Issue: Qualification; Methods and Means/Training; Ruling Date: November 2, 2001; Ruling #2001-164; Agency: Department of Corrections; Outcome: Not qualified.

In the matter of Department of Corrections/ No. 2001-164

November 2, 2001

The grievant has requested a ruling on whether his June 3, 2001 grievance with the Department of Corrections (DOC) qualifies for a hearing. The grievant claims that management misapplied policy in the handling of his quarterly performance evaluation in May 2001. Specifically, he claims that the lieutenant "falsified" state documents.¹ As relief, he requests that his supervisor disqualify herself from any future evaluations and that she place a written report in his personnel file stating that she would neither harass nor retaliate against the grievant. For the reasons discussed below, this grievance does not qualify for a hearing.

The grievant is a Correctional Officer with DOC. On May 6, 2001, the grievant received a "Below Contributor" rating on his quarterly performance evaluation. His immediate supervisor (the sergeant) informed him that the evaluation was prepared by the lieutenant. The grievant went to the lieutenant’s office to ask about the rating. The lieutenant advised him that because he had received a corrective counseling report, he could be rated as "Below Contributor" for the entire year. The grievant informed the lieutenant that his partner, who also received a counseling memo, received a rating of "Contributor." Upon hearing this, the lieutenant changed the grievant’s rating to "Contributor."

In May 1999, the same lieutenant prepared another performance evaluation for the grievant at the conclusion of his probationary period. She rated him as "does not meet standards." The grievant claims that his immediate supervisor "was influenced into his signature" but admitted later that he thought the grievant met expectations. ²The grievant was still a probationary employee and could not utilize the grievance procedure, but uses this incident to illustrate a perceived bias on the part of this particular lieutenant. Since the incident in May 1999, the grievant has received several performance evaluations, prepared by other supervisors, that rate him as "exceeding expectations."

Under state policy, management may perform what is termed by the Department of Human Resource Management as an "interim evaluation" -- an informal means to communicate an employee’s progress towards meeting performance expectations throughout the performance cycle.³ This Department has long held that unlike annual performance evaluations, interim evaluations, regardless of their actual merit, cannot be qualified for hearing, unless there are facts that raise a sufficient question as to whether retaliation, discrimination, discipline, or a misapplication of policy occurred. In this case, the grievant alleges that there was a misapplication of policy in the making of his quarterly evaluation. He alleges that the lieutenant improperly "wears two hats" when she acts as both the evaluator and the reviewer in the preparing of performance evaluations, and requests that she disqualify herself from future evaluations and that she guarantee that no harassment or retaliation will result from this grievance.

For a claim of policy misapplication or unfair application of policy to qualify for a hearing, there must be evidence raising a sufficient question as to whether management violated a mandatory policy provision, or evidence that management’s actions are so unfair as to amount to a disregard of the intent of the applicable policy. Further, if a claim of policy misapplication is qualified and proven at hearing, the relief that a hearing officer can grant is limited to directing the agency to reapply the policy from the point at which it was misapplied. A hearing officer may not award damages or attorney’s fees or any other prospective relief.⁴

The grievant claims that the lieutenant who drafted his evaluation acted inappropriately, because she acted both as the evaluator and as the reviewer. He cites to DHRM Policy 1.40, which states that it is the role of the supervisor to complete the performance evaluations. ⁵The policy further states that the "reviewer," who is the employee’s immediate supervisor’s supervisor, ⁶is supposed to review the evaluations before they are presented to the employee and has the authority to make any changes. ⁷Therefore, the reviewer has the "final say" on the employee’s performance evaluation. This policy gives a considerable amount of discretion and authority to the reviewer in the preparation of performance evaluations. Although the reviewer has considerable discretion, the policy does not allow management to ignore the provision that obliges the supervisor, not the reviewer, to complete the evaluation. Therefore, this Department finds that the lieutenant violated policy by preparing the grievant’s quarterly evaluation.

In this case it is undisputed that the agency violated policy when the reviewer prepared the grievant’s performance evaluation. ⁸However, there are some cases where qualification is inappropriate, even if an agency may have misapplied policy. For example, during the resolution steps, an issue may have become moot, either because the agency granted the specific relief requested by the grievant or an interim event prevents a hearing officer from being able to grant any meaningful relief. Additionally, qualification may be inappropriate where the hearing officer does not have the authority to grant the relief requested by the grievant and no other effectual relief is available. Here, the only relief that a hearing officer could order to remedy the grievant’s claim would be to direct the agency to redo the quarterly evaluations in accordance with policy from the point at which policy was misapplied. ⁹ While a hearing officer could require the agency to repeat the evaluation process, he could not require the agency to award the grievant any particular rating. ¹⁰ It is important to note that the lieutenant, the grievant’s reviewer, amended the grievant’s evaluation to reflect a higher rating of "contributor." Had a hearing officer directed the agency to re-apply policy, the end result would presumably have been the same -- a higher ranking of the evaluation. Furthermore, the agency has assured that staff will be trained in the area of Performance Management. Due to these actions by the Department, a hearing officer can grant no effectual relief with respect to the issue of whether the agency misapplied policy. In other words, because the agency has provided the grievant with an effective remedy, a grievance hearing is not warranted. In fact, DOC has gone above and beyond what a hearing officer could direct it to do. Accordingly, this issue does not qualify for a hearing.

As further relief, the grievant requests that the lieutenant relieve herself from participating in any of his future performance evaluations. Furthermore, he asks that she place a memorandum in his personnel file that guarantees that no retaliation or harassment will occur. It has come to the attention of this agency that the grievant is leaving his position at DOC, and his evaluation will not be reviewed by the lieutenant, therefore this requested relief is now moot.

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, he should 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 he does not wish to proceed.

Neil A. G. McPhie, Esq.
Director

Leigh A. Brabrand
Employment Relations Consultant