Issue: Compliance/30 day rule; Ruling Date September 17, 2001; Ruling #2001-121; Agency: Department of Corrections; Outcome: Out of compliance-grievant.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

In the matter of Department of Corrections

Ruling Number 2001-121

September 17, 2001

ISSUE:

Did the grievant initiate his first grievance (December 6, 2000) in a timely manner and does his second grievance (May 11, 2001) challenge the same management action raised in his first grievance?

RULING:

The December 6, 2000 grievance was filed beyond the 30 calendar day time period and is therefore untimely. Further, the May 11, 2001 grievance challenges the same management action raised in the December 6, 2000 grievance. Thus, the parties are advised that both grievances should be marked as concluded due to noncompliance and no further action is required. This Department’s rulings on matters of compliance are final and nonappealable.1

EXPLANATION:

On September 18, 2000, a Group II Written Notice was issued to the grievant. On September 19, 2000, the grievant immediately went out on medical leave through November 4, 2000. The grievant has reported to this Department that he received a copy of the Written Notice prior to returning to work, although he does not recall the exact date of receipt. On November 5, 2000, the grievant returned to work. 2 However, he did not initiate his grievance until December 6, 2000, (31 days after he returned to work, and well over 30 calendar days from his receipt of the Written Notice).3Because the grievance was filed over 30 calendar days from the grievant’s receipt of the Written Notice, the agency head refused to qualify his grievance on the grounds of untimeliness.

On May 11, 2001, the grievant attempted to file an appeal to this Department challenging the agency head’s decision. The onsite human resources officer assisted the grievant by instructing him to initiate a second grievance to challenge the same Written Notice. The grievant met with the Second Resolution Step Respondent to discuss the merits of his grievance on May 11, 2001, but no relief was granted. The grievance was then sent directly to the agency head who responded by informing the grievant that he was out of compliance because he filed a second grievance challenging the same 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. When an employee initiates a grievance beyond the 30-calendar day period without just cause, the grievance is not in compliance with the grievance procedure and may be administratively closed. The agency may raise noncompliance at any point through the agency head’s qualification decision. 4Additionally, this Department has long held that an employee may not initiate multiple grievances "challenging the same action or arising out of the same facts." 5

In this case, it is undisputed that the grievant received the Written Notice in question prior to returning to work on November 5, 2000, and that he did not initiate his grievance until 31 days after he returned to work (December 6, 2000). Thus, his December 6, 2000 grievance was untimely. In support of his claim that he had just cause for his untimeliness, the grievant contends that he believed he had 30 workdays to file his grievance, and not 30 calendar days. He also states that he was searching for documents to support his grievance. This Department has long held , however, that a grievant’s mistake regarding the 30 calendar day time limit does not constitute just cause for failure to initiate a grievance in a timely manner. Likewise, taking additional time to prepare a grievance before filing it does not constitute just cause. Accordingly, we must conclude that the grievant has not established just cause for his failure to timely file his December 6, 2000 grievance.

Additionally, the grievant’s May 11, 2001 grievance, challenges the same issue that had been challenged in his December 6, 2000 grievance--the September 18, 2000 Group II Written Notice. Thus, the May 11 grievance is duplicative of his earlier grievance and therefore, is not in compliance with the grievance procedure.6

Neil A.G. McPhie, Esquire
Director

Felicia H. Johnson
Employment Relations Consultant

1See Va. Code § 2.1-116.03(5).
2The Second Resolution Step Response attachment states that the grievant returned to work on November 4, 2000. However, both the grievant and the onsite human resources officer have reported to this Department that the grievant actually returned to work on November 5, 2000.
3The grievant hand delivered his Form A to Human Resources on December 6, 2000 because his supervisor was not available to receive the grievance. The grievant's supervisor actually received the grievance and responded on December 15, 2000.
4See Va. Code § 2.1-116.05(D); Grievance Procedure Manual § 2.4(1), pages 6-7.
5See Grievance Procedure Manual § 2.4(6), page 6.
6Note: Although not required, the agency gave the grievant an opportunity to discuss his concerns with upper management when he met with Second Resolution Step Respondent after he filed his May 11 grievance.