[nfbmi-talk] dave's civil service vyndication

joe harcz Comcast joeharcz at comcast.net
Wed Mar 2 19:25:14 UTC 2011


Table with 1 column and 3 rowsSTATE OF MICHIGAN 
CIVIL SERVICE COMMISSION 
HEARINGS OFFICE 
Table end   Table with 3 columns and 10 rowsDAVID ROBINSON 
CSHO 2011-006 
v. 
Mailing Date: 
February 23, 2011 
DEPARTMENT OF ENERGY, LABOR AND 
ECONOMIC GROWTH 
Ref. No.: 
2010-02283 
GRIEVANCE DECISION 
Hearing Officer: William P. Hutchens 
 Representatives: 
 Grievant: 
Law Offices of Mark E. Kamar, by Mark E. Kamar and 
Gerald Joseph Cichocki 
 Department: 
Marilyn Smith, Labor Relations Representative 
Table end  Table with 2 columns and 5 rowsCASE SUMMARY 
KEY WORDS: 
Discipline, Dismissal; and Political Activity 
 The manner in which the service ratings were implemented violated Civil Service Regulation 
2.06, Conducting Employee Ratings; further, it is the hearing officer’s determination that the 
Commission for the Blind discharged the grievant in violation of Civil Service Rule 1-8.1(a), 
Prohibited Discrimination, due to partisan considerations due to his membership in, and 
advocacy on behalf of, the National Federation of the Blind. This is based upon 
circumstantial evidence contained in the disciplinary timeline. The dismissal was not for just 
cause. The grievant is to be reinstated to his former position with full back pay and benefits, 
minus any outside earnings. 
This CASE SUMMARY is not an official part of the decision. 
Table end A grievance hearing was held on September 7, 2010, 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 October 22, 2010, at which point the record was 
closed. 
THE ISSUE 
Was the grievant dismissed for just cause? 
 THE FACTS 
The grievant, David Robinson, was employed by the Michigan Commission for the Blind as a 
Promotional Agent. In that capacity, it was his function to visit and service visually handicapped 
food service vendors within state of Michigan office buildings, helping them to build their 
businesses. 
 The grievant had been employed in the above capacity with the Commission for the Blind since 
1998. At the time of his discharge, the grievant reported to James Hull, the assistant business 
enterprise program (BEP) manager. Hull began his supervision of the grievant on June 14, 2010. 
 In his testimony, Hull described the duties of the promotional agents as being the liaison between 
the facility operators and BEP administrative staff. They are responsible for procuring 
equipment for the stand operators and to ensure that the operators have the training and skills 
necessary to successfully operated food service establishments within the BEP program. This 
requires the promotional agents to make site visits to each facility every six weeks, or if that is 
not physically possible, they need to contact the operators and document that in the BEP 
database. 
 Hull stated that in addition to the above requirements, the promotional agents must give each 
operator they supervise an annual evaluation. 
 Hull stated that in the first month that he supervised the grievant, he became aware of a time and 
attendance issue. On June 30, 2010, the grievant recorded eight hours of time worked, when it 
was brought to the attention of the BEP that he had gone to a meeting with Department of 
Energy, Labor and Economic Growth (DELEG) staff acting as a representative of an 
organization other than the state of Michigan. In doing so, the grievant did not request any type 
of leave on his time sheet for the day in question. 
 As a result of this, Hull investigated further and learned that the grievant had attended the 
meeting and that those conducting the meeting were not aware that the grievant was a state 
employee. He received similar information from Pat Cannon, the director of the Commission for 
the Blind, who told Hull that he had received a telephone call to that effect. Subsequently, a 
disciplinary conference was held with the grievant and he received a one-day suspension for 
falsification of his time sheet (Department Exhibit #3). 
 Hull stated that at the time he became the grievant’s supervisor, he was made aware that the 
grievant had been counseled about similar issues in the past by his previous supervisor, 
Constance Zanger. 
