Issue: Group III Written Notice with Termination (false information on application); Hearing Date: June 7, 2001; Decision Date: June 8, 2001; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; AHO: David J. Latham, Esquire; Case Number 5199
DEPARTMENT OF EMPLOYMENT DISPUTE RESOLUTION
DIVISION OF HEARINGS
DECISION OF HEARING OFFICER
In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case Number 5199
Hearing Date:
June 7, 2001
Decision Issued: June 8, 2001
PROCEDURAL ISSUE
The earliest available hearing date for the parties and their legal representatives was the 37th day following appointment of the hearing officer.
APPEARANCES
Grievant
Attorney for Grievant
Four witnesses for
Grievant
Representative for
Agency
Legal Representative
for Agency
Four witnesses for
Agency
ISSUES
Did grievant submit an application for employment containing false information to the Commonwealth of Virginia on or about January 16, 2001? If so, what was the appropriate level of disciplinary action for the conduct at issue?
FINDINGS OF FACT
The grievant filed a timely appeal from a Group III Written Notice and discharge from employment issued on February 16, 2001. The parties failed to resolve the grievance during the three-step resolution process. Subsequently, the agency head qualified the grievance for a hearing.
The Department of Mental Health, Mental Retardation and Substance Abuse Services (Hereinafter referred to as "agency") has employed the grievant for 15 years. From April 1986 through September 1995, grievant was employed as a driver in the transportation department. From September 1995 through June 2000, he was employed as a driver in the education department. From June 2000 through February 2001, he was a health services care worker in the vocational unit. The grievant has one active Group I Written Notice that was issued on August 12, 1999 for issues not related to the issue in the instant grievance.
On January 16, 2001, grievant submitted a standard state Application for Employment form to the Human Resources Department. He applied for a position as a Direct Service Associate III – a supervisory position in the prevocational department. The advertisement for the position contains only one reference to supervisory experience; it states, "Demonstrate a managerial approach to supervising staff by ‘leading by example’."1 In his application, grievant made two references that relate to supervision.2 In the experience section, grievant described his job duties in the Transportation Division and stated that he had supervised 9 to 13 drivers. In describing his job duties as a human service care worker, grievant noted that he had supervised clients and also stated that he had supervised 2 or 3 employees.
During the course of his employment with the Commonwealth of Virginia, grievant has not been employed as a supervisor. Grievant stipulated during the hearing that he has not been a supervisor in his previous positions. However, grievant maintained that he had supervisory experience. While working in the transportation division, grievant was one of 9-13 drivers who reported directly to the Director of Transportation. For a period of time, the Director would assign each driver, on a rotating basis, to answer the phone and record requests for vehicles and drivers. The driver assigned to this task would then assign other drivers to make the transportation run.
Whichever driver was performing this function was deemed by his coworkers to be "in charge" and was known informally as "driver supervisor." This was particularly true when the Director of Transportation was at lunch, absent or on vacation. On those occasions, the "driver in charge" would provide direction to the other drivers for assignments, and make decisions that would normally be made by the director if he been present. The Director of Transportation had, in addition to the 9-13 drivers, a significant staff of mechanics and an office service specialist, all of whom reported directly to the Director. The director concluded in 1991 or 1992 that he had too many people reporting directly to him. The "driver in charge" arrangement was a method he devised that allowed him to delegate some of the day-to-day coordination of transport runs to one of the drivers. In 1993, the director arranged for the creation of a driver supervisor position that, in effect, formalized the "driver in charge" arrangement.
In his role as a human service care worker, grievant coached and directed the activities of clients. All human service care workers also coach and direct the clients, who are mentally retarded and/or physically handicapped. Grievant occasionally utilized the services of one or two of the more capable clients to assist him in making short trips to obtain or deliver equipment. Grievant characterized his direction of clients as supervision.
In 1995, grievant had been involved in an altercation with another employee that resulted in his discharge from employment. Investigation of the matter revealed that the discharge should not have occurred and grievant was reinstated. However, he was moved from the transportation department to the education department because the relationship between grievant and the director of transportation was not amicable. The relationship between these two has not improved since that time.
APPLICABLE LAW AND OPINION
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:
It shall be the policy of the Commonwealth, as an employer, to encourage the resolution of employee problems and complaints . . . To the extent that such concerns cannot be resolved informally, the grievance procedure shall afford an immediate and fair method for the resolution of employment disputes which may arise between state agencies and those employees who have access to the procedure under § 2.1-116.09.
