RONALD G. YEATER,
Grievant,
v.
DOCKET NO. 00-HHR-084
WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN RESOURCES/
MILDRED MITCHELL-BATEMAN
HOSPITAL,
Respondent.
D E C I S I O N
Grievant, Ronald G. Yeater, filed this grievance against his employer, the West
Virginia Department of Health and Human Resources/Mildred Mitchell-Bateman Hospital
(a/k/a Huntington Hospital) (Bateman Hospital), on May 17, 1999, alleging:
Lack of due process; Article 64 Hartley, not applied evenly; letter of findings
biased, inflammatory and unsubstantiated; judgement and action
contaminated by unrelated issue; Huntington Hospital Policy HHE9 not
evenly applied.
RELIEF SOUGHT: Equal application of law governing Huntington Hospital,
and request letter of reprimand dated 8-24-98 be permanently removed from
my personnel file.
The grievance was denied at levels one and two, and a level three hearing was held
on October 4, 1999 and February 7, 2000. With DHHR's consent, Grievant amended the
relief sought to include rescission of a one (1) day suspension, back pay and interest anda $504.00 merit salary increase he did not receive because he was subject to progressive
discipline on December 31, 1998, as a result of the written reprimand dated August 24,
1998. The grievance was denied by grievance evaluator Barbara J. Wheeler, Esq., on
February 15, 2000. Grievant appealed to level four on March 3, 2000, and the parties
agreed to submit the grievance on the record developed at level three. This grievance
became mature for decision on August 8, 2000, the deadline for the parties' proposed
findings of fact and conclusions of law. Grievant appeared
pro se, and DHHR was
represented by Keith Anne Worden at level three, and by Anthony D. Eates, II, Esq.,
Assistant Attorney General, at level four.
SUMMARY OF EVIDENCE
DHHR's Exhibits
Ex. 1 -
July 15, 1999 memorandum from Desmond H. Byrne, Administrator, to
Ronald Yeater, MICA Therapist, regarding revisions to suspension letter.
Ex. 2 -
May 12, 1999, amended letter from Desmond H. Byrne to Ronald Yeater.
Ex. 3 -
May 12, 1999 letter from Desmond H. Byrne to Ronald Yeater.
Ex. 4 -
Title page of Huntington Hospital Policy and Procedure Manual HHE9,
Behavioral Health Patient Rights Rule.
Ex. 5 -
Title 64 CFR, Series 59, Behavioral Health Patient Rights Rule.
Ex. 6 -
April 8, 1999 memorandum fro John Ray, Advocate, and Pat Franz, Q/A, to
Desmond Byrne, regarding Grievance #1511.
Ex. 7 -
March 8, 1999 memorandum from Desmond Byrne to Ron Yeater, regarding
DHHR Merit Increases, February 1999.
Ex. 8 -
February 3, 1999 memorandum from Joan E. Ohl, Secretary, to DHHR
Employees, regarding Department of Health and Human Resources'
Compensation Plan.
Ex. 9 -
August 24, 1998 memorandum from Robert Nida, Director, MICA
Department, to Ron Yeater, Psychologist, MICA Department, regarding
Written Reprimand.
Ex. 10 -
Affidavit of Ron Yeater, dated August 20, 1998.
Ex. 11 -
Affidavit of Robert Legg, dated August 12, 1998.
Ex. 12 -
Transcript of Interview with Ron Yeater, Huntington Hospital MICA Team,
dated March 4, 1999.Ex. 13 -
Written statement of Robert Legg, dated August 10, 1998.
Ex. 14 -
Huntington Hospital Policy Receipt and Certification.
Ex. 15 -
Huntington Hospital Policy and Procedure Manual HHC8, Employee
Assistance Program.
Ex. 16 -
February 7, 2000 memorandum from Kieth Anne Worden to Barbara
Wheeler.
Ex. 17 -
June 17, 1999 memorandum from Kieth Anne Dressler, Human Resources
Director, to M. Todd Jenkins, Licensed Practical Nurse, regarding Grievance
NS-030-99, Dated May 24, 1999.
