Issue: Group II Written Notice (failure to follow a supervisor’s instructions, perform assigned work or otherwise comply with applicable established written policy); Hearing Date: February 27, 2001; Decision Date: March 6, 2001; Agency: Department of Corrections; AHO: David J. Latham, Esquire; Case No.: 5125

In the matter of Department of Corrections Case Number 5125

Hearing Date: February 27, 2001
Decision Issued: March 6, 2001

Because of conflicting schedules of the parties, the hearing could not be docketed until the 29^th day following appointment of the Hearing Officer. The file contained two Written Notices – one dated August 19, 2000 and the other showing a corrected date of September 18, 2000. The actual date of issuance was September 18, 2000.

Grievant
Representative for Agency
Three witnesses for Grievant
Three witnesses for Agency

Was the grievant’s conduct during several months in 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 September 18, 2000 because the grievant failed to follow supervisor’s instructions, perform assigned work or otherwise comply with applicable established written policy. Following denial of relief at the third resolution step in the grievance process, the agency head qualified the grievance for a hearing.

The Department of Corrections (DOC) (hereinafter referred to as "agency") has employed the grievant as a program support technician (personnel assistant) in the Human Resources office since December 1999. Previously, the grievant had been employed by another state agency as an office services specialist since 1994. The grievant certified on her application to DOC that she had experience and training in the CIPPS state payroll system, advanced leave and payroll, records management and, the Virginia Codes of Cumulative and Development in Workers’ Compensation Law.¹ The grievant’s job tasks and duties were processing employment applications (20%), payroll (20%), leave administration (20%), workers’ compensation (20%) and, file maintenance (20%).²

Soon after the grievant’s employment began, the supervisor noted that the grievant’s performance was below acceptable standards. On February 1, 2000, she gave a detailed, three-page memorandum to the grievant and one coworker explaining what was expected of them with regard to several specific areas of responsibility. On February 16, 2000, the supervisor gave the grievant a memorandum detailing concerns with the grievant’s performance. She noted particularly that supervisory follow-up was required to assure that the grievant completed tasks accurately and timely, that the grievant would misfile documents, become rude and insubordinate when receiving counseling and appeared to be unfamiliar with state policies for the use of leave time.

On February 21, 2000, the grievant wrote a memorandum to her supervisor in which she acknowledges that she was resisting her supervisor. In the memorandum the grievant also told her supervisor, "Monitoring my leave time is not your responsibility, it is mine."³

On May 5, 2000, the supervisor outlined in a memorandum to the grievant specific performance expectations and dates for completion of certain tasks. On June 2, 2000, the supervisor gave another memorandum to the grievant outlining specific expectations in the areas of grievances, work plan, workers’ compensation and the keying of leave. On June 5, 2000, following a meeting with the grievant, the supervisor gave her a detailed, five-page memorandum regarding specific expectations necessary for the grievant to accomplish in order to meet the standards for a Program Support Technician. The memorandum makes it clear that the grievant was still not able to perform her primary functions of employment, workers’ compensation, leave maintenance, payroll, filing, handling grievances and employment application procedures. The memorandum further provided the grievant with specific objectives, time frames and other expectations of the supervisor. On June 13, 2000 the grievant was reminded in writing by her supervisor that the grievant had not submitted her time sheets or P8s for the past two weeks. On July 7, 2000, the supervisor again advised the grievant in writing that she had not submitted all her time sheets, that her filing was not yet current, that workers’ compensation forms were late, and that other assignments had not been completed.

By August 16, 2000, the supervisor concluded that the grievant was not performing satisfactorily in three of the five major areas of responsibility – payroll, leave administration and workers’ compensation. The supervisor detailed the grievant’s shortcomings in a five-page memorandum noting that leave maintenance keying was not being timely completed, liability reports were inaccurately keyed, leave registers were not timely distributed, the supervisor was not kept informed on worker’s compensation activities, the grievance process was changed contrary to instructions, the grievant’s work area was disorganized, and filing was done inaccurately and untimely. Most troubling were the supervisor’s observations regarding the grievant’s failure to follow supervisory instructions regarding procedures and methods of organization and, her refusal to comply with supervisory requests and suggestions.

Additional documentation from the supervisor on August 18, 2000 notes that despite the grievant’s contention that filing was current, she had not completed the filing of medical documents, timesheets and leave activity reporting forms. On September 6, 2000, a coworker documented the grievant’s recalcitrant attitude in a memorandum to the assistant warden. During a meeting of the human resources staff, the coworker characterized the grievant as "overtly hostile" to the supervisor and noted that the grievant refused to make eye contact with the supervisor even when directly asked questions by the supervisor. The grievant’s behavior during the meeting was summarized as counter-productive to the meeting’s purpose.

The grievant failed to follow proper procedure in keying leave activity reporting forms. The person who keys leave into the computer system is required to sign (or at least initial) and date the form after keying. One of the purposes of signing is to prevent keying that form a second time. The grievant regularly failed to sign and date leave forms after she keyed them, despite having been repeatedly told to do so by her supervisor. This resulted in double keying of many leave forms, and upset many employees who were being charged with leave they did not take. In addition, double keying caused extra time and work to correct the errors and bring leave balances back to the correct level. Nearly one third of the employees at the agency have registered complaints in the last year regarding leave problems, most resulting from miskeying. However, a small portion of the errors occurred when supervisors erroneously submitted duplicate leave forms to Human Resources.

The grievant failed to timely submit workers’ compensation claims to the insurance carrier. The DOC requirement is that such claims be submitted within three working days of receipt. State standards (for which the agency is held accountable on audits) require that the claims be submitted within 10 working days. The grievant was aware of these requirements. The grievant frequently submitted claims well beyond the 10-day limit.

