Issue: Qualification/Working out of Class-Failure to Take Action/Other; Ruling Date August 7, 2001; Ruling #2001-077; Agency: Department of Corrections; Outcome: Not Qualified

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Corrections No. 2001-077
August 7, 2001

The grievant has requested a ruling on whether her January 18, 2001 grievance with the Department of Corrections (DOC) qualifies for a hearing. The grievant claims she is performing some of the duties of a Food Operations Director A and Nutritionist but has not been compensated for performing those duties. The grievant also asserts that her performance evaluation did not take into account all the awards she had been presented or all the duties she performed during the year. For the reasons discussed below, this grievance does not qualify for a hearing.

FACTS

The grievant is employed as a Food Technician III (formerly Food Operations Manager A). The grievant alleges that the agency misapplied its acting pay policy by failing to compensate her for performing additional duties. These ‘additional duties’ are similar to some of those listed on the Food Operations Director A1 and Nutritionist2 position descriptions. It is undisputed that the grievant did not perform all, or even a majority of the duties of the Food Operations Director A or Nutritionist.

The grievant received an overall rating of "Meets Expectations" on her performance evaluation effective November 1, 2000. She asserts that this rating should have been higher due to the awards she has received over the past six years and the additional duties that she performed.

DISCUSSION

Misapplication and/or Unfair Application of the of Acting Pay and Compensation Policies

The grievance statutes and procedure reserve to management the exclusive right to manage the affairs and operations of state government.3 Thus, claims relating to issues such as the methods, means and personnel by which work activities are to be carried out and the establishment or revision of position classifications and compensation generally do not qualify for a 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.4 The grievant has expressly claimed that the agency has misapplied its acting pay policy.

For a misapplication of policy claim to qualify for a hearing, there must be evidence raising a sufficient question as to whether management violated a mandatory policy provision, or acted in a manner so unfair as to amount to an abuse of discretion under the applicable policy. Further, if a claim of policy misapplication is qualified and proven at a hearing, the relief that a hearing officer can order is limited to directing the agency to reapply the policy from the point at which it was misapplied. A hearing officer may not order damages or attorney’s fees, or any other prospective relief. "5

The grievant alleges that the agency has misapplied or unfairly applied DOC Procedure Number: 5-15, Acting Pay.6 Section 5-15.5 of this policy states that an "Acting Employee means a salaried employee who has been assigned the duties of a higher grade vacant position and has performed the duties for more than ninety (90) days."7 In this case the grievant is a salaried employee and claims that she has been assigned the duties of higher level positions. However, her grievance presents no evidence that she has been performing the duties of a vacant position for more than 90 days.8

Although the grievant has cited to the Acting Pay policy in her grievance, she essentially asserts that her position has been misclassified because she has performed additional duties over a period of years for which she was not compensated. The General Assembly has recognized that the Commonwealth’s system of personnel administration should be "based on merit principles and objective methods" of decision-making.9 In addition, the Commonwealth’s classification plan "shall provide for the grouping of all positions in classes based upon the respective duties, authority, and responsibilities," with each position "allocated to the appropriate class title."10 Moreover, the Commonwealth’s "compensation plan shall be uniform; and for each class of positions there shall be set forth a minimum and maximum rate of compensation and such intermediate rates as shall be considered necessary or equitable."11

Here, evidence suggests that the ‘additional’ duties the grievant asserts she performed, are duties that may be required of a Food Operations Manager A. The classification specifications for Food Operations Manager A states that "at the agency’s discretion the employee may direct the total food service operation." Given the breadth of the range of duties contemplated in the Food Operations Manager A class, the grievant simply has not presented evidence that she was working outside of the scope of her job classification. Moreover, the issue of potential misclassification is essentially moot because the grievant has moved to a different facility where she no longer assumes these ‘additional’ duties.12

Performance Evaluation

The grievant alleges that her performance evaluation was "unfairly determined". Specifically, she claims that, in rating her performance, her supervisors failed to consider awards she was presented over the past six years and the additional duties she performed. 13The grievant basically claims that the performance rating of "Meets Expectations" was not high enough. She asserts as support for her claim that she was chosen as the 1999 "Employee of the Year" for the Food Operations Department, which indicates that her performance warranted a rating higher than "Meets Expectations."

Under the grievance statute and procedure, management has the exclusive right to establish performance expectations and to rate employee performance against those expectations.14 Accordingly, to qualify a challenged performance evaluation for a hearing, there must be facts raising a sufficient question as to whether the grievant’s performance ratings were arbitrary or capricious or whether in evaluating her performance, management misapplied policy.15 This ruling reviews the grievant’s challenge under all applicable standards.

