Issue: Qualification, Performance; Arbitrary/Capricious; Ruling Date June 4, 2001, Ruling #2001-090; Agency: Department of Social Services; Outcome: Not Qualified. Appealed to the Circuit Court of the City of Virginia Beach on 6-27-2001; Affirmed on 7-25-2001

In the matter of Department of Social Services/ No. 2001-090

June 4, 2001

The grievant has requested a ruling on whether her grievance with the Department of Social Services (DSS) qualifies for a hearing. The grievant claims that her 2000 performance evaluation was arbitrary or capricious in view of external factors that precluded her from achieving established performance standards.¹ For the reasons discussed below, this grievance does not qualify for hearing.

The grievant is employed as a Quality Assurance Specialist. On November 6, 2000, she received her 2000 performance evaluation with an overall rating of Does Not Meet Expectations. The evaluation consisted of seven elements upon which the grievant’s performance was rated. She received a rating of Exceptional on one job element, a rating of Meets Expectation on two job elements, a rating of Fair But Needs Improvement on one job element, and a rating of Does Not Meet Expectation on the remaining three elements. On November 20, the grievant appealed her performance evaluation to the reviewer who concurred with the ratings. Her grievance challenges the rating for six job elements and the overall rating. During the management resolution steps, her performance evaluation was upwardly revised to Fair But Needs Improvement, to reflect her absence from work due to medical leave and the fact that certain guidance she received may have contributed to confusion and delay in completing her work.

The grievance statute and procedure reserve to management the exclusive right to establish performance expectations and to rate employee performance against those expectations.² Accordingly, to qualify this grievance for a hearing, there must be facts raising a sufficient question as to whether the grievant’s performance ratings were "arbitrary or capricious." ³

"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.⁴

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 on the disputed job elements, her supervisors failed to consider factors beyond her control, which precluded her from achieving established performance expectations. While the cited external factors may have made it more difficult for the grievant to meet performance expectations, policy grants management the sole discretion to weigh the impact of such factors, if any.⁵ In this instance, management provided adequate documentation to support its ratings, and, during the management steps, considered the effect of the grievant’s time away from work due to medical leave.

In sum, there is obvious disagreement between the grievant and her supervisors regarding the effect of any external factors on her performance evaluation. There is insufficient evidence, however, to support the assertion that the individual job ratings and overall rating were determined without basis in fact. Rather, it appears that the grievant’s claim centers on the exercise of judgement by her supervisors in evaluating her performance.

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, she must 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

June M. Foy
Employment Relations Consultant