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:
The purpose of this letter is to inform you of my decision to suspend you without pay from
your duties as a Health Service Worker at Pinecrest Hospital for a period of five (5) working
days. This is in accordance with the West Virginia Department of Health and Human
Resources Policy # 2104 entitled, Progressive Discipline. The reason for this suspension
is your violation of a residents rights.
The specific reasons for the aforementioned action are as follows:
Ms. Frances Crissy Allen, Resident Advocate, received and investigated a complaint
alleging that you had violated a residents rights. The rights violations included: 1.) the rightto be treated as a person with respect, dignity and consideration and 2.) the right to receive
adequate, appropriate health care and appropriate protective and support services with
reasonable accommodation of ones individual needs and preferences.
An incident report was made regarding Resident # 21897 by another Health Service Worker
on May 14, 1999 and received by Ms. Crissy Allen, Resident Advocate on May 17, 1999.
The incident report stated, giving a client a shower, found she was double briefed and had
a small broken area at right thigh. Ms. Phyllis Miller, LPN, Charge Nurse and Ms. Joyce
Brown, R.N., 3-11 Relief Nursing Supervisor signed the incident report. On the incident
report, Ms. Miller wrote under additional comments, instruct Health Service Workers to
never double brief.
Ms. Allen interviewed the resident (#21897) on May 17, 1999. During the interview,
Resident # 21897 indicated that she only wanted one brief on. Further, the resident
indicated that she had had more than one brief on in the past. In addition, Resident # 21897
indicated that more than one brief hurt her.
Review of the 7-3 HSW Resident Care Record indicated (by initials) that you had provided
care for Resident # 21897 on May 14,1999. The record also indicated that the resident had
been incontinent of bladder three times that day. Ms. Allen interviewed you on May 14,
1999. At this time, you affirmed that you had double briefed Resident #21897 and thought
this practice is not acceptable.
Due to the above findings, regarding the alleged violation of residents rights of Resident
# 21897, I must conclude that you violated the residents rights. Although the resident
experienced only a minor injury, one must also consider the amount of discomfort and
embarrassment the resident experienced as a result of the double briefing as well as the
preference of the resident to not be double briefed. Your actions violated the West Virginia
Law (16-5L-18) and agency policy covering Resident Rights as mandated by Federal and
West Virginia State Law. Specifically, this law states that it is the residents right to receive
adequate, appropriate health care, and appropriate protective and support services with
reasonable accommodation of the residents needs and preferences. Rights violations
included: the right to be treated as a person with respect, dignity and consideration, and the
right to receive adequate, appropriate health care, and appropriate protective and support
services with reasonable accommodation of ones individual needs and preferences. The
double briefing occurred for your convenience and you failed to follow proper procedure
for incontinence care. This is not an acceptable practice and will not be tolerated.
Previously, on May 14, 1999, you received a Written Warning as a result of your
insubordination and your failure to comply with conduct that would be reasonably expected
of employees, resulting in the disruption of the normal operations of the Agency. This was
considered as an unauthorized leave, as you left the building during your shift for 1.25 hours
without prior approval. Your absence created a hardship on the staff and could have
jeopardized the residents. At this time, you were told that continued failure to comply with
these policies or any other established policies may result in more severe disciplinary
action, up to and including dismissal.
Therefore, due to the potential severity of this most recent incident regarding resident rights
violations along with your unauthorized leave that could have jeopardized the residents, it
is my conclusion that a suspension for five (5) days without pay is the appropriate
disciplinary action based on policy and progressive discipline. The period of your
suspension will begin on June 13, 1999, and will continue through and include June 17,
1999. You will be scheduled off work on June 18, 1999 and June 19, 1999. You shouldreport back to work on your regular scheduled time on June 20,1999. During the period of
your suspension, you are prohibited from entering the grounds and/or building of Pinecrest
Hospital without prior approval from my designee or me.
In addition to your five (5) day suspension without pay, I am requiring that you attend an
individualized educational inservice on Residents Rights. Further, you will be removed as
a Health Service Worker from 3B unit and placed on another unit.
As a Health Service Worker, it is imperative that you comply with residents rights. It is your
responsibility to acknowledge and observe residents rights and act upon them according
to Resident Rights as mandated by Federal and West Virginia State Law. Continued
failure to comply with this policy/law or any other established policy may result in more
severe disciplinary action, up to and including dismissal.
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:
(a) that she is similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that she has, to her detriment, been treated by her employer in a manner
that the other employee(s) has/have not, in a significant particular;
(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.
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
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 prima facie case of discrimination under W. Va. Code § 29-6A-2(d), a grievant
must demonstrate the following:
(a) that she is similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that she has, to her detriment, been treated by her employer in a manner
that the other employee(s) has/have not, in a significant particular;
(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.
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