TENNESSEE DEPARTMENT OF CORRECTION, Petitioner, vs. LINDA A. JOHNSON, Grievant

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1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law TENNESSEE DEPARTMENT OF CORRECTION, Petitioner, vs. LINDA A. JOHNSON, Grievant Follow this and additional works at: Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 BEFORE THE TENNESSEE CIVIL SERVICE COMMISSION IN THE MATTER OF: TENNESSEE DEPARTMENT OF CORRECTION, Petitioner, v. DOCKET J LINDA A. JOHNSON, Grievant. O R D E R THIS MATTER was heard as a contested case on June 2, 2008, in Nashville, Tennessee, before William Reynolds, Administrative Judge, Administrative Procedures Division, assigned by the Secretary of State and sitting for the Commissioner of the Tennessee Civil Service Commission. John Drummond represented the Tennessee Department of Correction ( Department and TDOC ). The Grievant, Linda Johnson, appeared pro se, i.e. without an attorney. Thomas Mills, former warden at Northwest Correctional Complex ( NWCX ), appeared as the Department s party representative. This proceeding consolidates two (2) Level V grievance hearings. The most recent regarding Ms. Johnson s discharge effective March 3, 2007, for violation of TENN. COMP. R. &

3 REGS., 1 Rule (6), (i.e. Habitual Failure to Report to Work at the Assigned Time and Place), and violation of TENNESSEE DEPT. OF CORRECTION POLICIES AND PROCEDURES, INDEX No ,VI.B & M. 2 On consideration of the evidence, arguments, and the entire record as a whole, it is concluded the Grievant engaged in the prohibited conduct as charged, and the proper disciplinary sanction for the offense is termination from State employment. This determination is based on the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. The Grievant was employed by the Department from June 22, 1998 until March 3, 2007 as a correctional officer at the Northwest Correctional Complex in Tiptonville, Tennessee. 2. At the time of the hearing in this matter, Thomas ( a/k/atommy ) Mills, ( [Warden] Mills ), had been Warden at NWCX since June of Warden Mills oversaw Grievant s Levels 1-3 disciplinary and grievance proceedings. Warden Mills was familiar with Grievant s employment and disciplinary history. 1 Rules of the Tennessee Department of Human Resources. 2 These policy sections, quoted in part and discussed below, pertain to the employee s general obligation to secure advance permission to take time off from work, or, alternatively, when such permission is not feasible, to provide documentation if requested and regularly to inform the supervisor of when the employee may be expected to return to work. 2

4 3. At all relevant times, Melvin Tirey, ( [Mr.] Tirey ), was a Unit Manager at NWCX, and one of Grievant s supervisors. 4. Warden Mills described the Unit Manager s job as follows:the unit manager is the - has the responsibility for certain areas of the institution to manage that unit, it's staff and the inmates within that unit. It's some over 500 inmates assigned to the unit, several correctional officers, you've got various unit team members, which will include unit counsel - correctional counselors, correctional clerical officers, inmate relation coordinators and the correction officers assigned within that unit. In rank and authority, the Unit Manager is comparable to a captain or shift commander. 5. On August 22, 2006, Grievant asked her shift supervisor for permission to leave work early to take her mother to a doctor s appointment. Grievant s supervisor instructed her to report to the Unit Manager, i.e. Melvin Tirey. Mr. Tirey was asked to provide Grievant s relief because the shift supervisor was could not spare any personnel. Before Grievant left the work site, Unit Manager Melvin Tirey told her to bring a doctor s statement when she returned on her next scheduled work day. Mr. Tirey specified that the doctor s statement should state that Grievant had in fact taken her mother to the doctor. 3

5 6. Grievant returned to work on August 25, 2006, however, she did not return with the doctor s statement, which Grievant admitted was in direct violation of Melvin Tirey s order. 7. After learning that Grievant had not provided her shift supervisor with a doctor s statement, Tirey spoke to Grievant, as he recounted in his trial testimony: And so when I finally confronted her,... she plainly told me that I didn t have the right or authority to ask for such a statement, that she didn t get one, because the captain or lieutenant didn t ask for one. Following this exchange, Tirey initiated disciplinary action against the Grievant. Following the warden s determination that she had violated TDOC Policy Index No , Grievant was suspended without pay for three days. 8. On Saturday, February 10, 2007, Grievant called her shift supervisor, Lt. David Abel, informing him that she was sick and would not be able to report to work that day. Grievant was instructed to bring a doctor s statement when she returned to work. 9. On February 10, 2007, during a telephone conversation with her shift supervisor, the Grievant did not indicate she would be absent any day EXCEPT Saturday, February 10 and the Grievant was scheduled to work on Sunday, February 11 and Monday, February 12, She did not report for 4

