Issue: Qualification; Retaliation/Grievance Activity; Methods/Means/Transfer; Ruling date July 25, 2001; Ruling #2001-045; Agency: Virginia State University; Outcome: Retaliation qualified; Methods/Means not qualified

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of Virginia State University/ No. 2001-045
July 25, 2001

The grievant has requested a ruling on whether his grievance with Virginia State University (VSU) qualifies for a hearing. The grievant claims that management subjected him to retaliation, an unwarranted disciplinary measure, and/or misapplied policy by reassigning him from investigations to patrol duty. For the reasons discussed below, this grievance qualifies for a hearing.

FACTS

The grievant was employed by VSU until his resignation on February 28, 2001. While at VSU, he received an overall rating of "Exceeds Expectations" on each of his last three annual performance evaluations, with a "Meets" or "Exceeds Expectations" for the job elements related to conducting investigations and writing investigative reports.

On December 5, 2000, upper management met with the grievant during the investigation of another employee’s grievance. The grievant claims that subsequent to that meeting, several co-workers informed him that because his comments allegedly assisted in the other employee’s reinstatement, management planned to reassign him from Investigations, his then current Division, to the Patrol Division. On January 3, 2001, the grievant met with his supervisor who confirmed that he would be reassigned to the Patrol Division. On January 5, 2001, the grievant was reassigned to the Patrol Division, though without any formal discipline.

At that time and in its management step responses, management asserted that the grievant’s reassignment was due to departmental restructuring, not retaliation for having participated in another grievance. During the investigation for this ruling, management maintained that position, but in addition provided documents and information to indicate that the grievant’s poor performance as an investigator also was a factor in the decision to reassign him to patrol duty.

DISCUSSION

The employment dispute resolution statutes reserve to management the exclusive right to manage the affairs and operations of state government.1 Thus, claims relating to issues such as the methods, means and personnel by which work activities are to be carried out and the reassignment of employees within the agency generally do not qualify for a 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. 2 In this case, the grievant asserts that his reassignment to patrol duty constituted retaliation, unwarranted discipline, and/or a misapplication of policy. These issues are discussed in turn below.

Retaliation

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;3 (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 management took an adverse action because the employee had engaged in the protected activity. If any of these three elements are not met, the grievance may not qualify for hearing. In addition, 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.4

In this case, it is undisputed that the grievant engaged in a protected activity by participating in another employee’s grievance in December, 2000. In addition, the evidence raises a sufficient question as to whether a reassignment from the Investigations Division to the Patrol Division was an "adverse employment action." As a matter of law, an "adverse employment action" is one which has an adverse effect on the terms, conditions, or benefits of one’s employment.5 A reassignment that substantially affects the employee’s duties and promotional opportunities may be viewed as an adverse employment action.6 Reassigning a police officer from investigative work to patrol duty could reasonably be viewed as a blemish on his work record that could negatively impact the officer’s promotional opportunities, even though the grievant was not technically demoted.

As for a causal link, there is a very close proximity in time between the grievant’s December 2000 participation in another employee’s grievance and his January 5, 2001 reassignment to the Patrol Division. Management has, however, provided nonretaliatory business reasons for the reassignment: the need for departmental restructuring and the grievant’s inadequate performance as an investigator. Indeed, although it appears that the grievant was the highest ranking officer reassigned to patrol duty, at least four other employees were reassigned to different posts on January 5, 2001, lending some support to the position that restructuring, not retaliation, was at least one motivating factor. The evidence is more problematic and conflicting regarding the factor of poor investigative skills, however: the grievant’s annual performance evaluations, on their face, would appear to contradict the claim that his reassignment was due to his poor investigative skills. All in all, the evidence of a causal link is conflicting. In light of all the above, this grievance raises a sufficient question as to whether the reassignment was an adverse employment action, and if so, whether the motivating factor was retaliation.

Disciplinary Transfer/Reassignment

For state employees subject to the Virginia Personnel Act, a reassignment or reassignment must be either voluntary, or, if involuntary, must be based on objective methods and must adhere to all applicable statutes and to the policies and procedures promulgated by the Department of Human Resource Management (DHRM).7 Applicable statutes and policies recognize management’s authority to transfer an employee for disciplinary purposes as well as to meet the agency’s legitimate operational needs.8

When an employee is transferred as a disciplinary measure, certain policy provisions must be followed.9 All transfers accompanied by a Written Notice automatically qualify for a hearing if challenged through the grievance procedure.10 In the absence of an accompanying Written Notice, a challenged transfer qualifies for a hearing only if there is a sufficient question as to whether the transfer was an "adverse employment action" effectuated for disciplinary reasons, in other words, "to correct or punish behavior or to establish the professional or personal standards."11 These policy and procedural safeguards are designed to ensure that a disciplinary transfer is merited. A hearing cannot be avoided for the sole reason that a Written Notice did not accompany the transfer.

As discussed above with respect to the grievant’s retaliation claim, the facts of this grievance raise a sufficient question as to whether his reassignment to the Patrol Division constituted an adverse employment action. For purposes of qualifying the disciplinary transfer claim, the only issue remaining is whether there is sufficient evidence that an intent to correct or punish the grievant’s behavior, or to establish professional or personal standards, was the primary motivating factor behind management’s decision to reassign the grievant to the Patrol Division.

In this case, management has affirmatively asserted that grievant’s poor performance as an investigator was one factor in its decision to reassign him to patrol duty. This raises a sufficient question as to whether the reassignment was an unwarranted disciplinary action, in other words, taken primarily to correct or punish poor performance rather than to restructure the department. Whether the grievant’s performance was the primary factor or merely secondary to agency restructuring is a factual determination best left to a hearing officer.12

Misapplication of policy

For an allegation of misapplication of policy or unfair application of policy to qualify for a hearing, there must be facts that raise a sufficient question as to whether management violated a mandatory policy provision, or whether the challenged action, in its totality, was so unfair as to amount to a disregard of the intent of the applicable policy.

