Issue: Qualification, Position/Classification: Working out of Class - Failure to Take Action; Outcome: Not qualified; Issue: Compliance, Multiple Grievances, Harassment, Transfer, Outcome: In compliance (grievant); Ruling date March 28, 2001; Ruling #2001-005, 2001-019, 2001MM

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution


QUALIFICATION and COMPLIANCE RULING OF DIRECTOR

In the matter of Department of Environmental Quality
March 28, 2001
Ruling #2001-005, 2001-019, 2001MM


The grievant has requested a ruling on whether his March 3, 1999 grievance with the Department of Environmental Quality (DEQ) qualifies for a hearing. He also seeks compliance rulings on two other grievances that DEQ has declined to process because of alleged non-compliance with the grievance procedure. For the reasons discussed below, his March 3, 1999 grievance does not qualify for hearing. This Department, however, concludes that the two other grievances challenged by DEQ are compliant with the grievance process.

FACTS

On March 3, 1999, the grievant initiated a grievance in which he claimed unjustified actions on the part of DEQ: functional demotion, involuntary demotion, retaliation, misapplication of policy, disciplinary action, and arbitrary action.1 This Department concluded in its December 28, 1999 ruling that the grievant's March 3rd grievance was out of compliance as to each of those issues except certain alleged acts of retaliation because all issues, except those alleged acts of retaliation, had previously been raised in a 1995 grievance.

At the grievant's request, this Department reconsidered its December 28, 1999 ruling and issued a modification on February 10, 2000. The modified ruling held that the grievant would be allowed to proceed with his claim of policy misapplication, based on his contention that his current position did not support a grade 14 classification, because that specific claim had not been raised in his 1995 grievance. The modified ruling did not, however, affect this Department's previous determination that the grievant could proceed with the retaliation component of his March 3, 1999 grievance.

On January 28, 2000, at the second resolution step, DEQ asserted for the first time that the grievant's retaliation claim was untimely because it was filed more than 30 calendar days after the event that gave rise to it - the grievant's December 9, 1998 transfer. This Department concluded in a June 23, 2000 ruling that while the retaliation claim was untimely, the grievant would be allowed to proceed with his policy misapplication claim, essentially because the alleged misclassification of his current position would constitute a continuing violation.2 The grievant advanced his grievance through the resolution steps. After the agency head denied qualification of his grievance, the grievant requested qualification by this Department.

On October 23, 2000, the grievant was informed that as a result of the Commonwealth's adoption of a new compensation system, he had been crosswalked from the classification of Environmental Engineer Consultant (EEC) into the role of Environmental Specialist II (ESII). On November 21, 2000, the grievant initiated a grievance challenging his placement into the ESII role, a practitioner role, as an unfair application or a misapplication of the new classification/compensation policy. The grievant also claimed, among other things, that the action constituted a demotion.

On December 1, 2000, management transferred the grievant from Permitting to Enforcement, where his role remained ESII. On December 26, 2000, the grievant initiated a grievance based upon the December 1st transfer. The grievance alleged, among other things, that the move constituted an adverse employment action because the grievant no longer had management or supervisory duties; misuse/misapplication of the classification/compensation system; and retaliation.

Management has declined to process the November 21st and December 26th grievances, indicating that they constitute harassment and claiming that they duplicate the claims set forth in the March 3, 1999 grievance.

DISCUSSION

QUALIFICATION: The March 3, 1999 Grievance

The sole issue remaining from the grievant's March 3, 1999 grievance is the alleged misapplication of state classification policy. The grievant asserts that the agency misapplied policy by classifying him in a position and grade that was not supported by the work he was assigned.

