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:



      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 -

Ex. 2 - Ex. 3 - Ex. 4 - Ex. 5 - Ex. 6 - Ex. 7 - Ex. 8 - Ex. 9 - Ex. 10 - Ex. 11 - Ex. 12 - Ex. 14 - Ex. 15 - Ex. 16 - Ex. 17 -
Grievant's Exhibits

Ex. 1 -


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:


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:


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:

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)
      (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). 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)
      (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 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