Issue: Qualification, Discrimination/Sexual Harassment(qualified), Methods/Means: Assignment of Duties(not qualified), Separation; Layoff/Recall(not qualified), Position/Classification(not qualified), Ruling Date April 30, 2001; Ruling #2001-UU; Agency: Department of Corrections

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Corrections

April 30, 2001

Ruling #2001UU

The grievant has requested a ruling on whether his June 1, 2000 grievance with the Department of Corrections (DOC) qualifies for a hearing.1 The grievant essentially claims that DOC has misapplied the Commonwealth’s personnel policy. He further claims that he was harassed, mistreated and subjected to sexual discrimination by DOC personnel. For the reasons discussed below, only the issue of sexual discrimination qualifies for hearing.

FACTS

DOC employed the grievant as a Building & Grounds Supervisor B for a number of years. Prior to 1999, this position apparently had no working title. In 1999, DOC assigned the grievant’s position a working title: Preventative Maintenance Supervisor. 2 At approximately the same time that the agency assigned the position the new working title, it significantly restructured the position. DOC removed from the position all supervisory duties over buildings and grounds staff, including a plumber, electrician, steamfitter, locksmith, groundsman, mechanic, and carpenter. The position was essentially transformed from a personnel management position into a hands-on craft or trade position.

The grievant was also apparently subjected to several incidents of harassment, which were of a sexual nature. The agency claims that it attempted to address these incidents. Additionally, the grievant claims that DOC harassed him by forcing him to complete assignments that required him to use ladders. The grievant has an aversion to heights.

DISCUSSION

By statute and under the grievance procedure, management reserves the exclusive right to manage the affairs and operations of state government.3 Thus, all claims relating to issues such as the means, methods, 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.4 The grievant claims that management misapplied policy, harassed and mistreated him and subjected him to sexual discrimination. His claims are discussed below.

Misapplication of Policy

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 alleges that management misapplied policy because his work assignments were not consistent with his job description or performance expectations.

In this case, there appears to have been significant change in the duties of the grievant’s position as reflected in both the grievant’s Position Description ("PD") and Performance Plan ("PP) for the past 2 years. The grievant’s position was transformed from a personnel management position to a non-supervisory position. In other words, despite the retention of the class title "Building and Grounds Supervisor B," the supervisory position held by the grievant has in effect been abolished because he has been stripped of all supervisory duties over other employees. While the agency apparently had a legitimate need for a maintenance position, and was free to create a maintenance position manned by the person deemed most suitable, the state is required to follow a specific process to achieve this end. When an agency abolishes a position, as in this case, it implicates a range of layoff rights for the person whose job is eliminated.5 That process was not utilized in this case.

A determination by this Department that a grievant has presented evidence raising a sufficient question as to whether a misapplication of policy has occurred generally results in qualification of the issue for hearing. There are some cases, however, where qualification is inappropriate, even though it appears that the agency may have misapplied a policy.6 In this case, if the grievant proceeded to hearing, the hearing officer could not grant the relief requested by the grievant (the return of his supervisory status), nor is there any other effectual relief available. At hearing, the hearing officer would be limited to issuing an order that the agency reapply the layoff policy correctly from the point at which it became tainted and/or that the agency take corrective measures to prevent this situation from arising again in the future.7

Thus, even if the hearing officer found that the agency misapplied the layoff policy, the hearing officer would be limited to issuing an order that the agency apply the policy correctly, in which case it appears that the result for the grievant would be the same. Under the layoff policy, once the agency abolished the supervisory position then it would have been required to offer him the position that he now holds, the newly created Maintenance Supervisor Position.8 The grievant could have either accepted or refused the new position. If he refused, the agency would have fulfilled its obligation to him under state policy.9 Accordingly, because (i) the hearing officer does not have the authority to grant the specific relief requested by the grievant, (ii) the correct application of the policy would not alter the outcome for the grievant, and (iii) no other effectual relief is available, the issue of misapplication of policy is not qualified for hearing.

