Issue: Misapplication of Short-Term Disability Policy; Hearing Date: April 30, 2001; Decision Date: May 3, 2001; Agency: Virginia Department of Transportation; AHO: David J. Latham, Esq.; Case No. 5160

In the matter of Virginia Department of Transportation's Case No. 5160

Hearing Date: April 30, 2001
Decision Issued: May 3, 2001

For administrative reasons relating to the location of the hearing site and due to availability of the participants, the hearing could not be docketed until the 34th day following appointment of the hearing officer.

Grievant
Attorney for grievant
Grievant's manager
Legal representative for Agency
One witness for Agency

Has the agency misapplied the short-term disability policy? If so, what action should be taken?

The grievant contends that the agency misapplied its short-term disability policy by removing duties and responsibilities following her return from an extended disability leave. Following an inability to satisfactorily resolve the grievance at the third resolution step, the agency head qualified the matter for a hearing.

The Virginia Department of Transportation has employed the grievant for 11 years. She is currently a Computer Operations Technician II. In November 1999, a position description had been developed for the position held by the grievant; the title of this position was Programmer/Analyst. The grievant prepared for her supervisor (the District Information Technology Manager) a list of the working tasks and duties for that position.¹ The manager incorporated this list of tasks and duties into the position description.² The grievant performed the tasks and duties in this description until March 2000.

The position description includes a task that required approximately 10 percent of her time - supervising an operations staff of two people. In March 2000, these two people were temporarily reassigned by the IT Manager to conduct an inventory of equipment at various agency locations outside district headquarters. This project required substantial travel and lasted for several weeks. Immediately prior to this reassignment, the two subordinates of the grievant had complained to the IT Manager that there was friction between them and the grievant. The IT Manager met with the grievant and advised that he would henceforth assume supervisory responsibility for the two subordinates. Grievant continued to perform all other tasks on her position description except for supervision of the two subordinates.

As part of her responsibilities, the grievant had been utilizing a computer software program known as the "Allin1 Manager" to delete, move and modify accounts. During the year 2000, this program was phased out and its functions replaced by a more current software program. Thus, there was no further need for the grievant to perform functions related to the outdated "Allin1 Manager" when she returned to work in October 2000.

On May 16, 2000, the grievant went on short-term disability leave. Pursuant to the Family Medical and Leave Act (FMLA), the grievant's leave time was tracked under FMLA for 12 weeks, the maximum time covered by this federal legislation. At the end of 12 weeks, the grievant's job protection under FMLA³ ended but she continued to be covered by the short-term disability leave provisions of the Virginia Sickness and Disability Program (VSDP) for which she had enrolled in April 1999. Grievant remained on disability leave for an additional 13 weeks until October 26, 2000. When she returned to work, she was reassigned to the same position at the same rate of pay as she had when she left work nearly six months earlier.

The Virginia Sickness and Disability Program does not guarantee that an employee will be able to return to the same job, or even the same agency.

The first priority is to return you to your same job and agency; however, this may not always be possible. In all cases, VSDP will attempt to return you to work. Placement options may include: the same job with the same or a different agency; a different job with the same or different agency; or even placement in a non-state position.⁴

During the grievant's prolonged absence from work, the IT Manager found it necessary to reassign one of the grievant's functions to another person so that the work would be performed. This task involved the utilization of the NT user manager and server manager to create accounts, determine group, set permissions and grant dial-up privileges. After the grievant returned to work in late October 2000, the IT Manager did not return this function to the grievant. However, he subsequently assigned her a new function of developing a web page for the district. This project also involved ongoing maintenance of the web page. It is also expected to lead to the grievant becoming the liaison to other employees in the district who will be creating web pages.

Until September 2000, employees in most state agencies were under the same salary classification system. However, VDOT had its own reimbursement schemes for employees in different functional areas of the agency. In addition, employees in the information technology area had a separate reimbursement mechanism that is only loosely correlated to the standard state system. In 1998, the General Assembly mandated a sweeping Compensation Reform of state pay practices that resulted in the consolidation of many existing job positions, and the creation of significantly broader "pay bands" that replaced the old salary grade structure. Prior to implementation of the new structure, the Department of Human Resource Management (DHRM) examined all position descriptions throughout the state for all executive branch agencies, including VDOT. This lengthy process required VDOT to submit existing position descriptions to DHRM for evaluation. DHRM, in consultation with agency personnel, determined the appropriate job roles and salary grade levels for all agency positions.⁵

For the grievant's position, DHRM determined that the existing position description, which included her supervisory responsibilities, is most closely related to a salary grade 10 under the existing classification system. When compensation reform was implemented on September 25, 2000, all state employees in salary grade 10 were "crosswalked" to pay band 4. Prior to compensation reform, grievant believed that her existing position was equivalent to a salary grade 12. However, until DHRM's comprehensive evaluation of all state jobs in preparation for compensation reform, there had not been a formal determination of the appropriate salary grade for this VDOT position.

