In the matter of Department of Corrections Case Number 5193

Hearing Date: May 23, 2001
Decision Issued: June 25, 2001

On January 22, 2001, Grievant was issued a Group II Written Notice of disciplinary action with a three day suspension for:

On January 29, 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 23, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On May 23, 2001, a hearing was held at the Agency’s regional office. Upon the request by a party, the Hearing Officer found just cause to extend the 30 day time requirement for concluding the grievance due to the conflicting schedules of the parties.

Grievant
Grievant’s Representative
Warden
Corrections Lieutenant
Corrections Officer
Chief of Security

Whether Grievant should receive a Group II Written Notice of disciplinary action with three day suspension.

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 Officer Senior. He began working for the Agency on July 27, 1998. He completed his institutional, academy, and field training on December 7, 1998. Grievant began working at the Facility sometime in January 2000. The Facility provides housing and services to approximately 100 individuals called detainees who have been convicted of non-violent crimes. He had worked at other facilities with higher security levels and, thus, worked with more dangerous inmates.

The Corrections Officer had been a corrections officer for 22 years with much of his time being spent at the Facility.

Detainees sleep in barracks rather than in individual cells. On occasion, a detainee must be segregated from the general population as punishment for misbehavior or to await transfer to another facility. These detainees are placed in one of four individual cells called segregation cells.

In order to reach a segregation cell, one must enter the center of the dining area through two heavy metal doors. Two segregation cells are located in areas adjoining each side of the dining area. After taking one step into the dining area, one must immediately turn to the left or to the right and walk straight towards a corner of the dining area. In each corner is a large single heavy metal door. Behind the door is a narrow ten to thirteen foot hallway. Only one person at a time can comfortably walk down the hallway. After opening this door, one must step down into the hallway. Along the hallway are the doors to two single person cells.

On January 13, 2001, the Divertee had misbehaved and was placed in a segregation cell on side B. He complained that the cell was cold because the window would not shut. Grievant’s Supervisor told the Corrections Officer and Grievant to move the Divertee to another cell on side A located on the other side of the dining area. The Corrections Officer took the keys to the doors and went to side A where he unlocked the door to gain entrance to the hallway. He verified that a cell on side A would be appropriate for the Divertee and he went back to side B and told Grievant to come along with him. This was Grievant’s first time at moving a divertee from one segregation cell to another, so Grievant followed the Corrections Officer’s lead. The Corrections Officer stepped into the hallway on side B and went back to unlock the door to the Divertee’s cell.

Corrections officers are trained that when moving an inmate from one cell to another the inmate should be in restraints. The Corrections Officer failed to place the Divertee in restraints. It was not his practice to place divertees in restraints. Had the Divertee been placed in restraints, he could not have escaped. The Corrections Officer readily and regrettably admitted his mistakes.

After the Corrections Officer let the Divertee out of the cell, there is some discrepancy in the testimony between the Corrections Officer and Grievant. The Corrections Officer testified that he started walking down the hallway first with the Divertee walking behind him. As the Corrections Officer stepped from the hallway and into the dining area, the Divertee was directly behind him and Grievant was behind the Divertee. As the group crossed in front of the entrance to the dining area, the Divertee looked to his right and saw that the first gate nearest to the dining area entrance was open and he quickly ran through it.

The Grievant testified that the Corrections Officer opened the door to the segregation cell and let the Divertee walk out in front of the Corrections Officer. While Grievant as positioned at the doorway opening to the hallway, the Divertee stepped into the dining area and "blew past" Grievant before Grievant could get in front of him. The Divertee then ran through the entrance to the dining hall and past the first gate.

Once the Divertee was outside the dining hall and past the first gate, he found open a second gate that should have been closed and ran through it. The second gate led downstairs to an area outside the building but still within the Facility’s fences. Once outside the building, the Divertee climbed to the roof of a second building. After getting a running start, he leaped over the external fence and ran away from the Facility. He was later caught.

The Department of Corrections Procedure Manual ("DOCPM") 5-10 specifies unacceptable behavior and divides that behavior into three types of offenses according to their severity. Group I offenses "include types of behavior least severe in nature but which require correction in the interest of maintaining a productive and well-managed work force." DOCPM § 5-10.15. Group II offenses "include acts and behavior which are more severe in nature and are such that an additional Group II offense should normally warrant removal." DOCPM § 5-10.16. Group III offenses are the most severe and "include acts and behavior of such a serious nature that a first occurrence should normally warrant removal." DOCPM § 5-10.17.

The Agency contends Grievant violated Internal Operating Procedure #416, page 8 (June 17, 1996) which states:

Grievant did not violate this policy. He was one of two Officers who were present when the door to the segregation cell was unlocked. Although Grievant was standing at the entrance of the hallway when the Corrections Officer was letting the Divertee out, Grievant was within approximately 10 to 13 feet of the Corrections Officer in a confined area that would not reasonably accommodate more than one corrections officer at a time. It was appropriate for Grievant to stand in the hallway entrance. Consequently, Grievant did not violate a written policy or instruction.

Although Grievant did not violate a written policy, he is not without fault. Under both versions of the facts, Grievant was not properly positioned to prevent the Detainee from running away. Assuming Grievant’s account is correct, Grievant should have blocked the Detainee from stepping past him through the hallway door. The doorway in which Grievant was standing is narrow and had Grievant been properly positioned in front, he could have stopped the Detainee from running past him. Assuming the Corrections Officer’s account is correct, Grievant should have positioned himself between the Detainee and the entrance to the dining area and close enough to the Detainee to be able to grab him before he got away. The Agency has met its burden of proof to show that Grievant should be disciplined.

The facts of this case must be considered from both a broad and a more focused perspective. When the actions of all of the Agency’s employees are considered, Grievant played a significant role in permitting the Detainee to escape. In this context, Grievant’s behavior appears to be at least a Group II offense. If Grievant’s actions are examined without considering the actions of other employees (i.e., assuming the first gate was closed thereby preventing escape), Grievant’s behavior appears to be nothing more than inadequate or unsatisfactory job performance – a Group I offense.

A Hearing Officer may reduce the level of discipline based on mitigating circumstances such as (1) the interest of fairness and objectivity or (2) consideration of an employee’s long service with a history of otherwise satisfactory work performance. DOCPM § 5-10.13(B).

If the Hearing Officer considers the facts of this case from a broad perspective, fairness makes it appropriate to reduce the disciplinary action against Grievant to a Group I offense. Grievant was a relatively new employee at the Facility. The Agency has numerous facilities throughout the Commonwealth ranging from maximum to minimum security. Each Agency Facility has its own variation regarding implementing "standard" security enforcement procedures. Grievant relied almost entirely on the knowledge, skills, and judgment of the Corrections Officer as to how someone should be removed from a segregation cell at the Facility. Grievant did not ask questions such as "Why aren’t we using restraints on the Divertee?" or "Should the doors to the dining area be closed?" because he relied on the Corrections Officer. Although the Corrections Officer did not out rank Grievant, it was appropriate for Grievant to let the Corrections Officer take the lead and for Grievant to follow his lead.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group II Written Notice of disciplinary action with suspension is reduced to a Group I Written Notice. Because the normal disciplinary action for a Group I offense is issuance of a Written Notice, Grievant’s suspension is rescinded. GPM § 5.9(a)(2). DOCPM § 5-10.15(C). The Agency is directed to provide the Grievant with back pay for the period of suspension, less any interim earnings that the employee received during the period of suspension and credit for annual and sick leave that the employee did not otherwise accrue. GPM § 5.9(a)(3).

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