Issue: Qualification; Performance-Arbitrary/Capricious; Ruling Date June 14, 2001; Ruling #2001-020; Agency: 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 Ruling No. 2001-020

June 14, 2001

The grievant has requested a ruling on whether his October 5, 2000 grievance with the Department of Environmental Quality (DEQ) qualifies for a hearing. The grievant claims that his 1999-2000 performance evaluation is arbitrary and/or capricious. Additionally, he claims that he has been the victim of retaliation.1 For the reasons discussed below, this grievance qualifies for hearing.

FACTS

The grievant is employed by DEQ. On or about September 25, 2000, he received his 2000 performance evaluation with an overall rating of Fair Buts Needs Improvement. The evaluation consisted of seven elements upon which the grievant’s performance was rated. He received the rating of Meets Expectations on Job Elements 5 and 6 (Special Projects and Environmental Impact and Assessment Program, respectively) and the rating of Does Not Meet Expectations on Job Elements 3 and 7 (Pollution Prevention Program Support, and Training and Outreach, respectively). For the remaining three elements, Elements 1, 2 and 4 (Customer Service, Technical Support, and Computer Management Systems, respectively), the grievant received the rating of Fair But Needs Improvement. His grievance challenges his evaluation as being arbitrary and/or capricious and retaliatory.

DISCUSSION

Retaliation

For a grievance claiming retaliation to qualify for a hearing, there must be evidence raising a sufficient question as to whether (1) the employee engaged in a protected activity;2 (2) the employee suffered an adverse employment action; and (3) a causal link exists between the adverse employment action and the protected activity; in other words, whether management took an adverse action because the employee had engaged in the protected activity. If the agency presents a nonretaliatory business reason for the adverse action, the grievance does not qualify for a hearing, unless the employee presents sufficient evidence that the agency’s stated reason was a mere pretext or excuse for retaliation.3

It is undisputed that the grievant has engaged in protected activity by initiating several prior grievances, one of which led to protracted legal proceedings, culminating in a Virginia Supreme Court ruling. In addition, an unfavorable performance evaluation that prevents an employee from receiving a salary increase constitutes an "adverse employment action."4

Further, there is some evidence of a causal link between the protected activity and management’s actions. First, there is a close proximity in time to the grievant’s use of the grievance process and his performance evaluation.5 Also, the grievant asserts that his supervisor goaded him on at least one occasion with the comment "what are you going to do file another grievance?" Furthermore, the grievant claims that he was placed in a job where he was required to perform work for which he did not possess the knowledge, skills, and abilities necessary to meet the position’s requirements. Additionally, the grievant claims that he was the only Environmental Engineer Consultant who was required to find work and create his own workload. Therefore, sufficient questions of fact regarding "causation" exist to warrant sending this grievance to an administrative hearing officer for further development of the record.6

Additionally, while management has provided a nonretaliatory business reason for the grievant’s performance ratings, even after a thorough investigation by this Department, many material facts remain in dispute. For example, under Job Element # 3 questions remain as to (i) whether the grievant made any contacts with industrial sources to review environmental management systems or to provide Pollution Prevention (P2) information and support; (ii) whether the grievant was appropriately downgraded for not attending retreats or meetings, to which he claims he was not invited or for which he received little notice; and (iii) whether the grievant expended sufficient effort in leading the regional VA Environmental Excellence project. Accordingly, this Department concludes that a more thorough examination of the facts associated with the grievant’s performance evaluation by a hearing officer is warranted in this case.

Arbitrary and Capricious Performance Evaluation

The grievance statute and procedure reserve to management the exclusive right to establish performance expectations and to rate employee performance against those expectations.7 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."8

"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.9 However, if there is evidence raising a sufficient question as to whether a performance evaluation resulted from an unlawful employment practice such as retaliation, a claim that it was arbitrary or capricious should be reviewed by a fact finder, even if management has provided documentation in the record that could arguably support the rating.

The grievant claims that his performance evaluation was not based upon his work performance, which management denies. However, as discussed previously, numerous factual issues remain in dispute. The issue of the grievant’s performance is central to both claims in his grievance (retaliation and an arbitrary or capricious performance evaluation), and the factual issues presented by each claim are significantly intertwined. Therefore, it is reasonable under the circumstances of this case for the hearing officer to review both issues together. Accordingly, the issue of whether the grievant’s performance evaluation was arbitrary or capricious is qualified for hearing.

At hearing, the grievant must prove by a preponderance of the evidence10 that his performance evaluation was arbitrary, capricious, or retaliatory. If the hearing officer so finds, he may direct the agency to redo the 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.11 Finally, this qualification ruling in no way determines that retaliation occurred, or that the grievant’s performance evaluation was arbitrary, capricious, or retaliatory. This ruling simply reflects that a further exploration of the facts by a hearing officer is warranted.

Neil A.G. McPhie, Esquire
Director

William G. Anderson, Jr.
Employment Relations Consultant

1 The grievant also alleges that he has been subjected to harassment by management. However, during the investigation for this ruling, it was evident to the investigating consultant that the grievant was using the terms "retaliation" and "harassment" interchangeably. Therefore, this Department will view them as such for purposes of this ruling.
2 See Grievance Procedure Manual § 4.1(b), page 10. Only the following activities are "protected activities under the grievance procedure: participating in the grievance process; complying with any law or reporting a violation of such law to a governmental authority; seeking to change any law before the Congress or the General Assembly; reporting a violation of fraud, waste or abuse to the state Hotline; or exercising any right otherwise protected by law."
3 See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653 (4th Cir. 1998); see also Kubicko v. Ogden Logistics Services, 181 F. 3d 544, 552 n.7 (4th Cir. 1999)(providing that a Title VII plaintiff must prove that retaliation was the motivating factor not just a motivating factor).
4 See Boone v. Goldin, 178 F.3d 253 (4th Cir. 1999) (under Title VII, "adverse employment action" typically requires discharge, demotion, or reduction in grade, salary, benefits, level of responsibility, title, or opportunities for future reassignments or promotions). See also Von Gunten v. Maryland Department of the Environment, 2001 U.S. App. LEXIS 4129, * 22 (4th Cir. 2001).
5 While the proximity in time between the initiation of grievant's February and March 1999 grievances and his September 2000 performance evaluation was not particularly close, these grievance were ongoing, contested, and the subject of several compliance rulings by this Department during the timeframe when the grievant's performance was evaluated.
6 See Jaudon v. Elder Health, Inc., 125 F.Supp. 2d 153(D. Md. 2000)(indicating that temporal proximity, ongoing antagonism and differential treatment of other employees can be a sufficient basis to establish a causal link).
7 See Va. Code §2.1-116.06(B)(reserving to management the exclusive right to manage the affairs and operations of state government).
8 See Va. Code §2.1-116.06(A)(iv); Grievance Procedure Manual §4.1(b), page 10.
9 Id.; Norman v. Department of Game and Inland Fisheries (Fifth Judicial Circuit of Virginia, July 28, 1999) (Delk, J.).
10 Grievance Procedure Manual, § 5.8, page 15.
11 See Rules for Conducting Grievance Hearings, page 10.