JENNIFER M. GRANHOLM

GOVERNOR

State of Michigan

CIVIL SERVICE COMMISSION

JANET McCLELLAND

ACTING STATE PERSONNEL DIRECTOR

commissionERS

 

BRYAN J. WALDMAN, CHAIR

ANDREW P. ABOOD

SHERRY L. McMILLAN

THOMAS M. WARDROP

 

October 7, 2008

 

 

Decision No. HERM 2008-069

Ref. Nos.

2008-02310

2008-04525

2008-04596

2008-04410

 

Mr. Vincent Mensah

(address)

 

 

Dear Mr. Mensah:

 

Re:

Vincent Mensah -and- Department of Corrections

 

This letter acknowledges the filing of two grievance appeals with Civil Service on October 1, 2008 and another grievance appeal received on October 6, 2008.  The letter will also respond to a grievance appeal that was received on September 24, 2008.  I will address each of your grievance filings individually.

 

Grievance 2008-02310:  The subject matter of your complaint concerns a needs improvement rating issued on March 12, 2008, that you allege was issued in violation of Civil Service rule 1-8 [Prohibited Discrimination].  You also allege violation of other Civil Service rules and department work rules which I have not cited as a needs improvement rating can only be grieved if there is an alleged violation of rule 1-8 [Prohibited Discrimination] or rule 2-10 [Whistleblower Protection].

 

Grievances 2008-04525 & 2008-04596:  The subject matter of your complaints concern a
needs improvement annual rating issued on August 12, 2008, for the rating period of February 15, 2007, through February 14, 2008.  The August 12, 2008, rating was issued to replace the rating referenced above in Grievance 2008-02310 that was issued on March 12, 2008.  You assert that the replacement ratings are an escalation of the previously disputed needs improvement rating.

 

Grievance 2008-04410:  On September 29, 2008, you were sent a letter from administrative officer, Ms. Colleen Organek, stating you had attempted to file your grievance directly to Civil Service before processing your grievance at the appropriate department step as required by
^2the Civil Service Grievance and Appeals Procedure.  Civil Service Hearings has since received the department’s step 2 response, to your grievance, which resolves the concern that you had attempted to file your grievance directly with Civil Service.  The subject matter of your grievance concerns a written reprimand you received on August 13, 2008, that you allege was issued in violation of rule 2-10 [Prohibited Discrimination].

 

On July 15, 2008, a grievance hearing was convened before Hearing Officer Benjamin Wolkinson, to decide the merit of your grievance contesting a five-day suspension.  Prior to convening the hearing the parties engaged in discussion to settle the grievance which resulted in a settlement agreement and your withdrawal of the suspension grievance.  Hearing Officer Wolkinson indicates in his letter of July 29, 2008 (see attached copy) that on this same date the parties also settled a second grievance with respect to your performance review which is referenced above as Grievance 2008-02310 and was scheduled to be heard before Hearing Officer William Hutchens.

 

The terms of the settlement agreement were read into the record and are delineated in the attached transcript of the proceedings.  The salient parts of agreement are as follows:

1.      The five-day suspension was reduced to a written reprimand; you now contest the written reprimand in the above referenced grievance 2008-04410.

2.      The grievance contesting the needs improvement rating issued on March 12, 2008, and scheduled to be heard before Hearing Officer William Hutchens was withdrawn, which you now reinstate in the above referenced grievance 2008-02310.

3.      The service rating issued on March 12, 2008, would be replaced by a follow up rating, which you now contest in the above referenced grievances 2008-04525 & 2008-04596.  The follow up rating appears to be identical to the March 12, 2008 rating with the exception of Factor #1 which omits reference to the five-day suspension and substitutes “the discipline he received” to reflect the written reprimand replacing the five-day suspension per the settlement agreement.

The four grievances you have filed with Civil Service Hearings, 2008-02310, 2008-04410,
2008-04525 and 2008-04596, must be administratively denied as they have been adjudicated to finality pursuant to the settlement agreement setforth in the attached transcript of the proceeding before Hearing Officer Benjamin Wolkinson.  Civil Service rule 8-4 precludes the acceptance of a grievance appeal that has been adjudicated to finality in another action between the same parties.  If such grievance appeals were allowed to be accepted, in cases such as this, it would be possible for a grievant to reach a settlement with the department and then, thereafter, attempt to reinstate the parts of the agreement that were ceded but at first necessary in order to obtain the settlement.  It is presumed that when a settlement agreement has been reached the terms of the settlement were negotiated by the parties in good faith.  It is noted that the settlement agreement rescinded a five-day suspension and that part of the settlement you find acceptable.

 

^3Should you disagree with this determination, this administrative denial of your complaint may be appealed to the Employment Relations Board as specified below.

 

Respectfully,

 

/S/

 

Michael J. Cain, Manager

Civil Service Hearings

 

Enclosures

cc:

Mike Hosey, DOC

Joan Bush, DOC

Margaret Brown, Attorney at Law

Lance Mason, Attorney at Law

 

This administrative denial of your grievance appeal may be appealed to the Civil Service Commission through the Employment Relations Board within twenty-eight calendar days (November 4, 2008) of the mailing date of this letter.  Civil Service Regulation 8.05, Employment Relations Board Appeal Procedures, and Regulation 8.06, Computing Time and Filing Documents, available through the Civil Service Web site at www.michigan.gov/mdcs, should be referenced for directions on filing the appeal.  Appeals and inquiries should be addressed to the Employment Relations Board, Civil Service Commission, 400 South Pine Street, P.O. Box 30002, Lansing, Michigan 48909; by telephone at (517) 335-5588; by fax at (517) 335-2884; or by e-mail to MDCS-ERB@michigan.gov.

 

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.