In the matter of Virginia Department of Transportation’s Case No. 5164

Hearing Date: April 26, 2001
Decision Issued: May 29, 2001

On January 22, 2001, Grievant was issued a Group II Written Notice of disciplinary action for:

• Failure to follow a supervisor’s instruction, perform assigned work, or otherwise comply with established written policy.
  
• Leaving the work site during work hours without permission.
  
• Failure to report to work as scheduled without proper notice to supervisor(s).

On January 22, 2001, Grievant was issued a Group III Written Notice of disciplinary action with removal effective January 22, 2001 for:

On February 13, 2001, Grievant timely filed a grievance to challenge the disciplinary action. The outcome of the Third Resolution Step was not satisfactory to the Grievant and she requested a hearing. On March 22, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On April 26, 2001, a hearing was held at the Agency’s regional office. Upon motion of a party, the Hearing Officer found just cause to grant an extension of the 30 day time frame for issuing the decision because of the conflicting schedules of the parties and unavailability of witnesses. GPM § 5.1.

Grievant
Supervisor
Legal Assistant Advocate
HR Manager
Information Specialist
IT Specialist
Senior Imaging Specialist
Acting Division Administrator
Procurement Manager II
Network Security Officer
Sergeant

1. Whether Grievant should receive a Group II Written Notice of disciplinary action.
2. Whether Grievant should receive a Group III Written Notice of disciplinary action with termination.

The burden of proof is on the Agency to show by a preponderance of the evidence that its disciplinary actions against the Grievant were warranted and appropriate under the circumstances. Grievance Procedure Manual ("GPM") § 5.8. A preponderance of the evidence is evidence which shows that what is sought to be proved is more probable than not. GPM § 9.

After reviewing the evidence presented and observing the demeanor of each witness, the Hearing Officer makes the following findings of fact:

The Virginia Department of Transportation employed Grievant as a Human Resources Data Processing Liaison. In January 2000, she transferred from another position in the Agency to her most recent position. The Commonwealth of Virginia had employed her for approximately 13 years. Grievant’s most recent performance evaluations show she adequately performed her duties. No evidence was presented of any prior disciplinary action being taken against Grievant.

Grievant was supervised by the Former Supervisor from January 2000 until November 3, 2000 when he left the Agency to work in private industry. Once the Former Supervisor left the Agency, the Supervisor became Grievant’s immediate supervisor.

The Supervisor does not have voice mail on his telephone. When the Supervisor is out of his office telephone calls roll over to the telephone at the security desk. The security desk personnel are supposed to take messages for the Supervisor and deliver them to him. How frequently those messages actually reach the Supervisor is not known.

Grievant has several medical illnesses requiring her to be absent from work or attending medical appointments. Grievant has three young children one of whom is "legally handicapped" according to Grievant.

In those instances when Grievant realized she would not be able to work due to her or her child’s illness she called the Supervisor to notify him that she would be absent. Since the Supervisor does not have voice mail, his telephone calls were forwarded to the security staff. Grievant contends she left messages with the security staff who failed to deliver the messages to Supervisor. The Agency offered no evidence to rebut Grievant’s contention other than to say that the Supervisor did not receive any messages from Grievant.

Grievant and several other individuals holding similar positions work in a separate office located approximately a mile from the Main office in the locality. Grievant must sometimes walk from her office to the Main office to assist other employees. Rather than first going to her office and then walking to the Main office or elsewhere, Grievant occasionally arrives at the Main office and after completing her duties there drives to her office. This gives other staff in her office the appearance that she is arriving at work late. Grievant’s work hours were from 9:30 a.m. until 6:30 p.m. five days per week.

The Agency received several anonymous complaints through the State’s complaint hotline administered by the State Auditor. The Supervisor separately interviewed the Former Supervisor and those individuals reporting to the Former Supervisor. One complaint was an allegation that Grievant frequently left scheduled training without authorization. Grievant and the Supervisor met on September 12, 2000. The Supervisor discussed the complaints with Grievant and told her he had concluded the complaints were unfounded. The Supervisor also instructed Grievant not to leave any scheduled training without first obtaining his permission. He said she should follow this procedure for her own protection so that she could avoid any future allegations about leaving training.

