Issue: Group III Written Notice with 10 Day Suspension (sleeping on the job); Hearing Date: March 12, 2001; Decision Date: March 14, 2001; Agency Name: Department of Mental Health, Mental Retardation and Substance Abuse Services; AHO: David J. Latham, Esq.; Case No. 5132

In re: Grievance No: 5132

Hearing Date: March 12, 2001
Decision Issued: March 14, 2001

Due to unavailability of representatives, the hearing could not be docketed until the 31^st day following appointment of the hearing officer. The hearing then had to be postponed for one week due to witness unavailability and was redocketed for the 38^th day following appointment.

Grievant
Attorney for Grievant
Two witnesses for Grievant
Representative for Agency
Legal Representative for Agency
Three witnesses for Agency

Did the grievant’s actions on October 9, 2000 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 III Written Notice issued on October 19, 2000 because he had been found to be sleeping on the job. The grievant also was suspended for a period of ten days from October 20 through November 3, 2000 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 for nearly 29 years. He is currently a supervisor and has approximately 35-40 staff reporting to him. This staff cares for approximately 170 mentally and physically retarded clients located in five buildings. He has received good performance appraisals.

In 1991, the grievant was diagnosed with obstructive sleep apnea (OSA). The grievant’s supervisor was aware that the grievant had subsequently obtained a continuous positive airway pressure (CPAP) machine, and was also aware that this device is utilized in the treatment of OSA. The grievant also has other medical problems including a ventral hernia, high blood pressure, a blood sugar problem, depression and a weight problem.

In August 1999, the grievant had been given a Group I Written Notice for sexual harassment of two subordinate female staff members. In addition, the grievant was reassigned from second shift to the third shift (10:45 p.m. to 7:45 a.m.) in order to separate him from the complainants. Because of his known apneic condition, he was given the opportunity to take either first (day) shift or third shift. The grievant felt that third shift would be better for his own personal situation. He recognized that working the third shift would be a challenge because of his apnea but nonetheless felt that he could work that shift without problems.

On a number of occasions thereafter, the Center Director received complaints from the grievant’s subordinates that the grievant was sleeping on the job. Because the complaints were usually after the fact, and because the Center Director worked the day shift, he had not actually observed the grievant asleep. The Director and the grievant’s supervisor did, however, verbally counsel the grievant on more than one occasion about the need to stay alert and awake, and told him that if he were found asleep on the job he would be subject to the same consequences as any other employee. In addition, the Director offered special accommodations to the grievant in an effort to accommodate his medical conditions. If the grievant felt too tired to work because of poor sleep, he was allowed to use leave time without requesting advance approval. In addition, if the grievant became tired during a work shift, he was allowed to use unscheduled leave to go home. The grievant utilized these accommodations on several occasions.

At about 6:00 a.m. on October 9, 2000, the Center Director received a telephone call at his residence from one of the grievant’s subordinates. The caller stated that another supervisor had paged the grievant but received no response. The caller said he believed the grievant had been in the employee bathroom of Building 11B for a long time and appeared to be asleep. The supervisor dressed and drove to the work site, arriving there about 6:20 a.m. He listened outside the bathroom pointed out by the staff and heard loud snoring sounds. The supervisor checked the time and stood outside the bathroom for ten minutes. During this time, the supervisor heard continuous, loud snoring sounds. At 6:30 a.m., the supervisor tried to open the door but found it locked. He knocked on the door and called out to the grievant. The snoring sounds ceased, the sounds of belt buckling were heard and the grievant then looked out the door. The supervisor observed obvious signs of sleepiness in the grievant’s face. The supervisor asked the grievant whether he had been sleeping and the grievant responded, "Maybe I dozed off." The grievant then asked if he was in trouble.

On October 14, 2000, the grievant wrote a memorandum to his supervisor in which he stated, "I am unable to say whether I was asleep on the morning of October 9, 2000." The grievant contended that he had entered the bathroom at about 6:00 a.m., stayed there five minutes, came out for five minutes and then returned to the bathroom at about 6:10 a.m. He believes the Center Director knocked on the door at about 6:25 a.m.

