Issue: Disciplinary Transfer/Reassignment and Retaliation; Hearing Date: June 12, 2001; Decision Date: June 13, 2001; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; AHO: David J. Latham, Esquire; Case Number: 5203

In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case No. 5203

Hearing Date: June 12, 2001
Decision Issued: June 13, 2001

The first available hearing date for both parties and their attorneys was the 40^th day following appointment of the hearing officer.

The grievant had requested a ruling from the Director of the Department of Employment Dispute Resolution (EDR) as to whether her July 5, 2000 grievance qualified for a hearing. The grievant claimed that management had transferred her and subjected her to disciplinary harassment, discrimination/unfair treatment and retaliation. She also charged management with nepotism. The Director of EDR ruled that the issues of disciplinary transfer/reassignment and retaliation qualified for hearing but that the issues of discrimination/unfair treatment, harassment and nepotism did not qualify for hearing.¹

Grievant requested an apology from the agency as part of the relief from her grievance. Grievant was advised by the Hearing Officer during the hearing that hearing officers do not have the authority to direct agencies to issue apologies. If the Hearing Officer were to conclude that grievant’s transfer was involuntary, disciplinary and unwarranted, he could rescind the transfer and direct that grievant be restored to her prior position. However, during the hearing, grievant stated that she no longer desired to be transferred back to her prior position. She plans to retire in 18 months and does not wish to disrupt others should she prevail in this grievance. Grievant conceded at the hearing’s conclusion that the evidence presented during the hearing does not support a finding of retaliation. Thus, the only relief grievant now seeks is a written finding that her transfer was an unwarranted disciplinary reassignment.

In her written grievance, grievant had previously requested that she be reassigned to the senior RNC position in the Medical Clinic because she has more professional nursing experience than the current incumbent. However, grievant did not renew this request at the hearing. Moreover, it was established during the hearing that the senior RNC position had become vacant in the fall of 2000. The position was advertised and grievant could have applied for the position but failed to do so. It appears that grievant’s impending retirement has now overshadowed her earlier request to be transferred to this position. In any case, the Hearing Officer‘s authority is limited to restoring grievant to her prior position, not to a different position of her choosing.

Grievant
Attorney for Grievant
One witness for Grievant
Representative for Agency
Legal Representative for Agency
Two witnesses for Agency

Was the grievant’s transfer/reassignment voluntary? If involuntary, was the transfer based on objective methods and did it adhere to all policies and procedures of the Department of Human Resource Management? Was the transfer disciplinary? If disciplinary, was it warranted? Was there any retaliation involved in the transfer?

The grievant filed a timely appeal from a transfer/reassignment that became effective on July 10, 2000. Following a denial of relief at each resolution step, the transfer/reassignment was upheld. The agency head declined to qualify the grievance for a hearing. Grievant appealed to EDR and the Director qualified two issues for a hearing. ²

The Department of Mental Health, Mental Retardation, Substance Abuse Services (Hereinafter referred to as "agency") has employed the grievant for over 28 years. She is a Registered Nurse Coordinator (RNC). She is the only RNC with both B.S. and M.S. degrees.

On January 31, 2000, grievant was given a Group I Written Notice for unsatisfactory job performance because she had failed to report for work as scheduled on January 17, 2000.³ On this date (a holiday) grievant had been designated as charge nurse for the entire facility. The grievant acknowledged that she made a mistake but felt that absence should not have been characterized as "unsatisfactory job performance" and she filed a grievance. A compromise was achieved during the grievance resolution process and the discipline was changed on May 25, 2000 to a Group I Written Notice for unsatisfactory attendance.

On May 5, 2000, an employee of the facility used an iron to inflict numerous burns on the body of a resident client of the facility. The incident was extensively publicized in the media and immediately drew the attention of the agency’s commissioner. Because of the nature of the incident and the public attention received by the agency, the agency determined that changes were necessary to prevent a recurrence. Agency management in the central office and facility management developed plans to correct the situation. Among the changes decided upon in May was a restructuring of middle management responsibilities and reporting relationships. One of the changes mandated by central office management was the creation of a position initially dubbed the Nurse Officer of the Day. The intent of this position was to have one registered nurse that would be responsible for the facility-wide oversight of direct nursing services and coordination of care provided by other health care professionals. The incumbent in this position is charged with making rounds to observe all staff, patients and the physical environment.

