LONNIE MYERS,

                  Grievant,

      v.

DOCKET NO. 00-VA-266

WEST VIRGINIA DIVISION OF VETERANS
AFFAIRS/BARBOURSVILLE VETERANS HOME,
      
                  Respondent.

D E C I S I O N

      Grievant, Lonnie Myers, filed this grievance directly at level four on August 11, 2000, challenging his dismissal for cause from his position of employment as a Licensed Practical Nurse (“LPN”) with the Barboursville Veterans Home (“Veterans Home”) by the West Virginia Division of Veterans Affairs (“VA”). He seeks to have his dismissal reduced to a reprimand as well as reinstatement to his position and compensation for lost wages and benefits.
      On November 1, 2000, this matter came on for a level four hearing at the Grievance Board's Charleston, West Virginia, office. This matter became mature for decision on December 4, 2000, the deadline for the parties' proposed findings of fact and conclusions of law. The VA was represented by Robert Williams, Esq., Assistant Attorney General, and the Grievant was represented by Mr. Steve Rutledge, AFSCME/WVSEU, and Ms. Patricia Ramey, an LPN at the Veterans Home.

SUMMARY OF EVIDENCE

VA's Exhibits
Ex. 1 - Ex. 2 - Ex. 3 - Ex. 4 - Ex. 5 - Ex. 6 - Ex. 7 - Ex. 8 - Ex. 9 - Ex. 10 - Ex. 11 - Ex. 12 - Ex. 13 - Ex. 14 - Ex. 15 -
Grievant's Exhibits

Ex. 1 -

Ex. 2 - Ex. 3 - Ex. 4 - Ex. 5 -
Testimony

      VA presented the testimony of Harriet Howell, Kelly Hite, Charles Draper, and Sue Bishop. Grievant presented the testimony of Joyce McCormick and Pat Ramey.   (See footnote 1) 

FINDINGS OF FACT

      The material facts in this grievance are not in dispute, and are set forth in the following findings.
      1.      Grievant was employed as an LPN at the Veterans Home in Barboursville, West Virginia, for approximately two years prior to his dismissal.
      2.      Grievant underwent an orientation process that involved, in part, a review of the Medication Policy and Procedures of the Veterans Home, including but not limited to, the controlled drug provisions of the Pharmacy Section of the same. VA Ex. 3.
      3.      Throughout the term of his employment, Grievant received continuing professional training from the VA. VA Ex. 5.
      4.      On July 21, 2000, a series of events occurred which resulted in Grievant's termination.
      5.      On July 21, 2000, Grievant was scheduled to work the 7:00 a.m. to 3:00 p.m. shift. Pursuant to the Medication Policy and Procedures of the VA, all controlled drugs are to be counted at every shift change by the off-going and on-coming nurses.
      6.      On the morning of July 21, 2000, Grievant, who was the on-coming nurse, informed Kelly Hite, the off-going nurse, that he did not have time to conduct the controlleddrug count, and suggested it did not need to be done. Ms. Hite acquiesced to Grievant's request, and no controlled drug count was performed during the shift change.
      7.      Ms. Hite received a verbal reprimand for her part in this violation of procedures. VA Ex. 2.
      8.      Later on during his shift on July 21, 2000, Grievant committed a medication error by administering two separate doses of alprazolam, which had been prescribed to one resident, to a different resident who had been prescribed and was supposed to receive clonazepam. Consequently, the Medication Administration Records (“MARs”) for these two medications were also improperly annotated.
      9.      The medications in question are controlled drugs, and were stored in separate vials which identified the contents, dosages, and the residents for whom they were prescribed.
      10.      This medication error was identified during the routine controlled drug count at the end of Grievant's shift. Accordingly, Grievant was required to meet with Harriet Howell, the Director of Nursing, and completed an incident report prior to departing on July 21, 2000.
      11.      Also during his shift on July 21, 2000, Grievant committed a second medication error by administering two separate doses of hydrocodone/acetaminophen 7.5 mg/750 mg, which had been prescribed to one resident, to a different resident who had been prescribed and was supposed to receive hydrocodone/acetaminophen 5.0 mg/500 mg. Consequently, the MARs for these two medications were also improperly annotated.      12.      The medications in question are also controlled drugs, and were stored in separate vials which identified the contents, dosages, and residents for whom they were prescribed.
      13.      This medication error was identified during the routine controlled drug count at the end of Grievant's shift; however, this error was not immediately brought to the nursing director's attention. Accordingly, Grievant did not complete an incident report until July 24, 2000.
      14.      When the second medication error relating to hydrocodone was discovered by Sue Bishop, the on-coming nurse, she brought it to Grievant's attention. In response, Grievant removed two pills from the hydrocodone/acetaminophen 5.0 mg/500 mg vial belonging to one resident and placed them in the hydrocodone/acetaminophen 7.5 mg/750 mg vial belonging to another resident. Grievant then returned both vials to Ms. Bishop and told her that the count was now correct. Ms. Bishop inquired whether Grievant had taken pills from one vial and placed them in the other vial to make the controlled drug count right. Grievant confirmed that he had.
      15.      In an incident report dated July 24, 2000, Grievant admits to having taken pills from one vial and placing them in another vial to make the controlled drug count right.
      16.      As a result of Grievant's actions in attempting to correct the controlled drug count on July 21, 2000, the MARs for the hydrocodone prescriptions in question were not immediately amended.
      17.      On or about July 26, 2000, the VA filed a complaint against Grievant with the LPN Board, citing as grounds the events of July 21, 2000.      18.      On July 27, 2000, Grievant was notified, both verbally and in writing, that effective August 11, 2000, he was dismissed for cause from his position of employment as an LPN with the VA. Pursuant to the notice of dismissal, Grievant was required to immediately vacate the workplace, but was compensated for the fifteen-day notice period pursuant to 143 C.S.R. 12.2(b). Grievant was also advised of his right to respond to the allegations underlying his dismissal, but declined to do so.
      19.      On August 11, 2000, Grievant filed this grievance with the Grievance Board.
      20.      On October 11, 2000, and in response to the complaint filed by the VA with the LPN Board, Grievant waived his right to a formal hearing before the LPN Board, and voluntarily entered into a Consent Agreement. The Consent Agreement constitutes a formal reprimand of Grievant by the LPN Board, and imposes certain requirements and conditions on his practice of practical nursing, although it does not impose any restrictions on his ability to practice practical nursing. VA Ex. 7.

