In the matter of Department of Juvenile Justice Case Number 5189

Hearing Date: May 18, 2001
Decision Issued: May 21, 2001

For administrative reasons relating to the location of the hearing site and due to availability of the participants, the hearing could not be docketed until the 30^th day following appointment of the hearing officer.

Grievant was under the mistaken impression that her discharge from employment occurred as a consequence of the disciplinary process provided in the Commonwealth’s Standards of Conduct Policy 1.60; the relief she seeks is to change the discharge to a Group I Written Notice. Grievant was advised during the hearing that the agency’s discharge action was taken pursuant to Performance Planning and Evaluation Policy 1.40. The relief available under this policy is to require that the performance evaluation process be redone if it appears that the evaluation is flawed.

Grievant
Legal Representative for Agency
Director
One witness for Agency

Was the grievant’s performance such as to warrant discharge from employment pursuant to the Commonwealth of Virginia Performance Planning and Evaluation Policy?

The grievant filed a timely appeal from her discharge from employment effective April 2, 2001 because her performance failed to meet minimum expectations. Grievant was notified of the discharge on February 1, 2001 and given two months within which to seek other employment. Grievant filed her grievance on March 1, 2001. Following failure to resolve the grievance at the third resolution step, the agency head qualified the grievance for a hearing.

The Department of Juvenile Justice (hereinafter referred to as "agency") has employed the grievant as a probation officer since 1985. Until 1997, grievant had performed her job satisfactorily. Beginning in that year, however, the grievant’s performance in some job elements, most notably documentation of services, declined although her overall performance met expectations. This problem continued during the 1998 and 1999 performance cycles. In April 2000, grievant’s supervisor gave her an interim performance evaluation noting the deficiencies in her documentation of cases. On July 25, 2000, the Director gave the grievant written counseling noting deficiencies in her work and attendance.

On October 16, 2000, grievant received her annual performance evaluation for the cycle ending on October 31, 2000. The overall performance level on that evaluation was "Does Not Meet Minimum Expectations."¹ The evaluation, which she reviewed, discussed with her supervisor, and signed, advised that her performance required immediate improvement and that she would be reevaluated in three months. It also stated that if overall performance did not reach the level of "Fair But Needs Improvement" or higher, she would be separated from her position. Grievant did not appeal or grieve this evaluation. Grievant did not take the evaluation as seriously as she should have.²

During the following week, grievant and her supervisor formulated a Plan of Action, ³ which grievant signed on October 25, 2000. The Plan focused on four major areas for improvement – arrival at work on time, bringing her caseload to a current status, weekly completion of time sheets, and advising her supervisor immediately if she was unable to work as scheduled. During the next three months, grievant’s supervisor kept the grievant informed of her status by giving her periodic counseling letters and by agreeing to meet on a weekly basis. It was agreed by grievant and her supervisor that she would bring eight files up to standards not later than November 17, 2000. By that date, grievant had brought only five files up to standards.

Grievant’s supervisor counseled her, verbally and in writing, on November 17, 2000 that she was spending too much time socializing in the office, missing too much time from work (three days absence and several tardies since October 16, 2000) and, had failed to turn in weekly time sheets. Grievant was given permission to work overtime and to take work home but she did this on only one occasion, stating that she her first priority was her children. The supervisor also accommodated grievant by allowing her to come to work at 8:45 a.m. The supervisor counseled grievant in writing on December 1, 2000 regarding her failure to appear at a court coverage date to which she was assigned. This incident resulted in a telephone call from the Juvenile and Domestic Relations Court Judge to the agency.

In early January 2001, grievant’s supervisor was concerned that her performance had still not improved to the level of expectations specified in the Plan of Action. Since October 16, 2001, the supervisor had not assigned any new cases to the grievant; she received only two old cases that she had previously supervised.⁴ He decided to take disciplinary action in order to make clear to grievant that her performance was still unacceptable. He issued a Group I Written Notice on January 8, 2001⁵ noting that grievant was not adequately documenting her contacts and that she had brought only seven files up to standards by December 19, 2000 while the Plan of Action required that 16 files be completed by that date.

On February 2, 2001, pursuant to the requirement for a three-month reevaluation, the supervisor completed a performance evaluation of grievant’s performance from October 16, 2000 through January 26, 2001. He noted that grievant had substantially failed to meet the requirements in the Plan of Action by bringing up to standards only half of the 16 cases assigned to her. Despite being given the accommodation of a later starting time than other employees, grievant had continued to be repeatedly tardy for work. Although she performed intake duties well, she failed to cover her intake responsibilities nearly 18 percent of the time due to excessive absenteeism and tardiness. She continued to fail to document service visits to clients, failed to follow up to ascertain whether clients had fulfilled restitution arrangements and did not formulate service plans outlining clients’ plans while on probation.

During the three-month evaluation period, the supervisor had received complaints from the parents of some clients stating that the grievant was not holding their child accountable during his or her probationary period. During this same time, grievant was absent 10 full days and missed time from work (due either to tardiness or leaving early) on seven other days. The agency determined that there were no other positions available to which the grievant could either be transferred or demoted. Grievant was formally advised that her employment would be terminated on April 2, 2001.

