In the matter of Department of Corrections Case Number 5123

Hearing Date: February 15, 2001
Decision Issued: February 20, 2001

Grievant
Representative for Grievant
Representative for Agency
Six witnesses for Agency
One witness for Grievant

Was the grievant’s conduct on September 21, 2000 subject to disciplinary action under Procedure Number 5-10 of the Department of Corrections Procedures Manual? 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 19, 2000 because she failed to follow a supervisor’s instructions to participate in a meeting with a supervisor. Following unsuccessful efforts to resolve the matter within the agency, the agency head qualified the grievance for a hearing.

The Department of Corrections (hereinafter referred to as "agency") has employed the grievant as a correctional officer for a total of five years. The grievant is considered a very good correctional officer who has received above average performance evaluations. Prior to this time, the grievant has not received any disciplinary action. The warden also observed that the grievant has been a dependable correctional officer.

On September 15, 2000 another correctional officer relieved the grievant at the end of her shift. The grievant transferred a set of keys for the ballpark to the other correctional officer. When keys are exchanged during a shift change, the officer receiving the keys gives the other officer a "chit"¹ in return. The officer receiving the chit should then turn the chit in to master control upon her departure to reflect that the keys had been transferred to the relieving correctional officer. In this instance, the relieving officer forgot to give the chit to the grievant. The relieving officer also left at the end of her shift without returning the keys to master control. When this was discovered the following morning, the relieving officer was contacted at home and she promptly returned the keys to master control.

Missing keys in a correctional facility are always cause for concern. In this case, the ballpark is a sub-perimeter area adjacent to the containment fence. Had the keys fallen into the hands of inmates, a potential existed for unauthorized access to an area that could enhance the possibility for escape. This incident was considered sufficiently serious to warrant investigation by the Watch Commander. On September 21, 2000, the Watch Commander – a captain – and his lieutenant met with the relieving correctional officer in the Watch Commander’s office. Following a discussion about the incident, the relieving officer was verbally counseled and the counseling was documented in writing. The relieving officer was very forthright about her culpability in this incident, expected to be counseled and took no issue with her superior’s handling of the incident.

Following that meeting, the lieutenant telephoned the grievant at about 10:00 a.m. and directed her to report to the Watch Commander’s office. The grievant understood from her conversation with the lieutenant that she was being summoned because of the September 15^th ballpark keys incident. It was the captain’s intent to ask the grievant for her version of what had occurred and then to give her verbal counseling about the incident (unless her explanation had caused him to determine that such counseling was not warranted). When she arrived at the office, the grievant immediately told the captain that she wanted a witness; she turned and left the office without permission. Approximately one minute later the grievant returned, accompanied by a fellow correctional officer who worked just down the hall from the Watch Commander’s office.

At this point, the captain explained to the grievant that it was neither policy nor practice to have a coworker as a witness for such a meeting. The grievant reiterated her demand, stating that if the captain had a witness (the lieutenant), she also wanted a witness. The captain again explained that it was inappropriate to have a fellow correctional officer as a witness during a counseling meeting. The grievant continued to renew her request for a witness of her choosing and the captain continued to deny the request. It became apparent that the discussion was at an impasse and the captain told the grievant to return to work.

The captain then met with the Assistant Warden for Operations (AWO) to discuss the grievant’s request for a witness during the counseling meeting. The AWO agreed with the captain that grievant’s request for a witness was inappropriate and contrary to both policy and past practice. At approximately 1:00 p.m., the captain again summoned the grievant to his office. When she arrived at the entrance to the office, she said she would not participate without a witness of her choice. She again left without permission to seek the same witness she had brought earlier that day. As it happened, that particular individual was unavailable (out of the area on break) and the grievant returned unaccompanied to the Watch Commander’s office.

The grievant again expressed her unwillingness to proceed without her own witness. The captain again explained why it was not appropriate for an officer to bring a fellow officer of the same rank to a counseling session. The captain then suggested to the grievant that, if she wanted a witness, he would allow a supervisor (sergeant or higher rank) of the grievant’s choice to be her witness. The grievant rejected the captain’s offer and continued to insist upon having a fellow correctional officer of the same rank as her witness. Once again, the conversation went back and forth – the grievant reiterating her demand for her own witness, and the captain explaining why he could not permit that. After the conversation again reached a stalemate, the grievant asked if she were going to be "written up." The captain responded affirmatively. Because of the grievant’s recalcitrance, the meeting was unable to proceed to the keys issue. The captain then directed the grievant to return to work.

