MARK MUSSER

                  Grievant,

      v.

DOCKET NO. 00-RS-083D

WEST VIRGINIA DIVISION OF
REHABILITATION SERVICES

                  Respondent.

FINAL DEFAULT ORDER


      Mark Musser (Grievant) is employed by the West Virginia Department of Rehabilitation Services (“Rehab”), as an Employment Specialist. He filed this action on January 4, 2000, regarding his failure to receive a merit raise. This grievance was denied at level one by Ezra H. Lilly, District Manager, on January 5, 2000. A level two conference was held on January 18, 2000, and the grievance was denied at level two by Charles S. Lovely, Jr., Manager, on January 20, 2000. Grievant appealed this decision to level three by memorandum to James S. Quarles, Director of Human Resources, dated January 26, 2000.
      Grievant received no response from Mr. Quarles or from Kitty Dooley, the level three hearing examiner, and on February 22, 2000, Grievant notified Mr. Quarles, in writing, that he was claiming a default occurred at level three of the grievance process,inasmuch as Rehab had failed to set a hearing or otherwise respond to his appeal within seven days. Grievant also notified Ms. Dooley of his claim for default on that same day.
      On March 3, 2000, Grievant appealed his claim of default to level four. A level four default hearing was held on April 27, 2000, before the undersigned Administrative Law Judge at the Grievance Board's Beckley, West Virginia, office. An Order Granting Default was issued by the undersigned on May 15, 2000, which Order is pending on appeal by Rehab in the Kanawha County Circuit Court.
      Following the Order Granting Default, Rehab requested a hearing in order to show that the remedy received by Grievant was contrary to law or clearly wrong, in accordance with the default provisions of W. Va. Code § 29-6A-3(a)2). Specifically, that Code Section provides:

      In the instant grievance, Grievant alleged he was discriminated against when Rehab failed to grant him a merit raise on October 31, 1999, pursuant to its Merit Increase Plan. LIV G. Ex. 2. As relief, Grievant sought a 7.5% merit increase, the highest percentage increase authorized by the Merit Increase Plan.
      A level four hearing was held on July 18, 2000, in this Grievance Board's Charleston, West Virginia, office. Grievant was represented by Steve Rutledge, WestVirginia State and Education Employees Union, and Rehab was represented by Warren N. Morford, Esq.
      Following the close of the level four hearing, Rehab filed a Withdrawal of Request to Show Remedy is Contrary to Law and/or Clearly Wrong, on July 25, 2000. A phone conference was held at Grievant's request on August 3, 2000, for the purpose of clarifying Rehab's motion. Grievant strongly objected to Rehab's withdrawal of its claim, noting the Order of Default was still pending in Circuit Court. Grievant also objected to the undersigned's ruling that certain documents which had been subpoened for the level four hearing did not need to be supplied by Rehab at this point in time. However, should the Circuit Court reverse the Order of Remand, those documents would again become relevant and subject to production by Rehab.
      Accordingly, as Rehab has withdrawn its request for a determination that the relief sought by Grievant is contrary to law or clearly wrong, there is nothing left to do by the Grievance Board but find that Grievant has prevailed by default, and is entitled to the relief sought.
      WHEREFORE,
Rehab is hereby ORDERED to award Grievant the 7.5% merit increase, effective October 31, 1999.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the circuit court of the county in which the grievance occurred. Any such appeal must be filed within thirty (30) days of receipt of this decision. W. Va. Code § 29-6A-7 (1998). Neither the West Virginia Education and State Employees Grievance Board nor any of its Administrative Law Judges is a party to such appeal, and should not be so named. However, the appealing party is required by W. Va. Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing party must also provide the Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.

                                           ___________________________________
                                                 MARY JO SWARTZ
                                                 Administrative Law Judge

Dated: August 10, 2000