Issue: Compliance, 30 day rule; Ruling date March 22, 2001; Ruling #2001-018; Agency: Department of Corrections; Outcome: Out of compliance (grievant).

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

In the matter of Department of Corrections #2001-018
March 22, 2001

ISSUE:

Did the grievant initiate his two grievances in a timely manner and does the second grievance (January 12, 2001) challenge the same management actions raised in the first grievance (December 18, 2000)?

RULING:

The December 18, 2000 and January 12, 2001 grievances were filed beyond the 30 calendar day period and are therefore untimely. Further, the January 12, 2001 grievance challenges the same management action raised in the December 18, 2000 grievance. Thus, the parties are advised that both grievances should be marked as concluded due to noncompliance and no further action is required. This Department's rulings on matters of compliance are final and nonappealable. (See Va. Code § 2.1-116.03(5)).

EXPLANATION:

On November 7, 2000, the grievant was placed on suspension pending court action and informed by management that he could use his accrued annual and compensatory leave for time missed as a result of the suspension, but that he could not use accrued sick leave. The grievant engaged management in a series of discussions concerning the suspension and the use of sick leave during the suspension period. The grievant maintains that the Warden advised him to wait before filing a grievance because he was going to look into the matter and that he would accept the grievance after the expiration of the 30 calendar day period. The Warden cannot recall whether he informed the grievant that he would accept the grievances if untimely filed, and there was no written agreement to that effect. On December 14, management again advised the grievant that he could not use his accrued sick leave during the suspension period. On December 18, the grievant initiated a grievance challenging the suspension. At that time, he also indicated in Attachment 1 to his grievance that he disagreed with the Warden's determination that he could not use sick leave during his suspension. A second step meeting was held on January 8, 2001. On January 12, the grievant initiated a second grievance alleging that management's denial of sick leave during the suspension period was an unfair application/misapplication of policy. On January 26, management responded that the January 12 grievance was "challenging the same action or arising out the same set of facts" as the December 18 grievance and that both grievances were filed beyond 30 calendar days.

The Grievance Procedure provides that an employee must initiate a written grievance within 30 calendar days of the event or action that is the basis of the grievance, unless there is just cause for the delay. 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. The agency may raise noncompliance at any point through the agency head's qualification decision. (See Va. Code § 2.1-116.05(D); Grievance Procedure Manual § 2.4(1), pages 6-7). The 30 calendar filing period may be extended only if there is an agreement between the parties to waive this requirement, and any such agreement should be in writing. (Grievance Procedure Manual § 2.2, page 5). Additionally, an employee may not initiate multiple grievances challenging the same action or arising out of the same material facts. (See Grievance Procedure Manual § 2.4(6), page 6).

In this case, the grievant contends that the date that gave rise to his grievances was management's decision on December 14 to deny his use of sick leave during his suspension. However, the actual triggering event for the grievant's complaint was not management's December 14 reaffirmation of the November 7 suspension and permitted use of only annual and compensatory leave, but rather the November 7 action itself. Therefore, the grievant should have filed his grievance within 30 calendar days of November 7, which would have been December 7. Consequently, the grievant must establish that there was just cause for his delay.

In support of his just cause claim, the grievant contends that (i) he attempted to informally resolve the complaint with management and (ii) the Warden told him that he would accept the grievances outside the 30 calendar day period. This Department has long held that awaiting the outcome of another complaint process or discussions with management do not constitute just cause for failure to initiate a grievance in a timely manner. However, under the grievance procedure, parties may agree to waive the 30 calendar day filing requirement. In this case, the grievant contends that the Warden agreed to an extension of the filing period. During the investigation for this ruling, the Warden indicated that he could not recall whether he had granted an extension, but that there was no agreement in writing. While the grievance procedure states that an agreement to waive the filing requirement should be in writing, a written agreement is not mandatory, if both parties have in fact agreed to extend the filing period. Here, the grievant has not met his burden of proof that there was a mutual agreement to extend the filing period. The Warden does not acknowledge the existence of an agreement. Further, other than his statement that the Warden granted him an extension, the grievant has provided no corroborating evidence of a verbal agreement, such as witness testimony. Accordingly, this Department is unable to find that the grievant has established just cause for his failure to timely file his grievances.

Additionally, with respect to his January 12 grievance, the grievant is challenging an issue that was already raised in his December 7 grievance. The December 7 grievance challenges "adverse employment actions," and the grievant states in Attachment 1 that management advised him on December 14 that he would not be allowed to use accrued sick leave during his suspension and that he disagreed with management's decision. Thus, the January 12 grievance challenging management's denial of the grievant's request to use sick leave during his suspension is duplicative of his earlier grievance and, therefore, is not in compliance with the grievance procedure.

Neil A.G. McPhie, Esquire
Director

Tracey D. Watkins
Employment Relations Consultant