 Zanger testified that she supervised the grievant from March 2007 through June 2009. At the 
time, she was the manager of the BEP. She identified three counseling memoranda issued to the 
grievant during the period of her supervision, dated in March, July, and October 2008. She was 
the author of the last two memoranda, she testified (Department Exhibits #5, 5(2) and 5(3)). 
These memoranda show a pattern on the part of the grievant of a failure to enter his site visits 
into the BEP database. She further testified that he was not entering his annual operator 
evaluations properly into that database. These memoranda and the discussions that accompanied 
them were an effort to correct the grievant’s behavior. 
 Zanger further testified that the memos show that the grievant was not developing a monthly 
report spreadsheet and inventory package and discussing these issues with his operators before 
he conducted an inventory. Further, he was not completing the inventories and was not 
finalizing the inventory documentation on a timely basis. She stated that he failed to meet the 
deadlines for the performance of his work. Failure to maintain proper inventory records, she 
stated, could put an operator in difficult financial circumstances were they to decide to leave 
their facility. 
 Zanger testified that after the October counseling memo, the grievant interfered in a sensitive 
situation at the Hall of Justice in which Director Cannon had already been involved. There had 
been a vacant concession stand in that building with no blind operator due to a lack of interest. 
There was therefore a sighted individual running the stand. Once a blind person did bid on the 
stand and was awarded the contract, there was a very negative reaction to the imminent change 
from employees at the Hall of Justice who wished to retain their current operator. 
Director Cannon and others met with the human resources director, Lisa Kutas, and it was 
explained that the blind operator had priority and would be coming in. An agreement was 
reached by which the sighted operator would provide training to the incoming operator. The 
grievant then met with Kutas himself and determined that there would be no need for the sighted 
operator to train the blind operator; he essentially undid the efforts of Director Cannon. 
Ultimately the blind individual who had bid on the stand decided that she was no longer 
interested and submitted a bid on another facility, which was awarded to her 
(Department Exhibit #12). 
 Another example Zanger provided of the grievant’s alleged lack of cooperation concerned the 
Ottawa Building snack bar (Department Exhibit #13). Zanger stated that she had received a call 
from an Ottawa Building customer regarding the operator’s proposal to close the snack bar, 
which he claimed to be generating an insufficient profit. Zanger asked the grievant to look into the situation to see what could be done to make the operation more profitable for the owner so 
that this convenience could be preserved for the employees in that building. She asked him, in 
September 2008, not to make any further move regarding the snack bar until they had a chance to 
discuss it based upon the requested information. She then learned in October that the snack bar 
equipment was being transferred out of the Ottawa facility, meaning that the facility had been 
closed. This was in direct contravention of her email set forth in Department Exhibit #13.  Zanger stated that a part of the grievant’s problem in completing his tasks seemed to be that he 
was performing duties that were not part of his job. By way of example, she stated that for some 
operators, it was difficult for them to get fresh milk deliveries to their facilities. The grievant 
would assist them by going out and purchasing fresh milk and delivering it to them himself. 
That was not part of his job, she stated. It was the responsibility of the operators to obtain the 
product that they sold in their facilities. 
 Zanger testified that during the time that she supervised the grievant, he never complained to her 
that he felt he was being singled out for differential treatment due to his membership in the 
National Federation for the Blind, the organization that he was representing on the date 
referenced above for which he received the one-day suspension. 
 On cross-examination, it was brought out that other promotional agents under the supervision of 
Zanger had been tardy in the documentation of their site visits and evaluations as well, but the 
testimony indicated that the grievant was far and away the worst offender. She stated that of his 
24 facilities, 19 were more than 180 days past due; another agent with 21 facilities had 
7 similarly past due and an agent with 22 facilities had 6 past due and another with 22 or 23 
facilities was the second worst offender with 11 past due. 
