Issue: Group III Written Notice with Termination (failure to comply with drug testing); Hearing Date: December 11, 2000; Decision Date: December 13, 2000; Agency: Department of Corrections; Hearing Officer: David J. Latham, Esq.; Case Number: 5078

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

In the matter of Department of Corrections Case Number 5078

Hearing Date: December 11, 2000
Decision Issued: December 13, 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
Attorney for grievant
Representative for Agency
Warden Senior
Two 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 III Written Notice issued on August 30, 2000 because the grievant allegedly failed to follow a direct order which could endanger the public safety, internal security or affect efficient operation of the department. The grievant was also given a 10-day suspension and discharged from her employment effective September 14, 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 as a correctional officer since 1995. When the grievant was employed by the agency, she signed receipts for, and received the Standards of Conduct and the Commonwealth of Virginia's Policy on Alcohol and Other Drugs. The grievant read those policies and understood them. The Department of Corrections Standards of Conduct addresses drug testing in Section 5-10.17.D. The Department of Corrections Procedures Manual addresses the Policy on Alcohol and Other Drugs in Chapter 5; Section 5-55.9.J of that policy states:

Employees who refuse to submit to random drug testing will be dismissed for, "Failure to follow a direct order which could endanger the public safety, internal security, or affect the safe and efficient operation of the Department."

Other than the requirements of Section 5-55 in the Department of Corrections Procedures Manual, there is no detailed written policy regarding how and when employees are required to submit to random illegal drug testing. The practice of the agency is that employees are randomly selected by the agency's central office in Richmond. The name of an employee selected for random drug testing is sent to the personnel unit at the appropriate correctional facility. Thereafter, a personnel assistant notifies the watch commander to order the selected person to report to the personnel unit but does not advise the watch commander why the officer is to report. The personnel assistant then notifies the correctional officer of the need to take a drug test. Appropriate paperwork and a specimen vial is given to the correctional officer. The correctional officer is to then report to the agency-designated contractor¹ to provide a urine sample for testing. The practice is that correctional officers must go for the random testing when notified; officers are not permitted to go later or to make an appointment for a later time. These practices and procedures are not in a written policy.

If the selected correctional officer is working, she may be sent to the contractor during her work shift, providing the watch commander is able to adequately staff the facility with a relief officer. Otherwise, the selected officer may be required to go to the contractor at the end of her work shift. When this occurs, officers are "on the clock" and are therefore reimbursed for time going to and from the contractor. .

On August 14, 2000, the personnel assistant was notified by the agency's central office that the grievant (and two other officers) had been selected for random drug testing. The personnel assistant notified the grievant's watch commander on August 15, 2000 to have the grievant report to personnel. The grievant was working on August 14, 15, 16 and 17, 2000. The watch commander did not notify the grievant that she was to report to the personnel unit.

The grievant was sick on August 18, 2000 and did not work. She returned to work on Saturday, August 19 and Sunday, August 20, 2000. Again, the grievant was not notified of the need to report to the personnel unit. The grievant was not scheduled to work on August 21, 22, 23, 24 or 25, 2000. However, with permission, the grievant did work on Thursday, August 24, 2000. After her scheduled day off on August 25, 2000, the grievant was scheduled to return to work on Saturday, August 26, 2000.

At the end of her work shift on August 24, 2000, the grievant prepared to leave the facility. When she was absent due to illness on August 18, 2000, she had obtained a physician's excuse. As August 24, 2000 was the first weekday on which she had worked since her illness, she used this opportunity to turn in the excuse to personnel as she was leaving for the day. At about 2:25 p.m. she went to personnel and presented the physician's excuse. The personnel assistant looked at the excuse and recognized the grievant's name as being one who was on the random drug testing list. She told the grievant that she was scheduled for a drug test and asked whether she could go for the test at that time. The grievant said she was already late for an appointment. The personnel assistant asked whether she could go after the appointment and the grievant said she could not. The personnel assistant then asked whether she could go the next day to which the grievant responded that she was off work that day. The grievant then volunteered that she was scheduled to work on Saturday, August 26. The personnel assistant said "We are not open on Saturday, it will have to be another day.²" At that point the telephone rang. The personnel assistant answered the telephone and the grievant left the office to go to her appointments.

