Mccurdy v. Red Onion State Prison

Brief / Memorandum in Opposition re MOTION for Partial Summary Judgment .

W.D. Va.May 17, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA Big Stone Gap Division THOMAS MCCURDY, Plaintiff, v. Civil Action No. 2:16-cv-00017 VIRGINIA DEPARTMENT OF CORRECTIONS, Defendant. BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT The Virginia Department of Corrections (“DOC” or “Defendant”), by counsel, respectfully submits the following brief in opposition to the Motion for Summary Judgment filed by Thomas McCurdy (“McCurdy” or “Plaintiff’). I. STATEMENT OF THE CASE McCurdy seeks summary judgment for his hostile work environment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”) based on two undisputed incidents. First, McCurdy argues that an investigation into the writing of a single racial epithet—which McCurdy did not discover firsthand—was not reasonably calculated to end the harassment because DOC “failed” to initially inform Human Resources of the investigation. Second, Plaintiff argues that unspecified “racial jokes and slurs” hurled against his nephew, Martinez Miles, support his hostile work environment claim because Human Resource Officer Renee Conley was unable to contact Miles despite multiple attempts. Absent from these facts are any allegation of bad faith. Though the facts themselves are undisputed, Plaintiff’s emphasis on extraneous details does not compel the conclusion that DOC is liable under his Title VII hostile work environment claim. In fact, the opposite is true, as the facts demonstrate that DOC made every effort to halt Case 2:16-cv-00017-JPJ-PMS Document 36 Filed 05/17/17 Page 1 of 12 Pageid#: 433 2 the discrimination using the information that was available. Title VII does not require an employer to investigate allegations of racial harassment in a manner that comports with a plaintiff’s expectations. Rather, the investigations must be reasonable, and the undisputed facts demonstrate that the investigations into the logbook and alleged harassment against Miles meet that standard. As such, Plaintiff is not entitled to summary judgment. II. STANDARD OF REVIEW Fed. R. Civ. P. 56(a) provides that a court should grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “As to materiality . . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In order to preclude summary judgment, the dispute about a material fact must be “‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. However, if the evidence of a genuine issue of material fact “is merely colorable or is not significantly probative, summary judgment may be granted.” Id. at 249-50 (internal citations omitted). In considering a motion for summary judgment, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). III. STATEMENT OF FACTS Generally, Plaintiff’s recitation of undisputed facts is accurate. Defendant’s recitation of undisputed facts relating to DOC procedures for making complaints of harassment and discrimination can be found in Defendant’s Brief in Support of Defendant’s Motion for Summary Judgment. Dk. No. 30, at 5. Case 2:16-cv-00017-JPJ-PMS Document 36 Filed 05/17/17 Page 2 of 12 Pageid#: 434 3 IV. ARGUMENT Count I asserts a claim under Title VII alleging that McCurdy was subjected to a hostile work environment when DOC failed to investigate his complaints of race-based jokes and slurs hurled against him. To prevail on a claim of a hostile work environment under either Title VII or § 1981, “a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff’s . . . race; (3) which is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.” Boyer–Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (citation omitted). Plaintiff alleges that the undisputed evidence with respect to the logbook and Miles’ alleged treatment at Red Onion is sufficient to meet each of these elements. Plaintiff has failed to provide this Court with sufficient evidence to support his motion for summary judgment with respect to the third and fourth elements. Thus, his motion for summary judgment must be denied. A. Plaintiff Has Failed to Establish that the Alleged Harassment Was Either Severe or Pervasive. Title VII has been consistently interpreted as prohibiting conduct that is “so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment.” Faragher v. City of Boca Raton, 542 U.S. 775, 786 (1998). “Whether the environment is objectively hostile or abusive is ‘judged from the perspective of a reasonable person in the plaintiff’s position.” Boyer-Liberto, 786 F.3d at 277 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). “That determination is made ‘by looking at all the circumstances,’ which ‘may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Id. (quoting Harris v. Forklift Sys., Inc. 510 U.S. 17, 23 (1993)). Case 2:16-cv-00017-JPJ-PMS Document 36 Filed 05/17/17 Page 3 of 12 Pageid#: 435 4 “A hostile work environment is unique among the employment practices that contravene Title VII, in that such an environment normally develops though a series of acts, which might not, standing alone, violate Title VII.” Jordan v. Alternative Res. Corp., 458 F.3d 332, 351 (4th Cir. 2006). Put simply, a hostile work environment is usually the sum of a series of events. Id. (internal citation omitted). Over the years, the Fourth Circuit has consistently held that isolated comments standing alone, while arguably reprehensible, do not constitute a hostile work environment. See id. at 352. However, the Fourth Circuit acknowledged for the first time in Boyer-Liberto that an “isolated” racial epithet could be severe enough to submit the hostile work environment issue to a jury. Boyer-Liberto, 786 F.3d at 780. In distinguishing past precedent, including Jordan, the Court carefully held that in order for an “isolated” racial epithet to be severe enough to constitute a triable hostile work environment issue, a supervisor, or management, must have specifically directed the comment at the complaining employee. Id. at 780-81 (explaining that since a supervisor has the ability control an employee’s working environment, when he personally directs a comment at an employee he has the power to effectively create a hostile atmosphere within the workplace); Cf. Jordan, 458 F.3d at 339-40 (a racist comment made by a mere co-worker and not directly aimed at Jordan or any other employee was not in itself severe enough to constitute a hostile work environment). In this case, Plaintiff cannot establish that he experienced severe or pervasive racial harassment. First, in terms of severity, the fact that McCurdy was informed by Marie Knoskie that someone had written the phrase “I hate n*****s” in the C2 Control Room logbook does not in itself create a hostile work environment because McCurdy has not proffered undisputed evidence that the comment in the log book was directed at him by a supervisor or manager. At best, McCurdy can only speculate that “someone” wrote the comment in the log book, however, Case 2:16-cv-00017-JPJ-PMS Document 36 Filed 05/17/17 Page 4 of 12 Pageid#: 436 5 an isolated racist remark not aimed at McCurdy nor any other employee is not in actionable in and of itself. See Jordan, 458 F.3d at 339-40. And McCurdy has provided no evidence that the logbook interfered with his work performance. At most, McCurdy made repeated inquiries to various DOC employees. Absent is any evidence of psychological stress that the racial epithet caused McCurdy. E.g., Knoskie v. Va. Dep’t of Corr., No. 2:16-cv-00019, 2017 U.S. Dist. LEXIS 22719, at *17 (W.D.Va. Feb. 17, 2017). Although the use of the word “n*****s” is undeniably “pure anathema” to the African- American community, Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001), Plaintiff ignores the importance of the status of the alleged harasser. The status of the alleged harasser is of the utmost importance to creating a triable hostile work environment issue on the basis of isolated racial epithets because only a supervisor has the ability to directly control an employee’s work environment. Boyer-Liberto, 786 F.3d at 280. Thus, when a supervisor personally directs a comment to a subordinate employee that may create a hostile work environment. Id. Here, Plaintiff has offered no such evidence. Even if another corrections officer made the comment, the fact that Plaintiff observed a racist comment made be a mere co-worker does not does not constitute actionable conduct. See Jordan, 458 F.3d at 339-40. This is especially true because Plaintiff has not proffered undisputed evidence that the comment was directed at him. Indeed, he only because aware of the logbook when Knoskie showed him the racial epithet. Pl. Ex. A, at 22:6. Thus, this incident cannot amount to a discriminatory change in the conditions of Plaintiff’s employment, and he cannot maintain a hostile work environment claim on the severity of the incident. The same rationale applies to the allegations that Miles suffered racial jokes and slurs. McCurdy fails to specify the time or frequency of any alleged comments, the content or nature of Case 2:16-cv-00017-JPJ-PMS Document 36 Filed 05/17/17 Page 5 of 12 Pageid#: 437 6 any alleged comments, and he has failed to identify any alleged harassers, much less their characteristics—e.g., a list of possible names, their race(s), gender(s), etc. And, the evidence, viewed in the light most favorable to DOC, is that McCurdy was not the target of any racial jokes or slurs. Rather, he was complaining solely on behalf of his nephew, Miles. Def. Ex. 22, at ¶5. Absent is any evidence that McCurdy was affected by the alleged harassment. That Miles felt that the harassment was significant enough to warrant taking short term disability is irrelevant because this Court must look at the evidence from “the plaintiff’s position.” Oncale, 523 U.S. at 81. Therefore, since McCurdy has not pled a hostile work environment of any kind, his motion for summary judgment must be denied. B. Plaintiff Has Failed to Establish that the Alleged Harassment Should Be Imputed to DOC because DOC’s Efforts to Investigate the Complaints Were Reasonably Calculated to End the Harassment. McCurdy’s claim for hostile work environment can survive only if he can produce evidence demonstrating that DOC “was negligent in controlling working conditions.” Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013). To avoid liability, the employer, after receiving notice of the harassment, must respond with “remedial action reasonably calculated to end the harassment.” E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008); see Mikels v. City of Durham, 183 F.3d 323, 332 (4th Cir. 1999) (“[E]mployers are liable only for their own negligence in failing, after actual or constructive knowledge, to take prompt and adequate action to stop [the harassment].”). An employer can be charged with “constructive knowledge of co- worker harassment when it fails to provide reasonable procedures for victims to register complaints.” Ocheltree v. Scollon Prods., 335 F.3d 325, 334 (4th Cir. 2003) (en banc). However, “an employer cannot be expected to correct harassment unless the employee makes a concerted effort to inform the employer that a problem exists.” Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 268 (4th Cir. 2001). Case 2:16-cv-00017-JPJ-PMS Document 36 Filed 05/17/17 Page 6 of 12 Pageid#: 438 7 1. Plaintiff’s Argument that DOC Waived a Faragher/Ellerth Defense is Misplaced because the Affirmative Defense Is Not Required Where the Alleged Perpetrator of the Harassment Is a Non-Supervisor. As an initial matter, McCurdy contends DOC should be prevented from asserting a Faragher/Ellerth defense because such a defense was not included in DOC’s Answer and Grounds for Defense. Plaintiff disingenuously argues (without citation to any relevant case law) that DOC’s defense that “Plaintiff failed to adequately report instances of racial harassment, animus, or hostility to his superiors,” Def. Answer, at 9, Dk. No. 15, is insufficient to alert McCurdy that DOC would allege that Plaintiff “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise[,]” Faragher, 524 U.S. at 807. Given that Plaintiff questioned Conley on DOC procedures for reporting harassment at her deposition, Def. Ex. 30, at 14:3, McCurdy cannot now claim that he was surprised by the defense. See Brinkley v. Harbour Rec. Club, 180 F.3d 598, 612 (4th Cir. 1999) (“Although it is indisputably the general rule that a party's failure to raise an affirmative defense in the appropriate pleading results in waiver, there is ample authority in this Circuit for the proposition that absent unfair surprise or prejudice to the plaintiff, a defendant's affirmative defense is not waived when it is first raised in a pre-trial dispositive motion[.]” (citations omitted)). In any event, the issue is moot because DOC need not assert a Faragher/Ellerth defense with respect to the logbook and Miles complaints. The Faragher/Ellerth defense may only be asserted where the harassment was perpetrated by a supervisor. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998). Here, the allegations of misconduct do not involve Warden Randall Mathena, who is the only individual who had supervisory authority at Red Onion. See Def. Ex. 35, at 1, 12; Def. Ex. 22, at ¶ 11. See generally, Reed v. Va. Dep’t of Corr., No. 7:13-cv- 00543, 2014 U.S. Dist. LEXIS 130751, at *11 n.3 (Sep. 16, 2014) (holding that the warden of Case 2:16-cv-00017-JPJ-PMS Document 36 Filed 05/17/17 Page 7 of 12 Pageid#: 439 8 Bland Correctional Center, a prison under Defendant’s supervision, “had the sole authority to formally discipline and terminate Reed”). Because the two incidents of harassment involve non- supervisors, DOC “may be liable if it knew or should have known about the harassment and failed to take effective action to stop it.” Ocheltree, 335 F.3d at 334. This negligence standard does not require DOC to invoke an affirmative defense, so Plaintiff’s contention is meritless. 2. DOC Conducted a Prompt, Good-Faith Investigation into the Complaint Regarding the Racial Epithet Written in the C2 Control Room Logbook. The undisputed evidence demonstrates that DOC took appropriate “remedial action reasonably calculated to end the harassment.” Sunbelt Rentals, Inc., 521 F.3d at 319. John McQueen investigated the complaint about racial slurs found in the C2 Control Room logbook, but was unable to determine who wrote the epithets. Def. Ex. 17. The expense of using formal handwriting analysis was too burdensome to determine the identity of the perpetrator. See Harris v. L&L Wings, Inc., 132 F.3d 978, 984 (4th Cir. 1997) (“A good faith investigation of alleged harassment may satisfy the ‘prompt and adequate’ response standard, even if the investigation turns up no evidence of harassment.”). “No evidence suggests that the investigation was a sham or that it was not intended to uncover the truth concerning the allegations of sexual harassment.” Reed, 2014 U.S. Dist. LEXIS 130751, at *13 (citation omitted). Undisputed evidence demonstrates that the logbook was removed from the C2 Control Room immediately upon Knoskie’s complaint in April 2013. Def. Ex. 1. See Knoskie v, 2017 U.S. Dist. LEXIS 22719, at *19 (noting that the allegation that the logbook was present nearly eleven months after Knoskie made her report was sufficient to allow her hostile work environment claim to survive a 12(b)(6) motion to dismiss). Plaintiff contends that these efforts were insufficient as a matter of law because Mathena did not inform Conley or Human Resources of the investigation when it began. Plaintiff further Case 2:16-cv-00017-JPJ-PMS Document 36 Filed 05/17/17 Page 8 of 12 Pageid#: 440 9 alleges that Mathena did not give McCurdy adequate notice of the results of the investigation. However, these facts are irrelevant to the analysis of whether the investigation was reasonably calculated to end the harassment. First, Plaintiff has identified no policy that requires the involvement of Human Resources whenever there is an investigation. Conley testified that it “was pretty common” for investigators to “investigate anything that the warden would tell him to investigate without going through [her.]” Pl. Ex. B, at 23. Conley’s involvement would only become required if the investigation had revealed the identity of the perpetrator and discipline would follow. Def. Ex. 36, at ¶ 5. Because the investigation did not reveal the identity of the perpetrator, there was nothing unusual about Conley not being involved in that investigation. And, DOC has produced evidence that Mathena did inform Marie Knoskie that McQueen was unable to determine the identity of the individual who wrote the racial epithet. Def. Ex. 1; Def. Ex. 21, at ¶ 5. Mathena took the few remedial steps he had available by removing the logbook from the C2 Control Room. Def. Ex. 1. That Knoskie did not see fit to inform McCurdy of what Mathena told her is irrelevant. McCurdy cannot fault DOC for failing to give him information that the agency itself had not been able to uncover. Finally, that DOC did not install cameras in the C2 Control Room after the logbook was initially discovered is irrelevant because the logbook was immediately removed from the area and secured. Def. Ex. 1; Def. Ex. 36, at ¶ 3. And, no other complaints were made subsequent to the investigation that involved the C2 Control Room. In other words, there was no need to change policy to “prevent such occurrences from taking place in the future” because no other incidents happened. For purposes of Title VII, the harassment ended with the investigation. 