 There is no documentation of deficient performance between the last counseling memorandum 
(October 15, 2008) and the issuance of the interim rating which ultimately led to the discharge of 
the grievant in December 2009. That rating was issued to him on September 17, 2009 
(Department Exhibit #6). The follow-up rating, in which his performance was determined to be 
unsatisfactory, was issued on December 18, 2009, at which point he was discharged. The only 
incident that had taken place in the interim was the meeting that the grievant attended as a 
representative of the National Federation for the Blind (NFB) for which he was issued a one-day 
suspension for falsification of his time card. The Ottawa Building snack bar and Hall of Justice 
incidents, both addressed by Zanger, were incidents that occurred within the rating period, but 
the grievant did not appear to be counseled for them, at least according to the documents in this 
record. 
 The grievant testified that while he was scheduled to work 40 hours per week, his typical 
workweek was 60 to 70 hours. He stated that part of his problem in keeping up with his paperwork entries into the BEP database was in transferring the information from his note taker 
to the computer system. He described his note taker as a Blackberry® type device designed for 
the blind. In transferring the information, the grievant stated, he uses a speech access program 
and due to changes in the BEP software, he claimed that he had asked Zanger for additional 
training that had not been provided. He stated that ultimately, Hull had offered to get him a 
wireless card for his computer, which would enable him to broaden the areas from which he 
could work. He later learned that some of the other promotional agents had been supplied with 
wireless cards previously, but he knew nothing about them. He stated that he received the 
wireless card within three months or thereabouts of being discharged (Tr., p. 187).  Assistant BEP Manager James Hull testified that a review of the site visit documentation for all 
of his promotional agents shortly after he became the grievant’s supervisor showed that all of the 
promotional agents were behind in their documentation. He therefore directed them on June 12, 
2009, to document all site visits by a certain date and from that point forward to remain current 
on all site visit documentation. He also asked them to provide him with a projected itinerary for 
the upcoming week and a summary of their activities for the preceding week. He believed that 
would help them to regulate their time and to keep current in their assignments. He specifically 
asked the grievant for this information in an email dated August 12, 2009, referencing a 
conversation they had at the disciplinary conference regarding the one-day suspension on 
August 4, 2009. 
 Hull testified that due to the fact that the grievant failed to make his site visits current, and the 
fact that he had not asked for an extension in which to make them current, he gave the grievant 
the service rating in question. The rating directed him to make all site visits current within one 
month of receiving the rating. This was something that Hull believed that the grievant could do, 
as was the directive to make site visits and to submit his proposed itineraries. 
 Hull testified that the grievant did submit itineraries, but the follow-up conference revealed that 
the grievant failed to follow all of his directives. This is reflected in the follow-up rating, dated 
December 18, 2009 (Department Exhibit #8). Another issue that came up during the rating 
period was regarding a proposed free popcorn giveaway as part of the State Employees 
Combined Campaign, a charity fund raising event. The coordinator of the proposed popcorn 
giveaway for the SECC had contacted the grievant, he testified, to try to set up a popcorn 
giveaway through the BEP operators at all state facilities. Hull became aware due to complaints 
by operators who had been approached by State employees who apparently had been told that 
they were entitled to free popcorn. Hull investigated with Lisa Moye, the event “coordinator” 
who said that she had worked directly with the grievant, who was to contact the operators to 
advise them of the event and was to negotiate the price for the popcorn with the SECC for the 
reimbursement to the operators for their participation. This, Hull stated, was not something that 
the grievant was supposed to be doing. His involvement, or lack of it, generated numerous complaints from operators and from state employees. The operators complained that they had 
not been forewarned of the event, so they had not made any adjustments to their purchasing or to 
their scheduling of labor. They further complained that the price that had been agreed to did not 
cover the cost of the popcorn. When he spoke to the grievant about this, he denied responsibility 
(Tr., p. 32).  Regarding the above issue, the grievant testified that he had been contacted by Lisa Moye, but 
that he had told her that he could supply her with a list of operators and that participation would 
be up to them. He told her he could not quote a price because the operators buy their corn from 
different suppliers and in different forms. He stated that he would never have quoted her a price. 
