In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case No. 5116

Hearing Date: February 8, 2001
Decision Issued: February 12, 2001

In an attachment to the grievance form, the grievant stated that one of his issues was the agency’s alleged failure to make reasonable accommodations based on the Americans with Disabilities Act (ADA). However, during the hearing, the grievant withdrew this issue from his grievance request.

Grievant
Representative for Agency
Assistant to Agency Representative
Three witnesses for Agency
One witness for Grievant
Observer for Agency

Was the grievant’s job performance so unsatisfactory as to warrant disciplinary action under the Commonwealth of Virginia Standards of Conduct? If so, what was the appropriate level of disciplinary action for the conduct at issue?

The grievant filed a timely appeal from a Group I Written Notice issued on October 13, 2000 because of unsatisfactory job performance. The incident that precipitated this disciplinary action was the grievant’s failure to respond to a memorandum from his supervisor dated September 22, 2000 that requested a written response by October 3, 2000. Following a denial of relief at each resolution step, the Group I Written Notice was upheld. Subsequently, the agency head qualified the grievance for a hearing.

The Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) (Hereinafter referred to as "agency") has employed the grievant as a registered nurse clinician B (RNCB) since 1996.

Over a period of several months in 2000, the grievant’s supervisor had become concerned that the grievant was not always responding to memoranda, or that when responding, he did not respond in a timely manner. For example, the supervisor issued a general memorandum to the nursing staff on May 11, 2000 setting forth detailed instructions regarding a) use of the time clock to record starting and ending times of work and, b) proper completion of the time card. The grievant failed to properly complete his time card for the period of May 10-24, 2000. The supervisor issued a written memorandum to the grievant on May 30, 2000 advising him that failure to complete his time card properly would result in disciplinary action.

On July 17, 2000, the grievant’s supervisor sent a memorandum to the grievant (which he received) requesting a plan of correction by July 20, 2000. He later requested the supervisor provide specifics about what she wanted. The grievant failed to provide a response by the deadline and on July 25, 2000, his supervisor again requested a response that day. She further advised the grievant that failure to provide a response would result in a Group II Written Notice for failure to follow a supervisor’s instructions. The grievant requested an extension and the supervisor granted it. On July 27, 2000, the grievant sent a memorandum to his supervisor stating that he would submit a completed response to her no later than August 1, 2000. He again failed to comply with this deadline. The grievant contends he had asked for another extension of the deadline but there is no corroboration for this assertion.

On August 11, 2000, grievant’s supervisor sent a memorandum to all RNCBs requesting a report not later than August 22, 2000 from each person whose unit was below 100 percent compliance with nursing admission assessments. The grievant’s response was not timely. On August 14, 2000, the supervisor documented in a memorandum to the grievant that he had not submitted employee-counseling memoranda from the previous month. On August 22, 2000, the supervisor wrote a memorandum to the grievant noting several past due items and requested that the grievant provide certain information not later than August 25, 2000. When this information was not received by the deadline, the supervisor sent another memorandum to the grievant (which he received) on August 25, 2000 noting the specific requests that the grievant had failed to submit. The memorandum further advised the grievant that the supervisor considered his failure to timely respond to be "failure to follow a supervisor’s instruction." She also distributed a memorandum to all RNCBs that contained, among other things, the following unambiguous instruction:

6. When I request a response or information from you and give you a deadline, I expect to receive the information requested. If you are unable to comply with the deadline that I set, it is your responsibility to negotiate a change in that deadline with me. It is not my responsibility to track you down for the information. This is my last warning. The next step is a Standard of Conduct Written notice.

On September 22, 2000, the grievant’s supervisor placed in each RNCB’s mailbox¹, a memorandum that requested a written response by October 3, 2000 from those RNCBs in whose ward medical education classes did not occur during August 2000. Because such classes did not occur in the grievant’s ward, he was expected to respond by the deadline of October 3, 2000. By October 10, 2000, the grievant had not responded to the memorandum. The supervisor then issued a Group I Written Notice to the grievant on October 13, 2000 for unsatisfactory job performance. One other individual had demonstrated a tendency to be late in responding to supervisory instructions, albeit to a lesser degree than the grievant. That individual has been given written counseling.

The grievant’s previous supervisor had always distributed memoranda either by passing them out at meetings or by hand carrying them directly to the individual. A new supervisor was assigned in the grievant’s area in early 2000; she would sometimes distribute memoranda at meetings or in person, but often placed memoranda in the individual’s mailboxes. It was customary for RNCBs to check their mailboxes on a daily basis for daily work assignments and other general memoranda.

The grievant did not receive the memorandum dated September 22, 2000. He first saw the memorandum when his supervisor showed it to him during the October 13, 2000 meeting at which he was given the Written Notice.

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:

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.1 of the Commonwealth of Virginia’s Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60 provides that Group I offenses include "inadequate or unsatisfactory work performance."

The agency has not borne the burden of proof to show that the grievant received the September 22, 2000 memorandum. The supervisor who prepared the memorandum candidly acknowledged that she did not give it directly to the grievant but rather placed it in a mailbox to which many people had access. The grievant has consistently denied receiving the memorandum. Moreover, the grievant’s contention is corroborated by the supervisor’s acknowledgement that the grievant told her this during the meeting on October 13, 2000. The agency argues that the grievant should have received the memorandum and that he probably did receive it.

However, the agency has not shown, by a preponderance of the evidence, that the grievant actually did receive it. There are many plausible explanations as to why the grievant may not have received it. For example, the memorandum may have become mixed with other files, the grievant’s mailbox may have been skipped when the memorandum was placed in all other mailboxes, it may have been accidentally mislaid with other paperwork on the grievant’s desk or, someone else may have erroneously picked up the grievant’s mail and inadvertently failed to return the memorandum to the grievant. As the agency has not proven this crucial point, the grievant’s failure to respond to the September 22, 2000 memorandum cannot be a basis for disciplinary action.