2. Conley Conducted a Prompt, Good-Faith Investigation into Allegations that Miles Was Subjected to Racial Slurs and Jokes Based on the Scant Information McCurdy Provided. Plaintiff alleges that Conley’s investigation into the allegations that Miles was subjected Case 2:16-cv-00017-JPJ-PMS Document 36 Filed 05/17/17 Page 9 of 12 Pageid#: 441 10 to racial jokes and slurs was deficient as a matter of law because she was unable to contact Miles to obtain further information regarding the alleged harassment. However, Conley’s inability to investigate further was the result of Miles and McCurdy withholding information from her that would have allowed her to investigate their concerns. DOC’s EEO Policy requires that complaints of harassment be in writing and reported to Human Resources. Def. Ex. 7, at 4-5. At most, McCurdy made vague complaints about slurs and jokes. Detailed information—including the name of the perpetrator, when the conduct occurred, and what precisely happened—is required if an employee is to make an oral complaint of harassment. Otherwise, DOC cannot take effective action to stop harassment if it does not know what it is supposed to investigate. Def. Ex. 22, at ¶ 4. Such threadbare complaints demonstrate that McCurdy failed to provide DOC “constructive knowledge of co-worker harassment . . . .” Ocheltree, 335 F.3d at 334. Conley attempted numerous times to contact Miles to no avail. Id. Because neither McCurdy nor Miles supplied Conley with the information she needed to investigate the complaint, her investigation stalled. Title VII does not allow a plaintiff to withhold information that would have enabled the employer to investigate his concerns and then allege that the employer failed to investigate his complaint. V. CONCLUSION Wherefore, the premises considered, Defendant asks for the denial of Plaintiff’s Motion for Summary Judgment, and all costs and attorneys’ fees that the District Court may allow. Respectfully submitted, VIRGINIA DEPARTMENT OF CORRECTIONS By: ____________/s/________________ Ryan Spreague Hardy Assistant Attorney General Case 2:16-cv-00017-JPJ-PMS Document 36 Filed 05/17/17 Page 10 of 12 Pageid#: 442 11 State Bar No. 78558 Counsel for Defendant Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 Telephone: (804) 786-0969 Fax: (804) 371-2087 E-mail: rhardy@oag.state.va.us Mark R. Herring Attorney General of Virginia Samuel Towell Deputy Attorney General Ryan Spreague Hardy* Assistant Attorney General Sydney E. Rab* Senior Assistant Attorney General 202 North Ninth Street Richmond, Virginia 23219 Phone: 804-786-1109 Fax: 804-786-0122 srab@oag.state.va.us *Counsel of Record for Defendant Case 2:16-cv-00017-JPJ-PMS Document 36 Filed 05/17/17 Page 11 of 12 Pageid#: 443 12 CERTIFICATE OF SERVICE I hereby certify that, on this 17th day of May, 2017, the foregoing BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT was filed electronically with the Clerk of Court using the CM/ECF system, which will send notification of such filing (NEF), to the following: Joshua Erlich, Esq. Davia Craumer, Esq. Katherine Herrmann, Esq. THE ERLICH LAW OFFICE, PLLC 2111 Wilson Blvd., Ste. 700 Arlington, VA 22201 Counsel for the Plaintiff By: ____________/s/_____________ Ryan Spreague Hardy Assistant Attorney General Virginia Bar Number: 78558 Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 Telephone: (804) 786-0969 Fax: (804) 371-2087 E-mail: rhardy@oag.state.va.us Case 2:16-cv-00017-JPJ-PMS Document 36 Filed 05/17/17 Page 12 of 12 Pageid#: 444 Page 1 of 15 I. PURPOSE This operating procedure establishes uniform guidance for the recruitment, selection, and appointment of Department of Corrections employees that ensures compliance with the Virginia Personnel Act, State and Federal mandates, and Department of Human Resources Management policies, while allowing flexibility to make decisions in selection that support the mission and vision of the department. (4-APPFS-3E-08) II. COMPLIANCE This operating procedure applies to all units operated by the Department of Corrections (DOC). Practices and procedures shall comply with applicable State and Federal laws and regulations, Board of Corrections policies and regulations, ACA standards, PREA standards, and DOC directives and operating procedures. III. DEFINITIONS Ability - A demonstrated competence to perform observable behavior, or a behavior that results in an observable product; ability denotes current competence in doing specific job content actions; it does not denote a person’s capability to acquire this competence, nor can it be inferred from years of experience. Those involved in the hiring process should take care not to confuse an ability, which is currently demonstrable, with an aptitude, which is the potential for acquiring an ability. Appointing Authority - The Organizational Unit Head or the next level of supervision above the Organizational Unit Head, if the Organizational Unit Head position is vacant; this is the person who must give final approval for the selection. This authority may be delegated down the chain of command to the immediate supervisor. Competitive Voluntary Transfer - Movement within the same role or to a different role in the same pay band as a result of a competitive process. Demotion - Movement to a different role in a lower pay band Department of Human Resource Management (DHRM) - The central human resource agency for Virginia state government Director’s Staff - Includes the Chief of Corrections Operations, the Deputy Director for Administration, and the Superintendent for Education Disability - An actual impairment that substantially limits one or more of the major activities of daily living (ADL) of an individual; or a record of such impairment; or being regarded as having such an impairment. Domestic Violence Conviction - Conviction of an act as defined in COV §38.2-508; the term "domestic violence" means the occurrence of one or more of the following acts by a current or former family member, household member as defined in COV §16.1-228, person against whom the victim obtained a protective order or caretaker: Operating Procedure Effective Date June 1, 2015 Amended 5/26/15, 11/9/15, 11/18/15, 3/10/16, 7/6/16, 3/10/17 Number 170.1 102.2 Operating Level Department Supersedes Operating Procedure 170.1 (8/1/13) Authority COV §2.2-1201, §38.2-508, §53.1-10 Subject RECRUITMENT, SELECTION, AND APPOINTMENT ACA/PREA Standards 4-4048, 4-4054, 4-4055, 4-4057, 4-4058; 4-ACRS-7B-04, 4-ACRS-7E-03, 4-ACRS-7E-06, 4-ACRS-7E-08; 4-APPFS-3D-19, 4-APPFS-3E-07, 4-APPFS-3E-08, 4-APPFS-3E-09; 2-CO-1C-01, 2-CO-1C-07, 2-CO-1C-09-1, 2-CO-1C-10, 2-CO-1C-13; 1-CTA-1C-01, 1-CTA-1C-04, 1-CTA-1C-05; §115.17, §115.217 Incarcerated Offender Access Yes No FOIA Exempt Yes No Attachments Yes No Office of Primary Responsibility Human Resources Director 35 Case 2:16-cv-00017-JPJ-PMS Document 36-1 Filed 05/17/17 Page 1 of 15 Pageid#: 445 Operating Procedure: 170.1 102.2 June 1, 2015 Page 2 of 15 Attempting to cause or causing or threatening another person physical harm, severe emotional distress, psychological trauma, rape or sexual assault Engaging in a course of conduct or repeatedly committing acts toward another person, including following the person without proper authority, under circumstances that place the person in reasonable fear of bodily injury or physical harm Subjecting another person to false imprisonment Attempting to cause or causing damage to property so as to intimidate or attempt to control the behavior of another person Eligible - Qualified to participate or to be chosen by having complied with or not violated specific requirements or precedent conditions, e.g., supplemental questions noted in the application process Employee Work Profile (EWP) - The form used to complete the annual performance evaluation that includes a brief work description, performance plan, core responsibilities, performance measures, and employee development goals Essential Functions - Activities or tasks that are qualified as integral to the position; performance of the function is the reason the job exists or is a primary component, the number of employees available to perform the function is limited, employees in the same role code perform the function, the function requires specialized skill or training, the function occupies a large percentage of time, and failure to perform the function may have serious consequences. Ex-Offender - For purposes of this operating procedure, a person who was convicted as an adult of a felony that was adjudicated in a Circuit Court (or equivalent in another state or federal jurisdiction) Hiring Manager - The immediate supervisor/manager responsible for the hiring process in their unit or for their team - designation of Hiring Manager status is determined by the Organizational Unit Head. Human Resources - Department of Corrections, Human Resources Office located at DOC Headquarters unless the context clearly indicates otherwise. Immediate Supervisor - The person who conducts the performance evaluation of the employee Job Related Criteria - The knowledge, skills, and abilities (KSAs) needed to perform the duties of the position; an applicant's related education, related experience both in quality and quantity, interview performance, references, performance evaluations, active disciplinary actions, commendations, and other similar documentation are utilized to determine if the applicant has the required KSAs. Knowledge - A body of information applied directly to the performance of a function; it usually is information of a factual or procedural nature which makes possible adequate performance of the work. Lateral Transfer - The transfer of an employee from one position to another position in the same pay band and sub-band; the work titles of the two positions do not have to be the same. (4-4058, 4-APPFS-3E-09, 1- CTA-1C-05) Minimum Knowledge, Skills, and Abilities - The critical components of a position’s qualification requirements that an applicant must have to perform the core responsibilities outlined in the Employee Work Profile. Misdemeanor Offender - A person who has been convicted of a misdemeanor in Virginia or any other jurisdiction Non-competitive Voluntary Transfer - Movement to another position in the same pay band and sub-band upon the employee’s request and without posting the vacancy Organizational Unit - A DOC operating unit, such as a correctional facility, regional office, probation and parole office, Virginia Correctional Enterprises (VCE), Academy for Staff Development, Corrections Construction Unit, Agribusiness Unit, or other separate operational unit Organizational Unit Head - The person occupying the highest position in a DOC organizational unit Preferred Knowledge, Skills, and