Issue: Group III Offense with suspension (sleeping); Hearing Date: November 20, 2000; Decision Issued: November 21, 2000; Agency Name: Department of Corrections; AHO: David J. Latham, Esquire; Docket No: 5067

Department of Employment Dispute Resolution

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

In the Matter of Department of Corrections Case Number 5067

Hearing Date: November 20, 2000
Decision Issued: November 21, 2000

APPEARANCES

Grievant
Representative for Agency
Associate Warden
One Witness for Agency

ISSUES

Was the grievant's conduct on July 11, 2000 subject to disciplinary action under Section 5-10 of the Department of Corrections Procedures Manual? If so, what was the appropriate level of disciplinary action for the conduct at issue?

FINDINGS OF FACT

The grievant filed a timely appeal from a Group III Written Notice issued on August 8, 2000 because the grievant was observed sleeping while he was guarding an inmate who had been taken to a local hospital emergency room. The grievant was also suspended from duty from August 9 through August 23, 2000. Following denial of relief at the third resolution step in the grievance process, the agency head qualified the grievance for a hearing.

The Department of Corrections (hereinafter referred to as "agency") has employed the grievant at the Greensville Correctional Center as a correctional officer since October 1996.

The grievant was working from 9:45pm on July 11, 2000 to 6:15am on July 12, 2000. In the early morning hours of July 12, 2000, an inmate developed shortness of breath and experienced generalized weakness. An ambulance was summoned and the inmate was transported by stretcher to the Greensville Memorial Hospital emergency room for diagnosis and treatment. The grievant and one other correctional officer were assigned to accompany the inmate to the hospital. Both correctional officers were armed with .38 caliber revolvers; they were to guard the inmate during treatment and accompany him back to the correctional center. They arrived at the hospital at about 2:15am.

Another inmate had also been transported to the same hospital that evening and was in the custody of two other correctional officers. Because there were two inmates at the hospital, a correctional sergeant was directed to go to the hospital and check on the status of both inmates. The sergeant arrived at the hospital at about 3:00am. When he first arrived at the hospital, the sergeant checked briefly with the grievant and his fellow correctional officer. He then left the area and went to another part of the hospital where the other inmate was being treated.

The sergeant returned from visiting the other inmate about 10-12 minutes later. As he rounded a corner and came down a short hallway, he observed the grievant leaning against a wall of the emergency room. The grievant's head was hanging down and he was motionless. As the sergeant approached him, the grievant said nothing, made no gestures and did not acknowledge the sergeant's approach in any other way. When the sergeant was within three feet of the grievant, he noted that the grievant's eyes were closed. When there was still no sign of recognition from the grievant, the sergeant spoke to the grievant telling him to go outside for a few minutes to get some fresh air.

The grievant did leave the area for a break. The supervisor then checked on the inmate and other correctional officer for a few minutes. When the grievant returned from his break, the sergeant left the hospital, returned to the correctional center and prepared a written report of the incident.

The grievant has acknowledged that he felt sleepy at the time this incident occurred. He also maintains that he was looking away from the inmate because the inmate was being catheterized at the time and this made the grievant uncomfortable.

The grievant was familiar with Post Orders # 37 through 46. These directives address, inter alia, duties while transporting prisoners outside the correctional center and hospital duty. The directive specifies that "alertness and careful attention to procedures is essential." Page 3 contains General Duties including:

20. Be alert, attentive and observant at all times. Acknowledge the presence of any supervisor, either verbally or by signal, who enters your area of control.

Two specific duties relating to Hospital Duty are found on pages 8 and 9:

5. Maintain constant observation of the area of control for this post observing inmate behavior and taking corrective action if needed.

27. When armed with a weapon, always be alert and keep a safe distance from the inmate to avoid being overpowered and/or to prevent obstructions from coming between you and the inmate.

APPLICABLE LAW AND OPINION

The General Assembly enacted the Virginia Personnel Act, Va. Code § 2.1-110 et seq., establishing the procedures and policies applicable to employment within the Commonwealth. This comprehensive legislation includes procedures for hiring, promoting, compensating, discharging and training state employees. It also provides for a grievance procedure. The Act balances the need for orderly administration of state employment and personnel practices with the preservation of the employee's ability to protect his rights and to pursue legitimate grievances. These dual goals reflect a valid governmental interest in and responsibility to its employees and workplace. Murray v. Stokes, 237 Va. 653, 656 (1989).

Code § 2.1-116.05(A) sets forth the Commonwealth's grievance procedure and provides, in pertinent part:

It shall be the policy of the Commonwealth, as an employer, to encourage the resolution of employee problems and complaints . . . To the extent that such concerns cannot be resolved informally, the grievance procedure shall afford an immediate and fair method for the resolution of employment disputes which may arise between state agencies and those employees who have access to the procedure under § 2.1-116.09.

In disciplinary actions, the agency must show by a preponderance of evidence that the disciplinary action was warranted and appropriate under the circumstances. Employee Grievance Procedure, Virginia Department of Employment Dispute Resolution Rules for Hearing IV (D). The following procedural due process is required before disciplinary action:

Prior to . . . any disciplinary suspension, employees must be given
1. an oral or written notice of the offense,
2. an explanation of the agency's evidence in support of the charge, and
3. a reasonable opportunity to respond.

To establish procedures on Standards of Conduct and Performance for employees of the Commonwealth of Virginia and pursuant to §§ 2.1-114.5 and 53.1-10 of the Code of Virginia, the Department of Personnel and Training promulgated Standards of Conduct Policy No. 1.60 effective September 16, 1993. The Standards of Conduct provide a set of rules governing the professional and personal conduct and acceptable standards for work performance of employees. The Standards serve to establish a fair and objective process for correcting or treating unacceptable conduct or work performance, to distinguish between less serious and more serious actions of misconduct and to provide appropriate corrective action. Section V of the Standards of Conduct Policy provides in paragraph B.8 that sleeping during working hours constitutes a Group III offense. This same Group III offense provision is promulgated in Section 5-10.17.B.8 of the Department of Corrections Procedures Manual.