Sexual Harassment

The grievant also claimed that he was a victim of harassment. While his grievance did not expressly state the nature of the harassment, during the course of this Department’s investigation, he explained that he was subjected to treatment that might constitute sexual harassment. For purposes of this ruling, the grievant provided to this Department copies of materials that allegedly were posted in the workplace by his co-workers that referenced him and were sexual in nature.10

State policy prohibits sex discrimination and sexual harassment, which is a form of sexual discrimination, and 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 discrimination may be qualified for a hearing.12 To qualify a grievance alleging sexual harassment for hearing, there must be more than a mere allegation of discrimination -- the grievant must present evidence raising a sufficient question as to whether the conduct in question was (1) unwelcome; (2) based on his sex; (3) sufficiently severe or pervasive so as to alter his conditions of employment and to create an abusive or hostile work environment; and (4) imputable on some factual basis to the agency.13

Based upon the evidence presented to this Department it appears that the conduct in question was unwelcome and based upon the grievant’s sex. While the agency has claimed that it responded to the grievant’s complaints of mistreatment, questions remain as to the frequency and pervasiveness of the harassment, when the grievant came forward to complain and how often, and the promptness and the effectiveness of agency’s response to his complaint(s).14 Accordingly, this Department concludes that further development of the facts regarding the alleged sexual discrimination is desirable. Therefore, the issue of sexual discrimination is qualified for hearing.

Supervisory Harassment

The grievant contends that he has an aversion to heights and that management harassed him by forcing him to complete assignments that required him to use ladders. Although all complaints initiated in compliance with the grievance process may proceed through the three 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 of harassment qualify for a hearing only if an employee presents sufficient evidence showing that the challenged actions are based on race, color, religion, political affiliation, age, disability, national origin or sex.15 In this case, the grievant does not assert that the actions of his supervisor were based on any of these factors.16 Rather, the facts cited by the grievant in support of his claim can be summarized as describing conflict with his supervisor concerning his supervisor’s actions. Such claims of supervisory conflict are not among those issues identified by the General Assembly that may qualify for hearing. Accordingly, this issue does not qualify for hearing.

APPEAL RIGHTS AND OTHER INFORMATION

For all the reasons discussed above, the issue of sexual discrimination qualifies for a hearing. Please also note that our qualification ruling is not a determination that the grievant was subjected to sexual discrimination. Rather, this ruling simply reflects that there is a sufficient question as to whether the agency subjected the grievant to sexual discrimination, and that further review by a hearing officer is justified.

For the reasons stated above, the issues of misapplication of policy and harassment (having to use a ladder for completion of assignments) do not qualify for 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, the grievant should notify his human resources office, in writing, within five workdays of receipt of this ruling. If the court should qualify the grievance for hearing, 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. Because this grievance was initiated before July 1, 2000, this ruling is issued in accordance with the rules contained in the old procedure manual procedure (Grievance Procedure, effective July 1, 1995, as amended July 1, 1999).
2 See the grievant's 1999-2000 Performance Plan (PP) and his August 2000 Position Description (PD).
3 Va.Code § 2.1-116.03(5).
4 Va. Code § 2.1-116.06(A) and (C); Grievance Procedure, page 6.
5 See the Department of Human Resource Management (DHRM) Policy No. 1.30 (Layoff)(effective 9/16/93). The Layoff Policy was revised 9/25/00 as a result of the state's new compensation plan. However, because the former policy was in effect at the time of the events that form the basis of this grievance, the former policy will be applied in this ruling.
6 For example, during the resolution steps, an issue may have become moot, either because the agency granted the specific relief requested by the grievant or an interim event prevents a hearing officer from being able to grant any meaningful relief.
7 Grievance Procedure, page 11; Rules for Conducting Grievance Hearings, pages 10-11.
8 "After an agency has identified all affected employees, it must attempt to reassign them within the agency…in the same or lower salary grade as their current position. An employee must be offered a position in the highest salary grade available in order of seniority." DHRM Policy 1.30 (V)(A).
9 "Once this position has been offered, the agency has no obligation to consider additional placement options for the employee." Id. Under the policy, an employee who is subject to layoff also is entitled to preferential hiring rights in other agencies. However, the grievant has not indicated an interest in pursuing positions in other agencies.
10 In Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) the U.S. Supreme Court recognized that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII.
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 See Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) for discussion regarding sexual harassment claim and potential affirmative defenses.
15 Va. Code § 2.1-116.06(A)(iii).
16 An employee is not subjected to disability discrimination if he has an aversion to heights, but management requires him to use a ladder in the performance of his job duties. In Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986), a utility systems engineer applied for a job that required the climbing of ladders and stairs. The employer refused to hire him because he suffered from a fear of heights. The engineer subsequently found other work in his chosen field that allowed him to keep his feet on the ground. Thus, the engineer's impairment was not a disability because it did not substantially limit his ability to work, even though the impairment prevented him from securing one particular job. Id. at 934.