Issue: Access/Access to the Grievance Procedure; Qualification/Working out of class, failure to take action; Ruling Date September 17, 2001; Ruling #2001-043 and 2001-CCC; Agency: Department of Correctional Education; Outcome; No Access; Qualified.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION and ACCESS RULINGS OF DIRECTOR

In the matter of Department of Correctional Education

Ruling Numbers 2001-043 and 2001-CCC

September 17, 2001

 

 

The grievant has requested rulings on whether: (1) her June 12, 2000 grievance qualifies for hearing; and (2) she had access to the grievance procedure when she initiated her November 13, 2000 grievance. For the reasons set forth below, this Department concludes the June 12th grievance qualifies for hearing but the grievant did not have access to the grievance process when she initiated her November 13th grievance.

 

FACTS

The June 12th Grievance:

The grievant was employed as a Program Support Technician Senior (PST Sr.) at a correctional center from 1995 until June 2000. She claimed that her duties were comparable to the Adult Transition Specialist (ATS) position and sought to apply for, or be reallocated to, that classification. However, management advised her that the ATS position required a bachelor’s degree, which she did not possess. In May 2000, after completing her bachelor’s degree, she applied and was selected for an ATS position at the center. The advertisement for her position stated that a bachelor’s degree was required.

At approximately the same time, the grievant heard a rumor that two applicants who did not possess a bachelor’s degree had just been hired into other ATS positions at the center. The grievant asked management if this was true and received a response by e-mail on May 22, 2000, confirming the information. Management’s e-mail also explained that a change in qualification requirements allowed for the hiring of these applicants. Indeed, the advertisement for these positions did not list a bachelor’s degree as a requirement.

The grievant initiated a grievance on June 12, 2000, alleging that "I was not allowed to apply for the position of ATS until I completed my bachelor’s degree. Two ATSs have been hired without a bachelor’s degree," and "I was not compensated for [ATS] duties performed." The grievant’s promotion to the ATS position was to become effective June 25, 2000.

The Human Resources Director responded at the first resolution step that the grievant did not initiate her grievance in a timely manner. The grievant requested a compliance ruling from this Department on the issue of timeliness.

In a December 15, 2000 ruling this Department (EDR) held that the grievance was timely. EDR held that the grievant first became aware of an alleged misapplication or unfair application of policy on May 22, 2000, when management confirmed to her that two other applicants, neither of whom had a bachelor’s degree, had been hired for two other ATS positions, while at approximately the same time, management had required the grievant to have a bachelor’s degree.1 EDR concluded that it did not appear that the grievant could or should have known before that date of any alleged inconsistency on management’s part in applying policy. Thus, she had 30 calendar days from May 22, 2000, or until June 21, 2000, to file a grievance challenging management’s alleged misapplication or unfair application of policy through its requirement of a bachelor’s degree in her case. She filed her grievance on June 12, 2000, well within the 30 calendar day period.

This grievance advanced through the management resolution steps and is the subject of the qualification portion of this ruling.

The November 13th Grievance:

Shortly after the grievant initiated her June 12th grievance, the grievant began her new ATS position. Pursuant to state and agency policy, she was required to complete a new one-year probationary period with the agency upon moving into the ATS position. On June 16, 2000, the grievant provided written consent to the new 12-month probationary period.

On November 2, 2000, the grievant was terminated for alleged "unsatisfactory performance." On November 13, 2000, she initiated a grievance in which she asserted that she was retaliated against for filing the June 12th grievance and/or because her supervisor believed that she had called the Fraud, Waste and Abuse Hotline. DCE refused to process the November 13th grievance because the grievant was a probationary employee at the time she was terminated from her ATS position.2 The November 13th grievance is the subject of the access portion of this ruling.

 

DISCUSSION

Qualification of the June 12th Grievance:

By statute and under the grievance procedure, management reserves the exclusive right to manage the affairs and operations of state government.3 Thus, all claims relating to issues such as the means, methods, and personnel by which work activities are to be carried out and the transfer, reassignment or scheduling of employees within the agency generally do not qualify for hearing, unless the grievant presents evidence raising a sufficient question as to whether discrimination, retaliation or discipline may have improperly influenced management’s decision, or whether state policy may have been misapplied.4 In this case, the grievant claims that management misapplied Department of Human Resource Management (DHRM) Policy 2.10.

