§4 Qualification for a Hearing
Not all grievances proceed to a hearing. Only grievances that challenge certain actions qualify for a hearing.
§4.1(a) Actions Which AUTOMATICALLY Qualify
- Formal discipline (a Written Notice); and
- Dismissal for unsatisfactory performance.
§4.1(b) Actions Which May Qualify
The grievance should qualify for a hearing if (i) it claims, and (ii) the facts, taken as a whole, raise a sufficient question as to whether an adverse employment action has occurred as a result of one or more of the following:
- Unfair application or misapplication of state and agency personnel policies, procedures, rules, and regulations;
- Discrimination on the basis of race, color, religion, political affiliation, age, disability, national origin, or sex;
- Arbitrary or capricious performance evaluation;
- Retaliation for participating in the grievance process, complying with any law or reporting a violation of such law to a governmental authority, seeking to change any law before Congress or the General Assembly, reporting an incidence of fraud, abuse, or gross mismanagement, or exercising any right otherwise protected by law; or
- Informal discipline – for example, terminations, transfers, assignments, demotions, and suspensions – which are not accompanied by formal discipline (a Written Notice) but which are taken primarily for disciplinary reasons.
§4.1(c) Actions Which DO NOT Qualify
Claims that relate solely to the following issues do not qualify for a hearing:
- Establishment or revision of wages, salaries, position classifications, or general benefits;
- Contents of statutes, ordinances, personnel policies, procedures, rules, and regulations;
- Means, methods, and personnel by which work activities are undertaken;
- Hiring, promotion, transfer, assignment, and retention of employees;
- Termination, layoff, demotion, or suspension from duties because of lack of work, reduction in workforce, or job abolition;
- Work activity accepted by an employee as a condition of employment or which reasonably may be expected to be a part of the content of the job;
- Relief of employees from duties in emergencies; or
- Informal supervisory actions – for example, interim evaluations, counseling memoranda, and oral reprimands.
The fact that the claim challenges an action under this section does not preclude it from qualifying if (i) the grievance claims, and (ii) the facts, taken as a whole, raise a sufficient question as to whether the action constituted an adverse employment action that was improperly tainted by (1) misapplication or unfair application of policy, (2) discrimination, (3) arbitrary performance evaluation, (4) retaliation, or (5) unwarranted discipline.
§4.2 Agency Head’s Determination
Within 5 workdays of receiving the employee's hearing request, the agency head must determine whether the grievance qualifies for a hearing. The agency head must provide a written response on the grievance “Form A” or an attachment. The response should also notify the employee of his procedural options. Because this is the last opportunity to resolve the grievance within the agency, the agency head may address the issues and the relief requested by the employee. If the agency head qualifies the grievance for hearing, the agency’s Human Resources Office must request the appointment of a hearing officer using the “Form B,” within 5 workdays of the qualification decision. For hearing scheduling purposes, the agency must provide on the “Form B” the name and telephone number of its party representative or party designee.
If the agency head does not qualify the grievance for a hearing, the employee may appeal to the EDR Director.
If the employee appeals to EDR, the employee must submit his grievance form to the agency’s Human Resources Office within 5 workdays of receiving the agency head’s qualification decision. Within 5 workdays of receipt of the appeal request, the agency’s Human Resources Office must copy and mail the grievance record, complete with all attachments, to EDR. (The original grievance record should be kept by the agency.)
If the agency head qualifies some but not all the grieved issues, the employee may ask EDR to qualify any remaining unqualified issues. A request to EDR for qualification of any such issues temporarily stops the grievance process until EDR issues its ruling.
NOTE: EDR rulings on qualification will be published on EDR's Web site in a manner that seeks to preserve personal privacy. See “Publication of Hearing Decisions, Rulings, and Related Court Opinions,” §8.1.
If EDR does not qualify the grievance for a hearing,
the employee may appeal that decision to the circuit court in the
jurisdiction in which the grievance arose.
If the employee appeals, the employee must submit a written request
to appeal to the agency’s Human Resources Office within 5
workdays of receiving EDR’s qualification decision. Within
5 workdays of receipt of the appeal request, the agency’s
Human Resources Office must copy and mail the grievance record,
complete with all attachments, to the circuit court in the jurisdiction
in which the grievance arose. The Human Resources Office must list
the EDR Director as a copy recipient on the cover letter to the
court accompanying the grievance record. (The original grievance
record should be kept by the agency.)
If the Human Resources Office does not forward the
record to the court, the employee may request the court to issue
an order requiring the transmittal of the record.
Within 30 calendar days of receiving the grievance record, the court,
sitting without a jury, should hear the appeal on the record and
such additional evidence as may be necessary to resolve any controversy
as to the correctness of the record. The court may receive other
evidence at its discretion. The employee may represent himself or
may be represented by an attorney. No other person may represent
the employee. The decision of the court is final and not appealable.
Courts have rules regarding the appearance of witnesses
and the scheduling of hearings. Therefore, prior to the hearing,
a party should contact the clerk of the circuit court to discuss
these issues.
NOTE: Court decisions may be published in full on EDR's Web site.
See “Publication of Hearing Decisions,
Rulings, and Related Court Opinions,” §8.1.
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Revised August 30, 2004