In the matter of Department of Criminal Justice Services Case Number 5227

Hearing Date: June 27, 2001

Decision Issued: June 28, 2001

Grievant seeks to have the disciplinary action removed and also seeks transfer to an equivalent level position in a different division of the agency.¹ In those cases in which an employee has been discharged from employment as part of the discipline, a hearing officer may recommend transfer if he decides to reinstate the employee. However, when the discipline imposed is only a single Group I Written Notice, the hearing officer may not recommend the transfer option. (However, see Opinion section below for further related discussion on the reason for the transfer request).

Grievant

Representative for Agency

One witness for Agency

Was the grievant’s performance in February 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?

The grievant filed a timely appeal from a Group I Written Notice issued on March 1, 2001 for inadequate or unsatisfactory job performance because she had not reconciled problems in conjunction with the importation of training rosters. Following failure to resolve the grievance at the third resolution step, the grievance was qualified for a hearing.

The Department of Criminal Justice Service (hereinafter referred to as "agency") has employed the grievant for almost three years as an executive secretary. Her primary duties include providing miscellaneous secretarial support to the Private Security Services section (40%), daily mailing of registration and certification letters (20%), initial customer service contact for incoming telephone calls (10%), and entering training rosters into the section’s database (20%).²

The agency maintains a database of persons who are receiving training from a large number of governmental and private organizations in the field of law enforcement and security. As participants complete their training, the organization conducting the training course electronically submits to the agency a roster of those who successfully completed the training. Grievant’s responsibility each day is to receive these rosters and import them into the agency’s database. Doing so updates the record of each trainee so that, for example, a security guard could be certified as having received firearms training. Once the agency’s records reflect successful completion of the required training, the trainee can then be hired in their chosen field of employment.

Occasionally, the importation process reveals problems with some entries on the roster. Most commonly, a Social Security number or trainee name does not match the names and numbers in the database. Grievant is responsible to reconcile such problems by contacting the organization, obtaining the correct information, and keying in the information until the database acknowledges a proper match. The mismatch problem is highlighted anew each day when grievant accesses the system until such time as the problem is reconciled. Thus, grievant received a daily computer reminder that she had unresolved mismatches.

It is vital that this reconciliation process be performed expeditiously in order that the database is correct and current. Failure to reconcile a mismatch could result in a person not being hired for a job because the agency’s database does not reflect the completion of required security training. Grievant had been trained to address such problems by sending an e-mail regarding the mismatch to the organization that submitted the roster. She was not told to call the organization to resolve such problems; however, neither was she told that she could not call the organization.

The current computer system for the importation of training rosters was implemented in early 2000. Grievant received appropriate training and understood how to use the system. She also understood the importance of prompt reconciliation of mismatches because of the impact on the livelihood of trainees awaiting certification prior to employment. During most of the year 2000, grievant successfully imported rosters and promptly reconciled mismatches. Grievant was the only person responsible for this process on a regular basis. One other person performed this function only when grievant was absent due to illness or scheduled leave.

In late February 2001, grievant’s supervisor discovered that several mismatches that occurred in September and November 2000, and January and February 2001 had not been reconciled. The supervisor issued a Group I Written Notice to grievant on March 1, 2001. Grievant subsequently was able to demonstrate that she was not at work on the dates in November 2000 and January 2001 when mismatches had not been reconciled. The supervisor subsequently revised the Written Notice and reissued it on May 8, 2001 citing one error from September 2000 and eight problems in February 2001.

When confronted (prior to issuance of the Written Notice), grievant’s response was that she "just did not do it." She did not provide further explanation to her supervisor. Grievant did send e-mails to the organizations involved in the February mismatches. However, when no response was received from those organizations, grievant failed to follow-up by calling to obtain the corrected information. When these problems were brought to her attention in late February 2001, grievant called each of the affected organizations and was able to obtain all of the corrected information within three hours.

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 of the Code of Virginia, the Department of Personnel and Training⁴ 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 inadequate or unsatisfactory job performance.

The underlying facts in this case are uncontroverted. Grievant did fail to promptly reconcile mismatches that occurred in the roster importation process. She knew the importance of assuring that such mismatches be promptly reconciled. Therefore, the agency has satisfactorily borne the burden of proving, by a preponderance of the evidence, that grievant’s job performance was unsatisfactory with respect to this major job element.

Grievant initially had no reason for her failure to complete the reconciliation process. Subsequently, she explained that she had made initial attempts to obtain information from the affected organizations. However, she has not provided any reason for her failure to pursue each case to a prompt and successful resolution of the problem. During the hearing, grievant acknowledged that during February 2001, she had not been as diligent about reconciling roster problems as she had been in the past. Thus, grievant has tacitly acknowledged some culpability in this situation.

The unrebutted testimony of grievant’s supervisor was that she had verbally counseled grievant in the past on other work issues but found that such counseling was ineffective. For that reason, the supervisor discussed this situation with her own supervisor. It was concluded that the most appropriate action in this case would be a Written Notice. This level of disciplinary action was deemed appropriate because 1) delays in the reconciliation process adversely affected customers and reflected badly on the agency and, 2) counseling had not been effective in the past. Given the totality of the circumstances, the hearing officer concludes that the agency’s decision to escalate to a Group I Written Notice was reasonable in this case.

By her own testimony, grievant felt that a rift in the relationship between she and her supervisor began to develop about 14 months ago. Given grievant’s testimony, and the tenor of the supervisor’s written comments in response to the grievance, it would appear that this working relationship has not improved in the interim. This accounts for grievant’s request for a transfer to a different division of the agency.

At the conclusion of the hearing, grievant requested that EDR provide mediation between her and her direct supervisor. Grievant makes this request not necessarily to resolve this specific grievance but more to obtain outside counseling in the hope of achieving a better working relationship with her supervisor. The hearing officer encouraged grievant to call EDR so that a counselor can be assigned to assist in this goal. It may well be that, with the assistance of one of EDR’s professional counselors, a dialogue can be established between grievant and her supervisor that will result in a better mutual understanding and working relationship.

The disciplinary action of the agency is affirmed.

The Group I Written Notice issued to the grievant on March 1, 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

¹ Exhibit 7. Grievance Form A, filed March 28, 2001.
² Exhibit 4. Grievant's Position Description, signed May 13, 1999.
³ § 5.8 Department of Employment Dispute Resolution, Grievance Procedure Manual.
⁴ Now known as the Department of Human Resource Management (DHRM).