6 duty on either scheduled day, nor did she call in. She did not inform her employer of her whereabouts until February 12, at approximately 12:30 p.m. 10. The Grievant was deemed absent without leave ( AWOL ), for February 11 and 12, 2007, by Department definition. 11. A letter, dated February 15, 2007, advised the Grievant she was being charged with failure to report for work as scheduled, 4 in violation of TDOC Policy Index No On February 20, 2007, a disciplinary hearing was conducted which resulted in the Grievant s discharge from State service to become effective March 3, Prior to her discharge of March 3, 2007, Grievant had been disciplined progressively over the course of five to six years, mostly for violations of TDOC Policy Index No Before Warden Mills terminated Grievant s employment, he considered this history, documented in Grievant s Personnel File: 1. 07/15/ / /20/ /31/ /18/ /06/ /16/ /06/ /17/ /21/06 5

7 11. 09/25/06 I-day Suspension 3-day Suspension 5-day Suspension 20-day Suspension 3-day Suspension Written Warning Written Waming Written Warning Written Waming I-day Suspension 3-day Suspension Violation of Failure to provide a doctor's statement Violation of AWOL Violation of Violation of Violation of Habitual Failure to Report Violation of Habitual Failure to Report Violation of Habitual Failure to Report Violationof -Negligence Violation of Habitual Failure to Report Violation of Habitual Failure to Report Insubordination / Habitual Pattern of Failure to Report 14. In May of 2001, before the pending disciplinary actions arose, Grievant had been discharged from State service for attendance issues,. At the time of the 2001 discharge, Grievant s progressive disciplinary history included five suspensions without pay, ranging from 1 to 5 days each, during the period from July 15, 2000 to January 19, Id. Also, prior to the May 2001 discharge, Grievant had received an overall rating of unacceptable on her annual performance evaluation, and a combination of marginal and unacceptable ratings in specific areas in annual and interim performance reviews for Grievant also had failed to report as scheduled on April 28, March 10 and March 13, 2001, a violation of TDOC Policy Index No

8 15. The 2001 discharge, Level 5 grievance, gave the Grievant another chance. She was reinstated, but with a 20 day suspension without pay. In 2003, however, despite this opportunity, Grievant soon resumed her chronic attendance and leave violations. In August of 2004 Grievant was disciplined 5 for habitual failure to report (for work as scheduled). According to documents in her personnel file, Grievant had failed to report to work at her scheduled time on July 24, In August of 2005, Grievant was charged again with habitual failure to report for duty at the assigned time and place, arising from an incident on or about July 31, Warden Mills, after a hearing was conducted, concluded Grievant s infraction warranted progressive discipline; which meant another suspension. In response to Grievant s request for leniency and commitment to try to do better, she received a written warning. 17. Throughout the discussions arising from the July 31, 2005 matter, Warden Mills communicated clearly to Grievant what he expected of her in the future, specifically, that he expected her to call in and advise her shift commander of any absences she may have. Warden Mills also made clear to Grievant that if she worked with him, he would work with her. 5 In his testimony at the final hearing, Warden Tommy Mills referred to a written warning in August of 2004, for habitual failure to report. While Cumulative EX # 11, (Grievant s Personnel File), may confirm Mills testimony, it also includes a letter to Grievant, dated August 6, 2004, documenting a 3-day suspension for failure to report for work as scheduled. 7

