In the matter of Department of Corrections Case No. 5144

Hearing Date: March 15, 2001
Decision Issued: March 19, 2001

Due to the unavailability of parties and/or their representatives, the hearing could not be docketed until the 28^th day following appointment of the hearing officer.

The Written Notice issued on November 1, 2000 indicated the Date of Offense to be April 19, 2000. In fact, the incident occurred on or about April 16, 1999. Notwithstanding this typographical error, the grievant was fully cognizant of the incident specified in the description of the Written Notice and therefore, his due process rights were not adversely affected.

Grievant
Attorney for Grievant
Warden
Legal Representative for Agency
One witness for Agency

Did the grievant’s actions on or about April 16, 1999 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 1, 2000 because he had allegedly sexually harassed a female correctional officer. The grievant was also demoted from the rank of captain to the rank of corrections officer senior. Following a denial of any further relief at the third resolution step, the Group III Written Notice and demotion were upheld. The agency head subsequently qualified the grievance for a hearing.

The Virginia Department of Corrections (hereinafter referred to as agency) has employed the grievant as a corrections officer for nearly 20 years. At the time discipline was imposed, the grievant held the rank of captain. The grievant has received good performance appraisals in the recent past. The Warden considers the grievant a good staff person and had requested his transfer from another facility to the Warden’s facility when it opened two years ago.

On or about April 16, 2000,¹ the grievant was approached by a female corrections officer in a hallway outside training classrooms. She indicated that she had a question she wanted to ask. The grievant believed he knew what she was going to inquire about and thought that the matter should be discussed in private rather than in the hallway. He suggested they step into an empty classroom. The female officer (a trainee who had been employed for two weeks) asked whether she could be assigned to a specific shift when her training ended. The grievant responded that he did not control shift assignments but that he would relay her request to the major who had that responsibility. Both then left the classroom and the encounter ended.

The female officer submitted a signed written statement to the agency on April 21, 1999 in which she presented a different version of the incident. She contended that the grievant asked her into the empty classroom because he wanted to talk with her. After a brief discussion about shifts and job classification, the female started to leave. She alleged that he brushed against her and attempted to tongue kiss her. She immediately left and entered the women’s restroom until he had left the area. She did not report the incident. She mentioned it to her sister, who subsequently mentioned it to a member of management at the facility.

In her April 21, 1999 written statement, the female corrections officer made other allegations regarding the grievant. During her first week at the institution while in her own vehicle at an intersection, she encountered the grievant in his vehicle at the same intersection. She alleges that the grievant made motions with his tongue and then blew her a kiss. The grievant agrees that they met at the intersection but maintains that he only waved at the female officer. On another occasion, the grievant asked the female officer about her marriage, observing that he knew her husband.

Following the female officer’s complaint, an investigation was conducted by the agency. Written statements were obtained from anyone who had heard about the incident. However, these hearsay statements amount to recitations by the female officer to others about what had occurred. No other person was present during any of the grievant’s encounters with the female officer. A written statement was obtained from the grievant on April 27, 1999 in which he denied the allegations made by the female officer. By July 28, 1999, the agency completed its investigation and concluded that there was insufficient evidence to support the allegations against the grievant. Essentially, the agency came to the conclusion that this was a, "He said – she said," type of incident and that without any other evidence, it had no basis to take any action against the grievant.

However, the agency did reassign the grievant to a different shift and directed that the grievant have no supervisory responsibility over the female officer at any time. The grievant has not spoken with or had any other contact with the female officer since that time. The female corrections officer who made the allegation against the grievant was discharged by the agency in August 1999 due to absence problems. She refused to testify in person at the hearing. The Hearing Officer agreed to take this witness’ testimony by telephone but she also refused this offer. The agency did not request that an Order be issued for this witness to attend the hearing.

At the time of the grievant’s reassignment to another shift, the Warden offered the female officer an opportunity to transfer to two other correctional facilities, one of which is located across the street. The female officer turned down both offers, even though accepting the offer would have enabled her to be in a completely different facility from the grievant.

In September 1999, following her discharge by the agency, the female officer filed a formal complaint with the Equal Employment Opportunities Commission (EEOC). Her complaint was two-pronged, alleging 1) sexual harassment by the grievant and 2) harassment by the Warden.² The EEOC investigated this matter for a period of one full year. During this time, the EEOC neither notified the grievant that it was investigating the matter nor conducted any interviews with the grievant. On September 18, 2000, the EEOC issued a "Determination" concluding that the female officer had been sexually harassed and that she had been subjected to a hostile working environment.

During the next six weeks, the agency attempted to obtain from the EEOC a detailed explanation of its cursory determination. The EEOC refused to provide any written information.³ A telephone call from the agency to the EEOC elicited only that the EEOC had spoken with people to whom the female officer had recited her version of events. Thus, it appears that the EEOC based its decision on the same information the agency had developed in its own investigation. One can only assume that the EEOC chose to view the female officer’s allegations as true, even though the EEOC failed to interview the grievant. As a result of the EEOC determination,⁴ the agency made a financial settlement with the female officer and issued a Group III Written Notice, with demotion, to the grievant.

