Discipline Warning Upheld for Healthcare Worker

A respiratory therapist who received a Step 3 warning for failure to update spreadsheets related to smoking cessation cannot overturn a hearing officer decision upholding the disciplinary notice, a Charlottesville Circuit Court holds.

The question in this case is whether this court should reverse the hearing officer’s decision in appellant’s grievance against the University of Virginia Medical Center.

Appellant is a registered respiratory therapist at the University of Virginia Medical Center in an outpatient primary care clinic. She has worked for the Medical Center for approximately 24 years. Her case involved an allegation that she did not properly update certain spreadsheets after being directed to, and that this constituted misconduct, resulting in a Step 3 Formal Performance Improvement Counseling Form (FPICF).

One of her duties was to keep updated spreadsheets related to smoking cessation at the clinic. She was to update the spreadsheet for each patient within one day of the patient contact or observation. Each took approximately one to two minutes to complete. On May 28, 2014, she received a Step 2 FPIC Form for failing to timely update such spreadsheets. She was advised that she must update them by the end of each working day, and on Aug. 13 and 14, 2014, she was given additional time to update the spreadsheets. There is no evidence of any subsequent request for additional time or accommodation.

On Sept. 23, 2014, her work and documentation was audited and the Smoking Cessation Intervention Data spreadsheet had last been updated Sept. 9 (two weeks prior) and the Non-Smoking Cessation Log spreadsheet had not been updated since Sept. 3 (over three weeks prior). This resulted in a Step 3 FPICF warning on Oct. 1, 2014.

Appellant has moved this court to find that the hearing officer was in error in finding against her. She challenges the ruling on three main grounds. She claims the ruling is contrary to law in that it violates the Americans with Disabilities Act and that there was insufficient evidence that the spreadsheets were not kept up to date and they were not made available to her. She also contends the hearing was not conducted properly or informally enough such that the environment and process were too intimidating.

Limited review

The standard of review for the court focuses solely on whether the hearing officer’s decision is contradictory to any applicable law. In this case, appellant challenges the hearing officer’s decision based on alleged factual and procedural errors. Thus, both of these errors are beyond this court’s consideration.

The hearing officer noted there were accommodations made in August, after the original Step 2 warning. There is no evidence of any subsequent request. The hearing officer found appellant was not given too much work and that she was capable of completing the spreadsheets on a timely basis. The Director of the OEDR on administrative review points out there was insufficient evidence that any further accommodation was required by the ADA, or that if requested, such was not provided. The grievant did not testify at the hearing and presented no evidence. As to the factual finding, the hearing officer’s findings are binding on this court. The director found no violation or insufficiencies of policy or procedure.

To the extent appellant is challenging the procedure regarding the presentation or availability of the evidence (the spreadsheets), the director’s review of policy and procedure is also binding on and not reviewable by this court. Despite appellant’s references to the ADA, her claims are really factual and procedural questions and not properly considered by the court.

Finally, to the extent appellant challenges the environment in the grievance hearing, or the procedure being intimidating or harassing, again this would be the bailiwick of the director, to determine whether the hearing was conducted in accordance with policy. The Department of Human Resources is the body given the authority to review questions of procedure for grievance hearings. Appellant had the opportunity to seek their review and the director upheld the ruling as not violative of policy.

The Step 3 ruling will stand, and the appeal is dismissed.

Wilkinson v. University of Virginia Medical Center (Moore) No. CL 15-251, Jan. 6, 2016; Charlottesville Cir.Ct.; Patricia Wilkinson, pro se; Alison P. Landry, Spec. AAG, for appellee. VLW 016-8-002, 4 pp.