On the other hand, the agency has demonstrated that the grievant developed a problem during the summer of 2000 in not responding to memoranda when requested by his supervisor. It may be that the grievant and this particular supervisor are not well suited to work with one another. Of course, even if friction existed between supervisor and grievant, this is not an excuse for the grievant either to ignore instructions or to delay responding beyond required deadlines. The grievant contends that when he was late responding, his supervisor had approved an extension of the deadline. The supervisor has agreed that deadlines were extended in some, but not all, cases.

While it appears that a problem with timely responses had surfaced, it also appears that the supervisor had decided to take a lesser corrective action as of August 25, 2000. On that date, she gave the grievant a written counseling memorandum that advised him that any future failure to respond by an established deadline would be cause for disciplinary action in the form of a Written Notice. During the next six weeks, there were no documented instances of the grievant failing to comply with any deadlines.

Section VI.A of Standards of Conduct Policy 1.60 states:

The fact that the agency did not issue a Written Notice on August 25, 2000 but instead utilized written counseling as a corrective action can only mean that the agency did not feel that the grievant’s shortcomings up to that date warranted disciplinary action. There were no intervening deficiencies (other than the failure to respond to the September 22, 2000 memorandum) between August 25 and October 13, 2000 that would justify the issuance of disciplinary action.

While the agency has not shown sufficient justification for disciplinary action, the evidence does reflect a need for corrective action. The need for prompt compliance with supervisory instructions should be reinforced to the grievant. However, this would more appropriately be addressed with verbal counseling that is documented in writing. Should there be any further provable instances of failure to comply with reasonable deadlines, disciplinary action would be appropriate.

The grievant listed six issues in the attachment to his grievance. The issues of 1) unwarranted written notice, 2) inappropriate use of disciplinary action, and 5) inconsistency and unfairness have been treated in the preceding paragraphs. As previously noted, the grievant withdrew the ADA issue (issue 6) during the hearing. The grievant presented no evidence or testimony regarding his assertion that he had been retaliated against for reporting racial issues and discriminatory practices (issue 4).

The remaining issue (number 3) – failure to communicate effectively - deserves comment. First, this is not truly a grievable issue because communication is a two-way street that requires active involvement of both the sender and the recipient of a communication. Moreover, this is not an issue that lends itself to an easy solution by a Hearing Officer. If effective communication is lacking, management must assess this issue and determine how best to correct deficiencies. Nonetheless, it may be instructive to observe that the failure to assure delivery directly to the grievant of the September 22, 2000 memorandum was the genesis of this grievance.

The supervisor could have hand-delivered her September 22, 2000 memorandum to the grievant. With such an important request, this would have assured that the grievant received the memorandum. Additionally, the grievant correctly notes that his supervisor could have utilized telephone, e-mail or personal face-to-face contact to inquire why the grievant did not comply by the deadline. Doing so would have surfaced the non-receipt issue earlier and perhaps have given the grievant a chance to respond. The grievant states that had his supervisor contacted him directly, she would have received instant feedback.² It is apparent that the supervisor preferred less person-to-person contact than her predecessor did. While each supervisor must be allowed her own style of supervision, it may be appropriate for this supervisor to reassess whether more personal contact might avoid this type of problem in future similar situations.

Grievant also contends that it is the supervisor’s responsibility to prepare a corrective action plan for responding to time frames. This is not necessarily correct. While a supervisor may elect to do the preparation herself, it is common for supervisors to ask an employee to prepare their own corrective action plan, which would then be subject to the supervisor’s review and approval.

The grievant requested an apology from his supervisor. There is nothing to suggest that the supervisor’s decision was not made in a sincere effort to address a perceived problem. Although this decision overrules the disciplinary action, an apology is not warranted because the supervisor made what she believed to be the correct decision. The grievant further requested wages for time lost due to illness, allegedly as an indirect result of his supervisor’s actions. However, the grievant presented neither any medical evidence nor any wage data to support this assertion. Moreover, even if such evidence had been presented, it would be extremely difficult for the grievant to prove that the illness was the result of a disciplinary action. In any case, such indirect consequences of disciplinary action are not within the parameters of remedial authority granted to Hearing Officers.

The grievant also requested the Hospital Director to evaluate whether the grievant’s supervisor should be allowed to continue in a supervisory role. Section 2.1-116.06.B of the Code of Virginia states, in pertinent part:

In this case, the Hearing Officer concludes that the determination of who shall be in supervisory positions is a matter that falls solely within management’s right to manage the operations of the agency. Therefore, a Hearing Officer has no jurisdiction to address this issue.

Finally, the grievant requested a new performance evaluation. Generally, performance evaluations are not grievable unless there is evidence that the evaluation was arbitrary or capricious. The grievant has neither alleged nor shown that this requirement has been met. Moreover, in promulgating Performance Planning and Evaluation Policy 1.40, the Department of Personnel and Training has provided in Section V.D., a procedure that must be followed when an employee disagrees with their performance evaluation. The grievant is encouraged to read this policy (available in Human Resources).

The disciplinary action of the agency is reversed.

The Group I Written Notice issued to the grievant on October 13, 2000 for unsatisfactory job performance is VACATED. The Group I 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 policy.

It is recommended that counseling with the grievant be conducted and that such counseling be documented in writing and retained in his supervisor’s file, pursuant to Section VI.C.2 of the Standards of Conduct.

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.

David J. Latham, Esq.
Hearing Officer