Issue: Compliance/30-day rule; Ruling Date July 16, 2001; Ruling #2001-110; Agency: Norfolk State University; Outcome: in compliance grievant; a reconsideration ruling

RECONSIDERED COMPLIANCE RULING OF DIRECTOR

In the matter of Norfolk State University/No. 2001-110
July 16, 2001
(Reconsidering and Reversing March 28, 2001 Compliance Ruling)

The grievant has requested that this Department reconsider its March 28, 2001 ruling, which had concluded that her September 26, 2000 grievance was untimely without just cause. Due to the unusual circumstances of this case, this Department agreed to reconsider that determination. For the reasons discussed further below, the Department now reverses its earlier ruling by holding that just cause existed for the grievant’s delay in initiating her grievance. Accordingly, within 5 workdays of receipt of this ruling, the grievant must either conclude her grievance or advise the Human Resources Office at Norfolk State University in writing that she wishes to proceed with her September 26, 2000 grievance at the second management step level.

The grievant was employed by Norfolk State University (NSU). In March 2000, she was placed on short term disability leave due to health problems. She claims that while she was on disability leave, NSU received automated letters from CORE (the organization that administers the Virginia Sickness and Disability Program for the state), updating management regarding extensions to her return date. However, according to the grievant, three months after her disability leave began, NSU advised her that it was not CORE’s responsibility to inform NSU of her return dates and that, as the employee, she was required to contact the agency if her disability leave was extended. Thus, she advised the agency that her disability leave would end on August 1, 2000. She claims that prior to August 1, however, CORE notified NSU by automated letter that her disability leave had been extended to September 15, 2000. She also contended that her husband notified NSU of the extension by e-mail.

When the grievant did not return to work on August 1, management sent her a letter dated August 7, stating that by August 11 she must return to work or contact her supervisor with an acceptable reason as to why she had not reported; if not, she would be terminated. NSU attempted to have a campus police officer hand-deliver the letter to the grievant’s home; however, no one responded at her residence. On August 12, a Saturday, the grievant’s husband signed for the August 7 certified letter. The grievant claimed that her sister contacted NSU for her that following Monday, but that the manager she needed to speak with was unavailable, so she left her name and telephone number and requested that she be contacted. The grievant’s sister did not receive a return telephone call that day. On August 14, NSU sent a registered letter to the grievant, which stated that she was terminated, effective August 9. The grievant did not take delivery of this letter.

The grievant asserted that she felt well enough to contact the office on August 15, and that she left a message concerning her new return date. Because she responded as requested, she indicated that she assumed the matter was rectified until September 15, her new return date. On August 18, NSU claims that the grievant called and spoke to management, at which time she was verbally advised that she was terminated, effective August 9. However, the grievant disputes that she spoke with management on August 18. She maintains that she first learned of her official termination on August 29, when her insurance company notified her by letter of a change in her insurance due to her termination. On September 26, she initiated her grievance challenging the termination. The second resolution step responded that her grievance was not filed within the 30 calendar day period as required by the grievance procedure.

On March 28, 2001, this Department issued a ruling that held that the grievant was out of compliance with the grievance procedure by filing her grievance beyond the 30 calendar day period without just cause. Specifically, this Department held that while the grievant maintained that she had been unaware of her separation from state service until her receipt of the letter from the insurance company on August 29, she had been on notice that NSU planned to separate her from state service when she received NSU’s August 7^th letter advising her that if she did not return or contact NSU by August 11 she would be terminated. This Department’s ruling further stated that the evidence suggested that the grievant had avoided receipt of an official notification of termination. The ruling went on to note that NSU sent the grievant a certified letter dated August 14, but she did not take delivery of this letter. (As the reason for her failure to accept delivery, the grievant asserted that she was ill and unable to answer the door.) The ruling further held that after her receipt of the August 7 letter, the grievant should have known that NSU would attempt to contact her again via certified letter regarding her leave status. The ruling concluded that after having been put on notice of her impending termination, the grievant failed to exercise due diligence to contact the agency or to ascertain if NSU was trying to reach her by certified mail.

On May 15, 2001, the grievant requested that this Department reconsider its March 28, 2001 ruling.

Compliance rulings by the EDR Director are final and nonappealable.¹ For that reason, requests to the EDR Director for reconsideration are not granted as of right. Rather, it has been the long-standing practice of this Department to review reconsideration requests on a case-by-case basis and to grant them only if the request is not unduly delayed and only if compelling reasons exist -- such as newly discovered material evidence or evidence of a plainly erroneous factual or legal conclusion. This is such a case.

The crux of the March 28, 2000 ruling was that the Grievant had not shown "just cause" for her delay in initiating her grievance. The Grievance Procedure Manual defines "just cause" as a "reason sufficiently compelling to excuse not taking a required action in the grievance process." This Department concluded in its March 28^th ruling that the reasons given by the grievant for her failure to timely initiate her grievance --(1) that she was too ill to answer her door and receive mail, and (2) that she was not aware that she had been terminated-- did not rise to the level of just cause for the delay.

However, based on additional medical information provided to this Department in conjunction with the grievant’s request for reconsideration, this Department now concludes, for purposes of this ruling only, that the grievant had just cause for not initiating her grievance within the mandatory 30 calendar day time period. Specifically, the grievant’s health care provider has provided documentation indicating that during the time period at issue in her September 26^th grievance (August-September, 2000), the grievant was undergoing treatment for "Major Depression, Recurrent, Severe."² According to her health care provider, due to her illness, the grievant was incapable of meeting the requirements of the grievance procedure.³ Significantly, too, the grievant was not asked during our original investigation for medical documentation to support her claim that illness prevented her from answering the door and tending to her mail. Morever, her medical documentation could indicate that at the time she was not able to adjudge for herself that she should offer such documentation in support of her case.

It should be noted that illness does not automatically constitute just cause for failure to meet the requirements of the grievance procedure. To the contrary, in most cases it will not. Only where there is evidence indicating that a physical or mental impairment was so debilitating that compliance with grievance procedure was virtually impossible (not merely difficult) will illness be viewed as just cause for delay.⁴ Thus, if illness merely reduces the amount of time in which a person has to initiate a grievance, the shortened time period alone will not constitute just cause. Likewise, stress or depression alone does not constitute just cause for delay. Further, to establish illness as just cause for not meeting the grievance procedure’s time requirement, the grievant should in virtually all cases be required to provide supporting evidence from a health care provider. The grievant has presented such evidence in this case with her reconsideration request.

Finally, we must emphasize that this reconsidered compliance ruling has no bearing on the ultimate merits of this grievance. Should this grievance advance to a hearing, the hearing officer will determine all relevant facts independently.

Neil A.G. McPhie, Esquire
Director

William G. Anderson, Jr.
Employment Relations Consultant