In the matter of Department of Corrections Case Number 5187

Hearing Date: May 21, 2001
Decision Issued: June 20, 2001

On December 15, 2000, Grievant was issued a Group II Written Notice of disciplinary action for:

On January 11, 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 April 18, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On May 21, 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.

Grievant
Grievant’s Representative
Chief Warden
Agency Representative
Female Officer
Eight other witnesses

Whether Grievant should receive a Group II 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:

The Department of Corrections employs Grievant as a Corrections Sergeant. He assists with daily and weekly inspections of a housing unit within the Facility. He also supervises correction officers and the activities within a housing unit. On some occasions, Grievant serves as the Assistant Watch Commander and is responsible for supervising several housing units.

Grievant was promoted to Sergeant in July 1999. His 2000 Performance Evaluation shows his work performance exceeds expectations. Grievant’s supervisor states:

(Grievant’s Exhibit 1). Grievant has worked for the Agency for 14 years and served at several other facilities.

The Female Officer worked for approximately three months as a correction officer at the Facility where Grievant works. She had been working at another facility for three years. Grievant was never the Female Officer’s direct supervisor. He was not in a position to write her performance evaluations. Only when Grievant was serving as the Assistant Watch Commander was she within his line of command. The Female Officer returned to her Former Facility because she did not like the work at Grievant’s Facility and not primarily because of Grievant’s alleged behavior towards her.

The Female Officer testified that in early November 2000, she was ending her shift and was leaning against a gate inside the Facility. She contends that Grievant came up to her and, without saying "Hello" or anything else, simply said "I want you to sit in my face." She did not respond to Grievant and simply walked away. The comment made her feel uncomfortable. On November 9, 2000, the Female Officer spoke with the Captain who was the Watch Commander and told him she was having problems with a supervisor in her housing unit. She refused to identity that supervisor because she did not want him to get in trouble. On December 1, 2000, Grievant had a conversation with another sergeant at which time she mentioned Grievant’s comment to her. The Female Officer and the sergeant filed internal incident reports and the Agency began its investigation. (Agency Exhibit 3).

The Female Officer gave inconsistent accounts within a two-day period. On December 1, 2000, she filed a handwritten Internal Incident Report stating:

(Agency Exhibit 5).

On December 3, 2000, the Female Officer wrote a typewritten note addressed "To Whom It May concern:"

(Agency Exhibit 4).

Throughout the Agency’s investigation, Grievant denied making the statement to the Female Officer. He testified at the hearing that he made no such statement.

The Agency presented several examples showing the relationship between Grievant and the Female Officer was not appropriate. First, Grievant would frequently attempt to contact the Female Officer in person and by radio and she would refuse to speak with him. When Grievant would try to talk to the Female Officer while she was working at her post, the Female Officer would "brush him off" and refuse to speak with Grievant. The Female Officer, however, never told Grievant "I don’t want to be bothered." On several occasions, Grievant would ask the Female Officer to "come here" and she usually responded "no". Second, Grievant joined the Female Officer while she was conducting a "roving patrol". A roving patrol is when an officer travels outside the perimeter of the Facility, from tower to tower, and examines the security of the Facility’s outer fences and areas. When Grievant joined the Female Officer, the length of the roving patrol was approximately an hour longer than otherwise necessary. Grievant denies the patrol took an extra hour but said it did take longer than usual because he was showing a new employee areas of the grounds with which she was not familiar. Third, Grievant failed to reprimand the Female Officer when she refused to speak with him or told him to go away. If Grievant had intended to speak with her regarding Agency business, her actions would have constituted insubordination requiring Grievant to discipline her.

Employees working at the Facility often use radios to communicate. When one employee uses the radio, all other employees can hear the radio conversation unless the person calling makes an "individual call". Only supervisors, including Grievant, have radios allowing them to make individual calls. To make an individual call, the supervisor pushes the appropriate button on the radio and enters the number of a specific radio. The radio receiving the individual call quickly beeps five times letting the person receiving the call know that the call is an individual call. Because there was too much individual call radio traffic, the Facility changed its policy to prohibit individual radio calls except in the case of emergencies. Witness testimony was inconsistent regarding when the policy was changed but it was probably in the Fall of 2000.

The Agency’s communication system documents radio calls between radios. The system records (1) the radio used to make a call, (2) the radio used to receive a call, and (3) whether the call is an individual or group call. On November 4^th and 5^th, 2000, Grievant was working as Operations Supervisor and was assigned call sign 5-2. The Female Officer was working in Housing Unit 4 as a Lower Control Officer and was assigned call signal 4-2. The communication systems’ Activity Detail Report shows Grievant made numerous group and individual radio calls on November 4^th and 5^th, 2000. He called the Lower Control Officers in Housing Units 1 and 2, but not in Housing Unit 4 where the Female Officer was working.¹ (Agency Exhibits 7, 8, 9, 10, 11).

