Issue: Qualification, Discrimination/Sexual Harassment, Retaliation/Other Protected Right; Ruling date April 26, 2001; Ruling #2001SS; Agency: Department of Corrections; Outcome: Qualified

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Corrections

April 26, 2001

Ruling #2001-SS

The grievant has requested a ruling on whether the grievance she initiated on May 30, 2000 with the Department of Corrections qualifies for a hearing.1 The grievant claims that management subjected her to a hostile and retaliatory work environment. 2 For the reasons discussed below, this grievance qualifies for hearing.

FACTS

The grievant is employed as a Dental Assistant with the Department of Corrections. On May 2, 2000, the grievant was terminated after a heated confrontation with her immediate supervisor and a co-worker. Subsequently, the grievant met with a facility investigator and prepared an incident report regarding the confrontation. On May 4, 2000, the grievant met with the facility’s Warden and Assistant Warden regarding the incident, and presented her incident report asserting a hostile work environment claim. During the meeting, the grievant was assured that she was not terminated. Further, at the grievant’s request, her immediate supervisor was summoned to the meeting where the assurance was repeated. Later that same day, the grievant again met with the Warden and was temporarily reassigned to another correctional facility pending an internal investigation of her claim. On May 30, 2000, the grievant filed this grievance with the Regional Administrator, asserting a hostile work environment, retaliation and management negligence in handling her complaints. As relief, the grievant requested reassignment to her original facility, removal of her immediate supervisor and for the Warden to be disciplined.

At the first resolution step, the Regional Administrator determined that the grievant’s claim of hostile work environment was founded regarding the May 2 incident, and that appropriate action would be taken, but that actions/issues beyond the 30 calendar day timeframe, specifically prior to May 2, would not be addressed. At the second resolution step, management, in response to the grievant’s desired relief, stated that (i) the grievant’s immediate supervisor was no longer employed by the facility, (ii) appropriate action had been initiated by the agency regarding the Warden’s conduct, and (iii) the grievant had been reassigned to her original facility.3 As such, on August 2, 2000, the agency head determined that the agency had taken appropriate action in response to the May 2, 2000 incident. Additionally, the agency head stated that he would not address issues raised by the grievant that occurred prior to the 30 calendar day filing period.

DISCUSSION

By statute and under the grievance procedure, management reserves the exclusive right to manage the affairs and operations of state government.4 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.5 The grievant claims that management subjected her to a hostile work environment and retaliation.

In her grievance (the Form A and attachments), the grievant alleges that she has been subjected to ongoing harassment since July 1995. During the resolution step process and again at qualification, management advised the grievant that while the incident which occurred on May 2 established the existence of a hostile work environment, they would not review or address issues raised in her grievance that transpired prior to that date because those issues were not initiated within 30 calendar days of the action or event challenged.6 Management also did not specifically address the issue of retaliation during the grievance process.

It has been the longstanding position of this Department that when a grievant is alleging a continuing pattern of discriminatory and/or retaliatory acts, as in this case, and one of the alleged incidences supporting her claims occurred within the 30 calendar day period, then management should consider all the alleged actions, even those outside the 30 calendar day period, in order to determine whether there is evidence of a pattern of impermissible conduct and whether the grievance should be qualified for hearing.7 Here, the grievant’s termination, reinstatement and subsequent involuntary reassignment, all of which occurred between May 2 and May 4, could support her claims of an ongoing hostile work environment and/or retaliation.8 Further, the grievant initiated her grievance within 30 calendar days of each of the listed incidents and, thus, management should have considered actions that transpired prior to the 30 calendar day period to determine whether there had been a pattern of discrimination and/or retaliation. Accordingly, for purposes of this qualification ruling, this Department will consider all the grievant’s allegations, including those prior to May 2. Her issues are discussed below.

