Issue: Qualification; Discipline, Performance; Arbitrary/Capricious, Work Conditions/ Supervisory Conflict; Ruling Date 5-17, 2001; Ruling #2001-XX; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; Outcome: Not qualified. Appealed to the Eighth Judicial Court of Virginia on 6- 4, 2001; Affirmed on 8-2, 2001; #CL01-120

QUALIFICATION & COMPLIANCE RULING OF DIRECTOR

In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services/ No. 2001-XX

May 17, 2001

The grievant has requested a ruling on whether her August 29, 2000 grievance with the Department of Mental Health, Mental Retardation and Substance Abuse Services (MHMRSAS) qualifies for a hearing. The grievant claims that (i) her May 2000 interim performance evaluation is arbitrary or capricious, (ii) management’s denial of her request for a position audit constitutes a misapplication of policies and procedures related to promotion, (iii) she was harassed by management and her "human/civil rights violated," and (iv) she was unfairly suspended without pay. For the reasons discussed below, this grievance does not qualify for hearing.

The grievant is employed by MHMRSAS as an Office Service Specialist. In March 2000, the grievant requested an audit of her position based on her assertion that changes in her job duties warranted reclassification. The agency denied the audit request on March 21, 2000, stating that there had not been any significant changes in the grievant’s job duties. On May 3, 2000, the grievant received an interim performance evaluation with an overall rating of Meets Expectations. The grievant maintains that the interim evaluation was arbitrary or capricious. In the resolution steps, and at qualification, the agency has responded that the grievant did not initiate her grievances on both of these issues within the 30 calendar day time frame.

From May through August 2000, management received complaints regarding the grievant’s behavior when training newly-hired employees. Management counseled the grievant on these occasions that she had a pattern of inappropriately expressing her unsubstantiated fears of losing her job when asked to train and orient new employees. In addition, the grievant was counseled that she had displayed a reluctance to meet with management to discuss job expectations and receive constructive feedback regarding her job performance. On August 3, 2000, a human resources staff member informed management that, in a meeting that day, the grievant had discussed her unhappiness with the issues referred to above and asked who would receive her life insurance benefits in the event of her suicide.

In light of all of the above, management has stated that they were concerned about the grievant’s ability to perform her job without posing a risk to herself or others and with her ability to interact with management and staff, which is essential to her position. Consequently, management required the grievant to leave the workplace until she could provide medical certification that she was able to perform the essential functions of her job without posing a threat to herself or others. In addition, the agency directed the grievant to have a medical evaluation of her fitness to perform the essential functions of her job. The grievant provided a satisfactory doctor’s note and was returned to work on August 8. The grievant also satisfactorily completed the agency-directed medical evaluation on August 22. The grievant initially submitted paid leave for the hours of work missed, from August 3 through August 7; however, the agency later restored the leave and paid for the grievant’s medical and travel expenses. The agency also paid for the costs of the August 22 medical evaluation.

The grievance procedure provides that an employee must initiate a written grievance within 30 calendar days of the date he knew or should have known of the event or action that is the basis of the grievance.¹ When an employee initiates a grievance beyond the 30 calendar day period without just cause, the grievance is not in compliance with the grievance procedure, and may be administratively closed.

In the grievant’s case, she received the written denial of her position audit request on March 21, 2000; she subsequently received the rating on her interim performance evaluation on May 3, 2000. Thus, the grievant had thirty calendar days, or until April 20, 2000 and June 2, 2000, respectively, to file grievances concerning these issues. It is undisputed that she did not initiate her grievance until August 29, 2000, which is over 30 calendar days from both of those dates. Consequently, the sole question remaining is whether there was just cause for the grievant’s delay.

To support her claim of just cause, the grievant contends that she delayed initiation of her grievance because she was attempting to resolve her complaint with management. This Department has long held, however, that waiting for the outcome of another complaint process or discussions with management does not constitute just cause for failure to initiate her grievance in a timely manner. Accordingly, this Department cannot find that there was just cause for her delay in initiating her grievance.

