University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 12-1-2011 METRO NASHVILLE GOVERNMENT DAVIDSON CO. SHERIFF S OFFICE, Petitioner, /Department vs. DAVID TRIBBLE, Respondent/, Grievant. Follow this and additional works at: http://trace.tennessee.edu/utk_lawopinions 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
BEFORE THE CIVIL SERVICE COMMISSION OF THE METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY, TENNESSEE IN THE MATTER OF: ] ] METRO NASHVILLE GOVERNMENT ] (DAVIDSON CO. SHERIFF S OFFICE), ] Petitioner/Department ] v. ] DOCKET # 43.02-111749J ] DAVID TRIBBLE, ] Respondent/Grievant. ] INITIAL ORDER This contested administrative case was heard in Nashville, Tennessee, on December 1, 2011, before J. Randall LaFevor, Administrative Judge, assigned by the Secretary of State and sitting for the Civil Service Commission. Ms. Jennifer Cavanaugh, Assistant Metropolitan Attorney, represented the Department. The Grievant was represented by his legal counsel, Ms. Elizabeth A. Powers. Upon the conclusion of the hearing, the matter was taken under advisement, and the parties were directed to submit Proposed Findings of Fact and Conclusions of Law by February 6, 2012. The Department filed its document on February 6; the Grievant did not file its Proposed Findings of Fact and Conclusions by the deadline; on the document filing deadline, the record was closed, and the matter was declared ready for consideration. 1 This hearing was convened at the request of David Tribble ( Tribble or Grievant ), challenging the termination of his employment with the Metropolitan Nashville Sheriff s Office ( the Department or DCSO ) for violations of (1) Policies and Procedures of the Metropolitan Nashville Sheriff s Office, and (2) Rules/Regulations of the Metropolitan Civil Service Commission. Upon consideration of all the evidence, arguments of counsel, and the entire record in this matter, it is determined that the Grievant violated the Policies, Procedures and Rules, as charged, and that such violations warrant the termination of his employment. This determination is based on the following Findings of Fact and Conclusions of Law. 1 Subsequently, on March 19, 2012, the Grievant filed his Proposed Findings & Conclusions to the ALJ. Since the Initial Order had not been entered yet, that document was given full consideration as though it had been timely filed by February 6, 2012, in compliance with the Post-Hearing Scheduling Order. [No explanation was offered for the late-filing of the Grievant s document.] - 1 -
FINDINGS OF FACT 1. During the relevant timeframe, David Tribble was an employee of DCSO. At the time of events leading up to the termination, he was employed as a Correctional Officer I. Lieutenant Gise was Mr. Tribble s direct supervisor. 2. As part of their job duties, Correctional Officers must perform rounds. During a round, a Correctional Officer must walk inside a jail cell, make and record observations as to what the inmates are doing, and enforce housing rules. 3. As a written procedure, set out in their Job Description [See Hearing Exhibit #7], Correctional Officers are required to conduct observation rounds in the jail cells every 20-30 minutes. During a round, the Correctional Officer must physically enter and inspect the cell. 4. Lieutenant Gise testified at the contested Civil Service appeal hearing that Correctional Officers must conduct rounds and enforce housing rules to ensure that the noise level is under control, beds are made, the inmates aren t gambling, obviously not fighting, and everyone s still alive. 5. After the Correctional Officer conducts the round, the Correctional Officer must document the time and date of the round, as well as what he or she observed in the jail cell, in the DCSO computer system. 6. Lieutenant Gise became concerned that many of the Correctional Officers in his chain of command were not conducting rounds according to policy and were not documenting the rounds correctly. One of the Correctional Officers that concerned Lieutenant Gise was Mr. Tribble. 7. Lieutenant Gise counseled Tribble on November 20, 2010 for being away from his post for an extended amount of time which resulted in several late rounds. This counseling session was also recorded in the Hill Detention Center ( HDC ) Lieutenant s Log. (Hearing Ex. #1). - 2 -
8. The same log indicated that on January 7, 2011, Lieutenant Gise served Tribble with a letter of concern for job performance, i.e., numerous late rounds including two gaps of two hours each in one shift. 9. Regarding a completely unrelated incident, a female employee who worked at the Hill Detention Center ( HDC ) filed a complaint with the DCSO administration raising several concerns. One of her concerns was that two officers were sleeping while they were on duty at HDC. 10. DCSO investigator Michelle Ray was assigned to investigate several of these issues at the Hill Detention Center ( HDC ). Tribble was not the original target of her investigation. 11. Investigator Ray set up video surveillance in the area where she believed the Correctional Officers were sleeping. On January 11 th, Investigator Ray viewed video where Mr. Tribble was observed in the clinic for a long time, and based on her conversations with the Administrator of the building and the Chief of Security of the building, there was no reason for him to be in the clinic for that extended period of time. 12. Investigator Ray then changed the video surveillance to an area known as C unit and D unit, in order to observe Mr. Tribble and another officer. Investigator Ray focused on D unit and discovered that on January 25, 2011, Mr. Tribble neglected to conduct sufficient rounds. According to the video, during his 12-hour shift on January 25, 2011, Mr. Tribble only went inside his assigned cell (D cell) three times for a total of 36 seconds. 13. Also during the course of the investigation, it was discovered that on February 2, 2011, Mr. Tribble again neglected to conduct sufficient rounds. According to the video, during his 12-hour shift on February 2, 2011, Mr. Tribble only went inside D cell four times for a total of 88 seconds. - 3 -
