In the matter of Department of Juvenile Justice Case Number 5241

Hearing Date: August 15, 2001

Decision Issued: August 18, 2001

On April 2, 2001, Grievant was issued a Group III Written Notice of disciplinary action with removal for:

On April 2, 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 July 19, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On August 15, 2001, a hearing was held at the Agency’s regional office.

Grievant (by counsel)

Grievant’s Counsel

Agency Party Designee

Legal Assistant Advocate

Assistant Superintendent

Three Sergeants

Chief of Security

Inspector General

Lieutenant

Personnel Assistant

1. Whether Grievant should receive a Group III Written Notice of disciplinary action with removal.
2. Whether the Agency discriminated against Grievant because of her sex.

With respect to the first issue, the burden of proof is on the Agency to show by a preponderance of the evidence that its disciplinary action against the Grievant was warranted and appropriate under the circumstances. With respect to the second issue, the burden of proof is on the Grievant to show by a preponderance of the evidence that the Agency discriminated against her because of her sex. 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:

The Department of Juvenile Justice employed Grievant as a Corrections Lieutenant. The chief objective of her position was:

(Agency Exhibit 4).

No evidence was introduced of any prior disciplinary action being taken against Grievant.¹

Grievant joined the Agency in January 1998 as a Sergeant. She was promoted to Lieutenant in 1999. As a Lieutenant, she usually served as Shift Commander.

Agency employees must fill out a Duty Roster on a daily basis. The Duty Roster lists the names of all employees working on a particular 12 hour shift and identifies which post the employees are working.

Employees are paid based on a 28 day cycle. During that 28 days, an employee is scheduled to work 168 hours but is paid for only 160 days. The additional eight hours must be "comped out" meaning the employee must use some form of leave equaling eight hours. Information from the Duty Rosters is used to calculate the total number of hours shown on the 28 Day Cycle Sheet.

Grievant received training regarding the rules and regulations governing Leave Activity Reporting Forms. (Agency Exhibit 4). In her position as Lieutenant, she was responsible for making sure that the Duty Roster and the 28 Day Cycle Sheet accurately reflected her hours worked. She had sole control over these documents.

When employees enter or exit the Facility’s main gate, a corrections officer records in a log book the date and time of their arrival and departure.

On at least two occasions, Grievant left the Facility during her shift without permission. Grievant did not ask anyone to assume her duties as Shift Commander; she simply left the Facility.

The Agency has combined two separate offenses into one Group III Written Notice. To determine whether the disciplinary action should be upheld, the Hearing Officer must examine each alleged offense separately and then consider them together.

"Leaving the work site during work hours without permission" is a Group II offense. P&PM § 1.60(V)(2)(c). The work site of a Corrections Lieutenant is the Facility. On at least two occasions, Grievant left the Facility without first obtaining her supervisor’s permission. Her behavior for that action alone justifies the Agency issuing her at least a Group II Written Notice. ²

Group III offenses under P&PM § 1.60(V)(B)(3) "include acts and behavior of such a serious nature that a first occurrence normally should warrant removal." "Falsifying any records, including, but not limited to, vouchers, reports, insurance claims, time records, leave records, or other official state documents" constitutes a Group III offense. P&PM § 1.60(V)(B)(3)(b).

"Falsifying" is not defined by the P&PM, but the Hearing Officer interprets this provision to require proof of an intent to falsify by the employee in order for the falsification to rise to the level justifying termination. This interpretation is less rigorous but is consistent with the definition of "Falsify" found in Blacks Law Dictionary (6^th Edition) as follows:

The Hearing Officer’s interpretation is also consistent with the New Webster’s Dictionary and Thesaurus which defines "falsify" as:

One way to establish that an employee has falsified leave records is to show a pattern of overstating hours worked as compared to an objective standard. When the amount of leave claimed by Grievant is compared to the log books showing her entrance and exit at the Facility, a pattern emerges. Grievant regularly overstated the amount of time she actually worked. For example, the following schedule compares the actual time Grievant worked with what she claimed on the Duty Roster and the 28 Day Sheet:

Grievant was a supervisor responsible for verifying the leave records of her subordinates. She was responsible for knowing the Agency’s leave reporting policies and applying them appropriately. The Agency has established that Grievant falsified leave records, thereby justifying the issuance of a Group III Written Notice. No evidence of mitigation was presented.

Grievant contends she is the victim of sex discrimination. It is unnecessary to provide a lengthy discussion governing sex discrimination since Grievant failed to present any credible evidence of discrimination. The leave records of other male Lieutenants were examined. When those records revealed few errors, the Agency did not need to examine as many months of leave records as it did in Grievant’s instance where numerous discrepancies were obvious.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group III Written Notice of disciplinary action with termination is upheld. Grievant’s claim for sex discrimination is 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

¹ Agency Exhibit 7 describes several counseling memorandum relating to such things as bring in to the facility unauthorized movies. The Hearing Officer gives little weight to this exhibit.
²Grievant also failed to follow Post Order 1 which states, "maintain post until properly relieved." Grievant was not properly relieved as Shift Commander. She failed to "comply with established written policy" thereby committing a Group II offense.