Issue: Compliance, 30-day rule, Ruling Date: December 7, 2001; Ruling:#2001-180; Agency: Department of Motor Vehicles; Outcome: In compliance grievant.

RECONSIDERED COMPLIANCE RULING OF DIRECTOR

In the matter of Department of Motor Vehicles (DMV)

Ruling Number 2001-180

December 7, 2001

(Reconsidering August 24, 2001 Compliance Ruling)

The Department of Motor Vehicles (DMV) has requested that this Department reconsider its August 24, 2001 ruling, which concluded that the grievant’s April 5, 2001 grievance was timely. The agency’s request is based on documents, which it claims shows that the grievant was capable of initiating a timely grievance. For the reasons discussed below, the August 24, 2001 ruling will stand.

On August 23, 2000, the grievant was suspended for making a threat of bodily harm against another employee. On August 30, she was issued a Group III Written Notice with termination, but the grievance challenging the disciplinary action was not initiated until April 5, 2001. At the first respondent step, the grievance was challenged as untimely. On April 12, 2001, the grievant appealed this determination to EDR citing "emotional reprocutions" as the just cause for her delay in the initiation of her grievance.

During this Department’s investigation of this matter, the grievant provided a May 16, 2001 statement from her attending medical professional, a licensed clinical psychologist, stating "[i]n short, it is my opinion that the stress and the conflict and the turmoil of [the grievant’s] life over the last 10 months prevented her from filing this grievance in a timely fashion."¹ In response to this Department’s request for more specific information, the psychologist stated that the grievant "was generally able to manage her affairs and she had a general understanding of her rights. However, because of her depression, she was unable to act upon her understanding of her legal rights at that time." The psychologist further stated that the grievant "was so depressed that she was not able to comprehend her rights and to act upon them in a timely fashion." Based upon that medical information, and case law cited in the ruling of August 24, 2001, this Department concluded that the grievant had just cause for her delay.

Compliance rulings by the EDR Director are final and nonappealable. ²For 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. The agency has based its request upon a claim of newly discovered evidence.

Notwithstanding the evaluation of the grievant’s psychologist, the agency asserts that, the grievant was able to act upon her legal rights within 30 calendar days of her termination, as evidenced by her having (1) filed for unemployment benefits; (2) requested and attended a meeting to provide a rebuttal to her termination; and (3) submitted a written rebuttal to her termination.

In response to the agency’s assertion, the grievant states that she was only able to accomplish the cited actions with the direct intervention of a friend. Specifically, the friend completed the unemployment claim form; she only had to sign it. Likewise, the friend drafted and typed the rebuttal letter based upon the grievant’s recollection. The grievant disclaims any memory of requesting the September 7, 2000 meeting with her supervisors to rebut her termination.

Obviously the facts continue to be in dispute concerning the grievant’s mental state during the 30 calendar day period immediately following her termination, and the intervening period to the initiation of her grievance on April 5, 2001. In making its determination, however, this Department relied upon the expert opinion of the attending medical professional. Notwithstanding the circumstantial actions and events cited by the agency, there are no facts to indicate that the attending psychologist was unable to render an impartial professional evaluation of the grievant’s mental state during the period under review. As to the question of an independent clinical evaluation, such an evaluation was not deemed necessary at the time of our August 21, 2001 ruling nor upon reconsideration.

Accordingly, the parties are advised that they must proceed with conduct of the second-step meeting without further delay. This ruling has no bearing on the merits of this grievance.

Neil A. G. McPhie, Esquire
Director

June M. Foy
Senior Consultant