On September 17, 2000, the grievant and the other correctional officer who had been involved in the keys incident happened to meet in the Administration Building lobby. The grievant told the other officer that she did not have to sign or accept a write-up regarding the keys incident. On September 21, 2000, the grievant heard the radio call summoning the other correctional officer to the Watch Commander’s office. The grievant immediately called the other correctional officer and suggested she didn’t have to go the office.²

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:

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 5-10.16.B.1 of the Department of Corrections Procedures Manual provides that "Failure to follow a supervisor’s instructions, perform assigned work or otherwise comply with applicable established written policy" constitutes a Group II offense. The same standard is found in Section V.B.2.a of the Commonwealth of Virginia’s Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60.

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 her supervisor’s instructions. A supervisor in the grievant’s chain of command – a captain – instructed the grievant to participate in a counseling meeting with him and his lieutenant. The uncontroverted testimony established that the grievant made a concerted (and successful) effort to prevent that meeting from proceeding by her adamant and repeated insistence on having a witness of her own choosing. The grievant was given multiple explanations and multiple opportunities to drop her demand so that the meeting could proceed. She failed to relent and continued to insist that she be allowed a witness of her choosing. Because of her continuing recalcitrant attitude, the meeting could not proceed to the issue for which it had been convened.

The burden of proof now shifts to the grievant to demonstrate any mitigating circumstances. The grievant relies heavily on the definition of "counseling" found in Section 5-10.6 of the Department of Corrections Standards of Conduct policy, which states, in pertinent part:

1. Informal Discussion. Counseling typically consists of an informal discussion between an employee and his or her supervisor regarding problems with the employee’s work performance and/or behavior. The counseling discussion may or may not be documented in a written memorandum.

Grievant particularly notes that the above language includes the word "supervisor" in the singular which, she believes, means that only one person of supervisory authority should be present during the meeting.

Grievant also points to Section 5-10.11.B.1 of the Standards of Conduct policy, which states, in pertinent part:

1. Counseling refers to an informal discussion with the employee about a work performance or behavior problem which, if not corrected, could lead to disciplinary action. A counseling session should:

1. Be held in private.
2. Include an interchange between the supervisor and employee as to what course of action should be taken to improve performance or correct behavior. Goals and objectives may need to be established.

Again, grievant points to the singular form of "supervisor" and the "be held in private" language to bolster her contention that only one supervisor should be present during a counseling meeting. However, in making this argument, the grievant ignores the fact that her insistence upon having a fourth person (her own witness) present would have made the meeting less private rather than more private. Notwithstanding this obvious inconsistency in the grievant’s logic, the issue is deserving of further comment.

The Standards of Conduct policy is clear in emphasizing that discussions regarding work performance or behavior problems should, indeed, be private. However, the language used in the policy is subject to interpretation. Moreover, the language is not so specific as to preclude having more than one supervisor present during the discussion. While the focus of the interchange is a discussion between employee and supervisor, agency management may well determine that there are compelling reasons to require the presence of an additional supervisor.

In this case, the agency has offered cogent and logical reasons to include the lieutenant in this meeting. First, in the absence of the Watch Commander during a work shift, the lieutenant would become the acting watch commander and may have to carry out the same type of counseling session. The captain felt that it was important for the lieutenant to observe this meeting so that any future counseling performed by the lieutenant would be consistent with the captain’s counseling. Second, as the person with less supervisory experience, the lieutenant would benefit from observing the counseling as a training tool.

The Standards of Conduct policy does not address whether witnesses may be involved in counseling meetings. However, the policy does stress that the meeting should be private. This would preclude having present anyone of the same rank as the person being counseled. Allowing a coworker to know what one is being counseled for would eliminate any possibility of privacy being maintained.

Supervisors and managers of state agencies bear a substantial burden in carrying out the responsibilities of their positions in a fair and honest manner. There must exist a reasonable degree of trust between those being supervised and those responsible for managing. The legislature has enacted a statute regarding the grievance procedure. This statute recognizes the right of management to determine how to conduct, among other things, counseling meetings. It makes clear that the grievance procedure is not a mechanism to shift management and personnel decisions away from management when it states, in pertinent part:

Grievant also advanced the argument that, with two supervisors in the meeting, the two supervisors could lie about what occurred in the meeting, and she would be unable to rebut their statements unless she had a witness. However, the grievant had no reason to believe that this would occur. She had never been counseled by the captain or lieutenant and had no evidence that they had ever lied about anything she had said. Moreover, the grievant did not offer any evidence that the captain or lieutenant had ever lied about any counseling session with any employee. Thus, the grievant could not substantiate in any way her groundless suggestion that, for no reason at all, her supervisors might conspire against her.

