Issue: Group II Offense - written notice only (failure to report to work and failure to follow supervisor's instruction); Hearing Date: December 11, 2000; Decision Date: December 20, 2000; Agency Name: Department of Transportation; AHO: Carl Wilson Schmidt, Esq.; Case No: 5094

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

In the matter of Department of Transportation Case Number 5094

Hearing Date: December 11, 2000
Decision Issued: December 20, 2000

PROCEDURAL HISTORY

On August 21, 2000, Grievant was issued a Group II Written Notice of disciplinary action for:

Failure to report to work as scheduled without proper notice to supervisors, as noted in correspondence of 8/18/00. Failure to follow supervisors [sic] direction, as detailed in correspondence of 11/8/99.

On August 23, 2000, Grievant timely filed a grievance to challenge the disciplinary action. The outcome of the Third Resolution Step was not satisfactory to the Grievant and she requested a hearing. On November 20, 2000, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On December 11, 2000, a hearing was held at the Agency's regional office.

APPEARANCES

Grievant
Resident Engineer for the Agency
Assistant Resident Engineer
Personnel Assistant
Maintenance Supervisor
Two Crew Members

ISSUE

Whether Grievant should receive a Group II Written Notice of disciplinary action.

BURDEN OF PROOF

The burden of proof is on the Agency to show by a preponderance of the evidence that its disciplinary action against the Grievant was warranted and appropriate under the circumstances. Grievance Procedure Manual ("GPM") § 5.8. A preponderance of the evidence is evidence which shows that what is sought to be proved is more probable than not. GPM § 9.

FINDINGS OF FACT

After reviewing the evidence presented and observing the demeanor of each witness, the Hearing Officer makes the following findings of fact:

On Tuesday, August 15 through Friday, August 18, 2000, the Grievant was unable to work because of an illness unrelated to her workers' compensation injury. Rather than calling her direct supervisor at the field unit where she works, Grievant called the Personnel Assistant working in the regional office. On August 15, the Personnel Assistant was out of the office, so Grievant left a voice message in the morning telling the Personnel Assistant that the Grievant was unable to work. Grievant also spoke with a receptionist in the office where the Personnel Assistant worked. On August 16, 17, and 18, 2000, Grievant called the Personnel Assistant to inform the Personnel Assistant that she would be unable to work due to illness. The Personnel Assistant testified that she did not contact the Grievant's supervisor, but told the Grievant that the Grievant should contact the supervisor.

The Grievant suffered a work related injury on October 20, 1999 preventing her from working. She remained out of work on workers' compensation disability (short-term disability) until April 12, 2000. Grievant returned to work on April 12, 2000 and worked until June 16, 2000 when she advised the Agency that her injury had reoccurred. She remained out of work on workers' compensation disability until August 15, 2000 when she was authorized to begin working by her workers' compensation doctor. The Agency expected Grievant to report to work on August 15, 2000. When Grievant failed to report to work for several days and failed to notify her supervisor directly that she would be absent because of sickness, the Agency issued Grievant a Group II Written Notice of disciplinary action.

During the course of her workers' compensation disability, Grievant had been communicating with the Personnel Assistant regarding her ability to return to work. On several occasions, Grievant called the Personnel Assistant from the doctor's office to notify the Personnel Assistant that Grievant's doctor was faxing a medical form required by the Agency in order for the Grievant to remain on workers' compensation disability status.

During the period from April 12 to June 16, 2000 when Grievant was working, she directly informed her supervisor, the Maintenance Supervisor, when she was unable to work because of illness. On some occasions, Grievant's husband would notify the Maintenance Supervisor that Grievant would be absent.

Grievant is one of eight employees working at an Agency field unit. The field unit staff are responsible for providing maintenance services to several adjoining counties. Grievant reports directly to the Maintenance Supervisor. Her reporting relationship did not change while she was out of work due to a workers' compensation injury. Grievant is responsible for keeping time, leave records, taking phone message, preparing computer bills, and other duties including greeting the public. The Maintenance Supervisor considers the Grievant's job as being critical to serving the public.

