Docket 5096 Hearing Officer Decision

Issue: Group II Offense with Suspension (failure to follow supervisor's instruction, perform assigned work or comply with established written policy); Hearing Date: December 20, 2000; Decision Date: December 22, 2000; Agency: Department of General Services; AHO: David J. Latham, Esq.; Case No: 5096

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

Grievant
Representative for Grievant
Representative for Agency
Agency Deputy Director
Four witnesses for Agency

Was the grievant's conduct on September 29, 2000 subject to disciplinary action under Section V of the Commonwealth of Virginia's Standards of Conduct policy 1.60? If so, what was the appropriate level of disciplinary action for the conduct at issue?

The grievant filed a timely appeal from a Group II Written Notice issued on October 2, 2000 because he allegedly failed to follow a supervisor's instructions when he failed to clean the penthouse restroom in the Jefferson Building. The grievant was also suspended for five workdays from October 3 through October 9, 2000. Subsequently, the second-step respondent offered to remove the five-day suspension and reinstate the grievant's pay. However, the grievant refused this offer and elected to proceed with the grievance.

The Department of General Services (hereinafter referred to as "agency") has employed the grievant in housekeeping since January 1992. His usual work schedule is from 6:30 a.m. to 3:15 p.m. The grievant was assigned regular areas in which to perform housekeeping responsibilities. In addition, his supervisor (the Housekeeping Day Supervisor) would usually meet briefly with him each morning to assign any specific additional responsibilities. The grievant carried a portable radio and could also be called during the day to address any issues that came up suddenly.

On the morning of Friday, September 29, 2000, the grievant reported for work at 6:30 a.m. He told his supervisor that he had a scheduled appointment with his physician at 12:00 noon. His supervisor told him to open the building doors and raise the flags at the two buildings to which the grievant was regularly assigned (Madison and Washington Buildings). The grievant was to then return to the Zincke Building to attend a safety meeting scheduled to start at 7:15 a.m. The grievant walked to both assigned buildings, opened the doors, raised the flags and returned to the Zincke Building about 25 minutes later. Following the safety meeting, which ended about 7:30 a.m., the grievant's supervisor told the grievant to attend a meeting in the supervisor's office at about 7:45 a.m. During the meeting, the supervisor told the grievant that he was being reassigned from the Madison Building to the Jefferson Building. He also told the grievant that the penthouse restroom in the Jefferson Building was dirty and that the grievant should clean it. The supervisor did not specify when the restroom should be cleaned. During the hearing, the supervisor estimated that the restroom would have required at least 30-35 minutes to clean.

Following the meeting, which ended about 8:00 a.m., the grievant went to the Madison Building to obtain some personal belongings from his locker and moved them to his new assignment - the Jefferson Building. He then went to his first regular work assignment for the day at Main Street Station. The grievant's responsibility was to pick up trash in all grassy areas and gravel areas except the parking lot¹. Because of the nightlife activity in Shockoe Bottom, the area around Main Street Station (MSS) acquires a substantial amount of trash overnight. The agency has contracted with an outside contractor to perform housekeeping activities inside MSS. Part of that contractor's responsibility is to also police the outside area for trash early in the evening. However, additional trash accumulates overnight and it is the grievant's responsibility to pick up and properly dispose of the overnight accumulation.

After taking his personal belongings from the Madison Building to the Jefferson Building, the grievant walked to MSS². He arrived there about 8:15 a.m. and began his work. The area had accumulated a lot of trash and the undisputed testimony of the grievant is that he finished the cleanup at some time after 10:00 a.m. During this time, the grievant did not see the Custodial Unit Chief (the supervisor to whom the Housekeeping Day Supervisor reports) anywhere in the area of Main Street Station. The grievant also stated that the accumulation of trash was especially heavy on September 29, 2000 because he had been ill the previous two days. He maintains that nobody cleaned the area during the two days he was ill and, that the interior contractor was not conscientiously policing the area every night.

The grievant has had a back injury for several years. On the morning of September 29, 2000, the grievant had returned from being off work the preceding two days because of back pain. He was scheduled to see his physician at noon because his back was giving him considerable pain that morning making it painful to work and walk. He was therefore working somewhat slower and walking somewhat more slowly than usual. This factor also contributed to the longer time it took the grievant to police the area.

