Issue: Compliance; Multiple Grievances, and Other; Ruling Date: June 7, 2001; Ruling #2001-078; Agency: Department of Rehabilitative Services; Outcome: Grievant out of Compliance`

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

In the matter of Department of Rehabilitative Services

Ruling Number 2001-078

June 7, 2001

ISSUES:

May the agency administratively close the grievant’s April 2, 2001 grievance as out of compliance with the grievance procedure?

RULING:

Yes. The April 2, 2001 grievance is essentially a challenge to the agency’s implementation of the hearing decision in grievant’s October 23, 2000 grievance. As such, the proper avenue for the grievant is to petition the circuit court for an order that the agency properly implement the hearing decision. The parties are advised that the agency may mark the April 2, 2001 grievance as concluded due to noncompliance, and no further action is required on that grievance. This Department’s rulings on matters of compliance are final and nonappealable.1

EXPLANATION:

On October 23, 2000, the grievant initiated a grievance alleging that her annual performance evaluation was arbitrary or capricious. The grievance was qualified for hearing. In a written decision on February 14, 2001, the hearing officer ruled in the grievant’s favor and directed the agency to reconduct the performance evaluation in accordance with state policy.

On March 19, 2001, the agency repeated its evaluation of the grievant’s performance. On April 2, 2001, the grievant initiated the current grievance alleging that the agency had not re-evaluated her performance in accordance with the hearing officer’s order, but rather in an arbitrary, capricious and retaliatory manner.

In this case, the agency’s alleged failure to properly reconduct an evaluation--for the same performance cycle that was the subject of the October 23 grievance--is not a separate management action that may be grieved independently of the October 23 grievance.2 Rather, grievant’s April 2 challenge to the agency’s re-evaluation is part and parcel a challenge to the agency’s implementation of the hearing decision in her October 23 grievance. Under the Code of Virginia and the grievance procedure, only the circuit court has the authority to order an agency to properly implement a hearing officer’s decision.3 Accordingly, the grievant may petition the circuit court for an order requiring the agency to conduct her re-evaluation in accordance with state policy. If the grievant "substantially prevails on the merits" of her petition, the court "shall award [to her] reasonable attorneys’ fees and costs" incurred in seeking the order.4

Neil A.G. McPhie, Esquire
Director

June M. Foy
Employment Relations Consultant

1 See Va. Code § 2.1-116.03(5).
2 Compare Department of Taxation v. Hogan, 11 Va. App. 306, 397 S.E.2d 902 (1990)(indicating in that case that the grievant's demotion upon his reinstatement by a hearing panel was a separate management action from his prior termination, which he had successfully grieved; and that therefore, his demotion could have been challenged through a second grievance).that needed to be grieved separately rather than be addressed by a circuit court through implementation proceedings).
3 See Va. Code § 2.1-116.07:1(D); see also Grievance Procedure Manual § 7.3(c), page 21; see also Grievance Procedure Manual § 2.4, page 6 (as a matter of compliance, an employee's grievance must not duplicate another grievance challenging the same action or arising out of the same facts).
4 See Va. Code § 2.1-116.07:1(D); see also Grievance Procedure Manual § 7.3(c), page 21.