Issue: Group II Written Notice with three-day suspension (failure to follow supervisor’s instructions and unsatisfactory job performance); Hearing Date: November 16, 2001; Decision Date: November 19, 2001; Agency: Department of State Police; AHO: David J. Latham, Esquire; Case Number 5322

In the matter of Department of State Police Case Number 5322

Hearing Date: November 16, 2001

Decision Issued: November 19, 2001

Due to availability of the participants, the hearing could not be docketed until the 31^st day following appointment of the hearing officer.

Grievant

Attorney for Grievant

Captain of Division

Representative for Agency

Five witnesses for Agency

Was the grievant’s conduct on May 10, 2001 such as to warrant disciplinary action under the Standards of Conduct? If so, what was the appropriate level of disciplinary action for the conduct at issue? Was the disciplinary action issued promptly?

The grievant filed a timely appeal from a Group II Written Notice and three-day suspension issued on August 17, 2001 for failure to follow a supervisor’s instructions and for unsatisfactory job performance. Following failure to resolve the grievance at the third resolution step, the agency head qualified the grievance for a hearing.

The Department of State Police (hereinafter referred to as "agency") has employed the grievant as a secretary senior for 15 years. Her annual performance evaluations in the last three years have either met or exceeded expectations. The grievant has an active Group I Written Notice for failure to follow a supervisor’s instructions.

Grievant is the secretary at an agency district office. She has her own office with a large desk, desk extender and a computer dedicated solely for her use. One of her primary responsibilities is answering the telephone main number for the office. There is another computer on a small computer table in the special agents’ work area that is used by ten special agents. Agents are in the office sporadically but when there, they regularly use the computer to check e-mail and prepare reports. Grievant performs a variety of work on her computer including reports, preparation of correspondence and data entry. One data entry task (SP-102 data) involves the repetitious entry of a lengthy list of ten-digit case numbers. Although grievant performs all other work on her own computer, she maintains it is more comfortable to perform the SP-102 data entry task on the agents’ computer. She dislikes the placement and height of the monitor on her desk extender. The SP-102 task required about one hour, two or three times per week.

When grievant used the agents’ computer, agents are prevented from using it, requiring them to use the computer assigned to the National Guard support person or to perform other tasks until grievant completes her data entry work. The agents’ computer is located down the hall from grievant’s office and she is often unable to hear the telephone in her office. If her telephone is not answered within three rings, the call rolls over to the telephone located on the desk of the National Guard employee. This employee is not expected to answer the agency’s telephone, but does so when necessary.

At one time in the past, grievant had asked to use the agents’ computer so she could look out the office windows. Grievant’s supervisor (a lieutenant) had told grievant that she could use the agents’ computer for data entry providing that her use did not interfere with the agents’ use. However, over time, several agents complained to the lieutenant that grievant was using their computer when they needed it. It also came to his attention that grievant was often not answering her telephone when she used the agents’ computer. He verbally counseled grievant about the need to answer the telephone. He also told her that she should remain in her own office because, as custodian of the criminal files, she should maintain control and supervision of the files.

A few months prior to May 2001, the lieutenant told grievant to cease using the agents’ computer because grievant was not answering the telephone in a timely fashion. Thereafter, the lieutenant did not again see grievant use the agents’ computer. On May 9, 2001, a first sergeant noticed grievant using the agents’ computer and told her not to use it; she promptly returned to her own office. On May 10, 2001, when the lieutenant was on vacation and the first sergeant was away from the office, grievant again used the agent’s computer for about 35 minutes to enter SP-102 data.

Grievant has not gotten along well with her supervisor. There has been a lack of communication between the two, which exacerbates an apparent personality conflict. Grievant has complained about various concerns to the lieutenant’s captain who has encouraged her to put her complaints in writing but she has declined to do so. She had also complained to the lieutenant about her sore wrists. The lieutenant told her to let him know if she wanted any special equipment to address her ergonomic concerns but she never asked for anything.

Also on May 10, 2001, a special agent who had been out of the area on agency business called in to speak with his supervisor. He informed grievant that his vehicle had become inoperable and that he required authorization from his supervisor (first sergeant) for repairs. The grievant answered the call and told the agent that she didn’t know where the supervisor was. Because this occurred at about 4:30 p.m., the agent then called his supervisor’s residence on the chance that he might be at home. The supervisor was at home and authorized the necessary repairs.

On May 10, 2001, the first sergeant attended a meeting in Richmond. He had verbally advised grievant about this meeting in advance and, on May 9, 2001, he gave her a copy of the memorandum directing him to attend the Richmond meeting. When the agent called in at 4:30 p.m., grievant had already noticed that another attendee at the Richmond meeting returned earlier in the afternoon. She assumed that the meeting was over and that the supervisor had also returned from Richmond. However, she did not communicate this explanation to the agent who called in and instead, abruptly said she didn’t know the supervisor’s whereabouts.

