v. Docket No. 00-DNR-091D
WEST VIRGINIA DIVISION OF NATURAL RESOURCES,
Respondent.
Ms. Plumley: No. I think the times are pretty close together
myself.
Transcript, Level III, pp 180-181.
6. A transcript was provided to Respondent in December 1999, and Respondent
filed proposed findings of fact and conclusions of law on January 10, 2000.
7. A level three decision was issued by Mr. McClung on March 3, 2000, and was
subsequently accepted and ratified by Respondent's Director, John B. Rader, on March
6, 2000.
8. Grievant filed a notice of default with Director Rader by letter dated March 6,
2000.
In addition, House Bill 4314 added the following language to W. Va. Code
§29-6A-5(a): "[t]he [grievance] board has jurisdiction regarding procedural matters at levels
two and three of the grievance procedure."
If a default occurs, Grievant is presumed to have prevailed, and is entitled to the
relief requested, unless Respondent is able to demonstrate that the remedy requested is
either contrary to law or clearly wrong. W. Va. Code §29-6A-3(a)(2); Williamson v. W. Va.
Dep't of Tax & Revenue, Docket No. 98-T&R-275D2 (Jan. 6, 1999). If there was no default,Grievant may proceed to the next level of the grievance procedure. Respondent contends
no default occurred in this matter, as contemplated under the terms of the statute.
This Grievance Board has previously adjudicated related issues arising under the
default provision in the grievance statute covering education employees, W. Va. Code
§ 18-29-3(a). See, e.g., Ehle v. Bd. of Directors, Docket No. 97-BOD-483 (May 14, 1998);
Gruen v. Bd. of Directors, Docket No. 94-BOD-256 (Nov. 30, 1994); Wadbrook v. W. Va.
Bd. of Directors, Docket No. 93-BOD-214 (Aug. 31, 1993); Flowers v. W. Va. Bd. of
Trustees, Docket No. 92-BOT-340 (Feb. 26, 1993). Because Grievant is claiming she
prevailed by default under the statute, she 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).
Grievant concedes that she agreed to waive the statutory timelines, but complains
a default occurred because the statutory language provides that the decision shall be
issued within five days, shall being mandatory in nature. She further asserts that the
statute makes no provisions for waiving time limits. She opines that Mr. McClung's
representation that it was impossible to issue a decision within five days was not an
absolute, and that even if he waited to receive the transcript, she reasonably expected the
decision to be issued within five days of his receipt of that document. Grievant notes that
the decision was not issued until more than two months following the receipt of thetranscript, and nearly seven weeks after Respondent filed its proposed findings of fact and
conclusions of law. Grievant characterizes the span of time as an unreasonable delay
which caused her to suffer continuing harm.
Respondent argues that while the State Employees Grievance Act is silent as to
waiver, it does not render Grievant's action void because any person capable of binding
herself may waive matters affecting her property or alienable rights, including contractual,
statutory or constitutional privileges. Smith v. Bell, 129 W. Va. 749, 41 S.E.2d 695 (1947).
Respondent also asserts that the waiver was not open-ended, and considering the
thoughtfulness, thoroughness, reasonableness, professionalism, and legal correctness
of the grievance evaluator's decision, 57 days is a reasonable and non-prejudicial
turnaround time in a matter of this sort. Respondent concludes that Grievant has made
no showing that she was prejudiced in any manner by its reliance upon her waiver, and that
her full measure of grievance rights remain available to her.
W. Va. Code §29-6A-4(c) provides the following directions regarding when
Respondent must act at Level III:
Within five days of receiving the decision of the administrator
of the grievant's work location, facility, area office, or other
appropriate subdivision of the department, board, commission
or agency, the grievant may file a written appeal of the decision
with the chief administrator of the grievant's employing
department, board, commission or agency. A copy of the
appeal and the level two decision shall be served upon the
director of the division of personnel by the grievant. The chief
administrator of his or her designee shall hold a hearing in
accordance with section six of this article within seven days of
receiving the appeal. The director of the division of personnel
or his or her designee may appear at the hearing and submit
oral or written evidence upon the matters in the hearing. The
chief administrator or his or her designee shall issue a writtendecision affirming, modifying or reversing the level two decision
within five days of the hearing.
