Issue: Qualification; Methods and Means/Counseling; Work Conditions/Supervisory Conflict; Ruling Date: November 27, 2001; Ruling #2001-182; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; Outcome: Not qualified

QUALIFICATION RULING OF DIRECTOR

In the matter of the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services

Ruling No. 2001-182

November 27, 2001

The grievant requests a ruling on whether his July 23, 2001 grievance with the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) qualifies for a hearing. The grievant claims that his supervisor has engaged in harassing and intimidating conduct toward him. The grievant seeks as relief that (1) the letter of official counseling be rescinded, (2) the harassment and intimidation stop, and (3) that he report to another supervisor not in his same pay band. For the reasons set forth below, his grievance does not qualify for hearing.

The grievant has been employed by DMHMRSAS for over nine years and is a Trades Manager I. The grievant alleges harassment and intimidation by his supervisor, specifically, (1) the discussions surrounding the grievant’s handling of a gas leak, and (2) his receipt of a counseling memorandum regarding preparation for a new employee’s arrival.

Although all complaints initiated in compliance with the grievance process may proceed through the three resolution steps set forth in the grievance statute, thereby allowing employees to bring their concerns to management’s attention, only certain issues qualify for a hearing. For example, while grievable through the management resolution steps, claims of supervisory harassment qualify for a hearing only if an employee presents sufficient evidence showing that the challenged actions are based on race, color, religion, political affiliation, age, disability, national origin, or sex.¹

In this case, the grievant does not assert that the actions of his supervisor were based on any of these factors. Rather, the facts cited in support of the grievant’s claim can best be summarized as describing significant conflict between the grievant and his supervisor concerning management’s decisions and actions surrounding the handling of a gas leak and the issuance of a counseling memorandum regarding the arrival of a new employee.² Such claims of supervisory conflict, while grievable through the management steps, are not among the issues identified by the General Assembly that may qualify for a hearing. Accordingly, this issue does not qualify for a hearing.

The grievant also asserts that his supervisor has issued counseling memoranda in order to negatively document his performance. The Department Human Resource Management (DHRM) has sanctioned the issuance of counseling memoranda as an informal means of communicating what management notes as problems with behavior, conduct, or performance. DHRM does not recognize such counseling as formal disciplinary action under the Standards of Conduct. ³Furthermore, the grievance procedure expressly states that informal supervisory actions, such as counseling memoranda, do not qualify for hearing unless there is evidence raising a sufficient question as to whether, through the issuance of the counseling memorandum, management may have misapplied or unfairly applied policy, informally disciplined the grievant, or engaged in retaliation or discrimination.⁴ The grievant does not allege or present any evidence of those grounds. Rather, the grievant essentially challenges management’s conclusion that his behavior warranted correction through a counseling memorandum. Accordingly, this issue does not qualify for a hearing.

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 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 he does not wish to proceed.

Neil A. G. McPhie, Esquire
Director

Deborah M. Amatulli
Employment Relations Consultant