MEDSTAR WASHINGTON HOSPITAL CENTER,

Employer,

and

SERVICE EMPLOYEES INTERNATIONAL UNION,

LOCAL 722,

Union.

__________________________________________

:

:

:

FMCS CASE 14-56420-A

Grievance of SHEILA LEE

Hearing held on June 22, 2015 in Washington, D. C.

Before Stephen E. Alpern, Arbitrator

For the Employer For the Union

Thomas P. Dowd, Esq. Daniel Fields

Littler Mendelson, PC President, Local 722

.

As parties to a collective bargaining agreement (“the Agreement”),

the Union and the Employer (“the Hospital”) submitted this matter to

arbitration. The dispute involves the termination of the Grievant from her

position as a Patient Care Technician (“PCT”). The parties stipulated that

the issue presented is, “was the discharge of the Grievant for just cause,

and, if not, what shall the remedy be?”

3.1 Causes for Discharge and/or Discipline: The Hospital shall have

the right to discharge, suspend or discipline any employee for just cause.

Discipline will be administered within ten (10) working days of the date on

which the immediate supervisor became aware ... of the conduct upon

which the discipline is based.... In the event of a suspension or discharge, the

Hospital shall also provide the employee with a written notification of the

reasons for the suspension or discharge within forty-eight (48) hours of the

notification to the employee of the disciplinary action. Nothing in this 3.1

shall preclude the Hospital from utilizing (either at any stage of the grievance

procedure or at arbitration) any evidence of misconduct other than given

pursuant to this 3.1, provided, however, that all reasons for the disciplinary

action taken against an employee shall be made known in writing to the Union

no later than fifteen (15) calendar days prior to the scheduled date of arbitration.

3.2

(a) Progressive Discipline: Except for offenses enumerated below or

offenses constituting gross misconduct, the Hospital shall follow a system of

progressive discipline as follows:

First offense: written warning

Second offense: suspension

Third offense: discharge

Progressive discipline does not relate solely to each particular offense but

includes progressive discipline for any combination of offenses. In other words, a

second offense shall subject the employee to suspension, whether or not it is

for the same offense as the first violation; similarly, a third offense shall subject

the employee to discharge, whether or not it is for the same or a different

offense as the first or second violations. An offense shall be active for no more

than eighteen (18) full months from the date of occurrence.

***

10.2 Authority of the Arbitrator: The arbitrator shall have the

authority to apply the provisions of this Agreement and to render a decision

on any grievance properly coming before him, but he shall not have the authority

to amend or modify the Agreement or to establish any terms or conditions of the

Agreement. Further, he shall have the authority to apply and interpret the

provisions of this Agreement only insofar as may be necessary to the

determination of such grievance.

The Hospital is a large multi-specialty hospital which employs

approximately 6,300 employees of whom about 2,000 are represented by

the Union. The Grievant was employed as a PCT in the Hospital’s 4D unit,

which is a cardiac care unit. The Grievant began her employment with the

Hospital on May 13, 2013, and was terminated on February 27, 2014. Prior

to her employment with the Hospital, the Grievant served as a volunteer in

Unit 4D and was subsequently hired because she was well liked.

As a PCT the Grievant was responsible for providing a number of

basic care functions for patients in her unit, including taking vital signs on

pre-established schedules, responding to patient requests for assistance,

measuring patient’s blood glucose as required, and assisting patients with

Activities of Daily Living (“ADL’s”), which include but are not limited to

“positioning/escorting, answering patient signal light, feeding, bathing, etc.”

As might be expected, in such a health care facility there are wellestablished

protocols for patient care including schedules for PCT’s which

set forth what tasks they are to complete during their shift and when they

are to be completed. Among the regularly tasks are “a. m. care” which

requires the PCT to assist assigned patients with ADL’s, including bathing.

During her slightly more than nine month tenure, the Grievant

received at least two commendations from patients for her service. Her first

evaluation which covered the period from her initial employment until

August 10, 2013, stated that she met expectations with respect to every

aspect of her performance. However, the evaluation did note a number of

issues that she needed to address, including the need to “work

systematically, efficiently, and manage time optimally.”