Webster's Ninth New Collegiate Dictionary includes in the definition of sleep "a state resembling sleep as in a state of torpid inactivity." "Torpid" is defined as "sluggish in functioning or acting; lacking in energy or vigor."

In the instant case, the agency has borne the burden of proof necessary to demonstrate by a preponderance of the evidence that the grievant was sleeping during working hours. The agency's witness was an experienced sergeant who presented clear, unambiguous and credible testimony. He indicated that the grievant showed no sign of awareness that the sergeant was approaching him and that the grievant responded only when spoken to by the sergeant. The grievant was not alert, attentive or observant. He failed to acknowledge the supervisor's presence in any manner as the supervisor approached him. It was not until the supervisor was within three feet of the grievant and spoke to him, that the grievant acknowledged his presence.

The agency has submitted evidence of an incident that occurred on January 31, 1999. On that date, the grievant had been observed sleeping in a room at Greensville Memorial Hospital while guarding an inmate. The grievant wrote a response to the allegation and denied having been asleep. No formal disciplinary action was taken at that time but the report remained in the grievant's file. This incident was not a direct factor in the decision to issue a Written Notice in the instant case; however, it did carry some weight in the Associate Warden's decision regarding the level of disciplinary action imposed. The Hearing Officer assigns this incident relatively little weight in reaching the decision in this case because it is too remote in time and because the agency did not conclude in 1999 that there had been sufficient evidence to warrant disciplinary action.

The grievant has acknowledged that he was "sleepy" at the time and that his eyes may have been red but contends that he was not sleeping. The grievant has submitted a brief written statement¹ from the correctional officer who accompanied him to the hospital on July 12, 2000. This officer states that she did not observe that the grievant was asleep or unalert. However, the Hearing Officer must assign little weight to this statement. First, the witness did not attend the hearing to be questioned by the Hearing Officer and the opposing party. The grievant could have requested an Order to direct the correctional officer to attend the hearing but failed to do so. Second, the written statement is neither sworn nor notarized. Statements that have neither been sworn nor notarized must be assigned less evidentiary weight than either sworn affidavits or notarized statements. Third, the officer's statement that she did not observe the grievant sleeping is not proof that the grievant was not asleep; it means only that she did not observe it happening.

The Hearing Officer acknowledges that the grievant was not lying down, or sitting down, or in a deep sleep. However, one can be asleep in the sense defined above if one is sluggish or appears to be asleep. In this case, the grievant has acknowledged that he was sleepy while at the hospital. The grievant's appearance as described by the sergeant was certainly not consistent with the instructions that the grievant remain "alert" and "maintain constant observation of the area of control observing inmate behavior." The grievant was armed with a loaded revolver and was in a public hospital away from the correctional facility. When accompanying an inmate who could have escape in mind, it is incumbent upon correctional officers to be especially vigilant not only of the inmate but also of other people in the area. It is not unknown for inmates to feign illness and prearrange escape attempts while being taken for medical treatment.

Given the totality of the evidence in this case, the Hearing Officer must conclude that the grievant was in violation of the Department of Corrections Standard of Conduct § 5-10.17.B.8. He has not provided sufficient evidence to mitigate his action.

The Hearing Officer has given serious consideration to the level of discipline imposed in this case. Based on the nature of the infraction, there is no doubt that sleeping during working hours constitutes a Group III offense. Such an offense is considered of such a serious nature that a first occurrence should normally warrant removal. However, in this case, the agency elected to impose a ten-day suspension in lieu of discharge. The agency's decision was grounded in the desire to give a second chance to an otherwise capable and experienced correctional officer. The Hearing Officer concurs with the agency's approach in this case. Under the circumstances herein, the Hearing Officer concludes that a ten-day suspension is reasonable and appropriate.

DECISION

The disciplinary action of the agency is upheld.

The Group III Written Notice issued on August 8, 2000 and the ten-day suspension imposed from August 9 through August 23, 2000 are hereby affirmed.

APPEAL RIGHTS

This hearing decision is subject to four types of administrative review. As explained below, to whom the appeal is directed, is determined by the nature of the alleged defect with the decision:

1. A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
2. A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management. This request must cite to a particular mandate in state or agency policy. The Director's authority is limited to ordering the hearing officer to revise the decision to conform it to written policy.
3. A challenge that the hearing decision does not comply with grievance procedure is made to the Director of EDR. This request must state the specific requirement of the grievance procedure with which the hearing decision is not in compliance. The Director's authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure.
4. In grievances arising out of the Department of Mental Health, Mental Retardation and Substance Abuse Services which challenge allegations of patient abuse, a challenge that a hearing decision is inconsistent with law may be made to the Director of EDR. The party challenging the hearing decision must cite to the specific error of law in the hearing decision. The Director's authority is limited to ordering the hearing officer to revise the decision so that it is consistent with law.

A party may make more than one type of request for review. All requests for review must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision. (Note: the 10-day period, in which the appeal must occur, begins with the date of issuance of the decision, not receipt of the decision. However, the date the decision is rendered does not count as one of the 10 days; the day following the issuance of the decision is the first of the 10 days). A copy of each appeal must be provided to the other party.

Within thirty days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. The agency shall request and receive prior approval of the Director before filing a notice of appeal.

David J. Latham, Esq.
Hearing Officer