He said that arrangements would have had to have been made by the SECC coordinator in each 
building with the individual operator in each building, since each is an independently owned 
business. 
 Another issue that had been brought to the attention of the grievant during the rating period was 
the fact that his state of Michigan email address appeared on the website of the 
National Federation of the Blind. He was directed to have that removed. His failure to have it 
removed for several weeks forms part of the basis for his dismissal. It is clear from this record 
that it took some time to have the email address removed from the organization’s website. The 
hearing officer views this as a non-issue. 
 The grievant has contended that his dismissal was in violation of Civil Service Rule 1-8.1(a), 
Prohibited Discrimination, in that he was dismissed based upon partisan considerations due to 
his membership in and status as a board member in the National Federation of the Blind of 
Michigan. In addition, he claimed that there existed no cause for the dismissal. He alleged that 
the dismissal violated Article 11, § 5 of the Michigan Constitution since the dismissal was 
motivated by partisan considerations. He further contended that his dismissal violated state and 
federal constitutional rights to free speech, association, due process and equal protection under 
the law because the termination under the pretext of just cause was actually due to his 
involvement as an advocate for the blind vendors and promotional agents as a board member and 
representative of the National Federation of the Blind of Michigan. 
 OPINION 
The issue before the hearing officer is whether the grievant was discharged for just cause. 
 In reviewing the grievant’s work history leading up to his discharge, it is appropriate to consider 
the counseling memoranda issued to him in October 2008 but not those issued earlier than that.Review of Civil Service Regulation 2.06, Conducting Employee Ratings, §§ 4(E)(2), states that: An interim rating shall address specific performance or 
behavior problems, identify specific expectations for 
improvement, and establish a timeframe for improvement 
during a follow-up rating period. 
The grievant’s interim rating (Department Exhibit #6) appears to set forth the above items, but 
according to the testimony in the record, pretty much all of the promotional agents were behind 
in their paperwork. The grievant was by far the worst offender, but to expect him by the stroke 
of a pen to catch up all of his untimely work for the last 12 months in a 30-day period, then 
maintain all of his work in an ongoing timely fashion, when it is clear that no one else does this, 
is an unrealistic and unreachable expectation. 
 Regulation 2.06, §§ 4(E)(3), states that: 
An unsatisfactory interim rating is typically preceded by 
counseling, reprimands, or other forms of corrective action 
regarding the employee’s performance or behavior. 
In this instance, the closest counseling memo in time to the issuance of the first of the ratings at 
issue in this hearing was dated October 10, 2008, and was issued by a supervisor other than the 
one who issued this interim rating. This supervisor (Hull) did not take the time to document the 
performance deficiencies of the grievant prior to issuing the rating on September 17, 2009. 
Apparently, it was assumed the counseling memos issued in the preceding eighteen months by 
other supervisors, combined with the one-day suspension given to the grievant in the summer 
of 2009 for a totally separate issue, would suffice. In the opinion of this hearing officer, they do 
not. 
 Regulation 2.06, §§ 4(E)(14), states: 
If an employee’s performance is unsatisfactory during the 
follow-up rating period, counseling memos, reprimands, or 
other forms of corrective action are typically taken, followed 
by an unsatisfactory service rating. 
There were no counseling memoranda, reprimands or other forms of corrective action taken 
during the follow-up rating period. There were the two email chains entered into the record 
regarding the Ottawa Building snack bar (Department Exhibit #13) and the Hall of Justice issue 
(Department Exhibit #12), neither of which amount to anything approaching a counseling memo 
or any type of corrective action. 
The testimony of witness Hull indicates in essence that in order to help his promotional agents 
catch up on their paperwork, he assigned more paperwork to them (weekly itineraries and 
weekly summaries of their prior week’s activities). 
