Issue: Qualification, Performance: Arbitrary/Capricious, Retaliation: Grievance Activity, Other Protected Right; Ruling Date April 9, 2001; Ruling #2001-032; Agency, Virginia Polytechnic Institute and State University; Outcome: Qualified.

COMMONWEALTH of VIRGINIA
Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of VPI and State University No. 2001-032
April 9, 2001

The grievant has requested a ruling on whether her October 17, 2000 grievance with VPI and State University (VPI&SU) qualifies for a hearing. 1The grievant claims that management retaliated against her by (1) taking away certain of her duties; (2) issuing her a counseling memorandum; and by (3) giving her an arbitrarily or capriciously low annual performance evaluation in September 2000. As explained further below, this grievance qualifies for hearing.

FACTS

The grievant is employed as an office manager (her formal title was Program Support Technician, and is now Administrative Program Specialist III) for the Virginia Cooperative Extension. On her two annual performance evaluations immediately prior to the 2000 annual performance evaluation at issue in this grievance, her supervisor had rated her overall performance as a 2 on a scale of 1 to 5 ("often exceeds expectations") and a 1 ("consistently exceeds expectations").2

The grievant asserts that she subsequently advised her supervisor on July 11, 2000 that a co-worker had been routinely failing to document overtime hours on her (the co-worker’s) time sheet in violation of the Fair Labor Standards Act (FLSA) and Standards of Conduct, and that she (the grievant) no longer felt comfortable signing the co-worker’s time sheets.3 On July 13, her supervisor informed the grievant that he would begin signing all such documentation, although she previously had performed that duty. Two months later, the minutes of a September 21, 2000 District meeting stated that only an agents/UC (such as the grievant’s supervisor) "should be signing" such documentation, not Program Support Technicians.

On September 20, 2000, the grievant received her 2000 performance evaluation with an overall rating of 4 on a scale of 1 to 5 ("performance needs improvement to fully meet expectations of position"). The evaluation consisted of four elements upon which the grievant’s performance was rated. She received the lowest rating of 5 ("performance needs immediate improvement") on one job element, a rating of 4 ("performance needs improvement to fully meet expectations") on another job element, and a rating of 3 ("performance fully meets expectations") on the remaining two elements. Her grievance challenges the rating for each job element and the overall rating.

The grievant has provided documentation suggesting that on October 2, 2000, the grievant’s supervisors became aware of her intent to initiate a grievance challenging her 2000 performance evaluation. On October 4, the grievant was issued a counseling memorandum for an alleged unauthorized absence from the office (a trip to buy office supplies at Wal-Mart, which she asserts took place that previous July) and her alleged refusal on September 20, 2000 to type up her own 2000 performance evaluation form as her supervisor had instructed her to do. 4The October 4 memorandum stated that it was to serve as a warning and that continued violations of the Standards of Conduct and Performance Policy would not be tolerated.

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) the employee suffered an adverse employment action; and (3) a causal link exists between the adverse employment action and the protected activity; 5 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. 6

It is undisputed that the grievant engaged in a protected activity by reporting what she believed to be a violation of the FLSA regarding overtime. Moreover, an unfavorable performance evaluation clearly constitutes an "adverse employment action," and removing job responsibilities may also constitute an "adverse employment action" if that removal has a "significant detrimental effect" on the terms and conditions of a grievant’s employment.7

Further, there is some evidence of a causal link between a protected activity and the management actions taken. For example, there is a close proximity in time between the grievant’s July 2000 report to her supervisor of a suspected FLSA violation and management’s removal of her signing responsibilities shortly thereafter, as well as management’s negative evaluation of her annual performance on September 20, 2000.

The grievant’s supervisor has provided the following as nonretaliatory business reasons for his actions: (i) her unacceptable behavior and interpersonal skills during the performance cycle had overshadowed all other aspects of her performance; and (ii) the removal of her signing authority had been done at the request of his superiors. There is no documentation, however, showing that any counseling or other action had been taken during the performance cycle to correct such negative behavior. While the absence of such documentation alone cannot lead to a finding of retaliation, in light of the much higher performance ratings that same supervisor had given to her prior to her report of alleged FLSA violations, and all the other facts and circumstances in this case, this grievance merits a closer look by a fact finder on the issue of retaliation.

