Issue: Group II Offense (failure to follow supervisor's instruction); Hearing Date: January 25, 2001; Decision Date: January 26, 2001; Agency Name: Department of Criminal Justice Services; AHO: David J. Latham, Esq.; Docket No: 5104; Judicial Review: Appealed to the Circuit Court of Richmond (City) (February 21, 2001); Outcome: Hearing Officer decision affirmed (May 24, 2001)
Department of Employment Dispute Resolution
DIVISION OF HEARINGS
DECISION OF HEARING OFFICER
In the matter of Department of Criminal Justice Services' Case Number 5104
Hearing Date: January 25, 2001
Decision Issued: January 26, 2001
PROCEDURAL ISSUE
The hearing for this case
was first docketed for January 3, 2001. Because of the unavailability of a key
witness the hearing was postponed. The next date available to the parties, their
representatives and witnesses, and the Hearing Officer was January 25, 2001.
APPEARANCES
Grievant
Attorney for Grievant
Representative for Agency
Grievant's Supervisor
Three witnesses for Grievant
Was the grievant's failure
to correctly file case documentation in September 2000 subject to disciplinary
action under the Standards of Conduct? 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 II Written Notice issued on September 27, 2000 because she failed to follow a supervisor's instructions and perform assigned work. Specifically, it was determined in a review of the files assigned to the grievant for the month of September 2000 that she had misfiled a total of 13 forensic case files.
The Department of Criminal Justice Services (hereinafter referred to as "agency") has employed the grievant as an office services specialist for the past 29 years.
The grievant and two other office service specialists (OSS) are responsible for the filing of forensic case files. Although the volume of filing can vary considerably from day to day, each OSS spends on average, between 30 minutes and 1.5 hours per day filing. The OSSs are allowed to perform filing at any time during the day they choose. All case files are filed in a locked room; the grievant, her two coworkers and the executive secretary hold the four keys to this room. As a general rule, no other agency employee is supposed to have access to the file room. On occasion, examiners or certain management employees may request access to return a file. The established procedure is that anyone returning a file is to place it on a table just inside the file room door and should not attempt to refile the case. Sometimes, an OSS may admit an examiner to the file room for this purpose and leave the examiner in the file room alone.
Prior to 2000, the three OSSs performed their work without close oversight supervision or quality assurance reviews of their filing. In December 1999, agency management assigned an executive secretary to be direct supervisor of the three filing specialists. As part of the executive secretary's responsibility she conducted a monthly review of the filing performed by each OSS. Each OSS is assigned two specific blocks or ranges of filing numbers. The unwritten policy and practice, understood by all of the specialists, provides that each OSS is to file documents only within her own range of numbers. All of the OSSs agree that each OSS is to file only within her own assigned range of numbers. Both of the grievant's coworkers have not filed any cases but their own, and each is unaware of anyone else filing within their range of numbers. Each month the secretary randomly selects 20 files from the ranges assigned to each OSS and reviews whether documents have been accurately filed 1.
During the random audit conducted by the secretary in April she found one misfile among the files reviewed for the grievant; no misfiles were found for the other two OSSs. During April, the work of examiners was scheduled for an annual audit. Approximately 35 files had to be retrieved from filing to conduct the audit. When the secretary retrieved these files, she found 12 misfiles in the grievant's block of files; no misfiles were found for the other two OSSs. As a result of this finding, the secretary verbally counseled the grievant in the grievant's cubicle on April 7, 2000 and reminded her that her performance plan element for filing permits no more than one misfile per month. This standard of no more than one misfile per month is applied all three OSSs. The verbal discussion was documented in writing2.
In May 2000, the secretary's random file review found two misfiles by the grievant and no misfiles by her coworkers. On June 8, 2000, the secretary's random file review found two misfiled cases by the grievant; no misfiles were found for the other two OSSs. On this occasion the secretary verbally counseled the grievant again but elected not to document the discussion in writing. On June 15, 2000, the secretary was reviewing 1999 case files to assure that records were properly filed. She found 69 files that had 2000 documents filed in the 1999 case file; all 69 were within the range of numbers assigned to the grievant. Again, the secretary conducted verbal counseling with the grievant in the grievant's cubicle and documented the conversation with a memorandum dated June 16, 20003.
On September 18, 2000, the executive secretary found 13 misfiles in the work assigned to the grievant during that month; no misfiles were found for the other two coworkers. The grievant was on leave during the week of September 18 through 22, 2000. During this week, the secretary performed some of the filing in the grievant's range. Such filing, however, was performed after the random file review conducted on September 18, 2000. The secretary then consulted with the Human Resources department and they jointly agreed that a Written Notice was the required disciplinary action. It was concluded that a Group II Notice was the appropriate level of discipline because of the previous multiple counseling discussions and the potential seriousness4 of the misfiling. The Written Notice was given to her on September 27, 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.
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.B.2 of the Commonwealth of Virginia's Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60 provides that Group II offenses "include acts and behavior which are more severe in nature and are such that an accumulation of two Group II offenses normally should warrant removal." One example of a Group II offense is cited as:
Failure to follow a supervisor's instructions, perform assigned work or otherwise comply with applicable established written policy.
In the instant case, the agency has amply demonstrated that a substantial number of misfiling errors was found within the range of files assigned solely to the grievant. The agency had established a tolerance level of one misfile per month. During the period from April through September 2000, the random review found a total of 110 misfiled cases within the grievant's assigned range of numbers - 104 more than the tolerance level of six misfiles for this six-month period. During the same time period, no misfiled cases were found in either of the range of numbers assigned to the two coworkers.