On May 26, 2000, the day after the prior grievance was settled, grievant was told that she would be transferred from her position as a unit manager to the Medical Clinic where she would become the Nurse Officer of the Day. Grievant was not interested in this position and so advised the Director of Nursing. Nonetheless, the decision was made and grievant was reassigned to the new position on July 10, 2000 on the day shift. Two other registered nurses were transferred at the same time from their units to the Medical Clinic, one to work on the evening shift and one to work on the midnight shift. They agreed to the change without objection. Part of the reorganization plan was to have a minimum of two nurses in the Medical Clinic at all times so that around-the-clock coverage was available and so that one nurse would be in the clinic while the other could make rounds to the units.

The agency employs a Director of Nursing who, until July 2000, directly supervised eight RNCs. Other registered nurses and licensed practical nurses (LPN) reported to the RNCs. Four of the RNCs managed units that housed resident clients, one RNC supervised the Medical Clinic, while the other three RNCs had various administrative responsibilities. All RNCs served on the Nursing Executive Committee. Grievant was the unit manger of one of four units. She was responsible for 172 resident clients living in 12 cottages, four RNs and 12 LPNs. She had regular interaction with resident clients, was responsible for training, planning for community placement of clients, scheduling, coordination and overseeing the medical and dietary needs of clients. She was on call 24 hours per day if there were problems in her unit and carried a pager for this purpose.

The grievant’s current position as a RNC in the Medical Clinic involves supervision of two LPNs, supervision of the nursing schedules, gathering and analyzing data, coordination of health services, setting standards for nursing practice, assessing need for new medical equipment and serving as the Nursing Services Training Coordinator.⁴ Her duties include serving on interview panels, performing physical assessment on clients, nutritional management assessments, making rounds throughout the facility, monitoring the quality of nursing input and arranging monthly training sessions for nurses. She has remained in the same pay grade as her prior position, retained the same salary and benefits and is working on the same shift (day shift). The grievant no longer reports directly to the Director of Nursing; rather, she reports to the RNC in charge of the Medical Clinic. Grievant is the only RNC who does not report directly to the Director of Nursing. She is no longer on call 24 hours per day.

Three primary factors played a role in the grievant’s transfer. First, the May 2000 incident in which the patient was burned generated a significant amount of attention for the facility. As a result, the agency’s central office management mandated certain changes, while facility management determined that a wholesale reorganization of reporting relationships and personnel was needed. Second, the facility director and Director of Nursing considered certain performance problems the grievant had experienced.⁵ Finally, the grievant’s experience and knowledge were considered valuable in the Medical Clinic position. The fact that the grievant was the manager of the unit in which the May 5, 2000 incident occurred was not considered in making the decision to transfer the grievant.

In October 2000, a human resources analyst conducted a review audit of grievant’s current position in the Medical Clinic. She determined that grievant’s current position has less direct management responsibility than her prior position but has more facility-wide administrative responsibility. She further concluded that the grievant’s new position in the Medical Clinic does not represent a demotion from her prior 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:

As a state employee subject to the Virginia Personnel Act, a transfer or reassignment must be either voluntary, or, if involuntary, must be based on objective methods and must adhere to all applicable statutes and to the policies and procedures promulgated by the Department of Human Resource Management (DHRM).⁶ Management has the authority to transfer an employee to meet the agency’s legitimate operational needs.⁷

§ 2.1-116.06(B) of the Code of Virginia makes clear that the grievance procedure is not a mechanism to shift the management and personnel decisions away from management.

Grievant maintains that her transfer to the Medical Clinic constituted a demotion. She acknowledges that her pay, benefits and all other conditions of work remain the same as before. However, she contends that the change in her responsibilities have resulted in a loss of management responsibility and a loss of prestige. Grievant now directly supervises fewer people than she did in her prior position and that can reasonably be considered a decrease of management responsibility. She is now expected to work only the day shift and is not on call 24 hours per day. While some would welcome this change, grievant contends that it is a diminishment of management responsibility that results in a loss of prestige as compared to unit managers.

