Docket 5095 Hearing Officer Decision

Issue: Group II Offense with suspension (failure to perform assigned work and making threatening remarks); Hearing Date: January 22 and 23, 2001; Decision Date: January 26, 2001; Agency: Department of Criminal Justice Services; AHO: Carl Wilson Schmidt, Esq.; Case No: 5095

Department of Employment Dispute Resolution

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

In the matter of Department of Criminal Justice Services Case Number 5095

Hearing Dates: January 22 and 23, 2001
Decision Issued: January 26, 2001

PROCEDURAL HISTORY

On July 19, 2000, Grievant was issued a Group II Written Notice of disciplinary action with five days suspension for:

Failure to performed assigned work and making threatening remarks. On June 30, 2000, you failed to prepare training packages as assigned. When asked about the status of the assignment, you became inappropriately angry, verbalized that you were not going to complete the assignment and informed supervision [sic] to get out of your face and walked away. On July 5, 2000, you continued in your anger about this matter and verbalized to a third party that you may take physical action against your supervisor.

On August 18, 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 he requested a hearing. On November 20, 2000, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. A hearing was originally scheduled for December 21, 2000 but was continued at the Grievant's request without objection and for just cause due to health concerns. On January 22, 2001 and January 23, 2001, a hearing was held at the Agency's regional office.

APPEARANCES

Grievant
Chief Deputy Director
Assistant Director
Program Administrator
Program Manager
Program Analyst
Administrative Procedures Specialist
Program Support Technician

ISSUE

Whether Grievant should receive a Group II Written Notice of disciplinary action with five days suspension.

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:

Grievant is employed by the Agency as an Executive Secretary Senior. He reports to the Program Administrator who, in turn, reports to the Assistant Director of a Section within the Agency. See Grievant's Exhibit 1. Grievant provides administrative and clerical support for several managers within the Section. See Grievant's Exhibit 18. Over twenty employees are part of the Section and they frequently work as a team to accomplish numerous responsibilities.

Grievant is very dedicated and hard-working. He frequently assumes responsibility for completing or assisting with the tasks of other employees within the Section. Grievant described himself as a perfectionist and the testimony of his co-workers supports his perception. Grievant often works independently and without constant supervision. He is trusted by Section managers to produce good quality work products.

Grievant has worked for the Agency for over two years. He previously worked for another State agency for over twenty years. No evidence was presented of any disciplinary action against the Grievant during his previous tenure with the Commonwealth.

Section staff conduct training for law enforcement agencies. Training was scheduled for Thursday, July 6, 2000 and Friday, July 7, 2000. Part of the training included presenting a training package to the attendees. The Program Administrator, Program Analyst and Procedures Specialist were responsible for drafting the contents of the training package. The Program Analyst and Procedures Specialist had completed their portions of the training package and submitted them to the Program Administrator on or before Friday, June 23, 2000 because they planned on being on vacation the following week of June 26 through June 30, 2000.

The Program Administrator was responsible for assessing the number of people expected to attend the training seminar and informing the Program Analyst and Procedures Specialist of that number. On Friday, June 23, 2000, the expected number of seminar attendees was 12 or 13 people.

Grievant approached the Program Analyst and Procedures Specialist and asked them if he could take responsibility for preparing the training package while they were on leave from June 26 to June 30, 2000. They agreed because having Grievant assume responsibility for preparing the package meant they did not have to hurry to complete the packages by June 23, 2000. Grievant was to prepare 20 packages by the end of the day June 30, 2000. Having 20 packages ready when only 12 to 13 people were expected to attend the seminar, meant there would be extra packages available for unexpected seminar guests. The Program Administrator finished his review and editing of the training package on June 27, 2000 and gave the final draft to the Grievant so that the packages would be assembled. Grievant timely prepared approximately 20 packages by the morning of June 30, 2000.

