Issue: Qualification-Methods/Means-Other, Retaliation-Other Protected Right; Ruling Date September 17, 2001; Ruling #2001-150; Agency: George Mason University; Outcome: qualified.

In the matter of George Mason University/ No. 2001-150

September 17, 2001

The grievant has requested a ruling on whether the issues of policy misapplication and retaliation in his March 16, 2001 grievance with George Mason University (GMU) qualify for a hearing in addition to his challenge to a Group I Written Notice, the latter of which was qualified for hearing by the agency head. For the reasons discussed below, the misapplication and retaliation issues also qualify for hearing and all three issues will be heard together by one hearing officer.

The grievant is employed at GMU as a Police Officer. On February 15, 2001, the grievant was issued a Group I Written Notice for allegedly using vulgar and abusive language and for displaying disruptive behavior towards his supervisor. On March 16, 2001, the grievant initiated this grievance challenging the issuance of the Group I Written Notice on the grounds that it was unwarranted. The challenge to the issuance of the Group I Written Notice was qualified for a hearing by the agency head. However, the agency head did not qualify the grievant’s related claims that (i) his supervisor misapplied policies and procedures because she lacked the authority to issue the Written Notice; and that (ii) the Written Notice was retaliatory because it was issued to punish or harass him for whistleblowing and for filing grievances in the past. The agency head supported his non-qualification decision by reasoning that at no time during the management resolution steps did the grievant identify the policy that had allegedly been misapplied, the basis for his retaliation claim, nor any supporting evidence on those two issues.¹

It has been the practice of this Department to qualify claims presented separately within a grievance, or multiple grievances, when doing so promotes a more comprehensive understanding of the disputed issues.² This is such a case. Here, the misapplication and retaliation claims are central to the grievant’s qualified claim that the issuance of the Group I Written Notice was unwarranted. Thus, the factual issues presented by each claim in their grievance are significantly intertwined. In any event, a hearing officer will be appointed to determine whether the discipline was warranted and appropriate under the circumstances. ³It is therefore reasonable for the hearing officer to review as well the related issues of whether the issuance of the Written Notice constituted a misapplication of policy and and/or retaliation. This ruling in no way reflects the level of evidence and/or merit of this grievance; it simply concludes that the retaliation and policy misapplication claims are sufficiently related to the grievant’s qualified claim that his Group Notice was unwarranted.

At the hearing, the agency will have the burden of proving, by a preponderance of the evidence, that the February 15, 2001 Group I Written Notice was "warranted and appropriate under the circumstances." The grievant will be given the opportunity to contest the agency’s case by presenting evidence that the Written Notice was unwarranted and inappropriate, including evidence that it was contrary to state policy and retaliatory. The hearing officer may uphold, reduce, or rescind the disciplinary action.⁴ He cannot order relief such as a written apology or explanation as requested in the grievant’s Form A.

Neil A.G. McPhie, Esquire

Director

Felicia H. Johnson

Employment Relations Consultant