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MURPHY v. NORFOLK COMMUNITY SERVICES BOARD



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MURPHY

v.

NORFOLK COMMUNITY SERVICES
BOARD


September 15, 2000

Record No. 992764

JOHN MURPHY

v.

NORFOLK COMMUNITY SERVICES BOARD

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

William F. Rutherford, Judge

Present: All the Justices


OPINION BY JUSTICE BARBARA MILANO KEENAN

In this appeal of a judgment entered on a
petition for review of the dismissal of an employee grievance, we
consider whether the trial court erred in holding that the
employer properly terminated the grievance based on the
employee’s failure to comply with certain filing deadlines.

The evidence presented to the chancellor showed
that in January 1999, John H. Murphy was terminated from his
employment as a case manager with the Norfolk Community Services
Board (NCSB). In accordance with the grievance procedure enacted
by the City of Norfolk (City) pursuant to Code
?? 15.2-1506 and -1507,
[1] and made
applicable to the NCSB by City ordinance,
[2] Murphy timely filed a written grievance with Brenda
Wise, the Director of Administration for NCSB.

On February 10, 1999, Murphy received a letter
from Sharon Lucas, a human resources coordinator with NCSB,
advising him that a panel would hear his grievance. The letter
directed Murphy to identify, by February 26, 1999, his employee
representative to serve on the grievance panel and the witnesses
he intended to present at the panel hearing. The letter informed
Murphy that "failure to observe the February 26, 1999 time
limit may result in the grievance being terminated."

On Friday, February 26, 1999, Murphy mailed to
NCSB a letter containing the requested information. On the next
business day, Monday, March 1, 1999, he personally delivered a
copy of the letter to Brenda Wise. Wise concluded that Murphy had
not met the February 26, 1999 deadline, and that "there was
nothing else for the community services board to do." On
March 30, 1999, Wise gave Murphy written notification that his
grievance would not be processed further.

Murphy filed a petition for review in the trial
court under the NCSB grievance procedure provision mandated by
Code ? 15.2-1507(A)(7)(b). He alleged that his initial
noncompliance with the February 26, 1999 deadline constituted
noncompliance with a "substantial procedural
requirement" under the grievance procedure provisions, but
that he cured his noncompliance within the time period allowed
under the procedure. Murphy further alleged that NCSB had failed,
without just cause, to comply with the grievance procedure by
failing to convene a panel to hear his grievance. He sought a
declaration that he was entitled to the relief requested in his
grievance based on NCSB’s noncompliance with the grievance
procedure or, in the alternative, that he was entitled to a
grievance hearing.

After the chancellor heard Murphy’s evidence,
NCSB moved to strike the evidence, arguing that NCSB properly
terminated his grievance since he had not obtained an extension
of the February 26, 1999 deadline in accordance with the
provisions of the grievance procedure. The chancellor granted
NCSB’s motion to strike, ruling that Murphy had failed to obtain
an extension of the filing deadline, and that the provision in
the grievance procedure for curing noncompliance with a
"substantial procedural requirement" within five days
of a violation was inapplicable to filing deadlines. The final
decree stated that because Murphy had failed to meet the filing
deadline and did not obtain an extension of time to make his
required submissions, "the Director of Human Resources had
no authority to unilaterally extend the deadline and was
compelled to suspend processing of the grievance." In the
decree, the chancellor dismissed the petition and awarded final
judgment in favor of NCSB.

On appeal, we first review the provisions of
the NCSB grievance procedure that are relevant to the issue
before us. The grievance procedure requires that an employee who
has filed a grievance that will be heard by a three-person
grievance panel designate another employee to serve on the panel.
Within ten business days of receipt of the Administration
Department’s request for the designation, the employee must
forward the name of his choice to the Department. The grievance
procedure further provides that along with the Administration
Department’s request for designation of a panel member, the
Department shall issue a corresponding request that the employee
and the employee’s "department head" submit, within ten
business days, a list of the witnesses that they intend to
present at the hearing.

The grievance procedure also states, in
relevant part:

E. Time Limitations

. . . .

2. Any time limitation specified by this
procedure may be extended by mutual agreement of the parties, or,
when justified by unusual circumstances constituting just cause,
by the [Director of Administration], provided that such extension
must be in writing accompanied by a clear explanation of the
Director of his reasons for authorizing the extension. Examples
of unusual circumstances which will justify an extension of time
are the sickness or disability of an employee or of a supervisor
to whom a grievance must be presented.

. . . .

4. After the initial filing of a written
grievance, the failure of either party to comply with all
substantial procedural requirements of the grievance procedure,
without just cause, will result in a decision in favor of the
other party on any grievable issue, providing that the party not
in compliance fails to correct the noncompliance within five (5)
work days of receipt of written notification by the other party
of the compliance violation. Such written notification by the
grievant shall be made to the [Executive Director]. The failure
of either party, without just cause, to comply with all
substantial procedural requirements at the panel hearing shall
result in a decision in favor of the other party. [Citation
omitted.]

Murphy argues that the chancellor erred in
concluding that the curative provisions of Section E(4) are
inapplicable to a failure to meet a filing deadline for the
designation of a panel representative and witnesses. He contends
that Section E(4) permits a party to correct any noncompliance
with "substantial procedural requirements" within five
days of receiving a mandatory written notification of his
noncompliance from the other party to the grievance. Murphy
contends that the February 26, 1999 deadline was a
"substantial procedural requirement," and that since he
personally delivered the required designations one business day
after the deadline, he cured his noncompliance and was entitled
to proceed with his grievance.

