Murphy v. Norfolk Community Services Board

Present: 	All the Justices
JOHN MURPHY
v. 	Record No. 992764 	OPINION BY JUSTICE BARBARA MILANO KEENAN
September 15, 2000
NORFOLK COMMUNITY SERVICES BOARD
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
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
1See Norfolk, Va. Ordinance No. 36,558 (Sept. 10, 1991)
(adopting the revised grievance procedure at issue in this
action).

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
2See Norfolk, Va. Ordinance No. 35,929 (March 20, 1990).
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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
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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
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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,
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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
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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.
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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.
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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.
3We 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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