Issue: Qualification; Compensation/Leave, Salary Disputes; Ruling Date July 12, 2001; Ruling #2001-016; Agency: Department of Correctional Education; Outcome: Not qualified. Notification of grievant of intent to appeal to Circuit Court

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Correctional Education 2001-016
July 12, 2001

The grievant has requested a ruling on whether her grievance with the Department of Correctional Education (agency) qualifies for a hearing. The grievant claims that the agency misapplied state policy from 1984 to 1998 when it did not offer her acting pay for allegedly working above her classification. For the reasons discussed below, this grievance does not qualify for hearing.

The grievant worked for the agency from October 16, 1982 through August 15, 1989 as a part-time Instructional Assistant, a P-14 or non-classified position. On August 16, 1989, the grievant became a full-time. classified employee and continued to work as a classified Instructional Assistant through April 1, 1995. Between June 1984 and April 1, 1995, the grievant was required to perform the additional duties of a long-term Substitute Teacher. She now wants to be compensated under the state’s acting pay policies for having performed these additional duties during that period.

The agency does not dispute that the grievant served as long-term Substitute Teacher in the past without being compensated for this additional duty. The agency has stated in writing that, in order to remedy the matter, it will pay the grievant compensation of two steps above the salary she was making from October 1, 1994 through April 1, 1995.¹ However, the grievant believes that she should be compensated at a level higher than two steps and for the entire time period that she performed the additional duties (between June 1984 through April 1, 1995).

On April 2, 1995, the grievant’s title changed from Instructional Assistant to Program Support Technician. She then continued to work as a full-time classified Program Support Technician until March 21, 1998. The grievant has reported to this Department that she was asked to schedule students for classes during this time, which she asserts was a Guidance Counselor’s duty. The agency agrees that the grievant scheduled students but contends that this function was merely an administrative duty. It is undisputed that the grievant was no longer required to schedule students once the agency finally created its Guidance Counselor program and hired Guidance Counselors in March 1998. The grievant also wants to receive acting pay for the time she scheduled students (April 2, 1995 through March 21, 1998).

The Code of Virginia establishes a grievance procedure for state employees in which the majority of nonprobationary state employees have access to the grievance procedure.² Although the grievant asserts that she should have received additional compensation for work performed from October 1982 to August 1989, she was a non-classified P-14 and/or probationary employee during this time period and thus did not have access to the grievance procedure. Although the agency allowed the grievant’s concerns about this time period to advance through the management steps of the grievance process, the October 1982-August 1989 time period will not be addressed by this Department because the grievant did not have access to the grievance procedure during this time. Only the period of August 16, 1989 through March 21, 1998 will be addressed by this ruling for purposes of qualification.

The grievance procedure recognizes management’s exclusive statutory right to manage the operations of state government. Inherent in this authority is the discretion to make compensation decisions.³ Indeed, the General Assembly has provided that grievances relating solely to such decisions "shall not proceed to a hearing."⁴ Accordingly, challenges to such decisions do not qualify for a hearing unless the grievant presents evidence raising a sufficient question as to whether in compensating her, policy was misapplied, or discrimination, retaliation or discipline improperly influenced the decision.⁵ This grievance claims that policy was misapplied.

For an allegation of misapplication of policy or unfair application of policy to qualify for a hearing, there must be facts that raise a sufficient question as to whether management violated a mandatory policy provision, or whether the challenged action, in its totality, was so unfair as to amount to a disregard of the intent of the applicable policy.

The grievant alleges that management misapplied policy by failing to (i) provide her with acting pay when she worked as a full-time Instructional Assistant from August 16, 1989 through April 1, 1995 but was also required to perform duties as a long-term Substitute Teacher, and (ii) provide her with acting pay when she worked as a Program Support Technician but also performed the duties of a Guidance Counselor from April 2, 1995 through March 21, 1998. Prior to September 25, 2001 state compensation policy allowed employees to receive supplemental "acting pay" for "performing the duties of a vacant position in a higher salary grade when there are no reasonable alternatives to filling the vacant position."⁶ Under that policy, acting pay "normally shall be two pay steps," and is required after the employee has acted in a higher level vacant position for a certain period of time, generally 90 days.⁷ The agency does not dispute that the grievant performed duties of a higher grade level when she was required to take on long-term Substitute Teaching assignments. Accordingly it appears that state compensation policy may have been misapplied or unfairly applied in the grievant’s case.

A determination by this Department that a grievant has presented evidence raising a sufficient question as to whether a misapplication of policy has occurred generally results in qualification of the issue for hearing. There are some cases, however, where qualification is inappropriate even if a policy has been misapplied. 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.

In this case, any relief available to the grievant under the grievance procedure would appear to be confined to the 30-calendar day period preceding her November 6, 2000 grievance.⁸ As explained above, the agency has already stated that it will pay the grievant compensation of two steps above the salary she was making during the latter six-months of the time period she worked as an Instructional Assistant (from October 1, 1994, through April1, 1995). Therefore, if this claim proceeded to hearing, there would be no effectual relief that a hearing officer could grant, because the agency has already provided a remedy well beyond the 30 calendar days of relief, if any, that would be available under the grievance procedure.

Likewise, the grievant’s claim that she is due acting pay for performing Guidance Counselor duties while working as a Program Support Technician from April 2, 1995 to March 21, 1998, is also not qualified for hearing. Even if the acting pay policy applied under these circumstances and even if the agency had misapplied that policy, the agency has agreed to provide the grievant a remedy beyond the relief, if any, that would be available under the grievance procedure. Because the hearing officer could not order any meaningful relief beyond that which the agency has already offered, the grievant’s misapplication of policy claim is not qualified 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

Felicia H. Johnson
Employment Relations Consultant