The grievant contended that because she was told to return to work after twice going to the captain’s office, she was following the supervisor’s instructions.⁴ Grievant also focused on the fact that she actually entered the Watch Commander’s office, as opposed to standing at or outside the door. The implication is that her willingness to fully enter the office was tantamount to being willing to participate in the meeting. However, this symbolic gesture became meaningless when the grievant continued to insist upon having her own witness present before proceeding with the substantive discussion. Merely appearing at the meeting site is not following supervisor’s instructions when one refuses to allow the meeting to begin by insisting on a condition (insistence on one’s own witness) before the meeting can proceed.

Grievant also argues that confidentiality cannot be maintained when more than one supervisor is present in the counseling session.⁵ There is no doubt that the more people in a meeting, the more difficult it becomes to maintain confidentiality. However, supervisors and management are charged with the responsibility of maintaining confidentiality when dealing with sensitive matters such as discipline of subordinates. Supervisors are aware that their positions can be jeopardized should they violate that confidentiality. While such violations may sometimes occur, those being supervised should act on the assumption that their confidentiality will not be breached. If such a breach does occur, the matter should be reported to appropriate superiors so that disciplinary action can be taken against the violator.

The grievant’s conduct throughout this episode reflects a certain pattern that belies what she would have others believe was merely an innocent request for a witness. The grievant resisted the captain’s request to proceed with the counseling meeting. She similarly demonstrated an uncooperative attitude in refusing to sign the statement prepared by the investigator. This obstinacy surfaced again when the grievant was being questioned by the AWO and responded that she "had nothing further to say"⁶ when she could have provided an answer to the question. A fourth example was the grievant’s statement to the Chief of Security that she would repeat the behavior again if the same situation were to occur.⁷ This pattern of behavior is particularly puzzling in light of the otherwise excellent performance record established by the grievant during her five years with the agency. It suggests that there may be other factors affecting the grievant that require either introspection on her part or sharing of concerns with someone in whom she can confide.

The primary reason for issuance of the Written Notice was the grievant’s failure to follow her supervisor’s instruction to participate in a counseling meeting without imposing her own conditions as to who would participate in that meeting. A secondary issue was the grievant’s multiple conversations in which she attempted to persuade the other correctional officer to resist counseling. As there were no witnesses, the exact conversations cannot be determined, however, the Hearing Officer has concluded that it is more likely than not, that the grievant did make such persuasive attempts. The agency felt that these attempts rose to a level that could have fomented resistance to agency management and would, therefore, be inimical to the maintenance of the requisite level of discipline required within the correctional facility.

The Hearing Officer agrees that tight discipline is required in a correctional institution where the facility must be operated in a near-paramilitary fashion. On the other hand, employees do have the right to freedom of speech. Drawing a line between these two conflicting principles is not always easy. In this case, because there were no witnesses, it is difficult to conclude whether the grievant’s persuasive attempts were merely an expression of opinion or, as the agency believes, an attempt to interfere in the disciplinary process. Because the evidence is inconclusive, a Group II Written Notice based solely on these conversations would not be warranted. Nonetheless, it is prudent to suggest to the grievant that in the future, she should be more circumspect before engaging in such conversations.

The grievant has also suggested that the Written Notice was given to her in retaliation for having filed other grievances and a memo of concerns.⁸ Based on the testimony and evidence in this case, that assertion is spurious. But for the fact that the grievant refused to participate in the counseling session on September 21, 2000, and attempted to persuade another correctional officer to refuse participation, the Written Notice would not have been issued. The grievant has not proffered any testimony or evidence to support the allegation of retaliation.

Finally, it must be observed that the claimant had available to her alternative courses of action other than stubbornly refusing to proceed without her own witness. First, if she felt that she had a right to a witness, she could have requested to speak with the captain’s supervisor to clarify whether such a right actually existed. Second, if she felt intimidated by the presence of two supervisors, she could have spoken with the captain’s supervisor to ascertain whether this was an acceptable manner in which to conduct a counseling meeting. Third, she could have accepted the captain’s offer to permit her to select a supervisor of her own choosing to be her witness.

In summary, the agency has borne the burden of proof to show by a preponderance of the evidence either that the grievant refused to follow the direct and specific instructions of her supervisor. The grievant has not demonstrated sufficient mitigation to overcome her misconduct. Failure to follow a supervisor’s instructions is a Group II offense. Therefore, the agency has utilized the correct level of disciplinary action in this case. Further, the agency has acted appropriately in not imposing a suspension because of the mitigating factor of the grievant’s past above-average performance.

The disciplinary action of the agency is hereby affirmed.

The Group II Written Notice issued to the grievant on October 19, 2000 is upheld and will remain in the grievant’s personnel file for the requisite period of time specified in Section 5-10.19.A of the Standards of Conduct 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.

Section 7/2(d) of the Grievance Procedure Manual provides that 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