In the matter of Department of Health’s Case No. 5173

Hearing Date: May 5, 2001
Decision Issued: May 30, 2001

On November 9, 2000, Grievant was issued a Group I Written Notice of disciplinary action for:

On December 14, 2000, 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 29, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On May 5, 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
Grievant’s Representative
Agency Designee
Agency’s Representative
General Administration Manager II
Nursing Supervisor

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 is employed as a Health Counselor II with the Department of Health. The Commonwealth of Virginia has employed her since 1988.

Grievant was absent from work from October 11, 2000 to October 13, 2000 and from October 23, 2000 to October 27, 2000. She was absent because she had had a cyst removed from the top of her spine which became infected and painful such that she could not move. She took "heavy" medication to relieve the pain and was unable to work. Grievant submitted a physician’s note reflecting her absence during the dates in question. Grievant had exhausted her annual, sick, and family leave, so she took leave without pay.

Grievant’s absenteeism prior to October 2000 resulted from her having to assume the duties of caring for very ill family members. Grievant’s father is terminally ill with congestive heart failure. Grievant’s mother cannot care for Grievant’s father due to mental illness. Grievant has a sister living in another State who cannot care for Grievant’s mother and father. Grievant has a brother who suffered a massive brain stem stroke in December 1999. Grievant began caring for her brother and he lived with her until June 2000. Grievant took annual, sick, family/personal and leave without pay for approximately 51 of 260 days during the year 2000.²

Grievant worked at home while on leave without pay in order to carry out her job duties. She did not seek payment for that work. Grievant has a pager enabling her patients to contact her at any time during the day, evening, or weekend. No credible evidence was presented showing Grievant’s absence adversely affected Grievant’s co-workers or materially affected the Agency’s operations.

On October 10, 2000, Grievant received a performance evaluation rating her overall performance level as Exceeds Expectations. Grievant’s performance plan has six job elements and expectations ordered from the most to the least important. Her evaluation of those job elements and expectations states:

(Agency Exhibit 4).

"Unsatisfactory attendance" is a Group I offense under the Standards of Conduct, Policy 1.60, established by the Department of Human Resource Management. Offenses under Policy 1.60 are organized into three groups with a Group I offense being the least severe. It is not necessary to perform a detailed and lengthy analysis of whether the Agency has established that Grievant’s behavior rises to the level of a Group I offense. Sufficient mitigating circumstances exist to rescind the disciplinary action.

A Hearing Officer may reduce disciplinary action if mitigating circumstances exist such as:

1. Conditions that would compel a reduction in the disciplinary action to promote the interests of fairness and objectivity; or
2. An employee’s long service or otherwise satisfactory work performance.

Grievant’s evaluation reveals "otherwise satisfactory work performance" justifying mitigating the disciplinary action. No evidence was presented suggesting Grievant failed to perform her assigned duties or inhibited the Agency’s ability to carry out its business activities. Her overall rating of "Exceeds Expectations" shows she was performing her duties better than expected. Grievant’s work performance justifies mitigating the disciplinary action taken against her.

The Agency argues that Grievant’s excessive absenteeism caused some of Grievant’s team members to complain that Grievant was receiving favorable treatment. When team member complaints are compared to the personal tragedies experienced by Grievant, those complaints do not seem as significant as they might under different circumstances.

An important purpose of issuing disciplinary action is to address prior behavior in order to improve an employee’s future behavior. Policy 1.60 frequently refers to taking "corrective action", meaning taking action intended to correct some problem. The behavior problems Grievant has with respect to her attendance are not problems that she can control. The Agency’s disciplinary action cannot have the effect of improving her attendance when her absences are beyond her control. The Hearing Officer believes that the "interests of fairness and objectivity" require the Agency’s disciplinary action to be mitigated under the facts of this case. The Agency’s action must be reversed.⁵

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group I Written Notice of disciplinary action is rescinded.

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