Issue: Qualification; Discrimination/Disability, Position/Classification/Demotion ; Ruling date May 2, 2001; Ruling #2001VV; Agency: Department of Taxation; Outcome: not qualified.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Taxation No. 2001VV

May 2, 2001

The grievant, through his attorney, has requested a determination of whether his June 23, 2000 grievance with the Department of Taxation qualifies for a hearing. 1The grievant claims that his transfer to a position in a lower pay grade constituted a misapplication of state policy, violated the Americans with Disabilities Act (ADA),2 and was retaliatory in nature. For the reasons discussed below, this grievance does not qualify for hearing.3

FACTS

The grievant was employed as a Tax Collection Representative (grade 9) in the agency’s Bankruptcy Unit, and was transferred in May 1998 to the Debt Collection Unit for cross training, which was required of all employees in that Unit. The majority duty of the latter position (75%) is to respond to telephone calls from the public, using the agency’s Automated Call Distributor (ACD) system. The grievant asked in May 1998 that he not be required to perform this job duty due to a medical condition. Management agreed to alter the grievant’s job duties to eliminate the use of the ACD system, while awaiting requested medical documentation that would allow the agency to make a determination as to the grievant’s eligibility for an accommodation under the ADA. The agency did not receive the requested documentation; nevertheless, the modifications to the grievant’s duties were allowed to continue.

On July 1, 1999, the agency again asked the grievant to provide the requested medical information no later than August 2, 1999, or be returned to his regular duties. In response, the grievant denied that he had ever requested accommodation under the ADA, asserting that he wanted to be returned to the Bankruptcy Unit because he was originally hired for that position, it better matched his qualifications, and the position was still open.4 Alternatively, in the same letter, the grievant also stated that he had already provided the agency with medical documentation that he could not perform the duty of using the ACD system. The grievant did not provide all of the medical information requested by the agency; however, the agency continued to allow the modifications to his work duties.

On May 26, 2000, the agency officially notified the grievant that he did not qualify for accommodation under the ADA because he could not perform the essential functions of his job with or without accommodation and was therefore not considered a "qualified individual" under the ADA guidelines. The agency indicated that this determination was based on the fact that answering the public’s incoming calls on the ACD phone system constitutes 75% of the duties of the Collections Representative position in the Collections Unit and is an essential function of the job. Both the grievant and his doctor concur that he could not talk on the ACD phone system. Although the agency maintained that the grievant did not qualify for accommodation under the ADA, the grievant was offered an accommodation in a Tax Examiner position (grade 8), which did not require use of the ACD phone system. The position came with no reduction in salary, and the grievant was placed in the position effective June 12, 2000.5

DISCUSSION

Policy Misapplication:

The grievant claims that his "forced demotion and transfer from [his] grade level 9 position as a Tax Collection Rep … to a pay grade level 8 position as a Tax Examiner" was a misapplication or unfair application of policy.

For a claim of policy misapplication or unfair application of policy to qualify for a hearing there must evidence raising a sufficient question as to whether management violated a mandatory policy provision, or evidence that management’s actions, in their totality, are so unfair as to amount to a disregard of the intent of the applicable policy. The relevant policy governing the grievant’s demotion is the Department of Human Resource Management (DHRM) Policy 3.05 III (G)(1)&(4)(a), which allows management to reassign an employee to a new position in a lower grade because the employee is unable to fulfill his or her job requirements, and to determine the new salary by considering the employee’s experience and the nature of the job.6 In this case, the grievant has presented no evidence that the agency acted outside the mandates of policy. The decision to demote the grievant with no change in salary based on his undisputed inability to perform an essential function of his former position fell within the discretion of the agency and fully complied with the requirements in DHRM Policy 3.05 III (G).

The grievant also asserts that the policy was unfairly applied because other similarly situated employees were allowed to transfer to the Office Audit Section and retain a higher salary grade than the grade 8 level authorized for the positions in the Section. However, the second step respondent reviewed the claim and found no situations where this occurred. He found that some employees were allowed to take a voluntary demotion to the Section without a change in salary, which is the same offer that was extended to the grievant. Because there is no evidence that the agency violated or unfairly applied policy, this issue is not qualified for a hearing.

ADA:

The grievant claims that his demotion was inconsistent with the Americans with Disabilities Act (ADA).7 The ADA prohibits discrimination against a qualified individual8 with a disability because of the individual’s disability. Additionally, if an individual’s disability or need for reasonable accommodation is not obvious, the employer can require the employee to provide documentation from an appropriate health care professional.9 If the employee fails to provide the requested documentation, then the employee is not entitled to reasonable accommodation. 10

In this case, the grievant did not submit the requested documentation until June 2000; however, the agency modified the grievant’s duties in May 1998, while awaiting appropriate documentation.11 The grievant submitted a doctor’s note in June 2000, stating that he suffers from "depression/anxiety." Depression has been recognized as a potential disability under the ADA.12

To be afforded protection from disability discrimination under the ADA, the grievant must establish that he is an "otherwise qualified individual," in other words, an individual with a disability who, with or without a reasonable accommodation can perform the essential functions of the job.13 The grievant undisputedly cannot perform one of the essential functions of his job – i.e., using the ACD phone system, which constitutes 75% of the job duties of the position. Thus, the agency must provide a reasonable accommodation, if possible, unless to do so would be an undue hardship for the agency.14 In this case, it does not appear that there is a reasonable accommodation available for the grievant in this particular job – no accommodation will allow him to use the mandatory ACD phone system. However, under the ADA, a reasonable accommodation can be a re-assignment to a vacant position when a disabled employee cannot be reasonably accommodated in his position, including reassignment to a lower grade position if necessary.15 Therefore, the agency appropriately sought to transfer the grievant to another position as a reasonable accommodation. Significantly, while the grievant was displeased with the reassignment, under the ADA, an employee need not receive the accommodation that he prefers or requests -- the employer need only provide an effective accommodation.16 Accordingly, the issue of discrimination based on disability is not qualified for a hearing.