Abilities - The specific components of a position’s qualification requirements that should positively affect the initial level of job performance if possessed by an applicant prior to coming into the position Case 2:16-cv-00017-JPJ-PMS Document 36-1 Filed 05/17/17 Page 2 of 15 Pageid#: 446 Operating Procedure: 170.1 102.2 June 1, 2015 Page 3 of 15 Recruitment Management System (RMS) - The automated personnel system that identifies and publicizes positions for which the Commonwealth is actively recruiting Selection Panel - A group of at least three but not more than five persons whom the appointing authority has requested to assist in the screening or interviewing of applicants for a position; selection panels are encouraged for all positions unless there is a limited number of applicants or due to the type of position Skill - A present, observable competence to perform a learned, psychomotor act; a skill embodies observable, quantifiable, and measurable rates of performance for a specific act. Sub-band - A tool used to manage salaries within a pay band; reflects a portion of an existing pay band that has a defined minimum and maximum salary within that pay band. Transfer - The movement of an employee from one position to another position in the same pay band; the positions do not have to be the same. Vacancy List - The DOC listing of job vacancies under active recruitment. IV. PROCEDURE A. Recruitment, Selection, and Appointment 1. The DOC makes employment decisions based on an individual’s merits, qualifications, eligibility, and suitability and specifically prohibits discrimination on the basis of race, sex (including sexual harassment, pregnancy, and marital status), color, national origin, religion, sexual orientation, gender identity, age, political affiliation, genetics, veteran status, or against otherwise qualified persons with disabilities except when age or sex is a bona fide occupational qualification (BFOQ). (4-4048, 4- 4057, 4-ACRS-7B-04, 4-APPFS-3E-09; 2-CO-1C-13; 1-CTA-1C-01, 1-CTA-1C-04) 2. The Department of Corrections Complies with Executive Order One (2014), Equal Opportunity. 3. Organizational Unit Heads, Human Resource Officers, and all employees in a supervisory capacity are responsible for the consistent application of this operating procedure. a. In order to ensure that the recruitment process is consistent, fair and transparent, Human Resource Officers must review all requisitions, establishment of interview panels, interview questions, and other related recruitment/selection materials. b. Human Resource Officers must maintain a recruitment file which contains but is not limited to the following information for a period of 3 years: i. Employee Work Profile (EWP) ii. Job Approval Email from DOC Recruitment iii. Job Posting from Recruitment Management System (RMS) iv. Completed Screening Sheet v. List of Applicants to be Interviewed with Date & Time vi. Signed and Dated Applications vii. Round One Applicant Interview Notes and Evaluation 102_F4 viii. Interview Panel Recommendations in Alphabetical Order ix. Round Two Applicant Interview Notes and Evaluation 102_F4 x. Applicant Flow Sheet (AFS) xi. Any additional Recruitment and Selection documentation (added 3/10/17) 4. The Department of Corrections is a strong advocate for the employment of ex-offenders for their successful re-entry and reintegration into society. a. The DOC supports and encourages other private and public employers by hiring ex-offenders. b. The DOC recognizes its responsibility to set an example for other employers to hire ex-offenders. c. The DOC will take steps to employ ex-offenders in wage and salaried positions as well as to consider them for volunteer and internship opportunities. B. Notification of Vacancies Case 2:16-cv-00017-JPJ-PMS Document 36-1 Filed 05/17/17 Page 3 of 15 Pageid#: 447 Operating Procedure: 170.1 102.2 June 1, 2015 Page 4 of 15 1. Executive management may establish procedures to review and approve requests to recruit or fill vacant positions for their area of responsibility prior to submission to Human Resources. 2. Organizational Unit Heads should request approval to recruit for a vacant position through their appropriate chain of command unless otherwise directed. The Organizational Unit Head should use the Notification of Vacancy 102_F3 or other approved form. The senior manager will submit or confirm submission of the approved NOV to Human Resources. 3. The Human Resources Director in consultation with the appropriate member of the Director’s Staff will grant final approval for all vacant positions to be posted and filled. 4. The DOC may occasionally be required to comply with additional reviews to obtain approval before a vacancy is posted, before interviews are scheduled or before written employment offers are made. a. These requirements may be imposed by the Director, the Secretary of Public Safety, or the Governor's Office. b. The Director, Deputy Director of Administration, Chief of Corrections Operations, and or Human Resources Director will issue written instructions to Organizational Unit Heads if additional approvals or reviews are required. C. Review of Duties, Qualifications, and Essential Functions of Vacant Positions (4-4048; 4-ACRS-7E-08; 1-CTA-1C-01) 1. Duties - When a vacancy occurs, the Organizational Unit Head or designee should determine whether a generic Employee Work Profile (EWP) template exists for the vacant position. A EWP template must be utilized if one exists. a. If no generic EWP template exists for the vacant position, the Organizational Unit Head or designee should review the duties of the position as indicated on the most recent (EWP) to ensure that the duties are correct and current. b. If a EWP does not exist, or is not current, the Organization Unit Head or designee should work with the Human Resource Officer to develop or revise the EWP prior to the position being posted. If assistance is needed with this process, the Compensation Unit at Headquarters should be contacted. c. If the duties of the position have changed or are intended to change, new core responsibilities and measures will be developed. The position should be reviewed to confirm the correct assignment of the role title and working title, this review should be coordinated with the Compensation Unit at Headquarters. d. If the EWP reflects the current duties of the position, the recruiting process may be initiated. 2. Qualifications - The Organizational Unit Head or designee should determine the minimum Knowledge, Skills, and Abilities (KSAs) necessary to perform the duties of the vacant position. Qualification requirements identified for recruiting or selection purposes must be job-related and based on the EWP for the vacant position. These qualifications should be reviewed by Human Resources prior to the posting of the vacancy. At this time: a. Minimum KSAs should be identified that are required for the employee to satisfactorily perform the job duties. Minimum KSAs must not include those that can be routinely learned during a reasonable period on the job. b. Preferred KSAs should also be identified that are clearly related to the duties of the position. Preferred KSAs must not include those that can routinely be learned during a reasonable period on the job. c. Experience - Both quality, as well as length of experience should be key factors in qualifications and employment decisions. Specific years of experience, such as two years or four years, will not be used for purposes of job posting or selection. Applicable or related experience may be required or, in some instances, preferred. (2-CO-1C-07) d. Education - Requirements should not be so absolutely stated or used as to preclude consideration Case 2:16-cv-00017-JPJ-PMS Document 36-1 Filed 05/17/17 Page 4 of 15 Pageid#: 448 Operating Procedure: 170.1 102.2 June 1, 2015 Page 5 of 15 of applicants who possess equivalent or sufficient applicable experience or training that would reasonably predict an applicant's ability to perform the job satisfactorily. (4-4057, 4-ACRS-7B- 04; 2-CO-1C-07; 1-CTA-1C-04) Education may be reflected as a minimum requirement only if it is required by a specific certifying body, regulation, or law. e. Qualifications listed in the job posting must be written and consistent with those in the EWP. 3. Essential Functions - Prior to posting or recruiting for a vacancy, the Organizational Unit Head or designee should confirm or identify the essential functions of the position. 4. Position Review - The recruitment process may commence as soon as current core responsibilities and measures have been identified, the role title and working title confirmed, the minimum and if appropriate preferred qualifications are identified, and the essential functions are identified. 5. Human Resources or the Human Resource Officer, should identify the screening criteria prior to the position being posted. 6. Supplemental Questions a. Prior to recruiting for a vacancy, the Organizational Unit Head in consultation with Human Resources or Human Resource Officer should establish questions that may screen an individual for the position and can be utilized in the Recruitment Management System (RMS). b. These questions should be based on essential functions and KSAs as established in the EWP. c. Additional questions may be added as necessary by law, statute, or regulation to further determine applicants’ eligibility for hiring or promotion.