Issue: Arbitrary or Capricious Performance Evaluation; Hearing Date: March 7, 2001; Decision Date: March 9, 2001; Agency: Virginia Department of Transportation; AHO: Carl Wilson Schmidt, Esq.; Case No. 5138

In the matter of Virginia Department of Transportation’s Case No. 5138

Hearing Date: March 7, 2001
Decision Issued: March 9, 2001

Grievant received an evaluation on November 13, 2000. On November 29, 2000, Grievant timely filed a grievance to challenge the evaluation. The outcome of the Third Resolution Step was not satisfactory to the Grievant and he requested a hearing. On February 7, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On March 7, 2001, a hearing was held at the Agency’s regional office.

Grievant
Agency Representative
Supervisor
Manager

Whether Grievant's November 2000 evaluation is arbitrary or capricious.

The burden of proof is on the Grievant to show by a preponderance of the evidence that his evaluation is arbitrary or capricious. Grievance Procedure Manual ("GPM") §§ 4.1(b)(3), 5.8. A preponderance of the evidence is evidence which shows that what is sought to be proved is more probable than not. GPM § 9.

After reviewing the evidence presented and observing the demeanor of each witness, the Hearing Officer makes the following findings of fact:

Grievant has been employed by the Agency for over 30 years. He is approximately 71 years old. Grievant's evaluations for the past eleven years were submitted into evidence. His overall ratings were as follows:

In November 2000, Grievant received an evaluation rating his performance during the performance cycle as "DOES NOT MEET MINIMUM EXPECTATIONS." The effect of this rating was to permit the agency to re-evaluate the Grievant in three months and terminate him if his performance did not improve.

Grievant had been working in the Negotiations section until May 1999 when he was transferred to the Legal section and placed under a new supervisor. As part of the Legal section, Grievant was required to perform title searches to enable Assistant Attorney Generals to render title opinions of right of way real property being acquired. He received training by taking several classes and working closely with an experienced title examiner. Grievant preferred working in the Negotiations section because of his opportunity to interact frequently with the public and other Agency staff.

In December 2000, the Agency transferred Grievant out of the Legal section and back into the Negotiations section. The Agency was able to transfer Grievant out of the Legal section because of a policy change enabling it to have title research conducted by external title examiners.

Because of Grievant's transfer, the Agency believes Grievant's 2000 evaluation should be revised to rate his overall performance as "Fair But Needs Improvement" and allow him to continue in his employment without requiring a three month re-evaluation.

Grievant contends his poor evaluation resulted from age discrimination. No evidence was presented by the Grievant regarding age discrimination. The Agency's witnesses testified that they did not act as a result of Grievant's age. Consequently, the Grievant has failed to prove age discrimination.

Grievant contends his history of receiving favorable evaluations shows his performance could not have been inadequate in the 2000 performance cycle. Although the Agency presented sufficient evidence to show its actions were not arbitrary or capricious, it is not necessary for the Hearing Officer to address the issue. The Agency has stipulated that it intends to reevaluate Grievant and rate his overall performance as "Fair But Needs Improvement" in light of Grievant's recent return to the Negotiations section. The revised rating will enable Grievant to continue in his present position without being subject to a three month re-evaluation which would place him at risk of immediate termination. This is the relief Grievant has sought. The Hearing Officer believes the Agency has exercised good judgment and that its decision reflects sound management principles.

For the reasons stated herein, the Hearing Officer adopts the Agency's decision to re-examine Grievant's performance evaluation and to give him an overall performance rating that will afford him the opportunity to continue in his present position without a three month re-evaluation.

As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more detail, this hearing decision is subject to administrative and judicial review. Once the administrative review phase has concluded, the hearing decision becomes final and is subject to judicial review.

Administrative Review – This decision is subject to four types of administrative review, depending upon the nature of the alleged defect of the decision:

1. A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
2. A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management. This request must cite to a particular mandate in state or agency policy. The Director’s authority is limited to ordering the hearing officer to revise the decision to conform it to written policy.
3. A challenge that the hearing decision does not comply with grievance procedure is made to the Director of EDR. This request must state the specific requirement of the grievance procedure with which the decision is not in compliance. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure.
4. In grievances arising out of the Department of Mental Health, Mental Retardation and Substance Abuse Services which challenge allegations of patient abuse, a challenge that a hearing decision is inconsistent with law may be made to the Director of EDR. The party challenging the hearing decision must cite to the specific error of law in the hearing decision. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it is consistent with law.

A party may make more than one type of request for review. All requests for review must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision. (Note: the 10-day period, in which the appeal must occur, begins with the date of issuance of the decision, not receipt of the decision. However, the date the decision is rendered does not count as one of the 10 days; the day following the issuance of the decision is the first of the 10 days). A copy of each appeal must be provided to the other party.

Section 7.2 (d) of the Grievance Procedure Manual provides that a hearing officer’s original decision becomes a final hearing decision, with no further possibility of an administrative review, when:

1. The 10 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or,
2. All timely requests for administrative review have been decided and, if ordered by EDR or HRM, the hearing officer has issued a revised decision.

Within thirty days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. The agency shall request and receive prior approval of the Director before filing a notice of appeal.

Carl Wilson Schmidt, Esq.
Hearing Officer