Issue: Qualification: Discrimination (Sex), Method/Means (Other), , Ruling date: March 2, 2001, Ruling #2001EE, Agency: Department of Military Affairs Outcome: Not Qualified.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution


QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Military Affairs
March 2, 2001

The grievant has requested a ruling on whether her November 1, 2000 grievance with the Department of Military Affairs qualifies for a hearing.1 The grievant claims that management discriminated against her based upon her sex. Specifically, she alleges that management discriminated against her by not promoting her to the position of Lead Painter. For the reasons discussed below, this grievance does not qualify for a hearing.

FACTS

The grievant is employed as a Painter with the Department of Military Affairs. On October 23, 2000, the Lead Painter departed on short-term disability under the Virginia Sickness and Disability Program (VSDP). The grievant met with her supervisor on that date to determine if she would be promoted to Lead Painter. She was informed that no immediate selection action could be initiated because the position was not vacant. Additionally, she was told that the position would not be filled if it became vacant due to budgetary constraints. The grievant claims that she was not promoted because of her gender.

DISCUSSION

By statute and under the grievance procedure, management reserves the exclusive right to manage the affairs and operations of state government.2 Thus, claims relating to issues such as the methods, means and personnel by which work activities are to be carried out 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.3 In this case, the grievant alleges that she was discriminated against based upon her gender.

To qualify a sex discrimination grievance for 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 the grievant's protected status, in other words, that because of her gender she was treated differently than other "similarly-situated" employees. 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.4

As a female, the grievant is a member of a protected class. Thus, she must present facts that establish that the alleged discriminatory actions were because of her gender. In support of her claim, the grievant states that she has been with the agency eighteen years, and the previous three times a lead position has been open, males were promoted. However, management has provided a legitimate nondiscriminatory business reason for not promoting the grievant at this time; agencies may only recruit to fill positions that are vacant.5 In this instance, the Lead Painter position is not vacant -- the employee holding that position is on short-term disability under the VSDP.6 Therefore, management had no authority to initiate action to fill the position or to make any oral commitment to the grievant. Additionally, management has informed the grievant that, should the position become vacant, management will not fill the position because of budgetary constraints. This determination is within management's discretion based upon management's authority to determine the means, methods and personnel by which work activities are undertaken.

The grievant has presented no evidence to suggest that the agency's stated reasons for not promoting her to the position of Lead Painter are a mere pretext for discrimination. Nor has this Department's investigation revealed any such evidence. Accordingly, this issue does not qualify for hearing.

APPEAL RIGHTS AND OTHER INFORMATION

For information regarding the actions you may take as a result of this ruling, please refer to the enclosed sheet. If you wish to appeal this determination to the circuit court, please notify your Human Resources Office, in writing, within five workdays of receipt of this ruling. If the court should qualify your grievance, within five workdays of receipt of the court's decision, the agency will request the appointment of a hearing officer unless you should notify them that you do not want to proceed.

 

Neil A.G. McPhie, Esquire
Director

June M. Foy
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 Va. Code § 2.1-116.03(5).
3 Va. Code § 2.1-116.06(A) and (C).
4 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)).
5 See DHRM Policy No. 2.10 (effective 9/25/00), page 2.
6 Under the VSDP, an employee may be in short-term disability status for up to 25 weeks during which time he has job protection and his position cannot be filled. See VSDP Questions and Answers - 1, page 5.