In the matter of Virginia Department of Transportation’s Case No. 5159

Hearing Date: April 5, 2001
Decision Issued: April 11, 2001

Grievant received an evaluation on October 17, 2000. On November 17, 2000, Grievant 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 March 16, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On April 5, 2001, a hearing was held at the Agency’s regional office.

Grievant
Legal Assistant Advocate
Operations Manager II
Procurement/ Accounting Associate
Trade Technician 4
Diesel Mechanic
Supervisor
Facility Manager

Whether Grievant's October 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 is employed as an Electrician Senior with the Virginia Department of Transportation. On October 17, 2000, Grievant received an evaluation showing his overall rating as FAIR BUT NEEDS IMPROVEMENT. The effect of this overall rating was to deny him an increase in salary given to other State employees with higher performance ratings.

Grievant’s evaluation rated seven expectations as follows:

The Supervisor has supervised Grievant since 1989. His supervision of Grievant ended in September 2000 when a new supervisory position was filled and Grievant began reporting to the new supervisor. The Supervisor did not request information from the new supervisor about Grievant’s performance in the months of September and October 2000. Once the Supervisor drafted Grievant’s evaluation, however, he showed it to the new supervisor and asked for comments before giving the evaluation to Grievant. The new supervisor did not suggest any changes.

On January 24, 2000, the Supervisor gave Grievant a memorandum outlining his concerns about Grievant’s personal hygiene. (Agency Exhibit 1). On August 17, 2000, the Supervisor gave Grievant another memorandum expressing disappointment about having to again address Grievant’s personal hygiene. (Agency Exhibit 4).

On April 17, 2000, the Supervisor gave Grievant an interim evaluation, which identified several concerns about Grievant’s performance. (Agency Exhibit 2).

State agencies may not conduct arbitrary or capricious performance evaluations of their employees. Arbitrary or capricious is defined as "Unreasonable action in disregard of the facts or without a determining principle." GPM § 9. If a Hearing Officer concludes an evaluation is arbitrary or capricious, the Hearing Officer’s authority is limited to ordering the agency to re-evaluate the employee. GPM § 5.9(a)(5).

To determine whether an evaluation is arbitrary or capricious, the Hearing Officer must review each job element of the evaluation and the evaluation as a whole to determine whether a material fact or determining principle is missing. Based on the Hearing Officer’s review, the Hearing Officer concludes that although the accuracy of the evaluation is debatable, it is not arbitrary or capricious.

There are several portions of Grievant’s evaluation which appear to be inaccurate and with which the Hearing Officer does not agree.¹ The standard applied to Grievant’s evaluation, however, is not whether the Hearing Officer agrees with its contents, but whether the Agency disregarded facts when forming the basis for its opinion. It is not the Hearing Officer’s duty to substitute his judgment for that of the Agency, but rather to make sure the Agency has not inappropriately excluded information before formulating its conclusion.

Many of the Supervisor’s comments focus on the reports he received from unidentified co-workers of Grievant. Only two of several co-workers testified at the hearing. The co-workers who testified at the hearing had mostly favorable comments about Grievant’s skills and work ethic. The Supervisor was able to relay specific accounts from Grievant’s co-workers who did not testify. These accounts supported the Supervisor’s version of events. Although the Hearing Officer is suspicious about the accuracy of some of the Supervisor’s opinions, the Hearing Officer has insufficient evidence to conclude that the Supervisor’s reliance on the statements of Grievant’s co-workers was arbitrary or capricious.

Grievant raises several objections to the appropriateness of his evaluation. First, he objects to references to complaints about his personal hygiene. The testimony presented, however, showed that on at least one morning Grievant arrived for work and others around him noticed his poor personal hygiene. Grievant had been notified of concerns about his personal hygiene in January 2000. (Agency Exhibit 1).

