STATE OF MICHIGAN

CIVIL SERVICE COMMISSION

 

EMPLOYMENT RELATIONS BOARD

 

 

A BOARD DECISION

MAILING DATE

 

 

February 24, 2009

 

Vincent Mensah

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ERB 2009-020

 

 

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HERM 2008-069

and

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Reference Nos.

2008-02310

2008-04410

2008-04525

2008-04596

 

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Department of Corrections

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Discrimination, Race

Discrimination, Other

Performance Evaluation

Other

 

MEMBERS PRESENT

 

 

 

 

 

Ms. Susan Zurvalec

Chair

 

Mr. William J. Braman

Member

 

Mr. Richard I. Warner

Member

 

 

A matter decided during a Board teleconference on January 6, 2009.

Grievance Decision

The Board considered the application for leave to appeal filed by Appellant Vincent Mensah from the decision of Hearings, Employee Relations, and Mediation (HERM) Administrative Officer (AO) Michael J. Cain denying several grievances submitted by Appellant.  Appellant also moved to add supplementary materials to the record.

In early 2008, Appellant had two separate grievances active before Civil Service (CS) hearing officers: one over a five-day suspension and one over a “needs improvement” performance rating.  The two grievances were both settled.  The record does not contain a written settlement agreement, but does contain a July 2008 hearing transcript from one of the grievances where the settlement terms were discussed on the record.  The suspension was reduced to a written reprimand and it was agreed that a new performance review would be issued.

In August 2008, Appellee issued the written reprimand and a new needs improvement rating.  Soon thereafter Appellant submitted four grievances to HERM.  The AO administratively denied all four, finding them adjudicated to finality under the settlement terms of the previous grievances.

^2Appellant has indicated that CS Reference No. 2008-02310, which was one of the settled grievances, was only attached for comparison purposes and not intended to be reinstated.  Accordingly, the Board sees no harm or error in the AO’s administrative denial of that grievance.

CS Reference No. 2008-04410 challenged the written reprimand issued to replace the five-day suspension.  Appellant sought to have the written reprimand vacated and for Appellee to be ordered to cease and desist from targeting him.  The transcript describing the settlement agreement states that “Number one, the five day suspension or five day disciplinary layoff is reduced to a written reprimand, and that is deemed a first step disciplinary action….  The written reprimand will be effective July 3rd, 2007.”  The Board finds no error in the AO’s determination that the issue had been adjudicated to finality when Appellant agreed to the issuance of the grievance in lieu of a suspension.  Grievant’s current protests as to language in the reprimand describing its basis should have been addressed in the original settlement agreement.  The Board finds that Appellee appropriately issued a written reprimand as authorized in the parties’ prior settlement.

CS Reference Nos. 2008-04525 and 2008-04596 both challenge a “needs improvement” performance rating that was issued to replace the previous rating.  The terms under which the previous performance-rating grievance were settled are even less detailed than those of the suspension grievance’s settlement.  The new rating was evidently intended as a replacement for the previous rating and was for a different period of evaluation.  Accordingly, it appears that the new rating should be able to be grieved, in light of Appellant’s allegations of race and national-origin discrimination.

Accordingly, the Board bifurcated the application for leave to appeal as follows:

1.   CS Reference Nos. 2008-04525 and 2008-04596 are consolidated and remanded to the Hearings, Employee Relations, and Mediation (HERM) office for assignment to a hearing officer.  The Board’s recommendation to remand will be reviewed by the Commission at the time the Commission reviews the Board’s final recommendation on the merits of any appeal that might be taken from an adjudicating officer’s decision over these two grievances.  See Civil Service Regulation 8.05, §4(G)(7), Employment Relations Board Appeal Procedures.

2.   The Board recommends that the Commission deny the application for leave to appeal regarding CS Reference Nos. 2008-02310 and 2008-04410 and uphold the AO’s denial of these two grievances.  The Board will file this decision regarding these grievances for the Civil Service Commission for its review and final action.  Parties need not file additional documents requesting Commission review of CS Reference Nos. 2008-02310 and 2008‑04410.  The Commission’s final decision may approve, reject, or modify, in whole or in part, the Board’s recommendations.  See Civil Service Commission Rule 1-15.5.

The Board recommends that the motion to supplement the record be denied.

This is a publication of the Michigan Civil Service Commission. The written document, as published at the time it was issued, is the most authoritative source of the actual content and format of the decision.