Issue: Qualification, Separation: Involuntary Resignation; Ruling Date: June 11, 2001; Ruling #2001-026; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; Outcome: Not qualified.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of the Department of Mental Health, Mental Retardation and Substance Abuse Services/ No. 2001-026

June 11, 2001

The grievant has requested a ruling on whether her January 11, 2001 grievance with the Department of Mental Health, Mental Retardation and Substance Abuse Services (MH/MR/SAS) qualifies for hearing. The agency head denied the grievant’s request for qualification, concluding that the grievant did not have access to the grievance procedure because she voluntarily resigned from her position. For the reasons set forth below, the grievance is not qualified for hearing.

FACTS

The grievant was employed as a Human Services Care Worker with MH/MR/SAS. From June 27 through July 27, 2000, the grievant took sick leave (after her request for annual leave for the period of June 3 through July 9, 2000 was denied). The grievant’s supervisor requested that she call in weekly while on leave to report her medical status. When the grievant returned to work in July 2000, she was transferred to a different shift and work site at the facility. On August 28, 2000, the grievant filed a grievance claiming that the required sick leave verification and the subsequent transfer constituted harassment, retaliation, discrimination based on her national origin and misapplication of policy.1

Subsequently, the grievant was again on extended sick leave November 20002 when her supervisor informed her on that she must provide a doctor’s note for any further use of sick leave, beginning December 1, 2000. On November 30, 2000, the grievant submitted written notice of her resignation, effective December 15, 2000, after her leave would be used. The grievant asserts that she was forced to resign because her supervisor misapplied policy by the actions described above, retaliated against her, and made her work conditions intolerable.

DISCUSSION

Access to the Grievance Procedure

The General Assembly has provided that all non-probationary state employees may utilize the grievance process, unless exempted by law.3 Employees who voluntarily resign may not have access to the grievance process, depending upon the surrounding circumstances such as the nature of their claim or when the grievance is filed. For example, this Department has long held that any grievance initiated by an employee prior to the effective date of a voluntary resignation may, at the employee’s option, continue through the grievance process, assuming it otherwise complied with the 30-day calendar rule. On the other hand, this Department has also long held that once an employee’s voluntary resignation becomes effective, she may not file a grievance. In this case, the agency has afforded the grievant all the process which she is due because, as discussed below, the grievant has not presented evidence raising a sufficient question as to whether her resignation was involuntary and, thus, the issue is not qualifiable.4

Qualification: Involuntary Resignation

A resignation may be the result of duress or coercion and therefore, involuntary, if in the totality of circumstances it appears that the employer’s conduct in requesting the resignation effectively deprived the employee of free choice in the matter.5 Factors to be considered are (1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the choice he was given; (3) whether the employee was given a reasonable time in which to choose; and (4) whether she was permitted to select the effective date of resignation.6

It is undisputed that on November 30, 2000, the grievant submitted a letter to her supervisor giving notice of her intent to resign on December 15, after using her leave. The grievant claims that she was forced to resign because the agency misapplied policy, retaliated against her and harassed her, subjecting her to mental abuse.7 However, the grievant has presented no evidence that the supervisor requested her resignation or selected the effective date. To the contrary, the agency has reported that the grievant was an employee in good standing at the time she resigned, with no Written Notices or other disciplinary actions pending. Further, while the grievant may have decided to resign because of the supervisor’s request for sick leave verification or the issues raised in the grievant’s earlier grievance, she has presented insufficient evidence from which a reasonable fact finder could conclude that the agency forced or coerced her resignation by effectively depriving her of free choice in the matter. 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, 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

Jeffrey L. Payne
Employment Relations Consultant

1 The August 28, 2000 grievance is currently before the Circuit Court where the grievant is appealing the February 21, 2001 ruling of this Department that the grievance does not qualify for a hearing.
2 The grievant was on sick leave in November 2000 "until further notice" according to a December 1, 2000 attachment to her resignation letter.
3 Va. Code § 2.1-116.09(A).
4 Although all complaints initiated in compliance with the grievance process may proceed through the three resolution steps set forth in the grievance statute, only certain issues qualify for hearing. In this case, management allowed the grievance to proceed through the resolution steps, raising the issue of access during the qualification stage. Therefore, the agency has afforded her all the process to which she is entitled under the grievance procedure.
5 A resignation also may be found involuntary if induced by an employee's reasonable reliance upon an employer's misrepresentation of a material fact concerning the resignation. See Stone v. University of Maryland Medical System Corp., 855 F.2d 167, 174 (4th Cir. 1988). However, the grievant makes no such claim here.
6 Stone v. University of Maryland Medical System Corp., 855 F.2d 167, 174 (4th Cir. 1988).
7 Please note that the grievant does not have access to raise the issues of misapplication of policy, harassment and retaliation as issues for which relief can be granted because she initiated the grievance challenging these alleged acts of management after the effective date of her resignation. Under the grievance procedure, an employee must be a non-probationary employee of the Commonwealth at the time that the grievance is initiated, unless the action grieved is a termination or involuntary separation (Grievance Procedure Manual § 2.3, page 5). Thus, the grievant had access to the grievance procedure to challenge her alleged involuntary separation, but not management's alleged misapplication of policy, or harassing or retaliatory conduct. Further, even if the grievant did have access to the grievance procedure to raise these issues, it does not appear that she has presented evidence raising a sufficient question to qualify her claims for hearing. In order to qualify a retaliation claim for hearing, the employee must show that she suffered an adverse employment action. In this case, although the grievant alleges a pattern of retaliatory behavior, the only example that she provided is the supervisor's call on November 29, 2000, informing the grievant that she must submit a doctor's note for any sick leave to be taken after December 1, 2000. The mere act of requiring sick leave verification by itself would not constitute an adverse employment action because it does not result in an adverse effect on the terms, conditions, or benefits of her employment (See Von Gunten v. Maryland Department of the Environment, 2001 U.S. App. LEXIS 4129). Likewise, the grievant has not shown that the agency misapplied policy. Additionally, while a claim of supervisory or co-worker harassment may be grieved through the resolution steps, it is not one of the issues specified by the General Assembly that may qualify for hearing.