In the matter of Virginia Department of Transportation Case No. 5150

Hearing Date: March 20, 2001
Decision Issued: March 21, 2001

In cases involving the grieving of a performance evaluation, the Hearing Officer’s authority is limited to ordering the agency to repeat a performance evaluation (not to give a particular rating) if the original evaluation is found to be arbitrary or capricious.¹

Grievant
Legal Representative for Agency
Grievant’s Supervisor
Two witnesses for Grievant
One witness for Agency

Was the grievant’s performance evaluation dated October 27, 2000 arbitrary and capricious?

The grievant filed a timely appeal from her performance evaluation for the annual performance cycle that ended on November 30, 2000, contending that the evaluation was arbitrary and capricious. Following denial of any relief through the third resolution step, the agency head qualified the grievance for a hearing.

The Virginia Department of Transportation (hereinafter referred to as agency) has employed the grievant as an inspector for approximately 10 years. The position description for Inspector notes the distinguishing features of the position as:

The Senior Inspector has a similar job description but is considered a specialist or advisor to Inspectors. Further, the Senior Inspector works independently, not subordinately.

The grievant was originally hired by the agency in another area of the state. Within a year she transferred to her current location. She has received ten performance evaluations between September 27, 1991 and October 27, 2000. Four different supervisors have prepared the evaluations during that decade; two different reviewers have approved the evaluations during the same period. The overall performance level was "Meets Expectations" in each of the ten evaluations. The grievant’s current supervisor wrote the evaluations for the three most recent performance cycles, including the evaluation at issue herein. During the years from 1991-1993, the grievant received "Meets" for all of her job expectations. In 1994, she received "Exceeds" on one of the expectations. In 1996 and 1997, she received "Exceeds" of two of the expectations. For the most recent performance cycle ending in November 2000, the grievant achieved "Exceeds" on three of her expectations.

The Department of Human Resources Management has defined ratings used on performance evaluations as follows:³

The grievant noted that she had been named Employee of the Quarter in the third and fourth quarters of calendar year 2000. Coworkers within each section vote upon the Employee of the Quarter. The grievant’s section consists of a total of eight inspectors and senior inspectors. Most employees are voted Employee of the Quarter sooner or later. She also noted that she had received a letter of commendation from a city mayor for a project on which she had worked in early 1999. However, this project occurred prior to the performance cycle of December 1999 through November 2000.

During the year 2000, the grievant had been counseled to get along with contractors and to avoid having complaints from contractors. This counseling resulted from telephone calls received by the resident engineer from contractors and from a resident affected by a particular highway project.

During the performance cycle, the grievant was on temporary assignment to a different location for approximately one quarter of the year. The grievant’s supervisor obtained feedback from the grievant’s temporary supervisor for this period of time, and factored this feedback into the preparation of the grievant’s performance evaluation. In general, the two supervisors evaluated the grievant similarly.

The General Assembly enacted the Virginia Personnel Act, Va. Code § 2.1-110 et seq., establishing the procedures and policies applicable to employment within the Commonwealth. This comprehensive legislation includes procedures for hiring, promoting, compensating, discharging and training state employees. It also provides for a grievance procedure. The Act balances the need for orderly administration of state employment and personnel practices with the preservation of the employee’s ability to protect his rights and to pursue legitimate grievances. These dual goals reflect a valid governmental interest in and responsibility to its employees and workplace. Murray v. Stokes, 237 Va. 653, 656 (1989).

Code § 2.1-116.05(A) sets forth the Commonwealth’s grievance procedure and provides, in pertinent part:

In a grievance hearing that does not involve either a disciplinary action or a dismissal for unsatisfactory performance, the burden of proof is on the grievant to prove her claim. "In all other actions, the employee must present her evidence first and must prove her claim by a preponderance of the evidence."⁴ In this case, the grievant contends that her performance appraisal was arbitrary and capricious. As this grievance does not involve either discipline or dismissal, the grievant must prove her contention by a preponderance of the evidence.

The grievant contended that her performance evaluation dated October 27, 2000 was arbitrary and capricious. "Arbitrary" is defined as 1: depending on individual discretion and not fixed by law, 3b: existing or coming about seemingly at random or by chance or as a capricious and unreasonable act of will.⁵ "Capricious" is defined as impulsive or unpredictable.6 After hearing the evidence at the hearing, the grievant acknowledged that her performance evaluation was not capricious but she still believes that it was arbitrary.

The grievant argues that, with ten years of experience, her performance now merits an overall performance rating of "Exceeds" or higher. She provided examples of why she deserves a higher evaluation. She noted that, during her pregnancy, she worked until four days before giving birth. The normal expectation for every employee is that they will work every day on which they are physically able to do so. While some women experience problem pregnancies or have physically demanding jobs, many women work until just a few days before childbirth. If the grievant felt physically able to work until the fourth day before delivery, then she met expectations by working until that date.

She also observed that she completes her paperwork accurately and timely. The resident engineer responded that he expects all inspectors to complete paperwork accurately and on time. This is the routine expectation; compliance with this requirement merits a "Meets" performance rating on this job element.