Soon thereafter documented problems began to arise with respect to

the Grievant. On October 25, 2013, the Grievant’s supervisor, Assistant

Nursing Director Marian Toronka, issued the Grievant a written warning for

inappropriate communication with a patient. According to the Hospital, a

patient refused to allow the Grievant to take the patient’s vital signs. When

a nurse came to explain to the patient the importance of taking vital signs,

the Grievant stated to the nurse in front of the patient that “you are forcing

patients to do something they don’t want” and that she would report the

nurse. Later, according to the warning, another nurse reported that she

heard the Grievant recount the discussion with another patient. The

warning noted that the Grievant had previously been “coached and

counseled regarding the inappropriateness of your discussions with our

patients in your care.” The warning contained a notation that the Grievant

would like to provide an explanation at a later date, although no such

explanation was introduced into the record. At the arbitration hearing, the

Grievant denied that she made the statements attributed to her in front of

patients. She stated that she did not file a grievance because she was not

aware of her right to do so.

During the following month, two incidents arose which resulted in the

Grievant being counselled, rather than having the next formal step of the

discipline process being imposed. On November 16 the Grievant informed

a new graduate nurse that the Grievant was unable to get a mean arterial

pressure (“MAP”) reading from a patient. In fact, the Grievant obtained a

low MAP reading from the patient, a significant difference. On November

22 a nurse in the unit asked the Grievant to take a patient’s EKG. Instead

of doing it herself, the Grievant, several hours later, requested a new nurse

to take the EKG. While making the request, the Grievant told the nurse in

front of the patient that nurses on the ward did not know how to do EKG’s.

Based on these incidents, Toronka decided to informally counsel the

Grievant. She explained that she did not impose formal discipline because

“we liked her, we wanted to give her a chance.”

On Sunday, December 15 Nurse Lori Marlowe wrote an e-mail to

Toronka expressing concerns about the Grievant. Marlowe alleged that the

Grievant was not properly documenting blood sugar readings; that she fails

to answer her phone when doing blood sugars; that she didn’t perform her

duties in a timely manner; and, that “she always has a way of getting out of

doing delegated tasks.” Apparently as a result of her interactions with

Marlowe, the Grievant repeatedly called Toronka that evening at her home

until she answered the phone. The Grievant told Toronka that she wanted

Toronka to change the PCT duty guidelines because nurses were being

unfair to her and PCT’s had too much work to do. Toronka said that nothing

was going to be done in this respect on a Sunday evening and that they

could talk at a more appropriate time at the Hospital. The next morning the

Grievant sent an e-mail to Toronka apologizing for her action the previous

evening. As a result Toronka held another counselling with the Grievant.

Toronka testified that she did not issue a suspension to the Grievant,

because they “were still trying to give her a chance.”

Several weeks later on January 13, 2014, Toronka again counselled

the Grievant for not having her hospital-issued phone on during working

hours, cutting off a nurse who was trying to give her a work assignment,

and failing to get hot water for a patient when instructed to do so. On the

record of the counselling Toronka noted that it was very difficult trying to

counsel the Grievant and that she was concerned about the Grievant’s

defensiveness concerning performance criticisms.

On January 21, 2014, Toronka issued the Grievant a two day

suspension for incidents on January 20 and 21. On January 20 the

Grievant reported to work without an ID badge and, as a result, was unable

to perform some assigned tasks. On January 21 she failed to complete

taking vital signs for assigned patients and not informing any nurse that the

vital signs had not been completed. The Grievant’s omission was not

discovered until nurses were preparing medications for patients and found

that vital signs had not been recorded, thus leaving nurses unable to

determine if medications were appropriate. The Grievant did not grieve this

discipline, again because she purportedly did not know of her right to do so.

On Saturday, February 15, 2014, the Grievant was scheduled to work

the day shift from 7:30 am to 3:30 pm. On that morning only one PCT was

scheduled to work the day shift in the 4D Unit, rather than the two who

were normally assigned. Under the Unit’s protocol, when only one PCT was

assigned to the shift, the PCT was assigned to take vital signs for patients

in one half of the Unit in the morning and in the other half in the afternoon.

