ELIZABETH C. LILLY,

                        Grievant,

v.                                                 Docket No. 00-HHR-093

WEST VIRGINIA DEPARTMENT OF HEALTH & HUMAN
RESOURCES, PINECREST HOSPITAL,

                        Respondent.

D E C I S I O N

      On March 15, 2000, Elizabeth C. Lilly (Grievant) submitted this grievance directly to Level IV, in accordance with W. Va. Code § 29-6A-4(e)(2), challenging her 21-day suspension without pay by Respondent West Virginia Department of Health and Human Resources (DHHR). On April 21, 2000, a Level IV hearing was conducted in this Grievance Board's office in Beckley, West Virginia.   (See footnote 1)  At the conclusion of that hearing, the parties made oral arguments, waiving written argument, and this matter became mature for decision at that time. Consistent with the practice of this Grievance Board, this disciplinary action has been advanced on the docket for an expedited decision.

DISCUSSION
      Grievant is employed by DHHR as a Health Service Worker (HSW) at Pinecrest Hospital in Beckley, West Virginia. On March 2, 2000, Pinecrest Hospital Administrator E. R. Eades issued the following letter to Grievant, notifying her that she was being suspended, and stating the reasons for this disciplinary action.















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J Ex 1.
      In disciplinary matters, W. Va. Code § 29-6A-6 places the burden of proof on the employer. Broughton v. W. Va. Div. of Highways, Docket No. 92-DOH-325 (Dec. 31, 1992). More particularly, the employer has the burden of proving each element of a disciplinary action by a preponderance of the evidence. Morrison v. W. Va. Bureau of Commerce, Docket No. 97-DOL-490 (Jan. 15, 1998). A preponderance of the evidence is generally recognized as evidence of greater weight, or which is more convincing than the evidence which is offered in opposition to it. Miller v. W. Va. Dep't of Health & HumanResources, Docket No. 96-HHR-501 (Sept. 30, 1997); Petry v. Kanawha County Bd. of Educ., Docket No. 96-20-380 (Mar. 18, 1997).
      At the Level IV hearing, Grievant entered into an oral stipulation of fact with Respondent, agreeing that the statements in the suspension letter were true, except for the portion where she was quoted as telling the Resident Advocate that she double-briefed the patient by “accident.” Grievant stipulated that her act was intentional, rather than accidental, and she immediately acknowledged her wrongdoing upon being confronted. Nonetheless, Grievant asserts that a 21-day suspension is an unduly harsh punishment for her actions, and that another employee who committed a similar offense received a less severe punishment.
      The evidence indicates that on June 2, 1999, another employee, Ms. T.,   (See footnote 2)  received a 5-day suspension for the same offense. Ms. T. is an African-American HSW at Pinecrest Hospital, who has not been employed as long as Grievant. Grievant argues that this disparate treatment constitutes prohibited discrimination. DHHR introduced the following notice of disciplinary action issued to Ms. T. in an effort to explain this difference in penalties:











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R Ex 3.
      Discrimination is defined in W. Va. Code § 29-6A-2(d), 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." This Grievance Board has determined that a grievant, seeking to establish a prima facie case   (See footnote 3)  of discrimination under Code § 29-6A-2(d), must demonstrate the following:




