Issue: Group I Written Notice (disruptive behavior); Hearing Date: March 14, 2001; Decision Date: March 16, 2001; Agency: Virginia State University; AHO: David J. Latham, Esq.; Case No. 5146

In the matter of Virginia State University Case No. 5146

Hearing Date: March 14, 2001
Decision Issued: March 16, 2001

Due to the unavailability of parties and/or their representatives, the hearing could not be docketed until the 27^th day following appointment of the hearing officer.

Grievant
Grievant’s Supervisor
Legal Representative for Agency
Two witnesses for Agency

Did the grievant’s actions on November 8, 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 I Written Notice issued on November 8, 2000 for disruptive behavior. Following a denial of any further relief at the third resolution step, the Group I Written Notice was upheld. The agency head subsequently qualified the grievance for a hearing.

Virginia State University Department of Police and Public Safety (hereinafter referred to as agency) has employed the grievant as a police officer for two years. His lieutenant describes the grievant as knowledgeable and one who has the capability of being a good police officer, but that he has an attitude problem.

The grievant’s supervisor (a sergeant) had expressed some concerns to his own supervisor (a lieutenant) about three issues involving the grievant. The issues involved the grievant’s failure to have a required parking decal properly affixed to his vehicle, a parking ticket issued to the grievant that had been deleted from the computer system and the grievant’s tardiness. The lieutenant and the sergeant discussed the possibility of taking corrective action. However, the lieutenant determined that it would be appropriate to first involve Human Resources to hear both sides of the issues before a decision on corrective action was taken. A meeting was scheduled in the Human Resources Manager’s office to include the Human Resources Manager, the grievant and his sergeant.

The meeting began at 3:00 p.m. on November 8, 2000. As the meeting began, the grievant produced a tape recorder and set it on the table. The Human Resources Manager told the grievant that recording of such a meeting was not appropriate and would not be permitted. The grievant argued with and challenged the H. R. Manager, contending that he had a right to record the meeting. The H.R. Manager eventually prevailed and the grievant put his tape recorder away. The H.R. Manager then began to discuss the parking decal issue. The grievant erupted; he stood up, moved to within four feet of the sergeant, and began yelling and pointing his finger at the sergeant. The H.R. Manager told the grievant to sit down and attempted to calm him down but could not immediately do so.

At some point, the grievant said, "This is bullshit." Then he said that this meeting was an example of the harassment he believed he was receiving. He pulled out a sealed envelope addressed to the Vice President of Operations and handed it to the H.R. Manager, stating that he was filing a complaint. The H.R. Manager responded that she could not accept a personal communication addressed to the Vice President and that the grievant should deliver it directly to the Vice President. The grievant left the meeting. When the grievant left, the issues for which the meeting had been called had not been discussed.

The H.R. Manager was very concerned by the grievant’s behavior during this meeting. Because the grievant’s behavior was so loud and threatening, she was concerned that the confrontation could become physical. She stated that, in 16 years of human resources experience in employee meetings involving counseling and even the discharge of employees, she had never had anyone erupt as loudly and threateningly as had the grievant on this occasion. She further felt that the grievant had lost control of himself. She immediately called the Chief of Police and told him that he should come to her office immediately.

The H. R. Manager then went to the Office of the Vice President and found the grievant already there. The Vice President became involved and another meeting was convened at 3:30 p.m. involving the Vice President, the Chief of Police, the H. R. Manager, a captain, a lieutenant and the grievant. This meeting was more orderly and lasted approximately 30 minutes. At the end of the meeting, it was decided that the grievant should be placed on immediate administrative leave with pay and that he was to obtain a psychological evaluation. A Written Notice was issued to the grievant on the same day.

On November 1, 2000 the grievant had demonstrated similar behavior in the lobby of the Police Department. The grievant used vulgar language and was verbally counseled by his supervisor. The grievant insubordinately responded to his supervisor with words to the effect of, "You can’t tell me what to do." Later the same day while in the presence of a trainee officer, the grievant was heard using vulgar and obscene language in response to directions just given to him by his supervisor.

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.¹ 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 Training² 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 defines Group I offenses to include acts and behavior of the least severe nature. One example of such an offense is disruptive behavior.

The agency has borne the burden of proof and demonstrated, by a preponderance of evidence, that the grievant’s actions constituted disruptive behavior. During a meeting on November 8, 2000 with his supervisor and the Manager of Human Resources, the grievant was confrontational, belligerent, yelling loudly, and using vulgar language. The H.R. Manager was so concerned about the grievant’s behavior that she immediately requested the Chief of Police to come to her office. Further, the grievant’s behavior prevented the meeting from being completed as planned. Under these circumstances, the agency has amply demonstrated that the grievant’s behavior was disruptive.

The grievant contends that the agency is blowing the matter out of proportion. The Hearing Officer cannot agree. The very credible testimony of the H.R. Manager established that she had never experienced such egregious behavior from an employee in her 16 years of human resources experience even though she had been in meetings at which employees had been discharged. The testimony of the grievant’s supervisor corroborated the H.R. Manager’s testimony in every significant respect.

Grievant also argues that the agency does not have every aspect of its case documented in writing. While written documentation is useful, it is certainly not necessary to prove a case. In fact, cases are frequently decided primarily on the basis of sworn testimony of relevant witnesses. In this case, the very credible testimony of both participants who witnessed the grievant’s behavior agreed that his actions were inappropriate, disruptive and disturbing.

Moreover, the grievant’s testimony was less credible because of inconsistencies. At one point, the grievant strenuously argued that only one sergeant had ever counseled him. However, upon cross-examination, the grievant acknowledged that he had actually been counseled by three sergeants and by his lieutenant. The grievant is also under the mistaken impression that counseling has to be a formalized process. However, the Standards of Conduct make clear that counseling can be nothing more than informal discussion:

The grievant has explained his behavior at the November 8, 2000 meeting, in part, by stating that he had expected to be discharged. However, this is not justification for his actions. By making the assumption that he was to be fired, the grievant inappropriately prejudged the situation and failed to approach it with an open mind. The grievant also attempted to justify his actions, in part, by stating that the matters being discussed should have been handled within the Police Department and not taken to Human Resources. Regardless of his opinion about this matter, the decision to involve Human Resources had already been made by agency management. The grievant had an obligation to behave in a reasonable and appropriate manner while in a meeting with his superior and a member of management.

The grievant has acknowledged that he is a very vocal and loud person and tends to be animated in conversation. This was certainly corroborated by the evidence in this hearing. However, the grievant may not realize that when he is upset, he becomes so loud, so vocal and so animated that his behavior is intimidating to others. In other words, he loses control of himself. In this case, his behavior was sufficiently loud, inappropriate and intimidating that it reasonably caused others in the meeting to be apprehensive about whether the confrontation might become physical.

The disciplinary action of the agency is affirmed.

The Group I Written Notice issued to the grievant on November 8, 2000 for disruptive behavior is hereby AFFIRMED. This Written Notice shall be retained in the grievant’s personnel file for the period 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.

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