Issue: Qualification, Compensation/Leave-Travel, Methods/Means-other, Retaliation-Grievance Activity, Work Conditions-other; Ruling Date May 29, 2001, Ruling #2001-AAA; Agency: George Mason University; Outcome: Not qualified. Appealed to the 31st Judicial Circuit of Virginia; 6-21-01; Reversed on August 10, 2001

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of George Mason University Ruling #2001AAA

May 29, 2001

The grievant has requested a ruling on whether his January 25, 2000 grievance with George Mason University (the University) qualifies for a hearing.1 The grievant claims that the agency harassed and retaliated against him for prior grievance activity. He also claims that the agency misapplied policy by refusing to honor a travel request that he submitted on December 20, 1999. For the reasons discussed below, this grievance does not qualify for hearing.

FACTS

The grievant is employed by the University as a Master Police Officer. On December 20, 1999, he submitted a travel reimbursement voucher to management requesting reimbursement for work-related travel from January 15, 1999 through December 17, 1999.2 Management returned the voucher to him, instructing him to itemize the travel days to show the number of miles traveled each day and then re-submit the voucher. Management also requested that he fill out the police department’s new internal travel form (UPD-105) that was created for administrative tracking.

The grievant asserts that the University’s request was made only to harass and retaliate against him for filing a prior grievance in September 1999.3 Also, he maintains that being required to submit an additional form and itemize travel information created an extra step that was unduly burdensome and in violation of state and University policy. Therefore, he refused to re-submit the travel reimbursement voucher as requested or to complete the UPD-105 form.

DISCUSSION

Retaliation

For a claim of retaliation to qualify for a hearing, there must be evidence raising a sufficient question as to whether (1) the employee engaged in a protected activity;4 (2) the employee suffered an adverse employment action; and (3) a causal link exists between the adverse employment action and the protected activity; in other words, whether management took an adverse action because the employee had engaged in the protected activity. If any of these three elements are not met, then the grievance may not qualify for hearing. If the agency presents a nonretaliatory business reason for the adverse action, the grievance does not qualify for a hearing, unless the employee presents sufficient evidence that the agency’s stated reason was a mere pretext or excuse for retaliation. 5

It is undisputed that the grievant engaged in a protected activity when he filed his grievance in September 1999. However, management’s requests that he re-submit his travel voucher and complete the UPD-105 form are not "adverse employment actions."6 An "[a]dverse employment action includes any retaliatory act or harassment if, but only if, that act or harassment results in an adverse effect on the ‘terms, conditions, or benefits’ of employment."7 This would encompass any tangible employment action by management that has some significant detrimental effect on factors such as an employee’s hiring, firing, compensation, job title, level of responsibility, or opportunity for promotion.8 Thus, while management’s requests may have irritated the grievant, they do not constitute adverse employment actions. Accordingly, this issue does not qualify for hearing.

Misapplication of Policy

For an allegation of misapplication of policy or unfair application of policy 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.

In this case, the grievant claims that the University misapplied or unfairly applied policy by denying reimbursement of his Travel Voucher (voucher) submitted in December 1999 because he did not itemize his travel. The controlling policy is the state travel regulation that requires all sections of a voucher to be completed before reimbursements are processed.9 Additionally, the voucher itself clearly states that "[e]ach days expenses must be shown separately."10 Further, instructions are provided for completing the voucher which indicate that the employee must "[e]nter dates, points between which travel occurred (city & state), and number of miles traveled."11 Thus, the University’s request that the grievant itemize his travel is consistent with both University and state travel reimbursement policy.12 Therefore, the evidence presented does not raise a sufficient question as to whether misapplication of policy has occurred and this issue does not qualify for a hearing.

The grievant also claims that the University misapplied policy by requiring him to submit the UPD-105 form, which allegedly created an unnecessary step in the travel reimbursement process. In addition, the grievant asserts that management violated the University’s General Orders by engaging in inappropriate conduct ("conduct unbecoming") and making inefficient decisions (e.g., requiring additional steps for him to receive travel reimbursement, management’s failure to ensure that all personnel were familiar with travel regulations and other agency policy, etc.). Although the grievant may disagree with management’s determination that an additional form must be completed, by statute, agencies are given wide discretion to carry out agency business and to determine the means, methods, and personnel by which work activities are undertaken, including establishing procedures for travel reimbursement.13 Such discretionary management decisions, while grievable through the management steps, do not qualify for a hearing.14 Further, in the instant case, management has acknowledged that the UPD-105 form has become cumbersome and ineffective and that the form will be revised in the future.15 Accordingly, this issue does not qualify for hearing.

Harassment

The grievant claims that management’s actions described above also constitute harassment. A claim of harassment qualifies 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.16 The grievant does not assert, however, that the alleged harassment was based on any of these factors. Rather, the facts he cited in support of his harassment claim can be summarized as describing a conflict between management and the grievant concerning management’s decisions and actions surrounding his travel reimbursement request. Such claims of supervisory conflict 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.

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 to the circuit court, please 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

Felicia H. Johnson
Employment Relations Consultant

1 Please note that recent changes to the grievance statute have resulted in changes to the grievance procedure. Because this grievance was initiated before July 1, 2000, this ruling is issued in accordance with the rules contained in the old procedure manual (Grievance Procedure, effective July 1, 1995, as amended July 1, 1999).
2 The grievant requested reimbursement for 170 miles traveled, which would have entitled him to receive $45.90.
3 The grievant's September 1999 grievance challenged management's decision to place a less senior police officer in a temporary leadership role.
4 See Grievance Procedure, page 6. Only the following activities are "protected activities under the grievance procedure: participating in the grievance process; complying with any law or reporting a violation of such law to a governmental authority; seeking to change any law before the Congress or the General Assembly; reporting a violation of fraud, waste or abuse to the state Hotline; or exercising any right otherwise protected by law."
5 See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653 (4th Cir. 1998).
6 See Von Gunten v. Maryland Dept. of the Environment, 243 F.3d 858 (4th Cir. 2001)(finding that the Department's mishandling of various administrative issues did not constitute an adverse employment action).
7 Id.
8 See Boone v. Goldin, 178 F.3d. 253 (4th Cir. 1999).
9 See Volume No. 1-Policies & Procedures, Section No. 20300 (Cash Disbursements Accounting-Travel Expense Reimbursement), page 28.
10 See Number 2 on the Travel Expense Reimbursement Voucher signed by the grievant on December 20, 1999.
11 See the University's Instruction For Completing Travel Expense Reimbursement Vouchers (Mileage Reimbursement-1/15/99).
12 See University Administrative Policy Number 20, "Travel authorization and Reimbursement Policies" and George Mason University Mileage Travel Expense Reimbursement Voucher (1-15-99).
13 Va. Code § 2.1-116.06(C).
14 See Grievance Procedure, page 6.
15 See Second Resolution Step response, dated February 11, 2000.
16 Va. Code § 2.1-116.06(A)(iii).