For a misapplication of policy claim to qualify for a hearing, there must be evidence raising a sufficient question as to whether management violated a mandatory policy provision, or acted in a manner so unfair as to amount to an abuse of discretion under the applicable policy. Further, if a claim of policy misapplication is qualified and proven at a hearing, the relief that a hearing officer can order is limited to directing the agency to reapply the policy from the point at which it was misapplied. A hearing officer may not order damages or attorney's fees, or any other prospective relief.3

As a result of the grievant's crosswalk to the ESII role and his subsequent transfer to Enforcement, the question of whether his former Permitting position was properly classified was supplanted by the questions of whether: (1) the grievant was properly crosswalked, and (2) his current position is properly classified.4 Because a hearing officer can grant no effectual relief with respect to the issue of whether the grievant's Permitting position was properly classified, the March 3, 1999 grievance is not qualified for hearing. However, as explained below, this Department has found the November 21st and December 26th grievances are in compliance with the grievance process and will be allowed to proceed.5

COMPLIANCE: The November 21, 2000 and December 26, 2000 Grievances

DEQ has challenged the November 21, 2000 and December 26, 2000 grievances on the basis that they allegedly duplicate the claims set forth in the March 3, 1999 grievance and that they constitute harassment. For the reasons set forth below, this Department concludes that the November and December grievances are in compliance with the grievance procedure and may proceed.

Duplicate Claims

These grievances raise the issues of whether the assignment to the ESII practitioner role was appropriate and whether the grievant was properly classified after his transfer to Enforcement, in other words, whether the grievant was properly crosswalked and is correctly classified currently.

Furthermore, the issues raised in the November and December 2000 grievances are different from those raised in the March 1999 grievance. The grievant claims in both the 2000 grievances that as a consequence of two different and, more importantly, new agency actions (the crosswalk and transfer to Enforcement) he is not properly classified. The crosswalk resulted in the grievant being assigned to the new ESII role. The transfer to Enforcement resulted in the grievant assuming new job duties. Accordingly, this Department does not view the classification issues raised in the 2000 grievances as challenging the same action or arising from the same facts as did the March 1999 grievance. The 2000 grievances may raise issues similar to that of the March 1999 grievance, but the 2000 grievances are based on different management actions (the crosswalk and transfer to Enforcement) than the one that formed the basis of the March 1999 grievance (the move to and subsequent structuring of the Permitting position).

In his December 2000 grievance, the grievant also alleges that the agency retaliated against him for having filed prior grievances and for having worked with the legislature to change the grievance statutes.6 A claim of retaliation was also raised in his March 1999 grievance; that retaliation claim, however, was based on the grievant's 1995 grievance and management's alleged retaliatory acts up to March 1999, when that grievance was filed. Thus, the facts and management actions purportedly giving rise to the March 1999 and December 2000 grievances are not the same.

Harassment of Agency

Also, this Department has concluded that the November and December grievances were not initiated with the intent to harass the agency.7 The Commonwealth's policy "as an employer, is to encourage the resolution of employee problems and complaints.8 To that end, the General Assembly has determined that "the grievance procedure shall afford an immediate and fair method for the resolution of employee disputes which may arise between state agencies and those employees who have access to the procedure."9 Thus, state agencies must execute the administrative tasks required by the grievance process. Nevertheless, employees' rights to pursue grievances shall not be used to harass or otherwise impede the efficient operations of government.10 Therefore, an employee who uses his grievance or grievances to harass or otherwise impede the operations of an agency is out of compliance with the grievance procedure.11

A finding of harassment may be supported by direct or circumstantial evidence which establishes that the grievant knew with substantial certainty that his actions would impede the operations of an agency.12 In addition, the fact-finder may infer that a grievant intends the natural and probable consequences of his acts.13 While neither the number, timing, frivolous nature of the grievances, nor related burden to an agency are controlling factors in themselves, those factors could, in some cases, support an inference of harassment cumulatively or in combination with other factors. Accordingly, whether an employee has used the grievance procedure to harass or otherwise impede an agency's operations must be determined on a case-by-case basis.

The agency has presented no evidence that the grievant initiated his grievances to harass or otherwise impede an agency's operations.

Consolidation

Finally, this Department concludes that should the grievant desire to advance the November and December 2000 grievances, they are to be consolidated at the Agency Head qualification stage and be treated as a single grievance.

APPEAL RIGHTS AND OTHER INFORMATION

Qualification:

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 the qualification determination to the circuit court, please 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 will request the appointment of a hearing officer unless the grievant notifies the agency that he does not wish to proceed.