After completing this task, the grievant took his break, walking first to the Suntrust Bank to cash his paycheck and then to the Tyler building to obtain a sandwich because he takes medication that must be taken with food. During his walk between these locations, probably around 10:30 a.m., the grievant received a radio call from the Assistant Custodial Unit Chief reminding him that he had to be at the Capitol Police Bike Patrol office at 11:00 a.m. The grievant was assigned to clean the office and restroom at the Bike Patrol office each Friday morning at 11:00 a.m.³. The grievant arrived at the Bike Patrol office at 11:00 a.m. and performed his required cleaning responsibilities. He finished this task at about 11:35 a.m. He then returned to DGS, turned in his keys and left to take the bus to his physician's office arriving there shortly before his 12:00 noon appointment. He left the physician's office at about 2:30 p.m. and went home for the day.

The grievant's supervisor checked the Jefferson Building penthouse restroom on Monday, October 2, 2000 and found that it had not been cleaned. He then contacted the grievant and asked why he had failed to clean the restroom. The grievant responded that he had not had time to clean it after performing his other responsibilities and reminded the supervisor that he had a 12:00 noon physician's appointment on the preceding Friday. The grievant also told the supervisor that he had forgotten to tell the supervisor about not cleaning the restroom because he was hurrying to get to his physician's appointment.

At approximately 8:45 a.m. on September 29, 2000, the Custodial Unit Chief had driven by Main Street Station on his way to work. He did not see the grievant and estimated at that time that there was about an hour's worth of work to be done. The Chief did not stop, get out of his vehicle or drive around the entire Main Street Station.

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:

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:

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 borne the burden of proof necessary to show, by a preponderance of the evidence, that the grievant failed to follow a supervisor's instruction. In fact, the grievant readily acknowledges that that his supervisor instructed the grievant to clean the penthouse restroom and, that the grievant failed to clean that restroom before he left work for an appointment with his physician. The burden of proof now shifts to the grievant to demonstrate any mitigating circumstances.

The grievant states that although he was asked to clean the penthouse restroom, his supervisor did not specify that it should be cleaned immediately or even that it should be cleaned that day. The grievant's coworker, who was present when the supervisor instructed the grievant, confirmed that the supervisor did not specifically state that the restroom should be cleaned that day. The supervisor did emphasize that the bathroom was dirtier than usual because it had not been cleaned for several days. The coworker got the impression that the supervisor expected it to be done soon because of the emphasis on the poor condition of the restroom

It can reasonably be concluded that the grievant probably should have been able to read between the lines and should have understood that this was a task that should be performed soon. However, the fact remains that the supervisor did not, for example, tell the grievant either "clean the restroom immediately after the meeting" or "clean the restroom before leaving work today." Had the instruction been phrased in those or similar words, the grievant's failure to comply would have been a clear Group II offense. In the absence of such an unambiguous instruction, the instruction that was given to the grievant left him sufficient discretion to determine the order in which he would perform his work.

The grievant has explained that Main Street Station was his first priority because of the previous Written Notice; it is difficult to argue against the grievant's motivation regarding this choice. When he went to MSS, the grievant did not know how much time it would take to complete the cleanup. He also may not have realized that his back pain would slow him down somewhat. Following his break, the next priority was beyond his control because the Bike Patrol office had to be cleaned at 11:00 a.m. on Friday each week. The importance of this assignment was reinforced by the radio call from the Assistant Custodial Unit Chief at about 10:30 a.m. Following that assignment, there was simply no remaining time to clean the penthouse restroom because the grievant had to leave for an appointment with his physician.

The grievant's supervisor knew that the grievant would be leaving for his physician's appointment after 11:30 a.m. The supervisor knew also that the grievant was assigned to clean the Capitol Police Bike Patrol office at 11:00 a.m. every Friday. The grievant therefore had available to him three hours in which to move his personal belongings from one building to another, walk to Main Street Station, clean the grounds, return from the station, take his morning break, and walk to the Bike Patrol office. The grievant has presented a credible explanation of what he did between 8:00 a.m. after the meeting ended and 11:00 a.m. when he was specifically directed by the Assistant Custodial Unit Chief to clean the Bike Patrol office. The agency has presented no evidence to directly contradict the grievant's explanation of what he did during those three hours.