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.8 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."9

"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.10 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 her supervisor did not properly consider all of her accomplishments in determining her ratings for the individual job elements and her overall rating. The facts are not in dispute that the grievant performed all the tasks for which she provided documentation during this investigation.11 In management’s stated judgement, however, her performance of those tasks met but did not exceed the associated expectations. In addition, for Job Elements 3 and 4, her supervisor asserted that poor interpersonal relations adversely impacted the grievant’s ability to provide effective leadership for day-to-day operations and to insure an efficient office operation.

The grievant asserts that any poor interpersonal relationship between her, her supervisor, and co-workers was unfairly given disproportionate weight in determining the ratings for Job Elements 1 (Office Management), 3 (General Clerical), and her overall rating. Under performance evaluation policy, however, supervisors should consider performance factors such as interpersonal relations in determining the rating for each job element.12 Moreover, in this case, the requirements for effective teamwork and positive interaction with co-workers and her supervisor were specifically highlighted in the work tasks/performance expectations of the challenged job elements.

Nevertheless, the issue of the grievant’s performance is central to both claims in her grievance: (i) retaliation and (ii) arbitrary or capricious performance evaluation. The factual issues presented by each claim are significantly intertwined. It is therefore reasonable under the unique circumstances of this case for the hearing officer to review both issues together.

At hearing, the grievant must prove by a preponderance of the evidence13 that her September 20, 2000 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.14 Further, if the hearing officer finds that the removal of the grievant’s signing duties was retaliatory, he may only order the agency to take action to correct the retaliation; he may not order the agency to assign specific duties to an employee.15 Finally, this qualification ruling in no way determines that retaliation occurred, or that the grievant’s 2000 performance evaluation was arbitrary or capricious. This ruling simply reflects that a further exploration of the facts by a hearing officer is warranted.

Neil A.G. McPhie, Esquire
Director

June M. Foy
Employment Relations Consultant

1 Please note that recent changes to the grievance statute have resulted in changes to the grievance procedure. If a grievance was filed after July 1, 2000, the grievance will be governed by the new procedure (Grievance Procedure Manual, effective July 1, 2000). Because this grievance was initiated after July 1, 2000, this ruling is issued in accordance with the new Grievance Procedure Manual.
2 See VPISU Position and Performance Activity Forms, Annual Evaluations dated May 14, 1998 ("often exceeds") and November 2, 1998 ("consistently exceeds").
3 Under the FLSA, a nonexempt employee must be provided overtime compensation for hours worked in excess of 40 hours per workweek. Under DHRM Policy 1.60, Standards of Conduct, falsifying any record, to include time records, constitutes a Group III violation.
4 Specifically, the October 4 counseling memorandum stated that without his pre-authorization to leave, the grievant had "recently" left the office for one hour and twenty minutes to purchase office supplies at Wal-Mart. The memorandum also asserted that on September 20, 2000, the supervisor explained to the grievant her performance ratings, read to her line by line his assessment of her performance, and asked her to type it up, which she refused to do, although typing evaluation forms was in her job description.
5 See the 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."
6 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 (providing that a Title VII plaintiff must prove that retaliation was the motivating factor not just a motivating factor).
7 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). Under the standard set by Boone, the grievant's October 4, 2000 counseling memorandum, regardless of its merits, cannot be viewed as an "adverse employment action" because it did not have a significant detrimental effect on the terms and conditions of her employment. It may, however, still be offered as background evidence on the issue of retaliation.
8 See Va. Code §2.1-116.06(B)(reserving to management the exclusive right to manage the affairs and operations of state government).
9 See Va. Code §2.1-116.06(A)(iv); Grievance Procedure Manual §4.1(b), page 10.
10 Id.; Norman v. Department of Game and Inland Fisheries (Fifth Judicial Circuit of Virginia, July 28, 1999) (Delk, J.).
11 For Job Element 2, the grievant has presented evidence to show that she exceeded the Commonwealth's prompt payment goals for all four quarters. For Job Element 3, she claims that she produced 13,946 newsletters; 1271 letters/memos; 129 e-mails; 29 faxes; 1,036 HLPA/Beekeeper correspondences; and conducted four research projects.
12 Performance Factors are (1) Interpersonal Relations; (2) Communications; (3) Attendance/Punctuality; (4) Safety; and (5) Planning/Analytical/Decision making. See also Performance Evaluation Handbook for Supervisors III(C)(2) and VPI&SU Summary Performance Evaluation Information For Supervisors and Reviewers, Table 4.
13 Grievance Procedure Manual, § 5.8, page 15.
14 See Rules for Conducting Grievance Hearings, page 10.
15 Id. at 11.