In addition, the grievant's supervisor had conducted verbal counseling with her in April, May and June 2000 regarding the misfiling and its potential impact on her performance appraisal. Two of these discussions were documented in writing. The grievant was well aware of the importance of accurate filing by virtue of her long employment in the department and her knowledge of the impact of missing records on a criminal prosecution.
The grievant has acknowledged that she was verbally counseled on multiple occasions. However, she has suggested, albeit somewhat obliquely, that other factors may have accounted for the misfiles. First, she contends that the executive secretary had performed some of her filing while she was on vacation. The credible and unrebutted testimony of the secretary established that she performed filing in the grievant's range of numbers on only one occasion - after the random review of files on September 18, 2000.
Second, the grievant suggested that her two coworkers may have filed documents within the grievant's range of numbers. However, both coworkers denied ever having filed documents assigned to the grievant. Third, the grievant pointed out that examiners are admitted into the file room but may be alone in the room at times. The inference is that a supervisor could theoretically refile a document in an incorrect folder. Assuming, arguendo, that one or more examiners may have attempted to refile their cases, and assuming that they did so erroneously, the grievant has failed to show why the only misfiles over a six-month period were all in her range of numbers. Logic would dictate that at least some misfiles by examiners would be in the file sections assigned to the grievant's coworkers. In any case, no one at the hearing, including the grievant, has actually seen anyone other than the three OSSs and the executive secretary filing documents.
Fourth, the grievant suggests that the color coding system used in the filing room is confusing and may contribute to misfiling, and that fatigue can result in errors. However, the grievant's two coworkers testified that the color coding did not bother them. One coworker said that if she feels fatigued while filing, she works on another responsibility (typing or mailing) and returns to the filing when she feels less fatigued.
The grievant has made much of her contention that she did not receive the copies of the supervisor's written documentation of the April 7 and June 16, 2000 verbal counseling discussions. Other than the supervisor's adamant statements that she did hand-deliver both memoranda to the grievant, there is no other testimony or evidence to resolve this question. Section VI.B of the Standards of Conduct policy provides that counseling is a form of corrective action available as an alternative to formal disciplinary action. Section VI.C.2.c states, in pertinent part:
(1) Documentation permissible
Counseling may be documented by a letter or memorandum, but not on the Written Notice form. (Underscoring added)
Thus, while a supervisor may elect to document verbal counseling discussions, this is not a requirement of the Standards of Conduct. Further, when such a discussion is documented in writing, there is no requirement that a copy of the documentation be given to the person being counseled. The primary purpose of such written documentation is to provide the supervisor a contemporaneous description of the discussion in the event it becomes necessary, as in this case, to support subsequent formal disciplinary action.
The grievant also contends that the filing system has problems. Certainly the filing system is not perfect and it is probable that enhancements might improve the system. However, notwithstanding the current system's imperfections, the preponderance of evidence indicates that only the grievant has been misfiling documents. Her two coworkers have been able to file cases without any detectable misfiling.
Finally, the grievant argues that the misfiling cannot be definitely attributed to her because she did not see the misfiled documents herself and because no one actually saw her misfile the documents. This argument is extremely weak in the face of the circumstantial evidence in this case. In summary, the agency has borne the burden of proof to show by a preponderance of the evidence that, more likely than not, the grievant misfiled an excessive number of documents over a six-month period during which her coworkers had no misfiled documents. The grievant has not demonstrated sufficient mitigation to overcome this substandard performance.
Having concluded that the substandard performance was attributable to the grievant, corrective action is warranted. As the grievant had previously received verbal counseling, two instances of which had been documented in writing, it is necessary to consider the appropriate level of disciplinary action. As noted above, a Group II Written Notice should be used when the action or behavior is more severe in nature, and when a second Group II Notice would normally result in discharge of the employee.
The testimony of the grievant's supervisor established that she does not believe the grievant deliberately misfiled cases. Rather, the supervisor believes the grievant's lack of attention to her work caused her to misfile documents. This is equivalent to simple negligence but does not connote either severe behavior or an offense that should warrant removal of the employee if another instance of misfiling occurs. The agency contends that a Group II Notice is warranted because of the potential ramifications if a file could not be found for a court case.
However, in this case, there
is no allegation that files were destroyed or lost; they were misfiled. There
is no doubt that attempting to locate a misfiled document on short notice causes
consternation, annoyance and a loss of productive time to those involved in
the search. Nonetheless, it is important in administering disciplinary action
to utilize the appropriate level of Written Notice. After serious consideration,
the Hearing Officer concludes that the grievant's misfiling is most accurately
characterized as inadequate or unsatisfactory work performance - a Group I offense.
DECISION
The disciplinary action of the agency is modified.
The Group II Written Notice issued to the grievant on September 27, 2000 is VACATED. The Group II Written Notice shall be removed from the grievant's personnel file and retained by the agency pursuant to the procedure outlined in Section VII.B.4.b of the Standards of Conduct.
The agency shall prepare
a Group I Written Notice for inadequate work performance for the misfiled cases
in September 2000. The grievant shall sign the Written Notice, which shall be
retained in her personnel file until September 26, 2002.
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, Esq.
Hearing Officer