Issue: Qualification, Retaliation/Other Protected Right; Ruling Date: July 12, 2001; Ruling #2001-072; Agency: Department of Corrections; Outcome: Not qualified.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of Dept. of Corrections/ No. 2001-072
July 12, 2001

The grievant has requested a ruling on whether the grievance she initiated on December 19, 2000 with the Department of Corrections qualifies for a hearing. The grievant claims that management retaliated against her for filing a sexual harassment complaint. For the reasons discussed below, this grievance does not qualify for a hearing.

FACTS

The grievant is employed by the Department of Corrections as an office manager. On October 6 and 10, 2000, the grievant made a formal complaint of sexual harassment by her supervisor to the Chief Warden of her facility. An investigation was conducted, and as a result, the grievant was assigned a new supervisor on October 10.1 The grievant contends that the following conduct by her new supervisor after October 10, 2000 constituted retaliation and retaliatory harassment for her filing of the sexual harassment complaint: (1) ordering her to date-stamp rather than to e-mail confirmation of records submitted to her office; (2) stating to the grievant that she should work non-scheduled work days and holidays if necessary to keep her work current; (3) issuing counseling memoranda to her on a near weekly basis addressing her job performance; (4) verbally threatening to fire her; and (5) requiring her to submit leave forms each time leave is taken and to document sick leave with a doctor’s note.

DISCUSSION

By statute and under the grievance procedure, management reserves the exclusive right to manage the affairs and operations of state government.2 Thus, claims relating to issues such as the methods, means 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. 3The grievant claims that management retaliated against her for having filed a sexual harassment complaint.

Preliminary Timeliness Issue

At the qualification step of the process, management advised the grievant that her grievance had not been initiated within 30 calendar days of several of the actions or events challenged and that those actions or events would not be addressed any further. It has been the longstanding position of this Department that when a grievant alleges a continuing pattern of discriminatory and/or retaliatory acts, as in this case, and one of the alleged incidents supporting her claims occurred within the 30-calendar day period, management should consider all of the alleged actions, even those outside the 30-calendar day period, in order to determine whether there is evidence of a pattern of impermissible conduct and whether the grievance should be qualified for hearing.4

Here, the grievant was issued counseling memoranda on November 20 and 26, 2000, which she cites in support her claims of ongoing retaliation. These specific incidents undisputedly occurred within 30 calendar days of the initiation of her grievance on December 19, 2000. Thus, the actions that transpired prior to the 30 calendar day period should be reviewed to determine whether there is evidence of a continuing pattern of retaliation. Accordingly, for purposes of this qualification ruling, this Department will consider all the grievant’s allegations, including those prior to November 19, 2000. Her issues are discussed below.

Retaliation/Retaliatory Harassment

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; (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. Further, 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.5

Under the grievance procedure, only certain activities are considered "protected" activities that will support a claim of retaliation; included among these activities is "exercising any right otherwise protected by law."6 Title VII of the Civil Rights Act of 1964 characterizes two broad categories of activities as protected for purposes of a retaliation claim -- an employer may not retaliate against an employee for (i) participating in an ongoing investigation or proceeding under Title VII or (ii) opposing discriminatory practices in the workplace.7 Activities such as "complaining to the employer" and "participating in an employer’s informal grievance procedures" have been held to be "opposition activities" protected under Title VII.8 Thus, the grievant engaged in a protected activity in October 2000 when she met with the Chief Warden regarding her supervisor’s conduct and subsequently filed a formal written complaint.

As a matter of law, "adverse employment actions" include any retaliatory act or harassment if, but only if, that act or harassment results in an adverse effect on the terms, conditions, or benefits of one’s employment with the alleged retaliating employer.9 In this case, the alleged retaliatory acts, while certainly unpleasant to the grievant, have not adversely affected the terms, conditions or benefits of her employment. Rather, the challenged acts by her new supervisor (ordering the date-stamping of documents; suggesting weekend and holiday work to keep current; informal performance counseling; verbally threatening to terminate her employment due to poor performance; requiring the submission of leave forms) have had no effect on the terms of her employment, compensation, or benefits, all of which have remained unchanged.10

As for a causal link, there is a close proximity in time between the grievant’s sexual harassment complaint and the alleged retaliatory acts. But the grievance provides no additional evidence that could show a retaliatory intent on the part of her new supervisor. Further, the agency has provided well-documented, nonretaliatory business reasons for the contested actions: the grievant’s job performance and use of leave forms needed improvement. Specifically, the agency’s documentation notes problems with the timely completion of her job duties, well before her sexual harassment complaint. Indeed, the grievant’s own attachments to her grievance reflect that her new supervisor had asked her to accept a demotion as far back as December 1998. Consistent with this, the new supervisor’s verbal and written counseling following the sexual harassment complaint address these performance issues in more detail. Similarly, the work instructions complained of by the grievant (e.g., date-stamping receipt of paperwork, or working weekends or holidays as needed to keep work current simply address the grievant’s need to improve her work performance. Although all of these actions clearly caused the grievant unease, she has not provided any evidence that management’s stated concerns with her performance were merely a pretext for retaliation against her for having filed a sexual harassment complaint.

APPEAL RIGHTS AND OTHER INFORMATION

For the reasons discussed above, this grievance does not qualify for a 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, she should 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

Jeffrey L. Payne
Employment Relations Consultant

1 The grievant's reviewer (her immediate supervisor's supervisor) was assigned as her new supervisor.
2 Va. Code §2.1-116.06(B).
3 Va. Code §2.1-116.06(A) and (C).
4 See Valentino v. United States Postal Serv., 674 F.2d 56, 65(D.C. Cir. 1982)(quoting B. Schlei & P. Grossman, Employment Discrimination Law, 232 (2d ed. 1979)(to demonstrate a continuing violation a plaintiff must show "a series of related acts, one or more of which falls within the limitations period").
5 See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653 (4th Cir. 1998).
6 See 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 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.
7 42 U.S.C.A. § 2000-3(a).
8 See Bradley v. CMI Industries, Inc., 17 F.Supp.2d 491 (W.D. N.C.1998)(quoting Hopkins v. Baltimore Gas & Elec, Co., 77 F.3d 745 (4th Cir. 1996) and Armstrong v. Index Journal Company, 647 F.2d 441 (4th Cir. 1981)). See also EEOC Compliance Manual, EEOC Directives Transmittal, Number 915.003, 8-II (B), dated 5/20/98 (protection under the anti-retaliation provisions "applies if an individual explicitly or implicitly communicates to his or her employer …a belief that its activity constitutes a form of employment discrimination that is covered by any of the statutes enforced by the EEOC…2. [e]xamples of opposition…[a] complaint or protest about alleged employment discrimination to a manager… [where] the individual explicitly or implicitly communicates a belief that the practice constitutes unlawful employment discrimination… [and] the complaint would reasonably have been interpreted as opposition to employment discrimination").
9 Von Gunten v. Maryland Department of the Environment, 2001 U.S. App. LEXIS 4149 (4th Cir. 2001)(citing Munday v. Waste Mgmt. of North America, Inc., 126 F.3d 239, 243 (4th Cir. 1997)).
10 See id.