On Friday, June 30, 2000, the Program Administrator determined that additional people may attend the seminar and he decided to increase the number of packages to 30 instead of 20. He spoke with the Grievant Friday morning and asked for the additional packages. The Grievant agreed to prepare the additional 10 packages. While he was preparing the first 20 packages, the Grievant made additional copies of the inserts in excess of the 20 needed. When the Program Administrator asked for the additional ten copies, the Grievant already had the package contents prepared. All he needed to do was to add dividers to separate the material by the day it was to be used and to add covers to the packages. The Section had exhausted its supply of blue folder covers and did not have an extra ten folder covers. The evidence is unclear whether the additional ten packages originally were due by the close of business on Friday or whether the Grievant could finish assembling them on July 5th, 2000. The actual number of persons attending the training on the following week was fewer than 20. As a result, the additional ten folders were not distributed.

In the morning of June 30, 2000, the Program Administrator spoke with the Grievant regarding whether the training packages had been finalized and if not, whether the Grievant needed assistance. The Grievant responded that the packages were not finished and that he was receiving assistance from an Office Services Assistant. At about 1 p.m. on June 30, 2000, the Program Administrator again checked the status of the packages and saw that they had not yet been finalized. He asked the Office Services Assistant why the packages were not finished and she responded that she lacked a sufficient number of dividers and folder covers to complete the job.

The Program Administrator began trying to find the Grievant but could not locate him until after 3 p.m. Grievant had taken a late lunch and was out of the office. Grievant and his supervisor had several conversations in the late afternoon. Their accounts of those conversations differ dramatically. A portion of one confrontation was observed by the Program Support Technician. Several days following the incident, the Program Support Technician drafted a statement of what happened when she was talking to the Grievant, as follows:

[The Program Administrator] came in … and asked [the Grievant] if the folders were finished, or if they were close to being finished, as he was hoping to get them out that day if possible. [The Program Administrator] was not demanding or critical of [the Grievant] in any way and spoke in a quite, calm voice.

However, [the Grievant] immediately answered in a loud and shouting voice, "No! I told you I didn't want to do them and I'm not going to do them. They are not done and they are not going to get done today." Then he immediately turned his back on [the Program Administrator].

[The Program Administrator] said to [the Grievant] "All I wanted to know was if the folders were close to being finished. That's all." [The Program Administrator] still did not raise his voice, was still not demanding, and still very calm.

[The Grievant] then quickly turned around, got in [the Program Administrator's] face and shouted, "I told you. I am not going to do them. I don't want to do them." They are not going out today. Now get out of my face."

He then once again turned his back on [the Program Administrator] and started walking towards the copy machine. [The Program Administrator] followed him, at which point I left to take the mail upstairs.

See Department's Exhibit 6.

Grievant disagrees with the Program Support Technician's account but he could not establish any reason why she may have testified falsely. The Program Support Technician's description of the Program Administrator's demeanor is consistent with the accounts of other Section staff who described the Program Administrator as neither combative nor abrasive but as staid.

Following the confrontation between the Grievant and the Program Administrator, the Grievant called another Manager and stated, "Keep [the Program Administrator] out of my face or I'm going to hit him." Department's Exhibit 7. Grievant denies making this statement and stated that he is not the type of person who would ever engage in any sort of violent behavior. The Agency's witnesses confirmed that it was unlikely that the Grievant would have ever actually hit the Program Administrator. The Program Administrator only learned of the Grievant's threat and he did not believe he was ever in danger from the Grievant.

July 3 and 4, 2000 were State holidays. When the Grievant returned to work on July 5, 2000, the Program Administrator asked to speak with him. Grievant refused and indicated he had an appointment with a human resource officer. Several hours later, a human resource officer called the Program Administrator and said that the Grievant did not want to speak with the Program Administrator until the Assistant Director returned from vacation on July 11, 2000 and could be present. The Program Administrator sent the Grievant an email stating:

[A human resource officer] told me that you prefer not to talk to me until [Assistant Director] comes back. I will honor this if you prefer. However, I have no intention of having any kind of negative conversation. I feel that you and I need to communicate better and I would appreciate if it you would talk to me today.

