
    CIRCUIT COURT OF HENRICO COUNTY
    Michael Dobbins v. Henrico County
    July 22, 1999
    Case No. CH99000727
   By Judge Catherine C. Hammond

Pursuant to Virginia Code § 15.2-1507(A)(9) and Section IV.B. of Ihe County of Henrico’s Grievance Procedure (DX-F), Mr. Dobbins (“the employee”), a former law-enforcement officer for the County of Henrico (“the County” or “the employer”), appeals the County’s decision that the employee’s complaint respecting termination from employment is not grievable. The Court heard evidence on July 19,1999, and the arguments of counsel.

The following facts are not in dispute.

On May 4,1999, after a hearing, the employee’s job with the Division of Police was terminated. He received written notice of the termination from Colonel Stanley advising him as follows. “You may accept my decision or you may appeal it____” “You have ten (10) calendar days... to note your appeal and you have twenty (20) calendar days within which to file a grievance.” (DX-E.)

On May 10,1999, the employee went to the County building where the Personnel Department is housed and spoke with a receptionist, Ms. Strickland. He had never before filed a grievance. He told Ms. Strickland he had been terminated and needed to file a grievance. Ms. Strickland gave him a standard two-sided form entitled “Request for Grievance Hearing” (PX-1) which has three distinct boxes labeled, respectively, step one, two, and three. Ms. Strickland testified that she asked the employee which “level” grievance he wanted to file, and he responded “level three.” She then date-stamped a form on the side corresponding to a step three grievance (PX-2 and DX-D) and directed the employee to the nearby office of Mr. Pignato, who testified that he is the County’s “facilitator” for all grievance procedures.

Next, the employee entered Mr. Pignato’s office suite and spoke wife Ms. Besenfelder, an employee of fee Personnel Department, whose duties do not involve fee grievance procedure. Mr. Pignato was engaged in other work and not available at feat moment to meet wife the employee. The employee and Ms. Besenfelder spoke briefly about fee grievance process and then engaged in an exit interview concerning benefits.

At this point, the relevant evidence conflicts in part. The employee testified feat he signed fee form date-stamped May 10 (PX-2) and left it wife fee County on May 10. The County’s witnesses and its documentary evidence (DX-C) established feat the County’s Director of Personnel was not aware of any request for a grievance hearing until a photocopy of a signed form was discovered by Mr. Pignato on May 25, one day after expiration of the twenty-day deadline for initiating step one of fee grievance procedure. But both parties agree that fee request form completed by fee employee was limited to his name, social security number, and job title, together wife a signature and date in fee step three box. The form did not state any facts or details about fee nature of fee employee’s complaint or grievance. (PX-2.)

The evidence showed feat fee County expected fee employee to fill out the step two box on the form and return it within fee deadline (DX-B), apparently even though he had not completed step one of fee grievance process (DX-C). Ms. Besenfelder testified feat on May 10, after checking wife Mr. Pignato, she advised fee employee to complete fee step two part of fee form. The employee denied this and testified feat he believed he had completed and filed all fee necessary papers on May 10, without inserting any information in fee step two box. He recalled expressing surprise to Sergeant Price a while after May 10 when he had not heard from fee County about the grievance. He testified feat on May 10 he expected to appeal to fee County Manager as “I figured I’d already gone through fee department level hearing.” On fee whole, his testimony revealed confusion about fee process.

Virginia Code §2.1-116.4 requires feat upon termination any law enforcement officer “be given written notification of his right to initiate a grievance under fee grievance procedure established by fee local governing body pursuant to §§ 15.1-7.1 and 15.1-7.2 [now set forth at §§ 15.2-1506 and 15.2-1507].” Section 15.2-1506 provides feat fee County’s grievance procedure afford “an immediate and fair method for fee resolution of disputes which may arise ....” Sections V and VIH of fee County’s grievance procedure (DX-F) state as follows.

The Director of Personnel or his designee shall advise both employees and supervisors in matters concerning this grievance procedure.
At steps 2,3, and 4 of this procedure, the grievant must complete and file a Request for Grievance Hearing form, sometimes referred to in this procedure as “the request form,” in accordance with the instructions contained on the request form itself.

And the County’s Request for Grievance Hearing form states as follows:

Step 2 — Department Level Hearing: To be completed by the grievant at Step 2 only and filed with the grievant’s department.
Step 3 — County Manager Level Hearing: To be completed by the grievant at Step 3 only and filed with the Personnel Department.

Taking together these authorities and the preponderance of the credible evidence, the Court finds that the employee made sufficient efforts to comply with the County’s grievance procedure on May 10.

The employee was advised by a commanding officer that he had ten days to “note” an “appeal.” It is undisputed that within the ten days he told two County employees, located at the personnel office, that he wanted to complain about his termination and asked for advice. In response, he was given the County’s “Request for Grievance Hearing” form which instructed him to complete the step two box “only" for a department level hearing. It was not unreasonable for the employee to conclude that his “appeal” must lie with the County Manager, or at step three instead of step two, and his attempt to gain access to the grievance procedure was adequate under the circumstances.

Accordingly, the Court will reverse the decision of the County so that the employee may commence step one of the grievance procedure. The Court expresses no opinion on the merits of the case.  