Issue: Qualification/Salary Disputes; Ruling Date September 14, 2001; Ruling #2001-123; Agency: Department of Transportation; Outcome: Not qualified.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Transportation/ No. 2001-123

September 14, 2001

The grievant has requested a ruling on whether his May 11, 2001 grievance with the Department of Transportation (VDOT) qualifies for a hearing. The grievant claims that management acted in a capricious manner by excluding him from consideration for an in-band adjustment. For the reasons discussed below, this grievance does not qualify for hearing.

FACTS

The grievant is employed as a Transportation Construction Project Engineer. In December 2000, the agency announced a plan to grant a limited number of in-band adjustments in order to address critical compensation issues. Under VDOT’s plan for granting the in-band adjustments, pay equity was identified as the highest priority. Effective on April 10, 2001, Project Engineers within the District, with salaries below the District average, were granted in-band adjustments of up to 10 percent.1 The grievant and other Project Engineers whose salary was above the District average were granted no in-band adjustment.

DISCUSSION

The employment dispute resolution statutes reserve to management the exclusive right to manage the affairs and operations of state government.2 Inherent in this right is the discretion to make compensation decisions. Therefore, challenges regarding such decisions 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. 3 The grievant asserts that management acted in a capricious manner by using the average salary of Transportation Construction Project Engineers within the District as the key factor in determining those who would be granted an in-band adjustment. The grievant does not claim that discrimination, retaliation, or discipline influenced management’s decision.

For a misapplication of policy claim to qualify for a hearing, there must be facts that raise a sufficient question as to whether management violated a mandatory policy provision, or whether the challenged action, in its totality, was so unfair as to amount to a disregard of the intent of the applicable policy.

Under the Department of Human Resource Management (DHRM) Compensation Policy, salary changes using in-band adjustments should be made considering Pay Factors4 and provisions of the agency’s Salary Administration Plan.5 In this case, management exercised the discretionary authority granted by policy in assigning greater weight to Internal Salary Alignment as the Pay Factor to be used in determining those employees to receive in-band adjustments. Therefore, although all employees were considered for a pay increase, only those with salaries below the District average were granted an in-band adjustment. Review of the grievant’s Pay Action Worksheet reflects that his current salary of $48,758 exceeded the District average salary of $44,031.00 for Project Engineers. Therefore, he was not granted an in-band adjustment in keeping with established agency policy.

The grievant has presented no evidence that he was excluded from consideration for an in-band adjustment or that management’s actions were arbitrary, capricious, or inconsistent with its treatment of the other Transportation Construction Project Engineers within the District. Likewise, his grievance does not raise a sufficient question as to whether state or agency policy was misapplied or unfairly applied by denying him an in-band adjustment.

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 the circuit court, he 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 must request the appointment of a hearing officer unless the grievant notifies the agency that he does not wish to proceed.

 

Neil A. G. McPhie, Esq.
Director

 

June M. Foy
Senior Consultant

1See DHRM Policy 3.05 "Pay Practices" (effective September 25, 2000, revised March 1, 2001).
2Va. Code § 2.1-116.06(B).
3Va. Code § 2.1-116.06(A) and (C ); Grievance Procedure Manual, §4.1 (c), page 11.
4Pay Factors: (1) Agency Business Needs; (2) Duties and Responsibilities; (3) Performance; (4) Work Experience and Education; (5) KSAs and Competencies; (6) Training; (7) Certification and Licensure; (8) Internal Salary Alignment; (9) Market Availability; (10) Salary Reference Data; (11) Total Compensation, Budget Implications; (12) Long Term Impact; and (13) Current Salary. (See DHRM Policy 3.05 "Definitions" (effective September 25, 2000, revised March 1, 2001).
5See, generally, DHRM Policy 3.05 (effective 03/01/01). The Agency Salary Administration Plan "addresses the agency's internal compensation philosophy and policies; responsibilities and approval processes; recruitment and selection process; performance management; administration of pay practices; program evaluation; appeal process; EEO considerations and the communication plan." DHRM Policy 3.05, page 1 of 21.