(e.g., PREA) 7. Postings will be made using standard “job or role” templates. a. Changes to these templates to indicate unique aspects of a position can be made by Recruitment Staff at Headquarters. b. Additional information may be added to the template by the Human Resource Officer only if another duty or KSA is needed to perform that specific job. c. The Human Resource Officer should notify Recruitment Staff at Headquarters if any aspect of the template is altered or added. 8. Eligibility a. The DOC shall not hire or promote anyone for a position that may have offender contact who has been: (§115.17[a], §115.217[a]) i. Engaged in sexual abuse in a prison, jail, lockup, community confinement facility, juvenile facility, or other institution (as defined in 42 U.S.C. 1997); ii. Convicted of engaging or attempting to engage in sexual activity in the community facilitated by force, overt or implied threats of force, or coercion, or if the victim did not consent or was unable to consent or refuse; or iii. Civilly or administratively adjudicated to have engaged in sexual activity in the community facilitated by force, overt or implied threats of force, or coercion, or if the victim did not consent or was unable to consent or refuse b. The DOC shall consider any incidents of sexual harassment in determining whether to hire or promote anyone who may have contact with incarcerated offenders (§115.17[b], §115.217[b]) c. The DOC must ask all applicants and employees who may have contact with offenders directly about previous misconduct described in paragraph a., of this section in written applications or interviews for hiring or promotions. (§115.17[f], §115.217[f]) D. Filling Vacancies through Administrative or Non-Competitive Processes - Positions may be filled on a non-competitive basis through an administrative process, management initiated process, or an employee initiated process. 1. Administrative Placement - This determination will be made by the Human Resources Director or designee in consultation, if needed, with the appropriate senior manager. Case 2:16-cv-00017-JPJ-PMS Document 36-1 Filed 05/17/17 Page 5 of 15 Pageid#: 449 Operating Procedure: 170.1 102.2 June 1, 2015 Page 6 of 15 a. Within the DOC for placement in lieu of layoff or for recall from layoff b. By demotion or transfer for disciplinary or performance reasons 2. Management Initiated Placement - This determination will be made by the appropriate member of the Executive Team, in consultation with the Human Resources Director or designee, based on DOC operational needs necessitated by a non-competitive transfer: a. Employees going from one position to another where the job title is the same b. Transferring employees to a position in the same band based on DOC operational needs 3. Employee Initiated Cases - This determination is made by the Organizational Unit Head in consultation with the appropriate Regional Operations Chief or Regional Administrator or Executive Team member when a position that otherwise would be filled on a competitive basis has been requested by a current employee. a. Employees transferring to a position in the same or to a lower sub-band in the same band or to a lower band as a result of the employee’s request b. Employee initiated case request and review process: i. An employee who desires to transfer within the same band in the same or lower sub-band or voluntarily demote to a position in the same or another organizational unit must make a written request to that Organizational Unit Head and should copy their own Organizational Unit Head. This may be done at any time but must have been submitted prior to the position being posted. ii. The Organizational Unit Head may fill the vacant position by accepting the written request for transfer or voluntary demotion in consultation with the Human Resources Officer. The compensation must be approved in accordance with Operating Procedure 120.1 102.4, Compensation, prior to offering the position. If more than one lateral transfer/demotion request is received, the Organizational Unit Head or designee should interview the candidates interested in transferring to determine the employee best suited for the position. iii. The Organizational Unit Head has discretion to accept or reject requests for transfer or voluntary demotion and may post a vacant position without regard to written requests for transfer. If the position is posted, those requesting transfer must submit an application through RMS by the deadline to be considered in the competitive process. iv. The Organizational Unit Head from which the employee is transferring should not refuse to allow the employee to transfer to another organizational unit or delay the date for the transfer without concurrence from the receiving Organizational Unit Head. If a transfer delay is necessary, 45 days should normally be the time limit. Exceptions should be discussed with the appropriate Regional Administrator. v. The appropriate Regional Administrator or senior manager may disapprove or delay an intra- divisional transfer or demotion based upon Agency need. vi. Corrections Officers may not transfer, to include a transfer through the competitive process, during the first 2 years of employment unless an exception for hardship is approved by the Regional Administrator or both Regional Administrators if the transfer request is across regions. vii. The Director may disapprove any transfer or demotion. E. Posting and Recruitment 1. Determining Recruitment Options - Organizational Unit Heads should consider the recruitment option that best fits their needs before posting a vacancy. The decision should be based on factors such as the diversity of the unit’s workforce and the availability of qualified applicants. One of these three options must be used when conducting recruitment: a. Agency Internal Recruitment - Only current DOC employees (i.e., classified, restricted, wage, and excepted) may apply. These positions are initially posted for at least 5 business days. b. State Employees Only - Only current employees of the Commonwealth of Virginia (i.e., Case 2:16-cv-00017-JPJ-PMS Document 3 -1 Filed 05/17/17 Page 6 of 15 Pageid#: 450 Operating Procedure: 170.1 102.2 June 1, 2015 Page 7 of 15 classified, restricted, wage, and excepted state employees) may apply. These positions are posted initially for at least 5 business days. c. General Public - All state employees and the general public may apply. 2. If initial recruitment does not result in an acceptable applicant pool, recruitment can be continued as necessary. Re-posting may proceed after consultation with the appropriate Human Resources designee. 3. Vacancy postings cannot be changed once published without Human Resources Director or designee approval. 4. Recruitment a. Human Resources staff will key their vacancies into the RMS for all positions except for positions in pay band 5/sub-band 14 and above. Headquarters’ Recruitment Staff will key all other vacancies in to the RMS. b. Vacant classified positions that are to be filled on a competitive basis will be listed in the Recruitment Management System (RMS) and will reflect the recruitment option chosen except as noted below: (4-APPFS-3D-19) i. A position with the same role/work title, duties, and functions within the same organizational unit and geographical area/location becomes vacant or funded during the recruitment period or within ninety calendar days of the original position’s closing date. ii. An applicant pool for a Corrections Officer or Probation Officer within the same organizational unit and geographic area/location can be utilized for 180 days of the original position’s closing date. (added 11/18/15) iii. Organizational Unit Heads have the option to post the new vacancy in RMS or use the applicant pool from the original recruitment. 5. Time Requirements - Announcements for all positions must be listed in the RMS for a minimum of five consecutive business days, not counting Saturdays, Sundays, and holidays. 6. Paid Advertising - Consideration to available labor pools should be given prior to deciding on paid advertising. a. Executive Team members in consultation with the Human Resources Director will determine use of paid advertising. b. Organizational units may place ads in consultation with Human Resources. The organizational unit will be responsible for the cost of ads and for placing their own advertisements in newspapers and electronic media consistent with the information listed in the RMS job posting for that position. Posting periods must be consistent with closing dates listed in the job posting. Human Resources is available to provide assistance for external advertisements. 7. Re-posting a. An organizational unit may re-post a vacant position if additional qualified applicants are desired. b. A position must be re-posted or the closing date extended if the initial job posting did not produce three qualified applicants, unless an exception to re-post is approved by the Human Resources Director or designee. c. Re-posted positions must be listed for a minimum of five consecutive business days. 8. “Open Until Filled” Postings a. “Open until filled” postings are used for certain recruitment situations without the restriction of closing dates with the approval of the Human Resources Director or designee. The posting period must last at least five business days. b. Organizational units with roles approved for “open until filled” status must ensure that equal employment opportunity efforts are maintained in the attempt to achieve agency EEO objectives. c. Human Resources staff must consider all applications received up to a determined date when filling a vacancy from an “open until filled” pool. Case 2:16-cv-00017-JPJ-PMS Document 36-1 Filed 05/17/17 Page 7 of 15 Pageid#: 451 Operating Procedure: 170.1 102.2 June 1, 2015 Page 8 of 15 F. Applications 1. Only electronic employment applications submitted using RMS by the deadline will be considered in the competitive process. 