In the matter of Department of Aging’s Case Number 5231

Hearing Date: July 25, 2001

Decision Issued: July 30, 2001

The hearing was initially docketed for the 30^th day following appointment of the hearing officer. Due to a typographical error and a miscommunication, it appeared to one party that the hearing had been postponed. By the time the error had been corrected it became necessary to reschedule the hearing for the 36^th day following appointment of the hearing officer.

Grievant submitted to both the agency and the hearing officer a list of witnesses he intended to call at the hearing. Subsequently, grievant’s counsel requested that the hearing officer issue a written order for a witness who is not employed by the Commonwealth. The hearing officer issued the order (with a copy to the agency) and it was delivered to the witness more than one week prior to the hearing. The witness was willing and prepared to testify.

When the agency’s deputy commissioner (human resources officer) learned that this particular witness would be testifying for grievant, he placed a telephone call to the witness’ employer. He advised the employer that this witness was being called to "represent" the employer at the hearing. He further stated that it was not in compliance with "agency protocol" for state employees to testify in matters involving non-state organizations and that he assumed that the employer would want to reciprocate by not allowing the witness to testify in the agency’s grievance hearing. Subsequently, the witness’ employer told the witness that he was prohibited from attending the hearing. The witness called grievant’s attorney to express regret that he would not be allowed to testify in the hearing. This conversation was verified by a recorded message on the attorney’s answering machine that was played during the hearing.

The witness’ employer is a small regional organization that has a working relationship with the grievant’s agency. The witness was not going to officially "represent" his employer but was going to provide testimony to corroborate one facet of grievant’s case. According to the Deputy Commissioner, the agency does not have any written "protocol" to prevent employees from testifying in matters outside the agency. The deputy commissioner further testified that he acted solely on his own to call the witness’ employer. It was also his own idea to state that the witness was going to "represent" his employer at the hearing and to assert that agency "protocol" prohibited such an appearance.

After taking the testimony of those who appeared for the hearing, the hearing officer obtained from grievant’s attorney a proffer of what the missing witness would have testified to if he had been permitted to appear. The hearing officer concluded that the witness’ testimony would not have changed the decision in this case because the issue about which he would have testified is tangential to the issues for which grievant was disciplined. Accordingly, there was no need to continue the hearing to obtain the witness’s testimony.

Although the outcome of the case was not affected by the absence of this witness, the agency’s attempt to affect the outcome by preventing the appearance of a witness is a matter of very serious import. First, the agency (through its representative – the deputy commissioner) has violated the grievance procedure by preventing the appearance of a witness who had been requested by the grievant.¹ Second, the agency has interfered with the hearing process by attempting to prevent a fair hearing of all the issues.² Such actions significantly taint the integrity of the grievance process. It is recommended that the agency take appropriate actions to address this matter and to prevent the recurrence of witness tampering in any future grievances.

Grievant

Attorney for Grievant

One witness for Grievant

Deputy Commissioner for Agency

Legal Representative for Agency

Two witnesses for Agency

One witness requested by Hearing Officer

Observer from EDR

Do the grievant’s actions between March 16 and March 27, 2001 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 III Written Notice issued on April 3, 2001 for undermining the authority of a departmental program, insubordinate and disruptive behavior and, leaving the workplace without permission. The grievant was also discharged from employment on April 3, 2001. Following failure to resolve the grievance at the third resolution step, the agency head qualified the grievance for a hearing.

The Virginia Department for the Aging (VDA) (hereinafter referred to as "agency") has employed the grievant as a state program coordinator. The grievant’s position description reflects that he has two primary tasks – managing a specific departmental program (40%) and maintaining a current knowledge base regarding Medicare and Medicaid rules and regulations, health and long-term care insurance products and, conducting training for volunteers and other staff (40%). He also coordinates information dissemination activities (10%), maintains an advisory council (5%) and serves on other task groups, advisory boards, and other work groups as assigned (5%).³

Grievant’s primary function involves coordinating the operation of a statewide program that provides insurance counseling and assistance to aging consumers. As part of his responsibilities, grievant acted as the chairperson for an advisory council comprised of representatives from the Bureau of Insurance (BOI), Medicare contractors, other state agencies that deal with concerns of aging consumers, local area agencies on aging, volunteers and consumers.

