Issue: Qualification: Performance; Arbitrary/Capricious, Misapplication; Ruling Date May 17, 2001, Ruling #2001-054; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; Outcome: Not qualified. Appealed to the Circuit Court for Dinwiddie County on 6-14-01; Affirmed on 8-27-2001

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of DMHMRSAS No. 2001-054

May 17, 2001

The grievant has requested a ruling on whether his November 21, 2000 grievance with the Department of Mental Health, Mental Rehabilitation and Substance Abuse Services (DMHMRSAS) qualifies for a hearing. The grievant claims that management misapplied policy and gave him an arbitrarily or capriciously low annual performance evaluation in October 2000.1 The relief requested is a revised performance appraisal and an overall rating of "Meets Expectation." As explained further below, this grievance does not qualify for hearing.

FACTS

The grievant is employed as a Forensic Coordinator for DMHMRSAS. On October 12, 2000, the grievant received his 2000 performance evaluation with an overall rating of Fair But Needs Improvement. The evaluation consisted of six job elements upon which the grievant’s performance was rated. He received the rating of Fair But Needs Improvement on three job elements,2 and a rating of Meets Expectations on the remaining three elements. His grievance challenges the rating of Fair But Needs improvement for Job Elements 1, 2, and 6, as well as his overall rating.

DISCUSSION

Misapplication or Unfair Application of Policy

For a claim of policy misapplication or unfair application of policy to qualify for a hearing, there must be evidence raising a sufficient question as to whether management violated a mandatory policy provision, or evidence that management’s actions, in their totality, are so unfair as to amount to a disregard of the intent of the applicable policy. Further, if a claim of policy misapplication is qualified and proven at a hearing, the relief that a hearing officer can grant is limited to directing the agency to reapply the policy from the point at which it was misapplied. A hearing officer may not award damages or attorney’s fees, or any other prospective relief.3

The grievant claims that policy dictates that an employee is to receive 90-day reviews when the employee’s performance is not satisfactory. However, the grievant failed to produce a copy of a policy referencing the 90-day review. Nor did this Department’s investigation reveal such a policy. DHRM Policy No. 1.40 (Performance Planning and Evaluation) states that "[a]n interim evaluation may be conducted at any time during the performance cycle."4 Thus, while the policy does permit interim evaluations, they are not mandatory and no time frame is specified. Furthermore, management met with the grievant during the performance cycle and provided him feedback regarding his performance. Accordingly, because there is no evidence that the agency violated or unfairly applied policy, this issue does not qualify for hearing.

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. 5 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." 6

"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.7

The grievant claims that his supervisor did not properly consider the quality, timeliness and quantity of work performed during the majority of this evaluation period in determining his ratings for the individual job elements and his overall rating. Specifically, the grievant asserts that his overall performance was not adequately addressed and that the monitoring and tracking of cases was unfairly given disproportionate weight in the ratings for several job elements. The grievant offers as support for his claim the fact that the agency failed to provide sufficient clerical support to assist with monitoring and tracking forensic patients, correspondence, database entry and necessary reporting, which adversely affected his ability to do his job tasks.

It is undisputed that the grievant performed all the tasks he was assigned.8 Management maintains, however, that the grievant’s performance of those tasks did not meet the associated expectations. After a careful review of the grievance record, the lack of clerical assistance was acknowledged by the reviewer on November 10, 2000, and resulted in a change in the rating on Job Element 4 (Administrative monitoring and data compilation) to "Meets Expectations," but the other ratings remained the same. While acknowledging the impact of the lack of clerical assistance on the grievant’s performance, the reviewer also indicated that the grievant failed to efficiently utilize the clerical support that was available to him. Additionally, the evidence presented shows that the supervisor has well documented his business reasons for the ratings received on the job elements challenged by the grievant as required by policy.9 Furthermore, the grievant has failed to provide evidence to show that management determined the disputed ratings by pure will or whim, without regard to the facts.

In sum, although there is obvious disagreement between the grievant and his supervisor regarding the annual performance evaluation, there is insufficient evidence to support the assertion that the ratings were determined without a basis in fact. Rather, it appears that grievant’s complaint centers on the exercise of judgment by his supervisor in evaluating his performance. Accordingly, this issue does not qualify for 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

Deborah M. Amatulli
Employment Relations Consultant

1 Even though the Form A did not specifically allege that the performance evaluation was arbitrary and capricious, there are facts presented that warrant this discussion.
2 During the review appeal process, the rating for Job Element 4 (Administrative monitoring and data compilation) was changed to "Meets Expectations" by the reviewer via memo dated 11/13, 2000, and will not be addressed in this ruling.
3 See Grievance Procedure Manual § 5.9, pages 15-16; Rules for Conducting Grievance Hearings, page 10.
4 DHRM Policy No. 1.40 (IV)(A)(dated 9/10/93). Please note that DHRM Policy No. 1.40 was revised 4/01/01. However, because the performance review at issue was conducted prior to this revision, the previous version of this policy is controlling for purposes of this ruling.
5 See Va. Code §2.1-116.06(B)(reserving to management the exclusive right to manage the affairs and operations of state government).
6 See Va. Code §2.1-116.06(A)(iv); Grievance Procedure Manual §4.1(b), page 10.
7 Id.; see also Norman v. Department of Game and Inland Fisheries (Fifth Judicial Circuit of Virginia, July 28, 1999) (Delk, J.).
8 For Job Elements 1 (System Management), 2 (Support to Internal Forensic Privileging Committee and Forensic Review Panel), and 6 (Consultation and Training) the grievant has presented evidence in the form of letters and emails to the courts and treatment team personnel. While all copies of correspondence presented during this investigation will not be discussed with particularity in this ruling, all of the documentation has been reviewed and considered in making this decision
9 Supervisors are required to provide written comments for each rating of Does Not Meet Expectations, Fair But Needs Improvement, or Exceptional. See DHRM Performance Evaluation Handbook for Supervisors III(D)(revised June 1998).