Sexual Discrimination

State policy prohibits sexual discrimination.9 Sexual harassment, which is a form of sexual discrimination, 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.10 " In order to qualify a hostile work environment sexual harassment claim for hearing, the grievant must present evidence raising a sufficient question as to whether the conduct in question was (1) unwelcome; (2) based on her sex; (3) sufficiently severe or pervasive so as to alter her conditions of employment and to create an abusive or hostile work environment; and (4) imputable on some factual basis to the agency.11

In this case, the grievant has made many allegations concerning management’s conduct -- comments regarding her personal relationships and marital status, sexual innuendoes, use of profanity and upper management’s unsuccessful informal mediation of the on-going supervisory conflict. If substantiated, such evidence could lead a reasonable fact-finder to conclude that the grievant was subjected to unwelcome conduct based upon her sex and that the unwelcome conduct was potentially severe or pervasive enough to create a hostile work environment. Additionally, it is undisputed that the grievant reported the alleged sexual harassment to management long before any affirmative action was taken to ensure that the harassment would cease.12 Further, management did not address the alleged pattern of sexual discrimination/sexual harassment during the grievance process. In consideration of the above, further development of the facts by a hearing officer regarding the grievant’s sexual discrimination/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;13 (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.14

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.15 " 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.16 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.17 Thus, the grievant appears to have engaged in a protected activity in August 1995 when she met with the Warden in her home regarding his alleged offensive remarks, in April 1998 in her letter to the Assistant Warden regarding her supervisor’s conduct, and again in May 2000 when she filed a formal written complaint. Furthermore, the reassignment of the grievant to another work site could be viewed as an adverse employment action.18 However, questions remain as to whether the reassignment was adverse under the circumstances presented, whether a causal link exists, in other words, if adverse employment actions were taken in an attempt to punish the grievant for having exercised her protected rights, and whether the agency had a legitimate business reason for its actions. If the grievant’s allegations are substantiated, such evidence could lead a reasonable fact-finder to conclude that the grievant was subjected to retaliation.

In their responses, the step respondents failed to address the issue of retaliation. Therefore, this Department concludes that further development of the facts by a hearing officer regarding the grievant’s retaliation claim is necessary.19

OTHER INFORMATION

For the reasons discussed above, this grievance qualifies for a hearing on the issues of sexual discrimination/sexual harassment and retaliation. For information regarding the actions the grievant may take as a result of this ruling, please refer to the enclosed sheet. Please note that our qualification ruling is not a determination that the agency engaged in any form of sexual discrimination 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, during the resolution steps, management essentially granted the relief sought. 20 Therefore, a hearing officer may only make a finding that the alleged acts occurred and issue a general order that the agency cease the retaliation and discrimination and take measures to prevent any future occurrences. Further, a hearing officer does not have the authority to order a public apology from management or the payment of any money damages.

Neil A.G. McPhie, Esquire
Director

Tracey D. Watkins
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 also raised issues of public humiliation, false accusations, use of verbal profanity, and mischaracterization within her Form A attachments. Although all complaints may proceed through the resolution steps set forth in the grievance statute, thereby allowing employees to bring their concerns to management's attention, only certain issues qualify for a hearing. For example, while grievable through the management resolution steps, claims such as false accusations, defamation, public humiliation, and mischaracterization are not among the issues identified by the General Assembly as qualifying for a grievance hearing (Va. Code § 2.1-116.06; Grievance Procedure, pages 6-7). Accordingly, these claims do not qualify for a hearing for which separate relief can be granted. However, evidence of these claims can be presented at hearing as background evidence to support the grievant's claims of sexual discrimination/harassment and retaliation, which are qualified for hearing.
3 While management granted the majority of the relief requested by the grievant, management did not recognize the existence of a pattern of discrimination or retaliation. Significantly, a hearing officer has the authority to make such a finding and to issue an order prohibiting future discrimination and/or retaliation.
4 Va. Code §2.1-116.06(B).
5 Va. Code §2.1-116.06(A) and (C).
6 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. Grievance Procedure, page 4.
7 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").
8 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).
9 DHRM Policy No. 2.05(II)(A).
10 See DHRM Policy No. 2.15(II)(B).
11 Mikels v. City of Durham, 183 F.3d 323, 329 (4th Cir. 1999).
12 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) and 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 component 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).
13 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.
14 See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653 (4th Cir. 1998).
15 Grievance Procedure, page 6.
16 42 U.S.C.A. § 2000-3(a).
17 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").
18 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); but see also Von Gunten v. Maryland Department of the Environment, 2001 U.S. App. LEXIS 4129 *24-26 (4th Cir. 2001)(holding no adverse employment action found where plaintiff's reassignment was only temporary and an accommodation for employee's own request for transfer and no other positions were available)(emphasis added).
19 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.'").
20 See Va. Code § 2.1-116.05(E): "Each level of management review shall have the authority to provide the employee with a remedy."