Issue: Compliance, Document request; Ruling date May 1, 2001; Ruling #2001-047; Agency: Department of Corrections; Outcome Out of compliance, Agency.

May 1, 2001

By letter dated March 12, 2001, the grievant requested this Department to issue a compliance ruling in her favor. The grievant claims that the Department of Corrections has failed to provide her with information that she requested relative to her grievances filed with the agency on August 12, October 25, October 30, and November 30, 2000.

The grievant was employed as a Corrections Officer with the Department of Corrections until she was terminated under the Standards of Conduct on November 30, 2000. Prior to being terminated, the grievant had filed a sexual harassment complaint against one of her superiors on March 22, 2000. Thereafter, the agency immediately began an internal investigation of her complaint.

The grievant contends that all of her grievances are related to the sexual harassment complaint she filed in March because her grievances claim that she was retaliated against after having filed the complaint. On August 12, 2000, she filed a grievance alleging sexual harassment, hostile work environment and retaliation. On October 25, 2000, she filed a grievance alleging invasion of privacy, ongoing retaliation, misapplication of policy and discrimination. On October 30, 2000, she filed another grievance alleging that her work performance evaluation rating (Does Not Meet Expectations) was retaliatory. Finally, on November 30, 2000, the grievant filed a grievance alleging that her termination was retaliatory.

The grievant reported to this Department that since as early as April 2000 she has made numerous requests for a copy of the agency’s internal investigation of her sexual harassment complaint. Although the agency advised the grievant verbally that the investigation had been completed, the agency did not provide her with a copy of the investigation, even after she filed her grievances. On February 14, 2001, the grievant sent a letter to the agency head giving notice of noncompliance. She further requested that a full and complete copy of the investigation be sent to her within five workdays from receipt of the letter. To date, the grievant has not received a copy of the investigation or any explanation as to why that report had not been provided. At some point after the agency head received the grievant’s notice of noncompliance, however, the Warden told the grievant to contact the agency’s internal affairs office herself if she wanted a copy of the report.

The grievance procedure requires both parties to address procedural noncompliance through a specific process.¹ That process assures that the parties first communicate with each other about the noncompliance, and resolve any compliance problems voluntarily without this Department’s involvement. Specifically, the party claiming noncompliance must notify the other party in writing and allow five workdays for the opposing party to correct any noncompliance. If the agency fails to correct the alleged noncompliance, the grievant may request a ruling from this Department. Should this Department find that the agency violated a substantial procedural requirement and that the grievance presents a qualifiable issue, this Department may resolve the grievance in the grievant’s favor unless the agency can establish just cause for its noncompliance.²

The grievance statute provides that "[a]bsent just cause, all documents, as defined in the Rules of the Supreme Court of Virginia, relating to actions grieved shall be made available upon request from a party to the grievance, by the opposing party."³ This Department’s interpretation of the mandatory language "shall be made available" is that absent just cause, all relevant grievance-related information must be provided.

The grievance statute further states that "[d]ocuments pertaining to nonparties that are relevant to the grievance shall be produced in such a manner as to preserve the privacy of the individuals not personally involved in the grievance."⁴ Documents, as defined by the Rules of the Supreme Court of Virginia, include "writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form.⁵" However, a party is not required to create a document if the document does not exist.⁶ To summarize, absent just cause, an agency must provide the grieving party with all relevant documents upon request, in a manner that preserves the privacy of other individuals.⁷

Both parties to a grievance should have access to such documents during the management steps and qualification phase, prior to the hearing phase. Early access to information facilitates discussion and allows an opportunity for the parties to resolve a grievance without the need for a hearing. To assist the resolution process, a party has a duty to conduct a reasonable search to determine whether the requested documentation is available and, absent just cause, to provide the information to the other party in a timely manner.

In this case, the investigative report on the grievant’s sexual harassment complaint directly relates to her grievances, one or more of which allege sexual harassment, discrimination and retaliation for having filed her harassment complaint. Further, we conclude that the agency did not provide to the grievant in a timely manner the investigative report nor did it provide to her or to this Department during the investigation for this ruling any potential "just cause" (e.g., legal privilege, security needs) for not providing the investigative report. Indeed, the agency apparently now has no objection to providing the report, having recently advised the grievant, through the Warden, to obtain it herself from Internal Affairs. That is not, however, a satisfactory response from one party to the other regarding a document request, particularly where, as here, the party has already unduly delayed in producing a relevant document. The party in custody of a requested document must provide the document to the requesting party, or state any "just cause" for not providing it, not simply tell a grievant that she must ask for it again. In this case, although the agency has had ample opportunity to provide the investigative report or identify a "just cause" for not providing it, it has done neither. Thus, we have no choice but to conclude that the agency has violated a substantial procedural requirement without just cause.

We will not, however, at this time, exercise our discretion to award a decision in the grievant’s favor on any qualified issue. This case involves serious charges that deserve a further exploration of the facts by a hearing officer and a decision on the merits. Accordingly, we will only direct the agency to provide a copy of the investigative report in question to the grievant within five workdays from receipt of this letter, in a manner that "preserves the privacy of the individuals not personally involved in the grievance."⁸

Prior to hearing, the assigned hearing officer will be authorized to issue orders for the production of any additional documents or for the appearance of witnesses, generally by conducting a pre-hearing conference. Any further concerns or questions that either party may have can be addressed to the hearing officer at that time. ⁹ The hearing officer will determine whether any other document sought by either party must be produced, and in what form, given the applicable facts and issues that may emerge in that setting. If either party to this grievance believes that the hearing officer has exceeded his authority or has failed to comply with the grievance procedure by ordering or failing to order the production of any documents, or the manner of their redaction or production, or the appearance of any witnesses, that party may then request a compliance ruling from this Department on the hearing officer’s exercise of authority.

While a hearing officer does not have subpoena power, he has the authority to draw factual inferences if a party, without just cause, fails to produce relevant documents as directed by him or this Department, or fails to make available relevant witnesses as he has ordered. Thus, although a hearing officer cannot compel an agency to produce a document as directed, the agency’s failure to do so could result in an adverse inference drawn against it with respect to any factual conflicts resolvable by that evidence.¹⁰ In other words, if documents are withheld in whole or in part absent just cause, and those documents could resolve a disputed material fact pertaining to the grievance, the hearing officer could also resolve that factual dispute in the grievant’s favor. ¹¹

As discussed above, this Department finds that the agency has failed to meet a substantial procedural requirement set forth in the grievance statute, and therefore directs the agency to deliver to the grievant the requested investigative report within five workdays of its receipt of this ruling. The report may be redacted to preserve the privacy of any individual who is not personally involved in this grievance. Should the agency fail to produce the report as directed, the hearing officer may draw adverse inferences against the agency with respect to any factual conflicts resolvable by that report and he may assess the credibility and good faith of the agency’s witnesses in light of that failure. This Department’s rulings on matters of compliance are final and nonappealable.¹²

Neil A. G. McPhie, Esquire
Director

Felicia H. Johnson
Employment Relations Consultant