State of Michigan

Civil Service Commission

Hearings Office

 

 

 

Marlin B. Newburn

CSHo 2012-035

v.

Mailing Date:

May 31, 2012

Department of Corrections

Ref. No.:

2011-02559

Grievance Decision

Hearing Officer:        William P. Hutchens

 

Representatives:

 

Grievant:

Marlin B. Newburn, In Pro Per

 

Respondent:

Lori Fedewa, Labor Relations Representative

 

 

Case Summary

Key Words:

Demotion; and Harassment

 

The department demonstrated valid reasons for the rescission of the probationary appointment.  The grievant failed to demonstrate that the rescission was arbitrary or capricious, or that it violated civil service rules 1-6, Merit, Efficiency, and Fitness,
1-8, Prohibited Discrimination, or 2-10, Whistleblower Protection.  The grievance must therefore be denied.

This CASE SUMMARY is not an official part of the decision.

 

A grievance hearing was held on December 20, 2011, at the Capitol Commons Center,
400 South Pine Street, Lansing, Michigan.  The parties were given full opportunity to present testimonial and documentary evidence, examine and cross-examine witnesses, and present oral argument.  Closing briefs were submitted by February 6, 2012, at which point the record was closed.

The Issues

1)      Was the rescission of the probationary appointment proper?

2)      Was the grievant subjected to harassment and a hostile employment environment by management?

^2The Facts

The grievant was demoted from a probationary appointment as a Unit Chief (Community Health Service Manager-2) by the Department of Corrections.  The grievant had been hired by the Department of Corrections as a Psychologist P11 in April 2009.  From that position, he accepted a promotional position within the Department of Community Health with the title and classification listed above.  For the entire probationary period, he worked for the Department of Community Health.  Subsequent to the disciplinary conference and demotion, and after he had filed this grievance, his position was transferred from the Department of Community Health (DCH) to the Department of Corrections (DOC).  While his grievance would therefore rest with actions taken by DCH management, since the position was transferred to the DOC during the pendency of the grievance, the DOC was determined to be the proper respondent in this matter.

 

The CS-301, Employee Departure Report, implementing the demotion was prepared by the Department of Community Health.  A disciplinary conference was conducted by the Department of Community Health on March 17, 2011, at which it was determined that the grievant was guilty of Recipient Neglect II.  The notice of charges (Joint Exhibit #4, p. 3) indicates that while the grievant was notified of his disciplinary conference, he chose not to attend.  The conference was therefore conducted in his absence.

 

While the grievant may have accepted the promotional position with the Department of Community Health in late June 2010, his employment history (Joint Exhibit #6) shows a start date of August 22, 2010, with a probationary period running through February 19, 2011.  The conduct with which he was charged fell within that probationary period.  (See Joint Exhibit #5, numbered page 5, Section 2 Probationary Period.)  The hearing officer therefore determined that what ostensibly would be viewed as a disciplinary demotion was actually the rescission of a probationary appointment.  This is significant due to the fact that the Department of Corrections, in a disciplinary demotion, would have the burden of proving that the demotion was for just cause.  With the ruling made by the hearing officer, pursuant to civil service regulation 8.01, Grievance and Grievance Appeals Procedure, §4(B)(13)(j), the Department of Corrections need only articulate the reasons for rescinding the probationary appointment.  The burden of proof then shifts to the grievant to demonstrate by a preponderance of the evidence that the rescission and subsequent demotion (1) were arbitrary and capricious or (2) violated civil service rule 1-6, Merit, Efficiency and Fitness, rule 1-8, Prohibited Discrimination, or rule 2-10, Whistleblower Protection.

 

The grievant has contended that his demotion was the result of harassment in the form
of a hostile employment environment created by his former supervisor, Marilynn Switzer,
the acting regional director for regions I and II.  The hearing officer determines that such a claim fits most closely with a claim of violation of rule 1-6, Merit, Efficiency and Fitness, or
^31-8.3, Discriminatory Harassment.  The term is defined in Chapter 9 of the rules as including the creation of “an intimidating, hostile, or offensive employment environment.”

 

During his probationary period, the grievant had been placed on a “Needs Improvement”
six-month probationary service rating.  He was viewed as struggling with the new responsibilities that had been assigned to him.  When reviewed by DCH labor relations staff, the supervisor, Switzer, was told that “Needs Improvement” is not an option for a probationary rating.  She was told to convert it to an unsatisfactory rating, which she did (Testimony of Renee Shilling, Transcript, pp 47-48).  The probationary unsatisfactory service rating was not grieved.  The department has contended that during the grievant’s probationary period, he resented any type of management feedback provided to him and attempted to discredit his supervisor, Switzer, with his subordinate staff.  He was viewed as attempting to undermine the authority of his supervisor.

