Issue: Group II Written Notice (failure to follow supervisor’s instruction); Hearing Date: February 6, 2001; Decidion Date: February 21, 2001; Agency: Department of Environmental Quality; AHO: Carl Wilson Schmidt, Esq.; Case No. 5110

Hearing Date: February 6, 2001
Decision Issued: February 21, 2001

On October 20, 2000, Grievant was issued a Group II Written Notice of disciplinary action for:

The Agency did not consider suspending the Grievant, because "[Grievant] is working under a 90-day performance plan in order to affect an improvement in his performance." (Agency Exhibit 1).

On November 3, 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 December 20, 2000, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On February 6, 2001, a hearing was held at the Agency’s regional office. Upon motion of a party, the Hearing Officer found just cause to grant an extension of the 30 day time frame for issuing the decision because of the conflicting schedules of the parties and reduced number of available dates due to holidays.

Grievant
Counsel for Grievant
SupervisorLegal Advocate
Assistant Division Director
ConsultantDocuments Examiner

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

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.

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

Grievant was employed as an Environmental Engineer, Sr. with the Agency. Landfills are required to submit to the Agency quarterly and semiannual correspondence with attached reports. One of Grievant’s responsibilities was to review correspondence from landfills and others to determine if a response was necessary. Grievant was to review the documents to determine if the landfill or other regulated entity was in compliance with State regulations. Certain types of correspondence required a response from the Grievant within 30 days. Other correspondence required no response.

The Agency viewed Grievant as a poor performer and was in the process of developing a 90 day performance plan in order to assist Grievant in improving his performance. (Agency Exhibit 1). Grievant had received numerous correspondence for which he had failed to timely respond.¹ As part of a 90 day work plan, the Agency required Grievant to perform an inventory of all of the correspondence in his office to identify those correspondence requiring Grievant’s immediate reply.

On September 27, 2000, Grievant received an email from the Assistant Division Director informing him that he would begin immediately reporting to the Supervisor. (Hearing Officer’s Exhibits 1 and 2).² Before the reporting relationship was changed, the Grievant and the Supervisor were peers who both reported to the Environmental Engineering Consultant. Following the change, the Supervisor continued to report to the Consultant with respect to the Supervisor’s work but began directly reporting to the Assistant Division Director (the Consultant reported to the Assistant Division Director) with respect to the Supervisor’s supervision of the Grievant. The effect of the change in the reporting relationship was to remove the Consultant from the chain of command involving the Grievant. The change also made the Supervisor into a supervisor of one employee, namely the Grievant. According to the Supervisor, his responsibility was to serve as a mentor/supervisor to the Grievant for the 90 day performance evaluation period.

On September 28, 2000, the Supervisor and the Grievant met to discuss the Grievant’s correspondence backlog. The Supervisor instructed Grievant to compile an inventory of all of the correspondence directed to him and located in his office. Once a final inventory was completed, the Supervisor intended to assist the Grievant in setting priorities to make sure Grievant had responded to all correspondence requiring a reply. No fixed timeframe was set for completing the inventory because the Supervisor did not know how many correspondences needed to be inventoried or how long it would take to complete the inventory. The Supervisor anticipated that Grievant could complete the inventory by Tuesday, October 3, 2000, but if Grievant had requested additional time, the Supervisor would have allowed the extra time. Grievant never asked for additional time.

On Monday, October 2, 2000, the Supervisor sent Grievant an email scheduling a meeting for 10 a.m. the following day to discuss Grievant’s inventory. (Agency Exhibit 3). Grievant did not work on October 2, 2000. He received the email in the morning of October 3^rd.

It is clear to the Hearing Officer that the Grievant believes that the Consultant was altering external correspondence sent to the Grievant in order to make it appear that Grievant was not timely replying to correspondence.³ Grievant testified he had previously filed a grievance regarding altered correspondence and as a result the Agency prohibited him from working on the weekend or outside his normal work hours. Because Grievant believed some of the correspondence in his office has been altered, he suspected his assignment to prepare an inventory was a pretext to identifying his poor performance. In other words, by compiling an inventory that included unanswered correspondence, the Grievant feared he would be perceived as having admitted he failed to timely respond to correspondence to which he had actually responded appropriately.