Grievant's Exhibits
Ex. 1 -
Grievance form of Ronald G. Yeater, filed on May 17, 1999 (Level II Decision
attached).
Testimony
Grievant testified in his own behalf. DHHR presented the testimony of Desmond
Byrne, Pat Franz, Mildred Mitchell-Bateman, John Ray, and Kieth Anne Worden.
FINDINGS OF FACT
I find, by a preponderance of the evidence, the following facts.
1. Grievant is currently employed by Mildred Mitchell-Bateman Hospital
(Bateman Hospital) as a Psychologist on the MICA (Mentally Ill/Chemically Addicted)
Team.
2. Sometime in February 2000, Grievant and a patient engaged in a
conversation, during which Grievant uttered damn and shit while describing the patient's
situation. Grievant did not call the patient any names during this conversation.
3. On February 25, 2000, the patient mentioned being disrespected by
Grievant to Barbara Walker, a nurse on the patient's floor.
4. On February 26, 2000, Ms. Walker completed an incident report indicating
what the patient had said about Grievant. R. Ex. 6. 5. On March 1 or 2, 2000, Robert Nida, Director, MICA, called John Ray, Facility
Advocate with Appalachian Legal Services, an organization contracted with Bateman
Hospital to investigate patient abuse and neglect, and told him about the incident report.
6. On March 3, 2000, Mr. Ray received the incident report.
7. Also on March 3, 2000, the patient completed a patient complaint form. She
complained in writing she was verbally abused by MICA therapist, Ron Yeater. DHHR
Ex. 6.
8. On March 5, 2000, Mr. Ray, with the assistance of Pat Franz, Director of
Quality Advancement, interviewed witnesses regarding the incident report, including the
patient and Grievant. The patient stated to Mr. Ray that Grievant approached her on the
day of the incident, stating:
It was a God Damn shame you was trying to be with a patient at HSH and
you should be trying to attend to your mother fuckin self instead of being with
a patient who is on drugs.
DHHR Ex. 6.
9. March 5, 2000, was the first day Grievant became aware that a complaint had
been made about him regarding his conversation with the patient.
10. Grievant admitted using the words damn and shit in his conversation with
the patient. Specifically, Grievant said:
Do you not give a damn about yourself? Can you not see the shit you're
going through? Can you not see how you are hooking yourself up with these
damn poor relationships with people who don't care about themselves? Do
you want to be a 50-year old drunk on the end of the bar and be bitter and
angry?
DHHR Ex. 12. Grievant denied using the word mother fucker with the patient.
11. Based on their investigation, Mr. Ray and Ms. Franz concluded Grievant
verbally abused the patient.
12. The Behavioral Health Patient Rights Rule, § 64-59-3.17 (1995), defines
verbal abuse as:
The use of language, tone or inflection of voice that would likely be
construed by an impartial observer as a threat to or, harassment, derogation
or humiliation of a client. Verbal abuse includes, but is not limited to: the use
of threatening or abusive tone or manner in speaking to a client; the use of
derogatory, vulgar, profane, abusive, or threatening language; verbal threats;
teasing, pestering, deriding, harassing, mimicking or humiliating a client;
derogatory remarks about the client, his or her family or associates; or sexual
innuendo, sexually provocative language or verbal suggestion.
DHHR Ex. 5.
13. Upon receiving the investigation report, Mr. Desmond Byrne, Hospital
Administrator, met with Dr. Mildred Mitchell-Bateman, Clinical Director, to discuss the
appropriate discipline for Grievant. On Dr. Bateman's recommendation, Mr. Byrne
suspended Grievant for one (1) day without pay.
14. On May 12, 1999, Grievant, Mr. Byrne, Dr. Bateman, Robert Nida, and Kieth
Anne Worden, Human Resources Director, met to discuss the incident and the proposed
discipline. Grievant had an opportunity to present his side of the story at that meeting.