On March 3, 1999, the grievant was counseled for unprofessional conversations with a female staff person. The grievant has received training on the topic of sexual harassment on multiple occasions.

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.⁵ 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 Training⁶ 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 defines Group III offenses to include acts and behavior of such a severe nature that a first occurrence normally should warrant removal.

The Department of Corrections has promulgated its own Standards of Conduct and Performance, which is modeled very closely on the DHRM Standards of Conduct. Section 5-10.17.B.20 of the DOC Standards cites the following example of a Group III offense:

Grievant argued that the disciplinary action taken against him came far too late to be in compliance with the Standards of Conduct. The incident occurred in April 1999; the discipline was imposed in November 2000, some 19 months after the fact. Section 5-10.17.C.1 of the DOC Standards states, in pertinent part:

The agency has presented a credible reason for the substantial difference in time between the incident and the imposition of discipline. It had initially investigated the matter and found insufficient evidence to take corrective action. However, after it was notified of the EEOC determination in September 2000, the agency concluded that if the EEOC had found sufficient evidence to act, then the agency also had to take appropriate action. Therefore, the agency did act as soon as practicable, i.e., as soon as it concluded that disciplinary action was warranted.

The agency has not, however, borne the burden of proof to show, by a preponderance of the evidence that the grievant sexually harassed the female corrections officer on April 16, 1999. The only substantive evidence against the grievant is the female officer’s written statement of April 21, 1999. Written statements from others to whom she recited her version of events are hearsay. While hearsay can sometimes be sufficient to overcome opposing evidence, in this case such hearsay must be of sufficient weight to overcome the sworn denial of the grievant. In this case, neither the accusing female officer nor any of the other people testified in person.

Without the opportunity to question these witnesses, it is impossible for the Hearing Officer to test the reliability and consistency of their statements. For example there is a significant inconsistency between the version of events related by the grievant and the version described by the grievant’s sister.⁸ Moreover, the written statements are neither affidavits nor even sworn statements. Under such circumstances, the Hearing Officer has no choice but to assign less evidentiary weight to such unsworn statements.

On the other hand, the grievant has consistently denied the allegations against him. His answers to questions are consistent with his written statement made nearly two years ago immediately after the incident occurred. Carrying the burden of proof requires more than mere allegation.

The agency points, with some relevance, to the grievant’s past behavior. The grievant had been counseled in the recent past for unprofessional conversations with another female corrections officer. Further documentation in the file alludes to an unsubstantiated allegation of improper conduct with the wife of an inmate more than a decade ago. Certainly, past behavior can be relevant in demonstrating a pattern of behavior. In fact, the United States Court of Appeals for the Fourth Circuit has observed that, "Evidence of a general atmosphere of discrimination may also be considered proof of historically-limiting opportunity or harassment. Even where such past discriminatory acts are time-barred for purposes of a particular claim, the Supreme Court has stated that this type of showing ‘may constitute relevant background evidence in which the status of a current practice is at issue’. "⁹

In the instant case, the relevance of the grievant’s past behavior is given some, but relatively little, weight because the behavior in the prior incidents involved conversation only; there was no evidence of any physical acts of aggressive physical sexual behavior such as has been alleged in this case. Thus, the grievant’s past behavior does not automatically support the allegation. This is not to say that the grievant’s behavior has been angelic. In fact, the evidence in the instant case infers that the grievant may have a predilection for somewhat chauvinistic behavior. However, even if this surmise is correct, one cannot conclude on that basis alone that the grievant is automatically guilty in this specific instance.

Of significant weight in deciding this case is the fact that the agency itself concluded in July 1999 that the evidence was insufficient to support the allegation against the grievant. Since that time, no additional evidence has been uncovered to support the allegation. In fact, the agency itself has acknowledged that it has no more evidence today than it did in 1999. The only thing that has changed in the interim is the fact that the EEOC issued an unsupported "determination" that the grievant had sexually harassed the female officer. Despite the agency’s best efforts, it has been unable to learn the basis for the EEOC determination other than the fact that the grievant’s accuser spoke with others who, in turn, parroted (and even embellished) what she told them.

The Hearing Officer can empathize with the agency in this situation. When the agency received an unfavorable determination from the EEOC, and was forced to make a financial settlement with the female officer, the agency may have concluded that its best course of action was to take disciplinary action against the grievant, particularly in view of the Conciliation Agreement. However, this grievance case must be adjudicated solely on the evidence presented at the hearing. The sworn denial of the grievant carries more evidentiary weight than the unsworn written allegation of his accuser. There is simply no other relevant or credible evidence to support the allegation.

The disciplinary action of the agency is reversed.

The Group III Written Notice issued to the grievant on November 1, 2000 for sexual harassment is hereby VACATED. The grievant is reinstated to the rank of captain retroactive to November 1, 2000. The 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.

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