In the matter of Virginia Community College System’s Case Number 5220

Hearing Date: July 2, 2001
Decision Issued: July 3, 2001

Grievant sought to present testimony about what he feels is improper behavior of his supervisor since he was employed in January 2000. The Hearing Officer declined to hear such testimony because the incidents complained of occurred more than 30 days prior to filing of the grievance.¹ Moreover, such testimony is not relevant to the issues grieved.²

Grievant
One witness for Grievant
Representative for Agency
One witness for Agency

Was the grievant’s absence from March 20 through March 23, 2001 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? If there evidence of discrimination or a hostile work environment?

The grievant filed a timely appeal from a Group II Written Notice issued on March 26, 2001 because he left work during his shift without permission and failed to report for work on the next three workdays. Following failure to resolve the matter at the third resolution step, the grievance was qualified for a hearing.

Virginia Community College System (hereinafter referred to as "agency") has employed the grievant as security officer senior since January 2000. Grievant’s direct supervisor is the Compliance/Safety Officer, who in turn reports to the Director of Student Development Services. He has performed satisfactorily and has no prior disciplinary actions.

The agency utilizes the rules for annual leave found in Department of Human Resources Management (DHRM) policy 4.10, which states, in pertinent part:

Grievant was aware of this policy and had fully complied with the policy prior to March 20, 2001 by requesting permission, and obtaining permission from his supervisor, for any annual leave taken. The standard practice is to submit a leave slip to one’s supervisor in advance of the requested leave and to obtain written approval prior to the leave date. In short-notice situations, the request and approval may be verbal.

On March 19, 2001, grievant had spoken with the Maintenance Supervisor regarding a lock located on an access gate. Grievant felt the lock was too small for the gate and was difficult to remove because it was old and rusted. The Maintenance Supervisor obtained a new lock and delivered it grievant on March 20, 2001. Grievant installed the new lock, returned to the security office and laid the keys on the desk. A fellow security officer noticed the keys and asked what they were for. Grievant explained what had transpired and nothing more was discussed. At approximately 1:30 p.m., grievant’s supervisor telephoned him and told him that he had not used the proper procedure for obtaining a new lock. She directed grievant to reinstall the old lock. Grievant found his supervisor to be hostile and unprofessional during the telephone conversation, and he became extremely upset. ⁴

After the call ended, grievant switched the locks as directed. He then told his fellow security officer that he would have to cover grievant’s shift for the rest of the week because grievant was going to take off to look for a new job. Grievant then sent a very brief e-mail to his supervisor at 1:36 p.m. stating that he was taking "the rest of the week off for personal reasons." Grievant did not call his supervisor or anyone else to obtain permission to leave. He did not wait for a response to the e-mail and, instead, left his post and went home. Grievant did not call his supervisor or any other management person for the rest of the week. He did not report to work on Wednesday through Friday, March 21-23, 2001. As a result of grievant leaving without permission and his absence from work for more than three days, other employees had to work additional hours and some overtime expense was incurred by the agency. When grievant returned to work on Monday, March 26, 2001, his supervisor gave him a Group II Written Notice.

During the past four years, there have been two other instances in which security officers have left their post without permission and were absent without good reason. Both security officers were discharged from employment.

On April 19, 2001, grievant’s supervisor met with him to discuss his attitude and his actions relating to this grievance. She advised him that it was his right to file a grievance if he so chose. Grievant felt that his supervisor was attempting to dissuade him from proceeding to the next step in the grievance resolution process.

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.⁵

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 Training⁶ 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.2 of the Commonwealth of Virginia’s Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60 provides that Group II offenses include acts and behavior which are more severe in nature and are such that an accumulation of two Group II offenses normally should warrant removal from employment. One example of a Group II offense is leaving the work site during work hours without permission.

It must be noted that the Standards of Conduct includes Group III offenses, which include acts and behavior of such a serious nature that a first occurrence normally should warrant removal from employment. An absence from work in excess of three days without proper authorization or a satisfactory reason is a Group III offense. In the instant case, grievant was absent from work in excess of three days. Under such circumstances, the agency could have given grievant a Group III Written Notice and discharged him from employment but Human Resources elected to utilize the lesser Group II disciplinary action because grievant had no prior Written Notices.

The basic facts in this case are undisputed. Grievant became extremely upset because of a telephone conversation with his supervisor on March 20, 2001. Within a few minutes thereafter, he left work without permission and failed to report to work for the following three scheduled workdays. He did not call or contact his supervisor or any other management person during his unauthorized absence. Leaving work without permission is a Group II offense.

Grievant believes that leaving work without permission was justified because he was extremely upset at the time. He reasoned that he was so upset that if he had called his supervisor to seek permission to leave, he might have said something unprofessional or out of line. While this is understandable, grievant had other alternatives available to him. He could have called the person to whom his supervisor reported and sought his permission to leave. Grievant could also have called his supervisor or her superior on the following day when he had had an opportunity to cool off. However, grievant failed to avail himself of these reasonable alternatives. Therefore, the fact that he was upset does not provide sufficient justification for his offense.

Significantly, grievant acknowledged during the hearing that, by the day following his unauthorized departure from work, he felt that he would probably be disciplined for his action. Thus, grievant had almost immediately realized that he should have sought permission before leaving work and should not have remained off work without giving notice to the agency.

Grievant contends that two employees had left work without permission in other incidents but that no disciplinary action was taken. However, the agency presented testimony that both employees had advised the supervisor or some other management person soon after leaving of the nature of the situation. Grievant is not aware whether these two individuals were counseled for their actions.

Grievant maintains that his supervisor has over a period of time created an atmosphere of hostility. However, grievant indicated that, prior to this incident, the hostility had been directed primarily at other individuals and other departments. He could not point to any specific incidents in which his supervisor had been hostile to him until after he filed his grievance. Therefore, the hearing officer must conclude that the disciplinary action herein was not based on any discrimination or hostility. In fact, the agency administered a less severe disciplinary action than was warranted by the facts; as noted above, the agency could have issued a Group III Written Notice and terminated the grievant’s employment.

Therefore, the agency has demonstrated, by a preponderance of the evidence, that grievant did leave work without permission on March 20, 2001 – a Group II offense. The Hearing Officer finds no circumstances that would warrant mitigation of this disciplinary action.

It is already apparent to the agency that an interpersonal conflict exists between grievant and his supervisor. The agency has reassigned grievant to another location and a different supervisor. Therefore, the Hearing Officer sees no need to address this issue because the agency has recognized the problem and has taken steps to separate the two individuals.

The disciplinary action of the agency is affirmed.

The Group II Written Notice issued to the grievant on March 26, 2001 is AFFIRMED. The disciplinary action shall remain active pursuant to the guidelines in Section VII.B.2 of the 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