15. On May 12, 1999, Mr. Byrne suspended Grievant for one (1) day for
inappropriate and non-professional verbal interactions with a patient. DHHR Ex. 3.
Following a conversation with Grievant, the suspension letter was amended (DHHR Ex.
2), and Mr. Byrne supplemented the letter with a memorandum to Grievant explaining thechanges, as well as why some of Grievant's suggested changes were not implemented.
DHHR Ex. 1.
16. Included in the suspension letter was a reference to an August 24, 1998
written reprimand Grievant received for attempted theft of State property. DHHR Ex. 2.
Mr. Byrne referenced this incident as an example of a prior incidence of poor judgment by
Grievant.
17. Grievant did not grieve the August 24, 1998, written reprimand at the time it
was issued.
18. As a result of the August 24, 1998, disciplinary action, Grievant was ineligible
for a merit increase given that year.
19. Another employee, Todd Jenkins, received a written reprimand for non-
adherence to the patient restraint policy, which was later reduced by Ms. Worden to a
verbal reprimand due to mitigating circumstances.
DISCUSSION
In disciplinary matters, the employer bears the burden of proving by a
preponderance of the evidence that the grievant committed the acts for which he was
disciplined.
W. Va. Code § 29-6A-6;
Thompson v. W. Va. Dep't of Health and Human
Resources, Docket No. 94-HHR-254 (Jan. 20, 1995). As Grievant admitted using the
words damn and shit in a conversation with the patient, DHHR has met its burden of
proving Grievant used vulgar or profane language with a patient. Grievant's use of profane
language constitutes verbal abuse as defined in the Behavioral Health Patient Rights
Rule, § 64-59-3.17 (1995). Further, Dr. Bateman and Mr. Byrne testified that the use ofprofane language is never condoned at Bateman Hospital. Grievant acknowledged that
profane language was not used in therapy at the hospital, but suggested his use of the
language was necessary in order to get through to the patient. Dr. Bateman and Mr. Byrne
acknowledged that certain behavioral health experts condoned the use of strong language
in dealing with substance abuse patients, but reiterated that Bateman Hospital has not
adopted that treatment.
Grievant raised several defenses to this action: 1. Lack of due process. 2. Title 64,
Hartley not applied evenly. 3. Letter of findings biased, inflammatory & unsubstantiated.
4. Judgement & action contaminated by unrelated issues. 5. Hosp. policy HHE9 not
evenly applied. As noted above, Grievant amended his relief sought to include rescission
of the one-day suspension, back pay and interest, and a $504 merit salary increase he was
denied because he was subject to progressive discipline on December 31, 1998, as a
result of having received the August 24, 1998, written reprimand. Grievant's defenses will
be discussed separately.
Grievant alleges his due process rights were violated because of delays in initiating
and completing the investigation. From the day of the incident report being completed until
it found its way to Mr. Ray, eight (8) days had passed. Mr. Ray testified that it was not
normal or usual for a complaint to take so long before it was received by his office. Mr.
Ray indicated an incident report or complaint usually gets to his office within a day or two
of the incident, and he tries to initiate his investigation within 24 hours after receipt of the
complaint. As it was, he began interviewing witnesses 8 days after the initial complaint hadbeen received, and his report was not delivered to Mr. Byrne until nearly a month after the
complaint.
Grievant did not know the patient had lodged a complaint, or that an incident report
had been filed on him, until March 5, 2000, when Mr. Ray came to the hospital to conduct
interviews. During this entire time he continued to interact with and provide treatment to
the complaining patient completely unaware that she had complained about feeling
disrespected by him. Because of this, Grievant claims he was severely prejudiced, and
also claims the patient's rights were not met, in that if she had a problem with him, she
should have been removed from his care.
While the undersigned can understand how this could be a problem, Grievant has
failed to show exactly how he was adversely affected in this instance. He does not deny
using the profane language in his conversation with the patient, and this is the only incident
for which he is being disciplined. Moreover, it does not appear that anyone believes
Grievant used the word mother fucker in conversing with the patient, but that does not
relieve him from responsibility for his use of damn and shit.
