Issue: Compliance; Hearing Officer Decision; Ruling Date May 18, 2001; Ruling #2001-YY and 2001-ZZ; Agency: University of Virginia Medical Center; Outcome: In compliance Hearing Officer

In the matter of University of Virginia Medical Center, No. 2001-YY and 2001-ZZ

May 18, 2001

The grievant has challenged the hearing officer’s decision in the above captioned grievance.¹ The grievant claims that the hearing officer abused his discretion under the grievance procedure.

The grievant works as a Registered Nurse Clinician III with the University of Virginia Medical Center ("the University"). The grievant’s employment was terminated for an alleged falsification of a patient’s records on December 16, 1999, and she filed a grievance challenging management’s action on January 31, 2000. The hearing officer conducted a hearing on March 31, 2000 and rendered her decision on April 14, 2000.

In her decision, the hearing officer concluded that the University failed to prove by a preponderance of the evidence that the grievant "falsified" a record as set out in University Policy No. 701, finding that the grievant’s added notations to the patient record in question had not been "‘false’ or made with an intention to deceive."² The hearing officer did find, however, that the grievant had committed a serious offense in violating the facility’s unwritten "late entry" policy regarding patient records, and concluded that the grievant should be suspended without pay for up to ten days for that offense.³

On April 20, 2000, the agency challenged the hearing officer’s decision, specifically the "falsification" charge, to this Department.⁴ On April 24, 2000, the grievant and the Administrator met regarding the grievant’s return to work unaware of the agency’s pending challenge. At that time, the Administrator presented the grievant with a Formal Performance Improvement Counseling Form citing "falsification of patient records," and a new charge of "breach of confidentiality" for use of a Quality Report during her hearing. The grievant refused to sign the form, left the administrator’s office and did not return to work. Subsequently, on April 26, 2000, the grievant was terminated for abuse of confidential information, insubordination and failure to report to work.⁵ On May 24, 2000, the grievant initiated a grievance challenging her termination.

The hearing officer conducted a hearing on August 16, 2000 and rendered a decision on August 25, 2000. The hearing officer concluded that (i) the grievant’s leaving the administrator’s office and her failure to report to work were neither insubordinate or separate independent grounds for termination, and (iii) the grievant violated patient records confidentiality provisions in her use of the Quality Report. Further, the hearing officer determined that the grievant should be suspended for 60 days without pay, with credit for 30 days as served, and retrained by the agency regarding every aspect of patient records policy upon her reinstatement.

By statute, this Department has been given the power to establish the grievance procedure, promulgate rules for conducting grievance hearings, and "[r]ender final decisions in all matters related to procedural compliance with the grievance procedure."⁶ If the hearing officer’s exercise of authority is not in compliance with the grievance procedure, this Department does not award a decision in favor of a party; "the sole remedy is that the action be correctly taken."⁷

The grievance procedure vests the hearing officer with the responsibility of evaluating the relevancy and probative value of all evidence presented.⁸ Further, hearing officers are authorized to make "findings of fact as to the material issues in the case"⁹ and to "determine the grievance based on the evidence." ¹⁰ "In cases involving discipline, the hearing officer reviews the facts de novo to determine whether the cited actions constituted misconduct and whether there were mitigating circumstances to justify a reduction or removal of the disciplinary action."¹¹ If misconduct is found but the hearing officer determines that the level of discipline administered was too severe, the hearing officer may reduce the discipline (e.g., reduce a termination to a suspension).¹² Thus, the hearing officer has the authority to determine whether the discipline was warranted and appropriate under all the facts and circumstances, as long as his decision is based upon the record evidence and the material issues in the case.¹³ Finally, the hearing officer’s determination is "final and binding" if it is "consistent with policy and law."¹⁴

The grievant asserts the hearing officer improperly reviewed the facts and evidence of the grievant’s case and that the decision upholds an attempt by the agency to discipline the grievant for an action that occurred when the grievant was not employed by the agency. Specifically, the grievant asserts that she cannot be disciplined for the disclosure of the Quality Report because her Performance Improvement Counseling Form listed the incorrect time period, January 31 – March 28, 2000, for the alleged infraction, when disclosure actually took place on March 31, 2000 during the grievant’s termination hearing. Although the grievance hearing date was three days later than the timeframe listed on the disciplinary notice and the grievant’s attorney claims that he challenged its inaccuracy at hearing, the incorrect date clearly was not material to the hearing officer’s decision of whether the grievant improperly disclosed information. Rather, the hearing officer’s decision states throughout the section titled "Misuse of Confidential Information" that the Quality Report was inappropriately presented by the grievant as evidence at the hearing held on March 31, 2000. ¹⁵ Thus, the hearing officer properly relied upon the record evidence to reach a determination of a material issue in the case.

The grievant further asserts that she cannot be disciplined for the disclosure of the Quality Report because the disclosure took place during the grievant’s termination hearing, when she was no longer an employee of the state. However, this Department previously has held that an employee who challenges a disciplinary action, to include termination, remains subject to the provisions of the state grievance procedure and relevant state policy and procedures while participating in the administrative process. For this Department to hold otherwise would fail to ensure the orderliness of the grievance process. Further, it is apparent from the record that the grievant prepared and filed the Quality Report while employed by the University; thus, having access to the report in the course of her employment, the grievant was able to produce the document at hearing.¹⁶

The grievant’s challenges to the hearing officer’s decision, when examined, simply contest the weight and credibility that the hearing officer accorded to the testimony of the various witnesses at the hearing, the resulting inferences that he drew, the characterizations that he made, or the facts he chose to include in his decision. This Department cannot conclude that the hearing officer’s findings regarding the grievant’s use of the Quality Report were without some basis in the record. Such determinations were entirely within the hearing officer’s authority. While the grievant may object to the hearing officer’s determination that the grievant violated confidentiality provisions, this Department cannot find that he exceeded or abused his authority where, as here, the findings have some basis in the record evidence and the material issues in the case.

For the reasons discussed above, this Department finds that the hearing officer neither abused his discretion in his conduct of the hearing nor exceeded his authority in deciding this case. This Department’s rulings on matters of compliance are final and nonappealable.¹⁷

Neil A. G. McPhie, Esquire
Director

Tracey D. Watkins
Employment Relations Consultant