The grievant has developed considerable experience during her tenure with the agency. She is now entrusted with projects requiring more responsibility than can be given to a new employee. This progressive increase in responsibility is normal as one gains more and more experience in any position. Some of this growth has been recognized in the performance evaluations received by the grievant. For example, during her first three years with the agency, she received "Meets" on all expectations. During the next few years, she received "Exceeds" for one expectation, then for two expectations and, this past year, she was rated "Exceeds" in three expectations. Thus, there has been a gradual recognition of the grievant’s increased abilities.

The grievant believes that she has progressed more rapidly than is reflected in her performance evaluation. The grievant’s supervisor and the resident engineer acknowledged the grievant’s above average performance with regard to maintenance of records, materials test compliance and visual inspection of materials used on projects. However, the seven specific job expectations in Section B are not the sole basis for the overall performance evaluation. Section C of the evaluation details additional performance factors that play an important role in determining the overall performance level. According to the testimony of agency witnesses, of the five major factors listed, interpersonal relations and communications played a particularly significant role in the overall rating for the grievant.

It was felt that some incidents during the year were reflective of a need for improvement in the grievant’s interpersonal relationships and communication with contractors. Since the agency’s interaction with contractors is very important, and can be politically sensitive, it is vital that inspectors maintain good interpersonal relationships and communicate on a timely basis with contractors. If management perceives difficulty in these areas, it is inevitable that there will be an impact on the grievant’s performance evaluation.

The Commonwealth of Virginia Department of Personnel and Training⁷ has promulgated Policy No. 1.40, effective September 10, 1993, regarding Performance Planning and Evaluation. Section V of the policy requires that performance evaluations should reflect performance levels for the entire performance cycle. The evidence in this case established that the supervisor incorporated into the evaluation both his own observations and the observations of the supervisor for whom the grievant worked while on temporary assignment.

The totality of the evidence in this case establishes that the grievant has not shown, by a preponderance of the evidence, that her performance evaluation was either arbitrary or capricious. To the contrary, the evidence establishes that the performance evaluation for the most recent cycle was consistent with prior evaluations. Moreover, the evaluation reflected an improvement in the grievant’s rating consistent with the perceived improvement of her abilities in recent years. In fact, the evaluation was the best evaluation she has ever received. Further, the evaluation was carefully considered by both the grievant’s supervisor and by the resident engineer before he approved it. There is no evidence that the evaluation was unpredictable, impulsive or unreasonable.

Section I (Overall Performance Comments) of the evaluation provides corroboration that the evaluation was reasonable and carefully considered. In that section, the supervisor noted the grievant’s interest in furthering her career and made suggestions to assist her in that goal. He suggested strengthening her knowledge of soils and roadway construction as well as taking advantage of the opportunity to supervise another inspector. The supervisor also noted that improvement of interpersonal relationship skills is crucial. Therefore, the Hearing Officer must conclude that the performance evaluation for the cycle ending in November 2000 was not arbitrary or capricious.

The Hearing Officer does feel, however, that perhaps more attention should be devoted to the Performance Planning portion of the evaluation process. Section III.B of Policy 1.40 addresses the presentation of the Performance Plan to employees. For employees currently in a position (such as the grievant), Section III.B.2 states, in pertinent part:

The clear inference of the above instruction is that the Performance Plan for the next performance cycle is to be presented to the employee in a separate meeting from the performance evaluation meeting for the past performance cycle.⁸ The Performance Plan is a separate document that looks ahead to the upcoming performance cycle. It takes into account possible changes in job elements and expectations, and provides a development plan and suggestions for the year ahead. However, if a supervisor elects to combine both performance evaluation and performance planning in one meeting, it is vital that performance planning be given an appropriate amount of attention effort during the meeting.

Performance planning can be a sensitive issue because the supervisor must address those issues on which the employee needs improvement. Just discussing such issues can imply criticism and put an employee on the defensive. Thus, it makes sense to conduct Performance Planning separately from the Performance Evaluation. Nonetheless, if the supervisor opts to do both during one meeting, he must assure that Performance Planning is not given short shrift.

In this case, it appears that grievant is making a genuine effort to improve her performance. It is therefore incumbent upon supervision to make a similar effort to assist the grievant to reach that goal. The grievant feels that management is not fulfilling its end of the bargain.⁹ To fulfill its obligation, management may need to engage in serious discussions with the grievant regarding the perceived shortcomings in her interpersonal relationships and communication skills. Management may wish to consider whether training is an appropriate course of action (Grievant must recognize that management may decide that training is not an available or appropriate option). It will also mean that the grievant has to approach such discussions with an open mind and a willingness to rethink how she deals with these issues. The primary impetus for behavioral change (and improved performance evaluations) must come from within the grievant herself.

The grievant’s performance evaluation for the cycle ending in November 2000 is found to be neither arbitrary nor capricious. The evaluation is hereby AFFIRMED.

It is recommended that the agency revisit the Performance Planning process with the grievant.

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.

David J. Latham, Esq.
Hearing Officer