Issue: Group II Written Notice (threatening behavior); Hearing Date: March 27, 2001; Decision Date: March 29, 2001; Agency: Department of Motor Vehicles; AHO: David J. Latham, Esq.; Case No. 5151

DEPARTMENT OF EMPLOYMENT DISPUTE RESOLUTION

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

In the matter of Department of Motor Vehicles Case No. 5151

Hearing Date: March 27, 2001
Decision Issued: March 29, 2001

APPEARANCES

Grievant
Attorney for Grievant
Division Director of Agency
Representative for Agency
Three witnesses for Agency
Observer for Agency

ISSUES

Did the grievant threaten a coworker on September 8, 2000 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 II Written Notice issued on October 3, 2000 because he threatened a fellow employee on September 8, 2000. During the grievance process, the second- and third-step respondents offered to reduce the discipline to a Group I Written Notice for inappropriate conduct. The grievant did not accept this offer. Subsequently, the agency head qualified the grievance for a hearing.

The Department of Motor Vehicles (Hereinafter referred to as "agency") has employed the grievant for 15 years. He is currently Manager of a truck weight enforcement unit. The grievant has one prior active Written Notice – a Group I Written Notice issued on January 22, 1999 for making inappropriate statements to females.

For a number of years, the grievant has not gotten along well with the manager of another weight enforcement unit (Hereinafter referred to as Manager X). The grievant indicates that, while he respects Manager X, they often "do not see eye to eye." The grievant contends that the Manager X always delays giving a response to requests beyond what is necessary. Manager X characterizes the relationship between him and the grievant as "not great but workable." He finds the grievant to be demanding and rude when making requests. Another employee indicated that he believed the relationship between the two men to be hostile. Both the grievant and Manager X are at the same pay grade level but they each report to a different manager.

On September 7, 2000, the grievant’s manager advised him of a priority assignment for the following day. To perform the assignment, it would be necessary for the grievant to borrow employees from another unit. The grievant’s manager told the grievant to call Manager X and ask to borrow the needed employees. The grievant made the telephone call but Manager X did not agree to loan his people at that time. The grievant asked Manager X to call him back later that day and advise whether he would loan his crew to the grievant. Manager X refused to do so and eventually said, "If you don’t hear from me, they’ll be there."

Both the grievant and Manager X were upset with each other when this conversation ended. Manager X was sufficiently angry that he then called the grievant’s manager and requested that, in the future, any requests from the grievant should come through his manager – not direct from the grievant. On the following day, Friday, September 8, 2000, Manager X’s crew did show up to work with the grievant. The grievant was still chafing from the prior day’s telephone conversation. At lunchtime, the grievant and one of Manager X’s crew rode to lunch together. Manager X’s name came up in the conversation and the grievant stated, "I’ve had it working with (X); I think when I retire in five years, I’m going to go and kick X’s ass¹ all over the scales."

The crew person had not previously had a conversation with the grievant and did not know whether the grievant was serious about this comment. He had heard earlier that morning that the grievant and Manager X "had words." He was therefore already aware that there was friction between the two men. From the body language and general demeanor of the grievant, the crew person believed that the grievant might well have been serious when he made the threatening statement.

The crew person had been aware of an unrelated situation at another location that occurred a few years earlier. In that case, a person who made threatening remarks later shot himself. The crew person did not know the grievant well enough to know whether he was serious or joking. He concluded that he should report this comment to someone else. He was fearful that if he did not report the incident, and something serious happened, he would feel guilty because he had not promptly reported it. After lunch, he discussed the incident with another employee who suggested he report the comment to Manager X. Late that Friday afternoon, the crew person did report the grievant’s statement to Manager X.