Nurses would be responsible for taking morning and afternoon vitals in the

half of the Unit that the PCT was not covering. The PCT is responsible for

taking blood sugar readings and EKG’s for all patients in the Unit for whom

such procedures were required. On that day, the Grievant was assigned to

provide a.m. care for six patients in the Unit. However, during the early part

of the shift one of the patients was transferred out of the Unit. A nurse

provided the care for another patient, thus leaving the Grievant to provide

a.m. care for four patients, which was two patients less than the normal

workload. The Grievant was also required to assist nurses with patient care

throughout the Unit when requested, but she had previously been

instructed to decline such requests (except in certain specified urgent

situations) if they would prevent her from completing her regular assigned

duties.

Toronka testified that taking the vital signs of half of the patients in

the Unit should have taken about 30-45 minutes, including providing other

assistance to the patients, as required. She also testified that during her

rounds of the Unit that morning nothing unusual occurred in the Unit other

than the transfer of one patient to another Unit. Sometime around 12:30

pm, the Grievant approached the Unit’s Resource Nurse, “Kiki” Kasahun

and informed her that she (the Grievant) was unable to get her assigned

work completed. At that time the Grievant had only completed one of her

a.m. cares. According to the Grievant, she requested assistance from

Kasahun, but that it was refused. According to Toronka, Kasahun was

covering for the unit clerk who was on break and presumably could not

leave the desk until the clerk returned.

Sometime thereafter, at about 1:30 p.m. (according to the Grievant)

or 2:00 p.m. (according to Toronka), the Grievant went to the Nursing

Office which Toronka happened to be staffing at time. According to

Toronka, the Grievant stated that she did not think she get all her work

done. She still had three a.m. cares, two EKG’s and vital signs for half the

Unit to complete. Toronka testified that the Grievant told her that she still

had three a.m. cares left because things just seemed very busy and she

had to respond to patients and family members and that she had to spend

a lot of time in patients’ rooms. Toronka further testified that she told the

Grievant to do the EKG’s first, then the patient cares and that she should

do the vital signs before she left. She also advised the Grievant that she

would try to get a relief PCT. Toronka testified that shortly after this meeting

the Grievant called her and advised that she was unable to do an EKG on

the first patient because the patient was eating or something. Toronka

advised her to do the other patient’s EKG or her uncompleted cares and

then return to the first patient.

The Grievant testified that she was unable to complete the three a.m.

cares because the condition of the three patients required another person

to assist her (such patients are known as “complete cares”). She further

testified that Kasahun would not help her with the patients in the morning,

but after Toronka intervened in the afternoon, Kasahun helped her with one

of the complete care patients in the afternoon. The Grievant did not testify

who, if anyone, helped her with the other two patients for whom she

provided a.m. care in the afternoon. Toronka did arrange for a relief PCT to

assist on the Unit. The Grievant testified that she completed her a.m. cares

sometime after the end of her scheduled tour at 3:30 p.m. and that she

finally completed her duties by 4:30 p.m., with the exception of taking vitals.

She testified that she arranged with the newly assigned relief PCT to do the

vitals. The relief PCT arrived on the unit at about 3:00 p.m. or shortly

thereafter. Toronka testified that she had instructed the Grievant to

complete the vitals before the end of her shift. The Grievant testified that

she assumed that if Toronka could obtain a relief PCT, then that individual

could complete the vitals.

On February 27, 2014, the Hospital issued the Grievant a termination

notice. The Notice stated:

Attached to the Notice was an e-mail, dated February 20, 2014, from the

Grievant to Batavia Gillis (the Nursing Director) which explained the

Grievant’s version of the events on the day in question. In the e-mail, the

Grievant explained her difficulties in completing her duties, including that

two of her uncompleted a.m. cares were complete care patients. She

stated that she informed Kasahun that she gave the relief PCT a report

which “included that [the relief PCT] would do sugars for the floor due at 5

and she would be doing the back vitals at 4.” She wrote that Kasahun said

“ok.”

The Union filed a grievance on February 27, 2014, challenging the

termination. The Hospital denied the grievance by letter dated May 28,

2014. Thereafter, the Union invoked its right to arbitrate the dispute. Under

the auspices of the Federal Mediation and Conciliation Service the

undersigned was selected by the parties and duly appointed to resolve the

dispute.

A. The Hospital

According to the Hospital, the Arbitrator need only resolve one

conflict in testimony to determine the outcome of this case. That issue is

whether Toronka told the Grievant that the Grievant did not have to

complete the vital signs for her half of the Unit before the end of her shift.

