Issue: Compliance, 30-day rule; Ruling Date: December 10, 2001; Ruling #2001-195; Agency: Department of Corrections; Outcome In compliance grievant.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

In the matter of Department of Corrections

Ruling Number 2001-195

December 10, 2001

ISSUE:

Did the grievant initiate the grievance in a timely manner?

RULING:

Yes. The parties are advised that the grievant has five workdays from receipt of this ruling to advance this grievance to the next resolution step. This Department’s rulings on matters of compliance are final and nonappealable.1

EXPLANATION:

The grievance procedure provides that an employee must initiate a written grievance within 30 calendar days of the date he knew or should have known of the event or action that is the basis of the grievance, unless there is just cause for the delay. 2 Further, this Department has consistently held that a grievance initiated in a timely manner but with the wrong management representative generally will not bar a grievance for noncompliance. In addition, it is generally incumbent upon the grievant to initiate a grievance in a manner that would allow verification of the date of delivery – for example, by obtaining a date-stamp, postmark, or mailing receipt. When the facts are in question concerning compliance with the 30 day rule, however, it has long been the general policy of this Department to allow the employee to pursue the complaint through the grievance process where there is some other evidence to corroborate the employee’s position.

In this case, the 30 calendar day period began on August 13, 2001, the date of the event challenged by the grievance, and ended on September 12, 2001. Thus, delivery of the Form A on September 20 to any management representative would not have been timely. However, the grievant asserts that on September 1, 2001, acting on instructions from his Captain, he filed his grievance with the Lieutenant (the Sergeant’s supervisor) by placing his Form A in the Lieutenant’s in-box. During the investigation for this ruling, the Captain confirmed that she had instructed the grievant to submit his grievance to the Lieutenant, and she did not dispute the grievant’s claim that he had done so on September 1.3

In light of all the above, we conclude that the grievance was timely filed on September 1 with the Lieutenant. While the Sergeant, not the Lieutenant, would have been the correct management respondent, the Lieutenant is the management representative to whom the grievant was instructed by the Captain to provide his grievance. Filing the Form A with the Lieutenant on September 1 constituted timely notice to agency management of the grievance.

The parties should note that this ruling recognizes only that the grievant may proceed with his claim, and in no way reflects the merits of his grievance.

 

Neil A.G. McPhie, Esquire
Director

Deborah M. Amatulli
Employment Relations Consultant

1See Va. Code § 2.2-1001(5).
2See Va. Code § 2.2-3003(C). Grievance Procedure Manual § 2.4(1), page 6.
3Because the Sergeant's written first step response appears to assert that the Lieutenant had not received the Form A until September 20, this Department's investigator requested telephone interviews with both the Sergeant and the Lieutenant for further clarification. Neither responded to the investigator's telephone messages, however.