The two incidents described herein occurred on May 10, 2001. The investigation was completed and the recommendation for discipline was submitted to Headquarters on June 21, 2001. However, no explanation has been provided by the agency for the nearly two-month delay until issuance of the Written Notice on August 17, 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.

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 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.1 of the Commonwealth of Virginia’s Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60 provides that Group II offenses includes acts and behavior which are more severe in nature than Group I and are such that an accumulation of two Group II offenses normally should warrant removal from employment. One example of a Group II offense is failure to follow a supervisor’s instructions. The agency has promulgated its own version of this policy, which also specifies that failure to follow a supervisor’s instructions is a Group II offense.

The agency has demonstrated, by a preponderance of the evidence, that grievant failed to follow her supervisor’s instructions to not use the agents’ computer. Although grievant had initially been given permission to use the computer, it became clear that her use caused two problems – inhibiting the agents’ use, and failure to answer the telephone. Therefore, the lieutenant directed her to cease using the agents’ computer. Grievant stopped using the computer – at least when the lieutenant was in the office. However, she used it again on May 9, 2001 and was told by the first sergeant to move back to her office. On the following day, when both the lieutenant and first sergeant were not in the office, grievant again used the agents’ computer. Thus, grievant had been given clear, unambiguous instructions on multiple occasions but deliberately chose to ignore those instructions.

Grievant contended that her wrists became sore when using computers. When she had worked in a previous division, the agency had purchased a special chair, computer pad and keyboard for her. When she came to her present assignment she could have brought those items with her but elected not to do so. Viewing the evidence in the light most favorable to grievant, the hearing officer will accept at face value grievant’s contention that prolonged usage of the computer may have caused her wrists to be sore. However, grievant has not demonstrated that using the agents’ computer would make any significant difference in her symptoms.

Grievant complained about the height of the monitor in her office but has not shown that she could not easily increase monitor height by placing something under the monitor’s base, or by moving the monitor from the desk extender to the desk. She also contended she had more room at the agents’ computer table than at her desk. However, the photographs proffered by grievant fail to demonstrate this contention. It is clear that grievant could rearrange her office and desk to provide a configuration that is as good as, if not better than, the small table on which the agents’ computer rests. In fact, the agency has made clear its willingness to assist grievant and obtain other furniture from the warehouse to make her work environment satisfactory.

Therefore, grievant has not demonstrated any circumstances that would mitigate her failure to comply with the instruction that she not use the agents’ computer. Such a failure is a Group II offense. Since the grievant already has an active disciplinary action for the same type of offense, there are insufficient circumstances to merit any mitigation of the disciplinary action taken by the agency.

When grievant submitted her written statement about the incident, she said, "I do not recall very much detail about the call. I believe I advised him [special agent] that [the supervisor] went to a meeting and was not here." (Italics added). The prefatory qualification in the latter sentence is less than convincing.

If grievant had told the agent that a) the first sergeant was in Richmond for a meeting, b) he has probably returned because another attendee came in a while ago, and c) I don’t know where the first sergeant is now but you might try his home number, there would have been no reason for the agent to complain about the grievant. The fact that the agent did complain suggests that, more likely than not, grievant was abrupt in her response and only told him that she didn’t know the whereabouts of the first sergeant. Therefore, the agency has shown that grievant’s performance in handling this telephone call was not satisfactory.

Unsatisfactory job performance is a Group I offense. While the agency could have treated this incident as a separate disciplinary action and issued a Group I Written Notice, it chose to incorporate the offense into the Written Notice issued for the Group II offense. Such a decision is appropriate and reflects the agency’s decision to apply mitigation because of the grievant’s length of service.

One of the basic tenets of the Standards of Conduct is the requirement to promptly issue disciplinary action when an offense is committed. Supervisors should be aware of inadequate or unsatisfactory work performance or behavior on the part of employees and attempt to correct the performance or behavior immediately. When issuing the employee a Written Notice Form for a Group I offense, management should issue notice as soon as practicable. One purpose in acting promptly is to bring the offense to the employee’s attention while it is still fresh in memory. A second purpose in disciplining promptly is to prevent a recurrence of the offense. Unless an extensive, detailed investigation is required, most disciplinary actions are issued within a few weeks after an offense.

In this case, the agency has offered no reason for delaying imposition of discipline for nearly two months after the investigation had been completed. While the delay in this case is not sufficiently egregious to overcome the clear need for disciplinary action, such a delay could well be considered a mitigating factor in a case with different circumstances.

The disciplinary action of the agency is affirmed.

The Group II Written Notice issued to the grievant on August 28, 2001 is AFFIRMED. The disciplinary action shall remain active pursuant to the guidelines in Section VII.B.2 of the Standards of Conduct and Section 15 of General Order No. 19.

It is RECOMMENDED that the agency take appropriate steps to assure that disciplinary actions are issued promptly in future cases.

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