Parsons v. W. Va. Dep't of Transp., Docket No. 91-DOH-246 (Apr. 30, 1992).      Once a grievant establishes a prima facie case of discrimination, the employer can offer legitimate reasons to substantiate its actions. Thereafter, the grievant may show that the offered reasons are pretextual. Hickman v. W. Va. Dep't of Transp., Docket No. 94- DOH-435 (Feb. 28, 1995). See Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981);Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986); Hendricks v. W. Va. Dep't of Tax & Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996); Runyon v. W. Va. Dep't of Transp., Docket Nos. 94-DOH-376 & 377 (Feb. 23, 1995).
      Grievant established a prima facie case of discrimination by showing that she received a 21-day suspension for double-briefing a patient while another employee who double-briefed a patient only received a 5-day suspension. See Frantz v. W. Va. Dep't of Health & Human Resources, Docket No. 99-HHR-096 (Nov. 18, 1999). However, Hospital Administrator Eades credibly explained that Grievant was given a more severe punishment because this was her second offense involving patient neglect or abuse. The other employee had been given a prior written warning involving an infraction of hospital policy, but that situation did not involve patient abuse or neglect. Indeed, Mr. Eades explained that he ordinarily gives a 3-day suspension for a first offense of patient abuse, but he gave Ms. T. a 5-day suspension because he found her actions involved willful misconduct.
      The record indicates that Grievant received a previous 3-day suspension for failing to provide care to a patient on her shift. Although Grievant described this incident as an “accident,” the end result is a patient was neglected, and Grievant was primarily responsible for that neglect because she failed to note that the patient had been assignedto her for care. Moreover, Grievant was specifically cautioned in her suspension notice that any further infractions would result in more severe disciplinary action. In these circumstances, DHHR has established a legitimate, job-related reason for the difference in treatment, and Grievant did not demonstrate that the reason given was pretextual. Therefore, Grievant did not establish that she was subjected to unlawful discrimination in regard to the penalty she received for her admitted misconduct. See Frantz, supra; Bellinger v. W. Va. Dep't of Public Safety, Docket No. 95-DPS-119 (Aug. 15, 1995).
      In addition to contending that the penalty she received was discriminatory, Grievant also asserts that a 21-day suspension is an unduly harsh punishment for the offense she committed. This Grievance Board has determined that mitigation of the penalty imposed by an employer constitutes extraordinary relief, and is granted only when there is a showing that a particular punishment is so clearly disproportionate to the offense committed that imposition of such a penalty involves an abuse of discretion, Hosaflook v. West Virginia. Division of Corrections, Docket Nos. 98-CORR-446/447 (Jan. 20, 2000), or the penalty is so harsh under the circumstances, its imposition by the employer involves an arbitrary and capricious act. Frantz v. W. Va. Dep't of Health & Human Resources, Docket No. 99-HHR-096 (Nov. 18, 1999). See Wilkerson v. Lincoln County Bd. of Educ., Docket No. 99-22-420 (Mar. 27, 2000). Considerable deference is afforded to the employer's determination of the seriousness of the employee's conduct and the prospects for rehabilitation. Overbee v. Dep't of Health & Human Resources, Docket No. 96-HHR- 183 (Oct. 3, 1996).      As previously discussed, Grievant was disciplined for a second incident involving patient abuse or neglect. Grievant had previously been suspended for three days for failing to provide treatment to a patient assigned to her care. Although Grievant asserts that offense was accidental, because she failed to note on the schedule when the patient was assigned to her for care, she admits that the present infraction was intentional. Grievant's suggestion that the practice in which she engaged is a frequent occurrence, but she was just unlucky enough to get caught, does not provide a viable rationale for reducing the penalty imposed. Indeed, this approach suggests that, despite a significant suspension, Grievant remains indifferent to the rights of the patients at Pinecrest Hospital, as if their welfare is only incidental to her employment, not the reason she is employed. See Bennett v. W. Va. Dep't of Health & Human Resources, Docket No. 98-HHR-378 (Apr. 27, 1999); Grueser v. W. Va. State Bd. of Rehabilitation, Docket No. 95-RS-084 (June 29, 1995).
      Administrator Eades explained that he not only considered the fact that this was Grievant's second infraction involving patient abuse or neglect, he also considered that Grievant had been trained not to engage in this conduct, and her actions toward this patient were deliberate in assessing the penalty at issue. These are appropriate and rational factors to consider in determining an appropriate penalty. See generally, Douglas v. Veterans Admin., 5 M.S.P.B. 313 (1981). The penalty imposed in this matter was neither an abuse of discretion nor disproportionate to the offense.
      Grievant also complains that she was further “punished” by being reassigned to the night shift. Administrator Eades explained that Grievant would have fewer patient caretasks to perform on that shift, and she could be more closely supervised because there was less activity and turmoil during those hours. Grievant testified that she was having difficulty adjusting to the new hours because of medication she was taking. Grievant had informed Administrator Eades of these problems, but did not provide any medical evidence that she could not adjust her medication regimen to a different shift assignment.
      Employers have considerable discretion in making assignments to work units and shifts, absent an improper motive. Wingfield v. W. Va. Div. of Corrections, Docket No. 99- CORR-265 (Nov. 8, 1999). See Forth v. W. Va. Dep't of Transp., Docket No. 98-DOH-433 (July 22, 1999); Jarrett v. Dep't of Admin., Docket No. 98-ADMN-165 (Jan. 29, 1999). Grievant acknowledges that shift assignments at Pinecrest Hospital are made at the discretion of the Hospital Administrator and Director of Nursing. Although Grievant's medical condition may cause some difficulty in adjusting to the night shift, there was no persuasive evidence that she is unable to work that shift without accommodation. In the absence of such evidence, this Grievance Board has no authority to require DHHR to assign Grievant to a particular shift. See Skaff v. Pridemore, 200 W. Va. 700, 490 S.E.2d 787 (1997); Wingfield, supra.
      In addition to the foregoing discussion, the following findings of fact and conclusions of law are appropriate in this matter.
FINDINGS OF FACT

