Issue: Qualification: Discrimination/Race, Work Conditions/Supervisory Conflict; Ruling Date: September 21, 2001 Ruling #2001-091; Agency: Community College System; Outcome: not qualified.

QUALIFICATION RULING OF DIRECTOR

In the matter of Tidewater Community College/No. 2001-091

September 21, 2001

The grievant has requested a ruling on whether the issues raised in her December 15, 2000 grievance with Tidewater Community College (TCC) qualify for a hearing. The grievant claims that her supervisor discriminated against her on the basis of her race, and because she has questioned department policies. For the reasons set forth below, her grievance is not qualified for hearing.

The grievant is employed as a Fiscal Tech Senior. She is an African American. The grievant’s duties are related to the processing of the TCC payroll. On May 12 and June 21, 2000 the grievant’s supervisor observed that she had left an employee paycheck unsecured at her workstation. Beginning in May 2000, the supervisor also noted that the grievant delayed processing reports, did not post items in a timely manner, and did not reconcile and correct errors or follow the payroll Production Schedule, which caused other employees to have to assist the grievant in completing this work. The supervisor further noted that the grievant did not communicate these problems and delays to her, and that her attendance needed to be improved. As a result, on July 28, 2000 the grievant’s supervisor issued her a counseling memorandum addressing these issues and suggesting improvements.

The grievant is responsible for processing TCC wage employees’ payroll. At the time she initiated her grievance, the grievant was assisted by a 20-40 hours per week wage employee as well as a Senior Fiscal Tech in various work tasks to ensure her deadlines were met. Previously, a third wage employee acting as a Fiscal Tech had also assisted the grievant.

It is the practice of the grievant’s department to routinely adjust employee schedules to avoid overtime and to compensate overtime, when worked, with time-and-a-half leave rather than pay. Accordingly, the grievant’s supervisor told her on December 14, 2000 to adjust her schedule to avoid overtime that week, and not to work any overtime the following week. That same day, the grievant learned that another employee in the department, a white female, was allowed to work overtime and receive payment in lieu of leave.

The grievant claims that white employees have not been subjected to the same unpleasant treatment by her former supervisor when asking questions, or issued counseling memoranda for leaving paychecks unsecured. The grievant also asserts that the assignment of workloads is unfair, and that she has not been treated the same as white employees with regard to overtime.

Discrimination Based on Questioning Policy: The grievant claims that she has been discriminated against "stemming from … continuously [asking] questions regarding department policies." A claim of discrimination qualifies for a hearing only if an employee presents sufficient evidence showing that the challenged actions are based on race, color, religion, political affiliation, age, disability, national origin, or sex. The grievant’s claim of discrimination due to questioning department policies is not based on any of these factors; rather, it reflects an ongoing disagreement with her and management concerning management’s decisions and actions, particularly the practice of adjusting employee schedules to avoid overtime. Such claims of supervisory conflict are not among the issues identified by the General Assembly that may qualify for a hearing. In addition, this claim reflects the grievant’s disagreement with the fairness of the TCC Hours of Work Policy itself. The General Assembly has specifically excluded grievances relating solely to the contents of policy from proceeding to hearing. Accordingly, this issue does not qualify for a hearing.

Discrimination Based on Race: Grievances that may be qualified for a hearing include actions related to discrimination on the basis of race. The grievant has the burden of proving that she was intentionally discriminated against because she is a member of a protected group. To qualify for hearing, a grievant must establish: (1) that she is a member of a protected class; (2) that her job performance was satisfactory; (3) that in spite of her performance she suffered an adverse employment action; and (4) that she was treated differently than similarly situated employees outside the protective class. If the agency provides a legitimate, non-discriminatory reason for its actions, the grievance should not be qualified for hearing, absent sufficient evidence that the agency’s professed business reason was a pretext or excuse for discrimination.

The grievant is a member of a protected class, African American, and may have suffered an adverse employment action. An "[a]dverse employment action includes 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 employment." This would encompass any tangible employment action by management that has some significant detrimental effect on factors such as an employee’s hiring, firing, compensation, job title, level of responsibility, or opportunity for promotion. We will assume for purposes of this ruling only that denial of the opportunity to work overtime could have resulted in such a change (i.e., to compensation). However, even assuming without deciding that the grievant suffered an adverse employment action, she has not presented sufficient evidence to show the remaining two of the four essential elements: that her job performance was satisfactory; or that similarly situated employees not in her protected class were treated differently.

Management has stated that the grievant’s performance problems were noted as early as May 2000, and are documented in the July 28, 2000 counseling memorandum. The grievant has not disputed the performance issues –e.g., that she left paychecks unsecured, made mistakes on the payroll and had processing delays. She merely explains that these can be attributed to inexperience and lack of training. Evidence of unsatisfactory job performance such as that evidenced by counseling memoranda precludes a grievant from establishing a claim of discrimination.

The grievant also has not shown that she was treated differently than similarly situated employees outside the protective class. The grievant claims that she was discriminated against because the white employee described above was allowed to accrue overtime and receive payment rather than overtime leave. However, management has pointed out that the employee performed work on a project to implement new software. Because the project was beyond its deadline, management asked the employee to work overtime, and the employee was paid for the overtime from an account specifically set up to fund the project. The employee was asked to work on the project because it pertained to payroll for full-time TCC employees, which is her assigned area of the payroll. Thus, the white employee was not similarly situated to the grievant and there is a nondiscriminatory reason for the grievant not earning overtime in this instance –that is, the grievant did not perform work on the software project.

The grievant further asserts that a white employee left several unsecured paychecks at her desk, but was not given a counseling memorandum. However, the facts show that the grievant’s July 28, 2000 counseling memo covered six "areas of concern," of which the failure of the grievant on two occasions to secure payroll checks was only one. The remaining five areas addressed distinct performance issues, as described above. Thus, the white employee was not similarly situated to the grievant and there appears to have been a nondiscriminatory reason for the grievant’s counseling memo –that is, the six areas of concern with her performance that are documented in the counseling memorandum. Accordingly this issue is not qualified for 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 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 she does not wish to proceed.

Neil A.G. McPhie, Esquire

Director

Jeffrey L. Payne

Employment Relations Consultant