Grievant was given the opportunity before and after receipt of the suspension letter
to discuss the matter with Mr. Byrne. In fact, based on subsequent conversation, Mr.
Byrne amended the suspension letter based on information received from Grievant. Thus,
Grievant has failed to show how his due process rights were violated in this instance.
Grievant also contends Bateman's policy, as well as the Hartley Act, under which
the hospital operates, were not evenly enforced. Specifically, Grievant points to the delay
in processing the patient's complaint, contending the hospital bears some responsibility inthis matter. Again, Grievant has failed to demonstrate how the delay in processing the
patient's complaint prejudiced him or jeopardized his job.
Grievant also claims the decision to suspend him was contaminated by an unrelated
issue, namely, the written reprimand issued August 24, 1998, for attempted theft of state
property. DHHR contends this incident coupled with the instant offense, demonstrate a
pattern of poor judgment by Grievant, and that the issues are not unrelated. DHHR's
Progressive Discipline Policy does not require that infractions be of a similar nature for
DHHR to issue increasingly severe discipline. Grievant has failed to demonstrate DHHR
violated its own policy, or that its actions were arbitrary and capricious, in considering
Grievant's past offense when determining the severity of discipline for the instant offense.
Finally, Grievant argues that his suspension should be rescinded because the
hospital reduced a written reprimand to a verbal reprimand in a grievance filed by Todd
Jenkins, LPN.
W. Va. Code § 29-6A-2(d) defines discrimination as any differences in the
treatment of employees unless such differences are related to the actual job
responsibilities of the employees or agreed to in writing by the employees. In order to
establish a claim of discrimination, an employee must establish a
prima facie case of
discrimination by a preponderance of the evidence. In order to meet this burden, the
Grievant must show:
(a)
that he is similarly situated, in a pertinent way, to one or more other
employee(s);
(b)
that he has, to his detriment, been treated by his employer in a manner that
the other employee(s) has/have not, in a significant particular; and
(c)
that such differences were unrelated to actual job responsibilities of the
grievant and/or the other employee(s) and were not agreed to by the grievant
in writing.
Smith v. W. Va. Bureau of Employment Programs, Docket No. 94-BEP-099 (Dec. 18,
1996);
Hendricks v. W. Va. Dept. of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24,
1996). Once the grievant establishes a
prima facie case of discrimination, the burden
shifts to the employer to demonstrate a legitimate, non-discriminatory reason for the
employment decision.
Smith,
supra;
see Tex. Dept. of Community Affairs v. Burdine, 450
U.S. 248 (1981).
Ms. Worden testified as to the justification for reducing Mr. Jenkins' discipline. He
received a written reprimand for non-adherence to the hospital's patient restraint policy.
While a fire alarm was sounding, Mr. Jenkins was trying to restrain a patient with a history
of violence toward staff, while at the same time, trying to hold onto the MAR, which is the
large file box containing the record of each patients' medication. To restrain the patient,
he put his foot on top of the patient's foot.
Ms. Worden discussed the incident with Patricia Queen, Bateman's Staff
Development Educator, who stated that the proper restraint in that situation would have
required two people. Mr. Jenkins did not have the benefit of another staff member present
to help him with the patient. Further, Mr. Jenkins had no history of discipline, and was
considered an excellent employee. Based on these mitigating circumstances, Ms. Worden
reduced Mr. Jenkins' written reprimand to a verbal one.
Grievant contends he, too, was justified in his use of profane language, because the
patient was obsessing about a male patient, and was not adhering to her treatment. Grievant testified that some behavioral science experts utilize stronger street language
in dealing with substance abuse patients, in an effort to get on their level in attempting to
get their attention. Grievant decided this patient needed a jolt, and he decided to use
street language to get her to pay attention to what he was saying to her about her
condition, and her need for treatment.