On Monday morning, September 11, 2000, Manager X called the grievant’s manager and said that he was not filing a formal complaint but felt the incident should be reported. Manager X did not feel threatened by the grievant’s statement and did not believe he would actually carry out such a threat. On September 12, 2000, the grievant’s manager reported the matter to the Division Director who subsequently asked Human Resources to become involved. After review by all involved, it was concluded that, while threatening another employee is a Group III offense, a lesser level of discipline was appropriate in this case. Two factors were considered in opting for the lesser level of discipline: 1) The threat was not made directly to Manager X and, 2) Manager X did not file a formal complaint.

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.² 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 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:

The basic fact in this case is undisputed. The grievant has acknowledged making a statement to an employee of another manager in which the grievant threatened to physically attack the other manager. Taken at face value, the statement does constitute a threat. Threat is defined as, "A declaration of intention or determination to inflict punishment, loss or pain on another, or to injure another by the commission of some unlawful act."³ The grievant’s statement contains the requisite elements of a threat since he did declare his intent to inflict pain on Manager X. The agency has therefore borne the burden of proof to show, by a preponderance of the evidence, that the grievant threatened an employee.

In mitigation, the grievant contends that his statement was intended as a joke and that he did not intend to attack Manager X. Viewing this assertion in the light most favorable to the grievant, it might well be that the grievant did not actually intend to carry out his threat. However, the crew person who heard the threat knew that the grievant was upset at Manager X and also understood that there was a history of hostility between the two men. Moreover, from his observation of the grievant at the time, the crew person reasonably believed that there was a possibility that the grievant might be serious about his threat. The crew person’s perception that the threat could be real was sufficient to alarm him.

The purpose of having a rule against threatening fellow employees is obvious. A workplace cannot function harmoniously and efficiently if employees are permitted to threaten one another. Moreover, even when threats are made indirectly, as in this case, other employees hearing threats can be adversely affected. Such employees may reasonably be fearful that such threats, if acted upon, could escalate beyond the two protagonists and involve innocent employees who happen to be in the area. In the instant case, the person to whom the grievant uttered his threat had reason (from a prior unrelated incident) to be apprehensive about what this threat might portend.

Grievant argues that the threat was conditional because it was predicated on the passage of five years before the grievant would retire. While a threat to attack someone five years in the future is less threatening than an immediate threat, it is nonetheless a threat. A threat cannot be ignored merely because it is conditioned upon the passage of some amount of time. However, given the length of time involved in the instant threat, it is probably less likely that the threat would eventually be acted upon. While this was not specifically mentioned by the agency as a mitigating factor, it may have played a role in the agency’s decision to reduce the discipline from a Group III to a Group II Written Notice.

Grievant also argues that the discipline should be reduced to a Group I Written Notice because the division director and the third-step respondent had made an offer to reduce the discipline to that level. The opinions of these two people have been given an appropriate amount of weight in arriving at this decision. However, it is recognized that an offer to reduce discipline during the grievance process often involves factors not directly related to the severity of the offense. The factors that weigh most heavily in making this decision must be the nature of the offense and the impact of that offense, both real and potential, on other employees in the workplace.

An important consideration in this case is the fact that the grievant is a manager. Management and supervisory personnel are expected to set the example for other employees. In some respects, the standard of behavior for management/supervisory people is higher than for those being supervised. For example, a manager/supervisor is expected to lead by demonstrating appropriate behavior in the workplace. The making of a threat against another employee is something that cannot be tolerated from any employee. However, one manager threatening another is a particularly egregious offense because it gives other employees the wrong example to follow.

A related consideration is the fact that the grievant received a Group I Written Notice on January 22, 1999 for making inappropriate comments to females. Although that incident did not include a threat, the incidents are similar because both involved the grievant making statements that he contends were merely jokes or harmless conversation. It should now be obvious to the grievant that his intention is not nearly as important as the perception of those who hear his statements. However harmless the grievant may have thought his threat to be, it was nonetheless taken seriously by others and that has to be given substantial evidentiary weight.

DECISION

The disciplinary action of the agency is affirmed.

The Group II Written Notice issued to the grievant on October 3, 2000 is AFFIRMED 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.

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.

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