In the matter of Department of Corrections Case No. 5171

Hearing Date: April 23, 2001
Decision Issued: April 27, 2001

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

Grievant was demoted from a Sergeant to a Corrections Officer Senior.

On January 18, 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 April 23, 2001, a hearing was held at the Agency’s regional office.

Grievant
Counsel for Grievant
Warden
Legal Assistant Advocate
Captain
Sergeant
Assistant Warden Operations
Four Corrections Officers
Two Sergeants
Former Sergeant

Whether Grievant should receive a Group III Written Notice of disciplinary action with demotion.

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 is a Corrections Officer Senior with the Department of Corrections. Before being demoted, he had been a Sergeant for approximately two years. Before becoming a Sergeant, Grievant served as a Corrections Officer and a Corrections Officer Senior for approximately eight years. He had received evaluations showing he met expectations. No prior disciplinary action had been taken against him.

On December 21, 2001, Grievant and the Former Sergeant engaged in "horseplay" with a good friend and co-worker, the Sergeant. Grievant and the Former Sergeant were changing to a different shift so they decided to give the Sergeant "a going away present". They were in a hallway inside the Facility. When the Sergeant came into the hallway, Grievant and the Former Sergeant grabbed the Sergeant. The Sergeant resisted but was forced into the equipment room adjacent to the hall. The equipment room contained handcuffs, leg shackles, two tables, and some computer equipment. Grievant and the Former Sergeant forced the Sergeant to lay on his back on a table and the Sergeant was cuffed to the table legs with handcuffs and leg irons. The Sergeant’s pants and underclothing were pulled down. The Former Sergeant wrapped clear tape around the Sergeant’s genitals. Several minutes later, the Sergeant was released. Grievant and the Former Sergeant were laughing during this event. The Sergeant was not laughing because he was embarrassed and concerned that the Administrator On Duty might walk into the room and fire all three of them.

The Former Sergeant took two pictures of the Sergeant with a Polaroid camera. Grievant and the Former Sergeant intended to give the pictures to the Sergeant as his "present". The pictures were subsequently destroyed and were not given to the Sergeant.

Grievant and the Former Sergeant were supervised by the Captain. The Captain knew of the Grievant’s plan and did nothing to stop the Grievant. When the Sergeant arrived at the hall, the Captain contacted a corrections officer to ask that officer to secure one of the doors to the hallway so that others would not observe the Grievant and the Former Sergeant grabbing the Sergeant. The Captain observed the Sergeant being shackled to the table but did nothing to stop the Grievant. Someone attempted to reach the Captain by telephone and he left the room briefly. After taking the telephone call, the Captain returned to the equipment room and watched the "horseplay" while laughing with the Grievant and the Former Sergeant. The Agency disciplined the Captain for his involvement, but did not demote him.

Procedure Number 5-10 governs disciplinary action for the Department of Corrections. (Agency Exhibit 7). Unacceptable behavior is divided into three types of offenses under the Procedure. Procedure 5-10.13(A). Group III offenses "include acts and behavior of such a serious nature that a first occurrence should normally warrant removal." Procedure 5-10.17(A). Some examples of Group III offenses include:

• Acts of physical violence or fighting.
• Threatening or coercing persons associated with any state agency (to include employees, supervisors, patients, visitors, students, etc.)
• Physical abuse or other abuse, either verbal or mental, which constitutes recognized maltreatment of inmates or wards.

Examples given under the Procedure are not exclusive. Behavior of a similar nature may constitute a Group III offense even though an example of the behavior is not listed. Procedure 5-10.17.

Grievant’s behavior is best described as hazing and is of such a serious nature that it rises to the level of a Group III offense. Grievant’s behavior amounted to a physical assault on the Sergeant even though the behavior was not intended to harm the Sergeant.