Here, the grievant has presented insufficient evidence to show that management violated a mandatory policy provision. Nor is there sufficient evidence that policy was applied so unfairly as to amount to a disregard of its underlying intent (apart from the alleged retaliation and disciplinary transfer claims addressed separately above). Thus, this issue does not qualify for a hearing.

APPEAL RIGHTS AND OTHER INFORMATION

At hearing, the grievant must prove by a preponderance of the evidence13 that his reassignment from Investigations to the Patrol Division was either retaliatory or disciplinary. If the hearing officer finds that the transfer was retaliatory, the scope of relief he or she can order is limited. In retaliation cases, a hearing officer may only issue a general order that the agency cease the retaliation and take measures to prevent any future retaliation. A hearing officer can only recommend, not order, that the agency take specific actions to remedy the retaliation. 14

If the hearing officer finds that the reassignment was disciplinary, the agency will have the burden of proving that the transfer, though disciplinary, was warranted.15 Typically, if the hearing officer finds that the reassignment was disciplinary and unwarranted, the hearing officer may rescind the reassignment, thus effecting the grievant’s reinstatement to his original position, just as the hearing officer may rescind any formal disciplinary action (such as termination) by ordering reinstatement to a previously held position.16 In this case, however, because the grievant voluntarily resigned from his position on February 28, 2001,17 the hearing officer cannot order reinstatement to the previously held position should the hearing officer rule in the grievant’s favor. Instead, the hearing officer is limited to issuing a finding that the transfer was an unwarranted disciplinary action.

Finally, this qualification ruling in no way determines that retaliation occurred or that the grievant’s reassignment was disciplinary. This ruling simply reflects that a further exploration of the facts by a hearing officer is warranted.

Neil A.G. McPhie, Esquire
Director

Tracey D. Watkins
Employment Relations Consultant

1 Va. Code §2.1-116.06(B).
2 Va. Code §2.1-116.06(A) and (C); Grievance Procedure Manual § 4.1(c) page 11.
3 See the Grievance Procedure Manual §4.1(b)(4), 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 to the State Employee Fraud, Waste and Abuse Hotline, or exercising any right otherwise protected by law."
4 See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653 (4th Cir. 1998).
5 Von Gunten v. Maryland Department of the Environment, 243 F.3d 858 (4th Cir. 2001) (citing Monday v. Waste Mgmt. of North America, Inc., 126 F.3d 239, 243 (4th Cir. 1997)).
6 Boone v. Golden, 178 F.3d 253, 256 (4th Cir. 1999); see also EEO Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (tangible employment action includes undesirable reassignment).
7 Va. Code §2.1-110 et seq.
8 Va. Code §§ 2.1-116.06(A) & (C); DHRM Policy No. 1.60, Standards of Conduct (VII)(E).
9 DHRM Policy No. 1.60, Standards of Conduct (VII).
10 Va. Code § 2.1-116.06(A); DHRM Policy No. 1.60, Standards of Conduct (IX); Grievance Procedure Manual § 4.1, page 10.
11 Va. Code §§ 2.1-116.06(A) & (C); Grievance Procedure Manual § 4.1(b)(5) and (c)(4), pages 10-11 (a claim of disciplinary transfer, assignment, demotion, suspension, or other action similarly affecting the employment status of an employee may qualify for a hearing if there are sufficient supporting facts).
12 A major concern prompting the recent reform of the Commonwealth's employee compensation plan was that agencies had limited ability to efficiently transfer personnel, reassign duties, and adjust to changing demands. See generally, Final Report: Reform of the Classified Compensation Plan, January 14, 2000. To remedy this situation, the policies relating to compensation and hiring have been significantly altered to allow management to make personnel changes without having to engage in overly burdensome procedures. Under the Commonwealth's new compensation plan, an agency may freely consider the strengths and weaknesses of particular employees as it assigns duties and structures its workforce. An agency, for instance, now may elect to match an employee's abilities with agency needs through a "role change." See DHRM Policy 3.05. Accordingly, only in cases where there is sufficient evidence that an employee has suffered an adverse action which was primarily intended to discipline, that is to correct or punish, will this Department qualify a grievance alleging that a transfer or reassignment was unwarranted, informal discipline. Here, there is a sufficient question as to whether the reassignment was made primarily to correct or punish poor performance rather than to restructure the department.
13 Grievance Procedure Manual, § 5.8, page 15.
14 Rules for Conducting Grievance Hearings, page 11.
15 Grievance Procedure Manual, § 5.8, page 14.
16 We wish to clarify that under the grievance procedure, a hearing officer typically may only recommend, but not order, a transfer or reassignment. See Rules for Conducting Grievance Hearings, p. 7. However, the grievance procedure has long empowered a hearing officer to rescind an unwarranted disciplinary action. In cases where the unwarranted disciplinary action itself is a transfer or reassignment, that action, like all other unwarranted disciplinary actions, may be rescinded by the hearing officer, with the result that grievant is returned to the status quo prior to the disciplinary transfer or reassignment. See id. A final note: the agency had and continues to have the authority to transfer or reassign an employee if, in management's judgment, that would further legitimate operational needs and that transfer or reassignment is not retaliatory, discriminatory, unwarranted discipline, or a misapplication of policy.
17 This Department has long held that an employee who has resigned after timely initiating a grievance will be permitted to proceed to hearing, assuming that the grievance is otherwise qualified, so long as the hearing officer is able to grant some meaningful relief at hearing. In this case, a "name clearing" finding that the transfer was disciplinary but unwarranted could constitute meaningful relief.