In the matter of Department of Environmental Quality Case Number 5237

Hearing Date: July 30, 2001

Decision Issued: September 7, 2001

Grievant received an evaluation on September 21, 2000. On October 5, 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 June 26, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On July 30, 2001, a hearing was held at the Agency’s regional office. Upon motion of a party, the Hearing Officer found just cause to grant an extension of the 30 day time frame for issuing the decision because of the conflicting schedules of the parties.

Grievant

Agency Party Designee

Agency Representative

1. Whether Grievant's September 2000 evaluation is arbitrary or capricious.
2. Whether the Agency retaliated against Grievant.

The burden of proof is on the Grievant to show by a preponderance of the evidence that his evaluation is arbitrary or capricious and that the Agency retaliated against him. 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:

The Department of Environmental Quality employs Grievant as an Environmental Engineer Consultant. His working title is Technical Expert. The chief objective of his position is:

(Agency Exhibit 2). The Supervisor drafted the Job Description using in part, Grievant’s old Job Description, but updating it to reflect the Agency’s new objectives. The Supervisor has been supervising Grievant for approximately two and a half years.

On December 7, 1999, the Supervisor presented Grievant with a Performance Plan outlining seven Job Elements – (1) Customer Service, (2) Technical Support, (3) Pollution Prevention Program Support, (4) Computer Management Systems – Technical Assistance, (5) Special Projects, (6) Environmental Impact and Assessment Program, and (7) Training and Outreach. Expectations were specified for each Job Element. Attachment A contains the Job Elements and Expectations.

The Supervisor obtained the Reviewer’s approval of the Performance Plan and presented the Plan to Grievant. The Supervisor discussed each element of the Plan with Grievant. In prior years, Grievant had made written comments and suggestions on his Performance Plans. He did not offer any proposed changes to the 1999 Plan – he simply refused to sign the Performance Plan because he did not believe he had the knowledge, skills, and abilities required by the Performance Plan. He did not appeal the Performance Plan.

Grievant received a midterm performance review addressing his performance from November 11, 1999 to April 30, 2000. The Supervisor described Grievant’s overall performance as:

(Agency Exhibit 8).

Employee evaluations contain ratings for each Job Element identified in the Performance Plan and an overall rating. There are five possible ratings: (1) Exceptional, (2) Exceeds Expectation, (3) Meets Expectation, (4) Fair But Needs Improvement, and (5) Does Not Meet Expectation.

On September 21, 2000, the Supervisor signed Grievant’s Performance Evaluation which described Grievant’s Overall Performance Level as Fair But Needs Improvement. The effect of this rating was to deny Grievant an increase in salary given to other State employees receiving a rating of Meets Expectations or higher. For each Job Element, Grievant received the following rating:

In 1996, Grievant filed a grievance contesting his transfer from a position with supervisory responsibilities to one without these responsibilities. The Hearing Officer ruled that the transfer was arbitrary but was not based on disciplinary action. He recommended, but did not order, that Grievant be reinstated to his former position. (Grievant’s Exhibit 8). The Agency refused to follow the recommendation and argued that the recommendation was not binding. Grievant asked the Circuit Court to compel the agency to abide by the recommendation. The Circuit Court ruled in favor of Grievant and awarded him attorney’s fees. The matter was appealed to the Supreme Court of Virginia which reversed the Circuit Court decision thereby denying Grievant the relief he sought and denying him attorney’s fees.

A member of the General Assembly introduced a bill on January 12, 2000 seeking to reimburse Grievant $22,000 for the costs he expended pursuing his grievance. The Agency Director sent letters to several prominent members of the General Assembly expressing the Agency’s "strong opposition" to the bill awarding Grievant reimbursement. The bill was passed by indefinitely in committee. (Grievant’s Exhibit 8).

At the beginning of a performance cycle, an agency and an employee develop a Performance Plan². The Performance Plan sets forth the standard used to measure an employee’s performance. At the end of the performance cycle, a supervisor drafts a Performance Evaluation rating and describing an employee’s performance during the year.

An employee who disagrees with his or her Performance Plan should discuss his or her concerns with the employee’s supervisor. If the disagreement cannot be resolved, the employee may appeal the dispute to his or her reviewer. ³The reviewer is typically the supervisor of the employee’s immediate supervisor. An employee’s appeal to the reviewer must be in writing and within ten working days of the employee’s receipt of his or her Performance Plan. Department of Human Resource Management, Policies and Procedures Manual ("P&PM") § 1.40(III)(D).

