Issue: Compliance/Hearing Decision; Ruling date: November 27, 2001; Ruling #2001-207; Agency: Norfolk State University; Outcome: In compliance Hearing officer.

In the matter of Norfolk State University/ No. 2001-207

November 27, 2001

ISSUE:

Does the October 11, 2001 hearing decision comply with the grievance procedure?

RULING:

Yes. This Department finds that the hearing officer neither abused his discretion in his conduct of the hearing nor exceeded his authority under the grievance procedure in deciding this case. This Department’s rulings on matters of compliance are final and nonappealable.¹

EXPLANATION:

The grievant timely requested this Department to administratively review the hearing officer’s October 11, 2001 hearing decision in the above matter. He concurrently requested reconsideration from the hearing officer. In both requests, he claimed that (1) the hearing officer incorrectly found that he did not notify his Supervisor by voice mail that he would be absent, (2) "[d]espite the Director’s testimony to the contrary, . . . confusion remained as to what reporting requirements the grievant was expected to meet," and (3) the hearing officer made comments in his decision that were not accurate.² On November 11, 2001, the hearing officer denied the reconsideration request and upheld his original decision.³ We now respond to the grievant’s request for administrative review.

Hearing officers are authorized to make "findings of fact as to the material issues in the case"⁴ and to determine the grievance based "on the material issues and the grounds in the record for those findings." ⁵Where the evidence conflicts or is subject to varying interpretations, hearing officers have the sole authority to weigh that evidence, determine the witnesses’ credibility, and make findings of fact. As long as the hearing officer’s findings are based upon evidence in the record and the material issues of the case, this Department cannot substitute its judgment for that of the hearing officer with respect to those findings.

In this case, the grievant’s challenges to the hearing officer’s decision, when examined, simply contest the weight and credibility that the hearing officer accorded to the testimony of the various witnesses at the hearing, the resulting inferences that he drew, the characterizations that he made, or the facts he chose to include in his decision. The grievant claims that he attempted to notify his Supervisor by voice mail that he would not be coming into work. However, the Supervisor testified that he never received a voice mail from the grievant. The hearing officer noted in his reconsideration decision that the testimony was credible, thus meeting the Agency’s burden of proof.⁶ Furthermore, the hearing officer found that there was no confusion surrounding the grievant’s reporting requirements, based on a memorandum from the grievant that stated that "I completely understand the modified procedures that I am required to follow." ⁷With respect to the grievant’s other claims, the hearing officer found that, even if they are true, they do not affect the outcome of his decision. Such determinations were entirely within the hearing officer’s authority, and this Department cannot conclude that the hearing officer’s findings were without some basis in the record and the material issues in this case.

Pursuant to Section 7.2(d) of the Grievance Procedure Manual, and for the reasons discussed in this ruling, the October 11, 2001 hearing decision in this case is now a final hearing decision. Pursuant to Section 7.3(a) of the Grievance Procedure Manual and Section 2.2-3006(B) of the Code of Virginia, this final hearing decision may be appealed to the circuit court in the jurisdiction in which the grievance arose within 30 calendar days from November 27, 2001 the date of this ruling.

Neil A.G. McPhie, Esquire
Director

Leigh A. Brabrand
Employment Relations Consultant