 

The allegation of recipient neglect against the grievant concerns a prisoner Gibbs who had been placed on a “modified suicidal risk management plan” on January 7, 2011.  Department of Corrections Mental Health Program Guidelines, Suicide/Self-Injury Risk Assessment and Interventions (Joint Exhibit #4, pp 11-17, specifically page 16) requires that a prisoner placed on such a plan must be seen by a Qualified Mental Health Professional (QMHP) at least every other business day until the prisoner is removed from safety precautions.  The grievant was the assigned as the QMHP for prisoner Gibbs.  The testimony of Recipient Rights Specialist William Vette established that Gibbs should not have been left in an observation cell for more than seven days total.  He remained there until at least January 24, 2011, at which point the grievant, having been reminded of his failure to see Gibbs, visited him.  From January 7, 2011, until January 24, 2011, prisoner Gibbs should have been seen by the QMHP a total of eight times, according to the policy cited above.  The grievant did not see him at all, nor did any other QHMP assigned by the grievant.

 

The grievant alleged that he was overwhelmed by the responsibilities of the new position due in large part to the fact that his predecessor had failed to leave things in any semblance of order for him.  He stated that the unit was severely overworked and understaffed.  Under questioning from the hearing officer, witness Vette stated that the rights of prisoners within the Department of Corrections Mental Health program are guaranteed by the Constitution and applicable statutes.  He testified that the Constitution and applicable statutes did not, to his awareness, guarantee adequate funding to provide staff so that those mandates could be met.

 

Renee Shilling, labor relations manager for the DCH, testified that in making the decision to rescind the probationary appointment, the department considered the grievant’s length of service, which was less than two years, as well as his disciplinary record, which included the unsatisfactory six-month probationary rating.  The demotion itself, she stated, did not stem from ^4the probationary rating, but was solely the result of the Neglect-II charge.  Shilling testified that she conducted the second-step grievance conference by telephone with the grievant.  That conference could have resulted in a resolution of this grievance without hearing.  During the conference, she testified, she found it disturbing that the grievant offered his professional psychological opinion that his supervisor, Switzer, would not be as cruel and methodical as she is unless she had been abused as a young child by a male authority figure.  She stated that the grievant was unconcerned about the prisoner being in the observation cell for
17 days without being seen because in his opinion, the prisoner liked the isolation.

 

Under questioning from the hearing officer, Shilling stated that it was the determination of the Department of Community Health that given the six-month unsatisfactory rating and the Neglect-II charge, the department would be better served by demoting the grievant and hiring someone to replace him.

 

The grievant called Inspector Ian McDonald of the Chippewa Correctional Facility.  Inspector McDonald confirmed much of the grievant’s contention that the unit was in disarray when the grievant took over.  He stated that psychology staff did not have their own keys, crucial for moving about in a prison.  Some staff did not have their own telephones.  He believed that at the time that the grievant took it over, the outpatient department did not have the basic equipment that it needed in order to function.  McDonald testified that after staff of the outpatient clinic obtained the basic necessities of their jobs, he noted that the grievant’s staff was busier than ever, seeing patients in their rooms in the health care facility.  He noted that manifests for medication, after the grievant took over, dropped by three or four supply boxes worth.  On cross-examination, McDonald stated that he did not supervise the grievant or any health care staff.  He stated that his only idea of statistics for staff to patient ratios were those statistics provided to him by the grievant.  He stated that psychotropic medications (the ones to which his earlier testimony referred) are prescribed by the psychiatrist, not by the psychologist.

 

Under questioning from the hearing officer, McDonald stated that when he was assigned to conduct an investigation of the grievant’s harassment complaint by the warden (Department Exhibit #1, final page) he was told by the warden not to find a rule violation.  Under further cross-examination, he stated that he was not allowed to conduct a fair and thorough investigation into the grievant’s harassment complaint.  He testified that Warden Woods told him to do a review, to write it up and find no work rule violations (Transcript, p 73).

 

Bridget Nodurft testified by telephone on behalf of the grievant.  Nodurft testified that the grievant as her supervisor, gave good direction, clarified staff assignments and helped staff begin to clean up the unit, which she described as “totally chaotic” prior to the grievant’s arrival.  She stated that some patients were not seen for months at a time prior to his arrival.  She described the adjustments to staff caseloads implemented by the grievant upon his arrival.  She stated that ^5in her view, Switzer was abusive and harassing toward the grievant as well as the entire staff.  She stated that all Switzer ever provided was criticism without offering any help to make the operation better.  She testified that the grievant, in his position as unit manager, was positive and helpful in his supervision of staff.  On cross-examination it was made clear that while Nodurft believed she had witnessed Switzer harassing the grievant, it amounted to being in his office and overhearing telephone conversations between the two of them.

