ISSUE:

Was the grievant's reconsideration request timely?

RULING:

The grievant mailed her reconsideration request to the hearing officer within 5 workdays of her receipt of the hearing decision. Therefore, her request is timely. Accordingly, the hearing officer is advised to: (1) accept the grievant's request as timely, and (2) respond in writing either granting or denying that request. This Department's rulings on matters of compliance are final and nonappealable. (See Va. Code § 2.1-116.03(5)).

 
EXPLANATION:

On December 1, 2000, the hearing officer issued a hearing decision that upheld the grievant's termination from state employment. On December 8, 2000, the grievant received that decision via U.S. Mail. On December 15, 2000, the grievant mailed to the hearing officer her reconsideration request, which, the hearing officer received the next day. On December 20th, the hearing officer informed the grievant that he would not accept her request for reconsideration because he received it more than 5 workdays from the date of her receipt of the hearing decision.

The Grievance Procedure applicable to this case provides that a grievant must initiate a written challenge to the hearing officer's decision within 5 workdays of her receipt of the decision. (Grievance Procedure, page 12).¹ This Department has consistently held that such a challenge is timely if mailed on or before the 5th workday following receipt of the decision. The grievant's request was mailed on December 15, 2000, the 5th workday following her receipt of the hearing decision. Therefore, her request is timely.

The grievant also timely initiated her January 4, 2001 challenge to this Department seeking review of the hearing officer's determination that he would not accept her reconsideration request. Under the Grievance Procedure, a ruling from EDR must be requested within 5 workdays from the date that the alleged non-compliance was noted. (Grievance Procedure, page 13). The grievant received notice from the hearing officer on December 22, 2000, that he would not review her reconsideration request because it was untimely. She challenged the hearing officer's refusal to the Director of EDR on January 4, 2001, the fifth workday following her receipt of the hearing officer's pronouncement that he would not consider her request.² Therefore, her challenge to this Department was timely.

Note: Unless the hearing officer substantially amends his decision after reviewing the grievant's reconsideration request, this Department will not review further challenges to his decision, such as whether it complies with the Grievance Procedure. Such a challenge should have been initiated within 5 workdays of December 8, 2000 (when the grievant initially received the hearing officer's decision).