Issue: Qualification, Separation (Involuntary Resignation); Ruling Date March 16, 2001; Ruling #2001II; Agency Virginia Department of Transportation; Outcome: Not Qualified.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution


QUALIFICATION RULING OF DIRECTOR

In the Matter of Department of Transportation

March 16, 2001


The grievant has requested a ruling on whether his October 16, 2000 grievance with the Department of Transportation (VDOT) qualifies for a hearing.1 The grievant claims that he was defamed by VDOT and his employment was wrongfully terminated. He seeks reinstatement and the opportunity to clear his name and record. VDOT failed to qualify the grievance because it concluded that the grievant voluntarily resigned from his position. For the reasons set forth below, the grievance is not qualified for hearing.

FACTS

The grievant was employed by VDOT as the Director of Administrative Services. On September 20, 2000, he was offered a position with another state agency, the Department of Conservation and Recreation (DCR). The grievant accepted the offer and notified VDOT of his intention to resign effective October 9, 2000. A short time later, the Department of Information Technology (DIT) verbally offered the grievant a position that he accepted conditioned upon his giving appropriate notice to DCR.

Near the end of September, the Richmond Times-Dispatch published several articles that allegedly linked the grievant to a purportedly failed computerized record system project. Both DIT and DCR subsequently withdrew their job offers. Consequently, the grievant attempted to rescind his resignation from VDOT. VDOT, however, refused to allow the grievant to withdraw his resignation.

DISCUSSION

Involuntary Resignation

The threshold question is whether the grievant voluntarily resigned his position with VDOT. The Department of Human Resource Management ("DHRM") defines resignation as "an employee's voluntary separation from state service."2 The determination of whether a resignation is voluntary is based on an employee's ability to exercise free and informed choice in making a decision to resign. Thus, a resignation may be involuntary "(1) where [the resignation] was obtained by the employer's misrepresentation or deception . . . and (2) where forced by the employer's duress or coercion."3 Under the "misrepresentation" theory, a resignation may be found involuntary if induced by an employee's reasonable reliance upon an employer's misrepresentation of a material fact concerning the resignation.4 A misrepresentation is material if it concerns either the consequences of the resignation or the alternative to resignation.5

The grievant has not alleged that VDOT made any misrepresentation that caused him to resign his position or that it coerced the grievant into submitting his resignation. Nor has this Department found evidence of such. Additionally, even if DCR's offer of employment could somehow be viewed as a "misrepresentation" to the grievant which caused the grievant to submit his resignation to VDOT, such a claim would not be in compliance with the grievance process because the grievance procedure requires that "an employee's grievance must: . . . (2) arise in the agency in which the employee works."6 Therefore, if DCR had made a misrepresentation that encouraged the grievant to resign, the grievant's dispute would be with DCR, not VDOT, and thus could not be challenged via the grievance procedure.

Further, VDOT did not violate policy by refusing to accept the grievant's withdrawal of his resignation. The decision of an agency as to whether to accept an employee's attempt to rescind a resignation is entirely discretionary. The relevant state policy is the Department of Human Resource Management ("DHRM") Policy 1.70 II (A)(3), which allows an employee who has submitted his resignation to withdraw the resignation no later than one month after the effective date of the proposed resignation. Because the decision to approve a withdrawal is entirely discretionary, the agency cannot violate state policy by refusing to accept the withdrawal.7

Opportunity for a Name Clearing Hearing

The grievant also requested a name clearing hearing. The United States Supreme Court has indicated that when a public employer who, in refusing to rehire an employee, makes charges against him that might damage his standing in the community or otherwise imposes a stigma on the employee that forecloses his freedom to take advantage of other employment opportunities, an employee's interest in liberty may be implicated, and he should be granted a hearing to clear his name.8 In order for a liberty interest to be implicated, some damage to the employee's employment status must have resulted from publication of the reasons for his termination.9 Furthermore, the employee is entitled to a name clearing hearing only if the government action threatens an employee's "good name, reputation, honor or integrity."10 When an employee is discharged for poor performance alone, he is not considered to have suffered an injury to a liberty interest if he is not afforded a name clearing hearing.11 The employee is entitled to a name clearing hearing only he is discharged for an act allegedly involving character issues such as dishonesty or immorality.12 This Department has found no evidence that the grievant was accused of engaging in dishonest or immoral acts in association with his employment with VDOT. Accordingly, he cannot be afforded a name clearing hearing under the grievance process.

Defamation

The grievant also claims that he was defamed in connection with his employment. Although all complaints may proceed through the three resolution steps, thereby allowing employees to bring legitimate concerns to management's attention, only certain issues qualify for a hearing. Claims such as false accusations, defamation and slander are not among the issues identified by the General Assembly as qualifying for a grievance hearing.13 Accordingly, this issue cannot be qualified 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

William G. Anderson, Jr.
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 Department of Human Resource Management, Policy No. 1.70 II (A)(1).
3 Stone v. University of Maryland Medical System Corp., 855 F.2d 167, 174 (4th Cir. 1988).
4 Id.
5 Id.
6 Grievance Procedure Manual § 2.4, page 6 (emphasis added).
7 Of course, an agency could violate a policy other than 1.70 by refusing to accept a withdrawal of a resignation. For instance, if the refusal was based upon a discriminatory animus, such as bias based on age, race, or handicap, such an action would violate Policy 2.05 (Equal Employment Opportunity). There is, however, no evidence of such animus in this case.
8 Bunting v. Columbia, 639 F.2d 1090, 1094 (4th Cir. 1981) citing to Board of Regents v. Roth, 408 U.S. 564, 573-75 (1972).
9 Johnson v. Morris, 903 F.2d 996, 999 (4th Cir. 1990).
10 Roth, supra, 408 U.S. at 573.
11 Bunting, supra, at 1094. "Certainly, a person who has been fired may be somewhat less attractive to other potential employers, but it would be stretching the concept too far to conclude that a person's liberty interest is impaired merely because he has been discharged." Id. at 1095.
12 Id.; see also Zepp v. Rehrmann, 79 F.3d 381, 388 (4th Cir. 1996)(accusations that employee was terminated for incompetence or unsatisfactory job performance did not violate any clearly established federal right).
13 Va. Code § 2.1-116.06(A); Grievance Procedure Manual § 4.1, page 10.