Rather, the agency has relied on the Custodial Unit Chief's opinion that there was no more than one hour's work to be done at MSS. With all due respect to the Chief, this opinion was based on a drive-by on public streets. The Chief did not drive through the Station's parking lots nor did he walk the grounds to assess the quantity of trash. The only person who actually saw the amount of trash was the grievant. However, even if the Chief's assessment was reasonably accurate, this assessment did not take into account the fact that the grievant had been off work for two days due to his back injury, was in pain that morning and was therefore walking and working more slowly than usual. Based on all of the above factors, the grievant's explanation of why it took approximately two hours to clean up the trash at MSS is not inherently incredible. As the agency has no evidence that the grievant was doing anything else during this time, his explanation is found to be credible. The grievant's testimony during the hearing was credible, direct and firm notwithstanding thorough cross-examination.

Accordingly, it must be concluded that, although the grievant failed to clean the penthouse restroom on September 29, 2000, he did not deliberately ignore the instruction. Moreover, the preponderance of the evidence leads to the conclusion that the primary reason for failing to get to this assignment was that the grievant ran out of time before he had to leave work for a physician's appointment. Therefore, the grievant has presented sufficient evidence to mitigate his failure to complete this assignment on September 29, 2000.

The agency emphasized during the hearing that it has been lenient with the grievant because of his back injury. The back injury is a problem of long standing and the agency has accommodated the grievant by structuring his work assignments to avoid any heavy lifting and operation of equipment such as floor buffers. The assignments given to the grievant are those that can be accommodated within the restrictions dictated by the grievant's physician. At the grievant's request, the agency also provided him a pole with a nail in the end to allow the grievant to pick up paper trash without having to bend over. These accommodations, while commendable, are what would be expected of any employer that is attempting to keep an otherwise satisfactory employee gainfully employed.

The agency noted that the grievant had received two previous Written Notices. One of those Notices was issued on September 13, 2000 for failure to follow instructions, specifically failure to clean Main Street Station. The grievant had experienced back pain during the summer from the repeated bending to pick up trash. In August 2000, he requested a stick with a nail in the end to reduce the amount of bending required in the job. He received that stick after being given the Written Notice on September 13, 2000.

The agency feels that because of the accommodations made for the grievant and because of his previous discipline, the grievant should be given a Group II Written Notice in this case. However, for the reasons stated above, the facts presented here dictate a finding that there is sufficient mitigation to overcome the grievant's failure to complete the assignment.

Nonetheless, the grievant is not without blemish in this situation. First, the grievant admittedly forgot to tell his supervisor that he could not get to the penthouse restroom assignment before leaving work. Had the grievant done so, the supervisor may then have been able to reassign the task to someone else so that it would be completed that day. Second, by virtue of having received a Written Notice only two weeks earlier for failure to complete an assignment, the grievant knew, or reasonably should have known, that he had an obligation to complete all assignments given to him. Therefore, he should have been especially sensitive to the fact that his supervisor gave him an assignment and that he did not complete it before leaving work. Third, when the grievant realized by mid-morning that he was not going to have time to clean the penthouse restroom, he could have radioed his supervisor to let him know that he was not going to be able to complete the assignment that day.

In taking all these factors into account, it must be concluded that the grievant's work performance in this situation was inadequate. Accordingly, it is appropriate that the grievant be given an appropriate level of corrective action. Section V.B.1.d of the Standards of Conduct provides that "inadequate or unsatisfactory work performance" constitutes a Group I offense. In weighing the totality of the evidence in this case, the Hearing Officer concludes that this level of corrective action is most appropriate for the circumstances.

The Group II Written Notice and the five-day suspension issued to the grievant on October 2, 2000 are VACATED. The Group II Written Notice shall be removed from the grievant's personnel file and retained by the agency pursuant the procedure outlined in Section VII.B.4.b of the Standards of Conduct. The agency shall reinstate to the grievant the five days of pay previously deducted.

The agency shall prepare a Group I Written Notice for inadequate work performance for his conduct on September 29, 2000. The grievant shall sign the Written Notice, which shall be retained in his personnel file until October 1, 2002.

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.

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

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:

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.