Issue: Compliance, Documents; Qualification, Performance-Arbitrary/Capricious; Ruling Date May 16, 2001, Ruling #2001-004 and 2001-WW; Outcome: Agency in Compliance, Not qualified Appealed to the Circuit Court of Dinwiddie County (qualification issue); (May 30, 2001); Affirmed EDR's ruling-dismissed with prejudice on August 8, 2001; Case #Law 01-41.

In the matter of Department of Mental Health, Mental Retardation, Substance Abuse Services, No. 2001-004 and 2001WW

May 16, 2001

The grievant has requested a ruling on whether her grievance with the Department of Mental Health, Mental Retardation, Substance Abuse Services (DMHMRSAS) qualifies for a hearing. The grievant claims that her 2000 performance evaluation is arbitrary or capricious and retaliatory. Additionally, she has requested a compliance ruling for management’s alleged failure to provide her with documentation related to her grievance. For the reasons discussed below, we find that management is not out of compliance with the grievance procedure and that this grievance does not qualify for hearing.

The grievant is employed as a Registered Nurse with DMHMRSAS and received an Exceeds Expectations on her 1999 annual performance evaluation. On October 6, 2000 the grievant received her 2000 annual performance evaluation in which her overall performance was rated as "Fair, But Needs Improvement." The performance evaluation consisted of six elements of which three were rated as "Meets Expectations" and the remaining three were rated as "Fair, But Needs Improvement."

The grievant maintains that (i) her overall performance rating should be changed to "Exceeds Expectation," (ii) her immediate supervisor failed to properly document the reasons for the low ratings; and (iii) that her supervisor used the performance evaluation process to retaliate for her participation in mediation and her filing of a formal complaint with the Office of Equal Employment Opportunity (EEO).

The grievance statute provides that "[a]bsent just cause, all documents, as defined in the Rules of the Supreme Court of Virginia, relating to actions grieved shall be made available upon request from a party to the grievance, by the opposing party."¹ This Department’s interpretation of the mandatory language "shall be made available" is that absent just cause, all relevant grievance-related information must be provided.

The grievance statute further states that "[d]ocuments pertaining to nonparties that are relevant to the grievance shall be produced in such a manner as to preserve the privacy of the individuals not personally involved in the grievance."² Documents, as defined by the Rules of the Supreme Court of Virginia, include "writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form."³ However, a party is not required to create a document if the document does not exist.⁴ To summarize, absent just cause, an agency must provide the grieving party with all relevant documents upon request, in a manner that preserves the privacy of other individuals.⁵

In this case, the grievant has requested "all quarterly reviews, written counseling by her supervisor and documentation from QMRPs within a select unit" regarding her performance. During this Department’s investigation, management responded that quarterly reviews were not prepared for the grievant and therefore do not exist. Likewise, there is no documentation or written feedback to provide the grievant from QMRPs who may have had an opportunity to work with her. Management stated that Quality Mental Health Professionals (QMRP) do not evaluate or assess the performance of registered nurses. The grievant also asserts that she never received what she considers to be written counseling by her supervisor. However, management and the grievant submitted substantial documentation indicating that written (and verbal) counseling took place throughout the 2000 performance year. There is no evidence, however, that management has failed to provide grievant with access to any such written documents for purposes of her grievance. Therefore, we cannot conclude that the agency is out of compliance with the grievance procedure’s document production requirements.

The grievance statute and procedure reserve to management the exclusive right to establish performance expectations and to rate employee performance against those expectations.⁶ Accordingly, to qualify this grievance for a hearing, there must be facts raising a sufficient question as to whether the grievant’s performance ratings were "arbitrary or capricious."⁷

"Arbitrary or capricious" means that management determined the rating without regard to the facts, by pure will or whim. An arbitrary or capricious performance evaluation is one that no reasonable person could make after considering all available evidence. If an evaluation is fairly debatable (meaning that reasonable persons could draw different conclusions), it is not arbitrary or capricious. Thus, mere disagreement with the evaluation or with the reasons assigned for the ratings is insufficient to qualify an arbitrary or capricious performance evaluation claim for a hearing when there is adequate documentation in the record to support the conclusion that the evaluation had a reasoned basis related to established expectations.⁸

In support of her position that the performance evaluation was without a reasoned basis, the grievant states on her Form A that the low ratings reflect the supervisor’s personal animosity toward her, rather than her work record. Further, the grievant maintains that her supervisor failed to give her appropriate feedback or quarterly reviews on her perceived performance to allow her to take any necessary corrective action. Grievant states that her supervisor gave her an annual overall rating of Exceeds Expectations for the 1999 cycle and that she maintained that level or higher for the 2000 cycle.

Management claims, however, that the 2000 evaluation was based upon documented problems with the grievant’s performance and inappropriate interpersonal skills throughout the 2000 performance cycle. As supporting evidence, at the second resolution step, management listed in chronological order the incidents related to the grievant’s performance and conduct that took place throughout the year. Grievant received notice of management’s assessment of most if not all of these incidents soon after they took place.⁹ The fact that these incidents were not documented on a particular form does not, as the grievant appears to claim, lead to the conclusion that her evaluation was without a basis in fact.¹⁰

Therefore, in light of management’s documentation of various performance issues throughout the performance cycle, this grievance fails to raise a sufficient question as to whether the grievant’s performance evaluation was arbitrary or capricious. Accordingly, this issue does not qualify for hearing.

The grievant further claims that her 2000 performance evaluation ratings were lowered in retaliation for having filed an EEO complaint. For a claim of retaliation to qualify for a hearing, there must be evidence raising a sufficient question as to whether (1) the employee engaged in a protected activity;¹¹ (2) the employee suffered an adverse employment action; and (3) a causal link exists between the adverse employment action and the protected activity; in other words, whether management took an adverse action because the employee had engaged in the protected activity. If the agency presents a nonretaliatory business reason for the adverse action, the grievance does not qualify for a hearing, unless the employee presents sufficient evidence that the agency’s stated reason was a mere pretext or excuse for retaliation.¹²

It is undisputed that the grievant engaged in a protected activity by filing an EEO complaint. Furthermore, the grievant’s "Fair, But Needs Improvement" performance evaluation could be viewed as an adverse employment action. Thus, the only question remaining is whether a causal link exists between the filing of the complaint and the performance evaluation.

There is close proximity in time between the filing of the EEO complaint on September 15, 2000 and issuance of the performance evaluation on October 6, 2000. However, proximity in time alone does not raise a sufficient question of retaliatory intent. Moreover, the agency has offered a legitimate business reason for the performance evaluation rating --- the grievant’s documented ineffective communication and interpersonal skills, documentation which predates the filing of her EEO complaint. Apart from a proximity in time, the grievant offers no evidence that management’s stated reasons for its actions were only a pretext for retaliation for the filing of the EEO complaint.

For information regarding the actions the grievant may take as a result of this ruling, please refer to the enclosed sheet. If the grievant wishes to appeal this determination to the circuit court, she must notify the human resources office, in writing, within five workdays of receipt of this ruling. If the court should qualify this grievance, within five workdays of receipt of the court’s decision, the agency must request the appointment of a hearing officer unless the grievant notifies the agency that she does not wish to proceed.

Neil A.G. McPhie, Esquire
Director

Tracey D. Watkins
Employment Relations Consultant