 

Tracie MacDowell, the outpatient mental health secretary for the Kinross and Chippewa facilities, testified that the grievant improved the function of the Chippewa outpatient unit when he took over.  She stated that as the grievant became aware of each problem the unit faced, he fixed them.  She testified that when she moved over to Kinross and a new secretary was hired for the grievant, the new secretary would call her regarding Switzer’s continual inquiries and ask MacDowell if she made these same repeated inquiries of Kinross staff.  MacDowell stated that she did not.  MacDowell stated that she found it convenient that when Switzer retired, she timed the grievant’s demotion to match the date of her retirement.  That confirmed for her that Switzer had really been out to “get” the grievant.  MacDowell estimated that at the time of the grievant’s demotion, the outpatient unit was about 95 percent up to speed in the timely completion of their paperwork, something that had been ignored by the previous incumbent.

 

On cross-examination, MacDowell stated that she had no first-hand knowledge of Switzer harassing or berating the grievant.

 

Marilynn Switzer was called by the department as a rebuttal witness.  Retired from the state of Michigan, she is currently employed as the director of nursing of the Forest View Psychiatric Hospital.  She stated that while the grievant functioned as the unit chief of the Outpatient Psychology Unit, there were some improvements.  She stated that his position was a newly-created position, so there had been no previous incumbent.  She stated that staff at Chippewa lacked the referenced keys and phones because previously, the Kinross Outpatient unit had operated back and forth between the two facilities.

 

Switzer stated that when she would talk to the grievant on the telephone or meet with him
face-to-face, their communication was cordial.  She testified that she became aware of the situation with prisoner Gibbs when a psychologist sent an email to his supervisor with a copy sent to her.  It was reported that Gibbs, who had been placed in an observation cell as a moderate suicide risk, had not been visited by anyone from the outpatient team, and upon further investigation, she learned that Gibbs was on the grievant’s caseload.  She therefore filed a complaint with the Office of Recipient Rights, which triggered the investigation (Transcript, p 104).  She filed the complaint, she stated, pursuant to departmental policy and because she had been trained to file such a complaint upon learning of a perceived violation of a recipient’s rights.

 

^6During cross-examination from the grievant, the hearing officer had to caution the witness to stop looking at her advocate for help with her answers.  There was a series of eye contacts between the two of them observed by the hearing officer that was deemed to be inappropriate.  When the department’s advocate objected to questions raised by the grievant to Switzer to the effect that “she is not on trial here,” the hearing officer observed that indeed she is to an extent, since the grievant was accusing her of harassment.  The grievant had completed his case presentation.  This witness was called by the department on rebuttal and was fair game for the grievant’s pointed questions (Transcript, p 111).  In his cross-examination of Switzer, the grievant focused on minutiae of psychological/psychiatric treatment protocols and did not elicit any information from this witness that would be supportive of a claim of harassment.

 

Kathy Mutschler was also called by the department as a rebuttal witness.  She is a psychologist and is the director of Mental Health Services for the Department of Corrections.  She described appropriate staffing levels in units such as that supervised by the grievant.  She testified that she did not understand his claim that he was understaffed, since in her view, his unit was overstaffed (See testimony, Transcript, pp 125-127).  Mutschler’s testimony was convincing regarding the staffing issue.  She stated that she received several emails from the grievant complaining about the understaffing issue, but the numbers at the facility, from her point of view, did not warrant additional staffing. 

 

Regarding the harassment complaint against Switzer, Mutschler testified that her experience with her has been just the opposite.  Most staff who worked directly for her, she testified, had the utmost respect for her (Transcript, p 130).  She said that she had been in Switzer’s office for some of the telephone conversations between the two of them.  She stated that she would take an item to Switzer concerning the grievant’s unit and tell her that the problem needed to be fixed.  Switzer would then communicate it to the grievant, who would tend to believe that he was being picked on.  She testified that the grievant talked to other supervisors regarding his complaints of harassment, and those supervisors took it upon themselves to contact her and tell her that they had never seen evidence of such conduct on the part of Switzer.

 

Kyle Wood, a lead psychologist at the Chippewa facility, testified on rebuttal that he noted in his rounds that prisoner Gibbs was in an observation cell.  He noticed that the prisoner had been in the observation cell for a couple of weeks without having had any contact with anyone.  He stated that policy required him to report this to the Office of Recipient Rights as well as his supervisor, who he believed reported it to Switzer.  He testified that he became the unit chief at Chippewa Correctional Facility the same date that the grievant was demoted.  He confirmed some of the grievant’s concerns regarding the need to catch up on paperwork related to prisoner assessments.