The uncontroverted testimony of the agency head established that the discipline meted out for sleeping on the job is the same for all employees – a Group III Written Notice and 10 days suspension. Although mitigating circumstances are reviewed in each case, as they were in this case, the discipline has been the same for all offenders. The agency has an average of three to four such cases per year. The grievant has participated in counseling subordinates about sleeping on the job.

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 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.h 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 sleeping during work hours.

The agency has demonstrated, by a preponderance of the evidence, that the grievant was sleeping during work hours. Even by the grievant’s conservative estimate of the times, he was in the bathroom for an unusually long period of time. The Center Director testified credibly that he listened to the grievant snoring loudly for a full ten minutes before finally having to wake him. The grievant acknowledged that he may have "dozed off." When the grievant opened the door, his face reflected an appearance of one who has been sleeping. Further, it is not likely that the grievant would ask his supervisor, "Am I in trouble?" if he did not realize that he had been sleeping. Finally, it is unrebutted that the Center Director was called to the facility by a subordinate who knew the grievant was sleeping in the bathroom. The weight of the evidence is sufficient to conclude that the grievant was sleeping in the bathroom for a minimum of ten minutes, and more likely than not, for up to 30 minutes.

The grievant is a supervisor with responsibility for a large group of subordinates and a very large client population. He has been involved in counseling subordinates about sleeping on the job. As a supervisor with significant responsibility, he is expected to set an example for the 35-40 people he directly supervises. If the grievant is allowed to sleep during work hours, his subordinates may see no reason why they shouldn’t be allowed to do likewise.

The grievant argues that sleep apnea qualifies him as an "individual with a disability" pursuant to the Americans with Disabilities Act (ADA) of 1990.¹ Viewed in the light most favorable to the grievant, the evidence suggests that the grievant has a respiratory condition that affects a major life activity (breathing), and that this impairment substantially limits breathing during sleep. Based solely on this cursory assessment, it is possible that the grievant might qualify as an individual with a disability. However, it is neither appropriate nor necessary to conclude whether the grievant actually meets the ADA definition. Even if the grievant qualifies as an individual with a disability, the ADA requires an examination of whether a reasonable accommodation can be made, and what constitutes a "reasonable" accommodation.

In this case, the agency had already made special accommodations for the grievant by permitting him to leave early or not report for work at all, if he felt fatigued secondary to disruptive apneic episodes. The ADA provides that any accommodations made by an employer cannot be such as to impose an "undue hardship" on the business of the employer. Allowing the grievant to sleep at work would clearly be both unreasonable and an undue hardship because the grievant would not be fulfilling the functions (supervision and oversight of 40 staff and 170 clients) for which he is being paid. Moreover, the ADA makes clear that if an individual cannot perform the essential functions of a job, he may not be qualified for the job.

The grievant avers that he had presented to his supervisor a letter from his physician dated August 19, 1999 regarding the doctor’s recommendation that he not work third shift. The supervisor does not recall receiving this letter until November 27, 2000. However, whether the letter was received in 1999 or 2000 is a red herring. Even in the absence of this letter, the supervisor was aware of the grievant’s apnea condition, made accommodations and further offered the grievant the opportunity to work on first shift. It was the grievant’s decision to refuse this offer. The supervisor could have done no more even if he had received the letter in 1999.

Grievant also argued that the agency did not thoroughly investigate this case because interviews were not conducted with subordinates of the grievant. The agency provided a credible reason for keeping this case low profile. It was apparent to the Center Director that some of the grievant’s subordinates did not want to be identified as "whistleblowers." He therefore, sought to shield those people by taking it upon himself to become the individual who heard the grievant snoring and then reported him for sleeping.

The grievant argues that his years of service should mitigate his offense and that he should be given a 10-day suspension. While the grievant is a long-term employee, the agency has consistently applied uniform discipline in sleeping cases because of the seriousness with which this offense is viewed. The grievant has not demonstrated that his situation is significantly different from others so disciplined who may have also had many years of service.

The disciplinary action of the agency is AFFIRMED.

The 10-day suspension and the Group III Written Notice issued to the grievant on October 19, 2000 are upheld. The Written Notice shall remain in the grievant’s personnel file for the length of time specified in Section VII.B.2.c 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