1. 1. QUESTION

   Juan Hernandez vs. The County

   Metropolitan County is the largest government in the state. County government is divided into about fifty operating departments and employs about 15,000 people. Among the departments, is the Office of Data Processing (DPC). Juan Hernandez, a Hispanic male, was employed by the UPC on July15, 1997, he was promoted in the position of operator I and attained permanent status in that position until his termination on March 9, 2007. This case study will examine the circumstances leading to his dismissal, his role as a union steward for Local 121 of the American Federation of State, County and Municipal Employees (APSCME), and the various steps involved in his termination. It will reach conclusions relating to the disciplinary action and grievance process in public agencies in general.

   Employment history

   From his initial employment until April 2002, Juan Hernandez’s record reflected satisfactory and dependable service. On April 25, 2002, however, he received a written reprimand for failing to satisfactorily back up numerous documents that were lost in a power outage. Mr. Hernandez reacted to the reprimand by a letter of rebuttal, which indicated that he disagreed sharply with management’s allegations of his lack of general competence.

   In October, he received an evaluation summarizing his performance as “in need of attention.” His scheduled merit increase was deferred for three months. Although the overall tone of the evaluation was encouraging, it implied incompetence in his ability to grasp the concepts of a larger information technology system. Mr. Hernandez appealed the evaluation but withdrew the appeal when he received a satisfactory evaluation along with his merit increase three months later.

   In January 2003, the director of operations for the DPC brought about a reorganization that resulted in Mr. Hernandez being switched from the day to night shift. Despite his objections to this change, Mr. Hernandez’s employment continued satisfactorily for the next eighteen months, until he suffered a severe on the job injury on July 26, 2004, A portion of the raised computer floor collapsed near his workstation. His resultant knee and leg injuries caused Mr. Hernandez to be absent from work for several months.

   Upon his return to work on October 2004, he was presented with a formal record of counselling dated July29, 2004, just three days after his injury had occurred. This record, which was  prepared by his supervisor as a summary of t he informal counseling that had occurred with him, cited a number of infractions having to do with failure to make up time for a long, lunch, failure to produce a leave slip for his absence and for improperly processing various forms needed by other departments.

   On June 29, 2005, Mr. Hernandez was given a formal record of counseling citing his involvement in a technical failure that occurred in the computer room at   console. The essence of the incident concerned Mr. Hernandez’s evident unfamiliarity with the software that both he and the operators under his supervision were utilizing.

   Shop Steward Election

   On July 27, 2006, Mr. Hernandez was elected to the position of shop steward representing the DPC employees with APSCME  Local 121, During his term as shop steward, he aided several employees who were contemplating filing grievances against the DPC because some agency managers were inappropriately assigning work in violation of a collective bargaining agreement.

   Termination

   On January 9, 2007, Juan Hernandez was himself given an “unsatisfactory” performance evaluation based on his failure to complete certain training course, designed to ensure his knowledge of the hardware and software both he and his subordinates were utilizing. He refused to sign this evaluation. On January 23, 2007, he was charged one day without pay for calling sick the day before the start of his scheduled one-week vacation. Upon returning to work, he submitted a doctor’s statement excusing him for the absence. This doctor’s statement coupled with other evidence, would later prove the grounds for his termination.

   Mr. Robert Hess, an administrative officer for the DPC, began to compile evidence that Mr. Hernandez had falsified doctor’s statements that excused several of his absences. He had observed that the handwriting of doctor’s excuses dated June 15, 2006, and January 23, 2007, did not match the handwriting of other excuse obtained from the same doctor for the injuries suffered in his 2004 accident. In addition, the excuses in question were written on Pacific Hospital forms, whereas the others were not.

   Interviews were conducted with the physician Dr. Hernan Wilbanks, and with Mr. Vincent Pico, administrative resident at Pacific Hospital. Dr. Wilbanks denied writing the excuses and Mr. Pico confirmed that Mr. Hernandez had not been a patient at the hospital on the dates in questions.

   Mr. Hernandez then altered his story by stating that the excuse that he had submitted for the January 23 absence was a copy of the original claimed that his daughter, a pre-med student at Long Beach State University, had copied the original one ”as practice for her classes”, and he had mistakenly submitted the copy. However, the Los Angeles County Crime Laboratory Bureau confirmed that the handwriting was the same on both forms.

   On March 10, 2007, Mr. Hernandez attended a scheduled disciplinary action meeting in the office of the deputy director of the DPC. He was represented by the union. At this meeting, he was given a termination letter and a disciplinary action report effecting his dismissal. He signed the form on the union representation’s advice.

   Appeal Hearing

   An appeal hearing was held on May 10, 20017. Mr. Hernandez was represented by APSCME local 121; the County was represented by the County Attorney’s Office. The impartial hearing examiner concluded that violations 1 through 4 were not substantiated but that the charge of a false claim of leave was substantiated. Mr. Hernandez’s termination was sustained.

   Conclusion

   Both collective bargaining agreement and disciplinary actions procedures provide for progressive discipline of employees for poor performance, and they protect employees against unfair harassment or unsubstantiated allegations.

   In the case of Juan Hernandez, the pattern and timing of management’s disciplinary action against him are both suspect. A casual review of his record of disciplinary action indicates that it followed on-the-job injuries and his election as shop operant.

   On the other hand, it is also clear that Mr. Hernandez’s work performance was frequently careless or incompetent. Moreover, his falsification or medical excuses constituted misconduct. Management’s efforts to substantiate this required the spending of much time, money, and effort.

   The charge of willful misconduct was upheld rather than claims of poor performance. The lesson to be learned from this is that management, in the final analysis, when attempting to terminate an employee who is backed by union and legal representation in front of an impartial examiner, must have documentation that unquestionably establishes poor performance or misconduct.

   ANSWER THE FOLLOWING QUESTIONS

   1. Did the employer (the Data Processing Center) provide Mr. Hernandez with clear performance standards from the time of his employment ton the time of his termination?
   2. Did the DPC provide Mr. Hernandez with adequate informal counseling concerning his performance discrepancies prior to initiating formal counseling and disciplinary action?
   3. Did the employer adequately document Mr. Hernandez’s alleged violation or clear performance standards?
   4. What is the difference between poor performance and misconduct? Is the distinction important?
   5. Who, if anyone, benefits from the outcome of this case study?
   6. What functions and values are present in this case?
   7. How important is an impartial hearing examiner in developing a sense of organizational justice?

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