Retaliation:

The grievant also claims that the agency retaliated against him for requesting an accommodation under the ADA. For a claim of retaliation to qualify for a hearing, there must be evidence raising a sufficient question as to whether the employee (1) engaged in a protected activity; (2) suffered an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action; in other words, whether an adverse employment action was taken 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.

The grievant has not produced sufficient evidence of retaliation by the agency. The exercise of a right protected by law, such as requesting an accommodation under the ADA, is clearly a protected activity.17 Furthermore, a demotion could be construed as an adverse employment action. However, the grievant has not submitted evidence that links exercise of his protected rights to the agency’s determination to reassign him to a new position in a lower salary grade. Indeed, the evidence is to the contrary in that the agency provided the grievant with an accommodation where, arguably, none was required: an offer of a new job and the same pay. Accordingly, the issue of retaliation does not qualify 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

Jeffrey L. Payne
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 42 USC §12101 et seq.
3 By letter dated July 26, 2000, counsel for the grievant claims that, under the grievance procedure, to proceed to hearing all the grievant must do is put forward facts that "may support" the grievant's contention that a prohibited management action occurred. Counsel maintains that the grievant has stated these facts and that a hearing officer should decide whether to accept the grievant's facts or the differing facts of the agency. The provision referenced by counsel reads: "[i]f there are facts which may support one or more of the following actions, the grievance should be qualified for hearing." Grievance Procedure, page 6. Thus, to qualify a grievance for hearing, a grievant must do more than merely allege the occurrence of a prohibited management action - a grievant must provide facts to this Department raising a sufficient question as to whether the alleged management actions actually occurred. In the instant case, the grievant must provide facts supporting a misapplication or unfair application of a specific state policy, discrimination based upon the violation of the ADA, and/or retaliation by the agency. As discussed in this ruling, this Department finds that he has not done so.
4 See grievant's letter of July 6, 1999, stating, "[f]or the record, this is to inform you that in May, 1998, I never made any type of request for accommodation due to a disability… how can it be implied that I am covered under the ADA… how can these facts imply that I requested accommodation?" (italics in original).
5 Effective March 6, 2001, the grievant was transferred back to the Collections Section from his assignment in the Office Audit Section. This ruling does not address the issue of the grievant's transfer back to his original position because his return to his prior position has not been grieved.
6 DHRM Policy 3.05 (Compensation) was recently updated as a result of reform of the state's compensation plan. However, because the former policy (effective 09/16/93) 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.
7 42 U.S.C. §12101 et seq. In the attachment to the grievant's Form A, he claims that if the agency had returned him to the Bankruptcy Unit (from which he was originally transferred for cross-training purposes) he would not have filed this grievance. However, the position that he previously held also now requires the ability to use the ACD phone system.
8 A qualified individual is defined as an individual with a disability who, with or without a reasonable accommodation can perform the essential functions of the job. 42 U.S.C. §12111(8).
9See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, Requesting Reasonable Accommodation, Question 6.
10 Id.
11 In his July 6, 1999 letter, the grievant disputes that he requested accommodation in May 1998; however, he stated in that letter that he possessed medical documentation indicating that he "could not perform the skills required of the ADS." Under the ADA, when requesting reasonable accommodation, the employee does not have to specifically mention the ADA or reasonable accommodation - all the employee must do is notify the employer that he needs an adjustment or change at work for a reason related to a medical condition. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, Requesting Reasonable Accommodation, Question 1. Therefore, it appears that the agency acted appropriately in requesting reasonable medical documentation and modifying the grievant's duties while waiting for the grievant to provide the documentation. The agency continued to make requests to both the grievant and his doctor for sufficient medical corroboration to evaluate his request for accommodation under the ADA. The agency maintains that the grievant's doctor's note of June 2000 still is not sufficient to provide the requisite reasonable medical corroboration.
12 EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities.
13 42 U.S.C. §12111(8).
14 29 C.F.R. § 1630.9.
15 Williams v. Channel Master Satellite Systems, Inc. , Petty v. Freightliner Corp., 113 F. Supp. 2d 808, 810 (W.D. N.C. 2000); see also Bratten v. SSI Services, Inc., 185 F.3d 625, 633-634 (6th Cir. 1999)(discussing Fourth Circuit position).
16 29 C.F.R. § 1630.9. Further, if a disabled employee refuses to accept a reasonable accommodation, that employee is no longer considered to be a "qualified individual with a disability." Id.
17 Grievance Procedure, page 6.