Department of Mental Health v. Horner, Record No. 2553-02-3.

• Decision Date: 22 April 2003
• Docket Number: Record No. 2553-02-3.
• Citation: 579 S.E.2d 372,40 Va. App. 338
• Parties: DEPARTMENT OF MENTAL HEALTH, Mental Retardation and Substance Abuse Services, Western State Hospital, v. Walter H. HORNER.
• Court: Virginia Court of Appeals

579 S.E.2d 372

40 Va. App. 338

DEPARTMENT OF MENTAL HEALTH, Mental Retardation and Substance Abuse Services, Western State Hospital, v. Walter H. HORNER.

Record No. 2553-02-3.

Court of Appeals of Virginia, Salem.

April 22, 2003.

Anthony P. Meredith, Assistant Attorney General (Jerry W. Kilgore, Attorney General; Elizabeth McClanahan, Chief Deputy Attorney General; Judith W. Jagdmann, Deputy Attorney General; Guy W. Horsley, Jr., Senior Assistant Attorney General; Ondray T. Harris, Assistant Attorney General, on briefs), for appellant.

Tate C. Love (Black, Noland & Read, P.L.C., on brief), Williamsburg, for appellee.

Present: FITZPATRICK, C.J., and ELDER, J., and HODGES, Senior Judge.

HODGES, Judge.

The Department of Mental Health, Mental Retardation and Substance Abuse Services, Western State Hospital (DMH) appeals the decisions of the circuit court denying its motion to dismiss Walter H. Horner's (Horner) grievance hearing appeal and reinstating him to his former position. DMH argues (1) Horner failed to perfect his appeal to the circuit court, (2) the circuit court misinterpreted Code § 2.2-3003(D),¹ (3) the circuit court misapplied Code § 2.2-3004(D), (4) the court erred by finding the Department of Employment Dispute Resolution (EDR) compliance rulings were appealable, (5) the court erred by finding appellate review was not precluded, (6) the court's decision renders DMH management powerless to discipline its employees, (7) the court erred by finding the first level respondent provided a remedy, and (8) the court improperly allowed Horner to address and introduce new materials into evidence in violation of its pre-hearing order.

Horner contends DMH failed to abide by the requirements of the state grievance procedure and that an e-mail he transmitted to the Inspector General did not violate Policies 6.05 and 6.10 concerning patient confidentiality.

We agree that the circuit court erred by finding DMH was bound by the determination of the first level respondent. Therefore, we reverse the circuit court's decision and remand for the court to address Horner's other bases for challenging the decisions of the hearing officer.

Background

Horner was an internist at DMH's Western State Hospital. Horner's conduct was governed by the Department of Human Resource Management's (DHRM's) Standards of Conduct, DHRM Policies 6.05 and 6.10, DMH's Departmental Instruction 201, and the Grievance Procedure Manual. On May 15, 2001, pursuant to the Standards of Conduct, Horner was issued three Group II written notices and terminated for failure to follow a supervisor's instructions and for failure to comply with Policies 6.05 and 6.10. Dismissal is warranted on the accumulation of two such notices. Horner contested the notices under the statutory grievance procedure. The grievances were qualified for a hearing, pursuant to the Commonwealth's three-step grievance qualification process. See Code § 2.2-3004(D).

At the first level of management review, Horner's immediate supervisor, Dr. Michael T. Clayton, stated he supported the reversal of the notices and he concluded Horner should be reinstated with back pay and benefits. However, in the subsequent two levels of management review, management disagreed with Clayton's decisions.

The matters then went before an EDR hearing officer, as the next level of review. Following a two-day evidentiary hearing, the hearing officer, in an August 20, 2001 written decision, affirmed Horner's termination and two of the Group II notices. Horner sought and obtained reconsideration by the hearing officer, but the hearing officer affirmed his original decision. Horner appealed both decisions to EDR and DHRM. Horner then appealed to the circuit court.

The court agreed with Horner's contention that the statutory grievance procedure requires that DMH give effect to Clayton's decisions and ordered Horner be reinstated.

Analysis

In administratively implementing the statutory grievance procedure, pursuant to Code § 2.2-3003(A),² EDR produced the "Grievance Procedure Manual" (GPM). In the GPM, EDR provided for three levels of management review for the purpose of resolving an employee's grievance short of elevating the matter to a formal hearing. GPM § 2.1 and §§ 3.1 through 3.3. Under the GPM procedure, the first of three potential "Management Resolution Steps" is conducted by the "First-Step Respondent." GPM § 3.1. The "First-Step Respondent" is the employee's immediate supervisor. GPM § 9. The subsequent two steps are conducted by an individual in a senior management position and the agency head, respectively. GPM §§ 3.2, 3.3, and 9.

Code § 2.2-3003(D) provides, in pertinent part, that "management shall review the grievance and respond to the merits thereof. Each level of management review shall have the authority to provide the employee with a remedy." The circuit court found that Clayton, the first level resp...