Grievant was scheduled to attend a Networking Infrastructure class from November 27 to December 1, 2000. She attended the morning session on Monday, November 27, 2000. After returning from lunch, Grievant informed the instructor she had a work commitment and would re-schedule the course. (Agency Exhibit 4). She then left the training and returned to her office. She did not first obtain the Supervisor’s permission to leave the training.

Grievant attempted to send the Supervisor an email from her home computer on Tuesday November 28, 2000 at 9:01 p.m. The email states:

Although Grievant attempted to send the email, it was not sent due to a failure of her internet service provider connection. As a result, the email was stored in the "outbox" folder of her home computer. Grievant mistakenly believed the email had been sent and received by the Supervisor.

Grievant worked on Tuesday, November 28, 2000 beginning sometime after lunch. (Agency Exhibit 21). She did not work on Wednesday, November 29, 2000 but returned to work on Thursday, November 30, 2000.

On Friday, December 1, 2000 at 10:03 a.m., the Supervisor sent Grievant an email asking, "By the way, I thought you were supposed to be in training this week, or am I mistaken?" Grievant responded:

(Agency Exhibit 5).

The Agency has a computer-based leave tracking system. The computer automatically records an employee as having worked on a regular workday unless the employee accesses the computer system and enters sick or other leave. In other words, the computer records an employee as having worked unless the employee modifies the computer’s automatic entry.

Grievant contends she attempted to enter her vacation and sick leave into the leave tracking system before the pay period ended. After entering the leave, Grievant’s computer system locked up. She believed the computer system had accepted the leave entries before it stopped working.

After learning that her sick leave had not been recorded in the Agency’s leave accounting system, Grievant attempted to enter the leave on December 14, 2000. Grievant made several leave requests. She asked for vacation leave for November 27, 2000. In her request, she said she was caring for her sick child. (Agency Exhibit 8). She submitted a request for four hours of personal sick leave for November 28, 2000 and eight hours on November 30, 2000.¹ In her comments for the November 30, 2000 request, Grievant wrote that she was sick and had an appointment. (Agency Exhibit 8). The Agency rejected Grievant’s request for this leave pending its review for disciplinary action.

The Former Supervisor established a procedure to determine when employees were present in Grievant’s office. On July 14, 2000, the Former Supervisor sent an email to staff including Grievant informing them that he was establishing several policies regarding their flexible work week arrangement. A portion of the email states:

Once Grievant realized she would be attending training, she wrote "training" next to her name for November 27, 2000 to December 1, 2000. When Grievant returned to work on Thursday, November 30, 2000, she marked through the word "training" and entered her time in the office. She did this again on Friday, December 1, 2000. She did not revise her entries for November 27^th through November 29^th, 2000.

The Agency issued two Group Written Notices addressing Grievant’s behavior during the week beginning on November 27, 2000. The Hearing Officer upholds the Group II Written Notice and rescinds the Group III Written Notice.

Failure to follow a supervisor’s instruction is a Group II offense under the Department of Human Resource Management’s Policies and Procedures Manual ("P&PM"), Policy 1.60(V)(B)(2). Grievant was instructed by her supervisor not to leave training without his prior approval. Grievant knew or should have understood the importance of the Supervisor’s instruction because his instruction resulted from his investigation of hotline complaints made against Grievant. On November 27, 2000, Grievant left scheduled training without the Supervisor’s approval thereby justifying the Agency to issue her a Group II Written Notice.

Grievant argues that she was not given an instruction to avoid leaving training without the Supervisor’s prior approval. The Hearing Officer finds that the Agency has carried its burden of proving such an instruction was given to Grievant for the following reasons. First, a topic of the September 12, 2000 meeting was a hotline caller’s allegation that Grievant was leaving training without permission. Second, the Supervisor made some limited documentation of the meeting that referenced training. Third, Grievant had left training on previous occasions and other employees were aware of her practice. And fourth, the Supervisor’s recollection of the details of the meeting was better than Grievant’s recollection.

Group III offenses under P&PM § 1.60(V)(B)(3) "include acts and behavior of such a serious nature that a first occurrence normally should warrant removal." "Falsifying any records, including, but not limited to, vouchers, reports, insurance claims, time records, leave records, or other official state documents" constitutes a Group III offense. P&PM § 1.60(V)(B)(3)(b).

