Issue: Group II Written Notice with termination (failure to report to work as scheduled without proper notice to supervisor); Hearing Date: July 9, 2001; Decision Date: July 13, 2001; Agency: Virginia Commonwealth University; AHO: Carl Wilson Schmidt, Esquire; Case No.: 5226

In the matter of Virginia Commonwealth University’s Case Number 5226

Hearing Date: July 9, 2001

Decision Issued: July 13, 2001

On April 3, 2001, Grievant was issued a Group II Written Notice of disciplinary action with removal for:

On April 25, 2001, Grievant timely filed a grievance to challenge the disciplinary action. The outcome of the Third Resolution Step was not satisfactory to the Grievant and she requested a hearing. On June 13, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On July 9, 2001, a hearing was held at the Agency’s regional office.

Grievant

Grievant’s Representative

Executive Director

Legal Assistant Advocate

Head of Firm Order

Head, Acquisition Services

Acting Personnel Officer

Whether Grievant should receive a Group II Written Notice of disciplinary action with removal from employment.

The burden of proof is on the University to show by a preponderance of the evidence that its disciplinary action against the Grievant was warranted and appropriate under the circumstances. Grievance Procedure Manual ("GPM") § 5.8. A preponderance of the evidence is evidence which shows that what is sought to be proved is more probable than not. GPM § 9.

After reviewing the evidence presented and observing the demeanor of each witness, the Hearing Officer makes the following findings of fact:

Virginia Commonwealth University employed Grievant as an Administrative and Program Specialists II until she was removed from employment on April 3, 2001. She began working for the University in 1995. Grievant’s work performance met the University’s expectations as reflected in her October 2000 evaluation.

On August 3, 2000, the Division Head wrote a letter to Grievant outlining the Division’s leave reporting policy. This letter states in part:

(Agency Exhibit 6). Attached to the letter was a copy of an April 13, 2000 email sent to Division staff stating:

On November 27, 2000, Grievant received a Group II Written Notice for "Failure to report to work as scheduled without proper notice to supervisor." (Agency Exhibit 1).

Grievant’s supervision sent her a memorandum on March 2, 2001 stating:

(Agency Exhibit 2).

In February 2001, the Executive Director asked the University Police to investigate Grievant. One of his staff had informed him that Grievant may have threatened another employee. Initially, the University Police told the Executive Director that nothing could be done. He considered the allegation so serious that he persisted in his request for an investigation, and ultimately an investigation began.

On March 12, 2001, the Acting Personnel Officer appeared at Grievant’s house with a letter informing Grievant she was suspended pending an investigation. (Agency Exhibit 10). A male and female police officer who were not in uniform accompanied the Acting Personnel Officer. Grievant was at home because of illness. After the Acting Personnel Officer left, the police officers identified themselves and began asking questions. Nothing came from the investigation and the matter was dropped. On March 14, 2001, the University sent Grievant a letter lifting the suspension and informing her she should report to work.

Having police officers appear at her home and ask her questions upset Grievant. She denies having said anything improper and feels it was inappropriate for the University to ask that she be examined by police officers.

Grievant was out of the office from Monday, March 19, 2001 to Friday, March 23, 2001. She properly contacted her supervisor to obtain approval for being absent. On Friday, March 23, 2001, she called the University in accordance with the leave policy and indicated she would be absent on Monday, March 26, 2001 but would call on Monday to let the University know if she would be out for the rest of the week. She did not call on Monday.

On Tuesday, March 27, 2001, Grievant was absent from work and did not call to seek approval for her absence. On Wednesday, March 28, 2001, she called the Acting Personnel Officer and left a voice message saying she would be out for the remainder of the week. The Acting Personnel Officer is not within Grievant’s chain of command. (Agency Exhibit 3). Contacting her was not consistent with the University’s policy. On several prior occasions, the Acting Personnel Officer told Grievant to contact Grievant’s supervisor regarding absences from work. On Thursday, March 29, 2001, Grievant was absent but did not contact the University to seek leave approval. On April 3, 2001, the University issued Grievant a Group II Written Notice with removal effective that day.

Department of Human Resource Management’s Policies and Procedures Manual ("P&PM") Policy 1.60 sets forth the Commonwealth’s Standards of Conduct governing State employees. Unacceptable behavior is organized into three groups according to severity with Group I being the least severe and Group III being the most severe offenses. Group II offenses "include acts and behavior which are more severe in nature and are such that an additional Group II offense should normally warrant removal." An example of a Group II offense is:

(P&PM § 1.60(V)(2)(a).)

Grievant failed to follow the University’s leave policy. She was well aware of the policy and should have complied. Her argument that the University’s action of sending police officers to her home somehow completely excused or affected her obligation to contact her supervisor is without merit. Grievant complied with the University’s policy for the week immediately following her suspension. There is no reason why Grievant could not have complied with the policy the next week as well. The University appropriately issued Grievant a Group II Written Notice.

Group II Written Notices are cumulative. A second active Group II Written Notice normally should result in the discharge of the employee. P&PM § VII(D)(2)(b). Grievant has two Group II Written Notices for the same offense. Although Grievant could be terminated, the Hearing Officer will not do so.

A Hearing Officer may reduce disciplinary action if mitigating circumstances exist such as:

1. Conditions that would compel a reduction in the disciplinary action to promote the interests of fairness and objectivity; or
2. An employee’s long service or otherwise satisfactory work performance.

P&PM § 1.60(VII)(C).

The Hearing Officer is reinstating Grievant for the following reasons. First, Grievant met expectations during the performance cycle ending October 2000. Her evaluator stated, "[Grievant] performed well this year, receiving materials with very good accuracy, and supporting the unit when it was short-staffed." The evaluator also stated: "[Grievant] maintained good working relationships with co-workers." (Grievant’s Exhibit 7). Second, Grievant’s failure to follow policy did not dramatically harm the University or interfere with its ability to conduct business. Third, when the University police questioned Grievant, it may have caused her additional stress that would not have otherwise existed. It is possible that without the additional stress, Grievant may have exercised better judgment.

The University’s frustration with Grievant is understandable. A substantial amount of University staff time has been devoted to making sure Grievant complies with a simple leave reporting policy. Rather than admit making an error, Grievant blames the University for creating a difficult place for her to work. In order to emphasize to Grievant the severity of her behavior, the Hearing Officer will not award Grievant back pay or benefits.

Grievant should give serious consideration to the position in which she now finds herself. If she receives any additional disciplinary action, she will likely be terminated. She may not get another chance. The Hearing Officer suggests to the Grievant that she (1) immediately seek appropriate mental health treatment, (2) comply with all University policies and work assignments even though she may believe they are unreasonable or misguided, and (3) focus on performing her job as the University directs. An employee who strives to follow management’s directives is worthy of praise.

For the reasons stated herein, the University’s issuance to the Grievant of a Group II Written Notice of disciplinary action is upheld, but modified to reinstate Grievant. Back pay and back benefits are denied.

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.

Carl Wilson Schmidt, Esq., Hearing Officer