In the matter of Department of Corrections Case Numbers5216 and 5217

Hearing Date: June 22, 2001
Decision Issued: June 25, 2001

Due to availability of the participants, the hearing could not be docketed until the 31^st day following appointment of the hearing officer.

The grievant had filed two grievances that requested relief from two Written Notices issued on the same date. One hearing was conducted to elicit evidence regarding both Written Notices and one decision is being issued, which will address both Written Notices.

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

Did the grievant’s actions on February 19, 20 & 22, 2001 warrant corrective or disciplinary action under the Standards of Conduct? If so, what was the appropriate level of corrective or disciplinary action for the conduct at issue?

The grievant filed timely appeals from a Group I Written Notice issued on March 5, 2001 for inadequate or unsatisfactory performance on February 19 & 20, 2001 and, from a second Group I Written Notice issued on the same date for disruptive behavior on February 22, 2001. The parties did not resolve the grievances at the third resolution step and the agency head subsequently qualified the grievances for a hearing.

The Department of Corrections (hereinafter referred to as agency) has employed the grievant as a clinical social worker and counselor for a total of six years. Grievant’s annual performance evaluation exceeded expectations during every performance cycle since she was hired.

The institutional operating procedure (IOP) that bears on this case addresses employee demeanor and appearance and states, in pertinent part:

Clinical social workers and counselors at the institution report directly to the Assistant Warden. The Assistant Warden performs all functions typically associated with a supervisor, i.e., hiring, writing performance appraisals, recommending salary increases or firing, and delegation of work to subordinates. However, clinical social workers and counselors perform their daily work pursuant to a program known as the "Therapeutic Community" (TC). TC programs are designed and structured to create an environment for social learning and change of inmate behavior. Inmates’ behaviors, attitudes, values and emotions are continually monitored, and corrected or reinforced as a part of the daily regime. The goal is to re-socialize inmates according to positive values and substance-free lifestyles.²

The Therapeutic Community program is closely monitored by the agency’s central office in Richmond. Central office experts provide oversight for the program, periodically audit program efficacy, and offer technical guidance to social workers and counselors at correctional centers throughout the Commonwealth. Regional clinical supervisors visit the correctional center weekly to assess program progress and to guide counselors on technical matters pertaining to the TC program. The TC supervisor’s responsibility is limited to assuring that technical aspects of the TC program are properly implemented. The TC supervisor is not the line or administrative supervisor for counselors and social workers who work in correctional centers. On the rare occasions when a social worker presents an interpersonal relationship problem to a regional supervisor, the regional supervisor refers the matter to the grievant’s administrative supervisor or to the Warden of the correctional center.

In 1999, the grievant began to experience interpersonal relationship problems with a counselor hired in that year. Until that time, grievant had enjoyed a very good relationship with her supervisor (Assistant Warden) and, in fact, respected her so highly that she considered the Assistant Warden to be her mentor. During the next 18 months, grievant began to sense that her supervisor was becoming closer to the new counselor. For example, the Assistant Warden frequently went to lunch with the new counselor but not with the grievant. Grievant did not agree with the new counselor’s views on several work-related issues and felt that the new counselor was not a team player. On several occasions, grievant complained to her supervisor about specific issues involving the new counselor. On each occasion, the supervisor addressed the issues with both grievant and the new counselor to work out a solution.

Until February 16, 2001, grievant had always gone first to her supervisor about problems with other staff people. On that date,³ grievant was frustrated because she felt that the new counselor was not following proper procedures regarding the work release (W/R) program. Grievant was also dismayed because this matter had been previously discussed with the Assistant Warden but had apparently not been corrected. Grievant sent an e-mail to the new counselor expressing her concerns and directing her⁴ to first consult with the grievant in future similar situations. At the same time, grievant sent e-mail copies to the Warden, Assistant Warden, the TC Program Director in central office, the Substance Abuse Program Director in central office and two other people who are not in the grievant’s administrative chain of command.

