In the matter of Department of Corrections’ Case No. 5167

Hearing Date: May 1, 2001
Decision Issued: May 10, 2001

On January 10, 2001, Grievant was issued a Group I Written Notice of disciplinary action for:

On January 19, 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 he requested a hearing. On March 27, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On May 1, 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.

Grievant
Assistant Warden Operations
Supervisor
Institutional Training Officer
Four Food Service Technician III

Whether Grievant should receive a Group I Written Notice of disciplinary action.

The burden of proof is on the Agency to show by a preponderance of the evidence that its disciplinary action against the Grievant was 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:

Grievant works as a Food Operations Manager A with the Department of Corrections. The chief objective of his position is to direct the activities of inmates in the preparation, serving, and clean-up of meals for inmates and employees. (Agency Exhibit 5). Grievant works in Kitchen 37 which has a serving line, seating area, kitchen area, and dishwashing area. Grievant has been employed by the Agency since November 1999.

On December 14, 2000, Grievant was supervising the inmates in the kitchen by himself. The Agency prefers for more than one Food Operations Manager to work at the same time but because of staffing shortages it is not uncommon for one Food Operations Manager to work alone. As breakfast was ending at approximately 8 a.m., Grievant was taking a break sitting at one of the dining tables and facing towards the entrance to the kitchen. The kitchen grill was located behind him and to his left. He could not see the grill given that he was facing towards the kitchen entrance. His supervisor walked through the kitchen entrance. Grievant quickly jumped to his feet and walked towards the back door of the kitchen. This area is away from the grill. The Supervisor had previously asked Grievant to make sure the back door was closed. When Grievant saw the Supervisor he wanted to get to the back door as quickly as possible to make sure it was closed so that he could avoid being criticized by the Supervisor.

The Supervisor walked past where Grievant was sitting and back to the grill. He observed two inmates cooking omelets. No egg products were on the menu for the day. The Supervisor asked the inmates if Grievant had authorized them to make omelets. Neither one said Grievant authorized them to make omelets.

The inmates had obtained the eggs from a refrigerator near the grill. The refrigerator is supposed to be locked. The lock had been broken for over eight months. Grievant and the other Food Operations Managers had repeatedly informed the Supervisor and his supervisor that the locks on the refrigerator were broken and needed repair. A work order had been placed with the appropriate maintenance staff, but the locks had not been replaced. Shortly after the events giving rise to Grievant’s discipline, the locks were fixed.

Grievant did not see the inmates cooking on the grill. While he was sitting at the table looking forward, the inmates were behind him to his left. Had he turned to look at the grill, he could have seen the inmates next to the grill but not been able to see what they were doing on the grill. There was at least one bread and/or tray rack between Grievant and his line of sight to the grill. The racks are approximately two feet wide and six feet tall. A small wall also blocked Grievant’s view of the grill.

The Department of Corrections’ Procedures Manual 5-22 governs employee relations with inmates. Section 5-22.7(C) states:

The Hearing Officer interprets the phrase "extend or promise" to require evidence that an employee knew or should have known that his or her actions amounted to the granting of special privileges to an inmate. For example, if an employee knowingly authorized inmates to cook omelets for themselves when omelets are not on the menu for other inmates, the employee would likely have granted special privileges to inmates.

The Agency failed to produce sufficient evidence to establish that Grievant knew or should have known the inmates were cooking omelets on the grill. The Agency contends Grievant had a clear view of the inmates cooking on the grill and should have known they were cooking omelets. The Supervisor testified that Grievant was sitting on the middle seat of a long table with three seats on each side. According to the Supervisor, Grievant had his feet propped on the seat to his left and thus he was faced in the direction of the grill. Grievant testified that he was sitting in the middle seat looking forward and, thus, the grill was to his back left side and he could not see the inmates. The Grievant’s account is more credible than the Supervisor’s account because the Supervisor testified that the Grievant was leaning back while sitting. If the Grievant had been leaning back, he would not have had anything to lean against and be in an uncomfortable position. Surely Grievant could not have been sitting in the manner described by the Supervisor for more than a very short period of time.

Grievant’s reaction to the Supervisor entering the kitchen also reveals his knowledge of activities in the kitchen. Grievant quickly jumped from his seat and walked towards the back door of the dishwashing area of the kitchen. Grievant admits he feared being caught by the Supervisor with the back door open when the Supervisor had previously advised him to make sure the door was closed. If Grievant had known the inmates were cooking omelets on the grill, surely he would have walked immediately to the grill and told the inmates to stop cooking. The grill was much closer to where Grievant was sitting than was the back door.

Even if Grievant were sitting with his body angled towards the kitchen as the Agency contends, he would not necessarily have known the inmates were cooking omelets. There is a short wall next to the grill that would have blocked the Grievant’s view of the grill surface. In addition, the bread or tray racks blocked Grievant’s view of the grill.

The fact that inmates were standing next to the grill does not by itself suggest that Grievant should have known they were cooking on the grill. Breakfast was over and the inmates were cleaning the kitchen. The Agency argues that since the grill was not used to prepare breakfast that morning there was no need to clean the grill. Thus, when Grievant saw the inmates near the grill he should have known they were not cleaning the grill but rather were cooking on the grill. Grievant testified very credibly that he instructed the inmates to clean the entire kitchen including the grill because prior shifts did not always properly clean the grill and he did not want to have to hear the complaints of the following shift or his supervisors that the grill was not cleaned.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group I Written Notice of disciplinary action is rescinded. GPM § 5.9(a). The Agency is directed to remove the Written Notice from the Grievant’s personnel file in accordance with Department of Corrections Procedures Manual § 5-10.19(B) (June 1, 1999).

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