Hearing Date: February 26, 2001
Decision Issued: March 1, 2001

Grievant
Representative for Grievant
Deputy Commissioner for Agency
Legal Representative for Agency
Three witnesses for Grievant
Two witnesses for Agency

Did the grievant’s actions in connection with the replacement of a pager in December 2000 amount to inadequate or unsatisfactory work performance sufficient to 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 I Written Notice issued on December 21, 2000 for unsatisfactory or inadequate work performance. Specifically, the grievant is alleged to have failed to take the necessary actions to assure that the agency’s commissioner had 24-hour pager service.

The Virginia Department for the Aging (hereinafter referred to as "agency") has employed the grievant as an accountant for the past 24 years. The grievant’s position description lists a variety of work tasks and duties which are related to purchasing coordination (20%), processing and analysis of fiscal information (20%), processing payments into state accounting and control system (20%), agency telecommunications coordination (10%) and, a variety of several lesser functions (totaling 30%). The work tasks and duties section of the position description for telecommunications states:

The grievant’s performance plan lists as the fourth major job function – Agency Telecommunications Coordinator. The expectation for this function is:

The grievant signed her Performance Plan on December 9, 1999. Section D addresses the grievant’s Developmental Plan for the performance cycle from October 1999 through September 2000. This section contains the supervisor’s suggestions for enhancement of her performance during the new performance cycle. The first sentence in that section states:

One of the grievant’s responsibilities involves assuring that checks for registration at conferences are obtained and transmitted to the appropriate vendor prior to the conference. During September 2000, the agency’s commissioner attended an out-of-town conference. Upon arrival, the Commissioner was advised that she was not registered because her registration fee had not been paid. Although the Commissioner was ultimately able to attend the conference, she was embarrassed about this situation. Investigation revealed that the grievant had failed to mail the registration check to the conference vendor. When that check was finally located in a file drawer, several checks for donations that should have been previously deposited in the bank were also discovered. As a result of these problems, the grievant’s supervisor verbally counseled the grievant on October 3, 2000 and documented the counseling in writing.

On Thursday, December 14, 2000, the Commissioner’s pager was accidentally immersed in water. The pager was dried out and tested. It was determined that, although calls could be received, the number of the caller was not completely legible. On Friday morning, December 15, 2000, the Commissioner asked a Deputy Commissioner to obtain a new pager. The Deputy Commissioner took the defective pager to the grievant and asked her to obtain a replacement as soon as possible. The grievant, following the procedure she had used in the past, requested a new pager through the Department of Information Technology (DIT).² She utilized an on-line computer form that was transmitted to DIT that morning. At midday, when the Commissioner had not yet received her new pager, the Deputy Commissioner asked the grievant’s supervisor to immediately go to the local Metrocall³ office and obtain a replacement pager. He did so, and the Commissioner’s replacement pager was given to her by midafternoon.

The model of pager then being used by the Commissioner slides into a cradle that is affixed to the user’s clothing. The pager fits rather loosely in the cradle and it was this loose fit that had resulted in the pager accidentally sliding out of the cradle and into water. Concerned that there might be a repetition of this type of accident, the Commissioner requested a one-piece pager. The Deputy Commissioner then directed the grievant on the afternoon of Friday, December 15, 2000 to order a one-piece pager for the Commissioner as well as one for the Chief Deputy Commissioner.

Metrocall received the order on Monday, December 18, 2000. It prepared and activated two pagers and sent them to the grievant. Because the new pagers were given the same telephone number as the old pagers, activation of the new pagers resulted in deactivation of the old pagers at about 10:15 a.m. on December 18, 2000. The grievant received the new pagers on Tuesday morning, December 19, 2000. She immediately gave one pager directly to the Chief Deputy Commissioner. She gave the Commissioner’s pager to the Commissioner’s secretary. Because the Commissioner was unfamiliar with the new model pager, the Information Systems Manager for the agency was asked to show the Commissioner how to use the new pager. The Commissioner was unavailable due to meetings for the balance of Tuesday and it was Wednesday afternoon, December 20, 2000 before the Information Systems Manager could train the Commissioner.

During the course of that training, the pager was tested by calling the number. It was then realized that the old pager was not functioning. The Commissioner was very concerned and wanted to know when the old pager had been deactivated. The Commissioner is required to be available by pager on a 24-hour per day basis.⁴ When she learned that it had been deactivated on the morning of December 15, she realized that she had been without pager service for more than two days. Because the Commissioner is required to be available 24 hours per day, she felt that this lapse in service could have been another potential embarrassment to her.⁵

The Deputy Commissioner discussed this with the grievant. After a lengthy discussion, the grievant said she assumed that the old pager would be disconnected when the new one was activated. Subsequently, the Deputy Commissioner called Metrocall and was advised that an arrangement could have been made whereby the new pager would not be activated until the receiving party called in and requested the changeover be made. The grievant had not asked either DIT or Metrocall what she should do to assure that 24-hour coverage would be provided continuously during the period when the old pager was being replaced.

The Deputy Commissioner and the grievant’s supervisor concluded that disciplinary action should be taken against the grievant because she failed to do what was necessary to assure that 24-hour service was maintained on a continuous basis. Also considered was the fact that the grievant failed to show any remorse for this incident, but instead tried to shift responsibility to the Commissioner and the Systems Administrator. On Thursday, December 21, 2000, the grievant’s supervisor gave her a Group I Written Notice for inadequate or unsatisfactory work performance.