On February 20, 2001, grievant generated a memorandum regarding a letter that had been typed in a dormitory by an inmate. The inmate’s letter was typed as though the inmate’s sister-in-law had prepared it and it sought assistance from the TC Program Director in central office. The inmate intended to send the letter to her sister-in-law, have the sister-in-law sign it and mail it to central office. The grievant believed that this unsigned letter constituted forgery.⁵ Grievant also noted in her memorandum that a correctional officer had assisted the inmate by proofreading the letter for grammatical and typographical errors; grievant requested that the correctional officer be removed. Grievant sent this memorandum to the Warden, Assistant Warden, a lieutenant not in her chain of command, the TC Program Director in central office and the Substance Abuse Program Director in central office.

For several days thereafter, grievant called in sick and did not report to work. Upon grievant’s return to work, the Assistant Warden issued a Group I Written Notice on March 5, 2001 because the grievant’s memoranda were unprofessional, inappropriate, accusatory, not based on factual information and because grievant had sent copies of the memoranda to people both inside and outside the institution who should not have been privy to these personnel matters.

IOP 51 provides, in pertinent part:

On February 22, 2001, snow, rain and ice began falling early in the morning. By 9:00 a.m., the local school system decided to dismiss classes and send students home for the day before road conditions worsened. Grievant has a teenage son who attends high school and is of driving age. Grievant had lost both her husband, and another family member (due to a traffic crash in inclement weather) during the past year. Consequently, she was, understandably, especially sensitive about having her son driving in poor weather. Grievant’s son called her at about 9:00 a.m. to advise that he was driving to his girlfriend’s house since school was out. Grievant was unavailable and the office service specialist (OSS) who answered the telephone took a message that was given to the grievant after she came out from a meeting. Grievant had previously told the OSS not to disturb her with phone calls when grievant was in a meeting.

About 90 minutes later, grievant’s son called again but grievant was not available to take the call. The OSS wrote down the message (that the son was at the girlfriend’s house several miles away and was trying to decide whether to stay or return home). The OSS volunteered to grievant’s son that "If I were you, I’d stay there" in view of the deteriorating road conditions. The OSS gave the written message to grievant when she became available and told grievant, "I told your son to stay there." Grievant became incensed that the OSS had been telling grievant’s son what to do. She phoned the Warden to complain. Grievant then returned to the OSS’ desk. At about that time, the Assistant Warden called the OSS and was able to hear the ensuing conversation between grievant and the OSS. Grievant yelled at the OSS, pointed her finger at the OSS and accused her of giving parental instructions to the grievant’s son. The OSS responded that she had only made a suggestion, not told grievant’s son what to do. Grievant then yelled at the OSS that if anything happened to grievant’s son, it would be the OSS’ fault. During this incident, there were approximately ten inmates and two correctional officers in the immediate area, all of whom heard the commotion.

On March 5, 2001, the Assistant Warden issued a Group I Written Notice for disruptive behavior because grievant had used loud, inappropriate and accusatory language towards a staff member in the presence of inmates.

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.⁷ 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.⁸

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 Training⁹ 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.

The Department of Corrections (DOC) has promulgated its own Standards of Conduct patterned on the state Standards, but tailored to the unique needs of the Department. Section 5-10.15 of the DOC Standards of Conduct addresses those offenses that include types of behavior least severe in nature but which require correction in the interest of maintaining a productive and well-managed work force. Two examples of a Group I offense are: 4. Inadequate or unsatisfactory job performance and, 5. Disruptive behavior.¹⁰

The underlying facts are undisputed. Grievant did write and disseminate the two memoranda that precipitated the disciplinary action at issue herein. Both memoranda involved personnel situations and both were critical of coworkers’ performance. Moreover, both memoranda were distributed to people not in the grievant’s chain of command and some of the recipients were even outside the institution in which grievant is employed.

As a state employee of six years, grievant knew, or reasonably should have known, that personnel matters are always confidential. Problems regarding coworkers should always be addressed only to that individual’s supervisor and/or to one’s own supervisor, i.e., only to those people with a "need to know." Grievant was well aware of this policy and practice because, on every previous similar situation, she had taken the matter directly to her own supervisor – the Assistant Warden. Here however, grievant disseminated memoranda containing serious allegations to several people who had no reason to be involved in these matters. The matters of which grievant complained were situations that must be resolved by the institution’s management (viz., the Warden and Assistant Warden).