      1.      Grievant is employed by the West Virginia Department of Health and Human Resources (DHHR) as a Health Service Worker (HSW) at Pinecrest Hospital in Beckley, West Virginia.      2.      Grievant has been employed at Pinecrest Hospital since August 1993.
      3.      On July 9, 1999, Grievant was suspended without pay for 3 days based upon her failure to provide care to an assigned patient on June 29, 1999.
      4.      On August 10, 1999, Grievant received a written warning for refusing to work a mandated second shift.
      5.      On February 18, 2000, Grievant placed two briefs and a towel on an incontinent male patient. Grievant had previously received training that such a practice, commonly referred to as “double-briefing,” was contrary to Pinecrest Hospital policy and the rights of the patients to appropriate health care. R Ex 1. Grievant knowingly violated the policy solely because the patient in question was a “heavy wetter.”
      6.      Grievant was suspended without pay for 21 days based upon this admitted infraction.
      7.      On June 2, 1999, another HSW at Pinecrest Hospital was suspended without pay for 5 days based upon her double-briefing a patient on May 14, 1999. R Ex 3. This HSW had not previously been disciplined for patient neglect or abuse.       
      
CONCLUSIONS OF LAW

      1.      Pursuant to W. Va. Code § 29-6A-6, the burden of proof in disciplinary matters rests with the employer, and the employer must meet that burden by proving the charges against an employee by a preponderance of the evidence. Wellman v. W. Va. Dep't of Health & Human Services, Docket No. 93-HHR-079 (Oct. 18, 1993); Ramey v. W. Va. Dep't of Health, Docket No. H-88-005 (Dec. 6, 1988).      2.      "Discrimination" is defined by W. Va. Code § 29-6A-2(d) as “



Parsons v. W. Va. Dep't of Transp., Docket No. 91-DOH-246 (Apr. 30, 1992); Hickman v. W. Va. Dep't of Transp., Docket No. 94-DOH-435 (Feb. 28, 1995).
      3.      Once a grievant establishes a prima facie case of discrimination under W. Va. Code § 29-6A-2(d), the employer can offer legitimate reasons to substantiate its actions. Thereafter, the grievant may show that the reasons offered for disparate treatment are merely pretextual. Hickman, supra. See Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986).
      4.      Although Grievant established a prima facie case of discrimination in regard to the penalty she received for violating a hospital policy against placing more than one brief on an incontinent patient, DHHR established that a greater penalty was warranted inGrievant's case, because she had previously been suspended for a related offense of patient neglect, a factor that did not exist in the case of a co-worker who received a lesser penalty for the same offense.
      5.      An allegation that a particular disciplinary measure is disproportionate to the offense proven or otherwise arbitrary and capricious is an affirmative defense, and the 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. Thompson v. W. Va. Dep't of Health & Human Serv., Docket No. 94-HHR-254 (Jan. 20, 1995).
      6.      Grievant failed to demonstrate that a 21-day suspension for intentionally disregarding a hospital policy against placing more than one brief on an incontinent patient was clearly excessive or unduly harsh under the circumstances presented in this grievance.

      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.

                                                                                                  LEWIS G. BREWER
                                                ADMINISTRATIVE LAW JUDGE

Dated: May 8, 2000


Footnote: 1
      Grievant appeared pro se. DHHR was represented by Assistant Attorney General B. Allen Campbell.
Footnote: 2
      This disciplinary action is still being challenged through the grievance procedure. Accordingly, the name of the other employee will not be used to protect her privacy.
Footnote: 3
      A prima facie case generally refers to a set of facts which, if not rebutted or contradicted by other evidence, would be sufficient to support a ruling in favor of the party establishing such facts. See Black's Law Dictionary 1353 (4th ed. 1968).