Issue: Group I Written Notice (unsatisfactory job performance); Hearing Date: December 6, 2000; Decision Date: December 7, 2000; Agency: Department of Corrections; Hearing Officer: David J. Latham, Esq.; Case Number: 5077

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

Hearing Date: December 6, 2000
Decision Issued: December 7, 2000

PROCEDURAL ISSUE

Because of conflicting schedules of the parties, the hearing could not be docketed until the 30th day following appointment of the Hearing Officer.

APPEARANCES

Grievant
Representative for Agency
Three witnesses for Agency

ISSUES

Was the grievant's conduct on July 19 and 20, 2000 subject to disciplinary action under Procedure Number 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 I Written Notice issued on July 20, 2000 because the grievant allegedly violated sanitation procedures, which violations are considered inadequate or unsatisfactory job performance. The grievant requested to by-pass the first resolution step. Following denial of any further 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 agency as a Food Manager since July 1999. She has been employed in food service for the Department of Corrections facility for a total of about four and a half years.

The grievant has attended the nationally accredited Serv Safe Food Protection course and received the manual provided with that course. She successfully completed the course on April 27, 1999. The manual addresses, inter alia, the need for wearing beard protectors and removing jewelry. It lists as a "Key Point" that food handlers must remove jewelry prior to preparing or serving food because it can harbor microorganisms. Specifically, page 4-8 states:

Remove jewelry prior to preparing or serving food or while around food-preparation areas. Jewelry can harbor microorganisms, often tempts foodhandlers to touch it, and may pose a safety hazard around equipment. Remove rings (except for a plain wedding band), bracelets, watches, earrings, necklaces and facial jewelry (such as nose rings, etc.) [Underscoring added]

Prior to working at the agency, the grievant had worked in food service at another Department of Corrections facility for about three years. Apparently the prohibition against wearing watches was not enforced at the prior facility. However, when the grievant began working at the agency in July 1999, she was soon advised that wearing a watch in food preparation areas is prohibited.

On August 23, 1999, the Institutional Safety Specialist observed the grievant wearing her watch on the serving line and assessed a one-point sanitation violation in his inspection report. The report was sent to the Food Service Director who subsequently counseled the grievant not to wear her watch in the food preparation area or serving line. On March 20, 2000, the Food Service Director again noticed the grievant wearing her watch on the serving line. He sent a written report to the Assistant Warden and noted in that report that he had previously verbally counseled the grievant on several occasions about this violation. The Assistant Warden directed the Food Service Director to address this with the grievant. The Food Service Director did counsel the grievant.

On September 28, 1999, the grievant participated in a meeting involving other food service supervisors, the Assistant Warden and the Food Service Director. The grievant acknowledges, and the documentation confirms, that one of the issues discussed was the sanitation rule that staff (food service managers) may not wear a watch on the serving line.

On July 18, 2000, the Assistant Warden, while monitoring surveillance cameras, noticed that the grievant was wearing a watch while in the serving line in the kitchen. He also noted that an inmate was working on the serving line without wearing a beard protector. He verbally counseled the grievant about these two violations of sanitation rules on July 18, 2000. The grievant said that she felt "naked" without a watch on her wrist. She also said she required a watch to record the time temperatures are taken during quality assurance checks. The Assistant Warden told the grievant that the counseling would be documented in writing and placed in her file. In addition, he told the grievant that if there were further violations of sanitation requirements, disciplinary action would be taken. The grievant acknowledged her violation of the rule and stated that it would not happen again. The written counseling memorandum was prepared on July 19, 2000 and signed by the grievant on July 20, 2000. The Assistant Warden also documented his discussion with the grievant in a separate memorandum prepared on July 19, 2000.

At 12:25pm on July 19, 2000, the Institutional Safety Specialist was observing the Food Service area via surveillance cameras. He noticed an inmate serving food with his hand rather than serving tongs. Because regulations require that food be served with tongs rather than hands, he went to the Food Service area at 12:45pm and observed a different inmate serving food by hand rather than with tongs. One of these two inmates was under the supervision of the grievant.

At about noon on July 20, 2000, the Safety Specialist was again observing the Food Service area via surveillance cameras. He noticed the grievant was making a chewing motion with her mouth and suspected that she may have been eating food. As this is a sanitation violation, he then went to the Food Service area to follow up on this issue. He observed the grievant holding a paper hot cup holding what appeared to be pears. The grievant said she was taking the cup to the Pot and Pan area. The Safety Specialist went to other areas of Food Service but returned a few minutes later to find the grievant making chewing motions with her mouth. He asked the grievant to open her mouth but did not observe any food in her mouth. He did, however, observe what appeared to be a small, stringy, food residue on the grievant's lower lip. In mid-afternoon, he reported this incident via e-mail to the Assistant Warden.

The Assistant Warden concluded that the grievant's violation of sanitation rules on the next two days following his meeting with the grievant on July 18, 2000, was symptomatic of a continuing problem which needed to be addressed with further discipline. He prepared the Written Notice and issued it to the grievant on July 20, 2000.

Other supervisors who have been found in violation of sanitation rules have received appropriate counseling when necessary. No other supervisor has been found to have violated sanitation rules as frequently as the grievant.

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. Policy No. 2.10 does not specify either the composition of the panel or the number of panelists that should be on a panel.

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.4 that inadequate or unsatisfactory job performance constitutes a Group I offense. This same Group I offense provision is promulgated in Section 5-10.15.B.4 of the Department of Corrections Procedures Manual.