Each year, the BOI produces a Medicare Supplement Insurance Premium Comparison Guide. The guide is relied on heavily by volunteers in working with aging consumers. Prior to 2000, this guide had been regularly published in a format with which volunteers were familiar and which was deemed relatively easy to explain to consumers. Beginning in 2000, BOI began publishing this comparative data on its Internet web site in a new format. The printed version of the Guide for 2000 followed the web site format. Volunteers were displeased with the new printed version because of the changed format and their belief that consumers would find it too confusing. As coordinator of the advisory council, grievant communicated the members’ dissatisfaction to BOI. However, BOI was adamant that the basic format would remain, although it was willing to consider suggestions to make some minor changes in the 2001 version of the Guide.

During the summer of 2000, a rift began to develop in the relationship between VDA and BOI over this issue. The tone of this difference is apparent from correspondence from BOI to the grievant.⁴ The matter festered for several months and resurfaced again in March 2001 in a letter from BOI to the grievant’s supervisor. BOI criticized grievant’s January 12, 2001 e-mail to program coordinators and his handling of a council meeting that occurred on March 8, 2001.⁵ Grievant received a copy of this letter, was incensed by it, wrote a memorandum to his supervisor, and sent a copy of the memorandum to BOI. His memorandum was primarily a defense of his own actions in the matter; it also offered criticism of the author of the BOI letter. However, in this memorandum, grievant also directly criticized his own supervisor for failing to support him. He stated, among other things:

At 2:00 p.m. on March 27, 2001, grievant met with his supervisor and the agency’s Commissioner in the Commissioner’s office to discuss remedial action needed in grievant’s conduct of the counseling program. After only a few minutes of discussion, grievant began to criticize the Commissioner stating that he had taken his concerns to "higher-ups" in state government.⁷ He then abruptly and loudly slammed his folder of documents together, announced that "This meeting is over!," walked out of the Commissioner’s office and slammed the door shut behind him. Grievant’s supervisor and the Commissioner were stunned by grievant’s behavior and discussed what had just taken place for a few minutes. The supervisor then went to find grievant to request that he return to the Commissioner’s office. Grievant could not be located in the building; it was subsequently determined that grievant had gathered his personal belongings from his office, gone to his car and left the premises. He did not seek permission from his supervisor to leave work and did not notify her either that he was leaving or why he was leaving.

At about 2:45 p.m., grievant telephoned the office and asked an employee to deliver a message to his supervisor in which he said, among other things, that he wanted to apologize for slamming the door when he left. That same afternoon, grievant called the Department of Human Resource Management, which advised him to return to work immediately that afternoon; grievant did not return to work that day. The Commissioner felt sufficiently threatened by grievant’s demeanor that a security guard was hired and posted at the facility during the night of March 27, 2001. Although grievant was at work for the next four days, he did not offer an apology either to the Commissioner or to his supervisor. The grievant was suspended on April 2, 2001 and was disciplined and discharged from employment on April 3, 2001.

On March 8, 2001,⁸ grievant had asked his supervisor if he could meet with her to discuss some work issues. She agreed and they met in the conference room. When grievant became dissatisfied with the discussion, he abruptly walked out of the meeting. The supervisor had not advised him that the meeting was over and the grievant did not seek permission from the supervisor before leaving the meeting.

The grievant attended an out-of-state conference from Sunday, March 11 through Thursday, March 15, 2001. Because he was traveling on a Sunday, he had requested permission in advance to take off from work on Friday, March 16, 2001; his supervisor had approved this time off. However, during his absence, his supervisor learned that March 16 was the deadline for submission of certain paperwork to a federal agency. Accordingly, she contacted grievant during the conference and told him he would have to work on March 16^th. Grievant had made plans to be with his family on March 16 and was not happy with his supervisor’s decision. By Thursday, grievant learned that the federal agency had extended the deadline for about two weeks. He called his supervisor but was only able to leave a voice mail message for her. He advised her of the delayed deadline and said he would therefore not come to work on March 16^th; he also gave her his home phone number if she wanted to reach him. Grievant did not hear from his supervisor after that and he did not report to work on March 16^th.