"Falsifying" is not defined by the P&PM, but the Hearing Officer interprets this provision to require proof of an intent to falsify by the employee in order for the falsification to rise to the level justifying termination. This interpretation is less rigorous but is consistent with the definition of "Falsify" found in Blacks Law Dictionary (6^th Edition) as follows:

The Hearing Officer’s interpretation is also consistent with the New Webster’s Dictionary and Thesaurus which defines "falsify" as:

The Agency has offered little credible evidence that Grievant altered any State documents with the intent to falsify those documents. The Agency contends Grievant falsified her leave records by failing to enter her sick leave. Grievant’s failure to enter sick leave does not in itself support the conclusion that Grievant falsified records. The Agency’s computer leave system assumes an employee is working and automatically enters information in the employee’s leave records showing that the employee was working. It is up to the employee to reverse the automatic computer entry to enter sick leave. If an employee merely forgets to enter sick leave, that employee’s leave records would show the employee worked on dates the employee was sick.

In addition, the Former Supervisor permitted its employees to "make up" leave taken. By establishing a flexible leave system, the Agency places greater responsibility on its employees but it also makes the leave system more dependent on the employee’s memory as to whether he or she made up the leave.

The Agency contends Grievant falsified the time entry records because she wrote "training" on the calendar for the days she expected to be in training but was not at training on those days. The Agency’s argument fails² because Grievant wrote "training" in the Time and Attendance log book in advance of her training. At the time she wrote "training" she expected to be in training. She did not have the intent to falsify the log book. Moreover, once Grievant realized she would not be attending training, she modified the Time and Attendance log book for at least one day to strike through training and entered the dates she actually entered and exited the facility. She testified she did not take the log book seriously.

The Agency may have been able to meet its burden of proof had it been able to present evidence such as (1) statements by Grievant that she intended to understate her leave balances, (2) a pattern of behavior where Grievant regularly understated her leave balances, or (3) supervisory warnings given to Grievant about keeping accurate leave balances. The Agency was not able to present evidence of this nature and the Hearing Officer can only conclude that Grievant’s failure to update her leave balances was an oversight or resulted from her claim that the failure of the Windows NT operating system³ prevented the recordation of the leave she entered.

The Hearing Officer recommends that the Agency, acting at its sole discretion, draft a memorandum to Grievant outlining its concerns about her leave activity and specifying a progressive series of discipline for instances of her failure to properly record leave. The Agency may wish to describe under what circumstances Grievant can "make up" leave and when she must record leave.

It is clear to the Hearing Officer that the Agency believes Grievant is not working the amount she is required to work. The Hearing Officer recommends that the Agency, acting at its sole discretion, establish a trial period of time during which the Agency monitors Grievant’s arrival and departure times. Grievant could be required to appear at a specific location which can be monitored and sign her name, the date, and the time before she begins her workday. Upon completing her duties for the day, she would be required to return to the specific location and sign her name, the date, and the time. This procedure or something similar would alleviate the Agency’s concerns about whether Grievant is working 40 hours per week.⁴

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group II Written Notice of disciplinary action is upheld. The Agency’s issuance to the Grievant of a Group III Written Notice of disciplinary action with termination is rescinded. The Agency is directed to reinstate Grievant and provide Grievant with back pay from the date of removal less any interim earnings that the employee received and credit for annual and sick leave that the employee did not otherwise accrue. GPM § 5.9(a). Standards of Conduct, Policy No. 1.60(IX)(B)(2).

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.

Carl Wilson Schmidt, Esq.
Hearing Officer

¹ Grievant was working on November 30, 2000. Her request should have been for November 29, 2000 when she was not at work.
² Another reason the Agency's argument fails is that if the Time and Attendance log book was intended to record only when Grievant was physically present in her office, she would not have been required to enter anything during the week she was scheduled for training. Writing the word "training" would not serve to record when Grievant was physically present in her office. Writing the word "training" when not required to do so, however, is consistent with Grievant's understanding that the purpose of the log book was to record her entire time at work including when she was physically present in the Main office.
³ Grievant presented credible, significant, and un-rebutted expert testimony establishing that the Windows NT software frequently locks up the computer relying on the software. A failure of the Windows NT software would easily explain the problems Grievant experienced in having her leave requests recorded.
⁴ The Time and Attendance log book served little purpose because it was intended to record only an employee's time at the separate office and not all time worked by the employee.