Issue: Qualification, Discrimination, Sexual Harassment, Ruling Date March 9, 2001, Ruling #2001HH, Agency: Department of Corrections, Outcome: Qualified.

COMMONWEALTH of VIRGINIA

COMPLIANCE AND QUALIFICATION RULINGS OF DIRECTOR

In the matter of Department of Corrections
March 9, 2001


The grievant has requested a ruling on whether her August 12, 2000 grievance with the Department of Corrections qualifies for a hearing.1 The grievant claims that management harassed her based upon her sex, subjected her to a sexually hostile work environment and retaliated against her. In addition, the agency claims that the grievance is out of compliance with the grievance process because it was untimely filed. For the reasons discussed below, this Department finds that the grievance was filed within the 30 calendar day period and is therefore timely. Further, the issues presented in her grievance qualify for hearing.

FACTS

The grievant was employed as a Corrections Officer with DOC from December 1998 to November 2000.2 In June 1999, while off-duty, the grievant went to a nightclub with other DOC employees and managers. Shortly thereafter, the Warden requested that the grievant provide information concerning the behavior of certain staff members while at the nightclub. The grievant described in great detail offensive, highly inappropriate sexual statements and actions of a DOC manager that allegedly were directed toward her and other female employees.

After providing the information to the Warden, the grievant claims that a series of harassing, discriminatory and retaliatory incidents occurred, including assignment to a "punishment post" and threats of transfer to the night shift and/or termination. In January 2000, the grievant met with the Warden again, expressing her concerns about harassment and, in particular, the harassment by the DOC supervisor that she had reported. Three days after the meeting, the grievant claims that the DOC supervisor confronted her, advising her that the Warden supported him completely. In addition, the supervisor allegedly informed her that he could "have [her] job" or transfer her to nights and that she should stop abusing the Warden's open door policy and use the chain of command.

After this alleged confrontation, the grievant maintains that she was afraid to return to the Warden with her concerns, and she retained an attorney. She claims that she informed another supervisor about retaining counsel and this supervisor then informed the Warden. At this point, the Warden met with her and requested that she file a written complaint, assuring her that he would handle the matter. The grievant contends that after filing her written complaint in March, the harassment intensified and occurred almost daily. Specifically, the grievant contends that management (i) continued to threaten reassignment to another shift, to an undesirable post and/or to terminate her employment (grievant's shift was changed in July 2000); (ii) routinely issued her Written Notices for petty offenses; (iii) brought false charges against her concerning an alleged sexual comment made to an inmate; (iv) threatened the inmate to force him to provide the false statement; (v) required that she work longer hours than other employees while assigned to the watchtower; (vi) and authorized a secret video recording of her while she worked and used the bathroom in the watchtower on or about July 25, 2000. In addition, the grievant claims that co-employees who have learned of the investigation have also harassed her on a regular basis.

The grievant initiated a grievance on August 12, 2000, alleging that she had been subjected to sexual harassment, a hostile work environment and retaliation for participating in an internal investigation of sexual harassment. Management allowed the grievance to advance through the resolution steps, but did not grant the relief that the grievant was seeking. At the qualification stage, the agency head stated that the Warden and Regional Director thoroughly reviewed her claims and there was no evidence to support her allegations. However, the Internal Affairs investigation was not complete at that time, and the findings were to be reviewed upon completion.3 The agency head further indicated that the grievance was out of compliance with the grievance process because it was not filed within 30 calendar days of the event that formed the basis of the grievance.


DISCUSSION

COMPLIANCE

The grievance procedure provides that an employee must initiate a written grievance within 30 calendar days of the event or action that is the basis of the grievance, unless there is just cause for the delay.4 When an employee initiates a grievance beyond the 30 calendar day period without just cause, the grievance is not in compliance with the grievance procedure, and may be administratively closed.

In this case, the agency claims that the grievance is untimely because it was filed more than 30 calendar days after the event that forms the basis of the grievance, which management claims occurred in March 2000.5 However, on her Form A, the grievant indicates that management's actions have been "ongoing since June 1999." Additionally, in the eight-page attachment to her grievance, the grievant chronologically presents her issues, beginning with an incident in June 1999 and continuing until early August 2000. Thus, the grievant is essentially claiming she has been subjected to ongoing harassment and retaliation since June 1999.

