In the matter of Department of Social Services Case Number 5242

Hearing Date: July 24, 2001

Decision Issued: July 27, 2001

On March 29, 2001, Grievant was issued a Group II Written Notice of disciplinary action for falsifying state records. On April 5, 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 27, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On July 24, 2001, a hearing was held at the Agency’s regional office.

Grievant

Agency Representative

Enforcement Supervisor

District Manager

Operations Supervisor

Court Establishment Supervisor

Whether Grievant should receive a Group II Written Notice of disciplinary action.

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. 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 Social Services employs Grievant as an Office Services Specialist. She is responsible for establishing and processing child support intake cases in accordance with Agency guidelines. No evidence was presented of any prior written notices being issued to Grievant.

One function of the Agency is to process requests for child support enforcement. Members of the public submit applications for services directly to the Agency at its offices or they can submit applications at an office operated by the City. The City office receives application for many services including child support enforcement.

When the Agency receives requests for services, a portion of the applications are assigned to Grievant for processing. She must review each application and compare its information with the information contained in the Agency’s computer system. If a complete file already exists in the computer system, Grievant treats the application as a duplicate request and discards the application. If the computer system does not already contain information relating to the request or the computer system information is incomplete, Grievant creates a new record or updates an existing record in the computer such that a case is established. Federal regulations require child support cases to be established within two days of receiving the application.

On February 4, 2000, Grievant’s supervisor provided her with a counseling memorandum indicating she needed to improve her performance.

Grievant is required to report her backlog of cases on a monthly basis. In early January 2001, Grievant’s supervisor counted the number of cases in her office workstation. The count revealed over 400 cases that had not been processed. Grievant had reported her backlog as approximately 180 cases. Grievant explained that she did not include the overdue City cases in her count because those cases typically were invalid and ultimately discarded. This explanation came as a surprise to the Agency because no supervisor had instructed her to make such a distinction.

Grievant has had a series of personal misfortunes and health problems that have adversely affected her work performance. She is not able to separate her personal matters from her work performance.

Unacceptable behavior is divided into three types of offenses, according to their severity. Group I offenses "include types of behavior least severe in nature but which require correction in the interest of maintaining a productive and well-managed work force." Department of Human Resource Policies and Procedures Manual ("P&PM") § 1.60(V)(B). 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." P&PM § 1.60(V)(B)(2). Group III offenses "include acts and behavior of such a serious nature that a first occurrence should normally warrant removal." P&PM § 1.60(V)(B)(3).

"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 a Group III Written Notice. 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:

The Agency has not presented sufficient evidence for the Hearing Officer to conclude that Grievant falsified official state documents. Grievant’s denial of intent to falsify was credible. Nevertheless, her behavior rises to the level requiring disciplinary action.

Group II offenses include:

(P&PM § 1.60(V)(2)(a).)

Grievant’s failure to timely process cases has been a concern of the Agency for several years. On February 4, 2000, Grievant’s supervisor sent her a memorandum counseling her to improve her performance and backlog. The memo states in relevant part:

(Agency Exhibit 2).

Grievant’s backlog in January 2001 was as bad or worse than it was in February 2000 when the counseling memorandum was written. Grievant has failed to follow her supervisor’s instructions to reduce her backlog and improve her performance.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group II Written Notice of disciplinary action is upheld. The Agency is directed to re-draft the Group II Written Notice to reflect Grievant’s failure to follow her supervisor’s instructions.

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