"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.16

In this case, the grievant does not allege, nor did she provide evidence to show, that the performance data upon which management based its evaluation of her performance was in error. Rather, she claims that in rating her performance, her supervisors failed to consider the awards she was presented and the additional duties she performed. Specifically, she asserts that her selection as Employee of the Year indicates that her performance was above a "Meets Expectations" rating. While that contention is not unreasonable, the grievant has not presented evidence to support the assertion that the rating was determined without a basis in fact.

Likewise, there is no evidence that the agency’s rating reflects a misapplication or unfair application of policy. While reasonable minds may disagree over the weight that the "Employee of the Year" rating should have carried in the overall performance evaluation, the grievant has not presented evidence that the agency violated any mandatory policy or the "Meets Expectations" rating was so unfair as to amount to an abuse of discretion under the applicable policy.

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 the qualification 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

Deborah M. Amatulli
Employment Relations Consultant

1 See the Work Tasks and Duties chart for Food Operations Director A., page 2. Specifically, the grievant asserts that she acts as the Food Operations Director A when she (1) orders and receives food products from the institutional warehouse, (2) prepares menus, (3) interviews and selects inmate staff and advises them regarding work assignments, schedules, disciplinary actions, personal hygiene and pay, (4) responds to inmate complaints and concerns relative to the food preparation kitchen, and (5) receives inmate grievances from Food Operations Managers B regarding food preparation.
2 See the Work Tasks and Duties chart for Nutritionist. Specifically the grievant asserts that she acts as the Nutritionist when she takes into account (1) dietary restrictions in accordance with physicians' orders to establish and maintain the nutritional well-being of the patient, (2) confers with and maintains good relations with the entire treatment team, (3) maintains documentation of nutrition services provided, and (4) acts as the final check on accuracy and preparation of meals and snacks via tray assessments. These duties and those cited in the previous footnote are collectively referred to as "additional" duties throughout the body of this ruling.
3 Va. Code § 2.1-116.06(B).
4 Va. Code § 2.1-116.06(A) and (C); Grievance Procedure Manual, § 4.1 (c), page 11.
5 See Grievance Procedure Manual §5.9, page 15; Rules for Conducting Grievance Hearings, page 10.
6 See Department of Corrections Procedures Manual Chapter Five: Employee Relations and Training, Procedure Number: 5-15, Dated July 12, 1991.
7 Id., page 1.
8 During the investigation for this Ruling, the agency verified that there was a vacancy in the Food Operations Director A position, but only from the end of October 2000 to December 10, 2000.
9 See Va. Code § 2.1-110.
10 Va. Code § 2.1-114.2(A).
11 Va. Code § 2.1-114.2(B). Note also that under the Department of Human Resources Management (DHRM) policy, agencies have the duty to continuously review agency compensation practices and actions to ensure that similarly situated employees are treated the same. DHRM Policy 3.05, effective date 9/25/00, p. 5 of 13.
12 There are some cases where qualification is inappropriate even if an agency may have misapplied a policy. For example, an issue may have become moot due to an interim event that prevents a hearing officer from being able to grant any meaningful relief. Additionally, qualification may be inappropriate where the hearing officer does not have the authority to grant the relief requested by the grievant and no other effectual relief is available. Here, the only relief that a hearing officer could order to remedy the grievant's alleged misclassification would be to direct the agency to reapply the classification policy from the point at which it was misapplied. In other words, assuming that the hearing officer concludes that the grievant's position was not properly classified, the only relief that the hearing officer could order would be that the agency conduct a classification review of the grievant's position in accordance with policy. See Rules for Conducting Grievance Hearings, page 10. The hearing officer could not order that the grievant or her position be classified at a certain level. Id. Further, to order a classification review of a position no longer held by the grievant would make little sense. Finally, under the grievance procedure, a prevailing grievant is only entitled to, at most, 30 days of back pay. Compare Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336 (4th Cir. 1994)(in context of a Title VII or Equal Pay Act violation, relief is available only for the designated statutory time) with Va. Code § 2.1 - 116.05 (D)(in context of on employee grievance, designated time to file is 30 calendar days). However, here the grievant assumed, on November 10, 2000 (well more than 30 calendar days prior her grievance), a new position at another facility where she performed none of the 'additional' duties that she claims warranted a pay increase. Accordingly, she cannot be awarded backpay for the 30 day period preceding the initiation of her grievance.
12 Va. Code § 2.1-116.03(5).
13 Awards presented in years past have no bearing on the current evaluation period. Only awards earned in the current evaluation period can be considered when determining a rating for the current performance period.
14 See Va. Code §2.1-116.06(B)(reserving to management the exclusive right to manage the affairs and operations of state government).
15 See Va. Code §2.1-116.06(A)(iv); Grievance Procedure Manual, page 10.
16 Id.; Norman v. Department of Game and Inland Fisheries (Fifth Judicial Circuit of Virginia, July 28, 1999) (Delk, .J.).