Issue: Qualification, Performance: Arbitrary/Capricious; Ruling Date: April 3, 2001; Ruling #2001-013, #2001-052; Agency: Virginia Department of Environmental Quality; Outcome: Qualified.

COMMONWEALTH of VIRGINIA
Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Environmental Quality/ No. 2001-13, 2001-052
April 3, 2001

The grievant has requested a ruling on whether his November 27, 2000 grievance with the Department of Environmental Quality (DEQ) qualifies for a hearing.1 In this grievance, the grievant claims that his 2000 performance evaluation is arbitrary, capricious, and retaliatory. For the reasons discussed below, this grievance is consolidated with the grievant’s February 14, 2001 grievance (which has automatically qualified for hearing), and both grievances will be heard together by one hearing officer.

FACTS

In September 2000, the grievant received his 1999-2000 performance evaluation with an overall rating of Does Not Meet Expectations. The evaluation consisted of six job elements upon which the grievant’s performance was rated. He received a rating of Does Not Meet Expectations in each of the six categories.

On January 16, 2001, the agency terminated the grievant under the Standards of Conduct for alleged poor job performance. On February 14, 2001, the grievant filed a second grievance challenging his performance-based termination as wrongful, unfair and retaliatory. This second grievance, which also involves the grievant’s September 2000 performance evaluation, has automatically qualified for a hearing. A hearing on this second grievance has not yet been held.

DISCUSSION

This Department has the authority to consolidate grievances on its own accord and does so when consolidation promotes judicial economy and a more comprehensive understanding of the disputed issues.2 This is such a case. The issue of the grievant’s performance is central to both of his grievances. Thus, the factual issues presented by each grievance are significantly intertwined. Indeed, it may be that the first grievance has now been subsumed by the second. In any event, a hearing officer has already been appointed to determine whether the performance-based termination was warranted and appropriate under the circumstances. It is therefore reasonable under the unique circumstances of this case for the hearing officer to review as well the issue of whether the grievant’s September 2000 performance evaluation is arbitrary, capricious or retaliatory.

At hearing, with respect to the February 14, 2001 grievance, the agency will have the burden of proving, by a preponderance of the evidence, that the February 2001 termination was "warranted and appropriate under the circumstances."3, The hearing officer may either uphold, reduce, or rescind the termination.4 With respect to the November 27, 2000 grievance, the grievant must prove by a preponderance of the evidence5 that his September 2000 evaluation was arbitrary, capricious,6 or retaliatory.7 If the hearing officer so finds, he may direct the agency to redo the September 2000 evaluation on an objective basis related to the performance expectations in the grievant’s performance plan. The hearing officer may not substitute his judgment for that of management by ordering that a specific performance rating be given.8

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 this grievance was initiated after July 1, 2000, this ruling is issued in accordance with the rules contained in the new procedure manual. Please also note that this Department's name was changed from the Department of Employee Relations Counselors to the Department of Employment Dispute Resolution, effective July 1, 2000.
2 See Grievance Procedure Manual, §8.4, page 24.
3 Grievance Procedure Manual, § 5.8, page 14.
4 Grievance Procedure Manual, § 5.9, page 15.
5 Grievance Procedure Manual, § 5.8, page 15.
6 See Va. Code §2.1-116.06(A)(iv). "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. Norman v. Department of Game and Inland Fisheries (Fifth Judicial Circuit of Virginia, July 28, 1999)(Delk, J.).
7 Retaliation exists when an employee has engaged in a protected activity; has suffered an adverse employment action; and a causal link exists between the adverse employment action and the protected activity. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653 (4th Cir. 1998).
8 See Rules for Conducting Grievance Hearings, page 10.