It has been the longstanding position of this Department that a grievance is timely filed when a grievant is alleging a pattern of discrimination and/or retaliation and one of the alleged incidences supporting her claims occurred within the 30 calendar day period.6 Here, the grievant alleges that she was placed on night shift on July 19, 2000, and secretly videotaped in the watchtower while on-duty and when using the bathroom on July 25, 2000. The involuntary reassignment could support her claim of retaliation, and the watchtower incident could support both her retaliation and sexual harassment claims.7 She initiated her grievance within 30 calendar days of the both of these alleged occurrences. Accordingly, her grievance is timely.

QUALIFICATION

By statute and under the grievance procedure, management reserves the exclusive right to manage the affairs and operations of state government.8 Thus, all claims relating to issues such as the means, methods, 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.9 The grievant claims that management subjected her to sexual harassment, a hostile work environment and retaliation. Her claims are discussed below.

Sex Discrimination

State policy prohibits sex discrimination.10 Sexual harassment, which is a form of sex discrimination, is defined as including "sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive work environment."11 Further, grievances alleging sexual harassment or hostile work environment may be qualified for a hearing.12 To qualify for a hearing, this grievance must present evidence raising a sufficient question as to whether the conduct in question was (1) unwelcome; (2) based on the grievant's sex; (3) sufficiently severe or pervasive so as to alter the grievant's conditions of employment and to create an abusive or hostile work environment; and (4) imputable on some factual basis to the agency.13

In this case, the grievant has made several disturbing allegations concerning management's conduct -- inappropriate sexual comments made to her by a male supervisor while at a nightclub and the supervisor's improper actions toward other female employees that same evening; the circulation of an inmate's highly offensive, false statement about the grievant; management's advising the inmate to make the false statement; management's failure to prevent co-employees from harassing the grievant; and secret videotaping of the grievant while using the bathroom. If substantiated, such testimony could lead a reasonable fact-finder to conclude that the grievant was subjected to unwelcome conduct based upon her sex that was potentially severe or pervasive enough to create a hostile work environment. Further, it is undisputed that management knew of the grievant's sexual harassment allegations of as early as June 1999, but failed to initiate a formal investigation until March 2000. The formal investigation was still not complete as of October 27, 2000, when the agency head issued his qualification determination.14 Finally, although the supervisor accused of sexual harassment denied the allegations during the investigation for this ruling, the Warden and the Internal Affairs investigator refused to participate in this Department's investigation. In light of all the above, further development of the facts by a hearing officer regarding the grievant's sexual harassment claim is warranted.

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; (2) the employee suffered an adverse employment action;15 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.16 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.17

Under the grievance procedure, only certain activities are considered "protected" activities that will support a claim of retaliation; included among these activities is "exercising any right otherwise protected by law."18 Title VII of the Civil Rights Act of 1964 characterizes two broad categories of activities as protected for the purposes of a retaliation claim; an employer may not retaliate against an employee for (i) participating in an ongoing investigation or proceeding under Title VII or (ii) opposing discriminatory practices in the workplace.19 Activities such as "complaining to the employer" and "participating in an employer's informal grievance procedures" have been held to be "opposition activities" protected under Title VII.20 Thus, the grievant appears to have engaged in a protected activity in June 1999 when she informed the Warden of the supervisor's alleged sexual harassment and again in March 2000 when she filed a formal written complaint. Furthermore, management's issuance of Written Notices, the circulation of false charges impugning her reputation and ability to perform her job, the secret videotaping of the grievant while engaging in a private activity and/or the reassignment of the grievant to an undesirable shift or work site, if proven, could be viewed as adverse employment actions.21 A remaining question is whether a causal link exists, in other words, whether adverse employment actions were taken in an attempt to punish the grievant for having exercised her protected rights.

In their responses, the step respondents do not claim that the grievant fabricated her factual allegations, but merely indicate that the grievant had not been subjected to retaliation. Unfortunately, the step respondents failed to address the issues raised by the grievant in any detail, leaving many unanswered questions concerning if and why management took the above actions. Additionally, some of the individuals questioned during this Department's ruling investigation were uncooperative, further complicating the determination of whether the grievant's allegations warranted a hearing. Therefore, this Department concludes that further development of the facts by a hearing officer regarding the grievant's retaliation claim is necessary.22

OTHER INFORMATION

For the reasons discussed above, this grievance qualifies for a hearing on the issues of sexual harassment and retaliation. Please note that our qualification ruling is not a determination that the agency engaged in any form of sexual harassment or retaliation. Rather, this ruling simply reflects that there is a sufficient question as to whether such actions occurred, and that further review by a hearing officer is justified.