For the reasons discussed above, this Department has determined that the grievant is out of compliance with the grievance procedure by filing her grievance beyond the 30 calendar day period without just cause. By copy of this ruling, the agency is advised that her grievance on the issues of her request for a position audit and her May 3, 2000 interim performance evaluation should be marked as concluded due to noncompliance, and that no further action is required on these issues. This Department’s rulings on matters of compliance are final and nonappealable.²

The grievant also claims that management harassed her and violated her human/civil rights by calling her into meetings "under false pretenses" and subjecting her to "false/unfounded accusations." The grievant has explained that she felt she was falsely accused by management of being responsible for three recently hired employees quitting their jobs.

A claim of harassment qualifies 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.³ The grievant does not assert, however, that the alleged harassment was based on any of these factors. Rather, the facts she cites in support of her harassment claim can be summarized as describing the conflict between her and management concerning management’s decisions and actions, such as the counseling sessions referenced above, which management used to note problems with her behavior when training and orienting new employees. Such claims of supervisory conflict are not among the issues identified by the General Assembly that may qualify for a hearing.

Moreover, under the grievance procedure, management is reserved the exclusive right to manage the affairs and operations of state government. Inherent in this authority is the responsibility and discretion to communicate to employees what is observed as work performance problems. The Department of Human Resource Management (DHRM) has sanctioned the issuance of counseling, written or oral, as an informal means of communicating what management notes as problems with behavior, conduct or performance. However, DHRM does not recognize such counseling as formal disciplinary action under the Standards of Conduct.⁴

Therefore, even if the counseling was baseless and inaccurate, it would not present an issue that may be qualified for a hearing, unless there is evidence raising a sufficient question as to whether, through the issuance of the counseling, management may have misapplied or unfairly applied policy, formally disciplined the employee, or engaged in retaliation or discrimination.⁵ Although the grievant uses the term "human/civil rights violated" on her Form A, she does not allege nor present any evidence of civil rights-related discrimination as defined by the grievance procedure (i.e., based on race, color, religion, political affiliation, age, disability, national origin, or sex), nor any of the other grounds cited above for which a grievance may be qualified for hearing. Rather, the grievance essentially challenges management’s decision that the grievant’s behavior warranted correction through oral counseling. Accordingly, this issue does not qualify for a hearing.

For a claim of misapplication 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 relevant DHRM policy provides that "management may immediately remove an employee (with pay) from the work area, without providing advance notification, when the employee’s continued presence: (1) may be harmful to the employee, other employees, clients, and/or patients…."⁶ DHRM does not recognize such suspensions as disciplinary action under the Standards of Conduct.⁷ Furthermore, DHRM policy envisions that an employee, without any charge to her leave balances, may be required to submit to a medical assessment in order to certify her ability to return to work safely.⁸ Thus, while employees may challenge a suspension through the management steps of the grievance procedure, such a challenge does not qualify for a hearing absent sufficient evidence of discrimination, retaliation or misapplication or unfair application of policy. In this case, the grievant alleges that management unfairly suspended her without pay pending a medical certification that she could return to work.

In support of her claim, the grievant states that management treated her differently than other employees and reacted disproportionately to her above-referenced comments by suspending her without pay pending a doctor’s evaluation.⁹ Further, although she uses the term "suspension without pay" on her Form A, the grievant has explained that she is challenging management’s requirement that she submit sick leave for the relevant time period. DHRM policy indicates that when an agency requires an employee to have a psychiatric evaluation, such as here, the time involved is considered hours worked. Thus, it appears that the agency misapplied policy by requiring the grievant to use her sick leave.

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 if a policy has been misapplied. 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.

In this case, the agency has presented documentation that the grievant’s sick leave balances were restored by September 13, 2000, and that the leave designated as paid "other" leave was not charged to her personal leave balances. In addition, by October 2000, the grievant’s travel expenses (mileage) to her doctor were paid by the agency, as was the cost of the doctor’s appointment. Therefore, if this claim proceeded to hearing, there would be no effectual relief that a hearing officer could grant because the agency has already reapplied the policy correctly.¹⁰ Accordingly, this issue does 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, 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 she does not wish to proceed.

Neil A.G. McPhie, Esquire
Director

Jeffrey L. Payne
Employment Relations Consultant