Unless Toronka specifically told the Grievant that she did not have to

complete these duties before leaving at the end of the day, the failure to

complete these duties was a failure to complete her assigned duties. Such

a failure warranted imposition of the third step of the discipline process

which was termination of employment. A detailed review of the record,

argues the Hospital, reveals that Toronka’s testimony on this point is more

credible than the Grievant’s, and that the Grievant was specifically told to

complete the vitals’ before leaving for the day. The Grievant knew from

prior discipline that failure to complete vitals was a cause for discipline.

The three step discipline process was a collectively bargained

procedure. In fact, the Hospital refrained from imposing discipline

previously when it was entitled to do so. However, the Arbitrator is not

authorized to add additional progressive discipline steps that would modify

the Agreement. Because the Grievant did not complete her assigned task,

the Hospital was entitled to invoke the third step of the discipline process

and terminate the Grievant.

B. The Union

The Union argues that the Agreement requires that the Hospital show

that the Grievant committed the acts charged, whether the punishment was

appropriate in light of the facts of the case, and whether there was just

cause for the discipline. The Hospital failed to do this.

The Hospital was short one PCT in the Unit on the day in question.

Even with two PCT’s the Unit’s workload could be overwhelming. The

Grievant testified that on February 15, the Unit was extremely busy. In

addition to doing vital signs, which were just a scintilla of the work required,

PCT’s had many other duties and the Grievant was required to assist all

eight nurses on the Unit. The Hospital never proved that the Grievant was

not performing her duties or refused any assignment. There were no

complaints from any nurses that the Grievant refused to assist them. In

fact, Kasahun did not assist the Grievant with getting someone to help her

until after the Grievant reported her difficulties to Toronka. The Grievant

needed assistance because she had three complete care patients.

It was not unusual for the oncoming shift to complete the vitals for the

previous shift. The Hospital presented no evidence that this was contrary to

policy or that employees had been disciplined for failure to complete vitals

on their shift. The Grievant actually may have completed the front side

vitals both times rather than switching sides. This was an unusual day

because there was only one PCT and there may have been a

miscommunication.

The Grievant’s actions were textbook for the conditions she faced.

Once she noticed that she faced the possibility that she might not be able

to complete all her duties because of the mitigating circumstances, she

notified Kasahun who was of no help. She then went to Toronka who

helped her prioritize her assignments and obtained help for her from

Kasahun. When a relief PCT arrived on the Unit the Grievant gave the PCT

a report which included the relief PCT completing the vitals. The Grievant

was then able to complete her assignment by working an additional hour.

Instead of lauding the Grievant for her actions, the Hospital insinuated that

the Grievant was not performing her duties in a diligent manner and that

she was attempting to gain overtime. If this was the Grievant’s purpose she

would not have gone to Kasahun or to Toronka. The Union notes that

Kasahun “conveniently” was not present at the hearing to testify concerning

her actions. The Hospital had the option of not disciplining the Grievant and

definitely not terminating her.

The Hospital did show by a preponderance of the evidence that the

Grievant was expected to complete the vitals on February 15. The Union

does not dispute this. The question remains whether Toronka relieved her

of this expectation or whether the Grievant’s failure to do so was justified

under the circumstances. The essence of the Union’s defense is that the

workload on the day in question was so great that even with her diligent

efforts it was impossible to complete the assignments, that she was not

given appropriate assistance, and that she acted appropriately under the

circumstances by reporting the problems to Kasahun and to Toronka.

The Hospital had an established protocol for the Unit in dealing with

situations where there was only one PCT on a shift. While there were

normally two PCT’s on the shift, the presence of only one was not unique.

In those circumstances, nurses on the shift would assume some of the

duties that would normally be performed by the second PCT.