9 18. Despite Warden s Mills leniency and Grievant s promises to improve, Grievant s attendance issues persisted. During the three day period of mandatory in-service training, November 7-10, 2005, at the Tennessee Correctional Academy, she overslept one morning, causing her to miss training. 6 Grievant reported late for work on March 8, In May of 2006 Grievant received another written warning, and in August of 2006 she was suspended for one day without pay, - - in both cases, for violating TDOC Policy Index No The August 22, 2006 violation, for which Grievant was suspended 3 days beginning September 25, 2006, occurred the day Grievant returned to work following a three-day suspension for similar violations that occurred on July 30 and August The infractions of February 10, 11 and 12, 2006, for which Grievant was dismissed, occurred during the pendency of Grievant s Level 5 appeal of the three day suspension of September 25, CONCLUSIONS OF LAW Petitioner has the burden of proof, which is the duty to show, by a preponderance of the evidence, that an allegation is true, or that an issue should be resolved in favor of that party. 7 A preponderance of the evidence means the greater weight of the evidence, or the more 6 EX# 11: Memorandum from Sam DiNicola, Director of Training and Curriculum, 11/ TN. Department of State, Administrative Procedures Division, Rule (3)(7). 8

10 probable conclusion, based on the evidence presented. The burden of proof is generally assigned to the party seeking to change the present state of affairs with regard to any issue. TENN. COMP. R. & REGS, RULE (7). In the instant case, that means that the Department of Correction must prove, by a preponderance of the evidence, the Grievant engaged in conduct prohibited for state employees, as described in TENN. COMP. R. & REGS, RULE , and separation from State employment is the appropriate disciplinary response to this conduct. A State employee may be disciplined for: (1) causes relating to performance of duty, or (2) causes relating to conduct which may affect an employee s ability to successfully fulfill the requirements of the job. TENN. COMP. R. & REGS, RULE A career employee may be warned, suspended, demoted or dismissed by his appointing authority whenever just or legal cause exists. The degree and kind of action is at the discretion of the appointing authority... TENN. COMP. R. & REGS, RULE Although the law prescribes implementation of progressive discipline for State employees, it also provides that disciplinary action must be administered at the step which is most appropriate for the misconduct. (See, Tennessee Code Annotated ; and TENN. COMP. R. & REGS, RULE ) As the courts have recognized in other cases dealing with these provisions,... the key word in the statute is appropriate.... (T)he language of these provisions does not mandate application of discipline in a routine fashion without regard to the nature or severity of the behavior it is intended to address. The supervisor has discretion to determine what punishment fits the offense. Berning v. State, 996 S.W.2d 828, 830 (Tenn. App. 1999). Tennessee s Civil Service statutes and rules incorporate the doctrine of progressive discipline, the requirements of which should be scrupulously followed. Berning v. State of Tennessee Department of Correction, 996 S.W. 2d 828, 830 (Tenn. Ct. App. 1999), Perm to appeal denied (Tenn. 1999). The statute sets forth the state s civil service progressive discipline system as follows: 9

11 (a) The supervisor is responsible for maintaining the proper performance level, conduct, and discipline of the employees under the supervisor s supervision. When corrective action is necessary, the supervisor must administer disciplinary action beginning at the lowest appropriate step for each area of misconduct. (b) Any written warning or written follow-up to an oral warning which has been issued to an employee shall be automatically expunged from the employee s personnel file after a period of two (2) years; provided, that the employee has had no further disciplinary actions with respect to the same area of performance, conduct, and discipline. When corrective action is necessary, the supervisor must administer disciplinary action beginning at the step appropriate to the infraction or performance. Subsequent infractions may result in more severe discipline in accordance with subsection (a). T.C.A (a)-(c). An employee s prior conduct, both good and bad, along with [her] entire work history, can be considered when determining what the appropriate disciplinary action should be. Kelly v. Tennessee Civil Service Commission, 1999 WL (Tenn. Ct. App. 1999). Warden Mills and his staff properly considered Ms. Johnson s entire work history in the process of determining each sanction in Grievant s record. Grievant s history suggests a trend whereby subsequent similar violations received progressively harsher sanctions than earlier ones. Likewise, this record evidences less and less tolerance by Grievant s wardens 8 of infractions of TDOC Policy Index No which otherwise might have warranted only a written warning. Both of these trends are reasonable and warranted under the facts and the principle of progressive discipline. Tennessee s Court of Appeals has given instruction on this point: The theory of progressive discipline and sanctions for multiple offenders is that even if the subsequent offenses are lesser, those offenses carry heavier consequences because the offender's conduct continues to be deficient and prior discipline has not 8 These include Fred Raney, Tony Parker, Tommy Mills, and Deputy Warden Brenda Jones. 10