DISCUSSION

      In disciplinary matters, the burden of proof rests with the employer to prove the charges against an employee by a preponderance of the evidence. W. Va. Code § 29-6A- 6; Evans v. W. Va. Dep't of Health & Human Resources, Docket No. 97-HHR-280 (Nov. 12, 1997); Miller v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997). A preponderance of the evidence is defined as “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is moreprobable than not.” Black's Law Dictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health and Human Resources, Docket No. 92-HHR-486 (May 17, 1993).
      The administrative rules of the West Virginia Division of Personnel provide that an employee in the classified service may be dismissed “for cause.” 143 C.S.R. § 12.2, Administrative Rule, W. Va. Div. of Personnel (July 1, 1998). The phrase “good cause” has been determined by the West Virginia Supreme Court of Appeals to apply to dismissals of employees whose conduct was of “a substantial nature, and not trivial or inconsequential, nor a mere technical violation of statute or official duty without wrongful intention.” Syl. Pt. 2, Buskirk v. Civil Service Comm'n, 175 W. Va. 279, 332 S.E.2d 579 (1985); Guine v. Civil Service Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1985); Syl. Pt. 1, Oakes v. W. Va. Dep't of Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980); See Hundley v. W. Va. Div. of Corrections, Docket No. 97-CORR-197A (May 12, 1999).
      It is not the label the employer attaches to the conduct of the employee that is determinative. The critical inquiry is whether the conduct of the employee that formed the basis for the dismissal is such that, if proven by the evidence, warrants dismissal. Any other rule would elevate form over substance. Davis v. W. Va. Dep't of Motor Vehicles, Docket No. 89-DMV-569 (Jan. 22, 1990).
      The VA contends that Grievant's conduct in failing to conduct the controlled drug count at the start of his shift on July 21, 2000, constituted a knowing and willful violation of the Medication Policy and Procedures of the Veterans Home; however, that violation was only ancillary to the underlying conduct for which Grievant was dismissed.       Grievant's conduct in administering two separate doses of alprazolam to a resident who had been prescribed and was supposed to receive clonazepam constitutes a medication error pursuant to the Medication Policy and Procedures of the Veterans Home; however, these errors were also only ancillary to the underlying conduct for which Grievant was dismissed.
      Grievant's conduct in administering two separate doses of hyrdrocodone 7.5 mg/750 mg to a resident who had been prescribed and was supposed to receive hydrocodone 5.0 mg/500 mg constitutes a medication error pursuant to the Medication Policy and Procedures of the VA; however, these errors were only ancillary to the underlying conduct for which Grievant was dismissed.
      Rather, the VA alleges it was Grievant's conduct in removing two pills from the hydrocodone/acetaminophen 5.0 mg/500 mg vial belonging to one resident, and placing them in the hydrocodone/acetaminophen 7.5 mg/750 mg vial belonging to a different resident, for purposes of correcting the controlled drug count, which constituted a knowing and willful violation of the Medication Policy and Procedures of the Veterans Home, and constituted professional misconduct warranting dismissal.
      The VA alleges this conduct constituted a threat to the safety and welfare of the persons or property of the residents of the Veterans Home, and that it has proven by a preponderance of the evidence that Grievant engaged in conduct of a substantial nature affecting the rights and interests of the public which warranted his dismissal.
      Grievant does not deny he engaged in any of the conduct charged by the VA. Rather, Grievant contends he made an honest mistake, his discipline was disproportionateto his offense, and he has been discriminated against by the VA through his dismissal. Grievant also argues that, since the West Virginia Board of Examiners for Licensed Practical Nurses did not recommend termination, or suspend his LPN license, it was arbitrary and capricious for VA to terminate his employment.
      Any allegation that a particular disciplinary measure is disproportionate to the offense proven or otherwise arbitrary and capricious is an affirmative defense, and Grievant bears the burden of demonstrating that the penalty was clearly excessive or reflects an abuse of agency discretion, or an inherent disproportion between the offense and the personnel action. Ancillary to Grievant's claim that his punishment was disproportionate to his offense is his claim of discrimination, for which he also bears the burden of proof. Elliot v. W. Va. Dep't of Military Affairs, Docket No. 98-DJS-199 (Dec. 7, 1998); Jones v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-371 (Oct. 30, 1996); Thompson v. W. Va. Dep't of Health and Human Resources, Docket No. 94- HHR-254 (Jan. 20, 1995).
      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)       (b)
      (c)
Smith v. W. Va. Bureau of Employment Programs, Docket No. 94-BEP-099 (Dec. 18, 1996); Hendricks v. W. Va. Dep't 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. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981).
