School District's Consideration of Late Grievance Waives Timelessness Defect

January 5, 2004

This case involved the termination of Scott McCarty, a maintenance employee who contended he was fired in retaliation for having filed a workers' compensation claim. McCarty filed a grievance under the District's grievance procedure, but missed the internal filing deadline by a few days. No action was taken by the School Board on McCarty's initial appeal.

Two months later, McCarty filed a written request to appear before the School Board to present evidence and testimony regarding his termination. The Board granted McCarty's request and deliberated his case in a two hour closed session. The Board denied McCarty's grievance and upheld his termination because his grievance was untimely and, alternatively, based upon the evidence presented during his hearing.

McCarty appealed the Board's decision to the trial court and the School District moved to have the case dismissed on procedural grounds because McCarty had failed to timely initiate the grievance process. The trial court refused to dismiss the case, concluding that the School District had, by fully hearing McCarty's grievance on the merits, waived its timeliness objections. The Tyler Court of Appeals agreed with the trial court and held that the Board's decision to hear evidence and render a decision on the merits of McCarty's grievance constituted a waiver of the grievance filing deadlines.

The moral of this case is that no good deed goes unpunished. McCarty's initial grievance was several days late and the Board would have been entirely within its rights to summarily dismiss the grievance on this procedural ground. Instead, however, in an apparent effort to "take the high road", the Board heard his case on the merits. This gracious gesture resulted in an unintended waiver of the timeliness defect and fostered a corresponding lawsuit which the District will now have to expend time, money and resources to unnecessarily defend.

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