Grievant refused to sign his 1999 Performance Plan, but he did not file an appeal. For all practical purposes, he is bound by the terms of the Performance Plan. His contention that he was placed in a job for which he lacked the requisite knowledge, skills, and abilities is moot. Assuming for the sake of argument that his contention is true, it would not in itself render his Performance Evaluation arbitrary or capricious. Grievant should have raised his concerns to the reviewer at the time the Performance Plan was developed.⁴

Performance Evaluation

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).

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). Performance Evaluations should reflect performance levels for the entire performance cycle. P&PM § 1.40(V). A performance cycle begins on November 1 of a given year and ends on October 31 of the following year. P&PM § 1.40(II)(E). 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 Hearing Officer may have rated Grievant differently on some Job Elements, the Performance Evaluation is not arbitrary or capricious.

The standard applied to Grievant’s evaluation 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.

Grievant makes several arguments as to why his evaluation is arbitrary or capricious. The Agency presented sufficient credible evidence to rebut his arguments. As a result, it is equally likely that Grievant’s version of events and the Agency’s version of events is correct. Because the Grievance Procedure Manual places the burden of proof on the Grievant, the relief he seeks must be denied.

Many aspects of Grievant’s poor evaluation revolve around the Agency’s expectations about his ability to act independently and initiate communication with others. If Grievant’s Performance Plan did not specify this requirement, then his evaluation would be arbitrary or capricious in that respect. Several job elements require Grievant to initiate communications with others. For example, the Customer Service job element states, "Develop and maintain effective working relationships in performance of duties." The Technical Support job element states, "Identify technical support needs by communicating and collaborating with staff and program managers." The Training and Outreach job element states, "Develop participate in and/or lead outreach seminars …. Organize, participate in and/or lead public meetings …. [D]eveloping outreach activities/information sessions for regional staff and area industry."

In additional to job elements, Grievant’s Performance Plan includes performance factors upon which his performance can be measured. These include Interpersonal Relations⁶ and Communications. ⁷

Much of Grievant’s poor evaluation can be traced to his failure to initiate communications. In the Overall Performance Comments section of the Evaluation, the Supervisor states, "[Grievant] showed an inability to take the self-initiative role. Rarely if at all did [Grievant] confer with his supervisor to seek input for problem solving or other work activity. Communication was basically one-sided, that which the supervisor initiated."

The testimony presented at the hearing supports the Agency’s position that Grievant does not effectively initiate communication. The Supervisor testified that most of his meetings with Grievant took place in Grievant’s office because Grievant infrequently left his office. The Supervisor discouraged Grievant from using email in order to force Grievant to communicate with the Supervisor through face-to-face meetings.

During the midterm performance review, the Supervisor recommended to Grievant that he make certain improvements in his performance. These recommendations included, "Improve communications with supervisor by talking/discussing directly with supervisor about work activities." and "Take the initiative and pursue opportunities to work with Program Managers and provide technical support." Grievant was given reasonable notice during the midterm performance review of the things he needed to do in order to improve his performance.

There were numerous opportunities for Grievant to begin a dialog with internal and external customers. For example, Grievant could have attended the pollution prevention retreat but he assumed he could not attend unless specifically invited by the group or directed to attend by his supervisor. The Agency’s evaluation of Grievant with respect to his actions initiating communication is not arbitrary or capricious.

Grievant’s arguments and the Agency’s response, in italics, include:

1. Grievant completed all assignments on time and often before the deadlines.

The Agency gave Grievant credit for his timeliness but that his failure to initiate activities is the reason why he was downgraded.⁸

2. None of Grievant’s work was returned to him as being deficient.

Grievant received credit for the work he did.

3. No clear explanation guidance, or direction of what was expected was provided to Grievant at the beginning or during the cycle.

The Supervisor met with Grievant at the beginning of the performance cycle and explained each job element. In addition, the Supervisor explained the job element again during the mid-term evaluation.

4. Supervisor does not want to provide Grievant with daily work.

7. Grievant was not part of the Pollution Prevention staff and was not invited to their retreat.

An Agency may not retaliate against its employees. Retaliation is defined by Section 9 of the Grievance Procedure Manual as: "Actions taken by management or condoned by management because an employee exercised a right protected by law or reported a violation of law to a proper authority (e.g. ‘whistleblowing’)." In order to prove retaliation, Grievant must shows (1) he was engaged in a protected activity, (2) he suffered an adverse employment action, and (3) a causal link exists between the adverse employment action and the protected activity.