2. Organizational Units will process employment applications for positions below band 5/ sub-band 14 (unless agreement to process has been made with Recruitment Staff at Headquarters) a. Correctional field unit employment applications will be processed by their designated major institution. b. It is the responsibility of the applicant to submit a separate employment application using RMS for each position posting. 3. For applicants with disabilities, appropriate accommodations will be made to allow them to participate in the application process (i.e. to complete application and to be interviewed, if referred). Such persons should be directed to receive assistance from the Human Resources Officer at the organizational unit where they are seeking employment or from Human Resources. (4-4054, 4- ACRS-7E-03; 2-CO-1C-09-1) 4. For screening purposes, the application is the sole instrument used to assess education and experience qualifications. Therefore, the applicant should present a full and complete employment application. a. A fully completed application is one with all questions answered, previous positions and duties listed, with no gaps in employment or personal history. b. The Human Resources Director or designee may approve use of supplemental application documents, including resumes, for specific vacancies in addition to but not to replace the employment application. This approval should be made in advance of and stated in the job posting itself. 5. If a vacant position is re-posted prior to interviews, all applications for both posting periods will be considered so long as there is no change in the job duties or qualifications. a. If such changes are made, applicants who responded to the original posting must be notified that they must re-apply to be considered. b. If a position is re-posted following interviews, applicants from the previous posting may be considered or may be required to reapply. G. Screening and Referral by Human Resources 1. Screening is based on duties, requirements, and qualifications as stated in the vacancy posting. a. Screening criteria is established prior to posting. b. In addition to minimum qualifications, preferred qualifications may be considered. c. No one should attempt to influence the screening of applicant pools. 2. Organizational Unit Heads or their designees may be involved in the screening process with Human Resources. 3. Documentation of applicant screening must clearly identify the screening process used and must be maintained for three years from the closing date. 4. Human Resources will be responsible for updating RMS to reflect the appropriate status of each applicant status throughout the Recruitment process. 5. Any questions regarding screening of pools should be directed to the Human Resources Director or designee. 6. All referred applicants must be interviewed unless an exception is approved by the Human Resources Director or designee. With approval, applicants may be rejected based on the following: a. Not attending multiple, scheduled interviews without advance notice b. Documented derogatory information Case 2:16-cv-00017-JPJ-PMS Document 36-1 Filed 05/17/17 Page 8 of 15 Pageid#: 452 Operating Procedure: 170.1 102.2 June 1, 2015 Page 9 of 15 c. Poor performance in previous interviews d. In excessively large interview pools, interviews may be limited to a subset of the applicants referred where a clear distinction in the applicant pool is evident and documented. 7. Once employment applications are screened and referred, the Organizational Unit Head should make a timely hiring decision. In normal circumstances, the DOC is expected to fill vacant positions within 50 days of the position’s closing date. H. Organizational Unit Screening 1. Screening is based on duties, requirements, and qualifications as stated in the vacancy posting. a. In addition to minimum qualifications, preferred qualifications may be considered. b. Human Resource Officers or designee will screen jobs for their organizational unit. c. No one should attempt to influence the screening of applicant pools. 2. Organizational Unit Heads or their designees may be involved in the screening process with the Human Resources Officer. 3. Documentation of applicant screening must be maintained for three years from the closing date and must clearly identify the screening process used. 4. The Human Resources Officer will be responsible for updating RMS to reflect the appropriate status of each applicant status throughout the Recruitment process. 5. Any questions regarding screening of pools should be directed to the Human Resource Officer. I. Veterans’ Preference During the initial screening, veteran status should be noted on the screening sheet. Preference shall be given by treating veteran status as a preferred qualification. Further preference shall be given if the veteran applicant also has a service-connected disability rating by treating the veteran’s disabled status as a second preferred qualification. J. Interviewing - All interviews should be focused on job and organization relevant knowledge, skills, abilities and competencies. 1. The appointing authority may delegate the interviewing responsibility to someone in the same or higher level as the position being filled. 2. Video or telephonic interviews may be used for initial interviews if approved by the appointing authority if arrangements are made with candidates in advance of their scheduled interviews. 3. No final offer of employment will be made without a face-to-face interview at some point in the selection process. This may take place during a final interview conducted by the appointing authority. 4. All interview questions, notes, and evaluation forms must be kept for three years. 5. Hiring authorities are not required to interview applicants who are not available at the time of the scheduled interview. 6. At least three candidates must be interviewed for a vacant position unless an exception is approved by the Human Resources Director or designee. 7. A standard set of interview questions must be developed for the interviews. a. DOC Human Resources or a Human Resources Officer should review all interview questions prior to the interview. b. All candidates will be asked the same questions. i. Interview questions should seek information concerning the applicant's ability to perform the essential functions of the job as outlined in the posting on RMS. ii. Interview questions should be phrased in a manner to determine the applicant's ability to Case 2:16-cv-00017-JPJ-PMS Document 36-1 Filed 05/17/17 Page 9 of 15 Pageid#: 453 Operating Procedure: 170.1 102.2 June 1, 2015 Page 10 of 15 perform the essential functions of the position and to demonstrate needed competencies or suitability for the position. iii. Interview questions must be job-related as outlined in the posting on RMS and cannot violate EEO guidelines or state policy and procedure. c. Additional job-related questions of a single candidate may be asked in response to the applicant’s answers, statements, and questions; or to clarify information on the application. 8. Testing may be used as one factor (along with references, related experience, education, and specialized KSAs) to determine the candidate best suited for the position. If tests are administered, they must be approved in advance by the Human Resources Director or designee prior to use and the following conditions apply: a. A standard format must be used for all applicants. Work exercises (i.e. demonstrating skills in PC functions, appropriate techniques for lifting objects, etc.) are also acceptable. b. All applicants referred for a final interview for a position must be administered the same test or work exercise(s) if one is used. c. The test location environment must be the same for all applicants. d. Test administrators may be required to complete special training in order to consistently and fairly administer certain tests. 9. The DOC Applicant Evaluation 102_F4 must be used for all interviews. The form should document the reason for the assessment. The Evaluation will be used as a guide and not as the final assessment device to select the recommended or final candidate(s). 10. The Hiring Manager must report required information concerning applicants interviewed to the facility Human Resource Office or Recruitment Staff in order to capture the necessary information that the DOC is required to enter into RMS. 11. Interviews will normally be conducted for most positions by a selection panel chosen by the appointing authority. If a selection panel is not utilized, prior written approval by the Human Resources Director must be received. 