Second, Grievant objects to his performance being evaluated as unfavorable because he operated a pickup truck with a flat tire. The tire went flat while the truck was in an area of the road near a tunnel with heavy traffic. On the recommendation of a diesel mechanic who was a passenger in the vehicle and who concluded the tire was irreparably damaged, Grievant continued to drive at a slow speed on the flat tire several hundred yards until reaching the Agency’s work area. There was no damage to the pickup truck tire rim. The Agency issued Grievant a Group II Written notice, which was not appealed. The Agency contends the flat tire could have split further thereby causing the vehicle to be diverted into heavy traffic. The Hearing Officer does not know what Grievant should have done under those circumstances. The Agency’s comments regarding his evaluation are appropriate because he was given a disciplinary notice that was not successfully appealed. Grievant is correct that the Supervisor should not have stated in the evaluation that Grievant caused damage to State property by continuing to drive on the flat tire. Driving on the flat tire did not cause any additional damage to State property – the tire was already destroyed. The Supervisor’s misstatement about damage to the vehicle, however, is not in itself sufficient to require revision of the evaluation.

Third, Grievant contends the evaluation incorrectly suggests he was reluctant to engage in physically demanding labor. The Supervisor testified regarding at least two incidents reported by Grievant’s co-workers where Grievant supposedly delayed or did not engage in physical labor. Although the Grievant’s explanation seemed credible, the Supervisor’s conclusions were not arbitrary or capricious.

Fourth, Grievant argues the evaluation failed to consider several of his contributions. For example, he had the idea to put struts inside certain cabinets thereby avoiding significant safety concerns and he had the idea to create a chart to assist in measuring the proper amount of chemicals to raise the boiler water treatment to the recommended level. The Agency replies that other co-workers participated in the development of the safety solution and that Grievant initially developed the chart in a prior evaluation period. Grievant’s account suggests he is a self-starter contrary to the Supervisor’s characterization of him. Since the Supervisor relied upon some investigation of the facts, however, his statements were not arbitrary or capricious.

Fifth, Grievant contends he did not submit paperwork in an untimely fashion. Grievant presented testimony from an employee who collects maintenance service reports. These reports reflect what staff accomplished during the day. She testified that Grievant had not submitted any late maintenance service reports to her. The Agency responded that it was referring to daily timesheets and not to maintenance service reports when it evaluated Grievant as submitting untimely reports. Daily timesheets are submitted directly to the Supervisor and Grievant’s witness would not know whether or not those timesheets were submitted timely. Grievant has not established that the Agency acted arbitrarily or capriciously regarding his submission of paperwork.

Six, Grievant argues that the Agency is retaliating against him for assisting another employee with a complaint against a manager. No evidence was presented to support Grievant’s claim.

Performance evaluations should be completed by an employee’s supervisor. In October 2000, Grievant had a new supervisor who did not complete his evaluation. This is not a procedural error, however, because the Department of Human Resource Management’s Policies and Procedure Manual Section 1.40(V)(B)(1)(b) states:

Agency management determined that the new supervisor should not conduct the evaluation because of his limited time as Grievant’s supervisor. The Supervisor was Grievant’s next level of supervision and, thus, he could properly complete Grievant’s evaluation.

The Agency contends its evaluation of Grievant was based on the Supervisor’s observation of Grievant’s performance. It is clear, however, that the Supervisor based his evaluation of Grievant primarily on the accounts of Grievant’s co-workers and not on the Supervisor’s direct observation of Grievant. While this is an acceptable basis to review an employee, the Agency should make every effort to permit the Grievant to rebut allegations made against him by his co-workers. The Hearing Officer recommends that the Agency, in its sole discretion, afford Grievant an opportunity to respond immediately to negative comments made by his co-workers when the Agency intends to rely on those comments to evaluate Grievant’s performance.

For the reasons stated herein, the Grievant’s request to have his October 2000 evaluation declared arbitrary or capricious is denied.

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

¹ In addition to being inaccurate, several portions of the Grievant's evaluation appear unnecessarily inflammatory. For example, element four is intended to address communications and team working relations, yet the Supervisor references co-workers "who are basically fed up with his [the Grievant's] ways." The Supervisor's tone is unnecessary to properly evaluate Grievant's performance.