Issue: Qualification/Retaliation-Grievance Activity/Discrimination-Other; Ruling Date September 17, 2001; Ruling #2001-098; Agency: Department of Corrections; Outcome: Not qualified.

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Corrections/No. 2001-098

September 17, 2001

The grievant has requested a ruling on whether the issues raised in her March 30, 2001 grievance with the Department of Corrections qualify for a hearing. The grievant claims that management has subjected her to a pattern of discrimination, harassment and retaliation that has created a hostile work environment. For the reasons set forth below, her grievance is not qualified for hearing.

The grievant is employed as a Registered Nurse (RN Clinician I). She is an African American/Hispanic female. On October 30, 2000, the grievant requested an upward role change¹ to that of Head Nurse (Registered Nurse Clinician II); such a position was currently vacant in her medical unit. Management did not meet with the grievant or change her role, and the vacant position was advertised on December 1, 2000. The grievant applied for the position and was interviewed on December 19, 2000. On January 16 and February 20, 2001, the agency notified the grievant that the position would be re-advertised at a later date, and that she may reapply at that time. However, on April 1, 2001, the agency administratively closed the selection process for the position and filled it through the placement ² of an employee who had been laid off from a Head Nurse position at another DOC facility. The employee placed into the position was an African American male.

During the week of October 30, 2000, the grievant worked 5 hours of overtime without prior approval. On December 5, 2000, the Warden issued the grievant a counseling memorandum instructing her not to accrue unauthorized overtime. Because the grievant had similarly worked and been counseled about unapproved overtime on March 23, 2000, the Warden cautioned her that disciplinary action would follow any recurrences.

During the period of September 2000 through March 2001, the grievant’s medical unit experienced staffing shortages, including the Head Nurse position discussed above and another nursing position. The grievant requested management to provide her with the temporary assistance of another nurse to address the staff shortage. Management assigned a Registered Nurse to assist with the medical unit’s workload on a part time basis from November 2000 through March 2001.

The grievant asserts that the following actions by her Warden constitute discrimination, retaliation and harassment, and have created a hostile work environment: (1) failing to promote her to a Head Nurse (Registered Nurse Clinician II) position through a role change as she requested in September 2000, or through the selection process conducted in December 2000; (2) harassing her about the accrual of overtime; (3) failing to provide assistance in the medical department to cover staffing shortages; and (4) refusing to meet with her to discuss these issues.³

DISCRIMINATION

The grievance procedure recognizes management’s exclusive right to manage the operations of state government, including the hiring or promotion of employees within an agency. ⁴ Inherent in this right is the authority to weigh the relative qualifications of job applicants and determine the best-suited person for a particular position based on the knowledge, skills and abilities required. In addition, grievances relating solely to the contents of personnel policies and the hiring of employees within an agency "shall not proceed to a hearing."⁵ Accordingly, a grievance challenging the selection process does not qualify for a hearing unless there is evidence raising a sufficient question as to whether discrimination, retaliation, discipline, or a misapplication of policy has occurred. ⁶

The grievant claims possible discrimination based on her race. ⁷For a claim of race discrimination in the hiring or selection context to qualify for a hearing, there must be more than a mere allegation that discrimination has occurred. The grievant must present facts that raise a sufficient question as to whether she was not selected for the position because of her race. A grievant may accomplish this by coming forward with evidence: (1) that she is a member of a protected class; (2) that she is qualified for the position; (3) that in spite of her qualifications she was rejected for the position; and (4) that she was treated differently than similarly situated employees outside of the protected class.⁸ If, however, the agency comes forward with a nondiscriminatory reason for its actions, the grievance should not qualify for hearing, unless there is sufficient evidence that the agency’s stated reason is merely a pretext or excuse for improper discrimination. ⁹

In this case, the grievant has not met all of the above four elements of a race-based discrimination claim. As an African American/Hispanic, the grievant is a member of a protected class. For purposes of this ruling, only, we will assume that she is qualified for the position, which is consistent with her selection for an interview. Furthermore, in spite of her qualifications, she was not reallocated or selected for the Head Nurse position. However, the grievant has produced no evidence that she was treated differently than similarly situated employees outside of the protected class. Indeed, the individual placed in the Head Nurse position was also African-American.

In addition, the agency has offered a legitimate, reason for not selecting the grievant: the grievant did not respond well to the interview questions, and did not demonstrate the abilities to function as a supervisor. Moreover, as stated above, during the selection process, the Head Nurse of another DOC facility was subject to layoff, and under the layoff policy, he was entitled to placement into the position in question before other applicants. ¹⁰

Based on the forgoing, the evidence does not raise a sufficient question as to whether the agency’s nonselection of the grievant was based on race.

The grievant also claims that she has been subjected to a hostile work environment on the basis of race. ¹¹To establish a claim of a racially hostile work environment (or racial harassment), a grievant must prove that: (1) the conduct in question was unwelcome; (2) was based on her race; (3) that was sufficiently severe or pervasive to create an abusive work environment; and that (4) there is some basis for imposing liability on the employer.¹²

In this case, it can be presumed that the conduct in question (management’s instruction not to accrue overtime and the alleged failure to provide staff), was unwelcomed by the grievant. However, the grievant has presented no evidence that similarly situated employees not in her protected class were allowed to work overtime, or given more assistance with staff shortages; in other words, she has not shown that her race was the basis for any of management’s actions. Furthermore, these actions do not appear to be sufficiently severe or pervasive to create an abusive work environment. Thus, the evidence presented does not warrant qualification of this issue.

RETALIATION

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; ¹³(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 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. ¹⁴

The grievant’s prior participation in the grievance process constitutes a protected activity. ¹⁵ Furthermore, not being reallocated or selected for a position could be viewed as an adverse employment action. However, the grievant has not presented any evidence to support her claim that she was not allocated or selected because she used the grievance procedure. Moreover, as discussed in the previous section, the grievant has presented no evidence that the reasons advanced by management for its action were a pretext for an improper motive such as retaliation.

As to the grievant’s contention that management retaliated against her by instructing her not to accrue overtime and by failing to assist her in covering staffing shortages, this claim also fails. These alleged management actions are not "adverse employment actions."¹⁶ An "adverse employment action "must adversely effect one of the "terms, conditions, or benefits" of employment. ¹⁷ 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. ¹⁸ The grievant has presented no evidence that the actions alleged resulted in such a change. Thus, while management’s actions irritated the grievant, they do not constitute adverse employment actions.

Here, management has pointed out that the grievant’s region has a policy against accrual of overtime, which has been enforced in a nondiscriminatory and even-handed manner. Moreover, as stated above, management did address staff shortages in the medical office by assigning an additional Nurse there on an alternating basis from her duties at another DOC facility. That the grievant did not feel the Nurse was assigned to duties that were helpful to her personally would not constitute an adverse action. Finally, the grievant has not presented evidence of a causal link between her prior grievance activity and management’s actions.

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