The Grievant testified concerning the many interruptions that could

prevent a PCT from completing her scheduled duties. There might be a

code in the unit, there might be an unusual number of EKG’s, and there

might be an unusual number of requests for assistance from nurses,

patients and patients’ families. However, with the exception of the three

complete care patients which the Grievant testified to, she gave no specific

testimony that any of these situations occurred on February 15. While there

was a code occurring on the Unit when the Grievant arrived on February 15

and the Grievant testified that she could become involved with codes, she

had no recollection of being involved with that code, and there was no

evidence to support a conclusion that she was. In fact, the code resulted in

the Grievant having one less patient for whom she was responsible. While

the Grievant may have had an unusual number of EKG’s on a given day or

an unusual number of requests from nurses on a given day, there was no

specific testimony from the Grievant or from anyone else that such

circumstances were present on February 15. Further, the Grievant had

been explicitly instructed that she should refuse requests for assistance

from nurses if such assistance would prevent her from completing her

regularly assigned duties, except in specified emergency situations. In her

testimony, the Grievant acknowledged her awareness of this expectation.

There was no evidence that such emergencies occurred on February 15.

Further, although asserting that the day was busy, the Grievant gave no

specific testimony regarding unusual requests from patients or their families

that interfered with the performance of her other duties.

The Grievant did give specific testimony regarding her need to take

care of three complete care patients which required the assistance from a

second person. The Arbitrator does not totally credit this testimony,

because it is contradicted by the Grievant’s contemporaneous written

statement. In her e-mail to Batavia Gillis, the Nursing Director, dated

February 20, 2014, five days after the incidents in question, the Grievant

stated, “I communicated with [Kasahun] that two of my remaining 3 am care

patients were two assists and therefor would take quite a bit of time to do

so.” The clear Unit protocol was that a.m. care should be completed in the

morning. Normally the Grievant would have been assigned six a.m. care

patients. However, one patient was taken off the Unit before care was

required and another patient was cared for by a nurse. Thus, the Grievant

only had to complete four, rather than the usual six, a.m. cares on the

morning of February 15. She did complete one sometime before 1:30 or

2:00 PM, which was 6 ½ hours into her shift, even though they all should

have been completed in the morning. That left three, two or three

(depending on which of her statements is believed) of whom required

additional assistance. In any event, three patients did not receive proper

care on the morning of February 15.

The Grievant essentially made two contentions as to why she could

not complete the a.m. care of all her assigned patients. First, she testified

that she made repeated requests for assistance from Kasahun for three

complete care patients but that Kasahun would not assist her. She also

testified that the morning was so busy that she could not complete the a.m.

cares and perform her other required duties. These assertions are

somewhat contradictory. If the morning was so busy that a.m. cares could

not be addressed, why was Keshaun’s lack of assistance relevant?

However, if the a.m. cares could have been completed with a second

person assisting the Grievant then the morning was not as busy as the

Grievant claimed.

The Grievant provided very few specifics as to what kept her so busy

during the morning. The Grievant did testify concerning all of the things that

could be requested of her by nurses who had other tasks to perform, but no

specifics as to whether that actually occurred on February 15. The Grievant

testified that she might have to restock a glucose machine, but couldn’t

recall whether she had to that day. She was required to take blood sugar

readings from some patients, but she didn’t recall how many readings she

took that day. In the case of some readings the patient might first request

assistance going to the bathroom, but she couldn’t recall if any such

instances occurred that day. The Grievant testified that she sometimes was

part of a code team, but couldn’t recall if she was involved in the code

which was already taking place when she arrived for her shift.

The Grievant testified that she went to Kasahun to request assistance

with the complete cares “maybe at least three or four times” and “I guess

maybe about, maybe about six times. I can't remember to be honest. I just

can't remember.” However, according to the Grievant the assistance was

not forthcoming. It was not until sometime after 1:15 p.m. that she went to

Toronka to let Toronka know that she (the Grievant) would be unable to

complete the a.m. cares and all of her other assignments for the day.

According to the Grievant’s testimony she went to Toronka because “I

knew I had to do two [complete cares] and I'd be sweating it.” (Emphasis

added.) While there is some difference between the Grievant’s testimony

and Toronka’s testimony concerning what Toronka told the Grievant, there

is no evidence that the Grievant was told not to do her p.m. vitals, because

Toronka only told the Grievant that an attempt would be made to get a

relief PCT for the Unit. The Grievant acknowledged that Kasahun assisted

her with one of the complete cares, but it is not clear from the record who, if

anyone, assisted the Grievant with the remaining two (or one) complete

cares.

Ultimately, Toronka did obtain a PCT relief and the Grievant testified

that it was her “understanding” that the relief was coming to do the

Grievant’s p.m. vitals and that the Grievant was to complete her a.m. cares.