Grievant had not finished the inventory on October 3^rd. He took three hours on September 28^th, seven hours on September 29^th, and two hours on October 3^rd to inventory 69 items. (Agency Exhibits 5 and 9). There were stacks of uninventoried correspondence on two bookcases and in a box by the office door.

There are two different versions of what happened during the meeting on October 3, 2000 between the Supervisor and the Grievant. The Supervisor testified he asked the Grievant when the remaining correspondence would be inventoried. Grievant responded that the correspondence had been tampered with and he refused to inventory that correspondence. Grievant told the Supervisor that if the correspondence was to be inventoried, the Supervisor would have to do the work. The Supervisor felt the inventory needed to be completed in order to set priorities under the 90 day performance plan, so the Supervisor asked the Consultant if the Consultant would permit the Supervisor to delay his daily work in order to finish the inventory of Grievant’s correspondence. The Consultant agreed and the Supervisor finished the inventory. The Supervisor took eight hours on October 4^th and eight hours on October 5^th to inventory 53 items. (Agency Exhibit 10).

The Grievant testified that he showed the altered correspondence to the Supervisor and gave examples of the alterations. He then asked the Supervisor to review the correspondence and place on the Grievant’s desk those correspondence the Supervisor wanted inventoried despite their alteration. Rather than following the Grievant’s request, the Supervisor removed the correspondence from the Grievant’s office. The Supervisor then decided to perform his own inventory of the correspondence. Once the documents were removed, the Grievant could not complete the inventory.

On October 20, 2000, the Supervisor issued a Group II Written Notice of disciplinary action to the Grievant.

An employee who fails to follow a supervisor’s instruction may be given a Group II Written Notice under the Standard of Conduct. The Agency must prove by a preponderance of the evidence that a clear instruction was given by a supervisor to an employee and the employee knowingly failed to perform that instruction. The Agency has not met its burden of proof.

The Agency argues it has met its burden of proof because it has presented credible evidence that an instruction was given to the Grievant and the Grievant refused to comply with the instruction. The Agency argues that the Consultant confirmed the Supervisor’s statement of the events because the Supervisor timely informed the Consultant of the Grievant’s refusal. Grievant, however, argues he never refused to complete the inventory. He contends that if he was going to refuse to do an inventory, he would not have inventoried 69 items.

Only the Supervisor and the Grievant witnessed their conversation. Each has a very different recollection of the conversation. Either one party is very good at misrepresenting the truth or the parties had a very different understanding of their conversation. After closely observing the demeanor and testimony of the Supervisor and the Grievant, the Hearing Officer cannot determine which one is not telling the truth. If both parties are telling the truth and they simply misunderstood each other, then the Agency has failed to establish that the employee knowingly failed to perform the instruction.

Although only limited evidence was presented regarding the parties prior conflicts, it is clear to the Hearing Officer that the Agency had viewed the Grievant as a problem employee for quite some time. Likewise, the Grievant often looked askance at the Agency’s actions and his suspicion had existed for a long period of time. It is the Agency’s responsibility to document poor behavior by one of its employees. The Agency appeared to readily use email to communicate. For example, Grievant was informed by email that he would begin reporting to the Supervisor. In addition, the Supervisor sent Grievant an email informing him of a proposed time to meet and discuss the inventory. Before beginning to work on completing the inventory, the Supervisor could have informed Grievant by email (or by some other written document) that he would be completing the inventory because Grievant refused to do so. Grievant would have had an opportunity to clarify any misunderstanding he may have had with the Supervisor.

The Agency presented testimony of the Consultant indicating that the Supervisor spoke with the Consultant and informed him that the Grievant had refused to complete the inventory. The Consultant’s testimony, however, only shows that the Supervisor believed that the Grievant had refused to complete the inventory, not that the Grievant actually refused.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group II Written Notice of disciplinary action is rescinded. The Agency is directed to remove the Written Notice from the Grievant’s personnel file in accordance with State policy.

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 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.

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