An Agency may terminate an employee who commits a Group III offense unless mitigating circumstances exist. Mitigating circumstances include (1) those conditions related to an offense that would serve to support a reduction of corrective action in the interest of fairness and objectivity and (2) consideration of an employee’s long service with a history of otherwise satisfactory work performance. Mitigating circumstances justify the use of demotion, transfer, or suspension as an alternative to removal. Procedure 5-10.13(B).

It is not appropriate to terminate Grievant given his long service and otherwise satisfactory work performance. The Agency chose to demote Grievant rather than suspending him or transferring him to another position. No other lateral positions were available for transfer. The question is whether the mitigation selected by the Agency was appropriate under the circumstances. The Hearing Officer concludes that the Agency appropriately mitigated the Group III corrective action by demoting Grievant.

Grievant argues that because the Captain was not demoted when he knew of and tacitly condoned the Grievant’s behavior, Grievant likewise should not be demoted. According to Grievant, it is unfair to treat the Captain and the Grievant unequally. The Hearing Officer agrees that the Captain and the Grievant are being treated unequally. The solution, however, is not to lessen Grievant’s discipline. The Captain was disciplined but not demoted because the Agency was not fully aware of his level of involvement in the incident. When the Agency disciplined the Captain, the Warden believed the Captain had witnesses the Sergeant being taken into the equipment room but left to respond to a telephone call and then returned only after the Sergeant had been released. For whatever reasons, the Warden was not aware of the depth of the Captain’s planning and participation. Unfortunately, the Captain escaped harsher discipline.

Grievant argues that his actions were not as severe as they may appear when those actions are viewed in the context of the fraternity among corrections officers. Grievant presented evidence of other incidents of horseplay among corrections officers. Typically, employees who were liked by their peers were most likely to be the victims of horseplay. Most of the incidents occurred in the Facility’s parking lot or away from the main buildings. Grievant also presented evidence that Agency mid-level supervisors were aware of the practice. For example, in staff briefings, supervisors would sometimes announce that particular employees were leaving the Agency or changing shifts and then state words to the effect of "if you are going to get them, get them in the parking lot."

Grievant’s argument fails for several reasons. First, no evidence was presented that the Facility’s Warden or other senior managers were aware of and condoned these other acts of horseplay. Indeed, the evidence suggested that the corrections officers involved in the horseplay arranged the activities in a manner designed to avoid detection by senior Facility managers. Second, the other acts of horseplay occurred in the parking lot or detached buildings away from the central part of the Facility. Grievant’s actions took placed in the equipment room of the main correctional Facility. His behavior could have disrupted Facility operations.

Grievant argues that his punishment is excessive in light of the absence of any real harm done to the Sergeant and the Sergeant’s agreement that Grievant’s behavior was all in good fun. The evidence was clear that there exists a great deal of camaraderie among the Grievant, Former Sergeant, and the Sergeant. The Sergeant stated that "No harm was done and I do not feel violated in any form." He mentioned, however, that a few other employees had learned of the incident and made comments to him that he did not appreciate.

The Sergeant appears to be an individual with honor and pride who would like to assist his friends to the extent he can do so. Grievant’s behavior, however, must be viewed from a broader perspective than whether the Sergeant perceived he had been harmed. Demotion is appropriate when all factors are considered.

The only concern the Hearing Officer has about the severity of the discipline in this matter is the extent to which the Grievant’s future career advancement is limited by this incident. It is clear to the Hearing Officer that Grievant’s lapse in judgment is an isolated instance in an otherwise solid career serving the Commonwealth in a job that is emotionally and physically difficult to perform. The Warden testified that he previously had promoted other supervisors even though they had received disciplinary action once he believed those employees had established a pattern of exercising good judgment and performance. When the Agency is faced with a decision of whether to promote Grievant, the Hearing Officer recommends that the Agency, in its sole discretion, treat this disciplinary action as an isolated incident and evaluate Grievant’s candidacy based on his work performance.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group III Written Notice of disciplinary action with demotion is upheld.

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