In the matter of Department of Corrections’ Case Number 5244

Hearing Date: August 14, 2001

Decision Issued: August 14, 2001

On January 19, 2001, Grievant was issued a Group II Written Notice of disciplinary action with three day suspension for:

On February 20, 2001, Grievant timely filed a grievance to challenge the disciplinary action. The three day suspension was removed at the Second Resolution Step. The outcome of the Third Resolution Step was not satisfactory to the Grievant and he requested a hearing. On July 18, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On August 14, 2001, a hearing was held at the Agency’s regional office.

Grievant

Agency Party Designee

Agency Representative

Lieutenant

Captain

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 Corrections employs Grievant as a Corrections Officer at one of its Facilities. Grievant began working for the Agency in 1998 and at that Facility in 1999. He is a good employee who does his job well although he previously received a Group I Written Notice and a Group II Written Notice for tardiness.

On December 24, 2000, Grievant was ending his scheduled shift between 9 and 10 p.m. As he was about to leave the Facility, the Lieutenant instructed him that he was drafted to work an additional eight hour shift beginning at 10:15 p.m. Grievant refused to work the additional shift and left the Facility.

Certain posts at the Facility must be filled at all times. When an insufficient number of staff appear for their scheduled shifts, staff from the prior shift must be "drafted" to work an additional eight hour shift. This practice occurs regularly at the Facility and correctional officers consider it part of the job.

The Agency maintains a draft list. Employees rotate on the list based on the length of time since the employee last worked an additional shift under the draft. For example, once an employee is drafted, he or she is placed at the bottom of the list and will not be drafted again until after all other corrections officers are drafted. Grievant was near the top of the draft list on December 24, 2000. When Grievant refused to work, another employee was drafted to work in his place.

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 Corrections Procedure Manual "(DOCPM") § 5-10.15. 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." DOCPM § 5-10.16. Group III offenses "include acts and behavior of such a serious nature that a first occurrence should normally warrant removal." DOCPM § 5-10.17.

Procedure Number 5-35 governs employee overtime. "Employees may be required to work overtime in bona fide emergencies, during peak work loads, or to cover security shifts. Failure to comply is grounds for disciplinary action in accordance with the Standards of Conduct and Performance Policy." DOCPM § 5-35.9. Grievant was aware of this procedure and knew he was subject to the overtime draft.

"Refusal to work required overtime" is a Group II offense. DOCPM § 5-10.16(B)(6). Grievant refused to work overtime as instructed by the Lieutenant. The Agency’s issuance of a Group II Written Notice is upheld.

Grievant contends the Lieutenant did not instruct him to work overtime. The Lieutenant’s testimony was credible, clear, and direct. While standing approximately five feet apart, the Lieutenant and Grievant faced each other and Lieutenant informed Grievant that he had been drafted to work overtime on the midnight shift. Grievant did not offer any explanation as to why the Lieutenant would have intentionally misrepresented their conversation or how the conversation between them could have been a miscommunication. A preponderance of the evidence is all that the Agency must show. The Agency does not have to prove its case with absolute certainty. The Lieutenant’s credible testimony is sufficient to establish the basis for disciplinary action.

No evidence was presented suggesting mitigating circumstances justify a reduction in the disciplinary action.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group II Written Notice of disciplinary action is upheld.

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