The grievant’s former supervisor had counseled grievant about his interpersonal communication with people outside the agency on July 7, 1999. He also counseled grievant not to alienate local staff people on October 26, 1999 and May 8, 2000. On December 7, 1999, grievant’s supervisor counseled him about improving his relationship with his counterpart at BOI.

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.⁹

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 Training¹⁰ 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].¹¹ Examples of Group II offenses include failure to follow a supervisor’s instructions and, leaving the work site during work hours without permission. Group III offenses include acts and behavior of such a serious nature that a first occurrence normally should warrant removal.

The underlying facts in this case are undisputed. The grievant wrote a memorandum highly critical of his supervisor and sent a copy of the memorandum to a state employee outside his own agency. On two occasions, he abruptly ended meetings with superiors by walking out without permission. On one of those two occasions, he slammed the door of the Commissioner when leaving her office. On one occasion he failed to appear for work on a scheduled workday and, on another occasion, he left the work site without permission. Each of these actions constitutes an offense that is subject to disciplinary action pursuant to the Standards of Conduct. Therefore, the agency has borne the burden of proof to show, by a preponderance of the evidence, that the grievant should be subject to disciplinary action.

Grievant maintains that his actions regarding the BOI Insurance Guide were proper and that he should not be disciplined regarding this matter. The Hearing Officer takes no position with regard to this issue because it is a red herring. For the sake of argument, the Hearing Officer presumes that grievant’s views and actions regarding the dispute over guide format were appropriate. However, the real issue was grievant’s dissemination of his March 20, 1001 memorandum to a person outside of his direct chain of command. Grievant has a right to disagree with his supervisor and to put his disagreement in writing to his supervisor and her superior. He does not have the right to broadcast such criticism to a person outside his own agency. As a state employee with three years experience, the grievant knew, or reasonably should have known, that personnel matters are to be kept strictly confidential. Criticism of a superior’s performance is such a personnel matter. It should have been obvious to grievant that disclosure of internal dissension to another agency (with which the relationship was already strained) would only make matters worse. Grievant’s sending of the memorandum critical of his own supervisor to another agency was blatant disrespect for his supervisor.

Grievant contends that his walking out of two meetings with his superiors should not be subject to discipline because, "I called the meetings." It is difficult to believe that someone as educated and accomplished as the grievant could have such a naïve view. When one requests a meeting with a superior, and the superior agrees to meet, ownership of the meeting shifts to the superior. The supervisor has the authority to determine when the subject has been discussed to completion and to then end the meeting. Grievant abruptly walked out of the meetings solely because he disagreed with the direction of the discussion. Such behavior is clearly insubordinate. Insubordination can occur in two ways. First, an employee can refuse to follow the reasonable instructions of his supervisor. By so doing, he demonstrates a deliberate defiance of proper authority. Second, an employee can take actions that show a flagrant disrespect for the supervisor’s position and authority.

In this case, walking out of meetings without permission is flagrantly disrespectful of the supervisor’s authority. Abruptly walking out of a meeting with the agency’s commissioner and slamming the door as one leaves is not only flagrantly disrespectful but is simply inexcusable. In this case, the Commissioner testified credibly and convincingly that grievant was so abrupt and forceful in slamming his folders together and slamming the door that she felt threatened. In fact she was so concerned about what the grievant might thereafter do, that a security guard was brought to the premises within hours of the incident. While grievant did not physically approach the two women, grievant’s overall tone and demeanor were perceived as threatening. Grievant recognized that he had been insubordinate when, soon afterwards, he telephoned the agency and left a message apologizing for his actions.

With regard to the grievant’s failure to appear for work on March 16, 2001, grievant contended that he had called his supervisor before in similar situations and that he had never been disciplined. However, grievant’s supervisor testified that past situations had involved illness or other unavoidable absences. The March 16^th situation involved some fairly unique circumstances. The grievant had already worked five full days in the workweek. He contacted his supervisor to apprise her of his plans and received no further calls from her. Nothing was said to him about this matter until it was incorporated into the disciplinary action taken on April 3, 2001. Thus, it appears that this incident would not have been the subject of disciplinary action had it not been for the other intervening events. Under these circumstances, the hearing officer assigns little weight to the March 16^th incident. However, it is undisputed that grievant failed to obtain permission before leaving work on March 27, 2001. Grievant has offered no mitigating circumstances for his failure to comply with procedure on this occasion.