14. Investigator Ray printed out the computer Daily Log Reports from the days in question and compared them with the video. The logs showed that Mr. Tribble was logging rounds that he did not actually complete. 15. Investigator Ray then interviewed Mr. Tribble and confronted him with the video evidence. Investigator Ray asked Mr. Tribble what a round was, and he indicated that a round consisted of getting up, entering the cell, checking the cell, and then logging what he saw in the cell. 16. Mr. Tribble acknowledged that if he did not go into the cell, and logged the round as complete, then he had actually falsified the round. Mr. Tribble admitted to falsifying log entries to Investigator Ray. 17. DCSO employees are prohibited from sleeping while on duty. During her interview with Mr. Tribble, Investigator Ray also asked Mr. Tribble whether or not he had ever slept on duty. Mr. Tribble said he may have begun to doze off, but he had never actually slept while on duty. 18. On June 10, 2011, Mr. Tribble testified under oath in an unemployment compensation hearing before the Appeals Division of the Tennessee Department of Labor and Workforce Development. 18a. During this hearing, Mr. Tribble again admitted to falsifying the logs and not making the rounds as required. 18b. Mr. Tribble also admitted to sleeping on duty, and that he knew sleeping on duty was against DCSO policy. - 4 -
CONCLUSIONS OF LAW 1. In disciplinary appeals presented to the Civil Service Commission, the Appointing Authority is assigned the burden of proof. In this case, the Appointing Authority is the Davidson County Sheriff s Office. [Disciplinary and Grievance Appeal Proceedings (Revised 10/11/11); Civil Services Policies, # 6.8 A-I, Section M: Burden of Proof.] The burden of proof is the duty imposed upon a party to establish, by a preponderance of the evidence, that an allegation is true, or that an issue should be resolved in favor of that party. A preponderance of the evidence means the greater weight of the evidence, or the more probable conclusion, based on the evidence presented. Rule 1360-4-1-.02(7), TENN. COMP. R. & REGS. 2. 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 that violated the Policies, Procedures and/or Rules of the Davidson County Sheriff s Office and the Metropolitan Government, as charged; and, (2) if so, whether the sanction imposed by the Department was appropriate. With respect to both issues, the Department has met its burden of proof. 3. The Department s Charges and Specifications allege that the Grievant violated the certain policies of the Davidson County Sheriff s Office, including: DCSO Policy 1-1.312 Employee Conduct * * * 2. Neglect of duty or failure to perform duty; * * * 5. Failure to follow written orders, policies, and procedures; * * * 8. Unauthorized sleeping on duty; * * * 25. Falsification, unauthorized alteration, or unauthorized destruction of documents or records. 4. The Department s Charges and Specifications also allege that the Grievant violated the Metropolitan Civil Service Commission Rules, Chapter 6, Section 6.7 - Subsection 11: Such conduct, if proven, provides a basis for sanctions pursuant to the Metropolitan Civil Service Commission Rules. The cited Civil Service Rules provide as follows: - 5 -
6.7 GROUNDS FOR DISCIPLINARY ACTION The following constitute grounds for disciplinary: * * * 11. Violation of any written rules, policies, or procedures of the department in which the employee is employed. Re: Neglect or Failure to Perform Duty; Failure to Follow Written Orders, Policies and Procedures; Violation of Department s Written Rules. 5. Mr. Tribble failed to perform his duties by making inadequate cell checks and by being away from his post during his shift. Pursuant to his job description as a Correctional Officer I, he was required to conduct observation rounds in the jail cells every 20-30 minutes. Observation rounds require that the Correctional Officer physically enter and inspect the cell, to detect and/or prevent the possibility that inmates may be attempting or preparing to engage in illegal activity that could prove injurious to guards, other employees, other inmates, or even members of the public who happen to be inside the confines of the jail. The Grievant s supervisor counseled him twice [11/20/10 & 1/7/11] about his failure to properly conduct his rounds, and for being away from his post for an extended amount of time. Even after both of these attempts at correcting his behavior, Mr. Tribble persisted in his failure to conduct sufficient rounds, specifically as captured on video surveillance on January 25, 2011, and on February 2, 2011. During twelve-hour shifts on those two dates, he was physically present in his assigned cells only three times for a total of 36 seconds [Jan 25] and four times for a total of 88 seconds [Feb 2]. Those videos verify that he did not perform a sufficient number of rounds, and that, when he did go into the cells, he did not spend enough time inside to properly evaluate the situation. During the two twelve-hour shifts caught on video surveillance, he should have made a total of 48 to 72 rounds instead of the seven (7) that he actual completed. That computation alone clearly supports the conclusion that Mr. Tribble violated DCSO Policy 1-1.312 Employee Conduct, Number 2, Neglect of duty or failure to perform duty; and Number 5, Failure to follow written orders, policies, and procedures. It also supports a conclusion that he violated Metropolitan Civil Service Commission Rules, Chapter 6, Section 6.7 - Subsection 11, - 6 -