The grievant went first to an appointment (previously scheduled for 2:30 p.m.) with her attorney to sign some settlement papers. She then went to a second appointment (also previously scheduled for 3:00 p.m.) with her physician. When she arrived at that appointment, the physician had been called to the hospital and the grievant had to reschedule her appointment for the following day³. The grievant then went home at about 4:00 p.m. and found a voice mail message from the agency's personnel department advising her not to return to work for one week. The grievant immediately called to find out why; she was told that she had refused to take a drug test and would have a hearing the following week. The grievant offered to return to work immediately to take the test. However, the primary contractor for drug testing closed before the grievant would have been able to return to the correctional facility, obtain the necessary paperwork and specimen vial, and get to the contractor facility.

The Warden Senior concluded that the grievant's failure to take the drug test on August 24, 2000 was a violation of Section 5-10.17.D.3 of the Standards of Conduct. He prepared the Written Notice and issued it to the grievant on August 30, 2000. The grievant was placed on a 10-day suspension and discharged from employment effective September 14, 2000.

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 5-10.17.D.3 of the Department of Corrections Procedures Manual provides that "Failure to follow a direct order which could endanger the public, safety, internal security, or affects the safe and efficient operation of the Department." constitutes a Group III offense requiring termination of employment.

In the instant case, the evidence reflects that the grievant had been selected for random drug testing. She was not given any advance notice of the need to report to personnel, as is the customary practice of the agency. Rather, when visiting personnel on an unrelated matter at the end of her work shift, the grievant was informed that she had been selected for a random test. She informed the personnel assistant that she was unavailable due to a prescheduled appointment. When the personnel assistant asked whether the grievant could "go the next day," a miscommunication occurred. The personnel assistant asked this question thinking that perhaps the grievant could reschedule her personal appointment on the following day. The grievant, on the other hand, believed the personnel assistant was asking whether she could go for the drug testing on the following day. The grievant responded in the negative because she was scheduled to be off the following day. As the grievant lives out of state, she would have had to return to the correctional facility on her day off to obtain the paperwork, go to the contractor for testing and then return home.

The grievant believed that the personnel assistant was offering her an opportunity to take the random drug test the following day. She then told the personnel assistant that she would again be working on Saturday (implying that she would be available for the test that day) but was told that the personnel office was closed that day. Before the conversation could be properly concluded, the personnel assistant was interrupted to answer a telephone call. At this point, the grievant believed that the personnel assistant would call her the following day to make a definite appointment for the random drug test. She left the facility fully expecting to hear from the personnel assistant by telephone the following day.

Another factor compounded the miscommunication between the grievant and the personnel assistant. The grievant had ended her work shift and was literally on her way "out the door" when notified of the need for a test. The grievant knew that she had an appointment with her attorney scheduled for 2:30 p.m., another appointment with her physician at 3:00 p.m. and had to pick up her son from school at 4:45 p.m. As this conversation was occurring at 2:25 p.m., the grievant knew she was already going to be late for her first appointment and she was therefore hurrying to make both appointments. Thus, her anxiety to leave the facility promptly at the end of her work shift is understandable.

The agency has imposed discipline under Section 5-10.17.D.3 of the Department of Corrections Standards of Conduct. That section (cited above) specifically requires a "failure to follow a direct order." However, the agency has not shown by a preponderance of the evidence that the grievant failed to follow a "direct order." The grievant did fail to take a drug test on the day she was notified. The agency has not shown either that there was a "direct order" to take the test or that the grievant refused to take the test.

