DECISION OF HEARING OFFICER

In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case Number 5240

Grievant did not participate in the prehearing conference on July 9, 2001. A written notice of the hearing time, date and site was mailed to the grievant’s address. Telephone contact with the grievant’s spouse established that he still lives at the address on his grievance form and that mail and messages were given to the grievant. The grievant also failed to appear for the hearing on July 24, 2001. Testimony and evidence was received from the agency and this decision is based on that evidence.¹

Agency Party

Legal Representative for Agency

One witness for Agency

Was the grievant’s conduct on May 31, 2001 subject to disciplinary action under the Commonwealth of Virginia 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 II Written Notice issued on June 1, 2001 because he left the work site without permission and failed to follow a supervisor’s instructions. In addition, the grievant was discharged from employment on June 1, 2001 because this was his third active Group II Written Notice. Following failure to resolve the grievance at the third resolution step, the agency head qualified the grievance for a hearing.

The Department of Mental Health, Mental Retardation and Substance Abuse Services (Hereinafter referred to as "agency") has employed the grievant as a storekeeper since July 1998. He was responsible for filling requisitions, picking up supplies from the central warehouse, cleaning the storeroom area, assisting on the tray line as needed and other tasks as assigned. Grievant had received an employee handbook and an orientation packet at the time of hire.

During the first two years of his employment, grievant’s performance met expectations; he received good performance evaluations. During 2000, however, grievant’s performance began to deteriorate; he also developed a tardiness problem and was occasionally absent from the work site without explanation. The grievant’s supervisor verbally counseled him for leaving work early without permission on March 22, 2000 and documented the counseling in writing. ²Grievant was also given a Group II Written Notice for leaving work early without permission on May 11, 2000. ³Grievant received a second Group II Written Notice for failure to follow supervisor’s instructions on September 12 & 20, 2000. ⁴During the meeting to issue the written notice, grievant’s supervisor advised grievant that any further disciplinary action would result in termination of employment.

On one occasion during the winter of 2000, grievant was missing from the work site for about two hours. The food service manager verbally counseled grievant and docked his pay for the two hours that he was missing from the warehouse area. Subsequently, grievant’s supervisor counseled him for tardiness during March and April 2001 and documented the discussion in writing.⁵

On May 24, 2001, grievant’s supervisor had to leave work for a medical appointment. Before leaving, he directed grievant to put away refrigerated food that was still sitting on the warehouse floor. Another supervisor discovered the food still on the floor about two hours later. Grievant could not be found until about 2:45 p.m. and had no explanation for his whereabouts during the preceding two hours. On May 31, 2001, grievant left the work site for lunch at 11:30 a.m. His supervisor and the food service manager could not locate grievant anywhere on the work site until about two hours later. Grievant’s supervisor issued a Group II Written Notice on June 1, 2001 because grievant had failed to follow a supervisor’s instructions on May 24, 2001 and because he was absent from the work site without authorization on both May 24 & 31, 2001.

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. ⁶

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 Training ⁷promulgated 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.3 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]. ⁸Examples of a Group II offense include failure to follow a supervisor’s instructions and, leaving the work site during work hours without permission.

The grievant failed to appear for the hearing before the Hearing Officer and therefore failed to rebut or contradict the agency’s evidence. Grievant also failed to submit any written documentation prior to the hearing and did not request any witnesses to attend the hearing. The agency has borne the burden of proof and shown, by a preponderance of the evidence, that the grievant’s conduct on May 24 & 31, 2001 was a violation of two standards of conduct. Both offenses are considered Group II offenses and therefore, the agency’s decision to issue a Group II Written Notice was reasonable and appropriate.

On the date of issuance of this written notice, grievant had two "active" written notices in his personnel file. The agency had already mitigated discipline when the grievant incurred his second written notice on October 13, 2000, even though the agency could have discharged grievant on that date. Thus, the agency had already given grievant yet another chance to correct his behavior. When grievant committed the same offense in May 2001, the agency reasonably concluded that grievant was not going to correct his behavior. It was therefore entirely reasonable for the agency to discharge grievant when he received his third Group II Written Notice.

The decision of the agency is hereby affirmed.

The Group II Written Notice issued on June 1, 2001 and the discharge from employment effective June 1, 2001 are 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§ 5.5 Department of Employment Dispute Resolution Grievance Procedure Manual, effective July 1, 2000.
²Exhibit 3. Counseling Report, March 23, 2000.
³Exhibit 4. Written Notice, issued May 15, 2000.
⁴Exhibit 5. Written Notice, issued October 13, 2000. As this was the second written notice, grievant's supervisor initially determined that grievant's employment should be terminated. However, following discussion with Human Resources, grievant was suspended for five days. Subsequently, the suspension was removed.
⁵Exhibit 6. Counseling Report, April 11, 2001.
⁶§ 5.8 Department of Employment Dispute Resolution, Grievance Procedure Manual, effective July 1, 2000.
⁷Now known as the Department of Human Resource Management (DHRM).
⁸Exhibit 10. DHRM Policy No. 1.60, Standards of Conduct, effective September 16, 1993.