Issue: Compliance/Hearing Officer Decision; Ruling Date: September 14, 2001; Ruling #2001-159; Agency: Department of Transportation; Outcome: Hearing officer in compliance.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

In the matter of Department of Transportation/ No. 2001-159

September 14, 2001

The grievant has challenged the hearing officer’s decision in Case No. 5256. The grievant claims that the hearing officer failed to decide the issues qualified for hearing (discrimination and retaliation), and thus, his decision should be reversed.

For the reasons discussed below, this Department concludes the hearing officer has complied, in part, with the grievance procedure by determining that there was no basis for the grievant’s discrimination claim. However, the hearing officer has failed to determine the grievant’s claim of retaliation. The hearing officer is requested to revise his written decision to state his findings on the retaliation issue. In doing so, the hearing officer must determine if there is sufficient evidence in the record, upon which to base a decision on this issue. If not, the hearing officer is directed to reopen the hearing. This Department’s rulings on matters of compliance are final and nonappealable.

FACTS

The grievant is employed as a Bridge-Tunnel Patroller. On May 15, 2001, he was issued a Group II Written Notice with demotion for failure to follow a supervisor’s instructions. Subsequently, on May 21, he initiated a grievance to challenge the disciplinary action. On the attachment to his Grievance Form A, the grievant identified his issues as (1) discrimination based on sex, race, and color; and (2) retaliation for prior grievance activity1. As relief, he requested the removal of the Group II Written Notice, reinstatement to his former supervisory position, and the award of punitive damages.

The grievance proceeded through the grievance process without resolution, and on July 9, 2001, it was qualified for hearing. On August 9, 2001, the hearing officer conducted an administrative hearing and rendered his decision on August 17, 2001. In his decision, the hearing officer concluded that the disciplinary action was appropriate under the circumstances and that there was insufficient evidence to support the claim of discrimination. He affirmed the Group II Written Notice. The hearing officer failed to decide the retaliation issue in his written decision.

DISCUSSION

By statute, this Department has been given the power to establish the grievance procedure, promulgate rules for conducting grievance hearings, and "[r]ender final decisions in all matters related to procedural compliance with the grievance procedure." 2If the hearing officer’s exercise of authority is not in compliance with the grievance procedure, this Department does not award a decision in favor of a party; the sole remedy is that the action be correctly taken. 3

A hearing decision must resolve the grievance on the merits of the substantive issue(s) qualified. 4The decision must contain a statement of the issues qualified; findings of fact on material issues and the grounds in the record for those findings; any related conclusions of law or policy; any aggravating or mitigating circumstances that are pertinent to the decision; and clearly identified order(s) specifying whether the agency’s action has been upheld, reversed, or modified, and clearly listing all required actions and any recommended actions.5

The grievant asserts that the hearing officer erred by failing to decide the issues of discrimination and retaliation, which had been qualified for hearing. A review of the written decision reflects that in his statement of the issues qualified, the hearing officer identified only the appropriateness of the Group II Written Notice and whether the agency discriminated against the grievant because of his race. 6Thus, in omitting the claim of retaliation, the hearing officer failed to fully state all of the issues qualified. Further review reflects that the hearing officer neither made any findings of fact on the issue of retaliation, nor did he render any decision on the retaliation issue.

Contrary to the grievant’s assertion, the decision contains an express reference to the grievant’s claim that his discipline was discriminatory. The hearing officer decided that there was insufficient evidence to support this claim, and therefore, the grievant’s request for relief because of alleged discrimination was denied.

Neil A.G. McPhie, Esquire
Director

June M. Foy
Senior Consultant

1The grievant is an African-American, and thereby, a member of a protected group.
2Va. Code §2.1-116.03(3) and (5).
3See Grievance Procedure Manual § 6.4(3), page 18.
4See Grievance Procedure Manual §5.7, page 14; Rules for Conducting Grievance Hearings, § 2, pages 1-2.
5Rules for Conducting Grievance Hearings, § V(C ), pages 9-10.
6Specifically, (1) " Whether Grievant should receive a Group II Written Notice of disciplinary action with demotion and salary reduction" and (2) "Whether the agency discriminated against Grievant because of his race."