In the matter of Department of Corrections Case Number 5130

Hearing Date: March 1, 2001
Decision Issued: March 2, 2001

An experienced organizing director of the American Federation of State County and Municipal Employees (AFSCME) represented the grievant during this hearing. The grievant elected not to testify during the hearing. The Hearing Officer advised the grievant and his representative that the grievant was free to make such a decision. However, the Hearing Officer also informed the grievant that by failing to rebut the agency’s evidence and testimony, it might be necessary to make inferences that could be unfavorable to the grievant. The grievant and his representative considered this and the grievant continued to waive his right to testify in his own behalf. With this knowing waiver of rights by the grievant, the hearing continued to a conclusion.

Grievant
Representative for Grievant
Assistant Warden
Legal Representative for Agency
One witness for Grievant
Four witnesses for Agency

Did the grievant’s actions on November 20, 2000 warrant disciplinary action under the 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 III Written Notice issued on November 29, 2000 for threatening or coercing persons associated with a state agency. He also appealed from a second Group III Written Notice issued on November 29, 2000 for refusal to obey instructions which could result in a weakening of security. The grievant was suspended for a period of 30 workdays and was discharged during the suspension period. Following a denial of relief at each resolution step, the Written Notices and discharge from employment were upheld. The agency head subsequently qualified the grievances for a hearing.

The Department of Corrections has employed the grievant as a correctional officer since 1994. His two most recent performance evaluations indicate that he met all expectations.

During the morning of November 20, 2000, the grievant visited a personnel assistant to pick up his paycheck. The personnel assistant advised the grievant that the paycheck was not yet available.¹ The grievant responded in a joking and lighthearted way, with a little laugh, that if they didn’t have a check for him he could "go postal." The personnel assistant responded in kind with a joking remark to the effect of, "Please, not this morning; I’m too busy." The grievant made his remark in a normal conversational tone and volume. He did not threaten the personnel assistant in any way. The personnel assistant did not feel threatened and, in fact, took the remark as just casual banter. She thought no more about the remark until her supervisor asked her about it later that afternoon. There is no evidence that the grievant intended his remark to be threatening.

Another personnel assistant in an office next door avers that she did not hear any of the conversation between the grievant and the first personnel assistant but did hear the words "go postal." Several hours later, she mentioned this incident to the Human Resource Manager when she came into the personnel assistant’s office. The Manager asked both personnel assistants to write their recollections of the incident. The second personnel assistant confirmed that the grievant spoke in a normal tone and that his voice was not raised. She also did not feel threatened in any way. There were no other witnesses to this incident.

On November 20, 2000, the grievant was assigned to work in the Master Control Center. At about 6:35 a.m., a non-security employee of the Department of Correctional Education (DCE) arriving for work noticed that the door to the Master Control Unit was wide open and the grievant was making no effort to close it. The employee then walked to her office and realized her office door was still locked. She returned immediately to Master Control and noted that the door was open again. The employee proffered her chit through the wall slot to obtain the key to her office.²The grievant instead invited the employee to enter Master Control to exchange her chit for the corresponding key. As a non-security employee of DCE, there is no work-related reason for this person to be allowed into the Master Control Center. The employee went to her office, opened the door, performed a few chores and returned to Master Control a few minutes later to return her key. Upon returning, she again found the door to Master Control open.

The grievant had received a copy of, and was familiar with, Security Post Order # 5. Post Order # 5 states, in pertinent part:

15. Keep the entrance door to the Master Control Center shut and locked except while exiting or entering.

The grievant’s Position Description, which he signed on May 19, 1998, states that the chief objective of his position is:

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.³The 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.

The Department of Corrections (DOC) has promulgated its own Standards of Conduct patterned on the state Standards, but tailored to the unique needs of the Department. Section 5-10.17 of the DOC Standards of Conduct addresses those offenses deemed to include acts and behavior of such a serious nature that a first occurrence should normally warrant removal from employment. Section 5-10.17.B lists examples of Group III offenses including:

12. Threatening or coercing persons associated with any state agency (to include employees, supervisors, patients, visitors, students, etc.)

16. Refusal to obey instructions which could result in a weakening of security.

The agency has not borne the burden of proof to show, by a preponderance of the evidence, that the grievant either threatened or coerced either of the personnel assistants who heard his remark. The uncontroverted testimony of both agency witnesses establishes that there was nothing about the grievant’s remark that they understood to be a threat to them or to anyone else. Neither witness felt threatened by the remark in any way. Neither witness even bothered to mention the remark until later in the day when the Human Resource Manager came to the second personnel assistant’s office. No testimony or evidence was presented to establish that the grievant intended his remark as anything other than a casual expression of disappointment that his check was not ready at that time. No testimony or evidence was proffered to show that the grievant has ever threatened anyone in the past. In summary, there is no evidence to show: 1) that the grievant intended to threaten anyone, 2) that either witness felt threatened or, 3) that any of the three people believed it was anything other than a joking comment.