12. The following positions are exempt from the selection panel requirement: a. Any wage position b. Commissary Clerk c. Corrections Officer d. Dental Assistant e. Dental Hygienist f. Food Production Worker g. Food Production Worker Senior h. Grounds Lead Worker i. Institutional Chauffeur j. Nursing Assistant k. Office Services Assistant l. Physician m. Physician Assistant n. Postal Aide o. Postal Assistant p. Psychiatrist q. Registered Nurse r. Surveillance Officer s. Corrections Nurse Technician t. Psychologist Associate u. Dentist v. Carpenter w. Driver x. Electrician y. Equipment Repair Technician z. Farm Supervisor aa. Corrections Food Service Supervisor bb. Housekeeping Worker cc. Laboratory Technician Services dd. Laundry Manager ee. Locksmith Senior ff. Payroll Technician gg. Storekeeper Senior hh. Tractor Trailer Driver ii. Treatment Plant Operator jj. Welder Senior Case 2:16-cv-00017-JPJ-PMS Document 36-1 Filed 05/17/17 Page 10 of 15 Pageid#: 454 Page 11 of 15 13. Selection Panel Interviews a. Panels should be composed generally of at least three, but not more than five, members selected by the appointing authority or designee. b. All members must have knowledge of at least one important aspect of the responsibilities of the position being filled. c. Employees who are members of the panel must be of the same or higher level as the vacancy. An exception may be granted for positions of a technical nature by the Human Resources Director or designee. Panel members may not be subordinates of the position being filled. d. The chairperson, if an employee of the DOC, must be in the same or higher level as the position being filled. e. The appointing authority, immediate supervisor, or anyone in the direct line of supervision will not be members of the panel. f. Concerted efforts should be made to have members of protected classes on selection panels and efforts should be made to include panel members from other units or divisions. g. An employee serving on a selection panel should have completed Lawful Interviewing Training (and/or refresher) or equivalent approved by Human Resources or receives written approval from the Human Resources Director. h. It is the responsibility of the selection panel to interview the applicants referred. i. A standard set of questions to ask each candidate must be developed by the appointing authority, Human Resources Officer, or the panel. i. These questions may come from the interview question bank established by Human Resources. ii. The questions should be reviewed in advance by the appointing authority and Human Resources Officer. j. After the interview process, the panel should provide a written recommendation in alphabetical order of three applicants or less to the appointing authority. There may be exceptional cases when it is appropriate to recommend a fourth applicant due to the competitiveness of the process (e.g., large applicant pool and/or difficulty in selecting among highly qualified candidates). k. If the panel cannot recommend any applicants, then the position must be re-posted or filled through another option that is approved by the Human Resources Director or designee. l. The chairperson of the selection panel will be responsible for returning all records and material of the selection panel to the appointing authority. This includes all applications, resumes, supporting documents, interview notes, Evaluation forms, and other materials used by any panel member during the interview or deliberation. m. The appointing authority or designee, upon receiving the recommended names, will interview all of the recommended candidates and make a decision either to select one of the recommended candidates or not to proceed with that applicant pool. The appointing authority may wish to utilize a second panel for the finalist interview and accept their recommendation. n. Human Resources Officers must update RMS indicating the applicants interviewed and the person selected for the position. 14. Appointing Authority or Designee Interview a. Appointing Authority or Designee interviews may be appropriate based on the number of applicants or the type of position and may be utilized after receipt of written approval from the Human Resources Director. b. The appointing authority or designee may include other supervisors of the position or other knowledgeable staff when conducting the interview. c. It is the responsibility of the appointing authority or designee to interview the applicants referred. d. A standard set of questions to ask each candidate must be developed by the appointing authority or the Human Resources Officer. The Human Resources Officer should review the interview questions to be used prior to the interviews being conducted. Case 2:16-cv-00017-JPJ-PMS Document 36-1 Filed 05/17/17 Page 11 of 15 Pageid#: 455 Page 12 of 15 e. The Human Resources office must update RMS indicating the applicants interviewed and the person selected for the position. K. Appointment to Positions 1. Pre-employment Agility Tests (PEAT) for Corrections Officers are part of the selection process and should take place prior to the interview. (4-4048) (deleted 7/6/16) 2. The appointing authority or designee must make the final decision based on the eligibility, interviews, related education and experience, related KSAs, panel recommendation (if applicable), references, and, if available for DOC employees, performance evaluations, active disciplinary actions, and recommendations. Normally, the position should be offered within 50 days of the position’s closing date. 3. Background investigations must be completed for all potential employees applicants recommended for hire (finalists) in accordance with Operating Procedure 101.8 102.3, Background Investigation Program. a. The Organizational Unit Head should review the Background Investigation Questionnaire (BIQ) 102_F2 and VCIN report for information that would require further inquiry including but not limited to the following: gang affiliation, criminal convictions, offender visitation, driving convictions, tattoos etc. This information and potential impact of selection should be evaluated on a case by case basis in consultation with Human Resources and appropriate Regional Operations Chief. (added 5/26/15) b. Once the Organizational Unit Head reviews and approves the information from the BIQ and VCIN, a conditional offer of employment may be made. (added 5/26/15) c. Employees who are selected for transfer, promotion or for advancement to a higher position in a pay band will be subject to a criminal records check. Transfer or promotion may be denied based on information obtained during this records check. d. A conditional offer of employment may be extended prior to receiving the results of the full and complete background investigation. The conditional offer is a bona fide offer of employment, contingent upon approval of the full and complete background. 4. Drug tests are required on all potential new hires or rehires. A conditional offer of employment may be extended prior to receiving the drug test results. The conditional offer is a bona fide offer of employment, contingent upon the employee’s negative drug test. 5. Employment physicals, for those positions requiring physicals as part of the selection process, must be given to all potential employees and may only be done after a conditional offer of employment is extended. The conditional offer is a bona fide offer of employment, contingent upon the employee’s ability to perform the essential functions of the job. 6. Human Resources Officers must update RMS indicating the applicants interviewed and the person selected for the position. 7. Appropriate communications should be made to those interviewed but not selected. Internal candidates should be notified verbally. All other candidates should be notified utilizing RMS. 8. Approvals a. The appropriate member of the Director’s staff will approve the appointment of all Organizational Unit Heads, Regional Managers, and Regional Administrators. b. The appropriate Regional Operations Chief or other member of the DOC senior management must approve all appointments to the following positions: Corrections Major, Assistant Warden, Institutional Program Manager, Operations Manager, and Deputy Chief Probation and Parole Officer. c. The appropriate Regional Administrator or other member of the DOC senior management must approve the appointment of an applicant who was previously employed by the DOC. For educational professional staff, the Superintendent for Education will be consulted by the appropriate regional staff. Case 2:16-cv-00017-JPJ-PMS Document 36-1 Filed 05/17/17 Page 12 of 15 Pageid#: 456 Page 13 of 15 d. The Facility Unit Head must conduct a face to face interview with Corrections Officer applicants who are under 21 years old before appointment an employment offer can be made. ( added 11/9/15) e. Additional approvals for appointment to other positions include: i. Manager of the Financial Management and Reporting Unit must approve Business Managers ii. Human Resources Director must approve Human Resources Officers iii. Mental Health Director must approve Psychologists Seniors iv. Dental Director must approve Dentists v. Medical Director must approve Doctors vi. Superintendent of Education must approve Teachers 9. Retired employees, reemployed as wage employees, must be off the Commonwealth’s payroll for at least 30 days 13 weeks after separation. (changed 3/10/17) a. There can be no pre-determined agreement or date for a retired employee to return to part-time employment, nor can an employee have the exact duties or work hours assigned before retirement. b. The exact duties restriction can be alleviated by reducing the number of hours the employee works by 20%. This means that if the employee is working in a wage position and works 1500 hours or less over a one year period, even performing the same duties, the employee is not doing the same duties because the number of hours has been reduced. L. Employment of Ex-Offenders 1. It is the policy of the DOC to support and encourage all other employers to hire eligible, qualified ex-offenders, and to set an example by hiring ex-offenders for any non-sensitive positions for which they are among the best suited applicants. (4-4055, 4-ACRS-7E-06, 4-APPFS-3E-07; 2-CO-1C-10) (Title VII of the Civil Rights Act, 1964, prohibits discrimination or elimination of applicants by reason of past criminal behavior alone, and requires each employer to evaluate each applicant and the applicant's past record against the job to be performed.) a. Ex-offenders will have to go through the normal employment process to be considered for salaried positions. b. Employment can be denied to any person whose past conviction is either recent or related to the type of position for which the person is applying. c. See the Eligibility section of this operating procedure for limitations relating to employees who may have contact with incarcerated offenders. 