The Personnel Assistant works in one of the Agency's regional offices. The regional office is separate from the field unit where Grievant works. The Personnel Assistant reports to the Resident Engineer who works in the regional office. Grievant has no reporting relationship with the Personnel Assistant. The Personnel Assistant is responsible for coordinating disability information and processing workers' compensation claims. She is not responsible for notifying an employee's direct supervisor that the employee will be absent from work. She testified she told the Grievant to keep the Grievant's supervisor informed of her work status.

The Assistant Resident Engineer works at the regional office where the Personnel Assistant is employed. In late October and early November 1999, the Assistant Resident Engineer called Grievant at her home. The Assistant Resident Engineer informed Grievant that she was supposed to keep her supervisor informed of her work status, namely whether she would be at work. The Grievant did not understand the information conveyed to her by the Assistant Resident Engineer because she was on heavy medication. Because it was clear to the Assistant Resident Engineer that Grievant did not understand what he told her during their telephone conversations, he sent her two letters.

On October 29, 1999, the Assistant Resident Engineer sent the Grievant a letter stating, in part:

Further, we have been unsuccessful maintaining a level of communication with you in regards to discussing your benefits, work status, receiving doctor notes, appointment and work slips. It is imperative that you communicate and update your supervisor, [name of previous Maintenance Supervisor] personally on any matters concerning this claim. We currently have a doctor's work slip showing you are unable to work through November 5. Irrespective of conversations with other VDOT employees, it is your responsibility after your appointment on November 5 to contact your supervisor in regards to your work status. Please advise of any future doctor appointments and provide him with updated doctor work slips immediately following your visit. (Emphasis original).

On November 8, 1999, the Assistant Resident Engineer sent the Grievant another letter stating, in part:

Further, please be advised of agency policy regarding failure to report to work. Your obligation to communicate with your supervisor is clear. Failure to provide appropriate notice to supervisors and/or absence without proper authorization is subject to disciplinary action per Department of Personnel and Training's Standards of Conduct under the Virginia Personnel Act.

I sincerely hope you are doing well, and look forward to your return to work. Please contact your supervisor at 659-2900 to advise of your work status. If unable to reach him there, page him at [telephone number], and he will be sure to contact you immediately. If you are unable to do this personally, please designate a contact person that can communicate for you on your behalf. (Emphasis original.)

Both letters were correctly addressed and received by the Grievant. The Agency's policy has always been that employees must notify their supervisors if they will be absent from work due to illness.

CONCLUSIONS OF LAW

State employees who fail to notify their supervisors of unexpected absences are subject to disciplinary action. The Policies and Procedures Manual ("P&PM"), Standards of Conduct Policy Number 1.60 provides:

A. Attendance

    1. Employees should report to work as scheduled.

    2. If employees cannot report to work as scheduled

a. Employees should arrange planned absences, including reporting to work late or leaving work early, in advance with supervisors.

b. Employees should report unexpected absences, including reporting to work late or having to leave early, to supervisors as promptly as possible.

Grievant did not report her unexpected absence from work to her supervisor. Instead, Grievant provided this information to the Personnel Assistant who is neither her supervisor, nor within the chain of command reporting to her supervisor. The Agency took corrective action immediately by issuing a Group II Written Notice as soon as possible after the employee's commission of an offense. P&PM §§ 1.60 (VI)(A), (VII)(B)(1). .

Although the Agency has easily met its prima facie case, this appeal is difficult to resolve. Based on the Hearing Officer's observation of the Grievant, the Grievant genuinely believes she complied with the requirement to inform her supervisor, albeit indirectly, that she would be unable to appear at work on August 15 through August 18, 2000. There is no dispute that the Grievant called an Agency employee to indicate she would be out of the office due to sickness. There is certainly no benefit that Grievant would have received by calling the Personnel Assistant rather than calling her supervisor. Although the Agency argues it has suffered consequences because of the Grievant's failure to notify, the reality is that the Agency would have suffered those consequences even if the Grievant had directly notified her supervisor. Initially, it would appear that the Grievant made a simple mistake.

