Issue: Qualification, Performance; Arbitrary/Capricious; Ruling Date: June 11, 2001; Ruling #2001-006; Agency: Department of Medical Assistance Services; Outcome: Not Qualified

QUALIFICATION RULING OF DIRECTOR

In the matter of the Dept. of Medical Assistance Services No. 2001-006

June 11, 2001

The grievant has requested a ruling on whether her November 20, 2000 grievance with the Department of Medical Assistance Services (DMAS) qualifies for a hearing. The grievant claims that management gave her an arbitrarily or capriciously low annual performance evaluation in October 2000.¹ The relief requested is a revised performance appraisal with an overall rating of "Meets (or Above) Expectation," and a merit pay increase. As explained further below, this grievance does not qualify for hearing.

The grievant is employed by DMAS. On October 26, 2000, the grievant received her 2000 annual performance evaluation with an overall rating of Fair But Needs Improvement. The evaluation consisted of six job elements upon which the grievant’s performance was rated. She received the rating of Fair But Needs Improvement on all six job elements. Her grievance challenges the overall rating of Fair But Needs improvement.

The grievance statute and procedure reserve to management the exclusive right to establish performance expectations and to rate employee performance against those expectations.² Accordingly, to qualify this issue for a hearing, there must be facts raising a sufficient question as to whether the grievant’s performance ratings were "arbitrary or capricious."³

"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.⁴

The grievant claims that her performance expectations were unattainable due to the high volume of work she was assigned, along with additional administrative duties. Specifically, the grievant asserts that she was assigned substantially more receivables this year than last, and more than similarly situated employees previously in the position had been; she also asserts that she had more administrative duties than others had. The grievant offers as support for her claim the fact that she was required to collect all the relevant accounts receivable balances early in the summer, which required "a great deal of additional work." Also, the agency did not provide her with clerical support to "assist with making copies, answering telephone calls, researching provider names from the credit balance report, and researching add-pays." Finally, the grievant points out that she is a fully qualified professional who worked numerous overtime hours, yet was still unable to attain the quality, timeliness and quantity of work expected of her during this evaluation period.

Management has acknowledged that the grievant has the experience to fill the position, but has stated that the evaluation is not based on this, but rather on her actual job performance. Management has also recognized that the grievant "always demonstrates a positive attitude, and [has] worked significant overtime during the last year to get the work caught up." However, management maintains that the grievant’s performance did not meet the associated expectations.

In response to this grievance, management conducted a review and determined that the grievant’s overall workload in FYE 2000 had actually decreased compared to FYE 1999.⁵ Also, a review of the work assigned and completed by three of the grievant’s predecessors in the position determined that they had been assigned a similar volume of work to her, which they had completed in a timely manner with fewer errors. In addition, while recognizing that the grievant had to perform administrative tasks, management stated that her comparators had the same duties (although, due to fewer errors and greater timeliness, they spent less time on the telephone addressing these issues). Based on this review, management has responded that the overall work volume did not increase, and that the performance expectations were reasonable and demonstrably achievable. Most importantly, however, the supervisor has well documented her business reasons for the ratings received by the grievant, as required by policy.⁶ Furthermore, the grievant has failed to provide evidence to show that management determined the disputed overall rating by pure will or whim, without regard to the facts, or that her workload was so unreasonably high as to render a rating of Meets Expectations or above impossible to achieve.

In sum, although there is obvious disagreement between the grievant and her supervisor regarding the annual performance evaluation, there is insufficient evidence to support the assertion that the ratings were determined without a basis in fact. Rather, it appears that grievant’s complaint centers on the exercise of judgment by her supervisor in evaluating her performance. Accordingly, this issue does not qualify for hearing.

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 will 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

Jeffrey L. Payne
Employment Relations Consultant