For a misapplication of policy claim to qualify for a hearing, there must be evidence raising a sufficient question as to whether management violated a mandatory policy provision, or acted in a manner so unfair as to amount to an abuse of discretion under the applicable policy. Further, if a claim of policy misapplication is qualified and proven at a hearing, the relief that a hearing officer can order is limited to directing the agency to reapply the policy from the point at which it was misapplied. A hearing officer may not order damages or attorney’s fees, or any other prospective relief.5

The General Assembly has recognized that the Commonwealth’s system of personnel administration should be "based on merit principles and objective methods" of decision-making.6 In addition, the Commonwealth’s classification plan "shall provide for the grouping of all positions in classes based upon the respective duties, authority, and responsibilities," with each position "allocated to the appropriate class title7." Moreover, the Commonwealth’s "compensation plan shall be uniform; and for each class of positions there shall be set forth a minimum and maximum rate of compensation and such intermediate rates as shall be considered necessary or equitable." 8

Further, state policy in effect during the time period addressed by this grievance (July 1995 to June 2000) provided that an employee’s position must be allocated to its appropriate class on the basis of assigned duties and responsibilities; 9 that state agencies have the general duty "to conduct continuing reviews of the duties and responsibilities of all included positions in their agencies to ensure that positions are properly classified;10 and that "all positions should be reviewed at least once every two years."11

The above statutes and policies required an agency to allocate positions having substantially the same duties and responsibilities to the same classification. Here, the grievant asserts that the agency misapplied or unfairly applied policy by requiring her to have a bachelor’s degree to hold the ATS position, while at the same time not requiring a bachelor’s degree of others.12 Furthermore, she asserts that she performed the duties of an ATS and thus should have been compensated as an ATS.

The agency has conceded that at least 75% of the work that the grievant performed beginning in 1999 was work characteristically performed by an ATS. 13However, the agency appears to take the position that even if a majority of the grievant’s duties were those of an ATS, she was not qualified for an ATS position nor did one exist until the year 2000. 14

Beginning with the agency’s position that the grievant was not qualified for the ATS position, the agency’s own actions tend to cast doubt on the absolute requirement for a bachelor’s degree for the ATS position. If a bachelor’s degree was an essential requirement of the ATS position, then one must ask why the grievant was permitted to perform 75% of the work of an ATS, particularly, teaching classes. Under applicable state policy, it would not appear that an agency could on one hand ignore degree (or licensure) requirements (for instance, when it is understaffed or otherwise in need of someone to teach a class), then use a lack of degree (or license) to deny that employee appropriate pay for her assigned teaching duties and responsibilities.

Likewise, the agency’s second argument would not appear to allow the agency to avoid complying with the policy provisions set forth above. In most situations, if an employee is performing the duties and responsibilities of a given classification, then she should be paid for that work commensurate with pay normally paid employees in that classification, regardless of her position title. 15Accordingly, evidence in this case raises a sufficient question as to whether the policies discussed above were accurately, consistently, and fairly applied with respect to the grievant’s position classification. Therefore, the grievance qualifies for a hearing.

Access to the Grievance Procedure--The November 13th Grievance:

The grievant has asked this Department to determine whether she had access to the grievance procedure when she initiated her November 13th grievance challenging her termination for "unsatisfactory performance." The General Assembly has provided that all non-probationary state employees may utilize the grievance process, unless exempted by law. 16As discussed below, when the grievant initiated her grievance on November 13th, she was a probationary employee and therefore does not have access to the grievance process.

Following her successful candidacy for the ATS position, the grievant was asked by the agency, as a condition of employment, to complete a new 12-month probationary period. The agency was permitted to request the new probationary period under DHRM Policy 1.45 II (D)(1) because it had the express approval of the Department of Human Resources Management. 17The offer letter properly included notification of the new probationary period requirement.18 On June 16, 2000, the grievant signed an acceptance of employment in which she acknowledged, among other things, that she agreed to serve a new one-year probationary period.

DHRM Policy 1.45 VII (B)(1) expressly states that "[p]robationary employees are not eligible to use the Grievance Procedure for State Employees to grieve a termination or disciplinary action."19 However, Policy 1.45 II (D)(4) states "an employee who is promoted in the same agency to a higher position classification that requires serving another probationary period shall be offered to be returned to his/her previous classified position or an equivalent position for which a vacancy exists if the probationary period is not satisfied or completed for any reason other than misconduct." The potential significance of this policy provision is that if the grievant had been eligible for return to her former or similar position, upon return she would have resumed her non-probationary status and, thus, would have access to the grievance process. Indeed, upon initial examination, it could appear that the grievant should have been offered either her former or a similar vacant position because she was terminated for poor job performance. However, the bases stated by the agency for its determination of poor performance--failure to follow supervisor’s instructions and violation of DCE policies regarding Communication and Telephone usage--are acts of misconduct (not poor job performance) under DHRM Policy 1.60. Thus, the grievant is not entitled to either her former position or a similar vacancy. And, because the grievant was a probationary employee when she was terminated, she does not have access to the grievance procedure.

