Issue: Qualification; Separation/Involuntary Resignation; Ruling Date May 11, 2001; Ruling #2001-060; Agency: University of Virginia; Outcome: Not Qualified

Commonwealth of Virginia

QUALIFICATION RULING OF DIRECTOR

In the matter of University of Virginia No. 2001-060

May 11, 2001

The grievant has requested a ruling on whether her March 9, 2001 grievance with the University of Virginia (UVA) qualifies for a hearing. UVA failed to qualify the grievance claiming that the grievant did not have access to the grievance procedure because the grievant voluntarily resigned her position. The grievant claims that her resignation was involuntarily. She seeks reinstatement and the issuance of a Written Notice with suspension. For the reasons set forth below, the grievance is not qualified for hearing.

The grievant was employed by UVA for five years as a Housekeeper. On March 7, 2001, she was charged with stealing a toy from an office and given the choice either to resign or be terminated. The grievant admitted taking the toy, and verbally tendered her resignation, stating she did not want a termination on her record. She was escorted to her locker and then off the premises. During this investigation, the Human Resource Director ("Director") stated the time that elapsed between the grievant being informed of the charge, verbally resigning and leaving the premises was about 30 minutes. The grievant returned to the site later the same day and spoke with the Chancellor, requesting that she be allowed to continue employment and be issued a Group III Written Notice with a 30 day suspension per the Standards of Conduct.¹ The Chancellor took her to the Director who provided a copy of the Grievance Procedure Manual to the grievant. The grievant asked the Director to delay the paperwork for her separation from state service until she met with management on March 9, to which the Director agreed. After an unsatisfactory meeting with management, the grievant initiated this grievance, claiming that she was involuntarily separated from state service.

The General Assembly has provided that all non-probationary state employees may utilize the grievance process, unless exempted by law.² Employees who voluntarily resign may not have access to the grievance process, depending upon the surrounding circumstances, such as the nature of their claim or when the grievance is filed. For example, this Department has long held that any grievance initiated by an employee prior to the effective date of a voluntary resignation may, at the employee’s option, continue through the grievance process, assuming it otherwise complied with the 30-day calendar rule. On the other hand, this Department has also long held that once an employee’s voluntary resignation becomes effective, she may not file a grievance.

In this case, the grievant maintains that although she originally resigned on March 7, her subsequent verbal request to hold the paperwork was in effect a request to change her effective date of resignation to March 9. Further, she claims UVA allowed her to withdraw her verbal resignation by agreeing to hold the paperwork, making March 9 the new effective date. Thus, the grievant argues that she was still an employee on March 9 when she filed her grievance and, therefore, had access to the grievance procedure.

The relevant state policy is DHRM Policy 1.70 II (A)(3), which allows an employee who has submitted her resignation to withdraw the resignation no later than one month after the effective date of the proposed resignation. The decision of an agency as to whether to accept an employee’s attempt to rescind a resignation is entirely discretionary with the agency head or his designee. Assuming, without deciding for purposes of this ruling, that UVA accepted the grievant’s withdrawal of her resignation, making her new effective date March 9 (giving her access to the grievance procedure), we find that the agency has afforded the grievant all the process which she is due because, as discussed below, the grievant has not presented evidence raising a sufficient question as to whether her resignation was involuntary and, thus, is not a qualifiable issue.³

Involuntary terminations that are performance-based or accompanied by a Written Notice automatically qualify for a hearing; other involuntary terminations may qualify for a hearing if there is sufficient evidentiary support of discrimination, retaliation, informal discipline or a misapplication of policy.⁴ In such situations, a hearing may result in the grievant’s reinstatement, depending upon the facts of the case and applicable policy. On the other hand, voluntary resignations do not qualify for a hearing. The grievant does not claim that discrimination, retaliation, informal discipline or a policy misapplication caused her separation from state service. Further, as explained below, there is no evidence that the grievant’s resignation was anything but voluntary.⁵

The determination of whether a resignation is voluntary is based on an employee’s ability to exercise free and informed choice in making a decision to resign. Thus, a resignation may be involuntary "(1) where [the resignation] was obtained by the employer’s misrepresentation or deception . . . and (2) where forced by the employer’s duress or coercion."⁶ Under the "misrepresentation" theory, a resignation may be found involuntary if induced by an employee’s reasonable reliance upon an employer’s misrepresentation of a material fact concerning the resignation.⁷ A misrepresentation is material if it concerns either the consequences of the resignation or the alternative to resignation. ⁸The grievant has not alleged that UVA made any misrepresentation that caused her to resign her position. Nor has this Department found evidence of such.

A resignation also may arise from duress or coercion and thus be involuntary if in the totality of circumstances it appears that the employer’s conduct in requesting resignation effectively deprived that employee of free choice in the matter. Facts to be considered are: (1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the choice given; (3) whether the employee was given a reasonable time in which to choose; and (4) whether she was permitted to select the effective date of resignation. ⁹

It is undisputed that the grievant, after failing to convince management to utilize an alternative to resignation, allowed the resignation to stand by permitting paperwork to be submitted on March 9, 2001. Moreover, the grievant’s statements during this investigation suggest that the grievant’s decision to resign rather than face termination was based on her concerns over the potential impact of a termination - - presumably on prospective employers. The grievant stated that she "had no choice but to resign as [she] didn’t want [termination] on [her] record." This statement indicates that grievant deliberately considered and elected to secure a certain outcome, a voluntary resignation, rather than risk the unpredictable result of the hearing to which she would have been automatically entitled had she been terminated under the Standards of Conduct.

Thus, the grievant had the choice to await termination and then contest it through the grievance procedure, but the grievant declined to do so. The fact that the grievant may have perceived her choice as between comparably unpleasant alternatives (resignation or termination) does not of itself establish that a resignation was induced by duress or coercion.¹⁰ Therefore, we cannot conclude that the grievant’s resignation was anything other than voluntary when the facts support that the grievant knew she had a choice to resign or she would be terminated; believed resignation was preferable to termination; and actively pursued UVA to reconsider termination alternatives and permitted the processing of the final paperwork on March 9. Accordingly, 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, please 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 will 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

Deborah M. Amatulli
Employment Relations Consultant