Grievant replied:

Sorry, [Program Administrator]! In light of what happened on Friday, I don't think it is possible for us to have civil dialogue right now. I don't think that you respected me as a reasonably intelligent adult nor as a respectable employee of this agency when I explained what I was doing and asked that you allow me time to complete my tasks before doing what you so urgently felt needed to be done at the time.

Agency managers view the Grievant's actions to be an isolated incident. Grievant's October 2000 performance evaluation mentions disciplinary action but shows his performance as exceeding the Agency's expectations. Grievant's Exhibit 5. By any measure, Grievant appears to be a highly motivated and valuable employee.

CONCLUSIONS OF LAW

Grievant is being disciplined for failure to perform assigned work and for making threatening remarks. See Department's Exhibit 2. The Agency claims the Grievant failed to finalize preparation of ten training packages by the end of the day on June 30, 2000. It is unclear from the evidence whether the Grievant was instructed by his supervisor to finalize the additional ten folders by the close of business on Friday June 30, 2000. Grievant had substantially completed the ten folders by the early afternoon on Friday. The absence of available folder covers may have delayed a more timely assembly of the file folders. All folders were finalized on July 5, 2000 before the scheduled training (albeit by the person with the original responsibility for preparing the folders). The Hearing Officer cannot conclude that the Grievant failed to perform his assigned work.

The Written Notice describes Grievant's offense to include "making threatening remarks." The Assistant Director testified, however, that he did not consider the threatening remarks in determining the appropriate level of discipline. The Hearing Officer likewise will exclude from consideration the Grievant's threatening remarks because the remarks were more of an expression of frustration than an actual threat.

Although the Grievant performed his assigned duties and his threatening remarks are not considered, Grievant's behavior rises to the level of requiring disciplinary action. It is clear from the evidence that Grievant's supervisor made several requests regarding the status of the training packages and that the Grievant responded in a hostile and defiant manner. The Grievant also refused to speak with the supervisor thereby creating a tense and unsettling workplace environment for the Grievant and the supervisor as well as the other staff in the office who were aware of the incident.

The Standards of Conduct describe offenses which are not all inclusive, but which are examples of unacceptable behavior for which specific disciplinary actions may be warranted. "Disruptive behavior" is listed as a Group I offense. Standards of Conduct, Policy No. 1.60(V)(1)(e). Grievant's behavior was disruptive and inappropriate under the circumstances. The Written Notice of disciplinary action must be reduced to a Group I offense.

Grievant's actions appear to have been motivated by his perception that the Program Administrator's repeated request for the status of the training packets reflected the Program Administrator's opinion that the Grievant was unable to complete the work independently and professionally. In short, Grievant felt insulted because he did not believe the Program Administrator was treating him as a professional. Assuming for the sake of argument that the Program Administrator's conduct did not show an appropriate level of respect for the Grievant's skills, the Grievant's reaction was even more unprofessional and disrespectful than the actions alleged of the Program Administrator. Fortunately, the testimony of the parties and their witnesses suggests this is an isolated incident inconsistent with the Grievant's true character.

DECISION

For the reasons stated herein, the Agency's issuance to the Grievant of a Group II Written Notice of disciplinary action with a five day suspension is reduced to a Group I. Because the normal disciplinary action for a Group I offense is issuance of a Written Notice, Grievant's suspension for five days is rescinded. GPM § 5.9(a)(2). Standards of Conduct, Policy No. 1.60(D)(1)(a). The Agency is directed to provide the Grievant with back pay for the period of suspension, July 19, 2000 through July 25, 2000 less any interim earnings that the employee received during the period of suspension and credit for annual and sick leave that the employee did not otherwise accrue. GPM § 5.9(a)(3). Standards of Conduct, Policy No. 1.60(IX)(B)(2).

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