 

^7Jeffrey Woods, the warden at the Chippewa facility, denied telling Inspector McDonald to not find any rule violation in his investigation.  He denied telling the inspector to do anything less than a thorough investigation.  He testified that he would be shocked to learn that McDonald had claimed in his testimony that he had falsified documents at the insistence of the warden.

Opinion

There are two issues to be decided here.  The first is whether the rescission of the probationary appointment was proper.  The second is whether the grievant had been the victim of harassment by his managers.

 

The answer to the first question should be obvious, based upon the admission of the grievant to not having seen prisoner Gibbs between January 7 and January 24, 2011, when staff reminded him of the obligation.  His claim that it was an honest error due to being overwhelmed by the need to upgrade the level of service within the unit rings true.  An error, however, when a prisoner’s life is potentially at stake, is no less harmful for the honesty of it.  I have no doubt that if this had been determined to have been anything less than an honest error, such as deliberate neglect, that the grievant would have been discharged instead of demoted.

 

It is clear from the evidence on this record that the grievant was not a good fit for the position of Unit Chief of the outpatient treatment unit at the Chippewa Correctional facilities.  His management skills seem to have been marginal, since he demonstrably could not handle both those duties and his assigned caseload.  The rescission of his probationary appointment and his demotion were based upon the finding of Class II neglect against him.  The unsatisfactory
six-month probationary rating was viewed as an aggravating factor.  The department has clearly articulated a legitimate business reason for the rescission of the appointment and the demotion to Psychologist P11.  The burden therefore shifts to the grievant to demonstrate that the rescission and demotion were arbitrary and capricious or that the action violated rules 1-6, Merit, Efficiency, and Fitness,1-8, Prohibited Discrimination, or 2-10, Whistleblower Protection.

 

The grievant’s witnesses offered some testimony that might support a claim of differential treatment/harassment/hostile employment environment.  Those witnesses, however, were not in a position to gain a full appreciation of the interactions between the grievant and Switzer.  Some felt that the grievant was being “picked on” or that the unit was “under a microscope.”  If upper management felt that the grievant was doing at best a marginal job, as is evidenced by the
six-month unsatisfactory service rating, they would of course pay more attention to his shortcomings and bring them to his attention so that he would have the opportunity to correct them. 

 

The grievant did not protest the six-month unsatisfactory rating in any fashion.  It therefore stands as having been properly issued.  That fact, combined with the facts that he admitted to ^8recipient neglect and expressed no remorse about it during the Step 2 grievance conference and combined with Mutschler’s testimony about other supervisors coming to her to tell her that they did not believe Switzer was harassing the grievant, lead to the conclusion that she was not.  The hearing officer would not ordinarily have included the testimony of Shilling regarding the conduct of the grievant during the Step 2 grievance conference, since it post-dates the rescission of the appointment and the demotion, but it is illustrative of the grievant’s demeanor and attitude.

 

For him to offer his professional opinion over the telephone to the director of labor relations of the Department of Community Health that Switzer must have been the victim of some type of abuse as a child in order to act in the manner that he perceived her acting is a pretty good barometer of who may have been harassing whom.  That type of conduct seems illustrative of facts that may have been clouded over in this record due to the level of advocacy in this proceeding that provides clarity as to the nature of the relationship between the grievant and Switzer.  I cannot find that Switzer or any other manager engaged in a course of treatment of the grievant that would have created a hostile employment environment.  Of course, any employee who finds themselves floundering and failing in a position may well truly believe that they are being doomed to failure by their managers.  Such was not the case here, however.

 

Based upon the above findings of fact and opinion, it is my determination that:

 

1)      The rescission of the probationary appointment was proper.

2)      There was no demonstration by the grievant that the rescission of the probationary appointment was arbitrary or capricious, or that it violated civil service rules 1-6, Merit, Efficiency, and Fitness,1-8, Prohibited Discrimination, or 2-10, Whistleblower Protection.  The grievance is therefore denied.

Decision

The grievance is denied for the reasons set forth above.

 

 

/S/

 

William P. Hutchens, Hearing Officer

^9

Notice:  This decision may be appealed if received by the Civil Service Commission’s Employment Relations Board within 28 calendar days of the mailing date on the face of this decision (June 28, 2012) as authorized by Civil Service Commission Rule 8-7, Appeal to Civil Service Commission.  Instructions and forms for filing an appeal, Civil Service Regulation 8.05, Employment Relations Board Appeal Procedures, and Regulation 8.06, Computing Time and Filing Documents, can be found at www.mi.gov/erb.  Appeals and inquiries should be addressed to the Employment Relations Board, Michigan Civil Service Commission, Capitol Commons Center, 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 MCSC‑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.