A clerical employee, who failed to perform a certain task within the required timeframe, was terminated because a patient likely suffered unnecessary pain as a result of the employee’s inaction.
What happened. “Leanne” worked as an Administrative and Office Specialist II for Catawba Hospital, a state hospital that falls under the jurisdiction of the Department of Behavioral Health and Developmental Services. Among other things, she was responsible for listening to doctors’ dictated notes and typing the recommendations—within 3 days of a doctor’s visit. Licensed independent practitioners then used the typed notes to determine patients’ medical treatment.
On August 26, 2010, a doctor dictated his recommendations for seven patients, but Leanne did not transcribe the notes within the required 3 days. In fact, it took her more than 2 weeks to transcribe most of them. She attributed the delay to the tapes being lost when her office relocated from one floor to another. However, in the meantime, at least one patient did not receive pain medication when needed.
Leanne was issued a “Group III” written notice and terminated for violating Departmental Instruction (DI) 201, the policy that governs the “Abuse and Neglect of Individuals Receiving Services in Department Facilities.” Under the policy, client abuse is defined as follows: “any act or failure to act by an employee or other person responsible for the care of an individual in a Department facility that was performed or was failed to be performed knowingly, recklessly or intentionally, and that caused or might have caused physical or psychological harm, injury, or death to a person receiving care or treatment for mental illness, mental retardation or substance abuse.”
Leanne filed a grievance and obtained a hearing. The hearing officer concluded that the hospital had misread DI 201. Since the policy applied to those who were “responsible for the care… of patients” and since Leanne held a clerical job, the hearing officer said she did not violate DI 201. He reduced the disciplinary action to a Group II offense, reinstated Leanne, and imposed a 10-workday suspension.
The Department of Behavioral Health and Developmental Services unsuccessfully petitioned the hearing officer for reconsideration. The agency also petitioned the Department of Human Resource Management (DHRM) for a review of the hearing officer’s interpretation of DI 201, contending that the agency had the authority to elevate Leanne’s offense to a more serious offense. The DHRM found that DI 201 did, in fact, apply to clerical personnel. As a result of the DHRM’s interpretation, the hearing officer reversed his decision and upheld the agency’s decision to terminate Leanne’s employment.
She appealed to the circuit court, which held that it lacked jurisdiction to review the matters of policy she presented. Leanne then appealed to the Court of Appeals of Virginia.
What the court said. Finding no error in the circuit court’s decision, the appeals court affirmed, saying that the circuit court correctly concluded that it lacked jurisdiction to review DHRM’s policy interpretation.
The court also disagreed with Leanne’s contention that the agency’s decision to terminate her should be reversed, because the agency failed to comply with its own grievance procedures, and her argument that the court erred in failing to find that the agency had violated a provision in its Grievance Procedure Manual.
The court said the Department of Employment Dispute Resolution is charged with resolving procedural disputes that arise at grievance hearings. In addition, the court said judicial review “is limited to ensuring that the administrative decision was not ‘contradictory to law’” and that “[failure to abide by an agency’s own policies and procedures does not render that decision ‘contradictory to law’.” Burke v. Catawba Hospital, et al., Court of Appeals of Virginia, No. 1565-11-3 (3/20/12).
Point to remember: It is not clear in the court ruling whether Leanne understood in advance that failure to transcribe a doctor’s notes within the required 3 days could result in her termination. However, this case serves as an important reminder to employers to educate employees that certain offenses can result in termination—even for a first offense.