Issue: Qualification, Performance, Arbitrary/Capricious, Ruling Date: March 9, 2001, Ruling #2001-030; Agency: Department of Corrections, Outcome: Qualified

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution


QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Corrections - Ruling #2001-030
March 9, 2001


The grievant has requested a ruling on whether her October 30, 2000 grievance with the Department of Corrections (DOC) qualifies for a hearing.1 This grievance claims that the grievant's October 2000 performance evaluation is arbitrary, capricious and retaliatory. For the reasons discussed below, this grievance qualifies for a hearing.

FACTS

The grievant was employed at DOC as a Corrections Officer until she was terminated under the Standards of Conduct in November 2000. While employed, the grievant filed a sexual harassment complaint in March 2000 and a grievance in August 2000 alleging sexual harassment, hostile work environment, and retaliation.

Between her March 2000 complaint and her October 2000 performance evaluation, grievant received four Group Notices under the Standards of Conduct. For each of her quarterly performance evaluations, however, the grievant received a rating of Meets Expectations. In her October 2000 annual evaluation, she received a rating of Meets Expectations for five out of the seven Job Elements in her performance plan. She received a rating of Does Not Meet Expectations for two Job Elements, and received an overall annual performance rating of Does Not Meet Expectations.

Her immediate supervisor had originally rated her annual performance at a higher level, but was directed repeatedly by his superiors to lower her ratings to an overall Does Not Meet Expectations, which the supervisor ultimately did, although he states that he did not agree with that rating. Management asserts that it directed the supervisor to lower the grievant's ratings because of her receipt of the four Group Notices (including one Group III with suspension) during the performance cycle. The grievant has challenged the Group III with suspension as retaliatory and discriminatory, in a separate grievance already schedule for a hearing, and asserts that management's "Group Notice" rationale for her Does Not Meet Expectations is a mere pretext for continued retaliation against her for having complained of alleged sexual harassment.

DISCUSSION

Retaliation Claim

For a claim of 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 an adverse action was taken because the employee had engaged in the protected activity. If the agency presents a legitimate business reason for the adverse action, the grievance does not qualify for a hearing, unless the employee presents evidence that the agency's stated business reason was a mere pretext or excuse for retaliation.3

In this case, it is undisputed that the grievant engaged in a protected activity by filing her sexual harassment complaint and prior grievance. Furthermore, a performance rating of Does Not Meet Expectations is an adverse employment action. Thus, the only question remaining is whether a causal link exists between her sexual harassment complaint and prior grievance and management's decision to rate her performance as Does Not Meet Expectations; in other words, whether retaliation was the motivating factor behind the low rating.4

There is a proximity in time between the grievant's March 2000 sexual harassment complaint, August 2000 grievance and management's October 2000 evaluation of her performance. And while the agency has offered a business reason for requiring the grievant's supervisor to change her overall rating to Does Not Meet Expectations (e.g, the four Written Notices), given the supervisor's original assessment of her performance and the totality of the circumstances, it is appropriate to send this issue to a hearing officer. The hearing officer, as a fact finder, is in a better position to determine whether retaliation was the motivating factor behind the grievant's overall Does Not Meet Expectations rating.

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.5 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."6

"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, where there is adequate documentation in the record to support the conclusion that the evaluation had a reasoned basis related to established expectations, 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.7 Importantly here, however, if there is evidence raising a sufficient question as to whether a performance evaluation resulted from an unlawful employment practice such as retaliation or discrimination, a claim that it was arbitrary or capricious should be qualified, even where management has provided documentation in the record that could arguably support the rating.

As with the determination to qualify the grievant's retaliation claim, given the totality of the facts and circumstance of this case, a hearing before a fact finder is warranted on the grievant's claim that her performance evaluation was arbitrary or capricious.

APPEAL RIGHTS AND OTHER INFORMATION

For the reasons discussed above, the October 30, 2000 grievance qualifies for a hearing. For information regarding the actions that the grievant may take as a result of this ruling, please refer to the enclosed sheet. Please also note that this qualification ruling in no way determines that the evaluation was indeed retaliatory, arbitrary or capricious. Instead, this ruling simply reflects that a further exploration of the facts by a hearing officer is warranted.

At the hearing, the grievant will have the burden of proving that her performance evaluation was retaliatory, arbitrary, or capricious. If the hearing officer finds in her favor, he or she may issue a general order that the agency cease the retaliation and take measures to prevent any future retaliation, and/or that the agency redo the evaluation on an objective basis related to the performance expectations in the grievant's performance plan. A hearing officer may not substitute his or her judgment for that of management by ordering that a specific performance rating be given.8


Neil A.G. McPhie, Esquire
Director

Felicia H. Johnson
Employment Relations Consultant

1 Please note that recent changes to the Virginia Code have resulted in changes to the grievance procedure. Because this grievance was filed after July 1, 2000, the grievance will be governed by the new procedure (Grievance Procedure Manual, effective July 1, 2000).
2 See the Grievance Procedure Manual, p. 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).
4 See Kubicko v. Ogden Logistics Services, 181 F. 3d 544, 552 n.7 (providing that a Title VII plaintiff must prove that retaliation was the motivating factor not just a motivating factor).
5 See Va. Code §2.1-116.06(B)(reserving to management the exclusive right to manage the affairs and operations of state government).
6 See Va. Code §2.1-116.06(A)(iv); Grievance Procedure Manual, page 10.
7 See Va. Code §2.1-116.06(A)(iv); Grievance Procedure Manual, page 10; Norman v. Department of Game and Inland Fisheries (Fifth Judicial Circuit of Virginia, July 28, 1999) (Delk, J.).
8 See Rules for Conducting Grievance Hearings, page 10.