JOSEPH D. RIFFLE,

      Grievant,

v.                                                      Docket No. 99-DOT-485D

WEST VIRGINIA DIVISION OF HIGHWAYS,

      Respondent.

ORDER DENYING DEFAULT

      Joseph D. Riffle (Grievant) filed a motion for default judgment against his employer, the West Virginia Division of Highways (DOH), on November 16, 1999, in accordance with W. Va. Code § 29-6A-3(a)(2). After two continuances granted for good cause shown, on January 7, 2000, Grievant requested that a decision be rendered based upon the lower level record. DOH did not object this request, and this matter became mature for consideration on February 4, 2000. Grievant has represented himself throughout this grievance proceeding, and DOH was represented by Timbera Wilcox, Esquire.

      After a detailed review of the record in its entirety, the following findings of fact are made.

Findings of Fact


      1.      Grievant initiated this grievance at level one on October 3, 1997.

      2.      The grievance was denied at levels one and two.

      3.      A level three hearing was conducted by Brenda Craig Ellis, Esquire, on August 14, 1998.

      4.      At the conclusion of the level three hearing, the following discussion occurred:

            Ellis:


            Riffle:      Yes ma'am.
            Ellis:
      5.      The level three transcript was completed on August 21, 1998.

      6.      A level three decision was issued by Ms. Ellis on November 8, 1999.

Discussion

      W. Va. Code § 29-6A-3(a) provides, in pertinent part, that a grievant shall prevail by default “if a grievance evaluator required to respond to a grievance at any level fails to make a required response in the time limits required in this article, unless prevented from doing so directly as a result of sickness, injury, excusable neglect, unavoidable cause or fraud.” Because Grievant is claiming he prevailed by default under the statute, he bears the burden of establishing such default by a preponderance of the evidence. Friend v. W. Va. Dep't of Health & Human Resources, Docket No. 98-HHR-346D (Nov. 25, 1998). A preponderance of the evidence is generally recognized as evidence of greater weight, or which is more convincing than the evidence which is offered in opposition to it. Hunt v. W. Va. Bureau of Employment Programs, Docket No. 97-BEP-412 (Dec. 31, 1997); Petry v. Kanawha County Bd. of Educ., Docket No. 96-20-380 (Mar. 18, 1997).

      
This Grievance Board has previously held that, because the default provision affects substantive rights, it cannot be applied to pending cases. Therefore, since this grievance was filed on October 3, 1997, and the default provision of W. Va. Code § 29-6A-3(a) did not take effect until July 1, 1998, it is not applicable to this grievance. Jenkins-Martin v. Bureau of Employment Programs, Docket No. 98-BEP-285 (Sept. 24, 1998). Grievant is not entitled to relief on the grounds of default.

      The above discussion will be supplemented by the following conclusions of law.

Conclusions of Law

      1.      “The grievant prevails by default if a grievance evaluator required to respond to a grievance at any level fails to make a required response in the time limits required in this article, unless prevented from doing so directly as a result of sickness, injury, excusable neglect, unavoidable cause or fraud." W. Va. Code §29-6A-3(a).

      2.      When a grievant asserts his employer is in default in accordance with W. Va. Code § 29-6A-3(a)(2), the grievant bears the burden of establishing his claim for default by a preponderance of the evidence. Cody v. Div. of Juvenile Serv., Docket No. 99-DJS-190D (Aug. 3, 1999); Friend v. W. Va. Dep't of Health & Human Resources, Docket No. 98-HHR-346D (Nov. 25, 1998).
      3.      Because the default provision in W. Va. Code §29-6A-3(a)(2), is substantive in nature, it cannot be applied retroactively, and does not affect grievances filed prior to July 1, 1998. Jenkins-Martin v. Bureau of Employment Programs, Docket No. 98-BEP-285 (Sept. 24, 1998).

      Accordingly, Grievant's Motion for Default is DENIED. This matter will remain on the docket for further adjudication at Level IV. The parties are requested to confer and provide three mutually agreed upon dates to conduct the Level IV hearing on the merits of this grievance, or notify this office if a decision on the lower level record is desired, within five days of the date of this Order. The Grievance Board does not consider this Order to be a final order or decision which is appealable to circuit court under the provisions of W. Va. Code §§ 29-6A-7 or 29A-5-4.

Date:      March 3, 2000                        ________________________________
                                                 Denise M. Spatafore
                                                 Administrative Law Judge