In the matter of Department of Social Services Case Number 5176

Hearing Date: May 9, 2001
Decision Issued: May 14, 2001

Because of participant availability for the hearing, the earliest mutually available date on which the hearing could be docketed was the 33^rd day following appointment of the hearing officer.

Grievant
Two Attorneys for Grievant
Two witnesses for Grievant
Representative for Agency
Agency District Manager
Four witnesses for Agency

Did the grievant’s statements on November 21, 2000 warrant disciplinary action under the Standards of Conduct? If so, what was the appropriate level of disciplinary action for the conduct at issue?

The grievant filed a timely appeal from a Group I Written Notice issued on December 15, 2000 for unsatisfactory job performance in the form of unprofessional behavior toward a client. Following failure to resolve the grievance at the third resolution step, the agency head qualified the grievance for a hearing.

The Department of Social Services (hereinafter referred to as agency) has employed the grievant as an office services specialist for 12 years. Her most recent annual performance appraisal rated her as meeting expectations overall, and as exceeding expectations in providing quality customer service.

Late in the afternoon of November 21, 2000, the grievant met with a custodial parent and her infant child in an interview room at the agency’s district office. The custodial parent is Caucasian. During the interview, she indicated that the putative father of her child is African-American. The grievant was completing an intake form for the infant child relating to the application for benefits. One of the required entries on the form is the race of the child. Grievant asked the mother for the race of the child; the mother responded that the child is Caucasian and that response was entered on the intake form.

During the interview, the custodial parent asked the grievant if she knew whether the putative father would be responsible for the child’s hospital bill. Grievant responded that he would not be responsible because the child is a bastard. Later in the interview, the custodial parent said she had told the grievant that the putative father had requested a blood test to ascertain whether he was the father of her child. The grievant responded that she, "didn’t blame him if she (the custodial parent) ran around with a bunch of blacks."

The custodial parent was upset at the grievant’s remarks but said nothing at the time because she does not like to cause trouble for other people. The following day, she related the grievant’s statements to her mother. Within another day or two, the custodial parent’s mother related the story to the putative father’s mother. The father’s mother was particularly incensed that her grandchild had been called a bastard and insisted that this matter should be reported to the agency.

On November 28, 2000, the custodial parent returned to the district office with her child, her mother and the putative father’s mother. They spoke with a supervisor and related what had occurred during the November 21, 2000 interview. On December 11, 2000, the custodial parent was interviewed by the district manager and related the same events to him. Subsequently, the district manager interviewed the grievant and asked her about the "bastard" remark. Grievant’s initial response was that there was nothing wrong with using the word bastard because it is a legal term used in court proceedings involving children born out of wedlock.

The grievant’s supervisor issued the Written Notice to grievant on December 15, 2000. The attached supporting memorandum from the supervisor cites that there were two additional people present during the November 21^st interview. No evidence was produced during the hearing to support this assertion and the agency conceded that, in fact, the only people in the interview room were the custodial parent, her infant child and the grievant. The supervisor also stated in that memorandum that she had previously warned grievant about similar behavior in June 2000. In fact, the supervisor had actually spoken with grievant in May 1999 about a customer relation’s incident.

Until January 2001, the grievant had received differing instructions on how to approach the sensitive question of a bi-racial child’s race. The most recent instruction the grievant had heard prior to November 21, 2000 was to ask the mother of the child to designate the child’s race. In the past, policy had been to simply designate whatever race the mother or father appeared to be. After the Written Notice had been issued in this case, grievant’s supervisor issued a directive to her staff acknowledging the problems that had been occurring and directing staff that they avoid this question during the interview. When the agency subsequently receives the child’s birth certificate, it will use the race shown on that document to complete the agency records.

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.¹ The following procedural due process is required before disciplinary action:

Prior to . . . any disciplinary suspension, employees must be given

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 of the Code of Virginia, the Department of Personnel and Training² 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.

The Department of Social Services has promulgated its own Standards of Conduct patterned on the state Standards, but tailored to the unique needs of the Department. Section E.3 of the Department’s Standards of Conduct addresses types of behavior least severe in nature but which will require correction in the interest of maintaining a productive and well-managed workforce. One example of a Group I offense is "inadequate or unsatisfactory work performance."³

The word "bastard" has multiple meanings. Its primary meaning is "an illegitimate child," but it is also defined as "something that is spurious, irregular, inferior, or of questionable origin," "an offensive or disagreeable person," "of inferior breed or stock," "lacking genuineness or authority."⁴ Because its primary meaning is illegitimate child, it is indeed used in legal proceedings. However, this term has always been considered distasteful and has always carried with it a stigma because of society’s disapproval of those who have children outside of marriage. Thus, while the term may be technically correct in this situation, its use by a state employee in referring to a client’s child is totally inappropriate because of the odious connotation the word carries.

The only direct evidence in this case is the testimony of the custodial parent and the testimony of the grievant. The grievant denies that she used the word bastard or made any derogatory statements about the putative father. The custodial parent presented convincing and persuasive testimony that the grievant did make such statements. While grievant has a disciplinary action at stake in this case, the custodial parent has nothing to gain by fabricating what occurred. The evidence revealed no possible motivation for the custodial parent to lie about this incident.

Circumstantially, grievant’s initial reaction to the district manager’s question about use of the word bastard was an attempt to defend her use of the term by pointing to its use in legal proceedings. If grievant had not used this word at all, it is more likely than not that her initial reaction would be to deny using the term rather than attempt to defend herself by stating that it is used in court proceedings.

Ultimately, this case must be decided on the credibility of the two participants in the November 21, 2000 interview. The Hearing Officer finds the testimony of the custodial parent more credible than that of the grievant because the parent has nothing to gain from this incident and no motivation to falsely report such an incident.

The disciplinary action of the agency is affirmed.

The Group I Written Notice issued to the grievant on December 15, 2000 for unsatisfactory work performance is AFFIRMED. This Written Notice shall be retained in the grievant’s personnel file for the period specified in Section G.2.b of the Social Services 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