The grievant failed to promptly forward grievances to the appropriate people on several occasions. Complaints were received from four people during the month of August that they had submitted grievances to the grievant and that the paperwork either had not been forwarded to the correct person or had not been forwarded at all. Over several months, the grievant demonstrated a fairly consistent pattern of failing to close grievances on a timely basis.

Three employees filed complaints that their credit ratings had been adversely affected because the grievant had not timely filed bills for health insurance claims. The employees affected had promptly given their bills to the grievant but she failed to submit them to the insurance carrier within a reasonable time.

On several occasions, the supervisor needed certain documents because of employee inquiries. When the grievant was asked for the documents, she indicated she did not have them. Subsequent searches of the office revealed that the grievant did have the documents but that she had either misfiled them or had forgotten that she had them. These problems were attributable to the grievant’s lack of organization and improper filing. One witness, whose testimony was unrebutted, estimated that 95 percent of all missing documents in Human Resources were found in the grievant’s desk or filing areas.

Prior to the grievant being hired, the Human Resources office had one supervisor and two personnel assistants. Those three people maintained all functions and paperwork on a current basis; there were no backlogs of work at the time the grievant was hired. The grievant was an addition to the office. The grievant nonetheless was unable to keep her work current despite having less work to do than had either of the other personnel assistants prior to the grievant’s arrival.

Quarterly performance appraisals reflect that from the beginning of her employment, the grievant demonstrated inability to follow instructions, a resistance to authority, untimely completion of tasks and an argumentative attitude.⁴ These deficiencies continued and the supervisor further observed that the grievant required significantly more time to complete simple tasks than her coworkers, misinterpreted conversations, became hostile towards coworkers, other employees and her supervisor when confronted and, had difficulty in accepting responsibility for her behavior.⁵ The same types of behavior and deficiencies were noted in the July 2000 quarterly performance progress review.

The record reflects that, in addition to the grievant’s five years of experience at another state agency, the grievant participated in Human Resource training in January 2000, a four-day Human Resource training class in March 2000 and time management training in June 2000. The Human Resources supervisor conducted regular meetings (usually monthly) with the staff to assure dissemination of information and expectations. The grievant was present for these meetings.

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 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 agency has borne the burden of proving, by a preponderance of the evidence, that the grievant failed to follow a supervisor’s instructions, failed to perform her assigned work and failed to comply with applicable established written policy. The facts recited above demonstrate that the grievant, by her own admission resisted supervisory authority and instructions despite repeated memoranda, meetings and counseling by the supervisor. Further, the grievant failed to perform assigned work despite clear evidence that she had ample time within which to accomplish the responsibilities assigned. Based on the repeated memoranda from her supervisor regarding expectations, it must further be concluded that she failed to comply with those written expectations and directives. Not only is the agency’s evidence alone sufficient to reach these conclusions but the grievant’s own witnesses tended to corroborate the agency’s evidence in several key respects.

The burden of proof now shifts to the grievant to demonstrate mitigating circumstances, if any, to explain her actions. The grievant contends that her supervisor treated her in a harsh and demeaning manner, gave her negative criticism and berated her in front of others. The preponderance of evidence, including the agency’s own witnesses, establish that the grievant’s supervisor was a demanding and unpleasant supervisor.⁶ Nonetheless, the grievant’s two coworkers, as well as the grievant’s own witness, testified that they were able to perform their responsibilities satisfactorily notwithstanding the high expectations of the supervisor.

The grievant argues that others keyed in leave activity reporting forms. However, the preponderance of evidence established that the grievant was the only person responsible for keying leave forms. The only occasion when others keyed leave occurred when the grievant was discovered to have a substantial backlog of work. Then, on a few occasions, a coworker keyed leave to help bring the grievant current in her keying.

The grievant also contends that there was a backlog of work when she was hired. However, the weight of the evidence from multiple witnesses establishes that work was current when the grievant was hired. One of the grievant’s witnesses, a former employee, stated that all work was current when she left in November 2000. Moreover, the grievant stated in a January 5, 2000 departmental meeting that all keying was then current.⁷ If work was current as of that date, any backlogs that developed subsequent to January were the grievant’s responsibility. Workers’ compensation bills were submitted to human resources after the grievant was hired for injuries incurred by employees before the grievant was hired. However, this is a normal occurrence with workers’ compensation claims and does not constitute a backlog of work.

The grievant contended that she was interrupted so frequently by her supervisor that she could not complete her work. However, the credible testimony of the grievant’s two coworkers and the grievant’s own witness established that the supervisor’s interruptions were infrequent and did not prevent the timely completion of work. Grievant did establish that, on one occasion, the supervisor was pointing her finger at the grievant while giving her an instruction. However, the supervisor immediately ended the conversation when another employee walked into the office. The grievant’s witness, who had worked in Human Resources previously, said that although the supervisor was demanding, the witness was able to stay current with her work.

In summary, the agency has demonstrated that the Written Notice was justified by the grievant’s failure to follow instructions, do her assigned work and comply with written policy. The grievant has not demonstrated sufficient mitigation to overcome her actions. Moreover, although not charged with insubordination, the grievant’s attitude toward her supervisor is corroborative of the grievant’s resistance to authority.

The disciplinary action of the agency is hereby affirmed.

The Group II Written Notice issued on September 18, 2000 for failure to follow a supervisor’s instructions, perform assigned work or otherwise comply with applicable established written policy is upheld. The Written Notice shall be retained in the grievant’s personnel file pursuant to the guidelines contained in Section 5-10.19.A of the DOC 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.

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