However, on cross-examination the Grievant testified that Toronka did not

tell her she didn’t need to complete her work, but did claim that Toronka

never told her she had to complete the vitals. She further acknowledged

that completing the vitals was part of her job. In fact, the Grievant did not

complete the EKG’s and her a.m. cares until 4:30 p.m., an hour after her

shift was supposed to end. She instructed the relief PCT to perform the

vitals. She said she also did two EKG’s after she spoke with Toronka and

between 3:30 and 4:30 completed her one remaining a.m. care.

The Grievant instructed the relief PCT to complete the Grievant’s

vitals. In her February 2014 written statement, the Grievant wrote that when

she left for the day she told Kasahun that the relief PCT would complete

the vitals and Kasahun replied, “ok.” Whether or not this was what Kasahun

stated, there is no indication whether she was approving or just

acknowledging the Grievant’s actions. Kasahun did send an e-mail to

Toronka stating that she had a conversation with the Grievant in which she

prioritized the Grievant’s assignments for the day including completing the

vitals, but that the Grievant left without doing so. This indicates that

Kasahun did not authorize the Grievant to reassign her duties to the relief

PCT.1

The Union argues that in addition to showing that an employee was

disciplined for three offenses within the eighteen month period, the Hospital

must show that the third offense is sufficient to provide just cause for

termination. The Hospital essentially asserts that if the third discipline is

warranted, termination is warranted. The Arbitrator need not resolve this

issue, because under the specific facts of this case there is just cause for

termination.

The Hospital showed the duties of the PCT included completing a.m.

cares by noon and completing afternoon vitals before the end of the shift.

The Grievant was correct that when she spoke to Kasahun sometime

around 1:15PM and sometime thereafter to Toronka it was unlikely that she

could complete all her duties by the end of her shift. However, it is clear

from the record that the Grievant was “in the weeds” well before that. It

should have been abundantly clear to the Grievant that she would not

complete her a.m. cares before noon well before that hour. The Grievant

presented no convincing evidence as to why she was so far behind in

completing her assigned morning duties. The Hospital presented evidence

from its tracking devices which all patient care personnel wear that the

Grievant was not spending all that much time in patients’ rooms. The

1 Although the Union contends that Kasahun “conveniently” was not present at the hearing, the record

contains no evidence that the Union sought to require her attendance.

--19

Arbitrator need not give much weight to this evidence because the Grievant

could provide little evidence that there were legitimate circumstances which

precluded her from completing her work for the day. The Hospital has

shown that the Grievant had specific assignments, that the Grievant did not

complete those assignments, and that it could discern no special

circumstances which interfered with the Grievant completing those

assignments. The Grievant herself described many such circumstances

which might have occurred on a particular day, but presented no evidence

that they occurred on February 15. The Arbitrator must necessarily

conclude that the Grievant failed to complete her assigned tasks on

February 15 without justification. The Arbitrator need not determine

whether this was because the Grievant was inefficient, incapable of

performing her regular duties in the allotted time, malingering or holding out

for overtime (as the Hospital implies). For whatever reason, the Grievant

did not carry out her primary duty (and that of the Hospital) of providing

excellent patient care and her actions thus warrant discipline.

The Grievant had been twice previously disciplined, once for failing to

complete patient care. Although in the hearing the Grievant disputed the

bases for these previous disciplinary actions, they must be deemed

conclusive because they were not challenged in the parties’ grievance

procedure. Under the Agreement a third disciplinary action in an eighteen

month period results in termination. The Hospital did acknowledge that in

rare cases it has not enforced this requirement because it thought

termination was not warranted. In fact, the Hospital refrained from imposing

formal discipline on the Grievant several times because it wanted to give

her another chance. Instead it counselled the Grievant.

 The Arbitrator need not determine if he has the authority under the

Agreement to mitigate a third disciplinary action to a lesser penalty by

finding that there was cause for discipline but not just cause for termination.

In this case, in light of the Grievant's prior two disciplines, her prior

instances of being counseled, her tenure of barely nine months and the fact

that this offense was directly related to patient care, the Arbitrator finds that

there was just cause for termination.

The Grievance is denied.

Dated this 7th day of October, 2015.

Stephen E. Alpern

Arbitrator