Issue: Compliance/ 30-day rule, actions of another agency; Ruling Date: August 24, 2001; Ruling #2001-073; Agency: Department of Motor Vehicles; Outcome: In compliance- grievant.

In the matter of Department of Motor Vehicles (DMV)

Ruling Number 2001-073

August 24, 2001

ISSUES:

Did the grievant initiate the grievance in a timely manner?

Did the grievant initiate the grievance with the proper agncy?

RULING:

Yes on both issues. The parties are advised that within five workdays from the receipt of this ruling, the grievant must advance her grievance to the second resolution step. This Department’s rulings on matters of compliance are final and nonappealable.<¹/font>

EXPLANATION:

On August 23, 2000, the grievant, then an employee with the Department of Transportation, was suspended for making a threat of bodily harm against another employee. On August 25, 2000, the grievant's work unit was transferred to the Department of Motor Vehicles (DMV). On August 30, 2000 she was issued a Group III Written Notice with termination. She initiated a grievance with on April 5, 2001, challenging her termination and Group III Written Notice.

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.² In this case, the grievant clearly did not initiate her grievance within 30 calendar days of her August 30, 2000 termination. Therefore, the only question remaining is whether there was just cause for her delay. The grievant contends that the grievance was not timely filed because of a medical condition (stress and depression), that left her incapable of initiating a grievance.

In Virginia, the statute of limitations period for filing a civil action may be tolled until an incapacitating disability is removed or a conservator, guardian or committee is appointed for the incapacitated person,³ whether that disability developed before or after the cause of action accrued.⁴ Courts have held that mental illness tolls a statute of limitations "only if the illness in fact prevents the sufferer from managing his affairs and understanding his legal rights and acting upon them." ⁵In this case, the grievant’s attending medical professional, a Licensed Clinical Psychologist, has stated in writing to this Department that because of her depression, she was unable to act upon her legal rights and thus was unable to initiate a timely grievance. Accordingly, this Department concludes that the grievant was incapable of filing her grievance in a timely manner due to her illness, and therefore just cause existed for her delay.

The grievance procedure provides that the employee’s grievance must arise in the agency in which the employee works. ⁶In this instance when terminated on August 30, 2001, the grievant and her work unit had already been transferred to the DMV. Thus, her grievance was initiated with the proper employing agency, DMV.

Neil A.G. McPhie, Esquire
Director

June M. Foy
Employment Relations Consultant