Compliance:

For the reasons discussed above, this Department has determined that the November and December 2000 grievances are in compliance with the grievance process. These conclusions are not indicative of this Department's opinion regarding the relative merit (or lack thereof) of the November and December grievances. This Department expresses no such opinion. By copy of this ruling, the agency is advised to respond to the November and December grievances and return them to the grievant within 5 days from the receipt this ruling. This Department's rulings on matters of compliance are final and nonappealable.14

 

Neil A.G. McPhie, Esquire
Director

William G. Anderson, Jr.
Employment Relations Consultant

1 Please note that recent changes to the grievance statute have resulted in changes to the grievance procedure. If a grievance was filed on or after July 1, 2000, the grievance will be governed by the new procedure (Grievance Procedure Manual, effective July 1, 2000). If a grievance was filed before July 1, 2000, the grievance will be governed by the old procedure (Grievance Procedure, effective July 1, 1995, as amended July 1, 1999). Because the March 3, 1999 grievance was initiated prior to July 1, 2000, the qualification portion of this ruling is issued in accordance with the rules contained in the old procedure manual. Because the November 21, 2000 and the December 26, 2000 grievances were initiated after the July 1, 2000 statutory changes to the grievance procedure, both of these grievances and the entire compliance portion of this ruling are governed by the new grievance procedure (Grievance Procedure Manual, effective July 1, 2000). Please also note that effective July 1, 2000, this Department's name was changed from the Department of Employee Relations Counselors to the Department of Employment Dispute Resolution (EDR), and the Department of Personnel and Training became the Department of Human Resource Management (DHRM).
2 When the March 3, 1999 grievance was initiated, it was the Commonwealth's policy that all positions be allocated to their appropriate class on the basis of assigned duties and responsibilities. Agencies thus had a continuing duty to ensure that positions were properly classified in a reasonably timely manner. DHRM Policy 3.05(IV)(C)(1) and (D)(effective 9/16/93).
3 See Grievance Procedure, page 11; Rules for Conducting Grievance Hearings, page 10.
4 The term "classified" is used here in the generic sense. Job "classifications" were abolished under the Commonwealth's new compensation plan (effective September 25, 2000) and replaced with "roles." Throughout this ruling the term "misclassified" shall be considered synonymous with improper placement within a particular role.
5 There are some cases where qualification is inappropriate even if an agency may have misapplied a policy. For example, during the resolution steps, an issue may have become moot, either because the agency granted the specific relief requested by the grievant or an interim event prevents a hearing officer from being able to grant any meaningful relief. Additionally, qualification may be inappropriate where the hearing officer does not have the authority to grant the relief requested by the grievant and no other effectual relief is available. Here, the only relief that a hearing officer could order to remedy the grievant's alleged misclassification would be to direct the agency to reapply the classification policy from the point at which it was misapplied. In other words, assuming that the hearing officer concludes that the grievant's position was not properly classified, the only relief that the hearing officer could order would be that the agency conduct a classification review of the grievant's position in accordance with policy. See Rules for Conducting Grievance Hearings, page 10. The hearing officer could not order that the grievant or his position be classified at a certain level. Id. Nor could the hearing officer order that the grievant be transferred to another position. Id. at page 7. Further, to order a classification review of a position no longer held by the grievant would make little sense. Moreover, during the period following the initiation of the March 3, 1999 grievance, the agency essentially "reclassified" the grievant's position via the crosswalk and transfer to Enforcement. The grievant has concluded that this "reclassification" is still incorrect and, accordingly, he initiated the November 21st and December 26th grievances challenging this "reclassification." For reasons explained later in this ruling, the November and December grievances will be allowed to proceed and, thus, the grievant will have the opportunity to continue to move forward with his assertion that his current position is misclassified.
6 Between his March 1999 and December 2000 grievances, the grievant filed grievances on 10/5/00 and 11/21/00. He was also involved with at least one grievance-related legislative bill brought before the 2000 General Assembly.
7 The Grievance Procedure Manual defines "harass" as an "[a]ction taken with the intent or purpose of impeding the operations of the agency." Grievance Procedure Manual § 9, page 23.
8 Va. Code § 2.1-116.05(A).
9 Id.
10 Va. Code § 2.1-116.05(D).
11 See Grievance Procedure Manual § 2.4, page 3.
12 Cf. W. Page Keeton, Prosser and Keeton on Torts, § 8, page 36 (1984).
13 Id.
14 Va. Code § 2.1-116.03(5).