Issue: Qualification/Consolidation; Ruling Date: August 9, 2001; Ruling #2001-059,087; Agency: Department of Mental Health, Mental Retardation, and Substance Abuse Services; Outcome: Consolidated with previous scheduled hearing.

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Mental Health, Mental Retardation, and Substance Abuse Services
No. 2001-059, 2001-087
August 9, 2001

The grievant has requested a ruling on whether her November 30, 2000 grievance with the Department of Mental Health, Mental Retardation, and Substance Abuse Services qualifies for a hearing. In this grievance, the grievant claims that her 2000 performance evaluation is improper because it is discriminatory on the basis of her alleged disability, harassing, and retaliatory. For the reasons discussed below, this grievance is consolidated with the grievant’s April 12, 2001 grievance (which has automatically qualified for hearing), and both grievances will be heard together by one hearing officer.

In October 2000, the grievant received her 1999-2000 performance evaluation with an overall rating of Fair But Needs Improvement. The evaluation consisted of eight job elements upon which the grievant’s performance was rated. She received a rating of Meets Expectation on three job elements. She received a Fair But Needs Improvement on each of the remaining six job elements.

On April 12, 2001, the agency terminated the grievant under the Standards of Conduct for alleged job performance issues.¹ On April 12, 2001, the grievant filed a second grievance challenging her performance-based termination as wrongful, unfair and discriminatory. This second grievance, which also involves the grievant’s October 2000 performance evaluation, has automatically qualified for a hearing. A hearing on this second grievance has not yet been held.

This Department has the authority to consolidate grievances on its own accord and does so when consolidation promotes judicial economy and a more comprehensive understanding of the disputed issues.² This is such a case. The issue of the grievant’s performance is central to both of her grievances. Thus, the factual issues presented by each grievance are significantly intertwined. Indeed, it may be that the first grievance has now been subsumed by the second. In any event, a hearing officer will be appointed to determine whether the performance-based termination was warranted and appropriate under the circumstances. It is therefore reasonable under the unique circumstances of this case for the hearing officer to review as well the issue of whether the grievant’s October 2000 performance evaluation is tainted by discrimination, harassment, or retaliation.

With respect to the April 12, 2001 grievance, the agency will have the burden at hearing of proving, by a preponderance of the evidence, that the April 2001 termination was "warranted and appropriate under the circumstances."³ The hearing officer may either uphold, reduce, or rescind the termination.⁴ With respect to the November 30, 2000 grievance, the grievant must prove by a preponderance of the evidence⁵ that her October 2000 evaluation was tainted by disability discrimination, harassment based on her disability, or retaliation. If the hearing officer so finds, he may direct the agency to redo the October 2000 evaluation on an objective basis related to the performance expectations in the grievant’s performance plan, and may direct the agency to take steps to prevent discrimination, harassment, and/or retaliation from recurring. The hearing officer may not substitute his judgment for that of management by ordering that a specific action or performance rating be given.⁶

Neil A.G. McPhie, Esquire
Director

Felicia H. Johnson
Employment Relations Consultant