In general, [a] right or privilege given by statute may be waived or surrendered, in
whole or in part, by the party to whom or for whose benefit it is given. Smith supra.
Although some statutes forbid waiver of the protections they afford, W. Va. Code §29-6A-
3(a)(2) is not such a statute. The specified time limits in the grievance statute may be
extended for a "reasonable time" by mutual, written agreement of the parties. See W. Va.
Code §29-6a-3(g). Waiver of the strict statutory timelines is a common occurrence within
the context of the grievance procedure. Huston v. W. Va. Dep't of Tax and Revenue and
Div. of Personnel, Docket No. 99-T&R 469D (Feb.29, 2000); Parker v. W. Va. Dep't of
Health and Human Resources, Docket No. 99-HHR-296D (Nov. 30, 1999). This practice
benefits both parties by allowing employers sufficient time to give grievances careful
attention and care, rather than "rushing" to judgment. Jackson v. Hancock County Bd. of
Educ., Docket No. 99-15-081D (May 5, 1999). The West Virginia Supreme Court of
Appeals upheld this interpretation in Martin v. Randolph County Board of Education, 195
W. Va. 297, 465 S.E.2d 399 (1995), in which a default claim was denied after Grievant
had agreed to delay a level two hearing.
In retrospect it is clear what happened between the parties. Although they believed
they had agreed to a waiver of the timelines, each party had a different interpretation of the
contents of that waiver. Neither sought clarification from the other. See Bowyer v. Bd. of
Trustees/ W. Va. Univ., Docket No. 99-BOT-197D (July 13, 1999). Although the
agreement to extend the timelines was not written, it is on the record, and Grievant clearly
agreed to the extension during a formal, recorded hearing. This agreement is sufficient toconstitute a valid waiver of the time to issue a decision under the statute, and it is sufficient
for substantial compliance. Parker, supra; Bowyer, supra; Jackson, supra.
Further, it is noted that the time periods in the grievance procedure are not
jurisdictional in nature and are subject to equitable principles of tolling, waiver, and
estoppel. Jackson, supra; Gaskins v. W. Va. Dep't of Health, Docket No. 90-H-032 (Apr.
12, 1990). This Grievance Board has frequently applied such principles, specifically
estoppel, to toll the time for filing a grievance. See, e.g., Lilly v. Raleigh County Bd. of
Educ., Docket No. 94-41-195 (Nov. 28, 1994). Such principles have similarly been applied
in evaluating default cases. Harmon v. Div. of Corrections, Docket No. 98-CORR-284D
(Oct. 6, 1998). In order to prevail in a claim of estoppel, a party must show that there was
a representation made, or information given, by the opposing party which was relied upon,
causing an alteration of conduct or change of position to the first party's detriment. Ara v.
Erie Insurance Co., 182 W. Va. 266, 387 S.E.2d 320 (1989).
Unquestionably, Grievance Evaluator McClung relied upon Grievant's agreement
that the timelines for issuing the Level III Decision were waived. In reliance upon Grievant's
agreement in this regard, Respondent delayed issuing the decision beyond the statutory
time limitation of five days after the submission of the Proposed Findings of Fact and
Conclusions of Law. Therefore, the doctrine of estoppel would bar Grievant from now
claiming that a default occurred.
Grievant's agreement to allow an extension of the statutory time line at Level III
prohibits any claim that a default occurred at that level.
Consistent with the foregoing discussion, the following conclusions of law are
appropriate.
Date: June 22, 2000 ________________________________
Sue Keller
Senior Administrative Law Judge