Grievant,
v. Docket No. 00-HHR-173
DEPARTMENT OF HEALTH
& HUMAN RESOURCES/
WILLIAM R. SHARPE, JR.,
HOSPITAL,
Respondent.
Dixie Landis (Grievant) initiated this grievance on January 21, 2000, alleging
harassment to me by Janice Woofter N.M. on my unit C-2. She seeks as relief to have
disciplinary action removed from my personnel and administrative records. The grievance
was denied at level one on January 27, 2000, and at level two on February 22, 2000. A
level three hearing was held on May 5, 2000, and the grievance was denied at that level
in a written decision dated May 12, 2000. Grievant appealed to level four on May 19, 2000.
A hearing was conducted before the undersigned administrative law judge in the Grievance
Board's office in Elkins, West Virginia, on August 2, 2000. Grievant represented herself,
and Respondent was represented by counsel, Anthony Eates. The parties elected not to
file post-hearing arguments, so this grievance became mature for consideration at the
conclusion of the level four hearing.
The following findings of fact are made from a preponderance of the evidence of
record.
4. Ms. Woofter also stated in the memorandum that she did have a doctor's
statement regarding Grievant's absences on December 22 and 23, 1999, so those were
considered verified sick leave days.
5. On January 20, 2000, Grievant provided Ms. Woofter with an excuse from
her physician for the five unverified sick leave days. The excuse stated Please excuse[Grievant] 7-1-99, 8-14-99, 9-4-99, 10-31-99, 12-14-99, and contained no further
explanation.
6. After being informed that the doctor's excuse described above was
insufficient to verify her sick leave on those days, Grievant provided an additional excuse
from the same physician, dated February 24, 2000, which contained the same language,
but with the added statement for illness.
7. Sharpe Hospital and DHHR officials refused to accept either of the excuses
Grievant submitted for the five sick days, because they provided no explanation of
Grievant's illness and had obviously been issued after-the-fact.
Sharpe Hospital has adopted an Absence Control Policy, which is somewhat more
restrictive than DOP's rule, and states, in pertinent part:
* First occasion after a pattern is established _ verbal counseling
* Next occasion _ written warning
* Next occasion _ 3-day suspension
* Next occasion _ 10-day suspension
* Next occasion _ dismissal
Grievant contends that she provided excuses for these absences, so the verbal
counseling was unjustified. She also believes that she has been subjected to harassment,
which is defined by W. Va. Code § 29-6A-2(l) as "repeated or continual disturbance,
irritation or annoyance of an employee which would be contrary to the demeanor expected
by law, policy and profession." In order to establish harassment in violation of W. Va. Code§ 29-6A-2(l), the grievant must show a pattern of conduct, rather than a single improper
act. See Hall v. W. Va. Dep't of Transp., Docket No. 96-DOH-433 (Sept. 12, 1997); Phares
v. W. Va. Dep't of Public Safety, Docket No. 91-CORR-275 (Dec. 31, 1991). See also
Thompson v. Bd. of Trustees, Docket No. 96-BOT-097 (Dec. 31, 1996). The
circumstances presented here simply do not constitute harassment. The verbal counseling
given to Grievant was a single act, and does not display a pattern of conduct. Therefore,
Grievant has not proven harassment.
However, it is quite obvious that DHHR has improperly applied Sharpe Hospital's
Absence Control Policy. In the memorandum recording the verbal counseling session, Ms.
Woofter admitted that two of the absences, on December 22 and 23, were verified by a
valid physician's excuse. Moreover, there is no mention in the absence control policy that
an absence for emergency vacation leave is to be counted as one of the six occasions of
unverified sick leave usage which may constitute a pattern of abuse. Although it is
understandable that Grievant's superiors did not accept a blanket doctor's excuse,
without explanation, for five of her absences, the fact remains that Grievant only had five
unverified sick leave days within a six-month period, which does not constitute a pattern
under the policy. The remaining absences were verified sick leave and emergency
vacation, which are not to be counted against her.
Accordingly, the undersigned finds that, because the verbal counseling was given
in contradiction of the Absence Control Policy, all record of it should be removed from
Respondent's files. It was ordered by the level three grievance evaluator that the
memorandum be maintained only in Ms. Woofter's administrative file. However, the
undersigned finds that, because the memorandum was issued as a record of the verbalcounseling, a step in the progressive disciplinary process, it should be completely
destroyed. Grievant's unverified sick leave days had not yet reached the level of a pattern,
so no discipline was justified in this case, and the verbal counseling cannot be used
against her pursuant to the progressive disciplinary process outlined in the Absence
Control Policy.
Consistent with the foregoing, the following conclusions of law are made.
Date: August 30, 2000 ___________________________________
DENISE M. SPATAFORE
Administrative Law Judge