Mr. Byrne and Dr. Bateman recognized that some experts do utilize this treatment
method, but testified that Bateman Hospital does not adhere to use of that method. Thus,
despite the fact that Grievant meant well in dealing with the patient, he nevertheless
violated the Hospital rules about using such language, and it is not within his discretion to
vary the treatment prescribed by the Hospital.
Finally, with regard to Grievant's request for relief from the August 24, 1998 written
reprimand, and subsequent merit raise, Bateman Hospital successfully raised a timeliness
defense of this issue at or before level two.
W. Va. Code § 29-6A-4(e) requires that an
employee file a grievance within ten (10) days of the adverse action. Grievant did not
challenge the written reprimand when it was issued, and he presented no evidence which
would excuse his late filing.
See Naylor v. W. Va. Human Rights Comm'n, 180 W. Va. 634,
378 S.E.2d 843 (W. Va. 1989).
Grievant has not proven he was justified in using the method he chose to treat his
patient in this instance, and has not shown sufficient mitigating circumstances to warrant
reduction of this disciplinary action.
CONCLUSIONS OF LAW
1. Grievant's use of profane language in his conversation with the patient
constitutes verbal abuse as defined in the Behavioral Health Patient Rights Rule, § 64-59-
3.17 (1995).
2. Mitigation of imposed punishment is extraordinary relief and is granted only
when there is a showing that a particular disciplinary measure is so clearly disproportionate
to the employee's offense that it indicates an abuse of discretion. Considerable deference
is afforded the employer's assessment of the seriousness of the employee's conduct and
prospects of rehabilitation.
Thomas v. W. Va. Dep't of Health and Human Resources,
Docket No. 96-HHR-378 (June 12, 1997), citing
Overbee v. W. Va. Dep't of Health and
Human Resources, Docket No. 96-HHR-183 (Oct. 3, 1996).
3. Grievant failed to demonstrate that he was affected by the delays in initiating
and completing the investigation. He also failed to demonstrate the delays had any effect
whatsoever on the outcome of the investigation. Furthermore, Grievant was afforded his
due process rights by meeting with Dr. Byrne both before and after the suspension was
issued.
4.
W. Va. Code § 29-6A-2(d) defines discrimination as any differences in the
treatment of employees unless such differences are related to the actual job
responsibilities of the employees or agreed to in writing by the employees. In order to
establish a claim of discrimination, an employee must establish a
prima facie case of
discrimination by a preponderance of the evidence. In order to meet this burden, the
Grievant must show: (a)
that he is similarly situated, in a pertinent way, to one or more other
employee(s);
(b)
that he has, to his detriment, been treated by his employer in a manner that
the other employee(s) has/have not, in a significant particular; and
(c)
that such differences were unrelated to actual job responsibilities of the
grievant and/or the other employee(s) and were not agreed to by the grievant
in writing.
Smith v. W. Va. Bureau of Employment Programs, Docket No. 94-BEP-099 (Dec. 18,
1996);
Hendricks v. W. Va. Dept. of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24,
1996).
5. Once the grievant establishes a
prima facie case of discrimination, the
burden shifts to the employer to demonstrate a legitimate, non-discriminatory reason for
the employment decision.
Smith,
supra;
see Tex. Dept. of Community Affairs v. Burdine,
450 U.S. 248 (1981).
6. Grievant failed to establish he was discriminated against in his treatment vis-
a-vis Todd Jenkins.
Accordingly, this grievance is
DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
circuit court of the county in which the grievance occurred. Any such appeal must be filed
within thirty (30) days of receipt of this decision.
W. Va. Code § 29-6A-7 (1998). Neither
the West Virginia Education and State Employees Grievance Board nor any of its
Administrative Law Judges is a party to such appeal, and should not be so named.
However, the appealing party is required by W. Va. Code § 29A-5-4(b) to serve a copy of
the appeal petition upon the Grievance Board. The appealing party must also provide the
Board with the civil action number so that the record can be prepared and properly
transmitted to the appropriate circuit court.
___________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: August 31, 2000