Violation of any written rules, policies, or procedures of the department in which the employee is employed. Re: Falsification, unauthorized alteration, or unauthorized destruction of documents or records. 6. After failing to conduct his observation rounds as required, Tribble made false entries in the computer Daily Log Reports to attempt to conceal his failures. Daily Log Reports are official government records kept by the Davidson County Sheriff s Office to verify and document compliance with the DCSO jail procedures. By falsifying those entries, he attempted to mislead his superiors into believing that he had duly performed his job requirements, when in fact, he knew that he had not. Such actions are in direct violation of DCSO Policy 1-1.312 Employee Conduct, Number 25, Falsification, unauthorized alteration, or unauthorized destruction of documents or records. Re: Unauthorized Sleeping on Duty. 7. DCSO employees are prohibited from unauthorized sleeping on duty under DCSO Policy 1-1.312(8). Mr. Tribble was aware of this policy, and that a violation of the policy would result in a disciplinary sanction. When interviewed by DCSO s investigator, Tribble conceded only that he may have begun to doze off during his shifts, but he clearly admitted under oath during his unemployment insurance appeals hearing that, I have fallen asleep while on duty. Since he failed to claim or produce any authorization for such activity, it is concluded that the Grievant slept on the job in violation of express policy prohibiting unauthorized sleeping on duty. [DCSO Policy 1-1.312(8)] Re: Disciplinary Action. 7. Pursuant to Section 6.5 of the Metropolitan Civil Service Commission Rules, an employee may be disciplined by means of: (1) suspension, (2) demotion, or (3) dismissal. The Davidson County Sheriff s Office Policy 1-1.312, Employee Conduct, includes a provision that violation of the stated policy will result in Sanctions [which] may range from an oral reprimand up to - 7 -
and including termination, depending upon the seriousness of the offense and other mitigating/aggravating factors. In this case, the Davidson County Sheriff s Office terminated the Grievant s employment as a sanction for the enumerated infractions. That decision was based on the egregious nature of the infractions, which by their nature, involved the Grievant s failure to perform specific duties, as well as lying, deceit and intentional misrepresentation in an attempt to conceal his improper actions. The Grievant was employed as a Correctional Officer, a position that requires adherence to a high sense of duty and standard of conduct, and must command the respect and confidence of other employees of the Department and inmates, as well as the public at large. The Grievant s actions resulted in a loss of his supervisors confidence and respect. They can no longer trust his word or his judgment. As a result of his actions, he has lost his value to the Sheriff s Office and the Metropolitan Government. 8. It is concluded that the Grievant s actions constituted serious violations of the Davidson County Sheriff s Office Policies, and the Metropolitan Civil Service Commission Rules. By failing to properly perform the duties entrusted to him, the Grievant may have put his fellow employees, the public and inmates at risk, and exposed the Metropolitan Government and the Davidson County Sheriff s Office to potential civil liability. Both the seriousness of the violations, and the fact that the Grievant failed to modify his conduct after being cited for similar infractions in the past, weigh heavily in favor of an enhanced disciplinary sanction. It is concluded that, in light of the facts of this case, the appropriate disciplinary sanction is termination of the Grievant s employment. 9. And, finally, by means of argument, the Grievant raised issues related to a claim of disparate treatment in the nature and severity of his disciplinary sanction. However, he failed to prove the existence of either of these claims through competent evidence. There is insufficient evidence in the record to prove that this disciplinary sanction was prompted by any lawful and protected act on his part, or that the Department s treatment of him was more severe than any other employee who was similarly situated (in terms of position title, length of employment, character of employment, etc.) and who committed similar infractions. And, although the DCSO prefers implementation of progressive discipline for its employees, such actions must be - 8 -
administered at the step which is most appropriate for the misconduct. As the courts have recognized in state employee cases dealing with progressive discipline provisions;... the key word... 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). The seriousness of the violations disclosed by the facts of this case argue in favor of a more significant sanction to address the proven misconduct. Accordingly, based upon these findings, conclusions and analysis, and upon full consideration of the testimony and other evidence submitted by the parties, arguments of counsel, and the entire record, it is hereby found and determined that the Metropolitan Government and the Davidson County Sheriff s Office have met their burden of proof, and have established by a preponderance of the evidence that the Grievant, David Tribble, (1) violated specified Policies and Procedures of the Davidson County Sheriff s Office, and Rules/Regulations of the Metropolitan Civil Service Commission, as charged; and, (2) that the decision to terminate his employment, imposed as a disciplinary sanction, is appropriate, and warranted by his conduct. The Department s termination of the Grievant s employment is therefore upheld, and the Grievant s appeal is hereby DISMISSED. It is so Ordered. Judge Entered and effective this 22nd day of March, 2012. Randall LaFevor, Administrative Filed in the Administrative Procedures Division, Office of the Secretary of State, this 22nd day of March, 2012. - 9 -
Thomas G. Stovall, Director Administrative Procedures Division - 10 -