Grievant argues in her defense that she had two supervisors because of the fact that the TC Regional Clinical Supervisor provided technical guidance to her. Grievant knew well that the role of the TC Clinical Supervisor was advisory and related only to technical matters about the TC program. She also knew that it is the Assistant Warden who is responsible for all administrative matters (leave time, pay, absences) and for grievant’s performance evaluation. Given the length of her employment, and her previous compliance with the policy to take such problems only to her supervisor, this argument is spurious and of little merit.

Grievant also contends that she felt that the problem involving the new counselor had existed for some time and was not being corrected to her satisfaction. It is understandable that grievant may have been frustrated by what she perceived as failure to correct a problem. However, when one’s immediate supervisor is apparently not addressing a problem, the correct procedure is to take the matter up the chain of command, in this case to the Warden. If the Warden does not provide a satisfactory response, grievant can go to the next level of management.

In summary, there is no evidence that agency management was attempting to squelch grievant’s right to take perceived problems to someone in authority. However, what grievant did in this case was, in effect, air dirty laundry in public by copying people on her memoranda who had neither the need to be notified nor the authority to correct the problems of which grievant complained. Thus the offense in this case is improper dissemination of personnel matters and failure to utilize the proper chain of command.

The agency’s decision to utilize disciplinary action (Written Notice) rather than the lesser corrective action of counseling is reasonable. First, the disciplinary action was issued for two separate instances involving two different coworkers. Second, while following the chain of command is important in any organization, it is especially important in a paramilitary organization such as the Department of Corrections. It is understandable that grievant does not want a blemish on her record. However, Group I Written Notices are retained in one’s personnel file for only a limited time after which they are removed from the grievant’s record.

In this instance, the underlying facts not as clear-cut as in the preceding case. While grievant was involved in a disruption on February 22, 2001, her version is somewhat different from the three other witnesses. Grievant alleges that while her voice was raised, the OSS also raised her voice. However, the preponderance of evidence in this dispute has been borne by the agency. Even if one discounts the OSS’ testimony (because of her self-interest in avoiding blame), two other witnesses testified credibly that it was the grievant that initiated the confrontation, was yelling, and had essentially lost control of herself. By her own testimony, grievant had reason to be upset. The relatively recent loss of two family members, combined with an understandable concern for the safety of her son, caused grievant’s emotions to be on the ragged edge. In contrast, the OSS had no such emotional involvement; she was simply doing her job by trying to deliver telephone messages.

The descriptions of the event provided by the Assistant Warden, the lieutenant and the OSS are all relatively consistent with each other. Based on this testimony, it is more likely than not that grievant became very emotionally charged up on the morning of February 22, 2001 because of concern for the safety of her son. While the Hearing Officer empathizes with grievant’s concern, the facts dictate a conclusion that grievant did precipitate a disruptive incident that was loud and should have been in private rather than public. Accordingly, corrective action is merited because the grievant failed to take her dispute into a private setting but instead vented her anger in the presence of other staff and inmates.

The Hearing Officer concludes, however, that this outburst, although serious, totally inappropriate and unprofessional, does not warrant disciplinary action. The grievant’s action was brief, unplanned, and emotionally charged for understandable (although not excusable) reasons. Given the totality of circumstances, Written Counseling appears to be the most judicious level of corrective action warranted.

The disciplinary action of the agency is modified.

The Group I Written Notice issued to the grievant on March 5, 2001 for inadequate or unsatisfactory job performance is AFFIRMED. This Written Notice shall be retained in the grievant’s personnel file for the period specified in Section 5-10.19.A of the Standards of Conduct.

The Group I Written Notice issued on March 5, 2001 for disruptive behavior is VACATED and shall be removed from grievant’s personnel file. The agency shall conduct verbal counseling with grievant regarding the need to avoid disruptive behavior, shall document such discussion in writing and shall retain the documentation in the supervisor’s evaluation file.

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