Issue: Qualification, Methods/Means/Assignment of Duties(qualified), Position/Classification/Demotion(qualified), Retaliation/Grievance Activity(qualified), Work Conditions/Alleged Nepotism(not qualified), Discrimination/Race(not qualified); Ruling Date April 26, 2001; Ruling Number 2001TT; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services

In the matter of Department of Mental Health, Mental Retardation, Substance Abuse Services, April 25, 2001

Ruling #2001-TT

The grievant has requested a ruling on whether her July 5, 2000 grievance with the DMHMRSAS qualifies for a hearing.¹ The grievant claims that management has transferred her and subjected her to disciplinary harassment, discrimination/unfair treatment and retaliation. Further, the grievant has charged management with nepotism. As relief, the grievant requests the reassignment of previous duties, cessation of harassment and retaliation, professional courtesy and respect and an investigation of the nepotism charges. For the reasons discussed below, the issues of disciplinary transfer/reassignment and retaliation qualify for hearing. The issues of discrimination/unfair treatment, harassment and nepotism do not qualify for hearing.

The grievant is employed by DMHMRSAS as a Registered Nurse, Health Services Coordinator. The grievant filed a grievance challenging a disciplinary action on March 12, 2000. On June 23, 2000, management met with the grievant and advised her of a reassignment from Unit IV to the Medical Clinic effective July 10, 2000. The grievant asserts that the reassignment was an involuntary demotion and retaliatory. In addition, management has communicated its assessment of the grievant’s performance verbally and through correspondence, which the grievant claims is discriminatory, harassing and retaliatory. The grievant also alleges that the agency has engaged in nepotism because the Director of Nursing and the Quality Improvement Nurse, her daughter-in-law, work together.

The grievance statutes and procedure reserve to management 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 and the reassignment of employees within the agency generally do not qualify for a 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 asserts that management’s actions in reassigning her were disciplinary and a part of a pattern of harassment, discrimination/unfair treatment and retaliation. Additionally, she alleges that the agency has engaged in nepotism. These issues are discussed in turn below.

As a state employee subject to the Virginia Personnel Act, a transfer or reassignment must be either voluntary, or, if involuntary, must be based on objective methods and must adhere to all applicable statutes and to the policies and procedures promulgated by the Department of Human Resource Management (DHRM).⁴ Applicable statutes and policies recognize management’s authority to transfer an employee for disciplinary purposes as well as to meet the agency’s legitimate operational needs.⁵ A transfer is disciplinary if it is intended to correct or penalize behavior by enforcing applicable standards of conduct.

When an employee is transferred as a disciplinary measure, certain policy provisions must be followed.⁶ All transfers accompanied by a Written Notice automatically qualify for a hearing if challenged through the grievance procedure.⁷ In the absence of an accompanying Written Notice, a challenged transfer qualifies for a hearing only if there is a sufficient question as to whether the transfer was adverse and effectuated for disciplinary reasons.⁸ These policy and procedural safeguards are designed to ensure that a disciplinary transfer is merited. A hearing cannot be avoided for the sole reason that a Written Notice did not accompany the transfer.

Management denies that the reassignment to the Medical Clinic was disciplinary.⁹ Management stated that the reassignment was based on an immediate need to fill the position and an assessment regarding the best-suited registered nurse with the least impact on nursing management. Further, there was no change in the grievant’s salary or shift. However, there is evidence in the grievant’s case which could indicate that management’s decision was determined by performance-related issues. For example, the Facility Director’s second step response lists the grievant’s "problematic" issues and states that the reassignment was necessary due to "the lack of approved corrective action and numerous attempts for you to respond to the findings."¹⁰ Although management denies any intent to discipline, the inference could be drawn from the evidence presented that the grievant’s reassignment to the Clinic was meant to "correct" her behavior, and thus, was disciplinary in nature. Further, it also appears that the reassignment could constitute an adverse employment action.¹¹ In sum, her grievance raises a sufficient question as to whether the reassignment was adverse and disciplinary in nature. Thus, the issue of disciplinary transfer is qualified for a hearing.

The grievant claims that management reassigned her in retaliation for having engaged in the grievance process. 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; ¹² (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. 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.¹³

It is undisputed that the grievant engaged in a protected activity by filing a grievance on March 12, 2000.¹⁴ Furthermore, the reassignment to the Medical Clinic could be viewed as an adverse employment action. An "[a]dverse employment action includes any retaliatory act or harassment if, but only if, that act or harassment results in an adverse effect on the ‘terms, conditions, or benefits’ of employment."¹⁵ Thus, a reassignment can constitute an adverse employment action if a grievant can show that the reassignment had some significant detrimental effect on the terms, conditions or benefits of her employment.¹⁶ In this case, the agency maintains that the reassignment to the Medical Clinic did not adversely impact the grievant’s employment status because the grievant was not demoted and her salary remains unchanged.¹⁷ However, the grievant contends that the reassignment is a demotion¹⁸ and, during the investigation for this ruling, she also indicated that her duties are now clerical in nature. Significantly, a reassignment with appreciably different responsibilities or one providing reduced opportunities for promotion can constitute an adverse employment action.¹⁹ Thus, the only question remaining is whether a causal link exists between the grievant’s participation in the grievance process and the reassignment.