2. DOC strategies for hiring ex-offenders: a. Each Unit Head will evaluate salaried, wage, volunteer, and internship opportunities that may exist within that unit. The list of positions that may be offered to ex-offenders will be forwarded to the Regional Operations Chief for field positions or the appropriate Deputy Director for Central Office positions. b. Each Unit Head and Region will evaluate potential candidates who are ex-offenders and may encourage employees to suggest ex-offenders who they have supervised for consideration. 3. Employment offers to any ex-offender or persons with misdemeanor convictions for any field position require prior approval from the appropriate Regional Operations Chief and notification to the Chief of Corrections Operations. Employment offers for Central Office positions require the prior approval of Director, Chief of Corrections Operations, or Deputy Director of Administration. This management authority must make each hiring decision on a case-by-case basis, taking into consideration the following factors: a. Nature of the offense in relation to the duties of the position including eligibility for employment based on criminal convictions or adjudications while incarcerated b. Length of time since conviction, and indicators of stability and reliability c. Relationship of position to the security of persons committed to DOC care d. Relationship of the ex-offender to other offenders with whom the ex-offender might have contact during work Case 2:16-cv-00017-JPJ-PMS Document 36-1 Filed 05/17/17 Page 13 of 15 Pageid#: 457 Page 14 of 15 e. Relationship of the ex-offender to employees by whom the ex-offender may have been supervised while in the care of the DOC f. Behavior of the ex-offender toward the DOC during any period of incarceration g. Confidential and sensitive records and information to which the ex-offender may have access if employed h. Potential results if an ex-offender commits another crime or takes advantage of his/her position, while employed by the DOC i. Restrictions or conditions imposed on the ex-offender that would interfere with proper performance of duty (e.g., restrictions on carrying firearms) j. Is the offender currently on supervision? Employment of offenders currently on supervision must be approved by the Chief of Corrections Operations and the Deputy Director of Administration. 4. After receiving approval from the appropriate management authority, the Unit Head and Human Resource Officer must conduct a face to face interview with applicants who are ex-offenders before an employment offer can be made. (added 11/9/15) M. Notification of Applicants 1. The Hiring Manager must report required information concerning applicants interviewed to the facility’s Human Resources Officer or Human Resources to be entered into RMS. This includes consideration of final candidates and the candidate selected to fill the position. The final RMS entry concerning the status of all applicants represents written notification to the applicants. Applicants who are not selected should be informed verbally (if internal) or through RMS (if external) before the announcement is made as to who was selected. 2. Offer-of-Employment Letters a. Employment offers should be made in writing and follow the guidelines outlined by DOC and DHRM policies and procedures. b. Classified state employees are not employed by contracts either expressed or implied but employed pursuant to the Code of Virginia and applicable personnel policies and regulations. i. Letters offering employment should therefore avoid implying a contract or guarantee of employment for a particular period of time. ii. Salary must be listed as a pay period amount figure which may then be converted to an annual salary. iii. Employees hired into restricted positions must be informed of the status of the position. c. A statement explaining the probationary period must be included in all offer letters for individuals entering the classified system. d. For those persons in positions exempted from the DHRM policies and procedures under COV §2.2-2905, units must include in offer letters a statement reiterating the statutory provision that such persons shall serve at the will and pleasure of the Director of the Agency. e. No employment offer or salary offer should be made orally or in writing until written approval has been received from the Human Resources Compensation Unit. This may include authority to fill a vacant position as required in the Notification of Vacancies Section of this operating procedure and determination of starting pay level if the salary requested is above the minimum of the salary range stated in the RMS vacancy posting. (see Operating Procedure 120.1 102.4, Compensation) f. If the offer of employment is conditional, the offer letter must identify the condition(s) to be met by the employee. g. If candidates accept the position and agree to the terms of employment they must sign and date a letter of offer that is a binding agreement. N. The Human Resource Director may grant waivers to the provisions of this operating procedure as necessary for agency business needs. (added 3/10/17) O. Voiding the Selection Process Case 2:16-cv-00017-JPJ-PMS Document 36-1 Filed 05/17/17 Page 14 of 15 Pageid#: 458 Page 15 of 15 1. Prior to the position being offered, the incumbent or former incumbent may request to withdraw his/her resignation, provided it is within thirty days of the separation. 2. The Organizational Unit Head may either deny the request for withdrawal or grant the request for withdrawal. 3. If the request for withdrawal is granted, the selection process shall be voided at its current stage and all candidates will be informed. P. Record Keeping and Documentation - It is the responsibility of the appointing authority to maintain all selection process records for the organizational unit for a period of three years from the closing date of the posting in RMS. 1. Records involved with any lawsuit or discrimination complaint shall be maintained until final disposition is received, including the exhaustion of all appeals. This includes: a copy of the EWP, copies of the posting and any advertisement for the position, a list of applicants, all employment applications, minimum and preferred qualifications, screening criteria and results, list of applicants interviewed including EEO data listing sex and race data for each applicant or a notation of “unknown” if the information is not available, questions asked in interview, interview Applicant Evaluations and notes, all background material considered, and all other material which influenced the selection decision. 2. Recruitment and selection records may be purged in accordance with written guidelines established by the Library of Virginia. 3. For units that are served by the Headquarters Human Resource Unit, a Personnel Action Transmittal 102_F5 shall be completed with all required attachments for each change in employment status. This form is not required in DOC institutions. V. REFERENCES Americans with Disabilities Act of 1990 Department of Human Resource Management (DHRM), Policy 2.10, Hiring Equal Employment Opportunity Act of 1972 Executive Order Number One (2014) Equal Opportunity Operating Procedure 101.8 102.3, Background Investigation Program Operating Procedure 120.1 102.4, Compensation Rehabilitation Act of 1973 (Sections 503 and 504) Title VII of the Civil Rights Act of 1964 VI. FORM CITATIONS Background Investigation Questionnaire (BIQ) 102_F2 (revised) Notification of Vacancy 102_F3 Applicant Evaluation 102_F4 Personnel Action Transmittal 102_F5 VII. REVIEW DATE The office of primary responsibility shall review this operating procedure annually and re-write it no later than three years from the effective date. Signature Copy on File 4/22/15 N. H. Scott, Deputy Director of Administration Date Case 2:16-cv-00017-JPJ-PMS Document 36-1 Filed 05/17/17 Page 15 of 15 Pageid#: 459 36 Case 2:16-cv-00017-JPJ-PMS Document 36-2 Filed 05/17/17 Page 1 of 2 Pageid#: 460 Case 2:16-cv-00017-JPJ-PMS Document 36-2 Filed 05/17/17 Page 2 of 2 Pageid#: 461