In the matter of University of Virginia’s Case No. 5168

Hearing Date: April 18, 2001
Decision Issued: April 21, 2001

On January 22, 2001, Grievant was notified she would be dismissed from her employment for unsatisfactory performance effective March 16, 2001. On February 13, 2001, Grievant timely filed a grievance to challenge the dismissal. The outcome of the Third Resolution Step was not satisfactory to the Grievant and she requested a hearing. On March 27, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On April 18, 2001, a hearing was held at the University’s office.

Grievant
Counsel to the University
HVAC Superintendent for Facilities Management
HVAC Senior Technician
HVAC Installation Repair Supervisor

Whether Grievant’s dismissal for unsatisfactory performance should be upheld.

The burden of proof is on the University to show by a preponderance of the evidence that its dismissal of Grievant was warranted and appropriate under the circumstances. Grievance Procedure Manual ("GPM") § 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:

The University of Virginia employed Grievant as a HVAC Instrument and Repair Technician until the University dismissed her on March 16, 2001. (Agency Exhibit 14). The chief objective of her position was to install, modify, regulate, and maintain a variety of package and central air conditioning, refrigeration, and heating units. (Agency Exhibit 7). The University had employed her for approximately 14 years.

On October 5, 2000, Grievant received an annual evaluation with an overall rating of "Does Not Meet Minimum Expectations". The evaluation was based on Grievant’s performance plan identifying four Job Elements: (1) Emergency repairs and customer communication, (2) Training and Safety, (3) Preventive Maintenance, and (4) Record Keeping. Grievant received a rating of "Does Not Meet Expectation" for the first two job elements, "Fair But Needs Improvement" for the third job element, and "Meets Expectation" for the fourth job element. (Agency Exhibit 9).

On October 12, 2000, the University prepared and presented to Grievant a Development Plan and Suggestions. This plan specified in detail Grievant’s duties and expectations for the following three months. It also identified relevant portions of the Refrigeration and Air Conditioning Technology Book for Grievant to review to enable her to better accomplish her job duties.

At the end of the three-month re-evaluation period, Grievant received an evaluation dated January 16, 2001 rating her overall performance as "Does Not Meet Minimum Expectations." The evaluation was based on Grievant’s performance plan identifying five Job Elements: (1) Emergency repairs and customer communication, (2) Training and Safety, (3) Preventive Maintenance, (4) Record Keeping, (5) In House Training. The fifth job element was added to reflect additional training and mentoring that the University hoped would improve Grievant’s performance. Grievant received a rating of "Does Not Meet Expectation" for the first two job elements, "Fair But Needs Improvement" for the third job element, "Meets Expectation" for the fourth job element, and "Fair But Needs Improvement" for the fifth job element. (Agency Exhibit 11).

State employees are evaluated in accordance with Department of Human Resource Management, Policies and Procedures Manual ("P&PM) Policy 1.40.¹ A Performance Evaluation is the "official determination of the degree to which an employee has met his or her performance expectations …." P&PM § 1.40(II)(F).

An employee who receives an overall rating of "Does Not Meet Minimum Expectations" must be re-evaluated.² A new Performance Plan must be developed that sets forth performance expectations for the following three months. P&PM § 1.40(VI)(A). At the end of the three-month period, the employee must be re-evaluated. P&PM § 1.40(VI)(B). If the employee receives a re-evaluation rating of "Does Not Meet Expectations," the following options may be considered during the next two months:

1. Lateral transfer (same salary grade and pay step) to a more suitable position within the agency;
2. Demotion to another position within the agency.

At the end of two months, if the agency cannot, or has elected not to implement either of the options, the employee must be removed from State service. P&PM § 1.40(VI)(D).

The evidence presented by the University sufficiently supports its conclusion that Grievant’s performance did not meet expectations for a considerable period of time. No options existed or were exercised to transfer or demote Grievant to another position. Grievant’s dismissal must be upheld.

The University took several measures to improve Grievant’s performance. For example, the University changed her supervisory relationship,³ (2) provided her with individual training from an experienced and patient supervisor, and (3) assigned her tasks reasonably designed to enable her to succeed and build her confidence.

This case is difficult to resolve not because of any difficulties in determining the evidence or interpreting policy, but because of the obvious hardship and disappointment felt by the Grievant. Grievant is an individual of good character who sincerely desires to use her talents and skills to contribute to her community. She ultimately will succeed. Unfortunately, her current position is not the means by which she can achieve that success.

For the reasons stated herein, the Agency’s dismissal of Grievant for unsatisfactory performance is upheld.

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