The Department of Corrections has issued Procedure Number 5-10 to establish the Standards of Conduct expected of its employees. Unacceptable behavior is divided into three types of offenses, according to their severity. Group I offenses are the least severe and Group III offense are the most severe. Department of Corrections Procedure Manual "(DOCPM") § 5-10.13. Group II offenses include acts and behavior such that receiving an additional Group II offense should normally warrant removal. Group II offenses include, "Violation of DPT² Policy 2.15, Equal Employment Opportunity (considered a Group II offense, depending upon the nature of the violation)." DOCPM § 5-10.16(B)(9).

Sexual harassment is a prohibited practice under the Department of Human Resource Management’s Policies and Procedures Manual ("P&PM"), Policy 2.15 because it could subject both the Commonwealth and individual agencies to financial liability. As defined in guidelines published by the U.S. Equal Employment Opportunity Commission, sexual harassment includes sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

1. submission to such conduct is made explicitly or implicitly a term or condition of an employee’s employment;

2. submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting that individual; and/or

3. such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.

P&PM § 2.15(II)(B). See also, 29 CFR § 1604.11.

The third example, above, is commonly referred to as a hostile work environment.³ To establish a hostile work environment claim, "the claimant ‘must prove: (1) that she was harassed ‘because of [her] ‘sex;’ (2) that the harassment was unwelcome; [and] (3) that the harassment was sufficiently severe or pervasive to create an abusive working environment…."⁴ Hartsell v. Duplex Products, Inc., 123 F.3d 766, 772 (4^th Cir. 1997) (quoting Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 142 (4^th Cir. 1996)).⁵

To determine whether sexual harassment occurred, the Hearing Officer must "look at the totality of the circumstances …." 29 CFR § 1604.11(b). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, the Supreme Court held that these circumstances:

The Female Officer testified that Grievant said "sit in my face." Grievant testified that he never made such a statement to the Female Officer. Each witness testified credibly.⁶

When the demeanors of contradictory witnesses are credible, the Hearing Officer looks to see whether there are other factors suggesting the account of one witness is more reliable than the account of the other witness. For example, the Hearing Officer must determine if there is a significant pattern of behavior by a witness, other credible witnesses who corroborate testimony, or inconsistencies in the testimony of the witness.

The Agency argues that because Grievant regularly attempted to contact the Female Officer on a private channel of the radio, he showed unusual behavior suggesting he may have said "sit in my face." This argument lacks merit. Although Grievant regularly attempted to contact the Female Officer on the private channel of his radio, he also regularly attempted to use the individual channel to contact his male supervisor and numerous other male and female employees working at the Facility. Grievant’s use of the private channel reflects more his disregard or ignorance of the Facility’s restrictions on radio use than his attempts to privately contact the Female Officer.

There are several factors suggesting Grievant did not make an inappropriate comment to the Female Officer. For example, no evidence was presented that Grievant had ever made inappropriate comments or made inappropriate advances towards any other female employees. The Female Officer knew very little about Grievant’s personal life because he had not revealed a great deal about himself during those time she would talk to him. Grievant never asked the Female Officer out on a date or to lunch or dinner. He only called her one time at her home and the topic of the brief conversation was whether the Female Officer wanted to purchase a sweater with the Facility’s logo on it. The Female Officer filed two inconsistent accounts of what happened. In the first account she complains about Grievant’s supervision style over a three day period and his "short sassy answers." Only in the second account does she reference Grievant’s alleged comments.

Each witnesses’ testimony was credible and, thus, it is equally likely that Grievant and the Agency’s positions are correct. Because the burden of proof is on the Agency, the Agency has not established that Grievant said "sit in my face" and engaged in sexual harassment.

Although the Agency did not establish that Grievant engaged in sexual harassment, it did show that Grievant had a heightened interest in or "a crush" on the Female Officer. Grievant’s actions towards the Female Officer were annoying to her and were not necessarily related to operating the Facility. If his comments to her were of a personal nature, then he should have realized she did not want to have personal discussions with him. If his comments were of a business nature, he should have reprimanded her for refusing to discuss business with a superior. In either instance, Grievant’s behavior constitutes inadequate or unsatisfactory work performance justifying a Group I Written Notice under the DOC Standards of Conduct. DOCPM § 5-10.15(B)(4).

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

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.