In the matter of Department of Correctional Education’s Case Number 5185

Hearing Date: May 15, 2001
Decision Issued: May 17, 2001

Due to availability of the participants, the hearing could not be docketed until the 33^rd day following appointment of the hearing officer.

The documentary evidence in this case includes two Written Notices, both of which were purportedly issued on December 1, 2000. Testimony during the hearing clarified that the Written Notice signed by the grievant on December 1, 2000¹ was, in fact, issued on that date. After issuance, it was determined that the initial date of suspension was incorrectly written as 12/4/2000 but should have been 12/5/2000. Upon grievant’s return to work following his suspension, he signed a corrected copy of the Written Notice on December 20, 2000.²

Grievant
Attorney for Grievant
Legal Representative for Agency
Human Resource Director
Four witnesses for Agency

Did the grievant’s actions on November 13, 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 III Written Notice issued on December 1, 2000 for an act of physical violence, violation of safety rules and failure to report such incident to his supervisor. The grievant was suspended from work for ten working days as part of the disciplinary action. Following a denial of relief at each resolution step, the Written Notice was upheld. The agency head subsequently qualified the grievance for a hearing.

The Department of Correctional Education (DCE) (hereinafter referred to as agency) has employed the grievant as a science teacher for 2 ½ years.

Agency policy provides that employees should exercise a high degree of professional conduct when dealing with clients (inmates in the state correctional facilities). Specifically, the policy provides, in pertinent part:

1. Clients shall be treated humanely. Any form of abuse, such as corporal punishment is prohibited.
2. A quiet but firm manner shall be maintained toward clients.

8. Observed incidents or suspicions of planned incidents shall be immediately reported to the employee’s supervisor or the appropriate officer. (Underscoring added)
9. At all times, employees should be respectful, polite, and courteous in their contact with clients, as well as with citizens and other employees. Such behavior is essential to maintaining order, control, and good discipline, and in effectively and efficiently carrying out the mission of the DCE.³

In June 1999, the grievant had been given counseling regarding an incident in which he had been observed to be engaged in physical horseplay with an inmate. The inmate had grabbed the grievant from behind and grievant had then broken the inmate’s hold on him. There was no hostility involved in this incident and grievant characterized it as friendly horseplay. The assistant principal counseled grievant that he "should always refrain from engaging in any type of physical ‘play’ which could become confrontational and/or volatile."⁴ This counseling was documented in a letter from the principal to the grievant.

At about 10:30 a.m. on November 13, 2000, grievant and one other teacher entered a pod (section of a building) to conduct classes. They were in the pod for approximately 30 minutes. During that time an 18-year-old inmate who is approximately 5’ 5" tall and weighs about 130 pounds was sitting in the same room but was not participating in the class. He was seated with his back to the wall, a small table to his right and a correctional officer was seated in a chair on the opposite side of the table, with her back to the same wall. From time to time, the inmate would make comments to the grievant that grievant found to be offensive. When the teaching session ended, grievant and his fellow teacher approached the pod door and "buzzed out" in order to get the door opened by the security officer.

At this time, the juvenile inmate was still seated and grievant was from 12-15 feet away walking towards the door. The inmate again taunted grievant stating, "I’m going to fuck you up." Grievant turned and asked the inmate what he was going to do. The inmate said words to the effect of, "I bet you won’t come over here and say that in my face." Grievant, who is significantly taller and heavier than the inmate, walked over to the inmate, stood directly in front of him approximately six inches to a foot away and stated, "I’m here; what are you going to do." The inmate leaned forward and stood up. Because of the proximity of the grievant, the inmate’s shoulder hit the grievant’s stomach as the inmate was rising from his chair. Grievant grabbed the inmate by his T-shirt and pushed him backwards so that he partially fell onto the table. The correctional officer immediately called for assistance on her portable radio. Grievant then released the inmate and exited the pod with the other teacher.

The juvenile inmate was examined by a nurse and found to have a bruise on his left arm. Grievant did not complete an incident report or otherwise report the incident. However, both the other teacher and the correctional officer completed and submitted incident reports soon after the incident. When these reports were completed, the principal was notified of the incident at 4:00 p.m. She contacted grievant to discuss the matter and asked for his incident report. The grievant then filled out an incident report pursuant to the principal’s request.

For approximately three months prior to this incident, the juvenile inmate had similarly taunted grievant on several occasions, and on at least one occasion, had initiated physical contact with grievant. Grievant had reported some of these incidents to correctional officers but they took no action to control the inmate. Grievant also completed an incident report regarding some of these incidents and turned them in to the Department of Juvenile Justice. He did not receive any feedback as to whether action had been taken. He did not follow up with his superiors regarding these incidents or ascertain what action may have been taken on the incident reports he had filed.

Grievant has not received specific training normally given to new teachers for dealing with inmates. He was, however, in a "leader" program in which the instructor told him to promptly confront issues as they occur so that they do not escalate.

As far as could be determined from those who testified during the hearing, there have been no other cases of physical interaction by a teacher against an inmate.

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.⁵The 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 Training⁶ 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.