 The hearing officer does not believe that the grievant was a model employee. It is apparent from 
this record that he was inordinately slow in entering his required paperwork into the BEP 
database. As was testified to by witness Zanger, especially as it concerns inventories, this could 
have extreme financial consequences for the operators whom he is supposed to serve, in the 
event that they were to close down their businesses. Further, the hearing officer does not believe 
the grievant regarding the issue of the popcorn giveaway. If the grievant did not quote 
Lisa Moye a price, then why did the operators call Hull complaining about the price that was 
quoted, and the fact that it was not sufficient to cover their costs? The grievant must take more 
responsibility for his own actions and must focus on the required portions of his duties and less 
upon the voluntary aspects of them, since they seem to bog him down. 
 The grievant has contended that his termination was motivated by partisan considerations due to 
his status as a member of and as a board member of, the National Federation of the Blind (NFB) 
of Michigan. He produced the testimony of Fred Wurtzel, the retired manager of the BEP and a 
ten-year president (recently retired) of the NFB. Wurtzel offered his opinion that 
Director Cannon of the Commission of the Blind has launched an out-and-out attack against the 
NFB and its members. He described alleged incidents in which blind operators have been 
removed from their positions without cause, and referenced the terminations of three 
Commission employees he believed to have been motivated by their membership in and 
advocacy for, the NFB. 
 Wurtzel’s testimony does not constitute proof; it was his opinion. When one views the timeline 
in this case, however, it lends credibility to the statements offered by Wurtzel. The grievant, for 
example, had three counseling memoranda on his record, but nothing more significant than that 
until he appeared at a meeting with DELEG officials acting as an advocate for the NFB. 
Word of this got back to his supervisor, who appropriately sanctioned him, from the evidence in 
this record, for falsifying his time card. A mere 11 days after the grievant appeared at that 
meeting, however, the previous tolerance of untimely submission of BEP database materials on 
the part of all promotional agents was brought to an end by Hull. While this impacted all of the 
promotional agents, the one who of course was most dramatically impacted was the grievant. He 
was the one who was the farthest behind in his paperwork. Hull then imposed further 
paperwork, making it more difficult for the grievant to catch up. 
 Once the disciplinary conference was held in August regarding the timecard falsification and the 
one-day suspension was issued, the grievant was again reminded to fill out his paperwork in a 
timely fashion and to submit his weekly itinerary and summary upon his return. Within three weeks, he was place on the interim rating that led to his discharge. Nowhere in any of this 
timeline of Hull’s supervision of the grievant is there evidence of counseling memoranda, 
reprimands, or other efforts at corrective action. There is evidence of unreasonable expectations 
designed to make certain that the grievant would fail.  Were these actions taken because the grievant was a board member of/advocate for the 
National Federation of the Blind? The circumstantial evidence from the timeline seems to point 
to that conclusion. The hearing officer does not have knowledge of the other instances of alleged 
NFB discrimination alleged by Wurtzel, but as immediate past president of the Michigan NFB, 
Wurtzel was in a good position to know the nature of the relationship between that organization 
and the Commission for the Blind, headed by Director Cannon. 
 It is my determination first, that there was no just cause demonstrated for the dismissal of the 
grievant due to the total lack of documentation offered in support of the service ratings; second, 
that the probable reason for the lack of documentation is that the grievant was not doing that 
poor of a job, compared to the other promotional agents, though his performance clearly was the 
worst of the lot; and third, that the Commission for the Blind took his laggardly performance, 
heretofore tolerated, as an excuse to discriminate against, and discharge, the grievant due to his 
membership in and advocacy on behalf of, the National Federation of the Blind. 
 For the above reasons, the grievance is granted. The grievant is to be restored to his previous 
position with full back pay and benefits, minus any outside earnings in the interim. 
 DECISION 
The grievance is granted. 
Table with 3 columns and 2 rows    William P. Hutchens, Hearing Officer 
Table end Table with 1 column and 1 rowNotice: 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 
(March 23, 2011) 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 at michigan.gov. 
Table end 


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