In response, NCSB argues that Section E(2) is
the only provision of the grievance procedure that permits an
extension of time beyond a deadline established in the procedure,
and that Murphy failed to comply with either prescribed method in
that section for extension of a time limitation. NCSB contends
that the curative provisions of Section E(4), on which Murphy
relies, apply to procedural requirements other than time
limitations. Thus, NCSB asserts that since Murphy failed to
establish that he obtained an extension of the February 26, 1999
deadline under the provisions of Section E(2), the chancellor
correctly concluded that NCSB was required to cease processing
his grievance. We disagree with NCSB.

Under Code ? 15.2-1507, grievance
procedures adopted by a local governing body must include certain
components of the state grievance procedure. See Zicca
v. City of Hampton
, 240 Va. 468, 470, 397 S.E.2d 882, 883
(1990). One required component is a provision that "[t]ime
frames may be extended by mutual agreement of the local
government and the grievant." Code
? 15.2-1507(A)(6)(d). The statute also requires a curative
provision that enables parties to a grievance, within five
business days, to correct noncompliance with "all
substantial procedural requirements" that occur after the
timely filing of an initial grievance. Code
? 15.2-1507(A)(7)(a). These two components were
incorporated into the City’s grievance procedure in Sections E(2)
and E(4).

The term "substantial procedural
requirement" is not defined specifically in either the Code
or the City’s ordinance. When a statute or an ordinance does not
expressly define a particular term, the general rule of
construction is to infer the legislative body’s intent from the
plain meaning of the language used. Sansom v. Board of
Supervisors
, 257 Va. 589, 594, 514 S.E.2d 345, 349 (1999); Hubbard
v. Henrico Ltd. Partnership
, 255 Va. 335, 340, 497 S.E.2d
335, 338 (1998); City of Virginia Beach v. Flippen, 251
Va. 358, 362, 467 S.E.2d 471, 473 (1996).

An undefined term must be given its ordinary
meaning, considered in the context in which the term is used. Sansom,
257 Va. at 594-95, 514 S.E.2d at 349; Stevenson v. City of
Falls Church
, 243 Va. 434, 437, 416 S.E.2d 435, 437 (1992); Commonwealth,
Dep’t of Taxation v. Orange-Madison Coop. Farm Serv.
, 220 Va.
655, 658, 261 S.E.2d 532, 533-34 (1980). The context of the term
includes the other language used in the particular statute or
ordinance at issue. Sansom, 257 Va. at 595, 514 S.E.2d at
349; City of Virginia Beach v. Board of Supervisors, 246
Va. 233, 236-37, 435 S.E.2d 382, 384 (1993).

Applying these principles, we consider the
plain language of Sections E(2) and E(4). While Section E(2)
allows the parties to a grievance to extend any time limitation
specified in the procedure by mutual agreement or by permission
of the Director of Administration, that provision does not
authorize the termination of a grievance against a party who has
failed to comply with a time limitation imposed after the initial
filing of a grievance.

In contrast, Section E(4) allows the
termination of a grievance based on a party’s ultimate
noncompliance with any "substantial procedural
requirement." This section provides that the failure of a
party to cure his noncompliance, within five business days of
receipt of written notification by the other party of the
compliance violation, will result in a decision in favor of that
other party. Although the term "substantial procedural
requirement" is not defined in Section E(4), the context in
which the term is used indicates that it encompasses time
limitations and other procedural requirements that are so
essential to the grievance procedure that the uncorrected failure
to comply with them will prevent a grievance from being heard and
necessarily result in a decision in favor of the opposing party.

Under this construction of Section E(4),
Murphy’s failure to comply with the February 26, 1999 deadline
constituted noncompliance with a "substantial procedural
requirement," which was subject to the curative provisions
of that section. Since Murphy personally delivered the required
submissions to Brenda Wise one business day after they were due,
he cured his noncompliance under the terms of Section E(4). Thus,
we hold that upon delivery of his submissions on March 1, 1999,
Murphy was entitled to proceed with his grievance, and the
chancellor erred in reaching a contrary conclusion.

For these reasons, we will reverse the
chancellor’s decree and remand the case with direction that it be
remanded to NCSB for the processing of Murphy’s written grievance
filed with NCSB on February 2, 1999.
[3]

Reversed and remanded.

FOOTNOTES:

[1] See Norfolk, Va. Ordinance
No. 36,558 (Sept. 10, 1991) (adopting the revised grievance
procedure at issue in this action).

[2] See Norfolk, Va. Ordinance
No. 35,929 (March 20, 1990).

[3] We do not consider
Murphy’s assignment of error that the trial court erred in
finding that NCSB was in compliance with the notification
requirements of its grievance procedure. As Murphy conceded in
his written exceptions to the chancellor’s final decree, the
chancellor did not rule on this issue. Further, we note that
Murphy’s argument that he is entitled to prevail on the merits of
his grievance due to NCSB’s alleged noncompliance with its
grievance procedure is not the subject of any assignment of error
before this Court; thus, we do not consider the argument.

 

 

 

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