Issue: Qualification; Performance; Arbitrary/Capricious; Ruling Date May 18, 2001; ruling #2001-012; Agency: Department of Health; Outcome: Not qualified. Appealed to the Circuit Court of the City of Norfolk - Fourth Judicial Circuit of Virginia; (6-7-01); Trial on 6-22-01 was continued to 6-27-2001; Affirmed EDR's ruling on 7-27-2001; Case #CH01-973

In the matter of Department of Health/ No. 2001-012

May 18, 2001

The grievant has requested a ruling on whether her grievance with the Department of Health (DOH) qualifies for a hearing. The grievant claims that her 2000 performance evaluation is arbitrary or capricious. For the reasons discussed below, this grievance does not qualify for hearing.

The grievant is employed as an Environmental Health Assistant. On October 6, 2000, she received her 2000 performance evaluation with an overall rating of "Meets Expectations." The evaluation consisted of three elements upon which the grievant’s performance was rated. The grievant received a Meets Expectation on Job Element 1, Exceeds Expectation for Job Element 2, and Meets Expectation on Job Element 3. The grievant appealed this rating to her immediate supervisor. As a result, her overall rating was changed to "Exceeds Expectations" with Job Element 2 changed to Exceptional and Job Element 3 changed to Exceeds Expectation. The grievant was rated as Exceptional in 1997, 1998, and 1999.The grievant contends that her 2000 performance evaluation overall rating should be Exceptional and that current evaluation rating is not an accurate reflection of her performance.

The grievance statute and procedure reserve to management the exclusive right to establish performance expectations and to rate employee performance against those expectations.¹ 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."²

"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.³

In support of her position that the performance evaluation was without a reasoned basis, the grievant states that important relevant facts were disregarded in reaching her performance ratings and that the determining principles used for her evaluation were never explained to her. Further, the grievant maintains that she has never had any disciplinary problems or received performance counseling.

The grievant notes several factors to support her claim that her overall performance was Exceptional: the training of new employees, volunteering for assignments that required overtime, and providing assistance to co-workers. The grievant also maintains that she was not made aware of any performance-related problems or other factors that would have brought her past ratings of Exceptional down to Meets or Exceeds. Management claims, however, that the evaluation was based on the performance expectations for the position and that the grievant met or exceeded those expectations without problems requiring immediate attention. Further, management stated that an Exceptional rating was not merited because the grievant had not volunteered for additional duties this performance cycle in comparison to prior years.

From a careful review of the grievance record, and as the grievant’s supervisor acknowledged in the step responses, it appears that the grievant is a dedicated and valuable employee. That fact, however, and the initiatives she cited do not necessarily establish that the grievant’s performance was Exceptional throughout the period, or that the current evaluation of Exceeds has no basis in fact. Whether the initiatives that the grievant undertook elevated the overall rating to Exceptional was a judgement within management’s discretion. Furthermore, while management should advise employees of their performance throughout the entire performance cycle, the applicable policy does not mandate this practice.⁴ In addition, any failure by management to advise the grievant about performance issues throughout the cycle does not lead to the conclusion that the evaluation was arbitrary or capricious⁵.

Further, the grievant has requested this Department to compare her evaluation with that of co-workers who received an Exceptional rating. This Department has long held, however, that an employee’s performance evaluation must be based on the performance expectations predetermined for the specified position and must be limited to a review of the employee’s own performance. Furthermore, it is the role of management to determine the degree by which an employee met each expectation.⁶ The performance process is not an opportunity to compare and rate individual employees against each other.

In sum, although there is obvious disagreement between the grievant and her supervisor regarding the grievant’s annual performance evaluation, there is insufficient evidence to support the assertion that the overall rating was determined without a basis in fact. Rather, it appears that the grievant’s complaint centers on the exercise of judgment by her supervisor in evaluating her performance.

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