During the past few years, grievant has experienced an increasingly difficult marital situation involving a physically abusive spouse. During 2000, grievant separated from her husband and filed for divorce. Grievant has custody of her two young daughters. She attributes some of her performance difficulties to the distractions caused by her marital problems. She also notes that she has been under a physician’s care for migraine headaches and depression, and that she has often been taking multiple medications to treat these problems. Grievant was absent from work from August 2 through October 16, 2000 due to her physical and marital problems. During this time, the grievant was not assigned any new cases and some of her work was assigned to other probation officers.

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 and dismissals for unsatisfactory performance, the agency must show by a preponderance of evidence that the disciplinary action was warranted and appropriate under the circumstances.⁶ 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.⁷

To establish procedures for evaluation of employees of the Commonwealth of Virginia and pursuant to § 2.1-114.5 of the Code of Virginia, the Department of Personnel and Training promulgated Performance Planning and Evaluation Policy No. 1.40 effective September 16, 1993. ⁸ The objective of the policy is to provide for the establishment and communication of performance expectations, for the evaluation of employees’ work performance, and for an incentive pay program to reward employees according to their performance. Performance evaluations are conducted annually for the period of November 1 through October 31. An employee who receives a rating of "Does Not Meet Minimum Expectations" must be reevaluated, as outlined below:

A.    New Performance Plan

Within two weeks of the evaluation meeting during which the employee received the rating, the employee’s supervisor must develop a Performance Plan that sets forth performance expectations for the following three months, and have it approved by the reviewer.

B.    Three-month re-evaluation period

D.    Options if performance does not improve

If the employee receives a re-evaluation rating of "Does Not Meet Expectations," the following options may be considered during the next two months:
1. later transfer to a more suitable position within the agency; or
2. demotion to another position within the agency.
At the end of two months, if the agency cannot, or has elected not to, implement either of the options, the employee must be removed from state service.⁹

The evidence in this case establishes that the agency properly followed the process required by Policy 1.40. Following evaluation of the grievant’s performance as not meeting minimum expectations, a performance plan of action was developed by the supervisor, reviewed, and agreed to by the grievant. Three months later, grievant’s performance was reevaluated and still found to be not meeting minimum expectations. Because the agency did not have any other positions to which the grievant could be either transferred or demoted, it discharged her from employment.

Grievant agreed with the individual element rankings given her in the October 2000 performance appraisal. The grievant acknowledged that she has failed to document her case files to the standards required by the agency. She also acknowledged that she incurred a significant amount of absences and tardiness although she points out that some absences were attributable to her marital problems and some tardiness was caused by child care difficulties. Grievant disagreed with the overall ranking in that appraisal, but she failed to appeal or grieve the appraisal. With regard to the February 2, 2001 appraisal, grievant acknowledges that her performance was not up to par. However, she contends that she could have recovered if she had been given six months within which to improve.

The Hearing Officer can empathize with the grievant to a point. There is no doubt that her illness and marital problems affected her to some degree and caused a portion of her absenteeism. However, the grievant had been told for three years that certain elements of her performance were not meeting expectations. In mid-2000, the area director counseled grievant detailing in a letter the deficiencies in her performance. When grievant received written counseling not from her supervisor, but from the area director, she should have realized that the deficiencies in her performance were sufficiently serious to be recognized at the next higher level of management. When grievant received her annual performance evaluation stating that she was not meeting expectations, she again failed (by her own admission) to take it seriously.

Grievant then agreed, in writing, to a Plan of Action that would have saved her employment if she had completed it. During the three-month period, no new cases were assigned to grievant; she was required only to bring existing case documentation up to standards. She was allowed to start work later than other probation officers, allowed to take work home, and allowed to utilize overtime to complete work. Notwithstanding these accommodations the grievant failed to bring more than 50 percent of her cases up to standards, continued to incur absences and tardies at an unacceptable level, and failed to complete weekly reports. Grievant has not significantly disputed these shortcomings and has instead contended that she just needed another three months.

Grievant also argues that her absences should not be held against her and that doing so is somehow contrary to the Family and Medical Leave Act (FMLA). The grievant was given leave pursuant to the FMLA in 2000 and there has been no showing that the agency did not follow the procedures required by that act. In any case, the issue in this grievance is whether the agency acted correctly pursuant to Performance Evaluation Policy 1.40. The Performance and Planning Evaluation form specifically lists several performance factors which are required to be considered in evaluating both individual job elements and the employee’s overall performance. One of the five listed factors is attendance/punctuality and states, "The extent to which attendance and/or punctuality support performance at the expected level." Therefore, it was not only appropriate but also mandatory that the agency consider this factor in evaluating grievant’s overall performance. The agency is required to fulfill its obligations to the public. When employees are excessively absent, the agency is not able to fulfill its obligations. Accordingly, the agency must hold each employee accountable to be at work a sufficient amount of time to accomplish his or her assigned responsibilities.

In summary, the agency has demonstrated, by a preponderance of the evidence, that the grievant’s performance did not meet minimum expectations during the three-month period from October 16, 2000 through January 26, 2001. The agency acted according to policy in discharging the grievant when it was unable to find alternative positions to which the grievant could be transferred.

The decision of the agency is hereby affirmed.

The discharge of the grievant effective April 2, 2001 because her performance did not meet minimum expectations is AFFIRMED.

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