In the instant case, the agency has not borne the burden of proof necessary to demonstrate by a preponderance of the evidence that the grievant was chewing an unidentified substance in the food preparation area. The grievant was observed to be making a chewing motion with her mouth. However, when asked by the Safety Specialist to open her mouth, no food or other substance was observed. The grievant has denied eating any food or chewing any substance, even though some type of food residue was visible on her lower lip at the time of the incident. She has acknowledged making a chewing motion with her mouth because a large keloid¹ on her neck was irritating her at the time. Making the chewing motion gave her some relief from the itching. Circumstantially, the evidence suggests the possibility that the grievant may have been eating something. However, the Hearing Officer finds the testimony of the grievant and the Safety Specialist to be equally credible on this issue. In the absence of any other evidence, the agency has not borne the burden of proof.

However, the agency has shown by a preponderance of evidence that the grievant's performance was unsatisfactory with respect to her repeated violations of sanitation rules. The record reflects that the grievant had been trained in the Serv Safe Food course that she should not wear a watch in food preparation or food serving areas. Soon after arriving at the agency, she was verbally counseled on this issue. Over the next several months, both the Food Service Director and the Institutional Safety Specialist informally verbally counseled her on numerous occasions about this same issue. Notwithstanding repeated warnings, the grievant continued to wear her watch and was finally given a written counseling on July 18, 2000.

Further, the agency has demonstrated that possession of personal food in the food preparation area is a violation of policy. While there is insufficient evidence to prove that the grievant was eating this food, she has admitted that this was her own personal food. She contends that she intended to consume this food at a later time in an area approved for staff to eat their meals. However, policy prohibits personal food in the food preparation area.

The grievant has also acknowledged that she knowingly allowed inmates to serve food with their hands rather than with serving tongs. She has also acknowledged knowing that this is a violation of the sanitation rules followed by the Department of Corrections. She has attempted to rationalize her violation of sanitation rules on the basis that some foods are less likely to be contaminated by bacteria than others are. This may or may not be true; certainly there was no expert evidence proffered that would resolve this question. However, even if the grievant is correct in her assertion, she has substituted her judgment for the rule that has been established by those in authority. When one works for any organization, one must abide by the policy of that organization. An individual employee may not substitute her own judgment and arbitrarily decide which rules to obey and which to ignore. In this case, people with considerably more expertise and authority than the grievant have established food service and sanitation rules. The grievant is charged with the responsibility to follow and to enforce such rules.

The grievant contends that she needs her watch to record times of temperature checks for quality assurance purposes. However, the grievant has acknowledged that there are several clocks in the Food Service area that can be viewed from most areas or viewed by walking a few steps. She also said she felt "naked" if her watch was not on her wrist. Neither of the reasons proffered by the grievant constitute sufficiently mitigating circumstances to justify her continued violation of the prohibition against the wearing of a watch in the Food Service area.

The grievant alleges that the Assistant Warden retaliated and harassed her after the written warning for the grievant's conduct on July 18, 2000. First, the grievant has failed to identify what conduct would be the motive for any alleged retaliation. The record reveals no such conduct by the grievant that would cause the Assistant Warden to retaliate against her.

As to the allegation of harassment, the grievant assumed that the Assistant Warden had directed the Institutional Safety Specialist to specifically monitor her activity. In fact, the instruction to the Safety Specialist was to observe activities in the food preparation area. The Safety Specialist, in the routine course of his inspection of the food preparation area, observed the grievant in violation of the rules and reported the violation. Because of the close proximity of these two events, the grievant assumed that the Assistant Warden had directed the Safety Specialist to observe only her activity and that this would constitute harassment. However, the credible testimony of the Safety Specialist is that he would not single out one individual for observation. Moreover, if asked to do so, he would refuse because his responsibility is to observe everyone (not just one person) to assure compliance with sanitation regulations. The Hearing Officer concludes that there is no evidence to support the allegation made by the grievant.

The testimony established that other food service supervisors found in violation of sanitation rules have been verbally counseled. However, no other supervisor has been found to have repeatedly been counseled as many times as the grievant. Thus, the fact that a Written Notice was issued for the grievant is not disparate treatment.

After reviewing the evidence and giving careful consideration to the totality of the grievant's counseling record, it must be concluded that verbal counseling of the grievant has not been effective in curtailing her violations of sanitation rules. Accordingly, it is entirely appropriate that the agency considered the grievant's job performance to be unsatisfactory because of her repeated failure to comply with established written policy on sanitation. Therefore, the grievant's conduct was subject to discipline pursuant to Section 5-10.15.B.4 of the Department of Corrections Procedure Manual.

DECISION

The disciplinary action of the agency is affirmed.

The Group I Written Notice issued on July 20, 2000 will remain in effect.

APPEAL RIGHTS

As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more detail, this hearing decision is subject to administrative and judicial review. Once the administrative review phase has concluded, the hearing decision becomes final and is subject to judicial review.

Administrative Review

This decision is subject to four types of administrative review, depending upon the nature of the alleged defect of 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.

A hearing officer's original decision becomes a final hearing decision, with no further possibility of an administrative review, when:

1. The 10 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or,
2. All timely requests for administrative review have been decided and, if ordered by EDR or HRM, the hearing officer has issued a revised decision.

Judicial Review of Final Hearing Decision

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
Hearing Officer