Issue: Qualification; Retaliation/Grievance Activity; Ruling Date, May 30, 2001; Ruling #2001-053; Agency: Department of Corrections; Outcome: Not qualified.

In the matter of Department of Corrections/ No. 2001-053

May 30, 2001

The grievant has requested a ruling on whether his February 14, 2001 grievance with the Department of Corrections (DOC) qualifies for a hearing. The grievant claims that his transfer from one correctional facility to another was an act of retaliation for prior grievance activity. For the reasons discussed below, this grievance does not qualify for hearing.

The grievant was employed by DOC until August 7, 2000, when he was issued a Group III Written Notice and terminated for alleged multiple acts of horseplay and a purported incident of lifting an inmate and holding him against a wall. Another employee was implicated in the misconduct and was also terminated. The inmate instituted a lawsuit in federal court over the alleged lifting incident.

Because the grievant was terminated for alleged inmate abuse, he and the other terminated employee were permitted to challenge their discharges in circuit court.¹ On November 30, 2000, the circuit court held that the grievant and his co-worker were "wrongfully terminated." The judge, accordingly, reinstated them and specifically directed the agency to place them in positions with the same duties, responsibilities, and seniority that they had prior to the disciplinary action.² Upon reinstatement, the grievant was transferred from the correctional unit where he worked at the time of his termination to another correctional facility.

The grievant claims that management’s decision to transfer him to a different correctional facility was in retaliation for his having engaged in the grievance process. 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. 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

There is no question that the grievant engaged in protected activity when he challenged his termination through the grievance process. However, assuming without deciding that the transfer to another correctional facility could be considered an adverse employment action, the grievant has not produced sufficient evidence that the transfer was initiated because of the grievance. Apart from the close proximity in time between (1) his use of the grievance process and his November 30, 2000 reinstatement, and (2) his transfer to another facility on January 26, 2001, the grievant has presented no evidence that would indicate that the agency’s action was retaliatory. Moreover, as explained below, the agency has provided non-retaliatory business reasons for the transfer.

First, the agency claims that it instituted the transfer to reduce the polarizing effect that returning the grievant to the same unit would have had on other officers. Management claims that one group of officers had essentially supported management’s disciplinary action and another group opposed it. Management concluded that removing the grievant from the institution where the alleged wrongful conduct had occurred would foster a more rapid reconciliation of the division among the officers. Additionally, several of the agency’s employees, including but not limited to the grievant, Superintendent, and the Regional Director, were sued in federal district court by the inmate who was allegedly mistreated by the grievant. Thus, considerations regarding the federal lawsuit were also a factor in the decision to transfer the grievant from one facility to another. Lastly, the agency claims that the grievant was transferred so that management could more closely supervise him at the second facility -- a higher security facility with a larger number of supervisors than the one from which he was transferred.

Because the grievant has not presented sufficient evidence of a causal link between his transfer and his grievance and because he has not offered any evidence that would tend to suggest that the reasons given by the agency for its actions were pretextual, the grievance is not qualified for hearing.

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