In the matter of Virginia Polytechnic Institute and State University’s Case Number 5211

Hearing Date: June 25, 2001
Decision Issued: July 2, 2001

For administrative reasons relating to availability of the participants, the hearing could not be docketed until the 42^nd day following appointment of the hearing officer.

Grievant
Attorney for Grievant
Three witnesses for Grievant
Representative for Agency
Attorney for Agency
Two witnesses for Agency

Was the grievant’s absenteeism sufficiently unsatisfactory between July 1, 2000 and February 27, 2001 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 February 28, 2001 because of unsatisfactory attendance during the preceding eight months. Following failure to resolve the grievance at the third resolution step, the grievance was qualified for a hearing.

Virginia Polytechnic Institute and State University (hereinafter referred to as "agency") has employed the grievant as a pastry chef for nearly seven years. During the most recent performance evaluation cycle, grievant fully met expectations. Grievant suffers from a variety of medical conditions including herniated discs, premature disc degeneration and sleep apnea. She takes several different medications for her physical ailments.

The agency’s sole written policy regarding attendance is promulgated in the employee handbook and states, in its entirety:

The department in which grievant is employed has not established any specific attendance requirements. Grievant complied with the written policy by reporting to work timely and notifying her supervisor whenever she knew she would be absent. Grievant was never advised that any specific number of absences would be considered unsatisfactory attendance. She was verbally counseled in March 2000 regarding excessive absenteeism since July 1999; that counseling was documented in writing.² Her supervisor also counseled her verbally in January 2001; this discussion was also documented in writing.³

During the period from July 1, 2000 through February 27, 2001, grievant was absent from work a significant amount of time. In the initial Written Notice, grievant’s supervisor noted that she was absent for illness on 25 full days and three partial days. During the step-one grievance resolution process, the supervisor reduced the number of absences to 23 full days plus three partial days. During the hearing, grievant presented credible testimony to establish that she was not scheduled to work on February 10, 2001 (a Saturday) and that she did work on February 12-16, 2001. The agency did not rebut this testimony. This further reduces the number of days absent to 18 full days plus three partial days. Each of the absences was attributable to physical problems; most involved back problems while the remainder involved a sinus infection, a cold or a stomach virus/diarrhea.

The undisputed testimony of the agency witnesses established that the frequency of absences incurred by grievant had been significantly greater than any other employee under the supervision of the executive chef. Because of the unplanned nature of some absences, grievant was not always able to prepare sufficient pastry items in advance. Therefore, it became necessary on several occasions to purchase pastry items from outside sources. Further, the executive chef noted that the grievant’s desserts are significantly better than those made by other personnel drafted to replace her during an absence.

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.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. 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.

Although the agency expressed considerable interest during the hearing in the medical details of the grievant’s absences, the reasons for her absences are not an issue in this grievance. The Written Notice was issued solely because of the large number of absences during the period at issue. The agency conceded that it was not questioning whether each individual absence was due to the medical problem(s) alleged by grievant. The agency’s position is that the frequency of absences is unsatisfactory because of the repeated impact on supervisory planning of workflow.

Grievant notes that she always notified her supervisor when she knew she would have to be absent, especially for any multiple-day absences. This is certainly commendable but, in truth, is no more than is expected of every employee pursuant to the policy in the Employee Handbook. Grievant also contends that no one has been similarly disciplined. However, she has not shown that anyone else had such an excessive frequency of absences. Moreover, the undisputed agency testimony established that others who have developed attendance problems were counseled as needed.

Grievant testified at length regarding the variety of her medical problems and regarding the fact that her major problem – back and spinal conditions – have existed for about 18 years. The Hearing Officer is empathetic regarding the difficulties grievant has encountered and has no doubt that grievant would much prefer to be at work rather than endure her medical problems. Nonetheless, as noted above, the disciplinary action was taken not because of the reasons for her absences but because of the frequency of absences.

Grievant has a misunderstanding regarding the distinction between sick leave and absenteeism. Sick leave is provided by the agency for the purpose of providing an employee with pay while absent due to illness. This particular benefit enables the employee to be paid for whatever number of sick leave days she has accumulated.

However, the number of days of sick leave available to an employee is totally unrelated to what is considered an acceptable level of attendance. The agency establishes what it considers a reasonable level of attendance necessary to accomplish the mission of the agency. In any consideration of attendance one must consider primarily the number of occurrences, not just the number of days absent. One prolonged absence (for example: two months for a major surgery) is normally significantly less disruptive than an absence of 40 separate days during a one-year period. It is relatively easy to make a one-time, alternative arrangement in the first case, but when one misses work on 40 separate days, there are 40 disruptions to the workflow necessitating readjustments by supervision on 40 separate occasions. Therefore, one long-term absence is less of an attendance problem than several short-term absences.

Grievant feels she should not be disciplined because she only used available sick leave. If one follows grievant’s theory to its logical conclusion, disciplinary action for excessive absenteeism would never be utilized because, as long as an employee had available accumulated sick leave, discipline would not be appropriate. Such a conclusion is illogical because it would render meaningless the Standards of Conduct policy on absenteeism. The Standards of Conduct have long held that unsatisfactory attendance is a Group I offense. When the agency has established specific numeric limits for acceptable absences, the application of corrective action is much easier and less debatable.

When, as in this case, the agency has not established a numeric guideline, it becomes necessary to consider 1) corrective action for others similarly situated, 2) whether previous there has been previous counseling of the grievant and, 3) the overall reasonableness of the corrective action. In the instant case, appropriate corrective action was taken with regard to other employees and counseling was given to grievant on two prior occasions.

With regard to overall reasonableness, grievant argues that mitigating circumstances should be considered in her case. She has been employed for a moderate length of time (seven years) and her job performance has been evaluated as satisfactory. She further notes that the agency had never told her of any specific attendance guidelines. She also observes that the absences were attributable to unplanned flare-ups of her back problems and other illnesses. If grievant had not been previously counseled, it might be appropriate to consider mitigation. However, even though the agency had not identified a specific numeric absence guideline, her supervisor had counseled her on two occasions that her absenteeism was of concern, and that improvement was necessary.

The Commonwealth has established the Standards of Conduct as a progressive discipline policy. In the case of lesser offenses such as excessive absenteeism, counseling is generally the first tool used to alert an employee to a problem. Should this prove ineffective, more formal disciplinary action in the form of a Written Notice is utilized to assure that the employee understands the seriousness of the offense. Often, the use of a Group I Written Notice after counseling has not proven effective is characterized as giving the employee a "wake-up" call. This is intended to unambiguously notify an employee that she must find some way to correct the problem or face more severe action. Given this background, the agency’s decision in this case to escalate corrective action from counseling to the lowest level of disciplinary action is not unreasonable. Therefore, reduction of the disciplinary action is not warranted.

The disciplinary action of the agency is affirmed.

The Group I Written Notice issued to the grievant on February 28, 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