 

 

 

APPEAL RIGHTS AND OTHER INFORMATION

Qualification:

For additional information regarding the actions the grievant may take as a result of this ruling, please refer to the enclosed sheet. Please note that this determination cannot be construed as a finding that the agency misapplied or unfairly applied applicable policy or procedure. Only a hearing officer can make such a determination, after a full exploration of the facts.

Even if the hearing officer finds that the agency misapplied or unfairly applied applicable the state classification and reallocation policies, the hearing officer may only direct the agency to apply those policies correctly and to provide backpay to the grievant, if appropriate, in accordance with policy and the grievance procedure. A hearing officer may not substitute his judgement for that of management’s regarding the correct classification or level of an employee’s position. 20Thus, a hearing officer may not order the agency to classify the grievant’s position at a certain level, award monetary damages, or grant any other form of relief.21

It should also be noted that even if the agency determines that the grievant was misclassified, the potential for backpay is very limited. The maximum back pay for which the agency could be liable would be the difference in pay between the ATS position and the PST Sr. position. Moreover, the grievant would be entitled to backpay only for the 30 calendar day period immediately preceding the initiation of her grievance.22

Access:

For more information regarding actions you may take as a result of this ruling, please refer to the enclosed sheet. If you wish to appeal the determination that you do not have access to the grievance procedure to circuit court, please notify your Human Resources Office, in writing, within five workdays of receipt of this ruling.

Neil A.G. McPhie, Esquire
Director

William G. Anderson, Jr.
Employee Relations Consultant

1The grievant clarified that her grievance does not challenge the hiring of the two other employees. Rather, she views those hires as comparators in demonstrating management's alleged misapplication or unfair application of policy in her case.
2See December 6, 2000 correspondence from the agency head. This Department concurs that at the time of the termination, the grievant was a probationary employee. The grievant's status changed from that of a classified employee to that of a probationary employee in June of 2000 when she assumed the job of Transition Specialist, a position that falls under the classification of Academic Teacher. Under the Department of Human Resources Management ("DHRM") Policy 1.45, an agency can require persons who accept certain positions, including, apparently, ATS, to complete a new probationary period although they may have previously successfully completed a probationary period. See DHRM Policy 1.45 II (D)(1).
3Va.Code § 2.1-116.06 (B).
4Va. Code § 2.1-116.06(A) and (C); Grievance Procedure Manual § 4.1(b) and (c), pages 10-11.
5See Grievance Procedure Manual, § 5.9(b), page 15.
6See Va. Code § 2.1-110.
7Va. Code § 2.1-114.2(A).
8Va. Code § 2.1-114.2(B).
9DHRM Policy 3.05 (IV) (C) (effective September 16, 1993).
10DHRM Policy 3.05 (IV)(D)(1)(effective September 16, 1993).
11DHRM Policy 3.05(IV)(D)(2)(effective September 16, 1993).
12The grievant notes that Commonwealth policy states "that except where required by law, job announcements should not state absolute educational qualifications or use educational qualifications to preclude from consideration applicants who have equivalent or sufficient applicable experience or training." DHRM Policy 2.10 III (B)(2)(b).
13Prior to 1999, as much as 65% of the grievant's work consisted of ATS duties.
14See Agency Head's Qualification Decision, page 4 of 5.
15An exception to this general rule is, for instance, the "acting pay" policy, which was not applicable here and requires an existing but vacant position. Under policy in effect at the time of this grievance, the agency may have been able to abolish the grievant's former PST Sr. position then establish an ATS position. However, the agency could not have placed the grievant in the new ATS position without first going through a very specific process. See generally DHRM Policies 1.30 and 2.10.
16Va. Code § 2.1-116.09(A).
17See DHRM Policy 1.45 II (D)(3)(a), which requires agencies to secure written approval from DHRM prior to designing a position as one requiring a new probationary period. On August 18, 1997, the Department of Human Resource Management (then called the Department of Personnel and Training) granted DCE the authority to require "all employees hired as DCE Academic or Vocation Teachers, including current state employees who are promoted or otherwise moved into such provision" to "serve a one-year probationary period."
18DHRM Policy 1.45 II (D)(3)(b).
19Italics provided.
20Va. Code § 2.1-116.06(B) and (C).
21See Rules for Conducting Grievance Hearings, page 10, 14-15.
22Compare Brinkly-Obu v. Hughes Training, Inc., 36 F.3d 336 (4th Cir. 1994)(in context of a Title VII or Equal Pay Act violation, relief is available only for the designated statutory time) with Va. Code § 2.1-116.05 (D)(in context of an employee grievance, designated time to file is 30 calendar days). The grievant initiated her grievance on June 12, 2000. Back pay is limited to 30-days prior to the initiation of the grievance.