Section V.B.3 of the Commonwealth of Virginia’s Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60 provides that Group III offenses include acts and behavior of such a serious nature that a first occurrence normally should warrant removal. Among the examples of Group III offenses are:

f. Fighting and/or other acts of physical violence.

g. Violating safety rules where there is a threat of physical harm.⁷

Group II offenses include acts and behavior which are more severe in nature [than Group I offenses] and are such that an accumulation of two Group II offenses normally should warrant removal. One example of a Group II offense is failure to follow a supervisor’s instructions, perform assigned work, or otherwise comply with established written policy.⁸

The agency based its disciplinary action on three elements involved in the grievant’s actions on November 13, 2000 – an act of physical violence, a violation of safety rules and a failure to report the incident to his supervisor. By the grievant’s own admission, as well as a preponderance of the evidence, he did engage in an act of physical violence (discussed further below). However, the agency has not demonstrated that any specific "safety rule" was violated. In fact, the documentary evidence submitted does not include any policy that is characterized as containing safety rules. The stated purpose of Policy 1-17 regarding employee/client relations is the establishment of rules of conduct. While grievant did not fully adhere to the procedures stated in that policy, the procedures he violated are not, per se, safety rules.

The grievant did fail to report this incident to his supervisor – a violation of Section VI.H of Policy 1-17. However, the agency has not shown that grievant had received this policy, had read the policy or had been given formal training on this policy. Nonetheless, given grievant’s past experience in submitting multiple incident reports, it is more likely than not that grievant was sufficiently familiar with the requirement. Thus, the grievant knew, or reasonably should have known, that his physical altercation with the juvenile inmate should have been promptly reported to his supervisor.

It is undisputed that the act of physical violence occurred. Grievant argues, however, that mitigating circumstances exist which justify his actions. The juvenile inmate had been taunting him for three months. The grievant’s verbal reports to correctional officers and his written incident reports had not had the desired impact because the juvenile continued to make threats and do what he pleased. The repeated taunts and threats had a cumulative negative impact on the grievant; his level of frustration over the situation continued to grow. The Hearing Officer empathizes with the situation in which grievant found himself.

Grievant states that he had been taught to confront issues promptly to prevent an escalation of the behavior. On December 13, 2000, grievant decided to confront the juvenile inmate. Unfortunately, grievant had waited for nearly three months while the inmate’s behavior had continued unabated. Had grievant confronted the juvenile when the threats first started, the outcome of a discussion might not have become physical.

Grievant’s level of frustration on December 13, 2000 was understandable; his actions in response to this frustration were not. Grievant had available to him other reasonable alternatives. He could have continued to leave the facility rather than turning to confront the juvenile inmate. He could have remained 12-15 feet away while he talked with the inmate. If he felt the need to approach him, he could have remained outside the inmate’s personal space. Most significantly, he could have avoided challenging the student by stating, "I’m here; what are you going to do." Given the grievant’s physical invasion of the inmate’s personal space, those words were a direct challenge to the inmate. In effect, grievant put a chip on his shoulder and dared the inmate to knock it off.

Grievant also contends that he did not intend to engage in a physical altercation, and there is no evidence to contradict that assertion. Similarly, however, there is no evidence to show that the inmate intended to bump into the grievant when he stood up. A preponderance of the evidence shows that the inmate accidentally bumped into the grievant as the inmate stood up from his chair. This accident would not have occurred if the grievant had been standing at a reasonable distance (3-4 feet) from the inmate. Grievant could reasonably have foreseen that the inmate might stand up to face him and he could have given the inmate sufficient space to arise from his chair. Once the bump occurred, the grievant could simply have stepped back away from the inmate. Grievant has not shown that the bump was intentional.

Most importantly, grievant has not shown that it was necessary to grab the inmate by the T-shirt and push him backward onto the table. Grievant’s action was, therefore, an act of physical violence born, not of a need to defend himself but of the grievant’s frustration from tolerating the threats of a bully for several weeks. As the adult, and as a teacher, grievant had the ability (and the responsibility) to control this situation from beginning to end. He could have prevented the escalation at five different points after the inmate threatened him.

Grievant points out that the correctional officer failed to fulfill her responsibility to control the inmate. If the correctional officer had stopped the inmate from making threats, the grievant would probably not have decided to confront the inmate. However, the correctional officer’s failure does not justify the grievant’s actions. Grievant also contends that the option of walking away from the inmate would not have been appropriate (even though he had been walking away from the inmate for three months). It is agreed that action was needed to control the inmate, but the grievant’s actions on December 13, 2000 were not only inappropriate but also a violation of policy.

Grievant has requested that he be transferred to an area where there is no threat of physical harm. The Hearing Officer is not familiar enough with the agency’s job positions to determine whether such an area exists. However, if such a position exists, and the agency finds that such a transfer would be in the best interest of all concerned, this suggestion should be given serious consideration.

The disciplinary action of the agency is affirmed.

The Group III Written Notice and 10-day suspension issued to the grievant on December 1, 2000 for an act of physical violence and failure to report the incident to his supervisor is AFFIRMED. This Written Notice shall be retained in the grievant’s personnel file for the period specified in Section VII.B.2 of the Standards of Conduct.

It is recommended that the agency determine whether it has available a position where there is no threat of physical harm and, if it is in the best interest of the agency and grievant, transfer grievant to such position.

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