However, the Hearing Officer will take administrative notice that, in recent years the phrase "go postal" has taken on a new and very sinister connotation. The tragedies that have occurred in the U.S. Post Office, as well as in private industry involving the indiscriminate shooting and killing of employees have given the term an entirely new meaning. In fact, the term has become as inflammatory as using the word "bomb" in an airport terminal. Because both terms immediately conjure scenes of death and destruction in the mind of listeners, people hearing such comments are often alarmed and frightened. In an earlier day, yelling "fire" in a crowded theater was equally reviled. The use of such terms in certain situations is incredibly bad judgement. In this case, the grievant used bad judgement in using this term, even though he intended no threat and even though those hearing the remark did not feel threatened.

Nonetheless, the issue herein is whether the grievant actually "threatened" anyone. It must be concluded that he did not. The grievant did not intend to threaten and, most significantly, there was no perception of a threat by those hearing the remark. In making an objective evaluation of whether a threat occurred, one cannot be swayed by visceral response to certain words without considering the entire context of the situation. In this case, the facts surrounding the use of the inflammatory term demonstrate that the requisite elements of a threat – intent, and perception of a threat by the recipient – are not present.⁴ If the agency had been able to demonstrate that the grievant intended to threaten, or even that the personnel assistant had felt threatened as a result of the remark, disciplinary action would be appropriate in this case. Without such evidence, the most that can be concluded is that the grievant used bad judgment for which he should certainly be counseled.

The agency has demonstrated, by a preponderance of the evidence, that the grievant did violate duty # 15 of Post Order Number 5. The uncontroverted and credible testimony of the agency’s witness established that, on three separate occasions, she found the door to the Master Control Center wide open. Moreover, in further violation, the grievant invited the employee to enter the control center to exchange her chit for a key. This exchange could, and should, have been accomplished through the control center’s wall slot that is designed and intended for this purpose. The grievant failed to testify and failed to present any witnesses to rebut the agency’s evidence on this charge.

Consideration must now turn to the appropriate level of discipline for this rule infraction. The agency presented uncontroverted testimony regarding the potential seriousness of leaving the Master Control Center door open. The agency contends that the offense amounts to a refusal to obey instructions that could result in a weakening of security – a Group III offense. A "refusal to obey" necessarily infers that the grievant was actively refusing an order given to him. However, the agency has not shown that the grievant was "refusing" to close the door. Rather, the evidence shows that the grievant failed to close and lock the door, as required in the established written policy (Post Order # 5).

If a superior officer had come to the Master Control Center, had seen the door open and then directed the grievant to close and lock it, the grievant’s refusal to do so would clearly be a Group III offense. In the instant case, however, the grievant was not refusing to close and lock the door. Instead, he failed to comply with the written policy requiring him to keep the door closed and locked. There is no explanation as to why the door was open because the grievant failed to testify and the agency has presented no evidence on this issue. Given the available evidence, this infraction must be deemed a failure to comply with applicable established written policy – a Group II offense. A suspension of 10 workdays without pay is reasonable for this infraction.

The grievant filed five grievance Form A documents, all of which stemmed from the two Written Notices issued on November 29, 2000. The grievant raised various issues in his grievances including: unfair application of policies, rules, and regulations; retaliation; an allegation that his life had been placed in jeopardy; violation of confidentiality; favoritism; racial discrimination and; harassment. However, the grievant refused to testify during the hearing and presented no testimony or evidence to support any of these seven assertions. For reasons discussed above, and based on evidence presented by the agency, the Hearing Officer concludes that the disciplinary actions taken by the agency pursuant to the Standards of Conduct policy will require modification. However, there was no evidence presented during this hearing to support the remaining six allegations. Therefore, other than the reduction in disciplinary action, the grievant has not provided the Hearing Officer any basis to address the remaining six allegations.

The disciplinary action of the agency is reversed in part and modified in part.

The Group III Written Notice issued to the grievant on November 29, 2000 for threatening or coercing is VACATED. This Written Notice shall be removed from the grievant’s personnel file and retained by the agency pursuant to Section 5-10.19.B. of the DOC Standards of Conduct.

The Group III Written Notice issued to the grievant on November 29, 2000 for refusal to obey instructions is VACATED. This Written Notice shall be removed from the grievant’s personnel file and retained by the agency pursuant to Section 5-10.19.B of the DOC Standards of Conduct.

The agency shall prepare a Group II Written Notice for failure to follow applicable established written policy by leaving the Master Control Center door open and unlocked on November 20, 2000. In addition, a suspension of 10 workdays without pay shall be imposed. The grievant shall sign the Written Notice, which shall be retained in his personnel file for the period specified in Section 5-10.19.A of the DOC Standards of Conduct.

Because the remaining disciplinary action does not support a penalty of discharge from employment, the grievant shall be reinstated as an employee and shall be awarded full back pay (minus the 10 workday suspension) pursuant to Section IX.B.2.a of the Commonwealth of Virginia Standards of Conduct and Section 5-10.20 of the DOC Standards of Conduct.

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 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