      Grievant has compared himself to other LPNs who have committed medication errors, but were not dismissed. The witnesses testified it was not uncommon for the controlled drug count to be off, and for medication errors to occur when dispensing medications. Kelly Hite testified she received a verbal reprimand for not counting drugs with Grievant the morning of July 21, 2000. Joyce McCormick, a Health Service Worker, testified to several incidents involving medication errors, including one by Ms. Howell, the Director of Nursing. While incident reports were filled out for the majority of the noted medication errors, and Ms. Hite received a verbal reprimand, the testimony demonstrated that the LPNs are not generally disciplined for most of the medication errors. Therefore, with regard to common medication errors, Grievant has established a prima facie case of discrimination with regard to his dismissal.      However, Grievant was not terminated for a common medication error. Grievant was terminated for attempting to cover up that medication error, and in the process, setting up a future medication error. Mr. Charles Draper, Administrator of the Veterans Home, testified he became extremely angry and upset when he learned of Grievant's conduct on July 21, 2000. He testified the Veterans Home had just “come off” an 8-month investigation of suspected narcotics abuse, and he was sensitive to the issues surrounding controlled drugs. Mr. Draper testified he did not consult with anyone before deciding to terminate Grievant from employment, because he believed Grievant attempted to cover-up a previous narcotics error, and he had no tolerance for mishandling narcotics. The key factor in his decision to terminate Grievant was not a medication error, per se, but Grievant's attempt to cover it up by taking pills out of one vial and putting them into another vial.
      Grievant has failed to identify any other LPN who attempted to cover-up a medication error. Thus, Grievant has failed to make a prima facie case of discrimination with regard to the discipline he received from Mr. Draper as a result of his attempted cover- up.
      Grievant also claims that VA's dismissal of him was arbitrary and capricious, first, because Mr. Draper did not consult with anyone before deciding to terminate Grievant's employment, and second, because the LPN Board did not recommend Grievant be termination, or that he lose his LPN license.
      "Generally, an action is considered arbitrary and capricious if the agency did not rely on criteria intended to be considered, explained or reached the decision in a mannercontrary to the evidence before it, or reached a decision that was so implausible that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capricious actions have been found to be closely related to ones that are unreasonable. State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as arbitrary and capricious when "it is unreasonable, without consideration, and in disregard of facts and circumstances of the case." Eads, supra (citing Arlington Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)). " While a searching inquiry into the facts is required to determine if an action was arbitrary and capricious, the scope of review is narrow, and an administrative law judge may not simply substitute her judgment for that of [the agency]. See generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283 (W. Va. 1982)." Trimboli, supra.
      While it is true that Mr. Draper acted alone in deciding the terminate Grievant, there is no evidence that he did not consider all of the facts and circumstances surrounding the incidents of July 21, 2000. In fact, Mr. Draper was highly sensitive at that time of any incidents involving controlled drugs because of a previous investigation into the facility. There is nothing which prohibits Mr. Draper, as the Administrator of the VA, from deciding to terminate an employee, as long as it is for “cause”, and as long as he offers the employee an opportunity to discuss the charges against him.      The action taken by the LPN Board in connection with the complaint filed against Grievant by the VA is not dispositive of the issue of whether the VA's dismissal of Grievant was appropriate. Grievant presented no evidence to show that the VA is in any way dependent upon a recommendation from the LPN Board with regard to its employment decisions, or that the standard of review of the LPN Board is the same as that of the VA in cases of employee misconduct.
       Grievant had no history of disciplinary action by the VA for the two years he was employed prior to the incidents giving rise to his dismissal. By all accounts, it appears Grievant was a satisfactory employee until the incidents giving rise to his dismissal. Nevertheless, the undersigned is not convinced that dismissal was too severe a discipline for Grievant's conduct on July 21, 2000.
      Grievant presented the testimony of Sue Bishop, the LPN who was present when Grievant took the two pills out of one resident's vial and put them into another resident's vial in order to correct the controlled drug count. Ms. Bishop testified she believed Grievant thought the bottles contained the exact same medications and dosages, and that he was just correcting the earlier mistake. Unfortunately, Ms. Bishop's belief is equivalent to her lay opinion, which is not evidence sufficient to prove Grievant's defense of “honest mistake.” Whether Grievant “believed” the two medications were the same is really irrelevant. The medications, dosages, and names of residents were clearly marked on each prescription vial. Even Grievant's representative, Pat Ramey, testified that Grievant received ample training and ought to have known to check the vials before transferring pills out of one vial and putting them into another. In any event, the undersigned agrees withthe VA that what Grievant was attempting to do was cover-up the fact that he had made yet another medication error on July 21, 2000, and in the process was setting up yet another medication error to occur the next time the medications were dispensed to the two residents. This was inexcusable, and the VA did not abuse its discretion when it decided to terminate Grievant's employment for this infraction.
CONCLUSIONS OF LAW