In disciplinary actions, the agency must show by a preponderance of evidence that the disciplinary action was warranted and appropriate under the circumstances.3 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.4
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 Training5 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. SOC Policy 1.60 further provides that Group III offenses include acts and behavior of such a serious nature that a first occurrence normally should warrant removal [from employment]. One example of a Group III offense is:
Webster’s Ninth New Collegiate Dictionary defines a supervisor as, "one that supervises; esp: an administrative officer in charge of a business, government, or school unit or operation." Supervision is defined as, "the action, process or occupation of supervising: esp: a critical watching and directing (as of activities or a course of action." The DHRM Policies and Procedures Manual includes a glossary that defines a supervisor as, "The person immediately responsible for an employee’s workplace and performance." The hearing officer takes administrative notice that, it is widely known among state employees that a supervisor is one who, by position description, is charged with at least the following minimum responsibilities: planning, organizing, directing and monitoring work; evaluating the performance of subordinates; administering discipline; and, involvement in the budgeting process.
The agency’s position in this case is that only those people who work under a position description that incorporates supervisory responsibilities are supervisors. Grievant acknowledges this and does not aver that he was ever in a position officially designated as supervisor. The agency acknowledges that occasionally an individual may be assigned some supervisory responsibilities for a brief period of time due to operational exigencies. However, such short-term (no more than three months) assignments are temporary, do not include the entire panoply of supervisory responsibilities and do not result in an individual being designated as a supervisor. There are also individuals who may be designated as "lead" employees, or "coordinators." Such employees are generally more experienced or senior employees who can provide technical guidance to newer employees. However, lead or coordinating employees do not have the full authority or range of responsibility given to supervisors.
Based on the testimony during the hearing, it is clear that grievant has not been responsible for planning or monitoring work, evaluating employee performance, administration of discipline, or the budget process. Thus, he does not have experience in most of the critical elements of supervision. The agency based its disciplinary action on the fact that grievant’s application falsely stated that he had supervisory experience, and that falsification of any state document is a Group III offense. Black’s Law Dictionary provides the following definition of "falsify:"
To counterfeit or forge; to make something false; to give a false appearance to anything. … The word "falsify" may be used to convey two distinct meanings – either that of being intentionally or knowingly untrue, made with intent to defraud, or mistakenly and accidentally untrue. Washer v. Bank of American Nat. Trust & Savings Ass’n, 21 Cal2d 822, 136 P.2d 297, 301.
The principal of the education department issued the Written Notice in this case. Also involved either in the decision to issue the discipline or in the subsequent grievance process were the human resources department and the facility director. None of these people had direct personal knowledge of the grievant’s work activities during his employment in the transportation division. All of them relied primarily on the statement of the transportation director that grievant did not supervise employees. The testimony of the transportation director during the hearing was less than forthcoming. He clearly attempted to minimize and downplay the functions performed by grievant in his periodic role as "driver in charge." The transportation director had been stung by the grievant’s reinstatement in 1995 after discharging him. The Hearing Officer concludes that his testimony, as well as his representations to agency management, was colored by his personal feelings about the grievant.
In addition, grievant presented three witnesses, all of whom supported his explanation of the "driver in charge/driver supervisor" arrangement. While the details of testimony among these three witnesses varied somewhat, such is not surprising in view of the fact that they were testifying about events that occurred nearly ten years ago. Moreover, the essential substance of their testimony was substantially more supportive of the grievant’s version than that of the transportation director. Therefore, it must be concluded that, while grievant was never a "supervisor" in the generally accepted understanding of that term, he did perform some supervisory functions. However, the evidence does demonstrate that the application contained false information, i.e., grievant did not supervise employees either in the transportation department or the vocational department.
Grievant had been employed for 15 years. Even though his supervisor had delegated two limited supervisory functions to him for short periods of time, he knew that he was not performing other important supervisory functions reserved to those who actually are supervisors. For example, he knew that he was not evaluating other employees, was not disciplining them and was not planning and monitoring the work of the department. Given this knowledge, grievant knew that it was incorrect to twice state that he supervised other employees. His direction of clients in the vocational department cannot in any way be construed to be supervision of employees. Grievant contends that he was referring to clients on page two of his application, however, the question to which he responded unambiguously states, "Number and title of employees you supervised." His response to this question was false and misleading.
Grievant argues that, if the agency found his characterizations of supervisory inexperience incorrect, the person screening applications should simply have eliminated the application from consideration and that he should not have been discharged over this falsification. This argument is a red herring. The issue is not whether grievant was qualified for the position but whether his application contained false information.
DECISION
The decision of the agency is hereby affirmed.
The Group III Written Notice and discharge issued on February 16, 2001 for the falsification of an official state document are AFFIRMED.
APPEAL RIGHTS
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:
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:
Judicial Review of Final Hearing 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