In the matter of Department of Corrections Case No. 5155

Hearing Date: March 26, 2001
Decision Issued: March 28, 2001

Grievant
One witness for Grievant
Warden
Representative for Agency
Three witnesses for Agency

Did the grievant fail to follow instructions on August 31, 2000 and, if so, was this failure subject to disciplinary action under Procedure Number 5-10 of the Department of Corrections Procedures Manual? If so, what was the appropriate level of disciplinary action for the conduct at issue?

The grievant filed an appeal from a Group II Written Notice issued on September 12, 2000 because he failed to follow supervisor’s instructions, perform assigned work or otherwise comply with applicable established written policy. At the third resolution step, the regional director offered to reduce the discipline to a Group I Written Notice; the grievant did not accept this offer and decided to pursue the matter by requesting a hearing before a hearing officer. The agency head qualified the grievance for a hearing.

The Department of Corrections (DOC) (hereinafter referred to as "agency") has employed the grievant as a correctional officer for 18 years. He currently holds the rank of lieutenant and is a shift commander. The grievant has a good record and no prior disciplinary actions.

During the month of August 2000, the inmates in wing 1A¹ of Building 1 had been unusually disruptive. As a result of several disturbances, wing 1A was placed under lockdown toward the end of the month. On the afternoon of August 30, 2000, the Assistant Warden for Operations (AWO) sent an e-mail message to various agency management and supervisory personnel and to shift commanders including the grievant. The message stated:

The grievant worked the night shift that began at 10:00 p.m. on August 31, 2000 and ended at 6:00 a.m. on September 1, 2000. When the grievant arrived at work, the outgoing shift commander informed him of the lockdown and of the requirement to assign a sergeant or lieutenant to unit 1A. During the shift changeover, there was a fight among inmates in unit 1B. One inmate was injured and required medical attention outside the facility. Two officers had to accompany this inmate to a medical facility. After this disturbance was quelled, the outgoing shift commander asked the grievant if he wanted any assistance for the rest of the night shift. The grievant determined that he still had sufficient staff to accomplish the mission and declined the assistance.

The grievant viewed his computer at about 11:00 p.m. and read the AWO’s e-mail message of August 30, 2000 (cited above). The grievant understood the e-mail message, and was aware of the recent problems in unit 1A. As shift commander on the night of August 31-September 1, 2000, the grievant had a staff of approximately 25-27 correctional officers and one sergeant for six housing units. Pursuant to the e-mail message, the grievant assigned the sergeant and three corrections officers to Building 1 for the night shift. The sergeant stayed in Building 1 during the entire shift except for a one-hour period from approximately 4:15 a.m. to 5:15 a.m. During that one-hour period, the grievant determined that the situation was sufficiently quiet to allow the sergeant to conduct rounds of the other five housing units. While in Housing Unit 1, the sergeant spent most of his time in the control booth, which commands a view of both wing 1A and wing 1B.

At about 12:15 a.m. on September 1, 2000, an inmate in Building 1 threw a table at the control booth and destroyed three sections of security glass. Subsequently, the AWO conducted an investigation of this incident and questioned the sergeant assigned to the building. As a result of his questioning, the AWO learned that the sergeant had been in the control booth when the table was thrown. The AWO concluded that the grievant failed to follow the instruction to assign a sergeant or lieutenant to housing unit 1A. As a consequence, he recommended that a Group II Written Notice be issued to the grievant.

The agency relied, to some extent, on entries in a supervisor’s logbook to show that a supervisor was not in housing unit 1A for the entire eight hours of the shift. The logbook reflects that the grievant made rounds at 3:55 a.m. and left the building at 4:00 a.m. The only other entry during the shift indicated the sergeant made rounds at 4:15 a.m. and left at 4:33 a.m. However, uncontroverted testimony established that the supervisor’s logbook entries were notoriously inaccurate and that not all time spent in a housing unit was recorded.³ Moreover, the sergeant testified that, except for making rounds between 4:15 and 5:15 a.m., he spent the remainder of his time in Building 1; no witness testified otherwise. Entries for other days and shifts before and after the date at issue herein reflect similar apparent gaps in supervisory coverage of housing unit 1A. However, the commander of the day shift (an agency witness) testified that full supervisory coverage of Building 1 was maintained during his shift, notwithstanding the apparent gaps in the supervisor’s logbook.

The supervisors from other shifts who were assigned to Building 1 during this lockdown usually stayed in the control booth during their shift. They did not stay exclusively in unit 1A because there was no desk or any other furniture for them to sit at. They would spend their time in the control booth where they could observe both 1A and 1B and respond as needed in either unit. Shift commanders believed that this method of operation complied with the intent of the AWO’s e-mail. No supervisors from other shifts have been disciplined even though they acted in the same way as the grievant.

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.⁴ 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 5-10.16.B.1 of the Department of Corrections Procedures Manual provides that "Failure to follow a supervisor’s instructions, perform assigned work or otherwise comply with applicable established written policy" constitutes a Group II offense.

In this case, the AWO issued a written directive that required assignment of either a sergeant or lieutenant to housing unit 1A. Although the grievant assigned a sergeant to Building 1, he did not direct the sergeant to remain solely and exclusively in housing unit 1A. Thus, viewing the written directive on its face, the grievant failed to follow the written instruction to the letter.

However, for the following reasons, it cannot be concluded that the grievant should be disciplined. First, it is clear from the Assistant Warden’s testimony, that he intended that the supervisor assigned to unit 1A should not set foot outside unit 1A at any time during the shift (unless properly relieved). The AWO did not envision the assigned supervisor entering unit 1B or even going into the control booth. However, it is equally apparent that the shift commanders and supervisors interpreted the AWO’s directive in a more practical (from their point of view) manner. There was no place in the building for the supervisor to sit, except in the control booth. Moreover, from the control booth, the supervisor could monitor activity in both wings and, the supervisor was immediately available if needed in wing 1A.

Thus, the common interpretation of the directive was that placing a supervisor in the control booth for 1A and 1B was sufficient to comply with the requirement. It may well be that the AWO had good reason for his more restrictive instruction regarding positioning of the supervisor in housing unit 1A. However, there is no evidence that any shift commanders understood the instruction to be as restrictive as was intended by the AWO. One may argue that the instruction was clear on its face and should have been followed to the letter. On the other hand, experienced shift commanders who had to implement the instruction felt that their interpretation accomplished what appeared to be the directive’s goal – establishing a supervisory presence that was visible to all inmates. Accordingly, the grievant’s understanding of the e-mail was reasonable, especially in view of the fact that other shift commanders interpreted it in the same way.

Second, the grievant is the only shift commander who received discipline for this issue, even though others took the same action as the grievant. It appears from the testimony taken during the hearing that management was unaware that other shift commanders supervised unit 1A in the same fashion as the grievant. However, the fact remains that the grievant should not be singled out for discipline for what was the common practice on all shifts. To discipline only the grievant would constitute disparate treatment from others who acted similarly.

The disciplinary action of the agency is hereby reversed.

The Group II Written Notice issued on September 12, 2000 for failure to follow a supervisor’s instructions, perform assigned work or otherwise comply with applicable established written policy is VACATED. 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