Issue: Qualification, Discipline-Suspension Pending Investigation or Court Action; Ruling Date June 14, 2001; Ruling #2001-076; Outcome: Not Qualified

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of DMHMRSAS/ No. 2001-076

June 14, 2001

The grievant has requested a ruling on whether his grievance initiated on February 5, 2001 with the Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) qualifies for a hearing. The grievant claims that management misapplied or unfairly applied policy by suspending him without pay pending disciplinary action. For the reasons discussed below, this grievance does not qualify for a hearing.

FACTS

The grievant was employed in a management position for an agency mental health facility. On October 19, 2000, the facility director and other managers met with the grievant and notified him that the agency intended to take disciplinary action against him for behavior constituting "unacceptable management practices." The facility director explained the charges and advised the grievant that he would be afforded an opportunity to respond at a later meeting. The grievant was then immediately removed from the work area and remained away from work for a period of 110 days, after which the agency issued him a Group III Written Notice with 30-day suspension on February 7, 2001.1 The grievant initially submitted annual leave for the total 110-day period of his suspension; however, the agency later restored the leave in response to this grievance.

The grievant claims that the agency misapplied policy by suspending him without pay for a period of 110 days pending disciplinary action.

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.2

DHRM policy indicates that an employee’s immediate removal from the work area without advance notice for safety, operational or liability reasons must be reported as "Pre-disciplinary Action Leave," which "is a leave with pay without charge to an employee’s leave balances for a period normally limited to up to five workdays." 3 Thus, it appears that this grievance raises a sufficient question as to whether the agency misapplied policy by requiring the grievant to use his annual leave during a pre-disciplinary action leave.

A determination by this Department that a grievant has presented evidence raising a sufficient question as to whether a misapplication of policy has occurred generally results in qualification of the issue for hearing. There are some cases, however, where qualification is inappropriate even if a policy has been misapplied. For example, during the resolution steps, an issue may have become moot, either because the agency granted the specific relief requested by the grievant or an interim event prevents a hearing officer from being able to grant any meaningful relief.

In this case, the agency has presented documentation that the grievant’s annual leave balances were restored by March 20, 2001.4 Therefore, if this claim proceeded to hearing, there would be no effectual relief that a hearing officer could grant because the agency has already granted it. Accordingly, this issue does not qualify for hearing.

However, at the hearing on the Group III Written Notice and 30-day suspension, the grievant may offer evidence of the agency’s handling of his pre-disciplinary suspension if he believes it could support his claim that the Group III Written Notice and 30-day suspension were unwarranted under the circumstances. It will be for the hearing officer to determine the admissibility and weight of any such evidence.

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, he 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 challenged the Group III Written Notice in a separate grievance on February 13, 2001; the grievance was subsequently qualified for a hearing on April 16, 2001. In addition, the grievant resigned his position with the agency, effective March 9, 2001. Neither the disciplinary action nor the grievant's resignation are at issue in this grievance and will not be addressed.
2 See Grievance Procedure Manual § 5.9, pages 15-16; Rules for Conducting Grievance Hearings, page 10.
3 DHRM Policy No. 1.60(VII)(E)(4)(c)(effective 9/16/93)(italics in original).
4 The agency, with the consent of DHRM, offset the restored leave hours by withholding an amount of leave sufficient to cover the 30-day disciplinary suspension of February 7, 2001 (rather than alternatively restoring the Pre-Disciplinary Action Leave in full, and then suspending the grievant for a further 30 days). Regardless of which of these two alternatives the agency had employed, there would still be no effectual relief a hearing officer could grant on the issue of the Pre-Disciplinary Action Leave of October 19, 2000. As stated, the 30-day disciplinary suspension of February 7, 2001 may be addressed at the hearing on the disciplinary actions of that date.