12 worked to prevent poor conduct. For this reason a subsequent offense, even lesser, can not be considered in the vacuum of the circumstances of that one offense where the offender has a record of offenses.maasikas v. Metropolitan Government, Nashville and Davidson County 2003 WL , 4 (Tenn.Ct.App). TDHR, Rule provides examples of employee conduct that can justify an appointing authority imposing disciplinary action, including: (6) Habitual pattern of failure to report for duty at the assigned time and place, [and] (12) Participation in any action that would in any way seriously disrupt or disturb the normal operation of the agency, institution, department or that would interfere with the ability to manage.... Ms. Johnson received repeated instructions and warnings concerning her failure to report to work as scheduled and to comply with her supervisors reasonable demand that she provide a doctor s statement when she returned to work. Her unmitigated failure to improve, and her refusal to follow specific orders constitute insubordination [TDHR, Rule (18)]. The preponderance of the evidence establishes that there these performance deficiencies continued after multiple written warnings, multiple suspensions, and multiple acts of leniency on the part of her supervisors. These deficiencies provide a valid basis for the disciplinary actions under review in these 2 cases. 9 The three-day suspension without pay prior to her termination was appropriate progressive discipline, considering the Grievant s disciplinary history as of September 25, Likewise, the warden s decision to discharge Grievant for subsequent infractions that occurred 9 That is, a three-day suspension for the incident on August 22, 2006, and her discharge for Grievant s failure to report as schedule on February 11 and 12,

13 just four months after her suspensions in October of 2006 are reasonable and fully vindicated by Ms. Johnson s failure to change her behavior in response to the progressive discipline she had received. In Grubb v. Tennessee Civil Service Commission, et al., 731 S.W. 2d 919, the court noted that the applicable rule was brought to Ms. Grubb s attention at least twice before her resignation became effective. Similarly, Ms. Johnson was aware of the attendance and leave policies, as well as the penalties for repeated attendance policy violations. Ms. Johnson had been repeatedly counseled, warned and instructed by several wardens and supervisors through the years, about the same issues that ultimately led to her discharge from state service. Ms. Johnson should have benefitted from the knowledge she undoubtedly gained from having participated in the grievance process all the way to a Level 5 hearing on her 2001 discharge, which culminated in her reinstatement and 20-day suspension in It is a conclusion of law that the Grievant, like the plaintiff in the Grubb case cited above, is charged with ample notice of what was required of her, at minimum, to keep her job in state government. It is clear that the Grievant understood she was required to report for work as scheduled, to follow her supervisors instructions when and after she requested time off, and that there would be disciplinary consequences if she failed to do so. The issues presented for consideration in this case are: (1) whether the Department has proven, by a preponderance of the evidence, that the Grievant engaged in conduct prohibited by the Department s Policies and Procedures and the Policies and Procedures of the Tennessee Department of Correction; and (2) if so, whether the disciplinary sanction imposed by the Commissioner was appropriate. With respect to both issues, the Department has met its burden of proof. The evidence presented during the hearing amply supported the allegation of Grievant s multiple failures to follow her agency s rules, and established a compelling argument in favor of termination of the Grievant s employment with the Department. 12

14 The proof in this matter clearly established that Ms. Johnson violated TDHR, Rule (6) relating to Habitual Pattern of Failure to Report for Work at the Assigned Time and Place, as well as TDOC Policy Index No Accordingly, for the foregoing reasons, the termination of Ms. Johnson s employment with the Tennessee Department of Correction, is UPHELD, and the appeal is DISMISSED; Accordingly, DECISION IT IS HEREBY DETERMINED AND ORDERED the Tennessee Department of Correction met its burden of proof and established, by a preponderance of the evidence, the Grievant, Linda A. Johnson, engaged in conduct prohibited by the laws of this State and The Rules of the Tennessee Department of Personnel. IT IS FURTHER DETERMINED AND ORDERED the Grievant s dismissal from State employment was appropriate, effective March 3, 2007, as imposed as a disciplinary sanction, and is therefore Upheld ; AND, IT IS FINALLY ORDERED that the Grievant s appeal of the Commissioner s decision to terminate State employment is hereby DISMISSED. ORDERED AND ENTERED this 4th day of February, WILLIAM REYNOLDS, ADMINISTRATIVE JUDGE 13

15 FILED IN the Administrative Procedures Division, Office of the Secretary of State, this 4th day of February, THOMAS G. STOVALL, DIRECTOR ADMINISTRATIVE PROCEDURES DIVISION 14