversal of the agency's disciplinary action. Upper management did not accept his recommendation and upheld the disciplinary action.22 The grievant asserts that the grievance procedure does not permit upper management to supplant the immediate supervisor's decision.

The grievance statute allows workplace disputes to be grieved through up to three successive levels of agency management.23 Each level of management review has the authority to provide the employee with a remedy.24 Generally, first-step respondents are individuals within the grievant's chain of command with the inherent authority to make decisions regarding the terms and conditions of the grievant's employment. However, the grievance statutes do not provide management step respondents any more authority to grant "a remedy" than those respondents would otherwise possess within the managerial hierarchy. Thus, upper management had the discretion to review the immediate supervisor's decision and to make a determination to award the requested relief or, as in this case, uphold the disciplinary action.

CONCLUSION

As discussed above, this Department finds that the agency has five working days from receipt of this ruling to conduct a reasonable search to obtain the requested wound care information and any relevant documentation in the possession of the eight named agency staff, and to respond to the grievant's request by providing the requested documents or a specific written explanation as to why any of the requested information will not be provided (e.g., no such documents exist, the documents exist but are protected by a legal privilege, the documents would be overly burdensome to collect). Additional issues concerning the production of documents should be submitted to the hearing officer after his or her appointment. Further, this Department holds that management did not violate a substantial procedural requirement of the grievance procedure by failing to respond to the grievant's memorandum or by failing to accept the recommendation of the first-step respondent. This Department's rulings on matters of compliance are final and nonappealable.25

 

Neil A.G. McPhie, Esquire
Director

Tracey D. Watkins
Employment Relations Consultant

1 Please note that recent changes to the grievance statute have resulted in changes to the grievance procedure. Because this grievance was filed after July 1, 2000, the grievance will be governed by the new procedure (Grievance Procedure Manual, effective July 1, 2000).
2 The grievant also raised a separate claim of excessive redaction of a Freedom of Information Act (FOIA) request (See grievant's 11/6/00 e-mail). During this Department's investigation, however, the grievant stated that the FOIA request had been substantially complied with and resolved. Therefore, this Department will not address the FOIA issue in this ruling.
3 Numerous e-mails to EDR indicate that the requests for information began on September 18, 2000.
4 See Grievance Procedure Manual, Section 8.2 "Documentation Relating to a Grievance," page 21; grievant's e-mail of 10/30/00.
5 The grievance is currently at the first resolution step pending this compliance ruling.
6 See Grievance Procedure Manual, Section 6.1, pages 16-17.
7 See Grievance Procedure Manual, Section 6.3, page 17.
8 Va. Code § 2.1-116.05(F); Grievance Procedure Manual, Section 8.2, page 21.
9 Id.
10 See Rules of the Supreme Court of Virginia, Rule 4.9(a)(1).
11 Va. Code § 2.1-116.05(F); Grievance Procedure Manual, Section 8.2, page 21.
12 Such information should be redacted, where appropriate, to safeguard the legitimate privacy interests of other individuals.
13 See email from grievant to Human Resource Officer, dated October 30, 2000.
14 See memorandum from Hospital Director to grievant, dated November 15, 2000.
15 See email from grievant to this Department's investigating consultant, dated January 14, 2001. During this Department's investigation, management responded that it would comply with this request by further researching whether the requested information exists or has been already provided. However, at the time of this ruling, there was no management response on this portion of the request.
16 Va. Code § 2.1-116.07(B)(3); Grievance Procedure Manual, Section 5.7, page 14.
17 Adverse inference can be defined as "a logical and reasonable conclusion of a fact not presented by direct evidence against the interest of a party." Black's Law Dictionary, 6th Edition.
18 In addition, the agency's refusal to provide relevant documents to the grievant without just cause during the resolution step process may be interpreted by the hearing officer as a failure of the agency to act in good faith, which can affect management's credibility at hearing.
19 The grievant prepared the memorandum prior to the filing of grievance, but incorporated it as "Exhibit 6" in his grievance.
20 See Facility Medical Director e-mail dated 11/21/00.
21 Interrogatories can be defined as a pretrial discovery device consisting of written questions about the case submitted by one party to the other party or witness. Black's Law Dictionary, 6th edition.
22 See email from Facility Director to Grievant, dated November 9, 2000.
23 See Grievance Procedure Manual, Section 1.4, page 4.
24 Va. Code §2.1-116.05(E).
25 Va. Code § 2.1-116.03(5).