Grievant was engaged in a protected activity when he filed his previous grievance and sought changes related to State law regarding reimbursement for his expenses and changes in a Circuit Court’s enforcement of Hearing Officer recommendations. Grievant suffered an adverse employment action when he received a poor performance evaluation preventing him from receiving a salary increase. What Grievant has failed to prove is that there is any link between his protected activities and his adverse employment action. Grievant’s poor performance evaluation resulted from the Supervisor’s perception that Grievant’s performance was lacking. No credible evidence was presented suggesting that the Supervisor acted at the direction of the Agency Head or otherwise conspired with Agency management to harm Grievant because he engaged in protected activities.

When an agency creates a new position, it should give consideration primarily to its business needs rather than to the particular aspects of the employee who may be selected for the position. When an agency revises a position description and performance plan of an existing employee, however, an agency should give at least some consideration as to whether the employee whose position is being changed is the type of employee who will excel under the new position requirements.

The Performance Plan as written and interpreted by the Supervisor calls for an employee who is aggressive, outgoing, and extroverted as well as intelligent and knowledgeable. It is clear to the Hearing Officer that Grievant is very intelligent and knowledgeable in his field. It is also clear to the Hearing Officer that Grievant is not particularly outgoing or extroverted. A well-managed agency should recognize this distinction ¹⁰ and either provide Grievant with greater direction or alter his Performance Plan to focus on his rather obvious skills as well as the Agency’s business needs. The Hearing Officer recommends that the Agency, at its sole discretion, revise Grievant’s future Performance Plans to (1) more accurately reflect his job description ¹¹and (2) account for Grievant’s degree of extroversion. The Agency may benefit from having Grievant and the Supervisor receive training on Personality Typing such as the Meyers-Briggs type indicator.

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

¹Grievant met with the Supervisor's supervisor to discuss his evaluation. Joe Element 6 was modified slightly but not so as to change the rating. (Agency Exhibit 6).

² Grievant's evaluation process is governed by P&PM § 1.40 in effect beginning September 16, 1993. This policy was superceded on April 1, 2001 and revised on August 1, 2001.

³ An employee's appeal is to the reviewer even though the reviewer must approve the Performance Plan before the employee first sees it. See, Performance Evaluation Handbook for Supervisors, which states, "The reviewer must approve the performance plan before it is communicated to the employee."

⁴ Had Grievant appealed his Performance Plan, he may very well have had several strong arguments requiring the revision of his Performance Plan. Policy 1.40(III)(A) (effective 09/16/93) requires a supervisor to (1) develop a Performance Plan by identifying job elements based on the description of an employee's position, and (2) establish performance expectations that reflect the requirements of the position. Grievant's Performance Plan differs from his job description in the degree to which Grievant is expected to initiate communication. In addition, Grievant's job description requires him to develop and maintain expertise in environmental regulations, yet his Performance Plan does not address this duty. Furthermore, Grievant's Performance Plan requires him to manage the regional environmental impact/review assessment program, yet this duty is not mentioned in his position description. Many of Grievant's responsibilities for Training and Outreach in his Performance Plan do not appear in his job description. Although there are other examples, the inconsistencies between Grievant's job description and Performance Plan are irrelevant, given that the time period to appeal those inconsistencies has passed.

⁵ Grievant's evaluation was completed September 21, 2000 which is before the performance cycle ended on October 31, 2000. This fact alone does not render Grievant's evaluation arbitrary or capricious. The Department of Human Resource Management affords agencies some leeway in completing evaluations. One DHRM annotation to Policy 1.40 states:

In granting agencies a period of over two months in which to conduct evaluations, "it [is] assumed that the level of employees' performance from November 1 to August 16 would be consistent with their performance from August 16 to November 1. If, however, aberrational conduct occurs between the time an employee's evaluation is completed and November 1 which would result in a change in performance rating, then the employee's evaluation should be changed accordingly."

⁶The extent to which the employee establishes effective working relationships when dealing with supervisors, co-workers, clients, and/or customers.

⁷The extent to which the employee effectively expresses ideas orally or in writing as required to perform the job.

⁸For example:

1. Regarding Customer Service, the Manager wrote, "Typically, [Grievant] responded timely to such inquiries."
2. Regarding Special Projects, the Manager wrote, "Responded timely …."
3. Regarding Environmental Impact and Assessment Program, the Manager wrote, "Final regional submittals were most often provided in a timely manner."

⁹ For example, the Agency offered Grievant training on pollution prevention on March 27, 2000 and March 28, 2000. Pollution prevention is one of the areas Grievant believes he lacks the necessary skills to perform the duties under his Performance Plan.

¹⁰Among the greatest management achievements is to take a poorly performing employee and turn him into an exceptional employee. All of the ingredients necessary for that scenario are present.

¹¹ Also known as Employee Work Profile.