Issue: Group III Written Notice with 10-Day Suspension (inappropriate interaction with another employee [threatening]); Hearing Date: February 22, 2001; Decision Date: February 26, 2001; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; AHO: David J. Latham, Esq.; Case No. 5131

DEPARTMENT OF EMPLOYMENT DISPUTE RESOLUTION

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case No. 5131

Hearing Date: February 22, 2001
Decision Issued: February 26, 2001

APPEARANCES

Grievant
Representative for Agency
Three witnesses for Agency

ISSUES

Did the grievant’s telephone call to another employee on November 7, 2000 constitute a threat so 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?

FINDINGS OF FACT

The grievant filed a timely appeal from a Group III Written Notice issued on December 28, 2000 because she threatened a fellow employee during a telephone call. The grievant also was suspended for a period of ten days from January 1 through January 12, 2001 as part of the disciplinary action. Following a denial of relief at each resolution step, the disciplinary action 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 laundry worker for 13 years. Prior to this disciplinary action, the grievant has generally been considered a good employee of the agency, notwithstanding an attendance problem in 1999.

The grievant’s sister has worked for approximately three years as a caregiver/companion for an elderly woman. As it happens, the elderly woman’s daughter-in-law is also an employee of DMHMRSAS and works as a medication assistant at the same location (but not in the same department)¹ as the grievant. However, prior to the hearing, the grievant and the elderly woman’s daughter-in-law (hereinafter referred to as "other employee") did not know each other and had never met. Further, the grievant did not know for whom her sister worked and, the other employee had no knowledge that her mother-in-law’s caregiver had a sister who worked for DMHMRSAS.

In September 2000, the other employee began to suspect that her husband might possibly be having a relationship with the grievant’s sister. The grievant’s sister denied any such relationship. During the next several weeks, harsh words were exchanged between the two women on at least two occasions, including negative comments about each other’s mother. The grievant’s sister was upset about the accusation and comments made by the other employee. On November 7, 2000, the grievant’s sister called the grievant at work. She explained what had occurred and suggested that perhaps the grievant could call the other employee and intercede to resolve the dispute. The grievant’s sister gave the grievant the name and telephone number of the other employee.

At about 10:00 a.m. on November 7, 2000, the grievant called the other employee. When the other employee answered, the grievant did not identify herself or explain the purpose of her call. Instead, the grievant immediately asked the other employee "Why are you talking about my mother?" The grievant then said "Your mother is dead, and you and your son are next."²The grievant then hung up the telephone. After making the telephone call, the grievant had some time to think and realized that "making the call was wrong."³

The other employee was fearful for the safety of her mother and son; she immediately drove 13 miles to her mother’s home to verify that the mother and son were safe. She then returned to her own home. The other employee has "Caller ID" and was able to ascertain the telephone number from which the grievant had called. She called the number at about 11:00 a.m. and asked where the telephone was located. The grievant answered the telephone but did not recognize who was calling and she responded that the telephone was located in the laundry. The other employee then terminated the conversation.

The other employee then talked with a friend about this entire situation. At this point, the other employee still did not know where this laundry was located. It was then decided that the friend would call the telephone number and seek more information about the location. She did so and was able to determine that the laundry was located at the DMHMRSAS facility. Once the other employee determined that the call came from the DMHMRSAS facility, she notified the facility director. The matter was then assigned to the facility’s Chief of Police for investigation. As a result of the investigation, it was determined that the grievant was working in the laundry at the time of the telephone call. When confronted, the grievant acknowledged that it was she who had called the other employee. The grievant cooperated with the investigation and offered to apologize to the other employee if she had been offended during the telephone conversation.

The investigation into this incident was completed in early December 2000. Subsequently, the grievant was offered an opportunity to respond to the charge. The grievant submitted a written statement acknowledging that she had made the telephone call but denying that she had made any threats. Because of the serious nature of the threat, and the grievant’s record as a good worker, agency management deliberated at length regarding the appropriate corrective action. It ultimately concluded that the grievant should be retained as an employee, even though an offense of this nature can result in termination of employment. On December 28, 2000, the grievant received a Group III Written Notice and a 10-day suspension.