There is a fairly close proximity in time between the filing and settlement of the grievant’s March grievance and the reassignment. Additionally, management continually assessed the grievant’s performance after the initiation of the grievance, which the grievant claims was retaliatory harassment.²⁰ Management has stated a legitimate business reason for the grievant’s move to the Medical Clinic: "to ensure the efficiency and effectiveness of nursing services, to support the grievant’s technical skills, taking into consideration an on-going assessment of the grievant’s performance."²¹ Further, management maintains the ongoing communications with the grievant concerning her performance began prior to the initiation of the March grievance and were based upon the right to communicate an employee’s progress toward meeting expectations.²² The grievant denies management’s contentions. Thus, material facts remain in dispute, such as whether (i) the grievant’s reassignment was a demotion, (ii) the assessment of the grievant’s performance escalated after the initiation of her grievance, (iii) the reassignment supported the grievant’s skills and (iii) the reassignment was actually predicated upon the needs of the institution. Accordingly, this Department concludes that further development of the facts by the hearing officer is desirable. Therefore, the issue of retaliation is qualified.

Grievances that may be qualified for a hearing include actions related to discrimination on the basis of race.²³ As an African-American, the grievant is a member of a protected class.²⁴ To qualify her 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 your grievance were the result of prohibited discrimination based on your protected status, in other words, that because of your race you were 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.²⁵

As evidence of discrimination, the grievant cites a "[h]istory of unfair treatment and discrimination practices" which lists incidents of management communication and correspondence regarding work assignments and assessment.²⁶ Review of this information does not provide evidence that a pattern of discrimination exists. The evidence presented is insufficient to demonstrate disparate treatment or that the agency’s management decisions were a pretext for discrimination.

As evidence of harassment, the grievant again lists incidents of management communication and correspondence. However, the General Assembly has limited the issues that may be qualified for a hearing and the relief that may be awarded under the grievance procedure. The type of behavior that the grievant is alleging, supervisory harassment, is not among the issues enumerated.²⁷ Thus, these issues do not qualify for hearing.

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.

The grievant asserts that the working relationship between the Director of Nursing and the Quality Improvement Nurse, her daughter-in-law, should be investigated due to nepotism. The Quality Improvement Nurse reports directly to the Quality Improvement Director, but has professional interaction with the Director of Nursing and other facility staff. As such, while this arrangement may appear unusual, it does not violate any state policy. Nor has the grievant provided evidence that it violated any agency policy. Thus, this issue does not qualify for hearing.

For the reasons discussed above, the issues of discrimination, unfair treatment, harassment and nepotism do not qualify for a hearing. 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 should notify them that she does not want to proceed.

Regarding the qualified disciplinary transfer claim, at the hearing, the grievant will have the burden of proving that the transfer was disciplinary. If the hearing officer finds that it was disciplinary, the agency will have the burden of proving that the transfer, though disciplinary, was warranted.

Regarding the qualified retaliation claim, at hearing, the grievant will have the burden of proving that the reassignment was retaliatory. Please note, however, that if the hearing officer finds that the reassignment was retaliatory, the scope of relief he or she can offer is limited. In retaliation cases, a hearing officer may only issue a general order that the agency cease the retaliation and take measures to prevent any future retaliation.²⁸

Please note that in qualifying these issues, this Department has in no way determined that the grievant’s transfer was in fact involuntary, disciplinary or unwarranted. Rather, this ruling simply reflects that there is sufficient question as to those issues, and that further review by a hearing officer is justified. Should a hearing officer find that the transfer/reassignment was involuntary, disciplinary, and unwarranted, he or she may rescind that transfer, thus effecting reinstatement to the original division, just as he or she may rescind any formal disciplinary action such as termination by ordering reinstatement to a previously held position.²⁹ Bear in mind, however, that the agency had and continues to have the authority to transfer any employee if, in management’s judgment, that would further the agency’s legitimate operational needs and the transfer is not retaliatory, discriminatory, unwarranted discipline, or a misapplication of policy.

Neil A. G. McPhie, Esquire
Director

Tracey D. Watkins
Employment Relations Consultant