Issue: Qualification, Methods/Means; Assignment of Duties, Ruling date May 31, 2001; Ruling #2001-042; Agency: Department of Motor Vehicles; Outcome: Not Qualified

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of Division of Motor Vehicles / No. 2001-042

May 31, 2001

The grievant has requested a ruling on whether his September 26, 2000 grievance with the Division of Motor Vehicles ("DMV") qualifies for a hearing. The grievant objects to his transfer to a different geographical work area. For the reasons discussed below, this grievance does not qualify for hearing.

FACTS

The grievant is employed by DMV as a Senior Special Agent. He was reassigned to a new work area in September of 2000. The move followed the grievant’s filing of a report that outlined an alleged incident involving another agent concerning the replacement of missing vehicle identification number ("VIN") plates. The agency claims that the move was not intended to be retaliatory or punitive, and was based on legitimate business reasons. Specifically, the agency claims that the move was primarily designed to ensure efficiency by having agents assigned work areas closer to their office locations.

DISCUSSION

By statute, grievances relating solely to the methods, means and personnel by which work activities are to be carried out "shall not proceed to a hearing."1 For that reason, a grievance challenging a reassignment of duties does not qualify for a hearing unless there is evidence raising a sufficient question as to whether discrimination, retaliation, discipline, or a misapplication of policy has occurred. 2 The grievant claims that his transfer to another area was initiated by management because of "friction," presumably between the grievant and the co-worker mentioned in the grievant’s VIN incident report.

Even assuming, without deciding, that the grievant’s transfer was initiated because of friction between the grievant and a co-worker, such a transfer does not violate policy. Moreover, DMV had been contemplating the change in job assignments prior to the VIN plate incident and the grievant’s subsequent report.3 Thus, the grievant has not alleged that this assignment was the result of discrimination, retaliation, discipline, or a misapplication of policy.4 Nor has this Department’s investigation found evidence of such. Rather, the grievant essentially asserts that the assignment was unfair, and that claim alone is insufficient to qualify this grievance for a 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 he does not wish to proceed.

Neil A.G. McPhie, Esquire
Director

William G. Anderson, Jr.
Employment Relations Consultant

1 Virginia Code § 2.1-116.06(C).
2 Grievance Procedure Manual § 4.1(c), page 11.
3 Both the grievant's immediate supervisor and the Director of Investigations confirmed that they had discussed the move prior to the VIN incident and the grievant's report. Additionally, the grievant's former supervisor stated that he too had considered transferring the work locations of the grievant and the co-worker mentioned in the grievant's report.
4 The grievant also objected to a statement purportedly made by his supervisor. The supervisor allegedly said that if the grievant listened to his lawyer, the grievant would be fired. The supervisor has explained that he said, "Don't allow your attorney to talk you into something that may get you fired. Your attorney doesn't supervise this district, that's my job." The grievant's supervisor claimed his statement was intended to impress upon the grievant that he would not be influenced by outside pressure when making management decisions. Furthermore, he apologized for any misunderstanding that may have occurred as a result of his statements. This Department has found no evidence of any policy violation with respect to the supervisor's comments.