      1.      In disciplinary matters, the burden of proof rests with the employer to prove the charges against an employee by a preponderance of the evidence. W. Va. Code § 29- 6A-6; Evans v. W. Va. Dep't of Health & Human Resources, Docket No. 97-HHR-280 (Nov. 12, 1997); Miller v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997).
      2.      The administrative rules of the West Virginia Division of Personnel provide that an employee in the classified service may be dismissed “for cause.” 143 C.S.R. § 12.2, Administrative Rule, W. Va. Div. of Personnel (July 1, 1998). The phrase “good cause” has been determined by the West Virginia Supreme Court of Appeals to apply to dismissals of employees whose conduct was of “a substantial nature, and not trivial or inconsequential, nor a mere technical violation of statute or official duty without wrongful intention.” Syl. Pt. 2, Buskirk v. Civil Service Comm'n, 175 W. Va. 279, 332 S.E.2d 579 (1985); Guine v. Civil Service Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1985); Syl. Pt. 1, Oakes v. W. Va. Dep't of Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980); See Hundley v. W. Va. Div. of Corrections, Docket No. 97-CORR-197A (May 12, 1999).      3.       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.”
      4.      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)
      (b)
      (c)
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 established a prima facie case of discrimination with regard to other LPNS who committed common medication errors, but were not dismissed.
      7.      Grievant failed to establish a prima facie case of discrimination with regard the charge of willful and intentional cover-up of a medication error.      8.      "Generally, an action is considered arbitrary and capricious if the agency did not rely on criteria intended to be considered, explained or reached the decision in a manner contrary to the evidence before it, or reached a decision that was so implausible that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997).
      9.      Arbitrary and capricious actions have been found to be closely related to ones that are unreasonable. State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as arbitrary and capricious when "it is unreasonable, without consideration, and in disregard of facts and circumstances of the case." Eads, supra (citing Arlington Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)).
      10.      " While a searching inquiry into the facts is required to determine if an action was arbitrary and capricious, the scope of review is narrow, and an administrative law judge may not simply substitute her judgment for that of [the agency]. See generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283 (W. Va. 1982)." Trimboli, supra.
      11.      Grievant has failed to establish that VA's decision to terminate him for misconduct stemming from the events of July 21, 2000, was arbitrary or capricious.
      12.      The undersigned may mitigate the discipline imposed if the penalty assessed is clearly excessive or clearly disproportionate to the offense. Factors to be considered in this analysis include the employee's past disciplinary record, the clarity of notice to theemployee of the rule violated, whether the employee was warned about the conduct, and mitigating circumstances. Knuckles/Burdette v. W. Va. State College, Docket No. 99-BOD- 123/131 (Sept. 28, 1999); Jarvis v. W. Va. Dep't of Health and Human Resources, Docket No. 97-HHR-318 (July 22, 1999); Stewart v. W. Va. Alcohol Beverage Control Comm'n, Docket No. 91-ABCC-137 (Sept. 19, 1991). After a careful review of the facts and circumstances surrounding the events of July 21, 2000, the undersigned finds no reason to mitigate Grievant's dismissal from the VA.

      Accordingly, this grievance is DENIED.

      Any party or the West Virginia Division of Personnel 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: December 14, 2000


Footnote: 1
      Grievant did not testify pursuant to W. Va. Code § 29-6A-6(e).