Issue: Qualification, Separation-Layoff/Recall; Ruling Date May 11, 2001; Ruling #2001-017; Agency: Department of Health; Outcome: Not qualified. Appealed to the Circuit Court of Culpeper County; (5-17-2001) Affirmed EDR's ruling on 6-26-01; Case #2001-L-126.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Health/ No. 2001-017

May 11, 2001

The grievant has requested a ruling on whether her September 1, 2000 grievance with the Virginia Department of Health (VDH) qualifies for a hearing. The grievant claims that the agency misapplied the layoff policy.1 For the reasons discussed below, this grievance does not qualify for hearing.

FACTS

The grievant was employed as a Secretary Senior with VDH. State personnel records indicate that the grievant was hired as a salaried state employee on October 1, 1985, however, she was separated from state employment on June 30, 1989, when all VDH employees assigned to the one of the county Health Departments were transferred to employment with county government. The grievant was re-employed with the VDH on February 16, 1990, with the Office of Water Programs.

Beginning in August 2000, the agency decided to abolish one Secretary Senior position in each field office as an efficiency and cost-cutting measure.2 The grievant was determined to have the least seniority in her field office, based on her last continuous classified state service since re-employment with VDH on February 16, 1990. Consequently, by letter dated August 3, 2000, the agency advised the grievant that her position would be abolished effective October 31, 2000. The agency subsequently assisted the grievant with job placement, initially offering her a position beginning October 9, and then transferring her, at her request, to another position effective October 16, 2000.

DISCUSSION

Misapplication of Policy

For a claim of misapplication of policy to qualify for a hearing, there must be evidence raising 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 claims that the agency misapplied policy by laying her off from her position based on an inaccurate calculation of her seniority. Specifically, she asserts that she was not separated from state service in June 1989, as described above; rather, there was an administrative or payroll change, which did not alter her status as a salaried state employee. In support of this, the grievant obtained two letters from the Payroll Unit Leader of the county Human Resources Office where she was previously employed, stating that the change in status for state employees was for administrative purposes only; the employees remained "under state jurisdiction"; and the affected employees remained in the Virginia Retirement System and life insurance programs3.

In this case, the applicable state policy is DHRM Policy 1.30 Layoff, and its definition of seniority, which is "[t]otal continuous salaried state service, computed from the last employment or re-employment date, including approved leaves without pay."4 The agency has presented as evidence copies of the Commonwealth of Virginia Report of Appointment or Change of Status forms from the agency’s personnel records, which document that the grievant was separated from state employment on June 30, 1989 and re-employed on February 16, 1990, as stated above. Based on this information, the agency correctly computed the grievant’s continuous salaried state service from the last re-employment date of February 16, 1990.

In addition, the information provided by the payroll leader denying the grievant had a break in state service appears to be incorrect. The agency contacted the Director of the county’s Human Resources Department and asked for a clarification of their records. The Director responded, on December 19, 2000, that "[a]fter further review, [the grievant] was an employee of [the] County from July 1, 1989 to February 5, 1990….";5 she apologized for the earlier communications from her office that erroneously indicated that the grievant was a state employee during that time period. Based on the forgoing, it appears that the agency correctly calculated the grievant’s seniority based on her above-referenced break in service. Although layoff understandably caused the grievant a considerable amount of concern, she has not presented facts indicating a misapplication of policy. Accordingly, this issue does not qualify for hearing.

APPEAL RIGHTS AND OTHER INFORMATION

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, 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 she does not wish to proceed.

Neil A.G. McPhie, Esquire
Director

Jeffrey L. Payne
Employment Relations Consultant

1 Layoff is defined as removing an employee from his or her position as a result of a reduction in force or reorganization. Department of Human Resource Management (DHRM) Policy No. 1.30 (II)(effective 01/01/95). Please note that Policy No. 1.30 was revised on 09/25/00. However, the applicable policy for purposes of this ruling is the one that was effective when the alleged misapplication of policy occurred. See also Virginia Department of Health, Layoff Policy 1.30.
2 The Commonwealth of Virginia permits agencies to adjust the size or reconfigure the work force. See DHRM Policy No. 1.30 (effective 01/01/95).
3 Letters from the Payroll Unit Leader, dated August 9 and 17, 2000.
4 DHRM Policy No. 1.30(II)(O)(effective01/01/95).
5 Letter from the Director of the county's Human Resources Department, December 19, 2000. The Director also stated that the grievant's county employment "was recognized as state service under the Virginia Retirement System," which the grievant has suggested is also evidence that she was a state employee during the relevant time period. However, management has responded that it has been their practice to make this accommodation to employees who are moved to local government employment in order not to disrupt their long term benefit plans, but, it has no bearing on the employee's separation from state service. The grievant has not presented any facts to show that this accommodation voids or reverses her separation from state service, or constitutes a continuation of salaried state service under the layoff policy.