Issue: Qualification, Methods/Means, Hours of Work - Shifts, Performance, Misapplication, Retaliation, Other Protected Right, Work Conditions Supervisory Conflict - Ruling date February 21, 2001, Ruling #2001DD; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services, Outcome: Not Qualified.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

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

February 21, 2001

The grievant has requested a ruling on whether her August 28, 2000 grievance with the Department of Mental Health, Mental Retardation and Substance Abuse Services (MH/MR/SAS) qualifies for a hearing.¹ The grievant alleges that management discriminated against her and harassed her based on her national origin, and retaliated against her and misapplied policy by denying her request for annual leave and reassigning her shift and work site at the facility. For the reasons discussed below, her grievance does not qualify for hearing.

FACTS

The grievant was employed with MH/MR/SAS.² The grievant's supervisor denied her request for annual leave (from June 3 through July 9, 2000) on March 4, 2000. Subsequently, the grievant took sick leave from June 27 to July 27, 2000. The supervisor required the grievant to call in and report her disability status weekly. Upon her return to work, the grievant was reassigned to the day shift in a different work area at the facility.

DISCUSSION

By statute and under the grievance procedure, management reserves the exclusive right to manage the affairs and operations of state government.³ Thus, claims relating to issues such as the methods, means and personnel by which work activities are to be carried out and the transfer, reassignment or scheduling of employees within the agency generally do not qualify for hearing, unless the grievant presents evidence raising a sufficient question as to whether discrimination, retaliation, or discipline may have improperly influenced management's decision, or whether state policy may have been misapplied.⁴ In this case, the grievant alleges that her supervisor's denial of her leave request and shift reassignment described above constitute discrimination and harassment (based on national origin), retaliation and misapplication of policy.

Discrimination/Harassment⁵

Grievances that may be qualified for a hearing include actions related to discrimination on the basis of national origin.⁶ To qualify a grievance for a hearing, there must be more than a mere allegation of discrimination - there must be facts that raise a sufficient question as to whether the actions described within the grievance were the result of prohibited discrimination based on an employee's protected status, in other words, that because of the employee's national origin she was treated differently than other "similarly-situated" employees.⁷ Where the agency provides a legitimate, nondiscriminatory business reason for the disparity in treatment, the grievance should not be qualified for hearing, absent sufficient evidence that the agency's professed business reason was a pretext or excuse for discrimination.⁸ As a person of South American origin, the grievant is a member of a protected class.

Apart from the grievant's allegation of discrimination, she has presented no evidence that management's actions were indeed based on her national origin. Further, management has provided nondiscriminatory reasons for the actions taken. In response to this grievance, the second-step respondent reviewed the supervisor's leave decisions and found that other employees were denied leave on several occasions based on staffing needs; similarly, the grievant and others were granted leave on those occasions where staffing was available. The review of the supervisor's decision to transfer the grievant to a new shift and work site (a different Cottage on the facility grounds) was based on the shortage of personnel on the shift at the new work site. Accordingly, this issue does not qualify for a hearing.

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;⁹ (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, the grievance may not qualify for hearing. Further, 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.¹⁰

Even assuming, without deciding for purposes of this ruling, that the agency's denial of the grievant's request for annual leave and her transfer to the day shift and to another work site could be categorized as adverse employment actions, the grievant has not presented any evidence that she engaged in a protected activity. As discussed above, to support a claim of retaliation, there must be a clear nexus between the grievant's participation in a protected activity and an adverse employment action. Accordingly, this issue does not qualify for a 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. Department of Human Resource Management policies give supervisors the discretion to determine whether to grant an employee's annual leave request.¹¹ Also, DHRM policy gives supervisors the authority to require an employee to verify their status "at any time" while on sick leave due to temporary disability.¹² Although the grievant claims that policy was misapplied when her leave request was denied and when she was required to call in with her status while on extended sick leave, there has been no evidence presented that the supervisor failed to comply with a policy mandate, or acted unfairly. In addition, as discussed above, management has provided nondiscriminatory, business reasons for its actions. 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 the 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 she does not wish to proceed.

Neil A.G. McPhie, Esquire
Director

Jeffrey L. Payne
Employment Relations Consultant

¹ Please note that recent changes to the grievance statute have resulted in changes to the grievance procedure. If a grievance was filed on or after July 1, 2000, the grievance will be governed by the new procedure (Grievance Procedure Manual, effective July 1, 2000). If a grievance was filed before July 1, 2000, the grievance will be governed by the old procedure (Grievance Procedure, effective July 1, 1995, as amended July 1, 1999). Because this grievance was initiated after July 1, 2000, this ruling is issued in accordance with the rules contained in the new procedure manual. Please also note that effective July 1, 2000, this Department's name was changed from the Department of Employee Relations Counselors to the Department of Employment Dispute Resolution (EDR), and the Department of Personnel and Training became the Department of Human Resource Management (DHRM).
² The grievant voluntarily resigned her employment effective December 15, 2000. Her resignation is not at issue in this grievance.
³ Va. Code § 2.1-116.03(5).
⁴ Va. Code § 2.1-116.06(A) and (C).
⁵ In her grievance, the grievant asserts separate claims of harassment and discrimination based upon her national origin. However, because by definition harassment based upon national origin is discrimination, these claims are discussed simultaneously in this ruling.
⁶ See Grievance Procedure Manual § 4.1(b), page 10.
⁷ See Hutchinson v. INOVA Health System, Inc., 1998 U.S. Dist. LEXIS 7723 (E.D. Va. 1998)(where in the similar case of racial harassment, a plaintiff must prove that (1) the conduct in question was unwelcome; (2) the harassment was based on race; (3) the harassment was sufficiently severe or pervasive to create an abusive work environment; and (4) that there is some basis for imposing liability on the employer).
⁸ Hutchinson v. INOVA Health System, Inc., 1998 U.S. Dist. LEXIS 7723 (E.D. Va. 1998)(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
⁹ See the Grievance Procedure Manual § 4.1(b), page 10. 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 to the State Employee Fraud, Waste and Abuse Hotline, or exercising any right otherwise protected by law.
¹⁰ See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653 (4th Cir. 1998).
¹¹ DHRM Policy No. 4.10, Annual Leave.
¹² DHRM Policy No. 4.55, Sick Leave, (III)(D).