The paging services contract makes no mention of the procedure to be followed when a pager is damaged or broken. The DIT website on which the grievant placed the order for a pager has multiple pages. Prior to this incident, the grievant had not looked at every page on the website. She had not previously viewed the page that is indexed as "Broken, damaged, lost or stolen pagers" and states, in pertinent part:

Prior to this incident, the grievant has had no disciplinary actions and has received good performance evaluations. She has been in state service for 30 years.

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 V.B.1 of the Commonwealth of Virginia’s Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60 provides that Group I offenses include inadequate or unsatisfactory work performance.

The agency has borne the burden of proof to show, by a preponderance of the evidence, that the grievant’s work was unsatisfactory. The grievant is the designated Agency Telecommunications Coordinator. She has signed her Position Description and her Performance Plan, both of which outline the responsibilities of this role, including the expectation that she ensure 24-hour per day operation of telecommunication assets. The Developmental Plan signed by the grievant on December 9, 1999 stresses that this position requires the grievant to have anticipatory acumen. Although the grievant signed that she had reviewed this developmental plan, she testified during the hearing that she didn’t understand what it means. Regrettably, the evidence demonstrated that in this case.

As the sole coordinator for telecommunications in this agency, the grievant was charged with assuring 24-hour availability of telecommunications assets, including pager service. The grievant knew that the Commissioner was required to be available by pager 24 hours per day. Knowing this, the grievant was charged in her performance plan to anticipate what concerns or problems might occur in obtaining a replacement pager. When the grievant ordered a replacement pager, she did not take steps to learn how and when activation of the new pager and deactivation of the old pager would occur. Had she given the requisite amount of thought to this issue, she would have questioned in her own mind how the activation/deactivation process would occur. If she was unsure about the answer, it was incumbent upon her to find the answer to this critical question. Instead, the grievant made an assumption that, by some unknown process, activation would occur upon receipt.

The grievant testified that she thought the old pager would be working up to the time the new pager was received. However, the grievant was unable to explain how she thought the change in activation would occur merely by the fact of receipt. Logic dictates that activation can only occur in one of two ways. Either the vendor must initiate activation prior to sending the pager or, the receiving party must take some action to activate the pager upon receipt. If the vendor activates before sending the new pager, it must logically follow that the old pager is deactivated at that time. On the other hand, if the receiving party initiates activation, that fact must be made known to the receiving party. In this case, the grievant has acknowledged that she did not know when activation would occur; she made an assumption that was not based in fact.

The grievant is the only person in the agency specifically charged with the responsibility for knowing about telecommunications procedures. The grievant could have learned about the correct procedures for activation/deactivation merely by placing a telephone call, either to Metrocall or to DIT. Because she failed to do so, the agency head did not have pager service for a period of more than two days. In view of the specific requirement in the grievant’s performance plan to anticipate such problems, her failure to anticipate and resolve this issue is unsatisfactory or inadequate work performance.

In her various responses to the Written Notice, the grievant has contended that others should be disciplined in connection with this incident. Specifically, she notes that the Commissioner should be disciplined for damaging the pager and the Information Systems Administrator should be disciplined for not training the Commissioner until the day after he was given the new pager. These arguments are without merit. The old pager was damaged due to an accident resulting from the design of the pager and its cradle; no deliberate intent or negligence can be attributed to the Commissioner for this accident. The Systems Administrator trained the Commissioner as soon as she was available. Moreover, even if he had trained her immediately upon receipt of the new pager, there would still have been an interruption in pager service of more than one full day.

The grievant also argued that she has not received any detailed, step-by-step written instructions on how to perform her job. While this is undoubtedly correct, there are few jobs where one receives a cookbook that details every step of the work that has to be performed. This is particularly true when, as in this case, the position is one that encompasses a variety of responsibilities in which one is expected to anticipate possible concerns and resolve them before they become problems.

In view of the evidence, it must be concluded that the grievant’s performance with regard to this incident was not satisfactory. The Hearing Officer is mindful of the grievant’s past unblemished record. However, one cannot ignore the incident in which the grievant failed to anticipate that the registration check should have been forwarded to the vendor prior to the conference attended by the Commissioner. While the two incidents are not directly related, failure to anticipate was the primary factor in each situation. The written counseling given for the first incident did not have the desired effect in preventing the second incident. Thus, the agency felt that it was necessary to escalate its corrective action from written counseling to a disciplinary action as a "wake-up call." Had the grievant not received written counseling for a similar situation, a written counseling might be appropriate in this case. However, because this is the second similar situation, a Group I Written Notice is the appropriate level of discipline, taking into account the specific circumstances herein.

The disciplinary action of the agency is affirmed.

The Group I Written Notice issued to the grievant on December 21, 2000 is upheld and shall remain active for the period of time specified in Section VII.B.2 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

¹ When questioned about this sentence during the hearing, the grievant said "I don't even know what that means."
² DIT is the state agency responsible for contracting pager service for all other state agencies. The paging services contract (Exhibit 2) specifies that "All orders for service shall be placed by DIT's Ordering Officers, appointed by the DIT Contracts Manager. The contractor will accept orders only from DIT."
³ Metrocall is the contractor with which DIT has contracted to provide paging services for state agencies.
⁴ The Governor and cabinet secretary to whom the grievant reports both require all agency heads to be available by pager 24 hours per day, seven days per week. This requirement is especially important during budget cycles and during the period when the General Assembly is active and in session (generally from December 1 through April 1 each year).
⁵ As it happens, there is no evidence that anyone attempted to page the Commissioner during the 48 hours of unavailability.