Additionally, the parties should note that although the grievant was a probationary employee until December 1999, evidence concerning incidents occurring during here probationary period can be used to support her claims of ongoing sexual harassment and retaliation. However, because probationary employees do not have access to the grievance procedure,23 or retaliation that occurred solely during the grievant's probationary period, is not available through the grievance hearing process.

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. 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's employment was terminated on November 8, 2000.
3 See Agency Head's Determination of Qualification For A Hearing, dated October 27, 2000.
4 Va. Code § 2.1-116.05(D); Grievance Procedure Manual § 2.4(1), page 6.
5 See Agency Head's Determination Of Qualification For A Hearing, dated October 27, 2000.
6 See Valentino v. United States Postal Serv., 674 F.2d 56, 65 (D.C. Cir. 1982)(quoting B. Schlei & P. Grossman, Employment Discrimination Law 232 (2d ed. 1979)(to demonstrate a continuing violation a plaintiff must show "a series of related acts, one or more of which falls within the limitations period").
7 In the sexual harassment context, incidents within the limitations period need not be explicitly sexual. Rather the focus is on whether the incident in question could be perceived as "discriminatory" in light of the prior incidents of sexual harassment. See Van Steenburgh v. Rival Co., 171 F.3d 1155 (8th Cir. 1999).
8 Va.Code § 2.1-116.03(5).
9 Va. Code § 2.1-116.06(A) and (C); Grievance Procedure Manual § 4.1(b) and (c), pages 10-11.
10 DHRM Policy No. 2.05(II(A).
11 See DHRM Policy No. 2.15(II)(B); see also Department of Corrections Policy and Procedure Manual, Policy No. 5-2.9 (Sexual Harassment).
12 See Grievance Procedure Manual § 4.1(b), page 10.
13 Spicer v. Virginia Dep't of Corrections, 66 F.3d 705, 710 (4th Cir. 1995).
14 Please note that under certain circumstances courts consider whether the agency exercised reasonable care to prevent and correct promptly any harassing behavior. See Burlington Industries v. Ellerth, 524 U.S. 742(1998); see also Faragher v. City of Boca Raton, 524 U.S. 775(1998)(where the supervisor's harassment does not culminate in a tangible employment action an employer can raise the following two-part defense: (i) it exercised reasonable care to prevent and correct promptly any harassing behavior and (ii) the victim unreasonably failed to take advantage of any preventative or corrective opportunities provided; however, where a supervisor's harassment culminates in a tangible employment action, the employer is liable for the harassment whether the employer knew or should have known of the harassment and regardless of whether the employer took remedial steps to end the harassment after learning of it).
15 An adverse employment action is a tangible employment action 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. See Boone v. Goldin, 178 F.3d 253 (4th Cir. 1999).
16 See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F. 3d 653 (4th Cir. 1998).
17 Id.
18 Grievance Procedure Manual § 4.1(b)(4), page 10.
19 42 U.S.C.A. § 2000-3(a).
20 See Bradley v. CMI Industries, Inc., 17 F.Supp.2d 491 (W.D. N.C.1998)(quoting Hopkins v. Baltimore Gas & Elec, Co., 77 F.3d 745 (4th Cir. 1996) and Armstrong v. Index Journal Company, 647 F.2d 441 (4th Cir. 1981)). See also EEOC Compliance Manual, EEOC Directives Transmittal, Number 915.003, 8-II (B), dated 5/20/98 (protection under the anti-retaliation provisions "applies if an individual explicitly or implicitly communicates to his or her employer …a belief that its activity constitutes a form of employment discrimination that is covered by any of the statutes enforced by the EEOC…2. [e]xamples of opposition…[a] complaint or protest about alleged employment discrimination to a manager… [where] the individual explicitly or implicitly communicates a belief that the practice constitutes unlawful employment discrimination… [and] the complaint would reasonably have been interpreted as opposition to employment discrimination").
21 See Boone v. Goldin, 178 F.3d 253(4th Cir. 1999)(reassignment can form the basis of a valid Title VII claim if the plaintiff can show that the reassignment had some significant detrimental effect on her); see also EEO Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (tangible employment action includes undesirable reassignment).
22 See Ross v. Communications Satellite Corp., 759 F.2d 355, 364-365 (4th Cir. 1985), abrogated on other grounds, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) quoting Morrison v. Nissan Motor Co., Ltd., 601 F.2d 139, 141 (4th Cir. 1979) ("[r]esolution of questions of intent often depends upon the 'credibility of the witnesses, which can best be determined by the trier of facts after observation of the demeanor of the witnesses during direct and cross-examination.'").
23 See Va. Code § 2.1-116.09(A).