Based on the evidence in this case, grievant committed a Group II offense when he left the work site on March 27, 2001 without permission. The grievant committed two further offenses when he insubordinately and abruptly left meetings without permission on March 8, 2001 and March 27, 2001. Finally, he committed a fourth offense when he sent a confidential memorandum to a person outside his direct chain of command. The latter three offenses do not specifically appear in the Standards of Conduct. However, as noted in Section V.A of Policy No. 1.60, the offenses set forth therein are not all-inclusive, but are intended as examples of unacceptable behavior for which specific disciplinary actions may be warranted. Accordingly, any offense that undermines the effectiveness of an agency’s activities may be considered unacceptable and treated in a manner consistent with the provisions of Section V.

Viewing the evidence in the light most favorable to grievant, the March 8^th incident is an offense that fits the definition of a Group II offense, because it is behavior sufficiently severe in nature such that an accumulation of two such offenses should warrant removal from employment. The grievant’s behavior on March 27^th when he abruptly walked out of a meeting with the Commissioner and slammed her door was significantly more egregious. Because grievant had not yet been disciplined for the March 8^th incident, the March 27^th incident is equivalent to a Group II offense, if viewed in isolation. The grievant’s sending of a memorandum critical of agency management to another state agency clearly undermined the effectiveness of agency activities. Because of the rift between the two agencies, grievant knew that his memorandum could only exacerbate the situation. This is an offense for which prior warning is unnecessary and one that fits the definition of a Group III offense.

Thus, the evidence supports a finding that grievant committed a total of three Group II offenses and one Group III offense. Whether each offense was disciplined separately or together, the totality of the offenses was sufficient to warrant removal from state employment. Moreover, the common thread that pervaded virtually all of grievant’s actions reflected a complete lack of respect for authority. That the grievant went over the agency head and addressed complaints directly to a cabinet secretary before going up the chain of command within the agency is ample proof of his flagrant disregard for procedure and authority. Regrettably, grievant fails to recognize that all organizations function effectively only when subordinates demonstrate proper respect for their superiors. While employees have right to express disagreement with procedure or policy, such disagreement must be respectful and must be expressed in an appropriate manner only to those in a position to address the issues.

Grievant’s attitude is reflected in his comment during the hearing that "I thought a state job was secure." The inference from his comment was that grievant believed he had carte blanche to say anything to anyone without concern for repercussions. Unfortunately, grievant still fails to recognize that he committed an offense by sending his March 20^th memorandum outside the agency. Grievant testified that if he were rehired, he would take the same action again. He also thinks it is not insubordinate to walk out of a meeting with a superior without permission. Because grievant has shown no understanding that his actions constituted serious offenses, even after the termination of his employment, reemployment would be pointless.

The disciplinary action of the agency is affirmed.

The Group III Written Notice issued to the grievant on April 3, 2001 and the discharge from employment are AFFIRMED.

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"Each party may call witnesses to testify at the hearing" (Underscoring added). § IV.A, Rules for Conducting Grievance Hearings, effective January 1, 1998.
² The hearing is to be conducted "in an orderly, fair, and equitable fashion, pursuant to the provisions of the Grievance Procedure" (Underscoring added). § II, Ibid.
³ Exhibit 9. Grievant's Position Description, signed February 10, 2000.
⁴ Agency Exhibit 2. Letter to grievant from BOI, August 28, 2000.
⁵ Agency Exhibit 3. Letter to grievant's supervisor from BOI, March 15, 2001.
⁶ Agency Exhibit 4. Memorandum from grievant to his own supervisor, March 20, 2001.
⁷ In fact, grievant admitted during the hearing that he had personally spoken about his concerns with the Governor's Secretary for Health and Human Resources - the cabinet secretary to whom the agency's commissioner reports.
⁸ The date of this meeting is in dispute. Grievant acknowledges the meeting occurred but contends that it was on February 26, 2001.
⁹ § 5.8 Department of Employment Dispute Resolution, Grievance Procedure Manual, effective July 1, 2000.
¹⁰ Now known as the Department of Human Resource Management (DHRM).
¹¹ Exhibit 12. DHRM Policy No. 1.60, Standards of Conduct, effective September 16, 1993.