The effort the agency made to inform Grievant that she must notify her supervisor shows that the Grievant's action was more than a simple mistake. The October 29, 1999 letter from the Assistant Resident Engineer to the Grievant emphasizes that the Grievant must personally inform her supervisor of her work status. In addition, the November 8, 1999 letter warns that failure to notify her supervisor of absences from work could subject the Grievant to disciplinary action. The letter also provides the Grievant with the Maintenance Supervisor's pager number to assure communication between them. The effect of these two letters is to place the Grievant on notice that she is expected to contact personally her supervisor and notify the supervisor of those days she would not be at work.

The Grievant argues that the November 8, 1999 letter authorizes her to designate a contact person who would communicate on her behalf and that she designated the Personnel Assistant as her contact person. Although the evidence showed that the Grievant regularly communicated with the Personnel Assistant regarding the Grievant's workers' compensation injury, there are several reasons why this argument fails. First, the sentence in the letter referring to "designate a contact person" is preceded by "If you are unable to do this personally". Even assuming the Grievant could designate the Personnel Assistant as a contact person, the Grievant was able to personally notify her supervisor and, thus, a contact person would not be authorized by the letter. Second, Grievant's actions showed she regularly contacted the Personnel Assistant but no evidence was presented that she communicated to anyone in the Agency that she had "designated" the Personnel Assistant as her contact person. The Maintenance Supervisor testified he was unaware that the Grievant was informing the Personnel Assistant of her work status. The Assistant Resident Engineer testified he was aware the Grievant was communicating with the Personnel Assistant but assumed she was also communicating with the Maintenance Supervisor as he had directed in his two letters. Moreover, the October 29, 1999 letter to the Grievant states, "Irrespective of conversations with other VDOT employees, it is your responsibility after your appointment on November 5 to contact your supervisor in regards to your work status." (Emphasis original.) This sentence indicates that even if the Grievant chose to inform the Personnel Assistant of her work status, she should also inform her supervisor.

The Grievant attempts to draw a distinction between contacting her supervisor when she is out of the office because of a workers' compensation injury and because of sickness. The letters from the Agency however, draw no such distinction. The letters indicate that the Grievant was obligated to contact her supervisor even with respect to her work status arising from her workers' compensation injury. Nothing in the letters suggests the Grievant would be held to a lesser standard for sickness unrelated to workers' compensation.

An agency may reduce a disciplinary action if there are mitigating circumstances, such as:

a. conditions that would compel a reduction in the disciplinary action to promote the interests of fairness and objectivity; or
b. an employee's long service or otherwise satisfactory work performance.

P&PM § 1.60(VII)(C).

The Agency contends it mitigated the disciplinary action against the Grievant because it could have suspended her in addition to issuing her a Group II Written Notice.

No evidence was presented at the hearing to show whether the Grievant had a satisfactory work performance for a lengthy period of time. Thus, whether the disciplinary action should be mitigated depends on an evaluation of fairness and objectivity. The Agency acted objectively because it relied upon the plain language of the Standards of Conduct governing attendance. The Agency acted fairly because it gave the Grievant ample notice of consequences of her failure to inform her supervisor.

It may be argued that the Agency's regional office executive staff place an unusual importance on having employees directly contact their supervisors regarding unscheduled absences. It is not within the Hearing Officer's authority to second guess the importance an agency places on specific personnel policies, when the agency demonstrates its actions are consistent with the State's Policy and Procedure Manual. No evidence was presented that the Agency's treatment of the Grievant was any different from the Agency's treatment of any other employee within the region.

DECISION

For the reasons stated herein, the Agency's issuance to the Grievant of a Group II Written Notice of disciplinary action is upheld.

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.

Carl Wilson Schmidt, Esq.
Hearing Officer