APPLICABLE LAW AND OPINION

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.⁴ 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.3 of the Commonwealth of Virginia’s Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60 provides that Group III offenses include:

On May 17, 2000, the Facility Director published a written policy regarding Workplace Violence. The policy states, in pertinent part:

Section 18.2-427 of the Code of Virginia addresses the use of profane, threatening or indecent language over public airways and states:

The agency has borne the burden of proof to show, by a preponderance of the evidence, that the grievant threatened an employee of a state agency in violation of the Standards of Conduct. It has also demonstrated that the threat occurred in the workplace in violation of the agency’s Zero Tolerance policy on Workplace Violence.⁵ The burden of proof has been met for four reasons. First, the grievant has acknowledged that she did place a telephone call to the other employee on November 7, 2000. Second, the grievant had reason to be angry with the other employee because the grievant felt that her own sister had been falsely accused and, because the other employee had made inappropriate comments about the grievant’s mother. Third, the grievant felt remorseful soon after making the call, acknowledging that making the telephone call was "wrong."

The fourth, and most probative, piece of evidence is the fact that, at the time the other employee filed her complaint, she had no knowledge of who had made the threatening telephone call. When she reported this matter to the Facility Director, the other employee had been able to ascertain only that the telephone call had originated in the facility laundry; she did not know the identity of the caller. This lends substantial credence to the other employee’s assertion that she did, in fact, receive a threatening telephone call. If the other employee had been attempting to falsely accuse the grievant, she would have identified the grievant when she reported the call to the Facility Director. When she did report the call, she had no assurance that the caller’s identity would ever be learned. Therefore, the other employee’s report that the telephone call was threatening is highly credible.

As noted earlier, while acknowledging that she made the telephone call, the grievant has consistently and adamantly denied that she made a threat. For the reasons just stated, the Hearing Officer must conclude that, more likely than not, the grievant did make the threat attributed to her by the other employee. However, assuming for the sake of argument that the grievant did not specifically make the statement that the other employee’s mother was dead and that she and her son were next, the grievant’s telephone call nonetheless constituted a threat. This conclusion is reached because the other employee actually believed that she had been threatened. Thus, whatever the words used by the grievant, the words were such as to make the other employee feel threatened. The mere fact that the grievant was making an anonymous telephone call, in and of itself, could cause the other employee to feel threatened. The additional fact that the grievant then used a demanding tone of voice in speaking to the other employee could reasonably cause her to feel even more threatened.

The grievant alleges that the other employee had told the grievant’s sister that she was going to get even with her even if she had to go through the family. Thus, the grievant contends that the other employee has fabricated the allegation of a threat in order to get even with the grievant’s sister. However, even if the other employee had said she would try to get even by going through the family, she could not have done so by reporting that she had received an anonymous telephone threat.

The grievant has offered no mitigating circumstances for her actions. Instead she has chosen to maintain that she did not make a threat. The grievant may believe that her telephone call did not constitute a threat but the fact is that the recipient of her telephone call perceived the call as threatening. Given the evidence in this case, the other employee’s version of events must be given substantial weight in arriving at this decision.

The offense of threatening an employee is a very serious offense that cannot be taken lightly. The Commonwealth has properly categorized threatening as a Group III offense. Thus, the agency has utilized the appropriate level of disciplinary action in this case. The Hearing Officer also concludes that a suspension of 10 days was a measured and appropriate level of discipline in view of the fact that the grievant is a long-term employee with a generally good record.

DECISION

The disciplinary action of the agency is affirmed.

The Group III Written Notice issued to the grievant on December 28, 2000 is upheld and will remain in the grievant’s personnel file for the length of time specified in Section VII.B.2.c of the 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.

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.

Judicial Review of Final Hearing 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