It will be assumed, for the sake of discussion, that a personnel assistant has the authority to issue orders to correctional officers, although such authority was not established by the testimony at the hearing. If the personnel assistant had told the grievant that an appointment had been made and that the grievant was to report to the clinic at a specific time on a specific date, the claimant's failure to report as directed could reasonably be construed as failure to follow a direct order. In this case, however, the personnel assistant advised the grievant only that she had been randomly selected for a test. She then asked the grievant if she could go for the test at that time. When one asks such a question, it is implicit that a negative answer might then be responded to with an alternate proposal. In other words, when asked if she could go (for the test) at that time, the grievant said she could not because she already had another prescheduled appointment. The personnel assistant then asked the grievant whether she could go the next day.

Given the plain meaning of the questions and answer, it was reasonable for the grievant to conclude that the personnel assistant was proposing an alternate day on which to take the test. The balance of the brief conversation was unexpectedly interrupted by a telephone call. It was also reasonable for the grievant to conclude at that point, that the matter had not been resolved. There had been a question, an answer, what reasonably appeared to the grievant to be an alternate proposal (can you go tomorrow?), an answer and a counteroffer by the grievant (Saturday). Such a back-and-forth discussion exploring alternate possibilities cannot be characterized as a "direct order."

The Hearing Officer fully appreciates the need to have drug tests performed promptly once notification has been given to the person to be tested. If a person has been using illegal drugs, delay in performance of the test provides an opportunity to that person to cease using such drugs and/or to purge their system of the drug. A lengthy delay would defeat the purpose of randomly testing people on short notice.

However, if the agency provides, in effect, an opportunity to negotiate the selection of an alternate date for testing, it cannot then hold the grievant liable for failure to follow a direct order. The grievant was not given a direct order. Rather, she was seeking to arrange a mutually convenient time to take the test. The grievant undoubtedly used poor judgement in leaving the personnel office before a final agreement could be achieved. However, for the reasons stated above, it is understandable that the grievant was anxious to get to her appointments.

It must be concluded that the grievant did not refuse to submit to random drug testing. In reaching this conclusion, the Hearing Officer is persuaded by three additional factors. First, at 4:00 p.m. on August 24, 2000 upon learning that she was suspended until the following week, the grievant immediately advised the personnel office that she would return to the correctional facility immediately and that she was prepared to take the drug test immediately. Upon being rebuffed, the grievant then attempted to contact the Warden directly to reiterate her offer to take the test immediately. If the grievant had been using illegal substances, it is highly unlikely that she would have made such an offer. Thus, the Hearing Officer finds it more likely than not that the claimant's failure to take the drug test was not motivated by a desire to conceal illegal drug use.

Second, even though the primary testing facility would have been closed by the time the grievant could have returned, the agency contracts with two alternate facilities in the same area. It would have been feasible for the agency to send the grievant to the hospital (which is open 24 hours a day) so that she could have been tested on August 24, 2000. This alternative, while not the usual practice, was certainly available and would have resolved the miscommunication, would have accomplished the required testing and would have avoided the discharge of an otherwise satisfactory employee.

Third, while both the grievant and the personnel assistant were generally credible in their demeanor during the hearing, the grievant's testimony was clear, concise and definite. The personnel assistant's testimony was less definite and reflected some inconsistency in her recollection of events between her initial testimony and her testimony when recalled later in the hearing. Therefore, most of the differences in testimony between the grievant and the personnel assistant have been resolved in the grievant's favor.

In summary, the agency has not borne the burden of proof to show by a preponderance of the evidence either that a direct order to take a test had been given to the grievant or that the grievant refused to take such a test. Absent such evidence, there is no basis for a Group III Written Notice. Given the grievant's poor judgment in leaving before arrangements for a test could be finalized, she should be counseled regarding agency drug testing procedures; such counseling should be documented in writing and placed in the grievant's personnel file.

DECISION

The disciplinary action of the agency is reversed.

The Group III Written Notice issued to the grievant on August 30, 2000 is expunged from the grievant's personnel file. The grievant is reinstated to her position with full back pay. It is recommended that the grievant be given written counseling as discussed above.

APPEAL RIGHTS

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.

Section 7.2(d) of the Grievance Procedure Manual provides that 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.

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