In the matter of College of William and Mary Case Number 5205

Hearing Date: June 4, 2001
Decision Issued: June 5, 2001

Grievant
Representative for Agency
One witness for Agency

Was the grievant’s absence on December 21, 2000 such as to 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 I Written Notice issued on January 8, 2001 because of an absence that appeared to have been preplanned. Following failure to resolve the grievance at the third resolution step, the grievance was qualified for a hearing.

The College of William & Mary (hereinafter referred to as "agency") has employed the grievant for a total of seven years. For the past three years she has been an administrative specialist. Her role is that of a receptionist responsible for incoming telephone calls, walk-in traffic, mail distribution and other related responsibilities. There are three other employees in grievant’s office, including the supervisor.

Grievant had asked in early August for leave on August 17 & 18, 2000. Her supervisor had to deny the request because others had been scheduled off and it was a particularly busy time in the office. At 7:45 a.m. on August 18, 2000, grievant called in sick. On November 28, 2000, grievant’s supervisor gave her written counseling regarding excessive tardiness. This memorandum noted that many of the tardies resulted from last minute situations at home. It also emphasized that, "Your tardiness has put a burden on other staff members, who must make adjustment in their own schedules to accommodate your absence at the last minute. When absences are planned in advance, it is easier for the office to respond."

The last day for students during the fall 2000 semester was December 21, 2000. Faculty and employees were scheduled to work on both December 21 and 22, 2000. This is an especially busy time for the grievant and her coworkers because faculty submits student grades to the registrar’s office and students request transcripts. On December 21, 2000, approximately 150 walk-ins came through the receptionist’s area and 350-400 telephone calls were received.

Shortly before 8:00 a.m. on December 21, 2000, grievant called her supervisor to advise that her babysitter had cancelled at the last minute. Grievant is a single parent of a seven-year-old child and, without any other sitter available, she notified her supervisor that she could not come to work that day. Grievant’s child usually attends a day care program operated by the city in which she resides, however, that program was closed for the holidays from December 21 through December 29, 2000. Grievant had enlisted the assistance of her sister-in-law to baby-sit for her child on December 21, 2000. On the morning of December 21^st, the babysitter’s son developed a high fever and abdominal pain and had to be taken to see his physician.

Grievant’s supervisor took over the receptionist’s desk for a period of time on the morning of December 21^st. While taking notes from telephone calls, she happened to use grievant’s steno pad. She observed on the pad a note written the previous day by grievant that said, "Out of office until Jan. 3^rd. If you need assistance please call 221-2800." The supervisor dialed grievant’s direct telephone extension number and found that grievant had recorded this message on her voice mail. Grievant had recorded this message on December 20, 2000.

Later that same morning, another employee reported to the supervisor that grievant had left a voice mail message on the primary number for the entire office. That message stated that the office was closed until January 3, 2001. The supervisor also listened to this message and verified that it stated the office would be closed until January 3^rd. In fact the office was open on December 21, 22, 27, 28 and 29, 2000. Although grievant was not scheduled to work the three days after Christmas, she knew that others in the office were scheduled to work on those days. The message she had left on the main telephone number was misleading to the college community at a time when the registrar’s office receives a large number of calls.

Grievant was scheduled to return to work on January 3, 2001. She called in a few minutes before she was scheduled to report and took another unplanned absence. Grievant’s absence was related to a family problem that had occurred during the Christmas holiday but grievant failed to call her supervisor until just prior to work on January 3^rd.

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.¹ 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.²

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 Training³ 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.1 of the Commonwealth of Virginia’s Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60 provides that Group I offenses are the least severe of three groups of offenses. One example of a Group I offense is unsatisfactory attendance or excessive tardiness.

The agency has shown, by a preponderance of the evidence that grievant was absent on December 21, 2000 and that the circumstances surrounding this absence are, at best, very curious. Grievant has proffered two totally unrelated excuses as the reason for the babysitter’s unavailability on December 21^st; no explanation has been offered for these two different stories. Moreover, grievant has acknowledged recording a message on her voice mail one day prior to this absence.

Grievant’s rationale for placing recorded messages on the telephone on December 20, when she had planned to be working on December 21, was that she wanted to assure that this task was completed before her last day of work prior to the holidays. However, grievant knew, or reasonably should have known, that those calling the main telephone number outside of office hours would hear the message and assume that the office was closed until January 3^rd.

Grievant wrote in her grievance appeal⁴ that her sister-in-law could not baby-sit her child on December 21, 2000 because of "an emergency that had come up with her family that caused her to have to go out of town early." However, the sister-in-law in her handwritten letter of March 7, 2001 stated, "because of my son’s illness I had to cancel on her at the last minute."⁵ Grievant had no explanation for this significant inconsistency. The sister-in-law had purportedly agreed to testify by telephone during the hearing but did not answer the phone at her home where grievant said she would be during the hearing. It is not credible that the sister-in-law would have related two different stories to the grievant since the sister-in-law had nothing to gain from doing so.

The totality of the circumstances in this case suggests a pattern of absenteeism that is not random. In August 2000, grievant happened to get sick on the same day she had previously been told she could not take leave. The December 21^st absence happened to be grievant’s last scheduled workday prior to the holiday weekend. She happened to decide to record her absence message not on her last scheduled day of work, but on the day preceding the last day. She has offered conflicting reasons for her absence on that date. She was also absent on January 3^rd, which just happened to be the first scheduled workday after the holidays.

Grievant had previously been counseled about tardiness. That counseling had emphasized to grievant the impact on coworkers of any absence. In a small, four-person office, any person’s absence adversely affects the other three people. It is especially important in such a small office that the supervisor be given as much advance notice as possible of every absence so that the workload can be adjusted among others. It appears from the evidence in this case that grievant does not have a sufficient appreciation for the impact of her absence. Because the written counseling did not appear to change the grievant’s pattern of absences and/or tardiness, the next logical step is to utilize a Group I Written Notice.

The disciplinary action of the agency is affirmed.

The Group I Written Notice issued to the grievant on January 8, 2001 is AFFIRMED. The disciplinary action shall remain active pursuant to the guidelines in Section VII.B.2 of the Standards of Conduct.

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