The agency’s witnesses established that grievant was selected for transfer to the Medical Clinic based upon her experience, level of education (greater than other RNCs), the performance problems she had been experiencing, and the needs of the facility. The Director of Nursing also candidly acknowledged that the relationship between her and the grievant had been less than ideal because of the performance problems. She felt that it would be beneficial to both the agency and the grievant if someone else was directly supervising the grievant. The grievant presented no evidence that directly rebutted this rationale. Rather, she maintains that the transfer was retaliation because she had filed a grievance in March 2000.

Grievant contended that she received more oversight and memoranda from the Director of Nursing after she filed a grievance in March 2000. She suggests that this increased scrutiny was retaliation by the Director of Nursing after the filing of her grievance. However, grievant failed to produce any evidence to support this contention. The Director denied that she increased her scrutiny as a result of the grievance filing in March. She notes that there had been some performance problems with grievant well before the grievance and some problems that occurred after the grievance. Grievant has not provided a preponderance of evidence to support her allegation of retaliatory scrutiny by the Director of Nursing.

Grievant’s witness, the facility’s training director, was also affected by the reorganization that occurred in the summer of 2000. He had previously reported to the facility director but now reports to the human resource director. He felt that this change in reporting relationship was appropriate. He had no knowledge or evidence that would suggest that the Director of Nursing (DON) would take retaliatory action.

Grievant has also noted that, in February 2001, she was removed from the Nursing Executive Committee. The DON learned that policy provided that the Committee should consist only of those who directly reported to the DON. Since grievant had been reporting to the RNC in charge of the Medical Clinic, she was no longer needed on the Committee. In any case, this change occurred more than eight months after grievant filed her grievance. Because the grievant was still on the Committee when she filed this grievance, this issue has little or no relevancy.

The evidence establishes that grievant’s transfer to the Medical Clinic was involuntary. However, grievant has presented no evidence that any DHRM policies or procedures were not followed. Moreover, the evidence presented by the agency established credible reasons for their decision to act expeditiously and for their selection of the grievant as the most appropriate person for the position. While some of the bases for grievant’s selection were necessarily subjective, objective criteria were used to the extent possible.

The evidence also establishes that grievant’s transfer was, in part, based on performance problems. The facility director and the DON cited various performance problems experienced by the grievant. However, these performance problems (except for the Group I Written Notice issued in January 2000) were not significant enough to warrant disciplinary action. Since there had been no hesitancy to issue a Written Notice for attendance, the DON, more likely than not, would not have hesitated to issue other Written Notices if grievant’s performance problems had warranted such discipline. Therefore, it must be concluded that grievant’s problems, while of concern, were not so severe as to warrant either discipline or the imposition of transfer as a disciplinary action.

However, even if one were to conclude that the transfer was partially intended as a disciplinary measure, one must examine whether the transfer was adverse and effectuated for disciplinary reasons. Grievant contends that the reduction in management responsibility resulted in loss of prestige. However, this ignores the increase in administrative responsibility given to the grievant. While she obviously attaches more prestige to management responsbility, the importance of her administrative responsibilities must also be given appropriate weight. From an agency perspective, both functions are important and necessary to accomplishing the agency’s mission.

A reassignment can constitute an adverse employment action only if a grievant can show that the reassignment had some significant detrimental effect on the terms, conditions or benefits of her employment.⁸ The preponderance of evidence supports a conclusion that the transfer was not a demotion for two reasons. First, the grievant retains the same pay, benefits and other conditions of work. Second, a thorough audit and evaluation by a human resources analyst concluded that the change from more management responsbilities to more administrative responsibilities did not constitute a demotion. Therefore, while grievant did participate in a protected activity (filing a grievance), the transfer was not an adverse employment action.

The Hearing Officer concludes that (i) grievant’s reassignment was not a demotion, (ii) the assessment of grievant’s performance did not escalate after she filed a grievance, (iii) the transfer was appropriate for, and continues to utilize, grievant’s skills (albeit in different proportions) and, (iv) the reassignment was predicated upon the needs of the institution. Therefore, the grievant has not borne the burden of proof to show, by a preponderance of the evidence, that her transfer was disciplinary, retaliatory or unwarranted.

The transfer/reassignment of the grievant on July 10, 2000 to the Medical Clinic is AFFIRMED.

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