Issue: Qualification/Retaliation/Other Protected Right; Work Conditions/ Other; Ruling Date August 7, 2001; Ruling #2001-038,2001-039; Agency: Department of Corrections; Outcome: Not Qualified.

In the matter of Department of Corrections
August 7, 2001
Ruling Numbers 2001-038, 2001-039

The grievant has requested a ruling on whether her two December 10, 2000 grievances with the Department of Corrections qualify for hearing. The grievant alleges that her management’s conduct towards her was harassing, abusive and retaliatory. In addition, the grievant alleges that management showed favoritism in scheduling staff members. For the reasons discussed below, these grievances do not qualify for hearing.

The grievant is employed by the Department of Corrections. Management formally counseled the grievant regarding an October 6, 2000 incident involving inmates and inappropriate comments. On November 15, 2000, the grievant advised management that she disagreed with the roster schedule rotation. On November 20, 2000, the grievant met with the Assistant Warden regarding the grievant’s alleged role in various interpersonal issues among staff. At that time, the grievant claims that the Assistant Warden threatened to transfer her to the facility’s main compound.¹

By statute and under the grievance procedure, management reserves the exclusive right to manage the affairs and operations of state government.² Thus, all claims relating to issues such as the means, methods, and personnel by which work activities and assignments 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.³ This grievance claims general harassment, retaliation, and favoritism by management.

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. In this case, the grievant has clarified that she is not alleging that management’s actions were based on any of these factors. Rather, the facts cited by the grievant to support her claim can be summarized as alleging a punitive management style and/or describing general interpersonal conflict with two members of management. Such claims of supervisory conflict, however unprofessional, are not among those issues identified by the General Assembly that may qualify for hearing.

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;⁴ (2) the employee suffered an adverse employment action; and (3) a causal link exists between the adverse employment action and the protected activity.⁵

For purposes of this ruling, we will assume without deciding that the grievant engaged in a "protected activity." However, the management actions challenged by these grievances do not constitute "adverse employment actions", which by definition must be actions having a significant detrimental effect on the terms and conditions of the grievant’s employment--for example, hiring; firing; decreased compensation; changes in job title; level of responsibility; or decreased opportunities for promotion.⁶ While the supervisor may have communicated to the grievant in an abrasive manner, claims of supervisory hostility alone, absent a clear impact on the terms of the grievant’s employment, do not present grounds for a qualifiable retaliation claim. Indeed, this Department has long held that general supervisory harassment, however unprofessional, does not qualify in and of itself for a hearing.

The grievant’s claim of favoritism can best be described as a claim that her supervisor misapplied or unfairly applied policy, presumably the Commonwealth’s general policy, that personnel actions be "based on merit principles and objective methods" of decision-making.⁷ 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 her supervisor did not adequately rotate the duty roster resulting in more night patrol duty for her shift and more favorable duty assignments to another shift. Management has broad authority to exercise its business judgement in deciding upon establishing workplace rules and schedules, as it deems best for agency operations.⁸ This includes the right to decide duty assignments. While the duty assignments may have appeared to be more favorable to another shift, the grievant has provided no evidence that the assignments were determined on mere favoritism or anything other than her supervisor’s exercise of business judgement. Nor has the grievant presented evidence of a violation of any state or agency policies. Indeed, it appears that the roster rotation applied equally to all shift members. Thus, 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, she must 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 must 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

Tracey D. Watkins
Employment Relations Consultant