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:

It shall be the policy of the Commonwealth, as an employer, to encourage the resolution of employee problems and complaints . . . To the extent that such concerns cannot be resolved informally, the grievance procedure shall afford an immediate and fair method for the resolution of employment disputes which may arise between state agencies and those employees who have access to the procedure under § 2.1-116.09.

In disciplinary actions and dismissals for unsatisfactory performance, the agency must present its evidence first and must show by a preponderance of the evidence that the action was warranted and appropriate under the circumstances. In all other actions, the employee must present her evidence first and must prove her claim by a preponderance of the evidence.6

Grievant contends that the VSDP short-term disability policy was misapplied because she did not have the same duties and responsibilities upon her return from leave as she did when she left in May 2000. However, the grievant has not shown by a preponderance of evidence what portion of the policy, if any, was misapplied. The policy does not guarantee that an employee must return to any job, let alone her same job. The VSDP policy states only that returning an employee to their same job and agency is a priority but it further notes that this may not always be possible. For example, if the agency had concluded during the grievant's leave that her position was so critical that it had to be filled, it could have hired someone else to permanently fill the position. Had this occurred, the agency would then have the option to place grievant in a different job, or in a different agency.

In this case, the grievant was quite fortunate because the agency was able to return her to the same job with the same agency. Moreover, the agency has made a significant effort to keep her position open, notwithstanding the fact that she was absent for nearly half a year. In order to do this, a portion of the grievant's responsibility was assigned to another person. Once grievant returned to work, a management decision was made to have that person continue performing the function. Such decisions are within the purview of management.

The Code of Virginia makes clear that the grievance procedure is not a mechanism to shift the management and personnel decisions away from management.

Management reserves the exclusive right to manage the affairs and operations of state government. Management shall exercise its powers with the highest degree of trust.⁷

Grievant testified that all but one of her job responsibilities has been taken away from her. However, her manager testified credibly that, except for supervision of two people (which occurred two months prior to her leave), exchange administration duties, and the "Allin1 Manager" task (which became obsolete), the grievant continues to be responsible for the remaining tasks and duties in her position description. Grievant alluded to documentation that she said would support some of her contentions but failed to submit any documents prior to or during the hearing. However, even if the grievant had been able to show that other responsibilities had been taken away, that would not constitute a misapplication of the short-term disability policy for the reasons stated in the preceding paragraphs.

Grievant argues that the policy which had been in effect prior to the implementation of VSDP in 1999 provided that employees are to be returned to former duties and responsibilities if they return to work within six months. When VSDP was implemented in 1999, existing state employees were given an option to remain in the existing program or to enroll in VSDP. Grievant voluntarily agreed to forego her rights under the old policy and opted to enroll in VSDP. While the new VSDP plan offers significant short- and long-term disability benefits not previously available to state employees, it also allows agencies flexibility in filling the positions of those who are absent for prolonged periods of time.

It appears that the grievant's disability leave occurred at a time when there was a confluence of changes taking place. The state was embarking on a new compensation reform plan, and changes were occurring in the information technology area relating to the agency web site and the obsolescence of a software application. The grievant may be distressed by these changes as they affect her job but, especially in the information technology area, change is a frequent occurrence. Grievant also has an understandable concern about what the future may hold as the agency develops new position descriptions during Phase II of Compensation Reform. However, since the grievant's new position description has not yet been developed, it is premature to speculate on how that may affect the grievant.

Grievant also expressed concern because she had heard during a recent Compensation Reform meeting that an employee's pay could be reduced by five percent if he or she is not performing up to expectations. The new performance evaluation program to be implemented later this year does include a provision for possible salary reduction of those few people who are evaluated as "below contributor." However, that rating will be given only to those people who do not perform up to the expectation of the new position descriptions which are scheduled to be provided by the agency in June 2001. Thus, the grievant's concern in this regard is also premature. In any case, if she meets the expectations to be provided to her in the new position description, she will be rated as a "contributor" and should have no cause for concern.

In summary, the grievant has failed to demonstrate, by a preponderance of the evidence, any misapplication of the VSDP short-term disability policy. The agency fulfilled its obligation by making the effort to return her to the same position and the same rate of pay. Although her duties have undergone some change since 1999, the agency has explained that such changes were necessary due either to changed conditions, or to operational requirements. Her remaining concerns are, at this time, speculative and premature.

The grievant has not demonstrated a misapplication of the short-term disability policy as promulgated in the Virginia Sickness and Disability Program.

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.

Judicial Review of Final Hearing 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