ISSUE:

Did the agency violate a substantial procedural requirement of the grievance procedure by failing to provide a timely third-step response and, if so, can the agency establish just cause for its noncompliance?

RULING:

This Department holds that the agency has established just cause for its failure to timely correct a substantial procedural requirement of the grievance procedure. By copy of this ruling, the parties are advised that the grievant has 5 workdays from receipt of this letter to either conclude the grievance or request to advance to qualification. This Department's rulings on matters of compliance are final and nonappealable. (See Va. Code § 2.1-116.03(5)).

 
EXPLANATION:

On October 11, 2000, the employee initiated a grievance challenging the issuance of a Group II Written Notice for failure to follow supervisory instructions. The grievance was unresolved at the First and Second Resolution Steps. On November 27, 2000, the grievant advanced the grievance to the Third Resolution Step. No written response to the issues and relief requested was provided within the mandated 5 workday time period. On December 12, 2000, the grievant notified the agency head by e-mail of the procedural violation. As of December 19, the date of the ruling request, the grievant had received no response to the notification of noncompliance. Thus, the sole question remaining is whether there was just cause for the agency's failure to correct the noncompliance within the mandated 5 workday time period.

During the investigation of this matter, the agency provided a copy of the grievant's Form A with a signed third-step response from the agency head, dated December 12, 2000, the same date of the notification of noncompliance. The agency also submitted a signed copy of the letter of transmittal, which was labeled "CERTIFIED MAIL." Thus, management made a good faith effort to timely correct its noncompliance. However, the original grievance package was not received by the grievant and appears to have been lost through either administrative or mailing error by the agency. The agency was unaware that the grievant had not received its response until the initiation of this Department's investigation, when the agency discovered that it did not have a certified receipt to establish that the grievant had received the grievance package. Therefore, on January 11, the agency forwarded a copy of the third-step response to the grievant, which she received on January 12, 2001.

Although the grievant did not receive the third-step response within the mandated 5 workdays, there appears to be just cause for the agency's failure to timely correct its noncompliance; the agency attempted to forward the third-step response to the grievant, but the package was lost. Further, the grievant has presented no evidence that there was bad faith on the part of the agency officials with respect to its loss. Nor was there any undue harm or prejudice to the grievant as a result of the violation. Accordingly, based upon the above, the agency has established just cause for its noncompliance in this matter.