DEPARTMENT OF EMPLOYMENT DISPUTE RESOLUTION

In the matter of Department of Corrections Case Number 5215

Hearing Date: June 26, 2001
Decision Issued: June 27, 2001

Because of the availability of the parties, the hearing could not be docketed until the 35^th day following appointment of the Hearing Officer.

Grievant
Representative for Agency
Three witnesses for Agency

Was the grievant’s conduct between September 19, 2000 and October 24, 2000 subject to disciplinary action under Procedure Number 5-10 of the Department of Corrections Procedures Manual? If so, what was the appropriate level of disciplinary action for the conduct at issue?

The grievant filed a timely appeal from a Group II Written Notice issued on January 22, 2001 because the grievant failed to follow supervisor’s instructions, perform assigned work or otherwise comply with applicable established written policy. In conjunction with this disciplinary action, grievant was demoted to the position of administrative program specialist. Following denial of relief at the third resolution step in the grievance process, the agency head qualified the grievance for a hearing.

The Department of Corrections (DOC) (hereinafter referred to as "agency") has employed the grievant as a program support technician (personnel assistant) in the Human Resources office since December 1999. Previously, the grievant had been employed by another state agency as an office services specialist since 1994. The grievant certified on her application to DOC that she had experience and training in the CIPPS state payroll system, advanced leave and payroll, records management and, the Virginia Codes of Cumulative and Development in Workers’ Compensation Law.¹ The grievant’s job tasks and duties were processing employment applications (20%), payroll (20%), leave administration (20%), workers’ compensation (20%) and, file maintenance (20%).²

The grievant had received a Group II Written Notice on September 18, 2000 for failure to perform satisfactorily in three of the five major areas of responsibility – payroll, leave administration and workers’ compensation. The supervisor detailed the grievant’s shortcomings in a five-page memorandum noting that leave maintenance keying was not being timely completed, liability reports were inaccurately keyed, leave registers were not timely distributed, the supervisor was not kept informed on worker’s compensation activities, the grievance process was changed contrary to instructions, the grievant’s work area was disorganized, and filing was done inaccurately and untimely. Most troubling were the supervisor’s observations regarding the grievant’s failure to follow supervisory instructions regarding procedures and methods of organization and, her refusal to comply with supervisory requests and suggestions.

Subsequent to the issuance of the September 18, 2000 Written Notice, the agency had hoped that grievant would make an attempt to bring up to date the backlogs she had developed in filing, keying and submission of workers’ compensation claims. The grievant’s supervisor had believed that the Written Notice would provide a "wake-up call" to grievant so that she would begin to apply herself more diligently to her work. During the next six weeks, grievant did not make any significant change in her work habits.

Grievant’s performance following the September 2000 Written Notice exhibited the same problems that had caused the issuance of that Notice. Specifically, grievant exhibited no initiative and required supervisory follow-up to assure that tasks were completed. Even with written memoranda from the supervisor, some specifically assigned tasks were not completed as directed. The existing backlogs of filing and keying remained in place. Grievant did not timely submit all workers’ compensation claims during this period.

The grievant failed to follow proper procedure in keying leave activity reporting forms. The person who keys leave into the computer system is required to sign (or at least initial) and date the form after keying. One of the purposes of signing is to prevent keying that form a second time. The grievant regularly failed to sign and date leave forms after she keyed them, despite having been repeatedly told to do so by her supervisor. This resulted in double keying of many leave forms, and upset many employees who were being charged with leave they did not take. In addition, double keying caused extra time and work to correct the errors and bring leave balances back to the correct level. Nearly one third of the employees at the agency have registered complaints in the last year regarding leave problems, most resulting from miskeying. However, a small portion of the errors occurred when supervisors erroneously submitted duplicate leave forms to Human Resources.

The grievant failed to timely submit workers’ compensation claims to the insurance carrier. The DOC requirement is that such claims be submitted within three working days of receipt. State standards (for which the agency is held accountable on audits) require that the claims be submitted within 10 working days. The grievant was aware of these requirements. The grievant frequently submitted claims well beyond the 10-day limit.

Employees frequently brought to grievant’s attention errors and problems caused by grievant’s inaccurate keying of leave taken. Grievant failed to make corrections of these errors. In some cases, employees were incorrectly shown as having no available leave time, when, in fact, they did have leave time available.

The grievant was given written counseling on October 4, 2000 regarding deficiencies in performance and grievant’s failure to follow her supervisor’s instructions. Grievant went on sick leave on November 2, 2000 and returned to work on January 16, 2001. Shortly after her return to work, the grievant’s supervisor issued to grievant the Group II Written Notice and demotion on January 22, 2001.

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.³

To establish procedures on Standards of Conduct and Performance for employees of the Commonwealth of Virginia and pursuant to §§ 2.1-114.5 and 53.1-10 of the Code of Virginia, the Department of Personnel and Training 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 5-10.16.B.1 of the Department of Corrections Procedures Manual provides that "Failure to follow a supervisor’s instructions, perform assigned work or otherwise comply with applicable established written policy" constitutes a Group II offense.⁴

The agency has borne the burden of proving, by a preponderance of the evidence, that the grievant failed to follow a supervisor’s instructions, failed to perform her assigned work and failed to comply with applicable established written policy. Further, the grievant failed to perform assigned work despite clear evidence that she had ample time within which to accomplish the responsibilities assigned. Based on the repeated memoranda from her supervisor regarding expectations, it must further be concluded that she failed to comply with those written expectations and directives.

The burden of proof now shifts to the grievant to demonstrate mitigating circumstances, if any, to explain her actions. The grievant contends that her supervisor treated her in a harsh and demeaning manner. She filed a formal complaint that was investigated by the agency’s human resources manager from central office in Richmond. The investigation revealed that there was no evidence of sexual harassment and no evidence of a hostile work environment. ⁵The report noted that there was an interpersonal communication problem between grievant and her supervisor, which problem was to be addressed by the Warden.

Grievant also contends that she was absent on some days in the fall of 2000. While the agency did not dispute this, the grievant has failed to demonstrate that she diligently applied herself to her work when she was at work. She further contends that her supervisor tried to discourage grievant from discussing problems with the Warden. However, the Warden’s unrebutted testimony was that grievant had spoken with the Warden on several occasions; thus grievant had ample access to express concerns to the Warden. Grievant also contends that, even though other employees are now performing some of her responsibilities, there are still "problems." However, grievant offered no description, evidence or witnesses to substantiate such alleged problems.

Based on the totality of the evidence, it must be concluded that grievant was not able to adequately perform the responsibilities and duties of her position. Grievant contends that, by virtue of prior experience, she is qualified for the position. However, the record speaks for itself; grievant did not satisfactorily perform all the major responsibilities of her job. Thus, if she is capable, she has failed to apply herself diligently and effectively to the position. The agency has an obligation to remove grievant from the position if she either could not, or would not, accomplish the tasks that are an integral part of the position.

In summary, the agency has demonstrated that the Written Notice was justified by the grievant’s failure to follow instructions, do her assigned work and comply with written policy. The grievant has not demonstrated sufficient mitigation to overcome her actions.

The disciplinary action of the agency is hereby affirmed.

The Group II Written Notice and demotion issued on January 22, 2001 for failure to follow a supervisor’s instructions, perform assigned work or otherwise comply with applicable established written policy are AFFIRMED. The Written Notice shall be retained in the grievant’s personnel file pursuant to the guidelines contained in Section 5-10.19.A of the DOC Standards of Conduct.

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:

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